Posted onAugust 15, 2024|Comments Off on USCIS Expected to Start Accepting Parole in Place Applications on August 19
On July 17, 2024, the Biden Administration announced the expected start date for the Parole in Place plan is August 19, 2024. USCIS also published an announcement, Reminders on the Process to Promote the Unity and Stability of Families. It will reject any application filed before August 19.
The Parole in Place plan will allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.
Who Will Benefit from the Parole in Place Program?
The Parole in Place program is intended to benefit certain green card applicants who:
are physically present in the U.S. without inspection and admission or parole;
are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
do not pose a threat to public safety or national security;
are otherwise eligible to apply for adjustment of status; and
merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]
Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.
How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?
Statutory law under INA 245(a) (8 U.S.C. §1255) allows a nonimmigrant (e.g. F-1 student or H-1B temporary worker) to adjust to permanent residence based on an approved immigrant petition. This involves filing the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, either concurrently with or after the Form I-130 or Form I-140 filing.
An approved or approvable Form I-130 (family-based) or Form I-140 (employment-based) petition does not necessarily mean you qualify for adjustment of status. There are several eligibility requirements to meet for INA 245(a) adjustment.
Except for INA 245(i) and VAWA-based applicants, one key requirement is that you must have been “inspected and admitted or paroled” into the United States. This applies to even “Immediate Relatives” of a U.S. citizen; namely, spouses, unmarried children under 21 years old, and parents (if the U.S. citizen is 21 years of age or older).
More details about the application process and eligibility requirements will be published in an upcoming Federal Register notice.
In the meantime, eligible applicants may begin to gather the following evidence to prepare to file for Parole in Place:
Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate;
Documentation of proof of identity, including expired documents may include:
Valid state or country driver’s license or identification;
Birth certificate with photo identification;
Valid passport; or
Any government issued document bearing the requestor’s name, date of birth, and photo.
Evidence of your spouse’s U.S. citizenship, such as a passport, birth certificate or Certificate of Naturalization;
Documentation to establish your continued presence in the United States for at least 10 years, as of June 17, 2024. While more information will be made available in the forthcoming Federal Register Notice and subsequent FAQs, examples of documentation could include copies of:
Rent receipts or utility bills;
School records (letters, report cards, etc.);
Hospital or medical records;
Attestations to your residence by religious entities, unions, or other organizations, identifying you by name;
Official records from a religious entity confirming participation in a religious ceremony;
Money order receipts for money sent into or out of the United States;
Birth certificates of children born in the United States
Dated bank transactions;
Automobile license receipts, title, or registration;
Deeds, mortgages, or rental agreement contracts;
Insurance policies; or
Tax returns or tax receipts.
Consult a Qualified U.S. Immigration Attorney
Not all undocumented immigrants qualify for Parole in Place. Furthermore, Parole in Place, by itself, does not lead to permanent resident or green card status. Because it is not law passed by U.S. Congress, it is especially vulnerable to lawsuits and is not guaranteed to continue in the future.
There may be risks to applying for any U.S. immigration benefits, especially if you have a prior removal (deportation) order or criminal record. Be sure to consult an experienced U.S. immigration attorney to discuss whether to file for Parole in Place.
# # # The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onJune 26, 2024|Comments Off on Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing
On June 18, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.
The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.
Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.
If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.
The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.
Who Will Benefit from the Parole in Place Program?
The Parole in Place program is intended to benefit certain green card applicants who:
are physically present in the U.S. without inspection and admission or parole;
are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
do not pose a threat to public safety or national security;
are otherwise eligible to apply for adjustment of status; and
merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]
Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.
How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?
Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.
If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.
An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.
Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.
What are the Advantages of the Parole in Place Plan?
1. Eligible parolees may apply for employment authorizationand receive temporary protection from removal
In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.
2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)
Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.
A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.
To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.
If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.
Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.
What are the Limitations of the Parole in Place Plan?
1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status
Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.
Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.
2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.
Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.
There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.
In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).
For more information on the I-485 adjustment of status application process, see:
The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.
Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.
A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.
To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.
Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.
Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.
Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.
# # # The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.
Comments Off on Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing
Posted onDecember 15, 2021|Comments Off on I-601 Waiver + Immigrant Visa = A True Success Story
Five years after being found inadmissible under INA 212(a)(6)(C)(i), our client finally received her Immigrant Visa to join her U.S. citizen spouse in the United States. Consistent with normal processing time, USCIS took 10 months to approve her Form I-601 application for waiver of inadmissibility, which we prepared and filed on her behalf.
But due to the U.S. Consulate’s administrative delays and a Presidential Proclamation suspending entries from the client’s home country, it took almost three more years for her to get the visa.
1) The U.S. immigration problem when you have a permanent bar under INA 212(a)(6)(C)(i), i.e., fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit.
2) The two main solutions to receive an Immigrant Visa or green card (permanent residence) when you have a section 212(a)(6)(C)(i) inadmissibility bar:
a) A motion to reconsider requires you to have a factual basis, legal ground, and procedural means to get the bar removed.
b) Form I-601 waiver application under INA 212(i) requires you to have a “qualifying relative” who will face “extreme hardship” if you do not immigrate to the United States.
A qualifying relative is the U.S. citizen or permanent resident spouse or parent of the applicant.
Extreme hardship must result to the qualifying relative if that person stays in the U.S. without the applicant or relocates to another country to be with the applicant.
3) The type of documentary evidence and legal argument that are required to receive an I-601 waiver. This includes medical records on any chronic medical conditions the U.S. citizen spouse (or other qualifying relative) suffers, and reports on lack of medical resources in the visa applicant’s home country.
