Latest Developments on Public Charge

September 20, 2020 § Leave a comment

On July 29, 2020, the U.S. District Court for the Southern District of New York barred the government from enforcing the USCIS Final Rule on Inadmissibility on Public Charge Grounds during the COVID-19 pandemic. The district court issued this injunction in favor of the plaintiffs due to the harsh components of the public charge rule which have prevented many immigrants from receiving proper medical care during the pandemic. Many immigrants seeking permanent resident status have avoided seeking proper medical care and have not utilized government relief during the pandemic due to the fear of triggering the inadmissibility ground of public charge.

However, the 2nd Circuit Court of Appeals then limited the scope of the district court’s national injunction to only the jurisdiction of the 2nd Circuit. Therefore, the public charge rule was only barred in the states of Vermont, Connecticut, and New York.

Most recently, on September 11, 2020, the Second Circuit Court of Appeals stayed the original district court’s nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944, Declaration of Self-Sufficiency, in all jurisdictions once again. However, uncertainties have come to light as USCIS has still not updated its web page related to the public charge injunction. Though USCIS has not added the Form I-944 back to its forms page, green card applicants should continue to fill out the pre-injunction I-944 Form until further notice. Applicants who use the Adjustment of Status process to apply for permanent residence from within the United States will be at risk should they submit Form I-485 packets without Form I-944. For those who are applying from outside the United States using consular processing, the Department of State has announced that in light of the pending litigation, applicants who may appear to be a public charge will be refused a visa under administrative processing (instead of a straight denial) to allow additional time for further assessment pending litigation.

As of now, USCIS has not yet updated its website with instructions on how impacted applicants should proceed to comply with the Public Charge Final Rule, nor how it will handle applications that were filed without public charge documentation while the injunction was in effect.

For a full background on the inadmissibility ground of public charge, refer to earlier immigration articles and also the American Immigration Lawyers’ Association website for litigation updates.

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