New Public Charge Law will Go Into Effect February 24, 2020

By Marnie Kunz

Photo by Sebastian Pichler on Unsplash

After a 5-4 vote by the Supreme Court on January 27, 2020, the Department of Homeland Security will implement a new expansion to the “Public Charge” rule. The new public charge rule expands the definition of who would become a “public charge,” so, for immigrants applying for visas, it will be harder to get green cards. The new ruling will go into effect on February 24, 2020. The new public charge rule will apply to immigrants applying for visas or green cards processed inside the U.S., including immigrants that leave for 180 days or more and apply to reenter.

The new public charge rule will prevent immigrants who may become “a public charge” by using public assistance for a certain period of time from obtaining visas.

What Is Public Charge?

Under the new “public charge” rule, a person could be denied a green card, visa, or admission into the United States if the applicant is likely to become a public charge and use resources such as government assistance for housing or medical care. The public charge rule itself is not a new concept, but with the new law, more people will be deemed a “public charge” and will not be able to get green cards. 

Some factors that the government will look at with visa applicants is the age, health, income, education, and skills, and English abilities of an applicant to determine whether the applicant is likely at any time to become a public charge. Also, any history of government assistance that occurs after February 24, 2020, will be calculated in determining if an individual will become a public charge. 

The new public charge rule will go into effect on February 24, 2020, except in Illinois, where the rule remains enjoined. The public charge final rule will apply to a green card or a visa application postmarked on or after February 24, 2020. 

Who Is Affected by Public Charge?

Public charge applies to immigrants seeking visas. The new public charge rule does not apply t

o all immigrants. Most immigrants who are affected are those seeking permanent residency — or green cards — through family member petitions. The new public charge rule also applies to immigrants who submit applications to adjust their status in the United States. 

Immigrant categories that are exempt from the new public charge rule include U visa holders, T visa holders, refugees, and asylees.

What Does Public Charge Mean?

The new rule widens the definition of “public charge” from the previous definition.

In the past, the law defined a public charge as a person who is primarily dependent on the government for income support. It did not include other benefits such as Medicaid or housing assistance. 

The new rule includes more forms of government assistance, defining a public charge as a person who is likely to receive any number of public benefits for more than a total of 12 months over any 36-month period of time. Each benefit that a person uses counts toward the 12-month calculation. So, if an applicant is likely to receive two different benefits in one month — such as Medicaid and SNAP benefits, for instance — that counts as two months’ use of benefits.

Public Charge Test

Under the new public charge rule, immigrants who receive vital health, housing, and nutrition program benefits, including federally funded Medicaid, SNAP benefits, and Section 8 housing benefits, will be at risk of not being approved for visas. Until now, the use of most public benefits was not a barrier to obtaining legal immigration status in the United States.

The new public charge rule will give immigration officers the power to decide if a person is accepted to gain legal entry to the U.S. In addition to examining past receipt of government benefits, immigration officials will look at other factors such as the applicant’s age, health, household size, education, employment, and financial resources. The new public charge rule allows immigration officers to consider English proficiency (positive) or lack of English proficiency (negative), a person’s credit score, medical conditions and whether the person has access to private health insurance as well.

The new public charge rule will require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency, when applying for a green card as part of an adjustment application.

Resources: Immigrant Legal Resource Center, USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions

H-1B Visa Changes for 2021

Changes to the New FY 2021 H-1B Cap-Subject Petitions

By Abeer Amin, Esq.

Ready or not here it comes! Yes, we are referring to the new and somewhat daunting Electronic H-1B Registration process that USCIS has confirmed will be implemented for fiscal year 2021 H-1B cap-subject petitions. In this blog, we will focus on the changes to the H-1B process to make it less daunting and much more manageable. Before we proceed, it is important to note that the overall H-1B process has not changed. Even though an additional step has been added, the adjudication of the I-129 Petition will remain the same. From what has been disclosed thus far (Federal Register notice, United States Citizenship and Immigration Services (“USCIS”) announcements, etc.), the following is what we know about the new Electronic H-1B Registration process:

New H-1B Registration Process

Before a Petitioner, be it a company or any other business entity, decides to file a fiscal year 2021 H-1B cap, Form I-129, Petition for a Nonimmigrant Worker, on behalf of a proposed Beneficiary (foreign national), it must go through a registration process that requires it to first register electronically with the USCIS and pay a $

10.00 registration fee for each proposed beneficiary. An attorney, as an authorized representative, is also able to complete the electronic registration process on behalf of the petitioner. A key takeaway from the USCIS announcements is that the Petitioner or its authorized representative must file a separate registration for each proposed beneficiary for whom they wish to file an H-1B cap-subject petition. Absolutely no duplicate registrations will be allowed, to the extent that if duplicate registrations are detected, the Petitioner will be barred from filing future H-1B petitions!  This H-1B policy is similar to what we have observed in the past, where Petitioners were not allowed to physically file two H-1B petitions for the same person. As such, it is no surprise to us that the USCIS is applying the same standard to the electronic registrations.

After registration has been completed by the Petitioner or its authorized legal representative and the registration period closes, USCIS will randomly select the number of registrations projected as needed for the 2021 H-1B period. By March 31, 2020, USCIS will notify the selected Petitioners that their registrations have been selected, enabling them to file the actual Form I-129, Petition for a Nonimmigrant Worker, with the USCIS. Registrations that were not selected will be removed from the registration system at the end of the fiscal year. The Petitioner/ authorized legal representative will be given a specific time period by which to file their petitions on what is said to be an “eligibility notice.”  

H-1B 2020 Registrations

In terms of the timeframe, as per the USCIS’ most recent announcement on January 1, 2020, the Petitioner/authorized representative will be able to register from March 1, 2020 to March 20, 2020.  This might be revised later if deemed necessary by USCIS for various reasons, including USCIS not receiving an adequate number of electronic registrations as anticipated earlier to reach the FY 2021 H-1B numerical allocations after the initial registration period closes. 

H-1B Processing

Department of Homeland Security (DHS) will use pay.gov for processing the registration payment. As far as we know, the Petitioner/legal representative would not need to create a pay.gov account to pay the fee. They will however need to enter checking/savings account information to conduct an Automated Clearing House (ACH) transaction or utilize credit/debit card information for the payment portal. Attorneys, who have a G-28 on file, will be able to pay on pay.gov. 

From what we have gathered from the government agency rules articulated in the Federal Register and numerous USCIS announcements, the electronic registration is not meant be a roadblock to the H-1B Cap 2021 season, but intended to streamline a previously cumbersome H-1B Cap process. Although we are hesitant to go that far, “Jusqui’ici tout va bien” (a French saying translated as “so far, so good,”) seems to be appropriate for the new electronic H-1B registration process. 

USCIS has announced that it is planning to conduct a stakeholder outreach webinar and training program that will provide better insight as to how to use the pay.gov portal as well as give instructions for completing and submitting registration and fees. We anxiously await further guidance from USCIS while still welcoming the new “H-1B Cap 2021 Season” with open arms. We will definitely keep you all posted with much anticipation and excitement!

Abeer Amin, Esq. specializes in immigration law and is the principal attorney at the Law Offices of Abeer Amin, based in New York City. She can be reached at: abeer.amin@abeeraminlaw.com or 1-877-960-0424.