Maintaining Your Permanent Residence Throughout Pandemic Travel Restrictions

Maintaining Your Permanent Residence Throughout Pandemic Travel Restrictions

The COVID-19 pandemic has resulted in changing travel restrictions across the globe. Permanent residents considering travel abroad should consider delaying travel except in the most urgent circumstances. If you do have to travel, or have found yourself stuck abroad after traveling, you should keep the below considerations in mind as you plan your return to the U.S.

You Must Maintain a Permanent U.S. Home or Risk Losing Your Status

 

Absence from the United States of less than 180 days = no presumption of abandonment of permanent residence. Absence from the United States of more than 180 days, but less than one year = there is a rebuttable presumption that you may have abandoned permanent residence (meaning the government presumes you have abandoned your residence and the burden is on you to prove otherwise). Absence from the United States of more than one year = automatic loss of LPR status unless appropriate steps were taken prior to departure to preserve status.

 

Preserve LPR Status by Applying for a Reentry Permit

If you know or believe you will be outside the United States for more than a year, you should apply for a reentry permit with USCIS BEFORE you leave. Your immigration attorney can help you with this. You will need to be physically present in the United States when the application is filed. You will also need to be in the United States for biometrics processing, which is usually scheduled anywhere from several weeks to several months after USCIS receives the application, so plan ahead as much as possible.

What if you did not obtain a reentry permit before leaving and remain outside the United States for more than one year?

USCIS has not announced any policy exception regarding this issue. LPRs who have stayed outside of the United States for more than one year, or longer than the validity of their reentry permits, are generally considered to have abandoned their LPR status.

If your situation falls within either of these scenarios and you wish to return to the United States, you will need to obtain an SB-1 Returning Resident visa before traveling to the United States from the U.S. embassy or consulate in the country where you are residing.

Challa Law Group has successfully obtained multiple SB-1 Returning Resident visas for our clients who were delayed abroad due to COVID-19. Please contact us at info@challalaw.com to see if you may be eligible to apply for an SB-1 Returning Resident visa after an absence of over one year from the U.S.

If You Are Unable to Return to the United States Within One Year Due to Pandemic-Related Travel Restrictions, You Should Be Prepared to Provide Evidence of the Following:

  • Timely attempts to travel back to the United States, such as canceled airline travel documents and emails or other correspondence documenting your intent to return to the United States and your inability to travel.
    • If you do not have any of these, be prepared to provide evidence establishing why you could not travel (such as evidence of local lockdowns or government-mandated travel restrictions)
  • Continued ties to the United States, such as continued payment of any mortgages or rent as well as any associated housing costs. Also, be prepared to document your temporary housing arrangement (i.e. that you own no property) in the foreign country.
  • Evidence that you maintained an employment relationship in the United States, such as an employer letter showing you had a leave of absence or you will be rehired upon your return to the United States. Also, provide evidence that you did not work in the foreign country, except possibly for your U.S. employer.
  • If applicable, evidence of illness, either of yourself or a family member, that kept you from traveling.
  • If applicable, evidence that other family members stayed behind in the United States while you were abroad and unable to return.
  • Financial evidence of continued U.S. ties, such as U.S. tax returns, banking records, etc

Seeking U.S. Citizenship After Lengthy Travel

To apply for naturalization, an LPR must have been physically present in the United States for at least half of the required period of continuous residence (i.e., 30 months or 18 months depending on the basis for applying), and must have lived for three (3) months in the state or USCIS district of residence.

The effect of absences of over one year due to the pandemic has not yet been determined by USCIS, but at this time, your naturalization may need to be put on hold if you have a lengthy absence that could affect eligibility. Consult your immigration attorney for possible USCIS policy exceptions due to the large number of LPRs who were unable to return to the United States due to the COVID-19 pandemic.

Other Travel Restrictions to Remember

Immigrant and Nonimmigrant Visa Bans Lifted

If you are awaiting entry of a family member, President Biden issued an executive order on February 24, 2021, lifting the immigrant visa ban (Presidential Proclamation 10014), thus allowing family members of U.S. citizens and green card holders to obtain immigrant visas and join their families in the United States. Moreover, on March 31, 2021, the nonimmigrant visa ban (Presidential Proclamation 10052) restricting the entry of temporary workers into the United States was also lifted.

