DHS Final Rule on Public Charge – The Supreme Court on Jan. 27, 2020 issued a “stay” that temporarily lifted an injunction issued by a New York court barring the Department of Homeland Security, or DHS, from implementing its final rule defining the public charge ground of inadmissibility. This means that U.S. Citizenship and Immigration Services, or USCIS, can now implement this final rule when it adjudicates applications for adjustment of status. It is not clear at this time what “effective date” the agency will use for purposes of determining which applications will be subject to the old or the new public charge definition.

The district court in the Southern District of New York had ruled on Oct.15, 2019 that the DHS final rule violated the statute and the Constitution and blocked its implementation on a nationwide basis. The government has appealed that decision and oral argument will be heard on March 2, 2020. The Second Circuit Court of Appeals had denied the government’s request for a stay of the injunction, which led to its appeal on an emergency basis to the Supreme Court.

Four other district courts had also enjoined implementation either on a nationwide or state/regional basis. These were issued by courts in California, Washington State, Illinois and Maryland. The government has appealed these injunctions. The Ninth Circuit and the Fourth Circuit granted the government’s request for a stay. At the present time, the injunction on a statewide basis issued by the district court in Illinois remains in place. Therefore, USCIS must continue using the old definition of public charge in adjudicating applications for adjustment of status in Illinois.

DOS Interim Final Rule and New Form – On Oct. 11, 2019, the Department of State, or DOS, published an interim final rule that amends 22 CFR § 40.41 governing the public charge ground of inadmissibility. The DOS definition of public charge, the five statutory factors, and the effect of receipt of public benefits mirrored the enjoined DHS regulation. The regulation was scheduled to go into effect on Oct. 15, 2019, but implementation has been delayed by the agency until it publishes a final version of Form DS-5540, Public Charge Questionnaire. Several organizational plaintiffs, which included CLINIC, filed a challenge to the DOS final rule and have sought to enjoin its implementation. That case was filed in the same court in New York that enjoined the DHS regulation. The case also challenges DOS’s 2018 changes to the FAM that re-defined public charge and the presidential proclamation requiring immigrant visa applicants to have acceptable health insurance. Plaintiffs’ motion for a preliminary injunction and the government’s motion to dismiss will be heard on March 17, 2020. On its website, the agency states: “Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. We will inform applicants of any changes to current visa application procedures.”

Presidential Proclamation on Health Insurance – The White House issued a proclamation on Oct. 4, 2019, titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.” The proclamation states that immigrant visa applicants will be denied entry to the United States unless they establish that they either have or can obtain approved health insurance within 30 days of admission or they will have enough resources to pay for reasonably foreseeable medical costs. The date of implementation of this proclamation was Nov. 3, 2019. On Nov. 2, 2019, a district court in Portland, Oregon issued a temporary restraining order enjoining the implementation of the proclamation on a nationwide basis. The court on Nov. 26, 2019, then converted the TRO into a preliminary injunction. The judge stated, “The President offers no national security or foreign relations justification for this sweeping change in immigration law. Instead, it appears the President is attempting to justify the change based on domestic policy.” The government has appealed the order to the Ninth Circuit Court of Appeals and moved for a stay of the injunction. At the present time, the DOS is prohibited from implementing it.

Advice to Practitioners Representing Adjustment of Status Applicants – We are awaiting confirmation from DHS as to the effective date of the final rule. This means we do not know what filing date of the adjustment application will be used by USCIS to determine which interpretation of public charge will be used. Given the long delay in scheduling adjustment of status interviews at local district offices—one year in many places—practitioners will have time to prepare their clients for the changes. Continue to prepare clients whose applications were filed before the effective date as you have in the past. Make sure the sponsor or joint sponsor’s affidavit of support satisfies the financial requirements and includes the necessary documentation. Recommend that the client not disenroll from any health care or other public benefit programs the family members are receiving. Be alert to any requests for documents or USCIS adjudications that reflect a departure from the current standards for public charge. For new clients whose applications will be filed after the effective date, be alert to updates and additional guidance that CLINIC will be providing.

Advice to Practitioners Representing Immigrant Visa Applicants – Applicants for an immigrant visa will not be subject to the DOS final rule regarding public charge until DOS publishes a final version of Form DS-5540. At least one legal challenge has been brought seeking to enjoin its implementation. Applicants for an immigrant visa will also not be subject to the presidential proclamation requiring health insurance unless an appellate court stays implementation of the injunction or overturns it. Nevertheless, immigrant visa applicants will be subject to the current interpretation of public charge in the FAM, which was changed in January 2018 to place less weight on the affidavit of support and more weight on the applicant’s age, health, income, skills and resources. This interpretation is stricter than the current DHS interpretation. For an article setting forth those changes to the FAM, click here.