As of February 24, 2020, US Citizenship and Immigration Services (USCIS) is free to impose the regulation it unveiled in August 2019, which gives its officers significantly expanded authority to deny visas and green card applications from immigrants and prospective immigrants whom the government determines rely, or could rely, on certain public benefits like food stamps and government housing programs. A narrowly divided Supreme Court lifted the nationwide injunction in January 2020, ruling 5-4 that the administration could begin enforcing the controversial policy, leaving lower courts to wrestle with multiple lingering legal actions challenging the rule. On February 21, 2020, the Supreme Court lifted the last remaining injunction, which had applied to Illinois residents.

As a result, USCIS has reissued new versions of existing application and petition forms which include attestations regarding the redefined public charge policy. USCIS has also issued a new form, “Declaration of Self-Sufficiency” (Form I-944), which requires comprehensive information about a beneficiary and accompanying family’s assets, resources, and financial status, including liabilities, debts, credit report and credit score, health insurance, and public benefits. Form I-944 also requires information about the beneficiary’s educational history and skill level.

Incomplete or inaccurate information on the newly-issued government forms or other immigration-related submissions creates novel risks for visa and green card applicants, including:

  1.  Findings of inadmissibility and denial of visa benefits or green card applications, including for those who are in the final stages of the sponsorship process.
  2.  Close scrutiny by the government of the representations made by affected applicants, which, if not accurate or complete, may be deemed to be a misrepresentation, leading to a separate ground of inadmissibility and/or investigation, prosecution, or denial of other government benefits.

As the employer community adjusts to the impact of the new rule, relying on accurate information about the requirements, implementing fluid and reliable procedures to incorporate the new requirements, and ensuring employees have support, are essential. Secure sharing of data to comply with data protection policies and conventions is similarly important. Additionally, because the new rule requires use of new forms, analysis of data, and collection of extensive documentation, tracking deadlines for applications for visas and green cards requires close attention.