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Supreme Court Clears the Way for Public Charge Rule Implementation

February 6, 2020

The Public Charge Rule, denying permanent residence status to immigrants who may use public benefits, will be implemented by U.S. Citizenship and Immigration Services (USCIS) on February 24.

The Supreme Court has now cleared the way for the rule to go into effect following a delay imposed by U.S. District Courts in October 2019. Prior to the new rule, USCIS required submission of an affidavit of support for those intending to immigrate to the United States. The new public charge rules are much more comprehensive and require more detailed financial disclosures by the intending immigrant and any U.S. sponsor. Ken Cuccinelli, a senior official with the U.S. Department of Homeland Security, has indicated that "self-sufficiency is a core American value." Exempt from these requirements will be refugees, political asylees and other special immigrant visa applicants.

USCIS released the required forms (statement of self-sustainability) on February 5 along with instructions and guidance to applicants, petitioners and others. Ample time to review updated procedures and adjust filing methods will be given by the agency to the public prior to the February 24 filing date.

Any new green card applications which utilize outdated forms will be rejected and applicants would need to submit new forms. The rule will expand the definition of "public charge" and will make it harder for low-income immigrants to qualify for green cards if they have used certain public benefits in the past.

The Department of Homeland Security regulations also allow USCIS examiners to take into account a variety of other factors including health, age and English proficiency to make determinations as to whether an intending immigrant might be likely to become a public charge. To date, the regulations do not encompass immigrants entering the United States through the consular process. The U.S. Department of State, a parallel agency which governs this process, is expected to develop similar regulations in the near future.

Exempt from this ruling is the state of Illinois, where a federal judge's statewide injunction remains in effect. The federal government has requested that the Illinois injunction also be lifted.

USCIS is expected to hold public engagement events for immigration attorneys, industry representatives and other relevant groups to discuss and introduce the final rule in the coming weeks.

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