by Kristine Nazir and Melanie Keeney
On January 27, 2020, the U.S. Supreme Court temporarily set aside the preliminary injunctions that prevented DHS’ public charge rule from taking effect nationwide. This was the last of the three district court nationwide injunctions in force, which means that the DHS rule can go into effect nationwide, except in Illinois where it is blocked by a statewide injunction.
The DHS regulation redefines a “public charge” as a non-citizen who receives or is likely to receive one or more of the specified public benefits, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). This determination is made based on a “totality of circumstances” assessment that considers the applicant’s age, health, family status, income and resources, education and skills, and the validity of an affidavit of support. Caseworkers would consider enrollment in the widely used Supplemental Nutrition Assistance Program (SNAP), certain federally funded Medicaid benefits, and a variety of forms of government-subsidized housing, including Section 8 vouchers.
The rule applies to several applicant categories including aliens seeking to adjust their status to that of lawful permanent residents from within the United States and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification. Regarding adjustment of status applicants, caseworkers will consider the applicant’s receipt of one or more of the specified public benefits, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment. With respect to nonimmigrants seeking a change or extension of status, DHS will conduct a more limited public charge determination by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.
USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020. After Feb. 24, 2020, everywhere except in the State of Illinois, USCIS will reject prior editions of forms if the form is postmarked on or after February 24, 2020. If USCIS receives an application or petition for benefits using incorrect editions of the forms, USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms.
Immigration – The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.
Kristine Nazir represents corporations and institutions of higher education with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization. Prior to joining the firm, Kristine clerked for the Honorable Jeffrey M. Geller at the Baltimore City Circuit Court and for the Department of Justice, Executive Office for Immigration Review at the Arlington Immigration Court. During law school, Kristine interned with the Department of Homeland Security, Immigration and Customs Enforcement, Office of the Principal Legal Advisor and National Security Law Section; the Superior Court of the District of Columbia; and Fragomen, Del Rey, Bernsen, & Loewy LLP. Before attending law school, Kristine also served in Peace Corps Mongolia as a community economic development volunteer.
Melanie Gurley Keeney practices in the areas of employment, immigration and education law. Melanie has been included in Best Lawyers in America® for 25 years, and has been recognized in all areas of her practice. She also has been named to Missouri & Kansas Super Lawyers® lists for over 10 years, and has been rated one of the top 50 female lawyers in Missouri and Kansas. She was named a “Top Missouri Lawyer” by St. Louis Magazine and Kansas City Magazine for Immigration Law. Melanie has been distinguished as Best Lawyers® St. Louis Immigration Law Lawyer of the Year in 2019, 2015, and 2012, and St. Louis Education Law Lawyer of the year in 2017. In 2016, Missouri Lawyers Weekly presented Melanie with the Women’s Justice Litigation Practitioner Award and in 2014, Washington University School of Law honored Melanie with the International Women’s Day Award for Employment Law. She has served as an adjunct professor at Washington University and is a frequent presenter on legal topics. Melanie is a founding Shareholder of the Firm and currently serves as the Chairperson of the Firm.