Trump Administration's Public Charge Rule Gone, After Biden Administration Withdraws Supreme Court Appeal

March 9, 2021 DHS announces that it will no longer attempt to push Trump-era public charge rules, which created a "wealth test" for immigrants, through the appeals court system. The new rule is on its way to being permanently vacated.

By , J.D.


One of the many anti-immigrant rules promulgated by the Trump administration was a major overhaul of its interpretation of who is inadmissible as a so-called likely "public charge." Although "public charge" has for decades given immigration authorities a reason to deny people visas and green cards, critics charged that the Trump rules were so harsh as to essentially create a wealth test for noncitizens seeking an immigrant visa (a green card) or even entry on a temporary, nonimmigrant visa.

Various lawsuits were filed in response to the new regulations, but the Department of Homeland Security (DHS) and Department of State (DOS) were nevertheless able to begin implementing them, at least in part, in late 2020 and early 2021. This involved, for example, requiring applicants for immigrant visas to fill out new forms, the I-944 (when adjusting status) and the DS-5540 (when consular processing).

In one of the major lawsuits, Make the Road New York v. Cuccinelli, plaintiffs claimed that the new rules violated the Administrative Procedure Act's prohibition on arbitrary and capricious rulemaking, and was contrary to the Immigration and Nationality Act, the Rehabilitation Act, and the Fifth Amendment's Equal Protection principles. Other lawsuits made similar allegations. Federal courts agreed. The administration appealed, however, which put Make the Road New York on a path to the Supreme Court.

In the meantime, Joe Biden was elected president. He immediately ordered a DHS review of the public charge rule. This led DHS to announce that it would no longer pursue appeals of court decisions invalidating or enjoining (blocking) the new rule's enforcement. As a result, all such appeals have been dropped, and the rule is on its way to being permanently vacated.

As soon as that happens, DHS plans to return to its 1999 interim field guidance on the public charge inadmissibility provision, and cease to require Form I-944. The DOS already stopped requiring Form DS-5540, per the various court injunctions.

Effective Date: March 9, 2021