Sunday, March 14, 2021

Immigration: The Wreck of No. 944

The Wreck of the C P & V Train – Scioto County Ohio

Well, the subject being Immigration, I speak metaphorically, in the dictionary sense.


The "944" I refer to is Immigration Form I-944, Declaration of Self-Sufficiency, which received the following death notice on March 9, 2021, at the website for USCIS  (the so-called benefits bureau of the Dept. of Homeland Security, DHS):
On or after March 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485.  * * * * 
If an applicant or petitioner has already provided such information, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information provided that relates solely to the Public Charge Final Rule, including, for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits * * * .
If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required by the Public Charge Final Rule, including but not limited to Form I-944, and your response is due on or after March 9, 2021, you need not provide the information solely required by the Public Charge Final Rule. 
So, what does all this mean in plain English? Well, first, an I-485 is an application filed by an alien already in the USA to "adjust status" (get a green card).  It usually requires a prior or contemporaneously filed "alien relative petition" or I-130 filed by an eligible US citizen or permanent resident who will also "sponsor" the alien.  Second, prior to the Trump Administration's institution of its "Public Charge Final Rule," the Immigration and Nationality Act (INA) contained a "public charge provision" dating to 1996 stating that any intending immigrant who was "likely to become a public charge" (a burden to the public) was "inadmissible," meaning ineligible to get a green card. 

To prevent this, each petitioner (sponsor) for "most family-based immigrants and some employment-based immigrants" had to file an "Affidavit of Support," on Form I-864, so that the alien could "show they have adequate means of financial support and are not likely to rely on the U.S. government for financial support."  Basically, a petitioner had to show that he or she earned income that exceeded 125% of the poverty level for the size of their tax-filing household and that they had filed federal income taxes for the past three years.  (If the petitioner didn't make enough income, they could get a joint sponsor to help.)  The support obligation to keep the immigrant from becoming a "public charge" existed for up to 10 years.

The idea that there was an objective, verifiable financial benchmark for meeting the INA's "public charge" inadmissibility hurdle was, obviously, anathema to the likes of illegally installed Ken ("the Cooch") Cuccinelli, "Acting Director" of USCIS.  The regulations underlying Form I-944 broadly expanded the criteria the Department of Homeland Security will use in denying applications for admission to the United States or adjustments of immigration status for individuals who are already living here and are deemed “likely to become a public charge” in the future.  

In effect, the questions asked in Form I-944 transformed the "public charge" requirement of the INA into a highly invasive "wealth test" equivalent to "an administrative strip search" whose arbitrariness greatly increased the possibility that otherwise deserving immigrants would be denied green cards. I personally helped clients grapple with the Form and can confirm that it was a nightmare to navigate and answer.

Legal challenges to the Public Charge Final Rule were filed in numerous federal courts immediately upon its effective date, but because of the Balkanized way that our federal courts deal with immigration issues (a topic for another time, perhaps) there were no nationwide injunctions issued, and things were looking grim when the U.S. Supreme Court vacated an injunctive stay against the Rule in effect in the Second Circuit Court of Appeals pending a Trump Administration appeal to it.

It took intervention by the Biden Administration to finally end this train wreck of a regulation. As the AP reported on March 9:

A Trump-era immigration rule denying green cards to immigrants who use public benefits like food stamps was dealt likely fatal blows Tuesday after the Biden administration dropped legal challenges, including before the Supreme Court.

Continuing to defend the rule “is neither in the public interest nor an efficient use of limited government resources,” the U.S. Department of Homeland Security said in a statement.

The Supreme Court won’t weigh in on the legality of the so-called public charge rule because of an agreement by the Biden administration and the parties and states challenging it. The Justice Department also dropped objections to a ruling before the 7th U.S. Circuit Court of Appeals, upholding a federal judge’s November order striking down the rule nationwide.

The moves were the latest outgrowth of the Biden administration’s effort to undo Trump administration immigration policies. 

Mind you, this is just one trench war battle the Immigration Bar and Immigration Advocates nationwide waged against the Trump Administration's anti-immigration policies from Day One.  I could go on and on about the outrages, except that I did elsewhere in my website blog.  2020 – An Immigration Lawyer's Personal Look Back.

As you know, I'm new to this public blogging thing.  So I'd appreciate some feedback.  Was this post 1) too technical and detailed, 2) boring, 3) an insult to your intelligence, 4) unspeakable, or 5) something else?  I can't improve unless I hear from you.

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