Seyfarth Synopsis: U.S. District Court in New York issued a nationwide injunction blocking the implementation of USCIS’ final rule on inadmissibility on public charge grounds, which rule resulted in significant changes to two widely used USCIS forms.

Today, the United States District Court for the Southern District of New York issued a nationwide injunction blocking the implementation of the Trump Administration’s “Inadmissibility on Public Charge Grounds” final rule, effectively suspending the use of the new versions of Form I-129, Petition for a Nonimmigrant Worker and Form I-485, Application to Register Permanent Residence or Adjust Status.

On October 9, 2019, U.S. Citizenship & Immigration Services (USCIS) issued new versions of the forms, originally scheduled for use in all respective petitions filed on or after Tuesday, October 15, 2019. The most notable change to the forms would be the implementation of the administration’s interpretation of a “public charge” as a ground of inadmissibility. Specifically, for I-129 petitions requesting a change of status or extension, USCIS proposes to require the petitioner to attest to the employee beneficiary’s receipt of public benefits and require documentation if the beneficiary has received benefits. For I-485 applications, commonly referred to as green card applications, the revised version includes a new series of public charge questions, the answers to which may require a concurrent filing of Form 944, Declaration of Self-Sufficiency or Form 864, Affidavit of Support. This would require the submission of additional information, essentially including a net worth and projected earnings assessment, which would necessitate extensive documentary evidence, including documents such as a credit report.

Given that the employer -- not the prospective employee -- signs the Form I-129 under penalty of perjury, an employer seeking to change or extend the work authorized status of a foreign national would presumably have some visibility into that prospective employee’s financial and medical conditions, with resulting potential impact on laws governing the disclosure to and use by employers of medical, credit and other sensitive information, including whether the prospective employee can effectively waive the protection of such laws.

The revised forms can be found here and here. Seyfarth Shaw will issue subsequent alerts as the situation continues to develop.