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Family Immigration

Jan. 27 Update: Chaos in Implementing the USCIS/DOS Public Charge Rules and Presidential Proclamation Requiring Health Insurance

President Trump and an adviser, Stephen Miller, have cooked up new public charge rules, subsequently issued by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS), as well as a Presidential Proclamation requiring immigrant visa applicants to buy health insurance.

Implementation has been chaotic, and these rules have been challenged in court. This article explains the status of each initiative.

USCIS Public Charge Rule

The USCIS public charge rule was published in the Federal Register on Aug. 14, 2019. USCIS then published corrections on Oct. 2, 2019. For a summary, see the USCIS Fact Sheet and our firm’s client alert.

On Jan. 27, in a 5-4 decision, the Supreme Court granted the Trump administration’s request for a stay of the U.S. Court of Appeals for the Second Circuit’s nationwide injunction against the public charge rule, thereby allowing the rule to go into effect nationwide except for in Illinois, where a statewide injunction against the rule remains in effect. AILA Director of Federal Litigation Jesse Bless said, “The rule will undoubtedly result in the separation of tens of thousands of families seeking to reunite in the United States.” AILA anticipates that DHS will issue a notice of when the agency will begin implementing the public charge regulation.

Prior to the Supreme Court ruling, litigation had temporarily blocked USCIS implementation of its rule.

  • U.S. District Court for the Northern District of Illinois: On Oct. 14, 2019, the court issued a preliminary injunction applicable in Illinois, valid until further order of the court.
  • Second Circuit: On Oct. 11, 2019, the U.S. District Court for the Southern District of New York issued a nationwide injunction against implementing and enforcing the final rule, postponing the effective date of the final rule. Then, on Jan. 8, 2020, on appeal to the Court of Appeals for the Second Circuit, a panel of judges refused to stay the injunction, ordering an expedited briefing schedule to be completed by Feb. 14, 2020, after which oral arguments were to be scheduled. The Supreme Court stayed that injunction.
  • Fourth Circuit: On Dec. 9, 2019, the Court of Appeals for the Fourth Circuit lifted an injunction blocking the USCIS rule issued by a federal judge in Maryland.
  • Ninth Circuit: On Dec. 5, 2019, the Court of Appeals for the Ninth Circuit lifted injunctions blocking the USCIS rule issued by federal judges in Oakland, CA, and Spokane, WA. The panel, split 2-1, said the Trump administration is likely to prevail on the merits of the case.
  • For detailed information, see this litigation tracker.

DOS Public Charge Rule

To stay in alignment with the USCIS rule, the U.S. Department of State has published its own public charge rule, applicable to visa applicants. (Oct. 11, 2019 Rule).

The State Department has posted to its website an Oct. 24, 2019, message that the Office of Management and Budget is currently reviewing a new Form DS-5540, Public Charge Questionnaire to be used in implementing this rule. Until that review is complete:

Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled.

Proclamation Requiring Health Insurance

On Oct. 4, 2019, President Trump issued a proclamation suspending issuance of immigrant visas to applicants who lack either U.S. health insurance or substantial assets to cover their health expenses. For a summary, see our firm’s client alert.

The State Department’s website explains the requirements for the interview:

During the visa interview, applicants should be able to demonstrate to the satisfaction of the consular officer that they have the financial resources to pay for reasonably foreseeable medical costs or will have approved health insurance from the list above within 30 days of entry into the United States.  Officers will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed. Prior to the visa interview, applicants may wish to review costs and eligibility requirements for approved health insurance plans or consider how they would pay for the reasonably foreseeable medical costs of any current medical condition they may have.   

On. Nov. 2, 2019, the U.S. District Court in Portland, Oregon, in the case of Doe v. Trump issued a month-long temporary restraining order (TRO) stopping the federal government from implementing the policy.

Then, on Nov. 26, 2019, the district court issued a preliminary injunction stopping the government from implementing the policy until the case is decided on its merits.

On Dec. 20, 2019, a panel of the U.S. Court of Appeals for the Ninth Circuit voted 2-1 to deny the government’s emergency request for a stay of the district court’s order. The Ninth Circuit panel has scheduled argument on January 9, 2020, to consider the government’s non-emergency request for a stay.

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