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Starting on February 24, 2020, a regulation will take effect that broadens the United States Citizenship and Immigration Services’ (USCIS) authority to determine if a foreign national will become a public charge of the U.S. and expands the inquiry to nonimmigrants seeking an extension of status or change of status. Following a Supreme Court ruling that permits the Department of Homeland Security (DHS) to implement this regulation while lawsuits in several federal courts challenging the regulation continue, DHS will be able to implement the regulation in all states except for Illinois.

Under current guidance regarding U.S. immigration law, a foreign national seeking to adjust status for permanent residence is generally only deemed a public charge if he/she is determined likely to become primarily dependent on the U.S. government through receipt of cash assistance. However, the new regulation expands the definition to include foreign nationals who use a much broader set of public benefits (including some non-cash benefits) for more than 12 months in a 36-month period. The regulation also broadens the public charge inquiry to certain nonimmigrants in the U.S., an entirely new inquiry.

As such, starting on February 24, 2020, applicants seeking to adjust status for permanent residency will be reviewed under a “totality of circumstances” test that will factor each applicant’s age, household size, income, financial liabilities, receipt of certain public benefits, health, and education and skills, at a minimum. Adjustment applicants will be required to submit a report of their credit history and credit score, as well as detailed information about health insurance coverage, among others. USCIS will require applicants to complete a new Form I-944, Declaration of Self-Sufficiency. Refugees, asylees, and other humanitarian or special immigrant categories are exempt from this new regulation.

The rule will also require nonimmigrants seeking an extension of stay or change of status to disclose whether they have received or are certified to receive certain public benefits on or after February 24, 2020. If a foreign national received the benefits for more than 12 months within a 36-month period since obtaining their current nonimmigrant status, it may negatively affect their application. However, nonimmigrant applicants are not subject to the “totality of circumstances” test and are not required to submit Form I-944. Likewise, certain nonimmigrant categories, such as humanitarian and victim classifications, are exempt.

The Department of State has also finalized its own public charge regulation for immigrant and nonimmigrant visa applications, but to date have not yet implemented it.

USCIS is expected to issue new and updated adjustment of status and nonimmigrant petition forms that incorporate the new regulation requirements. Until February 24, 2020, the current editions of Forms I-129, I-485, I-539, I-864, and I-864A will be accepted.