Category Archives: immigrant visa

2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

On March 9, 2021 the Public Charge rule under the prior Trump Administration was vacated and removed. USCIS and the U.S. Department of State will apply the old 1999 rule to determine whether a person is likely to become a public charge on the U.S. government.

Under section 212(a)(4) of the Immigration and Nationality Act (INA), a person seeking entry to the U.S. on a visa or applying for permanent residence is inadmissible if, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Applicants will not be granted entry or a green card if they are deemed inadmissible under section 212(a)(4).

Section 212(a)(4) does not define “public charge.” But in 1999, USCIS and DOS guidelines began to define it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”

2019 Public Charge Rule Implemented Under Prior Trump Administration

The prior Trump Administration introduced the new Final Rule on August 14, 2019. It amended how U.S. immigration agencies applied section 212(a)(4). The 2019 Rule gave USCIS more discretionary power to deny Form I-485 green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground. The rule was set to take effect on October 15, 2019, i.e. 60 days after its publication. But federal court litigation delayed the implementation of the rule to February 24, 2020.

For some time, USCIS was applying the 2019 Public Charge rule and requiring green card applicants to submit a Form I-944, Declaration of Self-Sufficiency, with financial documentation, such as a credit score report, proof of health insurance, proof of assets and resources and proof of liabilities and debts.  

Episode 9 of The Legal Immigrant podcast summarizes the beginning and end of the 2019 Public Charge Rule:

(1) Federal court challenges to implementation of the 2019 Public Charge Rule

On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the 2019 Public Charge rule nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court vacating the 2019 Public Charge Rule went into effect.

As a result, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to that rule. USCIS agreed to apply the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented, when adjudicating any green card applications or application for change/extension of status that was pending or received on or after March 9, 2021. 

(2) The 3 key changes under the 2019 Public Charge Rule 

(a) Expanded the definition of “public benefits”  to include previously excluded programs, such as Federally funded Medicaid with certain exclusion; Supplemental Nutrition and Assistance Program (SNAP), formerly called food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

(b) Deemed applicants to be a public charge if they received one or more public benefits for more than 12 months in the aggregate within any 36-month period. 

(c) Applied the totality of the circumstances test based on age, health, family status, assets, resources, financial status, education, and skills.  One heavily weighted negative factor was having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.

The shift toward the weighing of positive factors and negative factors meant the Form I-864, Affidavit of Support, was no longer relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.

(3) The decision to stop applying the Rule under the current Biden Administration

A federal case challenging the 2019 Public Charge rule was dismissed by the U.S. Supreme Court upon the Biden Administration’s request. The new Administration has already stated it will not continue to apply the 2019 rule and will return to the 1999 rule. 

Because the Biden Administration has decided to not defend the rule, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or stopping enforcement of the 2019 public charge rule. There is no more need for advocacy groups to continue with this challenge in court. 

(4) How the decision to return to the 1999 Rule affects applications and petitions

On or after March 9, 2021, applicants and petitioners should not provide information required solely by the 2019 Public Charge Final Rule. 

For example, applicants for adjustment to permanent residence should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant 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).

(5) What is still required to meet the INA 212(4)(a) requirements

Even though the 2019 Public Charge Rule has been tossed, statutory law regarding public charge inadmissibility is still in effect. It applies to:

(a) Applicants for immigrant visas and green cards (unless Congress has exempted them from this ground). Congress has carved out certain exemptions to the public charge ground of inadmissibility as follows:

  • Refugees;
  • Asylees;
  • Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
  • Certain self-petitioners under the Violence Against Women Act.

(b)  Applicants for extension of nonimmigrant stay or change of nonimmigrant status (such applicants are subject to the rule’s public benefit condition unless the nonimmigrant classification is exempted by law or regulation from the public charge ground of inadmissibility). As of March 9, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status, e.g. Form I-129 or Form I-539. 

While the 2019 Public Charge Final Rule no longer applies to pending applications and petitions as of March 9, applicants still have to show they will not become a public charge to the U.S., based on 1999 guidelines. 

Family-based green card or immigrant visa applicants must still submit the Form I-864, Affidavit of Support, from the petitioner (sponsor) and joint sponsor. Petitioners are still required to submit financial documents to demonstrate they meet the income requirement to sponsor their relative in the United States.

For more information, see:

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Dyan Williams, Esq.
info@dyanwilliamslaw.com
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Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars

On February 18, the U.S. Citizenship Act of 2021 was introduced in the House by California Congresswoman Linda Sánchez and in the Senate by New Jersey Senator Robert Menendez. The White House first announced the bill on January 20, which was the first day of the Biden Administration.

The bill is 353 pages long. It contains sweeping provisions that, if passed, will overhaul many parts of the U.S. immigration system.

It seeks to give certain undocumented immigrants Lawful Prospective Immigrant (LPI) status and an 8-year path to U.S. citizenship; allow eligible DREAMERS, TPS holders and farmworkers to immediately apply for permanent residence; repeal the 3/10 year unlawful presence bar under INA 212(a)(9)(B) and the permanent bar under INA 212(a)(9)(C); and create an exception to the misrepresentation of citizenship bar for any person who was under age 21 when the false claim was made.

