DHS Public Charge Rule No Longer in Effect

• On March 9, 2021, DHS announced that it will no longer defend its 2019 public charge rule in pending lawsuits. On March 11, 2021, USCIS provided an advance copy of a final rule removing the 2019 public charge rule and restoring the regulatory text to appear as it did prior to the issuance of the August 2019 public charge rule.

• Form I-944 Declaration of Self-Sufficiency and related supporting documents are no longer required for adjustment of status applications.

• Nonimmigrant status applicants are no longer required to answer questions about their receipt of public benefits on Forms I-129 and I-539.

• DHS’ 1999 field guidance on public charge admissibility is in effect in lieu of the August 2019 public charge rule.

MT Perspective:

The public charge policy has been restored to the long standing policy that went into effect in 1999.  Form I-944, which was introduced during the Trump Administration, placed a heavy burden on applicants, forcing them to disclose detailed financial and personal information and to produce voluminous documents.

Under the 1999 guidance, “public charge” grounds of inadmissibility applies to foreign nationals who have become or are likely to become primarily dependent on the U.S. government by receiving cash assistance for income maintenance or by institutionalization for long-term care at the government’s expense. In the context of nonimmigrant visa (e.g. H-1B, L-1, E-3, TN, H-4, L-2, TD), the public charge inquiry does not apply.

Delayed: Trump-era DOL Rule Increasing Prevailing Wages

On February 1, 2021, DOL published a notice announcing a delayed effective date of the Trump Administration’s January 2021 rule entitled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”.

On March 12, 2021, DOL published a final rule to delay the effective date of the Trump era rule published on January 14, 2021 which will have changed the four-tier wage-level system and dramatically increased prevailing wages for Labor Condition Applications for H-1B/E-3/H-1B1 filings and PERM Labor Certifications.  This rule was scheduled to take effect on March 15, 2021. The effective date has been delayed till May 14, 2021.

MT Perspective:

It is possible for the Biden Administration to delay the effective date further or issue a final rule to rescind the January 2021 rule. If it were to be implemented, it is likely to be challenged in federal court.