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Public Charge Litigation Update: Court of Appeals Stays Order Vacating DHS Public Charge Rule Nationwide

U.S. Court of Appeals for the Seventh Circuit (Nov. 3, 2020)

On November 3, 2020, the Seventh Circuit issued an administrative stay of the decision by the U.S. District Court for the Northern District of Illinois to vacate the DHS Public Charge Final rule pending an appeal. The stay is effective immediately. Accordingly, adjustment of status applications must be filed with the Form I-944.

U.S. District Court for the Northern District of Illinois Summary Judgment (Nov. 2, 2020)

On November 2, 2020, the district court in Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334), granted summary judgment in favor of Plaintiffs on their claim that DHS’s Public Charge Rule violates the Administrative Procedure Act (“APA”). The district court specifically ruled that (1) the public charge exceeds DHS’s authority under the public charge provision of the INA § 212(a)(4)(A); (2) is not in accordance with law; and (3) is arbitrary and capricious. Therefore, the court immediately set aside the DHS Public Charge Rule nationwide without staying its decision pending appeal.

DHS may not apply the public charge rule as of Nov. 2, which includes the submission of Form I-944 and the information contained therein.

As of this time, USCIS has not posted any guidance on implementation of the order on its website. Our firm will continue to monitor the situation and post any updates here.

U.S. Court of Appeals Order (Sept. 11, 2020)

A Sept. 11, 2020 court decision allows the U.S. Department of Homeland Security (DHS) to resume implementing the Inadmissibility on Public Charge Grounds Final Rule nationwide. The decision stays an earlier injunction that prevented DHS from enforcing the rule.

Therefore, DHS has announced that it will apply the public charge final rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions. The Form I-944, Declaration of Self-Sufficiency, and supporting evidence is required for applicants filing Form I-485, Application to Adjust Status. Beginning Oct. 13, 2020, an I-485 received without I-944 will be rejected. Prior to Oct. 13, an I-485 received without I-944 can still be accepted, and USCIS will later request the missing I-944.

For more, see the public charge Final Rule (PDF). And see the related guidance in the Policy Manual, Volumes 28 and 12.

U.S. Court of Appeals Order (Aug. 12, 2020)

On Aug. 12, the U.S. Court of Appeals for the Second Circuit in the cases of of State of New York v. DHS and Make the Road New York v. Cuccinelli ordered that the injunction entered by the District Court on July 29 is stayed with respect to all states other than those within the Second Circuit: Connecticut, New York, and Vermont.

That order essentially revives the DHS 2019 public charge rule discussed below everywhere but the Second Circuit.

DHS, which has enforced the immigration restrictions since February, had quickly asked the Second Circuit to pause the District Court’s ruling to “preserve that status quo.” The nonprofits and states challenging the policy, however, had urged the Second Circuit to preserve the nationwide injunction,
arguing that they are likely to ultimately win their case.

DHS has not yet announced what steps they will take to implement the Second Circuit’s ruling.

The Second Circuit’s ruling does not appear to impact the District Court’s July 29 ruling in the related case of Make the Road New York v. Pompeo regarding the State Department’s public charge rules.

U.S. District Court Order (July 29, 2020)

On July 29, 2020, the U.S. District Court for the Southern District of New York, in the cases of State of New York v. DHS, Make the Road New York v. Cuccinelli, and Make the Road New York v. Pompeo, issued nationwide preliminary injunctions prohibiting the government from enforcing 2019 rules related to the public charge ground of inadmissibility.

The judge, George Daniels had found that the public charge rules, which allow the government to refuse green cards to low-income immigrants, deters them from seeking COVID-19 testing and could threaten efforts to curb the spread of the disease.

The rules which the injunction forbids the government from enforcing include:

  • The Presidential Proclamation requiring immigrant visa applicants to prove to the State Department either that they will have an approved health insurance policy or that they have the financial resources to pay reasonably foreseeable medical costs.

The U.S. District Court’s injunction is not the judicial branch’s last word on the legality of the USCIS and DOS public charge rules. An interlocutory appeal has been filed with the U.S. Court of Appeals for the Second Circuit. And the case may well go the the U.S. Supreme Court (again).

DHS Response

Accordingly, USCIS has announced while the injunction is in force USCIS will not apply the 2019 public charge rules, will not require submission of the Form I-944 (Declaration of Self-Sufficiency), and will instead apply the prior rules issued in 1999.

[The Court] enjoined the Department of Homeland Security (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 the July 29, 2020, SDNY decision is in effect, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020 to the adjudication of any application for adjustment of status on or after July 29, 2020. In addition, USCIS will adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition.

For applications and petitions that USCIS adjudicates on or after July 29, 2020, pursuant to the SDNY injunction, USCIS will not consider any information provided by an applicant or petitioner that only relates to the evidence required by the Public Charge Rule, including information provided on the Form I-944 or any supporting documentation included with that form, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A,  Part 6 on Form I-129, or Part 6 on Form I-129CW, or any additional documentation pertaining to the public benefit condition. Applicants and petitioners whose applications or petitions are 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, Form I-129CW, Form I-539, or Form I-539A.

USCIS will issue guidance regarding the use of 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 Part 6, or Part 5, respectively, has been completed or left blank.

In any public charge inadmissibility determination, USCIS will consider the receipt of public benefits consistently with prior public charge guidance – the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. (PDF, 77.92 KB) 

DOS Response

The State Department explained in an Aug. 7 update that while the injunction is in effect applicants need not submit the Form DS-5540 (Public Charge Questionnaire).

The Department is complying with the court’s order and is in the process of updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders.  Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled.  Applicants are not required to complete nor should they present the DS-5540, Public Charge Questionnaire.

Jan. 2020 Supreme Court Decision

Back on Jan. 27, 2020, 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.

In the wake of the Supreme Court decision, USCIS has announced that the public charge rules will apply to Forms I-485, Applications to Adjust Status, postmarked on or after Feb. 24, 2020. Applicants will be required to submit a new Form I-944, Declaration of Self-Sufficiency.

To stay in alignment with the USCIS rule, the U.S. Department of State (DOS) has published its own public charge rule, applicable to visa applicants. (Oct. 11, 2019 Rule). On Feb. 20, 2020, DOS announced that they too will make the new public charge rules effective Feb. 24, 2020. Immigrant visa applicants with interviews on or after that date will be asked to complete a new Form DS-5540, Public Charge Questionnaire, and provide supporting evidence.

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.

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