Public Charge Rules Put on Temporary Hold During Pandemic by Federal Court

Manhattan federal court issues two nationwide injunctions temporarily blocking the Trump Administration's "public charge" rules concerning immigrant inadmissibility.

** LEGAL UPDATE **

The Trump administration's amended (and stricter) rules concerning who is inadmissible to the U.S. as a likely public charge have caused not only concern among would-be immigrants in the U.S. and abroad regarding their immigration prospects, but fear that seeking health care and related benefits will directly result in a public charge finding.

Immigrant rights' attorneys brought a lawsuit on this very ground. A Manhattan federal court recently issued two nationwide injunctions blocking the rules at least temporarily, during the period that the pandemic is considered a national health emergency.

The injunctions were issued against both the Department of Homeland Security (DHS) and the Department of State (DOS), each of which have written their own, slightly differing set of regulations concerning the definition of a public charge. The court's injunction will prevent these agencies from enforcing, applying, implementing, or treating as effective the new public charge rule during the COVID-19 outbreak.

Although the Administration itself had issued assurances that use of health care for coronavirus-related purposes would not be considered a negative when weighing the factors considered in a public charge finding, the court found that this was tantamount to an admission that the rules were injurious to people and not crucial to follow.

Where does that leave applicants? Public charge itself remains a ground of inadmissibility. According to U.S. Citizenship and Immigration Services (USCIS) guidance issued subsequent to the injunctions on July 31, they will analyze cases based on the policy used starting in 1999.

Then, the focus of government concern was whether the immigrant's petitioner had supplied an Affidavit of Support (I-864) that showed sufficient income to support the immigrant. This recent guidance also states that applicants don't need to fill out the extra form recently added to the process by USCIS, namely Form I-944.

What's more, applicants in the U.S. need not fill in the requested information about the receipt of public benefits when filling out Form I-485, Form I-129, or Form I-539/I-539A.

We are still waiting to hear guidance from the DOS, but presumably it will similarly remove Form DS-5540 from the list of those required.

Nevertheless, this administration has a tendency to ignore court orders, and there's a degree of subjective analysis involved in the public charge determination. It would be wise to assume nothing until official guidance comes out and lawyers report back on how the public charge determination is actually being made now.

Effective Date: July 29, 2020