DHS Blocked From Enforcing New Public Charge Rule During COVID-19 Pandemic

On July 29, 2020, the U.S. District Court for the Southern District of New York issued an injunction immediately blocking the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from enforcing the Trump administration’s new public charge rule during the COVID-19 pandemic. The district court found that the extraordinary circumstances surrounding the pandemic warranted temporary relief and that the public charge rule impeded the nation’s efforts to mitigate the effects of the COVID-19 pandemic. The injunction’s scope is limited in duration, covering “any period during which there is a declared national health emergency in response to the COVID-19 outbreak.”

Two subsequent federal appellate court decisions were also released dealing with injunctions based on the public charge rule’s overall legality, notwithstanding the COVID-19 pandemic:

• On August 4, 2020, the U.S. Court of Appeals for the Second Circuit upheld an earlier nationwide injunction but limited its applicability to residents of states within the Second Circuit (New York, Connecticut, and Vermont).
• On August 5, 2020, the U.S. Court of Appeals for the Fourth Circuit reversed a nationwide injunction by a district court in Maryland, causing a split between the federal circuit courts.

These subsequent appellate decisions deal with the broader issue of whether the Trump administration may implement the new public charge rule as a general matter but do not impact the temporary injunction that is in place during the COVID-19 pandemic.

What Is the Public Charge Rule?

DHS originally promulgated the public charge rule on August 14, 2019. The rule went into effect on February 24, 2020, following a preliminary injunction on October 11, 2019, which the Supreme Court of the United States ultimately stayed.

As we previously noted, the final public charge rule was “intended to formalize the way in which DHS determines if an individual applying for a nonimmigrant visa or adjustment of status (to obtain a green card) is likely to become a public charge” if allowed to enter or remain in the United States—“a determination that would generally make the person inadmissible to the United States.” The rule defines “public charge” as an alien who receives one or more certain public benefits for more than 12 months in the aggregate within any 36-month period. The rule applies only to public benefits received on or after February 24, 2020.

Since the rule went into effect, adjustment of status (i.e., green card) applicants have been required to submit the new Form I-944, which requires submission of substantial documentation, including information related to household income and assets, debts and liabilities, credit history, use of public benefits, education level, and health insurance. In addition, nonimmigrant visa applicants seeking to change or extend their status have been required to make attestations regarding their receipt of certain public benefits.

What Is the Impact of the Recent Federal Court Rulings on the Public Charge Rule?

Pursuant to the district court’s COVID-19–related injunction, DHS is blocked from applying the public charge rule nationwide to applications and petitions adjudicated on or after July 29, 2020, and through any period of a declared COVID-19 national health emergency. Petitioners submitting applications on or after July 29, 2020, need not include the Form I-944 or supporting documents, or provide information regarding receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A. USCIS will instead adjudicate such petitions and applications consistent with the public charge guidance in place before the new rule took effect.

Citing the changed national circumstances caused by the COVID-19 pandemic, the district court determined that “the irreparable harm and public interests that warrant an injunction have come into sharper focus in the intervening months since the Supreme Court issued its [initial] stay.” The court based its decision on evidence provided by the plaintiffs that the public charge rule “deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts … to stem the spread of the disease.”

The split decisions between the Second Circuit Court of Appeals and the Fourth Circuit Court of Appeals do not impact the enforceability of the COVID-19–related injunction, as long as the country remains in a declared national health emergency.

Ogletree Deakins’ Immigration Practice Group will monitor developments with respect to these and other policy changes and will post updates on the Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.