USCIS Publishes Final Rule On Public Charge

The U.S. Citizenship and Immigration Services (USCIS) published a final rule on August 14, 2019 that will greatly expand the categories of public benefits looked at to determine whether a foreign national may be deemed a public charge and thus inadmissible to enter and remain in the United States, either temporarily or permanently. The rule is slated to go into effect on October 15th, 2019. It will only apply to public benefits received by foreign nationals after the rule takes effect. Applications filed and pending before the effective date of the rule are not subject to the new requirements.

An applicant charged as a “public charge” means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

Under the rule, a foreign national may be deemed inadmissible as a public charge if he or she has received one or more covered public benefits for more than an aggregate of 12 months within any 36-month period. The rule defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.

Officers will review the totality of the applicant’s circumstances, both positive and negative, including the applicant’s age, health, family size, education level, skills and financial circumstances to make a determination.

In addition to establishing that they have not received a covered public benefit for more than 12 months within the last three years, applicants for adjustment of status will undergo a closer review to determine whether they are likely to become a public charge in the future. They will be required to submit a declaration of self-sufficiency with their application, along with supporting documentation. Adjustment applicants found likely to be a potential public charge could be permitted to post a bond of at least $8,100 in order to overcome the inadmissibility ground.

This rule also makes certain nonimmigrant aliens (e.g. H-1B, L-1) in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change. However, adjudicators will not assess whether they are likely to become a public charge in the future.

The public charge rule does not apply to U.S. citizens, including those related to a foreign national seeking benefits; most lawful permanent residents, including permanent residents who apply for naturalization to U.S. citizenship; certain adoptees; and Foreign nationals who are exempt from public charge grounds of inadmissibility, including asylees, refugees, victims of human trafficking, domestic violence and certain enumerated crimes, and Special Immigrant Juveniles. Benefits received by a spouse, child or any other person would not be counted against the principal applicant, unless the principal is also listed as a recipient of the benefit.

OMB Completes Review of Proposed H-1B Registration Fee Rule

On August 12, 2019, the Office of Management and Budget (OMB) completed review of the proposed H-1B registration fee rule, entitled Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens.

It is expected that a notice of proposed rulemaking (NPRM) should be published in the Federal Register in the coming days or weeks to allow for public comment.

USCIS To Close Most International Offices

The U.S. Citizenship and Immigration Services (USCIS) has announced that it will close all but seven (7) of its 20 field offices worldwide, including major hubs in London, Seoul and Frankfurt.

USCIS offices in Beijing, Guangzhou, Guatemala City, Mexico City, Nairobi, New Delhi and San Salvador will continue to remain open USCIS will stagger the closings over the course of the next year, with the field offices Monterrey, Mexico, and Seoul, South Korea, being the first to shut down at the end of September.

“This cost-effective and high value international footprint allows USCIS to efficiently adjudicate complex immigration petitions that require in-person interviews, to enhance integrity through fraud detection and national security activities, and to liaise with U.S. and foreign government entities to improve migration management capacity,” Acting Director Ken Cuccinelli said.

Many functions currently performed at international offices will be handled domestically or by USCIS domestic staff on temporary assignments abroad. As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices.

USCIS Announces Plan to Revise Naturalization Test

USCIS has announced that it is revising the current naturalization test. The agency goal is to “create a meaningful, uniform, and efficient test that will assess applicants’ knowledge and understanding of U.S. history, government and values.” A working group has been reviewing and updating the test questions, and will also assess potential changes to the speaking portion of the test. USCIS anticipates an implementation date of December 2020 or early 2021.

Form I-539 No Longer Eligible for “Courtesy” Premium Processing and Are Treated as Stand-Alone Applications

USCIS confirmed during a recent stakeholder teleconference, that it can no longer continue its longstanding courtesy practice of adjudicating the I-539 along with a concurrently filed I-129 petition filed via premium processing.

In March 2019, US CIS published a revised Form I-539, Application to Extend/Change Nonimmigrant Status, and included a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. The revised Form I-539 has significant changes, including the requirement that every applicant pay a biometrics fee and attend a biometrics appointment, regardless of age.

In the past, US CIS would traditionally grant courtesy premium processing for I-539 applications (H-4, L-2, E-2 or O-3 applicants) that were filed concurrently with the principal’s I-129 petition as part of the filing with the premium processing office. This will no longer be the case as a result of the implementation of the revised Form I-539 and the new biometrics requirement for each applicant and co-applicant. With the addition of the new biometrics requirement for I-539 applicants, this delay will no longer provide USCIS the ability to grant the I-539 within the same 15-day period for I-129 petitions filed via premium processing.

I-539 applicants need to be aware that it will now be substantially longer to process their applications. Depending on timing, travel restrictions, visa processing issues, driver’s license renewals, as an alternative to filing the I-539 application with USCIS, dependents may opt to process the nonimmigrant visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays associated with the adjudication of Form I-539 by USCIS. For current USCIS processing times for Form I-539, please visit the USCIS website.