Current Status of Public Charge
Radical changes to public charge inadmissibility assessment that were due to go into effect are now on hold. In the case of the Department of Homeland Security (DHS) regulations, multiple injunctions have prevented the final rule from going into effect. One of the court decisions, which enjoined the rules on a nationwide basis, has been appealed to the Second Circuit Court of Appeals. That appellate court recently denied the government’s motion for a stay of the injunction, but it is scheduling to hear the appeal on an expedited basis. Implementation of the new Department of State (DOS) regulations is also on hold due to the agency’s need to finalize an accompanying Form DS-5540. A legal challenge has also been brought in the same federal court in New York that enjoined the DHS public charge rule In addition, a separate presidential proclamation requiring most immigrant visa applicants to have health insurance was also enjoined by a federal court in Oregon. Each of the developments is discussed in more detail below along with guidance for practitioners
DHS Final Rule – The Department of Homeland Security published a final regulation on August 14, 2019, that would have radically changed how USCIS officers interpret the public charge ground of inadmissibility. That regulation was scheduled to go into effect on October 15, 2019, but it was enjoined by five federal district courts. Three of those courts (in New York, Washington State, and Maryland) issued nationwide injunctions; two other courts (in California and Illinois) issued more limited injunctions. The government has appealed those decisions, and appellate courts in the Washington State, California, and Maryland cases granted the government’s motion for a stay of the injunctions. But the appellate court in the New York case denied the government’s stay request. That means that while the case is on appeal, the USCIS is prohibited from applying the final rule when adjudicating applications for adjustment of status and Customs and Border Protection (CBP) is prohibited from applying it when screening applicants for admission at a port of entry. The current interpretation, as set forth in a 1999 Federal Register Notice, still controls.
DOS Interim Final Rule and New Form – On October 11, 2019, the 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 October 15, 2019, but implementation has been delayed by the agency until it publishes a final version of Form DS-5540, Public Charge Questionnaire and DOS updates its Foreign Affairs Manual (FAM). 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.
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 October 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 is November 3, 2019. On November 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 November 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 – Given the nationwide injunction to the DHS rule, the 1999 interpretation of the public charge ground of inadmissibility has not changed. Therefore, continue to prepare your client’s case 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.
In the event the court injunctions are lifted, the public charge standards will not apply retroactively to the October 15, 2019, date. The order from the New York court addresses that issue and states: “the effective date of the Rule is postponed … pending further Order of the Court such that if this Order is later terminated and the Rule goes into effect, the Rule’s stated effective date of October 15, 2019, as well as any references in the Rule to October 15, 2019 … shall be deemed to be replaced with a date equal to sixty days after this Order is terminated.”
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.