Court Blocks Immigration Public Charge Rule Nationwide

On July 29, 2020 a federal court prohibited the Trump Administration from enforcing its 2019 public charge inadmissibility rules while there is a declared national public health emergency due to the COVID-19 outbreak.  The U.S. Department of Homeland Security (DHS) is prohibited from “enforcing, applying, implementing, or treating as effective”  its Inadmissibility on Public Charge Grounds Final Rule  (Public Charge Final Rule) and the  U.S. Department of State is similarly restricted from implementing and  enforcing its revised rules pertaining to public charge and health insurance coverage.

Notably, an August 4 ruling from the Second Circuit limiting a prior preliminary injunction to New York, Connecticut and Vermont does not impact the July 29 nationwide injunction.  While the July 29 nationwide  injunction remains in effect,  all adjustment of status applications and petitions/applications to extend or change nonimmigrant status will be adjudicated under the standards and rules in place prior to implementation of the Public Charge Final Rule on February 24, 2020.

USCIS has indicated that while the order is in effect:

• Adjustment of status applications (Form I-485) adjudicated on or after July 29, 2020 will be adjudicated under the 1999 public charge guidance. USCIS will not consider information or documentation that applicants provided on Form I-485 or in connection with  Form I-944, Declaration of Self-Sufficiency, in determining whether an individual is inadmissible as a public charge.
• Adjustment of status applicants whose I-485 applications are postmarked on or after July 29, 2020 and while the order is in effect are not required to include Form I-944 or associated documentation.
• USCIS will not apply the public charge condition to applications to extend or change nonimmigrant status filed on Form I-129, Petition for Nonimmigrant Worker, or Form I-539, Application to Extend/Change Nonimmigrant status,  filed on or before July 29, 2020.
• Form I-129 petitions and Form I-539 applications postmarked on or after July 29, 2020 should not include information regarding the receipt of public benefits.

USCIS intends to issue additional guidance regarding the use of the affected forms.  In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether the public benefits questions have been completed or left blank.

Background

As previously reported,  individuals seeing admission to the U.S. must show they are not likely to become a public charge. The Trump Administration’s Public Charge Final Rule dramatically expanded the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.  The rule has been the subject of ongoing litigation. In January 2020, the U.S. Supreme Court lifted prior nationwide injunctions, allowing the rule to take effect on February 24, 2020 while litigation on the merits proceeds.  The July 29 injunction stems from litigation challenging the rule in the context of the coronavirus pandemic and the concern that noncitizens  might forgo use of available health care, housing and food programs to the detriment of public health during the pandemic.  The Trump Administration is expected to challenge this latest injunction.

Gibney will continue to monitor this matter and provide updates as they become available. For additional information, please contact your designated Gibney representative or email.