In Episode 8 of The Legal Immigrant podcast, I focus on the following provisions in the reform bill:

1. Section 1101, Adjustment of Status of Eligible Entrants to that of Lawful Prospective Immigrant (LPI), and Section 1102, Adjustment of Status of Lawful Prospective Immigrants

  • Provides earned 8-year path to citizenship for certain undocumented immigrants who have been present in the U.S. on or before January 1, 2021, and certain persons who were removed from the U.S. on or after January 20, 2017, but were inside the U.S. for at least 3 years prior

2. Section 3104, Promoting Family Unity

  • Repeals the 3/10 year bar under INA 212(a)(9)(B) due to accrual of more than 180 days of unlawful presence in the U.S. prior to departure
  • Eliminates the permanent bar under INA 212(a)(9)(C) due to illegal re-entry following more than 1 year of unlawful presence or following a removal order 
  • Creates exception to the false claim to U.S. citizenship bar under INA 212(a)(6)(C)(ii) for persons who made the misrepresentation when they were under age 21

Key points to consider: 

1.  The Immigration Reform bill is bicameral (introduced in the House and Senate on February 18), but is not bipartisan (sponsored by Democrats only and no Republicans). 

The comprehensive nature of the bill and the big changes proposed will make it harder to get the necessary votes. Moderation could be needed especially when Democrats have a slight margin in the House and a 50-50 split in the Senate. Vice President Harris has the tie-breaking vote.  But a supermajority of 60 senators is normally needed to pass major legislation in the Senate.

To move forward, the full legislation might have to be split up into separate smaller bills, or get added to the budget reconciliation process. Some Republicans have voiced opposition to the Biden Administration’s approach to immigration reform. 

2.   Even if the law is passed and signed by the President, it may take up to a year for the new rules to be drafted.  And it will take some time for the new application processes and forms to be rolled out and implemented. The applicant will also have to gather documents, including evidence of identity, proof of physical presence in the U.S. for the period that is required by law, and supporting records for any waiver of inadmissibility that is needed. 

3.     If you already qualify for another way to immigrate to the United States, such as by employment-based immigration or by a legal, bona fide marriage to a U.S. citizen, it’s better to use the existing path instead of wait for the results of this reform bill. 

4.     You must not deliberately fall out of status or illegally re-enter the U.S in the hope that you will be eligible for LPI status or other immigration benefits that have yet to be passed into law. Unlawful presence and illegal re-entries to the U.S. continue to have serious immigration consequences unless the law is amended to get rid of them.

Resources cited: 

For more information on inadmissibility waivers, see:

Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

When do you need an I-212 Waiver (and how do you get it)?

What should you do to get your I-212 Waiver?

When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Biden Administration Proposes Immigration Bill to U.S. Congress: The U.S. Citizenship Act of 2021

On January 20th (day 1 of the Biden Administration), the White House announced it is sending a bill to Congress to reform major parts of the U.S. immigration system.

It includes an earned roadmap for certain undocumented immigrants, Dreamers, TPS holders, and immigrant farmworkers to apply for green cards and, eventually, U.S. citizenship. 

Other proposed changes include reducing the backlog in family-based and employment-based immigration; recapturing unused visas; allowing intended immigrants with approved family petitions to join relatives in the U.S. on a temporary basis while they wait for green cards to become available;  and eliminating the 3/10-year unlawful presence bars to re-entry. 

The bill authorizes additional funding to deploy new screening technology at U.S. ports of entry and to address the root causes of migration in the Central American region.

As of the date of this blog post, the bill has not been formally introduced in either the House or the Senate. It will NOT become law unless passed by Congress and signed by the President. 

To hear more about the proposed bill, click HERE for Episode 6 on The Legal Immigrant podcast. And if you want to encourage others to listen to the show, please post a 5-star rating and positive review on Apple Podcasts or other app!

Resource cited:

See also:

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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The Legal Immigrant Podcast: Episode 4 – Section 204(l) for Surviving Relatives

If the petitioner or principal beneficiary in an immigrant petition dies, may USCIS still approve the case? May the surviving beneficiaries still immigrate to the United States? In some cases, section 204(l) relief is the way.

Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.

Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States.

Section 204(l) provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or principal applicant dies. It allows eligible derivative beneficiaries to continue with the green card process even if the principal beneficiary dies. Derivative beneficiaries are applicants who cannot be directly petitioned for, but may join the principal beneficiary of the petition based on a spousal or parent-minor child relationship.

In episode 4 of The Legal Immigrant podcast, I discuss who may be eligible for 204(l) benefits, the residence and admissibility requirements, the discretionary factors, and how to apply for the relief.

For more information, see:

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died


Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

If you like the show, please go to Apple Podcasts, log into your ITunes account, and leave a 5-star rating and positive review. Or share and rate on another app. This extra step will help grow the show and help others find the information they need! 

Many thanks,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com