On March 9, 2021 the U.S. Court of Appeals for the Seventh Circuit lifted its stay of the finding by the U.S. District Court for the Northern District of Illinois in the case Cook County, Illinois v. Wolf that the 2019 Public Charge Final Rule implemented by the Trump administration was procedurally and substantively invalid under the Administrative Procedure Act and ordering that it be vacated nationwide. Since March 9, 2021, USCIS has reverted to using the 1999 Interim Field Guidance that was implemented prior to February 24, 2020.
If you are currently preparing a green card application with us— On March 16, 2021, after ascertaining that no further changes to public charge requirements were expected immediately, Goss Associates stopped preparing Form I-944s for green card applicants. Persons whose USCIS forms are prepared after that date will automatically receive a refund or cancellation of the legal fee associated with the public charge rule if it was initially included in your invoice. Please contact your legal team after May 15, 2021, if you believe you have not received a refund or cancellation and are eligible for it.
If we have already filed your case with USCIS (regardless of whether it is for a green card)— Per USCIS, we expect that clients who previously filed for an immigration benefit during the implementation of the 2019 public charge rule (between February 24, 2020 and March 9, 2021) and have not yet received a decision will have their petitions adjudicated by USCIS under the 1999 Interim Field Guidance. USCIS has stated they will not consider information provided solely as a result of the requirements implemented during this period including on Form I-944, Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).
If neither of these categories apply to you— The USCIS form editions for your case may change in the next few weeks. Your legal team will contact you if this is a concern for your timeline to file.
The broader impact “Public charge” refers to the requirement that immigrants demonstrate they are not likely to take public benefits while in the United States. The return to the 1999 guidance on public charge will greatly reduce the cost and burden of applying for United States immigration benefits. This is particularly the case for green card applicants as under the 2019 guidance nearly every person applying for a green card within the United States was required to submit the invasive and lengthy Form I-944, Declaration of Self-Sufficiency. According to USCIS’ own time estimates released under the Paperwork Reduction Act, it would take a family of four foreign nationals applying for green cards at the same time 18 hours to complete these forms in addition to the over 52-hours they estimate it would take such a family to complete their green card applications (I-485) and the I-131 and I-765 forms that are usually concurrently submitted.
To understand how burdensome this form was it is worth remembering the large amount of supporting documentation requested on the I-944, which included:
Transcripts of income tax returns directly requested from the IRS;
Records of all checking, savings and other financial assets held by an
Records of all debts including mortgages, car loans, credit card debt, etc.;
Separate credit report and/or credit score records or evidence that no
such records exist and proof that an applicant is paying their monthly bills;
Evidence of health insurance including a detailed explanation of the
applicant’s insurance plan;
Information about the receipt of certain public benefits or USCIS fee
Evidence of educational history from high school onward;
Evidence of occupational certifications/licenses/skills; and
Evidence about proficiency in English and any other language spoken by
the applicant including their native language.
Throughout the implementation of the public charge rule Goss Associates took the position that only certain documents mentioned on the above list needed to be submitted in order to demonstrate that a green card applicant was not likely to become a public charge. We were able to pass on savings in legal fees by marking these documents as “available on request” to our clients rather than inputting the data requested by USCIS and conducting associated legal analyses. We believe the circuit court decision in Cook County v. Illinois is a good step concurrent to the Biden administration’s efforts to reform America’s immigration system as stated in the February 2, 2021 “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”
Due to the expiration of Presidential proclamation 10052, the State Department has announced they will resume regular processing of visa services for H-1B, H-2B, L, and Certain J Non-immigrants affected by the suspension of visa issuance under this order. However, health bans related to COVID-19 remain in place and will still affect foreign nationals who have traveled within the Schengen Area, United Kingdom, Republic of Ireland, South Africa, Brazil, Iran, and/or People’s Republic of China excluding the Special Administrative Regions of Hong Kong and Macau during the 14 days prior to their entry to the United States. The State Department is continuing its resumption of routine consular services on a post-by-post basis, with priority going to U.S. citizens and then certain visa applicants as outlined in the Phased Resumption of Routine Visa Services guidance. Emergency and mission-critical requests for visas will continue to be entertained if an embassy or consulate is able to process it. If a visa applicant was refused a visa due to Presidential Proclamation 10052 they may now reapply with a new application and fee.
U.S. Citizenship and Immigration Services (USCIS) has completed FY 2022 cap selection for this year. We anticipate a second-round selection this summer. USCIS has not released any data with regard to the selection process.
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