On Wednesday evening, U.S. Citizenship and Immigration Services published new versions of several forms just days ahead of the Oct. 15 effective date of the public charge rule. Unless implementation of the rule is delayed by litigation, the current versions of the forms will be discontinued on that date and petitioners will be required to use the new versions.

Key points:

  • Starting Oct. 15, petitioners must use the new versions of Forms I-129, I-485, I-539, I-539A and I-864. USCIS will only accept old versions that are postmarked Oct. 14 or earlier.
  • The new versions contain additional questions regarding use of government benefits that could render an individual inadmissible under the public charge rule.
  • USCIS will require a new Form I-944, Declaration of Self-Sufficiency, for most adjustment of status applicants.
  • Nearly a dozen lawsuits remain pending that could delay implementation of the rule. Additionally, the American Immigration Lawyers Association (AILA) filed a lawsuit Monday seeking to block USCIS from discontinuing the current forms without providing a grace period to transition to new versions of the forms.

Background: The Department of Homeland Security finalized the public charge regulation in August. The rule expands the types of benefits that may be considered to include not only cash benefits but certain non-cash benefits such as most forms of Medicaid, food stamps and Section 8 housing assistance. The rule defines “public charge” as an individual who receives one or more of the public benefits for an aggregate of more than 12 months in a 36-month period, and establishes a “totality of the circumstances” test for whether an applicant for adjustment of status is likely to become a public charge in the future. Individuals applying to extend or change nonimmigrant status must demonstrate that they have not received public benefits since obtaining their nonimmigrant status, but do not need to demonstrate that they will not become a public charge in the future.

BAL Analysis: Employers should anticipate lengthier case preparation and processing times for adjustment of status (green card) applications and petitions for nonimmigrant workers to change and extend their status, as the public charge rule requires additional documentation. BAL is following the lawsuits and will report on developments that could affect implementation of the regulation.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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