On March 9, 2021, Alejandro N. Mayorkas, the Secretary of the Department of Homeland Security (DHS), announced that the US government consistent with Executive Order 14012 will no longer defend the 2019 Public Charge Final Rule since “doing so is neither in the public interest nor an efficient use of limited government resources.” In a press release, Secretary Mayorkas said: “The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them." He added: “Consistent with the President’s vision, we will continue to implement reforms that improve our legal immigration system.”
In the announcement, DHS said it will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Public Charge Final Rule. The Department of Justice dismissed its pending appeals in the Supreme Court and Seventh Circuit, and is also doing so in the Fourth Circuit. The DHS press release said: “Following the Seventh Circuit dismissal, the final judgment from the Northern District of Illinois, which vacated the 2019 public charge rule, went into effect. As a result, the 1999 interim field guidance on the public charge inadmissibility provision (i.e., the policy that was in place before the 2019 public charge rule) is now in effect.”
Consequently, US Citizenship & Immigration Services (USCIS) confirmed the agency is no longer applying the August 2019 Public Charge Final Rule and they have removed Form I-944 from its website. Effective for cases received or adjudicated by USCIS on or after March 9, 2021, USCIS will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance and notes they will no longer consider be “an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.”
USCIS additionally explains:
Filings going forward - Applicants and petitioners should not submit information or evidence related solely to the Public Charge Final Rule. I-485 applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944, and applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide evidence related to the receipt of public benefits;
Cases already submitted – For cases that USCIS adjudicates on or after March 9, 2021, the agency will not consider any information that relates solely to the Public Charge Final Rule;
RFE’s and NOID’s – Applicants or petitioners who have received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including Form I-944, and if the response is due on or after March 9, 2021, do not need to provide that information. Applicants and petitioners must respond to other aspects of the RFE or NOID.
USCIS will issue additional guidance about the use of affected forms. In the meantime, 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 filled in or left blank.
Many immigration advocates and practitioners, not to mention applicants themselves, are sure to welcome the government’s decision to not defend the much criticized 2019 Public Charge Final Rule.
UPDATE MARCH 25, 2021: USCIS confirmed the agency has stopped applying the 2019 Public Charge Final Rule to all pending applications and petitions as of March 9, 2021. USCIS has additionally removed content related to the vacated 2019 Public Charge Final Rule from the affected USCIS forms and has posted new versions, with the edition date of 3/10/2021, of the affected forms. Petitioners and applicants should use the 3/10/21 edition of these below forms for future applications:
Starting April 19, 2021, USCIS will only accept the 03/10/21 edition. Until then, USCIS notes that petitioners/applicants can use the previous edition still available online.