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Chapter 4 - Extension of Stay and Change of Status

Alert

On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.

Therefore, we will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. If you send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date.

For information about the relevant court decisions, please see the public charge injunction webpage.

A. Nonimmigrants Seeking Extension of Stay or Change of Status

Generally, certain nonimmigrants present in the United States admitted for a specified period of time may request an extension of their admission period in order to continue to engage in those activities permitted under the nonimmigrant classification in which they were admitted.[1]

Also, certain nonimmigrants present in the United States may seek to change their status to another nonimmigrant classification if certain requirements are met.[2]

An application for an extension of stay (EOS) or change of status (COS) is generally filed on a Petition for a Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539),[3] depending upon the nonimmigrant classification the applicant seeks to extend or change.[4]

B. Public Benefits Condition[5]

The public charge ground of inadmissibility does not apply to nonimmigrants seeking either an EOS[6] or a COS[7] in the United States. [8] 

However, to ensure that nonimmigrants remain self-sufficient while present in the United States,[9] applicants seeking EOS and COS are subject to the public benefits condition, unless the status the applicant seeks to extend or to which they seek to change, is statutorily exempt from the public charge ground of inadmissibility. [10]

The public benefits condition requires an applicant seeking EOS or COS on or after February 24, 2020 (postmarked or if applicable, submitted electronically on or after that date) to demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits,[11] for more than 12 months in the aggregate within any 36-month period (where, for instance, receipt of two public benefits in 1 month counts as 2 months). USCIS only considers public benefits received on or after February 24, 2020 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.[12]

The officer should review the information provided with the application or petition, as well as the information contained in the file and systems, to determine whether there is any indication that the alien has received, since obtaining the nonimmigrant status he or she seeks to extend or change from, any of the listed public benefits. An officer may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) as needed, in accordance with current USCIS policy.

1. Exemption[13]

This public benefits condition does not apply if:

  • The nonimmigrant classification the alien seeks to apply for, extend, or change to, is exempt from the public charge inadmissibility ground by law or regulation;[14]

  • The public charge ground of inadmissibility has been waived for purposes of the nonimmigrant status that the alien seeks to extend or from which the alien seeks to change; or

  • The applicant filed the request for EOS or COS before February 24, 2020 (postmarked date).

For a list of aliens subject to the public charge condition at the time of the application or petition for EOS or COS, refer to Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.

2. Evidence

If the public charge condition applies, the applicant must demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits, for more than 12 months in the aggregate within any 36-month period.[15] If the applicant has received, since having obtained the nonimmigrant status, one or more public benefits for more than 12 months, in the aggregate, within any 36 month period, USCIS must deny EOS or COS, even if the applicant otherwise meets the requirements of the nonimmigrant classification.[16]

The officer should review the statements and documentation provided in the Form I-539 or Form I-129 to determine whether the alien has received public benefits in excess of the regulatory threshold.[17] If the applicant has been certified to receive public benefits in excess of the threshold at the time of filing of the application or petition but had not yet received the benefits, the officer must review whether the applicant has received more than 12 months of public benefits at the time the application or petition is adjudicated and finalized.

3. Decision

Denial

If the alien seeking COS or EOS has received public benefits at the time of adjudication exceeding the threshold limitation, the officer should deny the EOS or COS request for lack of eligibility based on not meeting the public benefits condition.

Approval

If the alien seeking EOS or COS has not received public benefits exceeding the threshold, the officer must continue to review all other requirements to determine whether the applicant is eligible for the nonimmigrant classification requested or the EOS or COS request.

C. Step-by-Step Overview: Determining Whether Applicant Meets Public Benefits Condition

The following is an overview of the steps an officer should take to determine whether the alien meets the public benefits condition.[18]

Step-by-Step Overview: Determining How to Apply Public Benefits Condition

Step

If yes, then…

If no, then…

Step 1: Determine whether the application or petition was postmarked on or after February 24, 2020.

Proceed to Step 2.

The public benefits condition does not apply – proceed with the EOS or COS adjudication.

Step 2: Determine whether the nonimmigrant classification the alien seeks to extend or change to, is exempt from the public charge ground of inadmissibility or whether the alien received a waiver of the public charge ground of inadmissibility for the nonimmigrant classification.

The public benefits condition does not apply – proceed with adjudication of the EOS or COS request.

Proceed to Step 3.

Step 3: Determine whether the alien seeking EOS or COS received public benefits on or after February 24, 2020 in excess of 12 months, in the aggregate, within any 36-month period after the alien obtained the nonimmigrant status he or she seeks to extend or change from:

  • Review the responses to the public benefit receipt questions on Form I-539/I-539A or Form I-129/I-129CW; and

  • Review the file and available systems.

Deny the EOS or COS request for lack of eligibility based on the public benefits condition.

Proceed with the EOS or COS adjudication.

Footnotes


1. [^] See 8 CFR 214.1(a). See 8 CFR 214.1(c) for general requirements, such as those relating to passport validity and waivers of inadmissibility for an EOS. 

2. [^] See INA 248. See 8 CFR 248.

3. [^] See 8 CFR 214.1(c). The application should be filed in accordance with the form instructions.

4. [^] See Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition for a full list. The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form. Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) or Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) may also be filed where applicable.

5. [^] See 8 CFR 214.1(a)(3)(iv). See 8 CFR 248.1(a). See 8 CFR 248.1(c).

6. [^] See 8 CFR 214.1.

7. [^] See INA 248. See 8 CFR 248.

8. [^] See INA 212(a)(4).

9. [^] See 83 FR 51114 (PDF) (Oct. 10, 2018) (proposed rule). See 84 FR 41292 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction). See 8 CFR 213.1(a)(3)(iv). See 8 CFR 248.1(a). See 8 CFR 248.1(c).

10. [^] See 8 CFR 212.23.

11. [^] As described in 8 CFR 212.21(b). For a list of what public benefits USCIS considers, see Volume 8, Admissibility, Part G, Public Charge, Chapter 10, Public Benefits [8 USCIS-PM G.10]. For more on when an alien is deemed to have received public benefits, see Volume 8, Admissibility, Part G, Public Charge, Chapter 9, Assets, Resources and Financial Status, Section A, Standard, Subsection 8, Application for, Certified to Receive, and Receipt of Public Benefits [8 USCIS-PM G.9(A)(8)].

12. [^] See 8 CFR 214.1(a)(3)(iv) and 8 CFR 248.1(a).

13. [^] See Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.

14. [^] See 8 CFR 212.23.

15. [^] For example, the receipt of two public benefits in 1 month counts as 2 months.

16. [^] If the EOS or COS application or petition is denied, the alien must depart the United States and process the visa abroad where he or she will be assessed for public charge grounds of inadmissibility as part of the Department of State visa application process and upon entry into the United States.

17. [^] For more information on receipt of public benefits, see Volume 8, Admissibility, Part G, Public Charge, Chapter 9, Assets, Resources and Financial Status, Section A, Standard, Subsection 8, Application for, Certified to Receive, and Receipt of Public Benefits [8 USCIS-PM G.9(A)(8)].

18. [^] See 8 CFR 214.1(a)(3)(iv) (EOS). See 8 CFR 248.1(a) and 248.1(c)(4) (COS).

Appendices

Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition

Updates

POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. This guidance becomes effective October 2, 2020. For information affecting implementation, see our litigation summary.

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Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

POLICY ALERT - Implementation of Guidance on Inadmissibility on Public Charge Grounds

This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of aliens who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.

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POLICY ALERT - Public Charge Ground of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, see the appendices related to applicability.

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Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].