4) The outcome of a true success story, which included more obstacles and long delays after the I-601 was approved. Due to the U.S. Consulate’s 221(g) administrative processing and a 212(f) Presidential Proclamation suspending entries from certain countries, it took almost three more years for the applicant to get the Immigrant Visa.
The couple remained committed to one another despite their separate residences and long-distance relationship. Our client finally became a permanent resident after she was initially refused the visa under INA 212(a)(6)(C)(i).
This is a true success story at Dyan Williams Law.
The Legal Immigrant provides general information only from Dyan Williams Law. Do not consider it as legal advice. Each case is different. Even cases that seem similar can have different outcomes.
Have you been charged with fraud or misrepresentation? If you’re applying for an immigrant visa or permanent residence and have this lifetime bar, you need an I-601 waiver. Otherwise, if the bar was made in error, you might be able to get it removed through a motion to reconsider.
To receive advice on fraud or misrepresentation issues, you may submit an email to info@dyanwilliamslaw.com or online message at www.dyanwilliamslaw.com.
Dyan Williams, Esq.
Founder & Principal Attorney Dyan Williams Law PLLC (612) 225-9900 info@dyanwilliamslaw.com www.dyanwilliamslaw.com
Comments Off on I-601 Waiver + Immigrant Visa = A True Success Story
Posted onSeptember 1, 2021|Comments Off on COVID-19 Vaccination Required for Green Card Applicants, Starting October 1st
The U.S. Centers for Disease Control and Prevention (CDC) has a new requirement that will affect all green card applicants. Starting October 1, 2021, intended immigrants must receive full doses of the COVID-19 vaccine to immigrate to the U.S. This new requirement affects eligibility for permanent residence on health-related grounds.
COVID-19 has been added as a Class A medical condition that bars a person from the United States. Class A inadmissibility includes a communicable disease of public health significance per regulations under the Department of Health and Human Services; and a failure to present documentation of having received vaccinations against vaccine-preventable diseases.
As of October 1st, the COVID-19 vaccine will be among the vaccines required for applicants to obtain lawful permanent residence, either through the I-485 green card application with USCIS or through an Immigrant Visa application at the U.S. Embassy.
Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act states applicants for permanent residence must present proof that they are vaccinated against vaccine-preventable diseases, which include mumps, measles, rubella, polio, tetanus and influenza type B and hepatitis B, and receive any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices.
1) The ACIP has now recommended COVID-19 vaccination for the age-appropriate, general U.S. population. The CDC says this means the COVID-19 vaccination is now required to immigrate to the U.S.
2) The CDC does not recognize natural immunity. Its instructions state, “Laboratory tests for COVID-19 immunity must not be used for the civil surgeon exam. The applicant is required to receive the vaccine series regardless of evidence of immunity or prior COVID-19 infection.” The CDC asserts, “The duration of immunity due to natural infection is still being investigated and might not protect the applicant throughout the immigration process.”
3) What is an acceptable COVID-19 vaccination and proof of vaccination
Approved COVID-19 vaccines are those authorized for use in the United States or those listed for emergency use by the World Health Organization.
Personal attestation that you have been vaccinated is not enough.
Showing immunity or recovery from a prior COVID-19 infection is not a permissible basis for a vaccination waiver.
Acceptable evidence of vaccination includes –
An official vaccination record;
A medical chart with physician entries pertaining to the vaccination, including dates you received the vaccine, name or manufacturer and lot number; or,
Appropriate medical personnel attestation.
4) What is the COVID-19 vaccination requirement
The designated civil surgeon who performs the medical examination and completes the Form I-693, Report of Medical Examination and Vaccination Record, must confirm the applicant received all doses of the COVID-19 vaccine. The I-693 is part of the green card application within the United States. A similar medical exam process is performed by a panel physician and required for Immigrant Visa applicants abroad.
5) What are the exemptions to the vaccination requirement
Blanket waiver –
Applicant is not age appropriate, i.e. too young to receive the vaccine
Applicant has medical contraindication to the vaccine
Applicant does not have access to an approved COVID-19 vaccine, i.e. no COVID-19 vaccine is routinely available in the state where the civil surgeon practices
Individual waiver –
Applicant refuses to take the vaccine on religious or moral conviction grounds
USCIS – not the civil surgeon or CDC – decides whether to grant the individual waiver on religious or moral conviction grounds
6) If an applicant refuses one or more doses of a COVID-19 vaccine series and is not eligible for a waiver of this requirement, the civil surgeon will document the vaccine requirements as incomplete. On health-related grounds, the applicant will be deemed inadmissible for a Class A condition and will be found ineligible for permanent residence.
7) As of August 12, 2021, USCIS temporarily extended the validity period for Form I-693 from two years to now four years. For decisions on Form I-485 green card applications issued on or before September 30, 2021, USCIS may accept an otherwise valid Form I-693 if:
The civil surgeon’s signature is dated no more than 60 days before the applicant filed the I-485; and
No more than four years have passed since the date of the civil surgeon’s signature
8) If you have weighed the risks and benefits, and do not want to take the COVID-19 vaccine for U.S. immigration purposes, you will have to get a completed medical exam report before October 1st. Then you must file your I-485 application within 60 days.
9) Starting October 1, all green card applicants will have to take the vaccine unless they qualify for a waiver or exemption.
This is general information only and is not legal advice. To request a consultation, you may submit an email to info@dyanwilliamslaw.com or online message through our website’s contact form.
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.
Posted onMarch 24, 2021|Comments Off on 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 ofThe 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.
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.
