immigration updates: September 8, 2026

more public charge, more petulance

They’re checking on your credit . . .

Late on August 31, US Citizenship and Immigration Services (USCIS) released new editions of the Affidavit of Support—Forms I-864, I-864A and I-864EZ. These forms are used to show that an intending immigrant has adequate financial support and is unlikely to depend on government assistance. Although the new forms largely resemble their predecessors, they authorize USCIS to obtain information, including credit reports and scores, about a financial sponsor from consumer-reporting agencies.

USCIS initially provided no grace period: filings submitted from August 31 were required to include the new editions. The abrupt change caused considerable disruption. Affidavits of support can require extensive financial information and supporting documents, particularly when a household member or joint sponsor is involved. The rollout also came amid increased scrutiny of financial sponsorship and the public-charge ground of inadmissibility.

On September 3, the American Immigration Lawyers Association and an immigration law firm filed a complaint in the US District Court for the District of Columbia. They alleged that the immediate change violated the Administrative Procedure Act and the Paperwork Reduction Act. The next day, USCIS reversed course and announced that the previous editions could be used through September 30. From October 1, USCIS will treat an outdated affidavit as missing initial evidence: rather than rejecting the entire application at the mailroom, it will accept the filing and request the new form. All of which it could have done up front, precluding the need for a very predictable lawsuit.

. . . and your benefits.

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), the welfare-reform law enacted in 1996, requires a state participating in Temporary Assistance for Needy Families (TANF), or in certain arrangements involving Supplemental Security Income (SSI), to notify federal immigration authorities when “the State knows” that someone is unlawfully present.

In 1988, the Department of Justice’s Office of Legal Counsel (OLC) interpreted this requirement to apply only to the state agencies actively administering the programs, and not all state agencies. Last week, the OLC withdrew this interpretation, stating that the reporting duties of all component agencies extended to TANF and SSI income.

How this shakes out will be interesting. The Department of Justice has warned that future non-compliance could jeopardize federal funding. OLC also rejected the view that an agency can have the necessary knowledge only after a formal immigration determination. Its opinion gives examples of information that may establish knowledge, but it does not supply a complete operating procedure for state agencies.

OLC opinions bind the executive branch, not states or courts directly. Federal agencies must now translate the interpretation into grant agreements, reporting procedures and compliance guidance. Until that happens, state governments, service providers and non-citizens should distinguish OLC’s legal interpretation from the specific procedures, data-sharing systems and enforcement timelines that may eventually follow.

Birthright citizenship wins another round (for now).

In June, the Supreme Court held that children born in the U.S. to parents, without legal status, are U.S. citizens: invalidating the Trump Administration’s executive order seeking to deny them citizenship. The Administration very shortly thereafter published another order targeting a somewhat narrower class of individuals, focusing on instances of purported “birth tourism” and other circumstances.

In response, the same plaintiffs who challenged the first order duly challenged the new one, and the District of Maryland held that the Administration cannot enforce the order until the new round of litigation concludes. The court found that the Administration is likely to lose in the end, as the group of people targeted in this order is basically the same as the first order: which was held to be unlawful. Meanwhile, litigation of the new order will continue through the federal court system until likely landing back at the Supreme Court.

DOL begrudgingly agrees to revise it’s H-2A adverse wage rate. Maybe.

The H-2A program allows farms to hire temporary foreign workers when sufficient US workers are unavailable. To prevent this from depressing domestic wages, employers generally must pay at least an Adverse Effect Wage Rate set by the Department of Labor. DOL cannot randomly pick a number: its methodology must be reasonably designed to protect the wages of similarly employed US workers.

Last year, DOL adopted an interim methodology that substantially changed how it calculated these rates. Among other things, it replaced a farm-specific wage survey with data that largely excluded workers employed directly by farms, placed an estimated 92% of H-2A jobs in a lower wage tier, and reduced wages to reflect the value of employer-provided housing. Most of these changes took effect without the usual notice-and-comment process.

On August 26, the US District Court for the Eastern District of California held the methodology unlawful and ordered DOL to develop and publish a replacement promptly. To avoid leaving the programme without an operative wage floor, however, the court allowed the existing rates to remain in force temporarily.

In a responselikely written by a first-year law student, DOL did not concede that its methodology was unlawful, waive its right to appeal, or accept that employers would ultimately owe back wages. It nevertheless said that it would develop and publish a replacement methodology. It also warned employers that wages paid from September 2 until the replacement rates are published might later have to be adjusted if the new rates are higher. For now, employers must continue paying the existing rates and preserve the records needed to calculate and deliver any eventual adjustment.

Pass a new law already

There are 1.2 million people who have been sponsored by a U.S. employer that remain waiting in line for an employment-based green card, largely due to the fact that we last capped the number of visas available back in 1990 and are incapable of conducting any effective lawmaking on this topic.

This newsletter is for general information only and is not legal advice. Consult an attorney about your specific situation.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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