USCIS to Begin Implementation of the DHS Public Charge Rule Following Court Decision

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By: Angelita Chavez-Halaka, Gladys Gervacio, and Malou Mararang

The United States Citizenship and Immigration Services (USCIS) announced on September 22, 2020 that it will apply the Department of Homeland Security (DHS) public charge rule to all applications and petitions postmarked on or after February 24, 2020 when the rule originally went into effect. This announcement comes after the Second Circuit Court of Appeals’ September 11, 2020 lifting of a nationwide injunction that blocked the implementation of the DHS public charge rule. The public charge rule impacts nonimmigrants who have used or are likely to use certain public benefits.

DHS Public Charge Rule Evidence Requirements

Foreign nationals who filed Form I-485, Application to Register Permanent Residence or Adjust Status on or after February 24, 2020 may be required to file Form I-944, Declaration of Self-Sufficiency to establish whether they are subject to the public charge rule.

USCIS will continue to accept Forms I-485 that do not include Form I-944 and related evidence until October 12, 2020, but they may receive a  request for missing information. Starting October 13, 2020, USCIS will reject Forms I-485 that do not include Form I-944 and required evidence.

What is the DHS Public Charge Rule?

The DHS public charge rule limits the ability of nonimmigrants to adjust, change, or extend their status, or apply for visas outside of the US, if they have used certain public benefits for 12 months out of the previous 36 months or if they are likely to use certain public benefits in the future. The rule first went into effect on February 24, 2020 and has since faced a variety of legal challenges.

The Future of the Public Charge Rule

USCIS has not yet released guidance on other nonimmigrant categories. However, additional nonimmigrant petitions and applications will also require public benefits information, including:

  • Form I-129, Petition for a Nonimmigrant Worker
  • Form I-539, Application to Extend/Change Nonimmigrant Status
  • Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status

The Department of State (DOS) is still barred from enforcing their public charge rule in consular cases due to a previous injunction from the lawsuit Make the Road New York, et a. v. DOS. At this time, visa applicants are not required to complete or present Form DS-5540, Public Charge Questionnaire, with their visa applications.


Our attorneys are closely monitoring the implementation and enforcement of the DHS and DOS public charge rules and will provide updates as soon as they are available. Please contact your trusted Chugh, LLP attorney for insight into how the public charge rule impacts your case and related immigration questions.


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