The DHS public charge rule is officially off the books, with a new final rule issued March 15, 2021, and effective March 9 removing the policy.
After a decision by the Biden administration to stop defending the DHS public charge rule, all pending appeals were dismissed and petition for certiorari to the Supreme Court was denied. This effectively vacated the rule through court order by reverting to a November 2020 federal district court judgment. Now, the vacatur is official via the new regulation.
As a result, the public charge analysis returns to whether someone is “primarily dependent on the government.” This test does not consider receipt of non-cash benefits, which the now-vacated rule had added to the mix. Requesting a fee waiver will also not be considered henceforward.
The rule discontinues certain forms, including Form I-944, the Declaration of Self-Sufficiency that corresponded with the burden of proof on the applicant to demonstrate they were not or were not likely to become a public charge. The affidavit of support will be replaced with Form I-864W, the previous requirement. Other forms, like the I-485 for adjustment of status or the I-129 to petition for a non-immigrant worker will be updated to remove questions and instructions related to the public charge rule. Namely, the I-485 will no longer reference Form I-944, while the I-129 will not ask about public benefits.
Fourteen states, led by Texas, attempted to intervene and defend the rule in place of DHS. The Seventh Circuit dismissed this bid. A separate motion to intervene is pending in the Ninth Circuit.
Applicants outside the U.S. are subject instead to the Department of State public charge rule, unaffected by the new DHS rule. However, the Department of State public charge rule is presently enjoined and not being enforced.
Francis Law Center specializes in immigration law, including cases that may be affected by the changes in the new regulation and the updated forms.
This information is intended to educate and should not be taken as legal advice.
Written by Francis Law Center Staff Eric Liberatore