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New Immigration Guidelines Apply Nationwide; U.S. Supreme Court Stays Illinois Injunction

Following a stay earlier in February of a federal court’s ruling granting a nationwide injunction on the enforcement of the new Public Charge Rule regarding legal permanent residency, the U.S. Supreme Court has allowed the government to enforce the rule in Illinois, while an appeal is pending before the U.S. Court of Appeals for the Seventh Circuit. 

The new rule aims to make it easier for the government to deny legal permanent residency to immigrants “likely to use public benefits.” With the stay, the U.S. Department of Homeland Security (DHS) said the rule now goes into effect nationwide for all new immigration filings, including in Illinois, on Feb. 24, 2020.

As such, applicants for adjustment of status and those seeking to extend an alien’s nonimmigrant stay or change an alien’s nonimmigrant status are now subject to the final rule. 

The new rule will require submission of the:

  • New version of the Form I-129 for all extensions or changes of status involving an employer-sponsored application

  • New version of the Form I-539 for all applications seeking a change or extension of status not involving employer sponsorship, including those filed by dependents

  • Form I-944 with each new adjustment of status application. Each individual applicant must file this form; thus, for example, if a family of four consisting of the principal beneficiary of an I-140 and his three family members collectively apply, each of them must separately include the Form I-944 certifying to their receipt of public benefits.

The Form I-944 is a voluminous, 18-page form and DHS estimates its completion could take over four hours.

Concurrently, the Department of State (DOS) has also incorporated the public charge guidelines into its visa application process by updating the Foreign Affairs Manual, which establishes standard impacting consular visa issuance, and by publishing a new DS-5540 form to capture public charge details. While the DOS was to start applying the new rule beginning on Feb. 24, anecdotal reports indicate that the administration has already been applying these standards in its visa adjudications for several months. 

While these expanded public charge guidelines remain controversial and the subject of ongoing litigation, they are here to stay – at least for the time being. Employers and individuals should be aware that these new guidelines will apply to all employer-sponsored categories, are likely to result in further delays in visa adjudications, and could result in the denial of visa applications due to the subjectivity of the new determination process. 

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 55


About this Author

Tejas Shah Immigration Lawyer Barnes & Thornburg Chicago

Tejas Shah has the ability to take the complex and confusing nature of immigration law and simplify it for his clients. His goal is to not only help them comply with the multifaceted requirements of U.S. immigration law, but also to ensure that as clients source global talent, they thrive in environments that can be hostile to migration.

As employers increasingly seek to hire and retain talented foreign national employees to maximize competitiveness, Tejas is empathetic to their needs and offers practical immigration law advice. He is committed to guiding employers of all sizes –...

Mercedes Badia-Tavas Immigration Attorney

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her practice today to her dedication to resourcefulness from years of experience, meticulous preparation and organization skills. This entails a thorough understanding of her client’s industry, operations, culture, practices and financial goals in order to lay out realistic expectations and alternative strategies, as needed. Mercedes believes in being organized in her approach and documentation as a way of helping her clients manage costs. She and her team are committed to employing systems-driven tracking, timely updates and follow-ups with clients, and being pragmatic when unexpected issues arise.

Mercedes advises on a range of employment-based immigration needs, including temporary (nonimmigrant) and permanent (immigrant) visas for executives, managers, investors, professionals, aliens of extraordinary ability, and essential, specialized and skilled workers. She works hand-in-hand with clients on their corporate global mobility policies and compliance documentation regarding sponsoring foreign nationals for employment-based visa classifications. She is regularly involved in I-9 Employment Eligibility Verification (EEV) and H-1B Labor Condition Application compliance.

Mercedes also provides in-house and on-site training on immigration planning for personnel transfers, immigration-related due diligence for mergers and acquisitions, consular applications, and naturalization and citizenship initiatives. She guides clients through internal immigration program administration and monitoring, and trains human resource personnel and other managers on the evolving areas of immigration law and practical integration of immigration policies, procedures and compliance statutes to everyday business operations.

Born in Cuba and bilingual in Spanish and English, Mercedes has sincere compassion for and sensitivity to her clients, keenly aware of the legal land mines and tedious pathways they would navigate through the U.S. immigration system. Whether Mercedes is advising on an immigration matter for an individual relocating from abroad, transferring within the U.S. from another employer, entering the U.S. workforce from student status, looking to build a U.S. business or someone part of a cultural exchange program, she provides her experience with the same strong zeal and commitment toward the best outcome.

Notably, Mercedes has been featured on NPR and Spanish-language broadcasts on immigration topics, many of which included audience call-ins. Prior to joining Barnes & Thornburg, Mercedes had built her own legal practice over nine years as the founding partner of Badia-Tavas Law Group, representing similar categories of clients she now services, with a little more individual and family-type immigration cases involved. She has traveled and lived throughout Latin America.

Michael Durham Immigration Attorney Barnes & Thornburg

Michael Durham has been practicing immigration law exclusively for the past 17 years. Michael’s focused experience allows him to guide his clients through the complex and constantly changing labyrinth of immigration laws and regulations.

Michael’s knowledge and understanding of immigration laws and critical insight into the immigration process qualifies him to represent businesses, employers and individuals alike with a wide range of immigration-related needs and services.

He assists employers, including hospitals, colleges and universities, technology companies, religious...

Mayra L. Bruno Staff Attorney Chicago Immigration and Global Mobility Services  Labor and Employment
Staff Attorney

Mayra works directly with corporate clients, human resources contacts and foreign nationals on virtually all aspects of immigration matters.

She drafts and edits forms and letters of support for immigrant and nonimmigrant visa matters, including EB-1A, EB-2, EB-3, E-3, EAD/AP, H-1B, I-140, L-1A, O-1, adjustment of status, extensions, Program Electronic Review Management (PERM) labor certification applications, and Requests for Evidence (RFEs). She also reviews and processes incoming documents and manages active cases of foreign nationals employed in the United States.