Travel to Other Countries

If you are contemplating other international travel, you should confirm admission requirements and procedures as most countries have implemented travel restrictions for entry, in the form of either: a) Mandatory quarantines; b) Enhanced health screening upon arrival or return; c) Prohibitions on travel for all non-citizens of those countries; and d) Temporary closure of consulates.

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USCIS to Allow F-1 Students to File I-765 Online to Request OPT

USCIS announced that it would now accept the online version of Form I-765 from certain F-1 students applying for pre or post-completion OPT or STEM OPT extensions. This may provide some relief to students who have been subject to delays at USCIS lockboxes. Previously, USCIS announced flexibilities for F-1 students who had been affected by lockbox delays.

USCIS Announcement

WASHINGTON—U.S. Citizenship and Immigration Services today announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

OPT is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.

“USCIS remains committed to maximizing our online filing capabilities,” said Senior Official Performing the Duties of USCIS Director Tracy Renaud. “The I-765 online filing option allows eligible students to file forms online in a more user-friendly fashion and increases efficiencies for adjudicators.”

The option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT. If an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.

Online filing allows applicants to submit forms electronically, check the status of their case anytime from anywhere, and receive notices from USCIS online instead of waiting for them in the mail. USCIS is using innovation and technology to meet the needs of applicants, petitioners, and employees. Regardless of the paper or electronic format of an application or petition, USCIS is committed to ensuring a secure and efficient process for all.

Individuals can file 11 USCIS forms online, which can all be found on the Forms Available to File Online page. To file these forms online, individuals must first create a USCIS online account at https://myaccount.uscis.gov/. This free account allows them to:

  • Submit their forms;
  • Pay their fees;
  • Track the status of their case;
  • Communicate with USCIS through a secure inbox; and
  • Respond to Requests for Evidence.

USCIS continues to accept the latest paper version of these forms by mail.

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USCIS Eliminates Blank Space Policy

Class action litigation in late 2020 resulted in USCIS stating it would stop implementing the rejection policy for asylum applications and U visa petitions starting on December 28, 2020. USCIS confirmed on April 1, 2021, that it would no longer reject I-589, I-612, or I-918 for blank spaces. The rejections were implemented without notice, leading to capricious rejections of humanitarian benefit requests. Many individuals reported filings that were rejected for questions not relevant to their case. AILA provided the example of an individual leaving blank the question asking for an individual’s name in a native alphabet when the native alphabet was the same as English.

USCIS Update

USCIS confirmed that for all forms it has reverted to the form rejection criteria it applied before October 2019 regarding blank responses.

In 2019, USCIS changed the form rejection criteria for:

USCIS has reverted back to the rejection criteria that existed for these forms before October 2019. USCIS will no longer reject Form I-589, Form I-612 or Form I-918 if an applicant leaves a blank space.

However, applicants should be aware that we may reject these forms, or it might create delays in their case, if the applicant:

  • Leaves required spaces blank;
  • Fails to respond to questions related to filing requirements; or
  • Omits any required initial evidence.

For more information about filing requirements and required initial evidence, consult the filing instructions for each form.

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USCIS Update: H-1B Cap Registration Selection Completed

USCIS announced that the cap selection process is complete and all petitioners have been notified via the online portal. The complete update from USCIS is below. Please note that currently, the website reflects that Premium Processing is available, which guarantees adjudication or action within 15 days. However, availability could change at any time. In past years, USCIS has temporarily  Connect with us on your preferred platform to be notified of the latest updates.

Was your H-1B registration selected? Contact Challa Law Group to prepare a comprehensive H-1B filing ahead of the June 30, 2021 filing deadline. Watch our YouTube recording of our recent webinar focusing on compliance tips and strategies for H-1B petitions and then email us to initiate your case.

USCIS: FY 2022 H-1B Cap Season Updates

H-1B Initial Electronic Registration Selection Process Completed

USCIS has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap) including the advanced degree exemption (master’s cap). We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):

  • Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
  • Selected: Selected to file an H-1B cap petition.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

For more information, visit the H-1B Electronic Registration Process page.

