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Public Charge Rule and New USCIS/DOS Forms

On August 14, 2019, the Department of Homeland Security (DHS) issued a regulation redefining the definition of “public charge” under the Immigration and Nationality Act. Subsequently, numerous lawsuits were filed challenging such revision.  Then, in early October 2019, U.S. Citizenship and Immigration Services (USCIS) indicated that, effective October 15, 2019, it would no longer accept the current version of certain forms, as the forms did not address the new definition of public charge for immigration purposes, but did not release updated forms.  USCIS further indicated that there would be no grace period for continuing to use the existing forms.

On October 7, 2019, the American Immigration Lawyers Association (AILA) filed a lawsuit requesting immediate injunctive relief to suspend USCIS from such action.  On October 9, 2019, USCIS posted new versions of certain forms.  On October 11, 2019, a federal court (New York) issued a nationwide injunction blocking DHS from implementing or enforcing the new public charge regulation.  In connection with same, DHS was barred from requiring the use of the new forms.   Immediately thereafter, USCIS removed its new versions of certain forms.   Accordingly, employers have continued to use the existing forms which do not address the new definition of public charge.

On January 27, 2020, the U.S. Supreme Court ruled that DHS may implement the new definition of public charge while ongoing litigation challenging such regulation continues.  While the Supreme Court did not address the merits of the regulation, USCIS has released updated forms, effective February 24, 2020 and it has posted additional guidance on the definition of public charge.

On February 21, 2020, Department of State DOS published a new Form DS-5540, Public Charge Questionnaire, with an effective date of Monday, February 24, 2020. DOS has not yet provided additional guidance.

Of course, as additional details become available regarding the above, we will provide regular updates.