March 12, 2021
LawQuest US Immigration Alert | Trump’s Public Charge Rule Invalidated and Extended Powers for Visa Interview Waivers
Trump’s Public Charge Rule Invalidated
The U.S. Citizenship and Immigration Services (USCIS), through its guidance on March 10, 2021, confirmed that visa applicants no longer need to provide documentation required under the Department of Homeland Security’s 2019 Public Charge Rule (“DHS 2019 PCR”). As a result, USCIS’ 1999 field guidance on public charge admissibility, which was in place before the 2019 PCR, will be back in effect. Under the Trump administration, the public charge rule was interpreted broadly, by redefining what makes applicants dependent on government benefits, or “likely” to be dependent in the future, thereby reducing the number of green card and other visa applicants who were otherwise eligible.
The DHS 2019 PCR required petitioners and applicants for certain immigration benefits (including H-1B, L-1 and their dependents) to disclose information on whether they had availed certain public benefits and, for some, detailed financial information. This requirement no longer applies to new or pending applications.
Applicants and petitioners for extension of non-immigrant stay and change of non-immigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Also, I-485 Adjustment of Status applicants are no longer required to submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944.
The USCIS will issue additional guidance regarding the use of affected forms. In the interim, the USCIS will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Form I-129, Form I-129CW, Form I-539, or Form I-539A based on whether the public benefits questions (Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3)) have been completed or left blank.
In the meantime, there is no clarity on how the Department of State (through its consulates and embassies) is implementing this as there is no update from the DOS as yet (on their website, or social media). As of date, the DOS public charge rule remains enjoined (per a District court ruling in 2020), so it’s quite likely that it will not be applied to immigrants appearing for visa interviews abroad. Also, since the injunction was granted last year and consulates have practically remained closed since then, there is no clarity as to whether and how the rule is being implemented, if at all.
Extension of Period for Visa Interview Waivers – Trump’s Public Charge Rule Invalidated
The Department of State (DOS) has temporarily expanded the powers of consular officers to waive in person interviews for certain non-immigrant visa applications under the COVID-19 pandemic situation.
Prior to this, only non-immigrant applicants whose visas expired within 24 months were granted an interview waiver. Until December 31, 2021, qualifying foreign nationals whose visas expired within the past 48 months will be eligible for an interview waiver in specific circumstances and when applying for a non-immigrant visa in the same classification.
Visa applicants should visit the website of their nearest U.S. embassy or consulate to determine eligibility and get information on how to avail of the waiver.
Note: Readers should not conclusively rely on the information as legal advice and should seek independent counsel before any action is taken with respect to these or other specific immigration issues.