Second Circuit Limits Scope of Injunction on Public Charge Rule to Connecticut, New York, and Vermont

On August 12, 2020, the United States Court of Appeals for the Second Circuit limited the scope of a nationwide injunction that had blocked the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from implementing and enforcing the Inadmissibility on Public Charge Grounds final rule (commonly called the “public charge rule”) during the COVID-19 pandemic. The decision, which came only days after a series of recent federal court decisions on the controversial rule, restricts the scope of the nationwide injunction to only those states under the jurisdiction of the Second Circuit.

As we previously noted, the July 29, 2020, injunction issued by the U.S. District Court for the Southern District of New York blocked the DHS and USCIS from “enforcing, applying, implementing, or treating as effective” the public charge rule on a nationwide basis in “any period during which there is a declared national health emergency in response to the COVID-19 outbreak.”

The appellate court stayed the nationwide injunction and limited its scope to the Second Circuit states of Connecticut, New York, and Vermont. While the injunction remains in place, residents within those states do not need to include Form I-944 or supporting documents or provide detailed information regarding the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A. USCIS will adjudicate such petitions and applications by residents of Connecticut, New York, and Vermont consistent with regulations and guidance in place before the public charge rule was promulgated.

The Second Circuit Court of Appeals’ new order, coupled with other federal court rulings over the past two weeks, means that—for now—the public charge rule remains in place and applicable to residents of all other states. However, the recent flurry of federal court activity on the public charge rule has created uncertainty regarding the enforceability of the rule and whether applicants residing outside the states of the Second Circuit will be required to submit Form I-944 and information concerning their receipt of public benefits. As of August 19, 2020, the USCIS website indicates that the July 29, 2020, injunction during the COVID-19 pandemic is in effect and that such documentation is not required for any case, causing confusion regarding how applicants should proceed.

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.