USCIS Stops Applying Trump’s 2019 Public Charge Rule

It’s time to celebrate! USCIS has stopped applying the Trump administration’s 2019 public charge rule, also known as the “wealth test.”

As background information, the United States has long refused to admit foreign nationals who are likely to become a “public charge.” According to 1999 Interim Field Guidance, a public charge was defined as a person likely to become primarily dependent on the government for income support (e.g., welfare or long-term care). Trump’s 2019 rule redefined public charge to refer to as a person who has received or is likely to receive any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Each benefit used counts toward the 12-month calculation. For instance, if an applicant receives two different benefits in one month, that counts as two-months’ use of benefits. Benefits that counted under the Trump rule (but are irrelevant under the 1999 Interim Field Guidance) include Medicaid, Supplemental Nutrition Assistance Program (Food Stamps), Section 8 housing assistance and federally subsidized housing. As such, the Trump rule essentially posed a wealth test on immigration.

From my perspective as an immigration lawyer, the Trump rule required a mountain of irrelevant paperwork from intending immigrants, imposing hundreds of dollars in costs. For example, the required Form I-944, Declaration of Self-Sufficiency, is 18 pages long. And the long list of required supporting evidence included, for example, foreign educational degrees and transcripts, which had to be translated, and expert’s written opinion evaluation what the equivalent U.S. degree is.

President Biden issued an executive order entitled, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which directed DHS to review the Trump rule.  DHS then decided to stop defending the Trump rule against challenges in court, stating that the rule “is neither in the public interest nor an efficient use of limited government resources.” DHS Secretary Alejandro Mayorkas stated that “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.”

As a result, a Nov. 20, 2020, decision from the U.S. District Court for the Northern District of Illinois judgment vacating the rule on its merits went into effect. Consistent with that, USCIS has now removed the Trump rule from the Code of Federal Regulations.

The new policy takes effect immediately, meaning that the 1999 Interim Field Guidance is back in effect. The Form I-944 need not be filed.

USCIS will also need to update other forms:

  • Form I-485, Application to Adjust Status, will need to be updated to remove questions related to the Trump rule.
  • Forms I-864 and I-864EZ, Affidavits of Support, will need to be updated.
  • Form I-864W, Request for Exemption form Intending Immigrant’s Affidavit of Support, will be reinstated.

Medical treatment or preventive services for COVID-19, including vaccines, will not be considered for public charge purposes.

The Form I-864, Affidavit of Support, requirement remains in place. This requires that a U.S. citizen or permanent resident sponsoring a family member to immigrate must sign a contract with the federal government agreeing to support their family member and to reimburse the government for public assistance that may in the future be provided to their family member.

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