November 5, 2020 update:
On Wednesday, November 4, 2020, the Seventh Circuit Court of Appeal stayed the lower court’s order. Therefore Public Charge is back in effect for now.
November 3, 2020 update:
On Monday, November 2, 2020, the U.S. District Court for the Eastern District of Illinois vacated the administration’s Public Charge rule and denied the government’s request to stay the judgment pending appeal. The USCIS may not require Forms I-944 going forward on a nation-wide basis. As of this writing, USCIS’s website has not been updated to reflect compliance with the order.
September 22, 2020 update:
On September 22, 2020, USCIS posted implementation instructions for its Public Charge rule. Any Adjustment of Status cases that were filed after February 24, 2020, will receive a Request for Evidence for the Form I-944 and relevant supporting documents. Any Adjustment of Status cases filed after October 13, 2020, without the Form I-944 and supporting documents, will be rejected.
September 14, 2020 update:
On Friday, September 11, 2020, the Second Circuit Court of Appeals lifted the injunction; it is not clear how or when USCIS will re-implement rule.
August 14, 2020 update:
The injunction is now limited to cover only certain states (namely New York, Connecticut, and Vermont); however, USCIS and the Department of State have not announced if and how they will implement the rule.
August 10, 2020 update:
Despite news articles to the contrary regarding several Circuit Court rulings, the national-wide injunction as described below remains in place.
August 7, 2020 update:
The Department of State (DOS) has now posted on its website that it will comply with the injunction and is in the process of updating its guidance to consular officers. While guidance is being updated, visa applications that appear to be ineligible based on the public charge grounds of inadmissibility will be “refused” for administrative processing to allow for consultation with DOS. Applicants are not required to complete nor present the DS-5540 Public Charge Questionnaire.
Original post:
On July 29, 2020, the U.S. District Court for the Southern District of New York issued two nationwide injunctions preventing the Department of Homeland Security (DHS) and Department of State (DOS) from implementing and enforcing the administration’s USCIS and DOS public charge rules and policies.
The injunction issued against DHS prevents DHS from enforcing, applying, implementing, or treating as effective its public charge rule that was implemented on February 24, 2020 (and outlined in our blog post here) as long as there is a declared national health emergency in response to the COVID-19 pandemic. (The Secretary of Health and Human Services declared a public health emergency on January 31, 2020.) The ruling came after the plaintiffs successfully argued that the DHS public charge rule has had a chilling effect on foreign nationals seeking health care and other benefits during the COVID-19 pandemic.
USCIS announced that as long as the injunction is in effect, it will not apply the Public Charge Rule implemented on February 24, 2020 for any applications and petitions USCIS adjudicates on or after July 29, 2020. Instead, USCIS will apply prior public charge guidance. Any information and documentation previously provided on Form I-944 Declaration of Self Sufficiency (for the green card process) or the receipt of public benefits (for nonimmigrant status) will not be considered. In addition, the detailed information and evidence is need not be provided for applications or petitions going forward, again while this injunction is in place. USCIS has indicated that additional guidance will be forthcoming.
The injunction issued against DOS in a separate case prevents DOS from implementing, enforcing, or applying its public charge rule as well as the administration’s Health Care Proclamation that required visa applicants to show proof of private health insurance. This was the first decision fully addressing these policies, and the court’s decision enjoined those policies indefinitely. As of this writing, DOS has not made an announcement on its website regarding the injunction. Many U.S. Embassies and consulates remain closed or on very limited operations due to the ongoing pandemic.
© Jewell Stewart & Pratt PC 2020