Federal Judges Enjoin the Dept. of Homeland Security from Implementing New Public Charge Rule and Associated New Versions of Forms

We previously reported on USCIS's publication and prospective implementation of a new “Public Charge” rule. This rule seeks to expand both the nature of the information collected by immigration agencies as well as immigration officers' ability to deny immigration benefits, including visas, to persons that they determine represent a likelihood of becoming a public charge on the basis of their income and past instances of utilizing specific governmental programs.

In connection with the implementation of this Public Charge rule, which was supposed to take effect on October 15, 2019, USCIS notified the public that it would no longer accept current versions of some of the most heavily used immigration forms, as the agency would be releasing new versions of the forms designed to capture the desired data to support the implementation of the Public Charge rule. These forms include, but are not limited to, I-129, I-539 and I-485. Much fanfare was made in the weeks, and then days, leading up to the designated October 15 cut-off date as USCIS had still not released the new versions of the forms but yet insisted that it would no longer accept the then-current versions. This virtual impasse created significant confusion and impediments to planning in the immigration and business communities as the proper preparation of required USCIS forms and their supporting documentation can take considerable time to complete. In a world driven by hard deadlines and expirations, USCIS was creating a virtual purgatory for certain individuals who needed to file but had nothing to file with.

Finally, in the evening of October 9, USCIS released the new version of the forms – just three business days before it would stop accepting current versions, with that Monday October 14 being a federal holiday on top of that. This effectively left only two business days to prepare and submit forms for effected cases – which, for the Form I-485 (Adjustment of Status), for instance, consisted of an 18-page form with 15 pages of instructions. As we discussed in our prior post, these forms included dramatic and wide-sweeping changes, and requested highly sensitive information touching on household income, assets, resources, use of public programs and medical situations. Indeed, it not only put employers in a tough spot concerning their ability to timely file immigration petitions/applications, it also put them in a precarious position with respect to their ability to even ask their employees or potential employees about such sensitive data.

On October 11, 2019, three federal judges (S.D.N.Y., N.D. Cal., E.D. Wash.) enjoined the Dept. of Homeland Security from implementing and enforcing the Public Charge rule. This includes stopping the agency from implementing the new forms. As of the date of this writing, USCIS has reverted back to the prior versions of all effected forms on its websites and states that until final decisions have been issued in these cases or the injunction is lifted, USCIS will accept the version stated on the relevant Forms pages.

This latest development in the never-ending string of changes to the immigration landscape further underscores, more than ever, that you must engage and work with savvy immigration counsel from the outset of your matter.