Digest on Public Charge Developments
Starting in 2018, U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have taken several steps to dramatically revise the assessment of public charge inadmissibility. These measures make it much more difficult for an applicant for adjustment of status or admission to the United States to show that she or he is not likely to become a public charge. In a related development, a presidential proclamation issued on Oct. 4, 2019 requires certain immigrant visa applicants to obtain health insurance or otherwise establish that they have funds to pay for medical costs in the United States. That proclamation is currently enjoined. The digest below tracks developments on this issue in reverse chronological order and includes links to additional related resources where applicable.
Aug. 14, 2020: The nationwide injunction entered by the U.S. District Court for the Southern District of New York on July 29 prohibiting the implementation of the new public charge rule by the Department of Homeland Security during the COVID-19 national emergency has been narrowed to apply only to the states within the Second Circuit: Connecticut, New York and Vermont. The Second Circuit entered the order on Aug. 12, but USCIS’s website still states that the public charge rule is not being applied, and Form I-944, Declaration of Self-Sufficiency, is still unavailable on USCIS’s website. USCIS has not responded to this decision and has not provided instructions for filing adjustment of status applications in the states impacted by this decision. The nationwide injunction against the Department of State’s implementation of its public charge rule that the district court also issued on July 29 still remains in effect and has not been narrowed.
July 29, 2020: The U.S. District Court for the Southern District of New York issued an order barring the Department of Homeland Security, or DHS, from enforcing its new public charge rule during the duration of the declared national emergency due to COVID-19. The court also issued an order indefinitely barring the Department of State, or DOS, from enforcing the DOS public charge rule. CLINIC is an organizational plaintiff in the case. Both decisions are preliminary injunctions that are nationwide in scope. It is anticipated that the government agencies will appeal the decisions and seek a stay of their enforcement.
Mar. 14, 2020: USCIS published information on its website clarifying that any treatment or preventive services related to COVID-19 will not negatively affect any individual as part of Public Charge analysis. In addition, if policies such as social distancing or quarantine prevents an individual from working or attending school, and he or she must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the individual can provide an explanation and relevant supporting documentation to include in their application for adjustment of status. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the circumstances.
Feb. 21, 2020: The Department of State released new FAM guidance on public charge and new DOS Form 5540, Public Charge Questionnaire. The guidance clarified that the new public charge regulations would go into effect on Feb. 24 and apply to visa applicants who had already submitted their visa applications, including those scheduled for interviews as of Feb. 24, 2020.
Feb. 21, 2020: The Supreme Court stayed the Illinois injunction, making new DHS public charge regulations applicable nationwide.
Feb. 12, 2020: The Department of State announced that it would seek emergency processing of proposed form DS-5540 from The Office of Management and Budget (OMB). DOS sought OMB approval of the form by Feb. 24, 2020, so that DOS could implement its final rule by that date.
Feb.5, 2020: USCIS published new forms consistent with the DHS final public charge rule. New forms included: Form I-944, Declaration of Self-Sufficiency; Form I-945, Public Charge Bond; and Form I-356, Request for Cancellation of Public Charge Bond. Updates were also made to the following forms: I-129; I-129CW; I-485; I-485J; I-539; I-539A; I-601; I-864; I-864A; I-864EZ; and I-912. With the exception of Illinois residents, all applications postmarked Feb. 24 and later must use the new forms and will be subject to the new public charge rules.
USCIS also published new public charge guidance in the USCIS Policy Manual.
Jan. 30, 2020: USCIS announced that it will begin implementation of the final public charge regulations as of Feb. 24. Applications postmarked (or submitted electronically) on or after Feb. 24, 2020, will be subject to the new public charge rules. Applications postmarked before Feb. 24 will not be subject to the new public charge rules.
Jan. 27, 2020: The Supreme Court stayed the nationwide injunction issued by a New York court. This means that USCIS may now begin implementation of its final rule when adjudicating applications for adjustment of status. The statewide injunction issued by the district court in Illinois remains in place. 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. Supreme Court grants appeal from denial of stay by Second Circuit. With this decision, the only injunction remaining applies to residents of Illinois. USCIS must still apply the old definition of public charge when adjudicating adjustment of status applications in Illinois.
Jan. 8, 2020: The Second Circuit Court of Appeals denied the government’s request for a stay of the district court injunction. The rule remains enjoined nationwide.
Dec. 9, 2019: The Fourth Circuit stayed the Maryland district court injunction that blocked DHS from implementing its final rule on public charge.
Dec. 5, 2019: The Ninth Circuit granted a government motion for a stay of two injunctions (issued by district courts in California and Washington) that blocked DHS from implementing its final rule on public charge.
Nov. 26, 2019: A U.S. District Court issued an injunction against the government taking any action to implement the October Presidential Proclamation requiring certain immigrant visa applicants to have or obtain insurance or otherwise show they have sufficient resources to pay all reasonably foreseeable medical costs.
Oct. 24, 2019: The Department of State released a draft new form DS-5540 to be used to screen visa applicants subject to public charge inadmissibility. Comments on the new form are due on December 23.
Oct. 11 -14, 2019: Judges before U.S. District Courts for the Southern District of New York (PDF, 68 KB), Northern District of California (PDF, 888 KB), Eastern District of Washington (PDF, 631 KB), Northern District of Illinois (PDF, 137 KB), and District of Maryland (PDF, 498 KB) have ordered that DHS cannot implement and enforce the final rule on the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act. The court orders also postponed the effective date of the final rule until there is final resolution in the cases. Most of the injunctions are nationwide, and prevent USCIS from implementing the rule anywhere in the United State
Oct. 11, 2019: The Department of State issued interim final regulations on public charge inadmissibility to mirror regulations issued by USCIS. Scheduled to go into effect on October, implementation was delayed until DOS finalizes related forms and FAM guidance. Public comments on the regulations were accepted until November 12. CLINIC’s comments can be accessed here. A new form, DS-5541, will be used to obtain information about how the immigrant visa applicant plans to comply with the proclamation requirement.
Oct. 4, 2019: President Trump Issued a proclamation requiring certain immigrant visa applicants to have or obtain health insurance or establish that they have sufficient resources to pay all reasonably foreseeable medical expenses.
Aug. 14, 2019: USCIS published a final rule on public charge inadmissibility with an implementation date of October 15, 2019. CLINIC analysis, FAQs and other resources regarding the final rule can be found here.
Oct. 10, 2018: USCIS published a proposed rule, “Inadmissibility on Public Charge Grounds.” The public comment period is now closed. It was open for 60 days from Oct. 10, 2018, to Dec. 10, 2018. CLINIC’s comments on the proposed rule can be accessed here.
Jan. 2018: The Department of State amended the Foreign Affairs Manual (FAM) to increase the burden of satisfying the public charge ground of inadmissibility for both immigrant and nonimmigrant visa applicants. Under the new rules, an approvable affidavit of support is no longer the key factor in determining whether an application is likely to become a public charge. CLINIC’s assessment of the new FAM guidance can be accessed here.