Public Charge rule implemented except in Illinois
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The U.S. Citizenship and Immigration Services (USCIS) announced that it will implement the Inadmissibility on Public Charge Grounds final rule ("Final Rule") on February 24, 2020, except for in the State of Illinois where the rule remains enjoined by a federal court. Under the Final Rule, USCIS will look at the factors required under the law by Congress, like an alien's age, health, income, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge (Medicaid, food stamps, WIC, CHIP, TANF, etc.)
The Final Rule, issued in August 2019 and originally scheduled to be effective in October 2019, prescribes how the Department of Homeland Security (DHS) would determine whether an alien is inadmissible to the United States based on the alien's likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act.
The Final Rule also includes a requirement that aliens seeking an extension of stay or change of status demonstrate that they have not received public benefits since obtaining the nonimmigrant status they seek to extend or change. This applies to many employment-based nonimmigrant categories, including: H, L, E, O, and TN.
USCIS posted several new and revised forms to its website on February 5, 2020. These revised forms must be used as of February 24, 2020 when the Inadmissibility on Public Charge Grounds Final Rule goes into effect. These new and revised forms will not be used in Illinois, where the Final Rule remains enjoined by a federal court. Please read to the end for more information regarding Illinois filings.
New and Revised Forms
The USCIS has made the following new form available. This form applies only to individuals applying for adjustment of status (green card) - both family-based and employment based:
Further, the USCIS has revised the forms listed below, among others:
- Form I-129, Petition for Nonimmigrant Worker (used for H-1B, L-1, O-1, TN and E-3 in-country petitions)
- Form I-485, Application to Register Permanent Residence or Adjust Status (green card)
- Form I-485 Supplement A, Adjustment of Status Under Section 245(i)
- Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
- Form I-864, Affidavit of Support Under Section 213A of the INA (used in family-based green card applications)
- Form I-864A, Contract Between Sponsor and Household Member
- Form I-539, Application to Extend/Change Nonimmigrant Status, and I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status (used for extension/change of status applications for H-4, L-2, O-3, TD, E, and F, among others).
Illinois
If you are applying for adjustment of status and live in Illinois, or are an employer petitioning (petitioner) for an alien for an extension or change of nonimmigrant status and are located in Illinois, you will not use the updated version of the forms.
Adjustment of Status Applicants in the State of Illinois
Applicants for adjustment of status who live in Illinois are not subject to the final rule. They will continue to use Form I-485 with the edition date of 7/15/2019 or 12/13/2017 and will not need to submit Form I-944.
Extension of Stay and Change of Status Applicants and Petitioners in the State of Illinois (H, L, O, TN, E, etc.)
Applicants and petitioners seeking to extend an alien's nonimmigrant stay or change an alien's nonimmigrant status in Illinois are not subject to the final rule.
- For Form I-539, Application to Extend/Change Nonimmigrant Status, USCIS will use the applicant's physical address to determine whether the applicant is subject to the final rule.
- Applicants filing Form I-539 applicants who live in Illinois must use the 12/2/2019 edition date of the form.
- For Form I-129, Petition for a Nonimmigrant Worker, USCIS will use the petitioner's physical address and the beneficiary's physical address as listed on the Form I-129 to determine whether the beneficiary of the petition is subject to the final rule. If either the petitioner's or the beneficiary's physical address is in Illinois, the final rule will not apply.
- Petitioners filing Form I-129 who are covered by the Illinois injunction must use the prior version of Form I-129, which has an edition date of 01/08/2020 (or 01/31/2019, while that edition remains acceptable).
Effects of Moving in and out of Illinois with pending applications/petitions for Adjustment of Status, Extension of Stay, or Change of Status
- DHS will not apply the final rule to an applicant, petitioner or beneficiary for adjustment of status, extension of stay, or change of status whose physical address is in Illinois at any point during the adjudication of the application or petition - as long as USCIS is notified of a change in the applicant's, beneficiary's, or petitioner's physical address to a location in Illinois before USCIS concludes the adjudication of the relevant application or petition.
- In the case of a Form I-129 filed by a petitioner on behalf of a beneficiary, USCIS will consider a change in the petitioner's or beneficiary's physical address to a location in Illinois at any point during the adjudication process as long as USCIS is notified of a change in the applicant's, beneficiary's and/or the petitioner's physical address before USCIS concludes the adjudication of the relevant application or petition.
- If an applicant or petitioner is living/located in Illinois, but the applicant or petitioner notifies USCIS of a bona fide change in the applicant's, petitioner's or beneficiary's physical address to a different state while the application or petition is pending, the final rule will not apply to the application or petition.
- Likewise, if an applicant or a petitioner is living/located outside of Illinois, but the applicant or petitioner notifies USCIS of a bona fide change in the applicant's, petitioner's or beneficiary's physical address to an Illinois address while the application or petition is pending with USCIS, the final rule will also not apply to the applicant.
- As with all information provided on an application or petition, in signing the application or petition, the applicant or petitioner is certifying, under penalty of perjury, that the physical address provided on the form is true and correct.
This immigration alert is only being sent to company representatives. Please distribute it to your foreign national workforce as you see fit.
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If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.
Sincerely,
Leila Freijy
Law Office of Leila Freijy PLLC |
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Contact
Leila Freijy, Esq.
3150 Livernois Rd #103
Troy, MI 48083
248.817,8280
248.287.4115 (fax)
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