Federal court halts implementation of the public charge rule

The implementation of the public charge rule has been halted by a federal court injunction issued on July 29, 2020. The decision in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al. enjoined the Department of Homeland Security, or DHS, from enforcing, applying, implementing, or treating as effective the Inadmissibility on Public Charge Grounds Final Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. As long as this injunction and the national health emergency are in effect, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented to adjustment of status applications, and will not apply the public benefit condition when adjudicating any application or petition for extension of nonimmigrant stay or change of nonimmigrant status.

For applications and petitions that USCIS adjudicates on or after July 29, 2020, USCIS indicates that it will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits on Forms I-539, I-539A or I-129. Applications and petitions postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A. USCIS indicated that it will not reject any forms on the basis of the inclusion or exclusion of Form I-944, or whether the affected sections of forms have been completed or left blank. The agency has removed public access to that section of the USCIS Policy Manual implementing the new public charge rule and has also removed access to the I-944.

In a separate injunction issued by the same court, the Department of State is prohibited from applying its public charge rule to immigrant and nonimmigrant visa applications. The basis for this injunction is that the agency’s regulation was arbitrary and capricious and violates the statute.

The government has sought a stay of these recent injunctions in the Second Circuit. That appellate court affirmed two other injunctions issued by the lower court in October 2019 that prohibited the DHS from implementing the new public charge rule, although the appellate court narrowed the scope of these injunctions. But those October injunctions are currently stayed by the Supreme Court while the cases are on appeal.

Thank you to CLINIC for this update.