Good news during the pandemic? YES!
August 12, 2020 at 6:00 AM
by Erin K Williams, Esq.
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Good news during the pandemic? YES!

Some good news for those seeking permanent residence or nonimmigrant status in the U.S. On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) enjoined the government from enforcing, applying, implementing, or treating as effective, the USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19) for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.

The court also issued a separate order enjoining the Department of State (DOS) from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, the DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19), or the President’s October 4, 2019 Proclamation, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans (84 FR 53991, 10/9/19) during the COVID-19 pandemic.

What does that mean?

An injunction is issued by a court and it stops certain action from taking place. In this case, the court has decided that both the USCIS and DOS cannot use the higher standards for determining admissibility and likelihood of becoming a public charge because the current pandemic makes the additional eligibility criteria too difficult for applicants.

The court reasoned that those seeking permanent residence or nonimmigrant status were put in a position where they would have to decide between their U.S. immigration status and their health, and thus could increase health risks in the U.S. when making their decision to not obtain health related services that may be necessary due to COVID-19 infection. The injunction is currently in place and in effect for the entire nation and all applicants seeking an extension of or new nonimmigrant status (using Form I-539) or permanent residence (Form I-944).

USCIS Update on the Public Charge Rule

On July 31, 2020, USCIS issued an announcement in response to the SDNY injunction stating that it will not apply the 2019 Public Charge rule, but rather will apply the 1999 public charge guidance while the SDNY decision is in effect.

USCIS stated that for applications and petitions that USCIS adjudicates on or after July 29, 2020, it will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129.

Moreover, applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.

USCIS also indicated that it will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.

What does this mean?

USCIS issued its notice and confirmation of the national injunction and provided clear instructions and policy guidance as to how it will process the nonimmigrant and permanent residence requests while the injunction remains in effect. The timeframe for the continued application of the injunction is unknown but it will remain so long as there is a national health emergency declared.

If you are eligible to file for your permanent residence or have a need to file for a change or extension in nonimmigrant status, now is the time to do so! The information and documentation necessary for submission with these filings are extensive and time consuming. It is well worth the effort to proceed now during the injunction. At this time, it is unclear how USCIS or DOS will proceed when the declared national health emergency in response to the COVID-19 outbreak is rescinded and/or the injunction terminated.

This new development, along with the upcoming increase in filing fees, is just another reason to proceed with your immigration matter now! See the blog from last week about the fees and how they may effect your case.

As always, if you have questions, concerns, or want to know your best plan of action, call (720-312-18740 or email (erin@ekwlawgroup.com).

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