Published on July 31, 2020, Updated on August 13, 2020
UPDATE – August 12, 2020
On August 12, 2020 The U.S. Court of Appeals for The Second Circuit limited its injunction on DHS public charge rules to within the Second Circuit (Connecticut, New York, and Vermont). The rule requires immigration officers to determine if prospective immigrants are likely to become a “public charge” of the government by analyzing their finances, age, educational skills, English language proficiency, health and other factors. This evidence is submitted with an applicant’s green card application through the submission of the Form I-944 and extensive financial, health, and education documentation. While this limited injunction is in effect, DHS may implement its public charge rule in all other U.S. states and the District of Columbia. USCIS has not yet issued guidance on how it will implement these differing public charge standards.
On July 29, 2020, U.S. District Court Judge George B. Daniels of the Southern District of New York (SDNY) issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.
The Public Charge Rule makes it harder for foreign nationals to obtain green cards, extend nonimmigrant status, or obtain a nonimmigrant visa to travel to the U.S. The rule was intended to go into effect on October 15, 2019, until it was enjoined by Judge Daniels in the District Court. Ultimately, the U.S. Supreme Court lifted the injunction, and the rule went into effect on February 24, 2020. In its decision, however, the U.S. Supreme Court also left open the possibility of further filings against the rule in the lower courts.
Three states sought a new injunction against the rule based on “new harms” that had become apparent due to the COVID-19 pandemic. Judge Daniels ruled in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts…to stem the disease.” He noted that many immigrants impacted by the Rule have continued to work during the pandemic to provide healthcare, food, and sanitization across the country and are essential to the country’s recovery from COVID-19. In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad.
Today, USCIS issued an announcement that for applications and petitions adjudicated by the agency on or after July 29, 2020, pursuant to the SDNY injunction, “USCIS will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129. Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.”
If you have any questions regarding the Public Charge Rule and the impact of these injunctions on your green card application or nonimmigrant visa petition, please contact the immigration attorneys at Ryan Swanson.
Amy Royalty can be reached at [email protected]
Marsha Mavunkel can be reached at [email protected].
Jen Chen can be reached at [email protected].
Janet Cheetham can be reached at [email protected].
Cody Nunn can be reached at [email protected].
Joel Paget can be reached at [email protected].
This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.