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Supreme Court Allows Public Charge Rule to Go Into Effect

The USCIS published a public charge rule in the Federal Register on Aug. 14, 2019 (and corrections on Oct. 2, 2019). For a summary, see the USCIS Fact Sheet and our firm’s client alert. Those rules were challenged in federal court.

But 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.

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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