ALERT: PUBLIC CHARGE AND CHANGES FOR H-2A PETITIONS

Posted in: Employment Law by Dowling Aaron on

After significant buzz over the past year, the U.S. Citizenship and Immigration Services (USCIS) office will implement the final rule on Public Charge Grounds of Inadmissibility starting February 24, 2020, nationwide except in the State of Illinois where USCIS has been enjoined (the legal term for stopped) by a federal district court. This latest round of rule changes comes with updated USCIS forms including Form I-129 Petition for a Nonimmigrant Worker (including H-1B, H-2A, H-2B and others).

As a primer on inadmissibility, “grounds of inadmissibility” are legal reasons set out in the immigration statute that prevent a foreign individual from being admitted – allowed legal entry – to the United States. The immigration statute sets out many “grounds of inadmissibility” including health grounds like certain illnesses, criminal grounds like convictions or national security concerns, and at issue here, public charge. Strange enough, neither the immigration statute nor case law has defined “public charge” but the regulations define public charge as a foreign individual who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. With that in mind, the regulations prohibit a foreign individual admission into the United States if s/he is likely to become a public charge at any time in the future.

Now, public charge has been on the books in the immigration statute for over 100 years so what has changed? The short answer: The law on the books hasn’t changed, but the rules by which USCIS plays have changed. USCIS has changed the factors test for assessing whether or not a foreign individual is a public charge and therefore cannot be admitted to the United States.

Finally, with new rules comes new paperwork and this week, USCIS released updated editions of twelve forms including Form I-129 Petition for a Nonimmigrant Worker. Note, the current editions of Form I-129, dated 01/08/20 and 01/31/19 will only be accepted to the effective date February 24, 2020. Applications postmarked after February 24, 2020, must use the edition of Form I-129, dated 01/27/20. Employers are smart to calendar those critical dates and educate staff that may have draft applications in progress.

COUNSEL TO MANAGEMENT:

The Public Charge Grounds final rule goes into effect February 24, 2020. The final rule will apply only to applications postmarked on or about February 24, 2020 so employers who are planning for foreign workers in peak summer months need to be in regular contact with counsel and staff now to prepare applications under the final rule effective this month.

Employers who have blank forms saved for easy reference should remove old editions from any internal library to avoid costly errors with an application rejected for using an expired form. Current editions of all immigration forms are available online for free through the official USCIS website. Employers should never pay for blank forms. To confirm the correct edition of any immigration form, Employers can look at the bottom right hand corner of the form for its edition date.

By: Rebecca Schach

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