1999 Field Guidance FAQs
On March 9, 2021, the public charge rule introduced by the Trump administration was struck down. In its place, US Citizenship and Immigration Services (USCIS) has reinstated the 1999 Field Guidance, which was in effect prior to the Trump administration’s rule. Find answers to some of the most commonly asked questions about the 1999 Field Guidance and the transition away from the Trump administration’s rule.
How will USCIS treat adjustment of status cases filed under the Trump regulations, but not yet adjudicated?
Is there any way another legal challenge can bring back the Trump-era regulations?
The notice on the DHS/USCIS website indicates that USCIS stopped applying the 2019 public charge rule to all pending applications and petitions on March 9, 2021. Applicants no longer need to provide information or evidence that is solely related to the 2019 public charge rule. This means that people applying to adjust status should not submit the Form I-944 or any evidence or documentation required by it. USCIS will not consider any information that relates solely to the 2019 public charge rule, including, for example, information provided on the Form I-944. If an applicant received a Request for Evidence or Notice of Intent to Deny, requesting information that is solely required under the 2019 public charge rule, and the response is due on or after March 9, 2021, they do not have to provide it. In addition, USCIS posted a final rule that took effect on March 9, that removes the public charge regulatory text from the Code of Federal Regulations and discontinues the Form I-944 Declaration of Self -Sufficiency.
What changes, if any, will we see to the wealth test?
Shortly after the Biden Administration withdrew pending appeals to defend the 2019 public charge rule, eleven states sought to intervene in cases in multiple federal circuits to have the public charge rule reinstated. The states — including Arizona, Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Texas and West Virginia — filed motions to intervene (acting to defend the Trump Administration’s 2019 public charge rule) in the Ninth Circuit, Fourth Circuit, and Seventh Circuit public charge cases. As of Monday, March 15, the Fourth and Seventh Circuit denied the motions to intervene. The states have since asked the Supreme Court to review the Seventh Circuit denial.
In the meantime, the Department of Homeland Security has issued a final rule, effective March 9, that removed the DHS public charge regulatory text from the Code of Federal Regulations and discontinued the I-944. The DHS rule no longer exists or applies.
What is the definition of a public charge under the 1999 Field Guidance?
The income thresholds in the 2019 public charge rule are no longer in effect. In other words, having an income below 125% of the federal poverty level is no longer specified as a negative factor and having an income of more than 250% of FPL of the federal poverty level is no longer specified as a heavily weighed positive factor.
However, the public charge inadmissibility statute incorporates a totality of circumstances test. The statute requires USCIS to consider, at minimum an applicant’s age, health, family status, income/resources, education and skills and, where required, the affidavit of support. Under the 1999 Interim Field Guidance immigration officers must assess the applicant’s “totality of the [applicant’s] circumstances at the time of his or her application.” The Guidance explicitly states that “the existence or absence of a particular factor should never be the sole criterion.”
Who does public charge apply to?
Under the Guidance, a public charge is a person who is or has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) ‘‘primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.’’
Why are there two sets of regulations?
The “public charge inadmissibility test” affects people applying for admission to the country or for lawful permanent resident (LPR) status. It does not apply to humanitarian immigrants such as refugees; asylees; survivors of domestic violence, trafficking and other serious crimes; special immigrant juveniles; and certain individuals paroled into the U.S. A complete list is set forth at 8 CFR §212.23(a) as set forth at 84 Fed. Reg. 41504.
What public benefits are considered under the 1999 Field Guidance?
Decisions about applications for admission or LPR status processed outside the U.S. (at embassies or consular offices abroad) are made by State Department officials. The DOS regulations affect people seeking immigrant and nonimmigrant visas and people seeking to be admitted to the U.S. as LPRs. The changes also affect applicants for LPR status who are required to leave the U.S. to seek status through consular processing.
Decisions about applications for admission and adjustment to LPR status processed inside the U.S. are made by officials of U.S. Citizenship and Immigration Services, which is part of DHS.
The only benefits considered are “cash assistance for income maintenance” and “institutionalization for long-term care at government expense.” Short-term and special purpose cash payments and institutionalization for short periods of rehabilitation are not considered. Food and nutrition programs, including SNAP, and housing programs, such as public housing and section 8 are not considered. Medicaid is considered only if it is used to pay for long-term care.
Special thanks to Protecting Immigrant Families for providing this information and analysis.
Reviewed on 3/22/2021