FY 2022 H-1B Cap Petitions May Be Filed Starting April 1

H-1B cap-subject petitions for FY 2022, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2021, if based on a valid, selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.

When completing Form I-129, Petition for a Nonimmigrant Worker, please ensure that the below question is included as Question 5 in Supplement H on page 13. If you have already filled out Form I-129 and this question was not included, you may replace Supplement H in your petition by printing out and completing pages 13 and 14 from the current version of Form I-129 on uscis.gov and including them with your petition. Starting July 1, 2021, we will only accept the 03/10/21 edition of Form I-129. Until then, you can also use the 09/30/20 and 01/27/20 editions.

An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Online filing is not available for H-1B petitions, so petitioners filing H-1B petitions must do so by paper. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the registration process does not relieve the petitioner from submitting evidence or otherwise establishing eligibility, as registration only pertains to eligibility to file the H-1B cap-subject petition.

For more information, visit the H-1B Cap Season page.

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When will the DOL wage rule take effect?

When will employers be required to pay increased prevailing wage levels?

The DOL wage rule that would increase prevailing wage levels for certain employment-based immigrant visas and H-1B and E-3 nonimmigrant visas has been delayed until May 14, 2021. On March 22, 2021, the Department of Labor published a proposed rule that would further delay the rule by 18 months until November 14, 2022.

Background

Employers are required to pay H-1B workers the greater of “the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question,” or the “prevailing wage level for the occupational classification in the area of employment. The wage levels are to ensure that H-1B workers are paid at the same levels as U.S. workers to protect against the replacement of U.S. workers by lower-cost foreign labor. The prevailing wage levels used in the H-1B (and H-1B1 and E-3) specialty occupation programs are the same used in PERM programs.

DOL originally published a version of the rule in October that was immediately effective. The Trump administration’s DOL argued that the new rules were necessary to combat the economic effects of the COVID-19 pandemic, which caused increased unemployment in some industries. The rule was quickly met with court challenges, with the U.S. District Court for the Northern District of California ultimately finding that the rule was in violation of the Administrative Procedures Act requiring public notice and comment periods for proposed rule changes.

In January, a new final rule was published with an effective date of March 14, 2021, but President Biden signed a Regulatory Freeze Pending Review Memorandum on January 20, 2021, postponing any “midnight” rules implemented in the final days of the previous administration. As a result, the DOL proposed a 60-day delay. On March 12, 2021, DOL published a final rule that set the effective date at May 14, 2021, but noted that a comprehensive review was being undertaken and a further delay was being considered. The final rule also removed the term “aliens” in the title, to read “immigrants and non-immigrants” instead.

On March 22, 2021, DOL published a proposed rule that would delay the effective date by eighteen months, along with all corresponding transition dates. The comment period closes on April 21, 2021.

Implementation TImeline

On March 12, 2021, DOL issued a final rule delaying the effective date of the rule on the computation of prevailing wage levels until May 14, 2021. The proposed rule issued on March 22, would further delay the timeline for implementation, including all of the transitional stages proposed by the rule. If finalized, the rule would delay the effective date until November 14, 2022, along with delays for all of the transition dates until January 1, 2024, January 1, 2024, January 1, 2025, and January 1, 2026.

If the proposed rule is finalized:

  • The current prevailing wage determination percentiles will remain in effect until December 31, 2022
  • Starting January 1, 2023, the prevailing wage will be 90% of the new wage determination methodology percentiles for each level
  • Starting January 1, 2024, the prevailing wage will be 100% of the new wage determination methodology percentiles for each wage level

However, that does not apply if the individual is a beneficiary of an approved I-140 (filed as of October 8, 2020), or otherwise eligible to extend their H-1B status beyond the typical six-year limit, but because of statutory limits, cannot be granted immigrant status. If the proposed rule is finalized, these transition stages would apply to the H-1B employees on track for an employment-based green card with an approved I-140:

  • The current prevailing wage determination percentiles for each wage level will remain in effect until December 31, 2022
  • From January 1, 2023, through December 31, 2023, the prevailing wage would be 85% of the new wage determination methodology percentiles for each wage level
  • From January 1, 2024, through December 31, 2024, the prevailing wage would be 90% of the new wage determination methodology percentiles for each wage level
  • From January 1, 2025, through December 31, 2025, July 1, 2023, the prevailing wage would be 95% of the new wage determination methodology percentiles for each wage level
  • Starting January 1, 2026, the prevailing wage would be 100% of the new wage determination methodology percentiles for each wage level

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Department of State Predictions: Visa Bulletin Through October 2021

For more on this topic, watch our YouTube video: Department of State Visa Bulletin Predictions (first aired on March 24, 2021).

Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, has now moved his monthly check-ins to a more accessible format: YouTube Live! This month he shared a number of predictions on employment-based and family-based green card numbers, as well as how the Visa Bulletin will shift over the coming months. Below we have summarized some of his predictions.

  • EB-1 for China and India will remain current throughout the remainder of the year, barring any extraordinary spikes in demand.
  • Unused 1st preference numbers will be reallocated to 2nd preference.
  • EB-3 is moving rapidly for China and India because there are fewer applicants in EB-3 who are ready to be processed immediately so that date is advanced more quickly to increase demand and increase EB-3 applications ready to be fully adjudicated.
  • There was a “dramatic movement” in India EB-2 in April, predicting rapid movement in May as well.
  • Last year there were approximately 122k unused family numbers. Employment for a given year is a minimum of 145k. DOS added 122k to 145k to get the 262k limit for this year.
  • DOS predicts that there will be at least that many unused numbers this year, maybe more which is why they estimate a 275k limit for next year.
  • EB-2 and EB-3 horizontal and vertical spillover is outlined as follows. If employment 2nd preference category limit is 70,000. The Chinese and Indian limits might be (for example) 5,000. Once those countries are subtracted from the 70,000 limit, there would be 60,000 remaining. DOS then estimates how many of those will be used. If DOS estimates that 40,000 of those numbers will be used, they can reallocate them in strict priority date order to China and India. Those 20,000 extra numbers would go to the 20,000 earliest applicants. Oppenheim predicts that most of the additional allocation would be allotted to Indian applicants who would get to use those numbers first. It would be on a priority date order, without regard to the foreign state.

Question: How does the Visa Bulletin work? 

Charlie’s Response: The process is similar to creating your household budget. You need to allocate your income to your various expenses. In assessing final action dates, I assess the annual limits for each individual preference category, as well as foreign states, and budget an appropriate number of visas each month. How many remain? What is the annual limit? How many have been used? How many may be needed for emergency cases? What are the future expectations for our needs? How many unused numbers may come back from overseas posts? There are a lot of numbers, and there are a lot of other variables at play.

Question: How many employment visas may be unutilized for FY2021 based on COVID-based delays?

Charlie’s Response: It is not possible to comment on that at this time, but I will say last year, when similar constraints were underway, over 95% of the numbers available were used. Hopefully, this pattern will repeat this year and visa numbers allocated will be maximized.

Question: What does it mean to be pre-adjudicated with respect to pending EB cases? How many such cases exist? Why can’t they be immediately approved?  

Charlie’s Response: If the USCIS utilizes “dates for filing” dates on the visa bulletin. The applicants can file their AOS with the USCIS. The USCIS will pre-adjudicate the AOS application, but the USCIS will not finalize adjudicating the application until the final action date is advanced beyond the priority date.

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Affidavit of Support Rule Withdrawn by DHS

Today DHS announced that it will withdraw the proposed rule, Affidavit of Support on Behalf of Immigrants. The proposed rule was published by the Trump Administration in October 2020 along with a series of other regulations that would increase hurdles to legal immigration. The Affidavit of Support serves as an agreement by sponsors to provide financial support to the sponsored immigrant(s) and acknowledge and accept liability for any costs of public benefits an immigrant receives during the effective period. The new rule would have put increased burdens on U.S. citizen and permanent resident sponsors to demonstrate how they will maintain their income, requiring Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

DHS Press Release

On March 19, 2021, the Department of Homeland Security (DHS) announced the withdrawal of a proposed rule, Affidavit of Support on Behalf of Immigrants.

