Public Charge Update: On September 11, 2020, the Second Circuit Court of Appeals stayed—or put on hold—the injunction currently in place in New York, Connecticut and Vermont. USCIS can now proceed with implementing the Public Charge Rule in all 50 states. Envoy and GIA expect USCIS to update their website in the coming days to reflect this change, and will likely begin requiring the I-944 and information regarding a foreign national’s “receipt of public benefits on Form I-485, Form I-129, Form I-129CW, Form I-539, or Form I-539A” soon.
Update to this ruling: On August 12, 2020, the Second Circuit Court of Appeals limited the nationwide injunction issued on July 29 to only be applicable in New York, Connecticut and Vermont. However, USCIS has not updated its online system to reflect these changes. Envoy and GIA are monitoring these updates closely and awaiting more information to see how and when USCIS plans to implement these changes.
A federal judge of the U.S. District Court in Manhattan has enjoined the federal government from enforcing, applying, implementing or treating as effective, the USCIS final rule on Inadmissibility on Public Charge Grounds.
The federal judge said the government is prohibited from enforcing, applying, implementing or treating as effective the Public Charge rule for any period during which there is a declared national health emergency in response to the COVID-19 pandemic. These injunctions are nationwide.
The judge issued another order enjoining the Department of State from implementing, or taking any actions to enforce or apply, the following policies related to the public charge during the COVID-19 pandemic:
- 2018 FAM Revisions
- The DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19)
- The President’s October 4, 2019 Proclamation: Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans (84 FR 53991)
USCIS has indicated that it will now apply the 1999 public charge guidance for as long as the judge’s decision remains in effect.
According to USCIS, they will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits on the following forms:
- Part 5 on Form I-1539
- Part 3 on Form I-539A
- Part 6 on Form I-129
Who Does This Impact?
This announcement impacts both nonimmigrant and immigrant visa categories. Nonimmigrant categories include: H-1B, TN, L, O and E, and immigrant categories include all green cards.
Anyone with applications or petitions postmarked on or after July 29, 2020 should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129 or Form I-539/I-539A.
USCIS said it will issue further guidance about the use of affected forms and will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether the aforementioned parts have been completed or omitted.
How Are Envoy and GIA Responding?
Both Envoy and GIA are following the situation closely and adjusting filings per the district court order and USCIS guidance.
What Do I Need To Do Next?
Should you have any questions regarding this update, please reach out via the Envoy Communication Center.
Frequently Asked Questions About This Announcement
Q: Has it been confirmed how long the injunction will last?
A: We have not received further details on how long this injunction will be in effect. The federal judge’s order noted that it would take effect during any period which there is a declared national health emergency in response to the COVID-19 pandemic. Both Envoy and GIA are following the situation closely, and we will ensure that cases are filed appropriately as updates are received.
Q: Should employees complete the Public Benefits section of the Envoy Questionnaire?
A: Employees should continue to complete the questionnaire in full to the best of their ability. This will ensure that the legal team has all of the information that they need should the current circumstances change. If the case is sent while the injunction is in effect, the legal team will ensure that all of the appropriate information is included with the final filing.
Q: Will USCIS still process cases if the I-485 has been filed with the I-944?
A: USCIS said it will issue further guidance about the use of affected forms. For now, they have said they will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944. They have also said that the Forms I-129 and I-539 will not be impacted based on the Public Benefits information being provided or not. Thus, cases that have already been filed should not be negatively impacted by this update.
Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is the Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.
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