Public Charge – What do Nonimmigrant Visa Holders Need to Know?

On October 15, 2019, USCIS is set to update both the I-129 and I-539 forms in order to comply with the new Public Charge regulation that takes effect the same day. The I-129 form is used for the following types of visas: H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 […]


On October 15, 2019, USCIS is set to update both the I-129 and I-539 forms in order to comply with the new Public Charge regulation that takes effect the same day. The I-129 form is used for the following types of visas: H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. This form is also used to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1 or TN. The I-539 form is used by individuals in the US seeking to extend or change status to B-1, B-2, Dependents of E-1, 2, and 3, F-1, H-4, J-1, L-2, O-3, P-4, R-2, TD, along with some other less common visa classifications.

Although the new forms are not available yet, only the new form will be accepted for any I-129 petition or I-539 application postmarked on or after October 15, 2019 (note that the I-485, I-864, and I-864EZ are also being updated and the new form needs to be used on or after October 15th as well).  If you are planning to file any of these forms soon, be sure that you file before October 15th OR wait until after October 15th and file using the new version of the form. If you use the current version of the form and your application or petition is filed after October 15th, your application or petition will be rejected by USCIS and the filing date will not be honored.

For I-129 petitions requesting Consular Processing, the new Public Charge section of the form can be skipped since this factor will be considered at the time of your visa application at the Consulate or Embassy. For I-129 petitions requesting an extension or change of status, the following must be answered by the employer filing the petition about the worker being sponsored:

1. Has the beneficiary received, since obtaining the nonimmigrant status that you seek to extend or that you seek to change on behalf of the beneficiary, received, or is the beneficiary currently certified to receive, the following public benefits?

(select all that apply).
[] Yes, the beneficiary has received or is currently certified to receive the following public benefits: (select all that apply)
[] Any Federal, State, local or tribal cash assistance for income maintenance
[] Supplemental Security Income (SSI)
[] Temporary Assistance for Needy Families (TANF)
[] General Assistance (GA)
[] Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps”)
[] Section 8 Housing Assistance under the Housing Choice Voucher Program
[] Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
[] Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.
[] Federally-Funded Medicaid

[] No, the beneficiary has not received any of the above listed public benefits.
[] No, the beneficiary is not certified to receive any of the above listed public benefits.

If the beneficiary has received or is certified to receive any of the above-mentioned public benefits, then the following information must be provided:

Type of Benefit
Agency that Granted the Benefit
Date the Beneficiary Started Receiving the Benefit or if Certified, Date the Beneficiary Will Start Receiving the Benefit (mm/dd/yyyy)
Date Benefit or Coverage Ended or Expires (mm/dd/yyyy)

If you have received any of the above benefits, be sure to talk to a qualified immigration attorney before filing an extension or change of status with USCIS to understand whether you may be subject to the public charge ground of inadmissibility.

The I-539 application will include a similar question that must be answered by the individual applicant signing the form. In addition, by signing the form, the I-539 applicant will now be authorizing the Social Security Administration (SSA) to verify the applicant’s Social Security number (to match name, Social Security number, and date of birth with information in SSA records and provide the results of the match) to USCIS. USCIS will also verify with the SSA, U.S. Department of Agriculture (USDA), U.S. Department of Health and Human Services (HHS), U.S. Department of Housing and Urban Development (HUD), and any other U.S. Government agency whether the agency has received and/or adjudicated a request for the above public benefits.

We are already seeing delays in I-539 application processing which leads to delayed EAD renewals for H-4, L-2, and E dependent applicants. It is safe to assume that this additional process of USCIS verifying information with SSA, USDA, HHS, and HUD will cause I-539s to take even longer. Depending on individual circumstances, it may be faster to avoid filing an I-539 with USCIS and instead apply for the visa at a Consulate or Embassy.  Be sure to discuss any travel plans with a qualified immigration attorney to ensure you are eligible.

Also, there are currently at least 9 lawsuits filed against the Department of Homeland Security seeking to block the implementation of this Public Charge regulation. These lawsuits include motions for preliminary injunction which would ask the court to bar DHS from implementing the regulation now and keep it on hold until a decision is made on the merits of the lawsuit. Oral arguments and hearings on these preliminary injunction requests are scheduled this week and next week in several of the lawsuits with the hope that an injunction could be issued in time before the regulation actually takes effect on October 15th.

~ImmigrationGirl



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