The USCIS public charge rule is one of the most confusing and highly litigated rules in the history of the agency. Immigration attorneys will remember that the rule was initially supposed to go into effect in October of 2019, only to be stopped by federal courts. It then entered into effect in February of 2020, but was again stopped by courts in July of 2020. Following another decision by a court of appeals, the rule is back, and effective immediately.
What Happened to the Public Charge Rule and Form I-944?
On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) enjoined DHS from enforcing, applying, implementing, or treating as effective the public charge rule during a declared national health emergency. In response to that decision, USCIS removed the form I-944 from its website and explicitly stated that it was not required when submitting I-485 applications for adjustment of status. This was good news for applicants, is it meant that they did not need to submit hundreds of pages of extra documentation for their cases.
On September 11, 2020, the U.S. Court of Appeals for the Second Circuit granted a full stay of the July 29, 2020, injunction pending the government’s appeal. For a while after this decision, USCIS did not formally respond. However, the USCIS website was quietly updated recently to show that the rule is not only back in effect, but also it is being applied retroactively to all the applications filed during the time the rule was stopped.
This decision is bad news for applicants because it means that any cases filed without the I-944 during the period of time it was not required will likely have to review and submit the form and required documents. Not only is this unfair to applicants who submitted all required documents, it could even effect eligibility in some cases where the family member’s income was near the threshold. No doubt this will generate even more litigation.
What is the Status of the Form I-944 and Public Charge Rule Now?
USCIS is now reimplementing its public charge regulations, effective immediately, and effective retroactively to previously submitted cases. The USCIS website is not transparent at this time but it has been partially updated to explain the new requirements. The most important points are the following:
- The public charge rule will apply to ALL cases filed after February 24, 2020
- Any applications for adjustment of status, form I-485, filed after October 13, 2020, must include the form I-944 and all required evidence
- Filing a form I-485 before October 13, 2020, does not mean that USCIS will not request the form I-944 at a later date
- Applications approved during the period of time the stay of the public charge rule was in effect will not be modified and should be final