By taking these steps, DHS aims to reduce barriers and alleviate burdens on American families who wish to sponsor individuals immigrating to the U.S. within the legal immigration system.

Summary
On Oct. 2, 2020, DHS published a notice of proposed rulemaking (NPRM), Affidavit of Support on Behalf of Immigrants, in the Federal Register. This proposed rule followed a presidential memorandum issued by former President Trump on May 23, 2019, Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. The NPRM proposed to revise DHS regulations governing affidavit of support requirements under section 213A of the Immigration and Nationality Act.

On Feb. 2, 2021, President Biden issued Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, revoking the 2019 presidential memorandum.

Consistent with the Feb. 2, 2021, executive order, DHS has withdrawn the Affidavit of Support NPRM.

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USCIS Announces Possible Reconsideration of H-1B Denials Under Rescinded Policy Memos

BREAKING NEWS: USCIS Announces Possible Reconsideration of H-1B Denials Under Rescinded Policy Memos

U.S. Citizenship and Immigration Services today announced it may reopen and/or reconsider adverse decisions on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos. USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.

On June 17, 2020, USCIS issued Policy Memorandum 602-0114, which officially rescinded two prior policy memoranda:

  • HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and
  • PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.

On Feb. 3, 2021, USCIS issued Policy Memorandum 602-0142.1, which officially rescinded:

  • PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142.1 state that they apply to “any pending or new [H-1B Petitions], including motions on and appeals of revocations and denials of H-1B classification.”

A petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. In addition, USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.

Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application.

Additionally, USCIS recently extended through March 31, 2021, COVID-19 related accommodations that affect the deadlines for filing motions and appeals.

USCIS will generally process motions based on filing order, and consistent with current policy guidance.

USCIS reminds petitioners that even when a motion to reopen or reconsider is filed, accepted, and processed by USCIS, petitions will remain subject to all remaining and relevant eligibility requirements during any reopening or reconsideration.

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Interview Waiver Policy Expanded by Department of State

Consular Officials Can Waive Interviews for Visa Expirations Within 48 Months

Individuals may be able to renew their visas without an interview if they are reapplying for the same visa class that they previously held. Typically, interviews can be waived for individuals who are renewing unexpired visas or visas that expired less than one year ago. A recent Department of State announcement expanded that time frame to visas that have expired within a 48-month period, effective until December 31, 2021.

From the Department of State:

Secretary Blinken, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.  Previously, only those applicants whose nonimmigrant visa expired within 24 months were eligible for an interview waiver.  The Secretary has temporarily extended the expiration period to 48 months.  This policy is in effect until December 31, 2021.  This change will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.  Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview. 

Related Resources

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Public Charge Rule Dismissed

Form I-944 No Longer Required

The Justice Department notified the Supreme Court that under the Biden administration, the changes made to the “public charge rule” under President Trump would no longer be defended in court. This follows an executive order President Biden signed in February that directed the Department of Homeland Security to conduct a comprehensive review of the rule. The Supreme Court agreed to the Biden administration’s request to dismiss the case, effectively putting an end to the public charge updates made under President Trump. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court order vacating the public charge rule went into effect, so that USCIS immediately stopped applying the public charge rule to any pending applications and petitions.

The rule had been challenged frequently by litigation in courts around the U.S. On November 2, 2020, the Seventh Circuit issued an administrative stay, that dictated that all adjustment of status (Form I-485) green card filings must be filed with Form I-944 once again. Under the March 9 decision and the dismissal by the Supreme Court, USCIS will now be applying earlier public charge guidance.

Shortly after the dismissal by the Supreme Court, USCIS updated the public charge webpage to state:

USCIS is no longer applying the August 2019 Public Charge Final Rule. As a consequence, among other changes, USCIS will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. In other words, USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

Applicants and petitioners are also instructed to not provide information or evidence related solely to the public charge rule, which includes Form I-944. However, the page also advises that in the interim, USCIS will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, nor will it reject Form I-129 or I-539 based on whether the public benefits questions have been completed or left blank.

USCIS Updates for Cases in Progress

Applicants and petitioners should not provide information or evidence related solely to the Public Charge Final Rule. That means that applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information. However, you do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will issue another RFE or NOID.

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