New Public Charge Regulations on Hold for Applicants Applying Within U.S.

Although a court injunction is in effect, non-citizens seeking temporary or permanent U.S. residence are likely to face higher hurdles based on income and financial situation going forward.

** LEGAL UPDATE **

On October 15, 2019, new and extensive rules issued by the Department of Homeland Security (DHS) in August were scheduled to go into effect. Their contents included a new test to determine whether an immigrant applying to change or adjust their immigration status to a new temporary or permanent immigration status is likely to become a so-called "public charge" (dependent on public benefits; a longtime ground of inadmissibility).

Immigration advocates countered that the new rules were an effort to substantially reduce legal immigration in the U.S. and to penalize immigrants for using benefits to which they were legally entitled. They took the matter to court, in a case called Make the Road New York v. Cuccinelli. The suit claimed that the DHS had violated the Administrative Procedure Act with an arbitrary and capricious rulemaking, and that the rule is contrary to the Immigration and Nationality Act, the Rehabilitation Act, and the Fifth Amendment's Equal Protection principles.

Some key features of the new rules include a new definition of "public charge" as someone “more likely than not at any time in the future to receive public benefits" for more than 12 months in the aggregate within any 36-month period; an expanded list of programs that count as "public benefits"; use of a "multi-factor" test to assess the likelihood of becoming a public charge, such that a sponsor's Affidavit of Support will carry much less weight than it did before; added application form requirements requesting financial information; and the "opportunity" for applicants facing inadmissibility to file a public charge bond.

On October 11, 2019, the U.S. District Court for the Southern District of New York enjoined and restrained DHS and USCIS from "enforcing, applying, or treating as effective" this rule, stating that its new definition of "public charge" is "likely to be outside the bounds of a reasonable interpretation of the statute." The court specifically ordered the government to hold back on requiring new or updated forms as was planned under the rule, including:

  • Form I-129, Petition for a Nonimmigrant Worker
  • Form I-485, Application to Register Permanent Residence or Adjust Status
  • Form I-539, Application To Extend/Change Nonimmigrant Status
  • Form I-864, Affidavit of Support Under Section 213A of the INA or I-864EZ
  • Form I-944, Declaration of Self-Sufficiency (not yet available), or
  • Form I-945, Public Charge Bond (not yet available).

This is largely good news for foreign nationals in the process of applying for visas or U.S. residence, as they won't be delayed awaiting issuance of the planned new application forms, and will in theory be treated under the old guidelines while their applications are being processed.

But the matter might not be as clear as all that. For starters, DHS has always had a fair amount of discretion in deciding whether an applicant is a likely public charge. The agency might simply behave more harshly to applicants going forward, without actually citing the new rules. And there's no question that immigrants are already in fear, and avoiding use of public benefits even when in need and entitled to them.

Secondly, reports have it that the State Department (a separate agency, which was not named in the lawsuit) plans to ignore the injunction. It has already drafted its own set of new rules (open to public comment until November 11, 2019), which track DHS's. That means immigrant and nonimmigrant visa applicants coming from abroad will need to contend with new rules.

Also, of course, a court injunction is only temporary, pending its final decision. Stay tuned for further updates on this topic.

Effective Date: October 11, 2019