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01.28.20

DHS can begin enforcing public charge rule

BY Jason Gerrol

On August 14, 2019, the Department of Homeland Security (DHS) issued a final rule that significantly changes the standard by which DHS will determine whether a foreign national seeking to change/extend their U.S. immigration status, or apply for lawful permanent residency (i.e., apply for "adjustment of status") is inadmissible as a potential public charge. The rule introduced a much stricter standard that was estimated to significantly increase the number of foreign nationals deemed inadmissible, and therefore ineligible for a U.S. visa or lawful permanent residency. For all foreign nationals, even those not in danger of being found inadmissible as a potential public charge, the rule would have required the disclosure of a copious amount of financial information on various immigration applications.

The rule was quickly met with several lawsuits, resulting in several orders blocking DHS from enforcing the new rule while litigation proceeds. However, by order dated January 27, 2020, the U.S. Supreme Court lifted the last remaining nationwide injunction, finding in a 5–4 decision "the routine issuance of universal [or nationwide] injunctions [by lower courts] is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions" (Justices Ginsburg, Breyer, Sotomayor, and Kagan disagreed). As a result, DHS can begin enforcing the new public charge rule in all states except Illinois (where a state-wide injunction remains in place) while litigation in the lower courts remains ongoing.

DHS has indicated they do in fact intend to move forward with enforcing the new public charge rule, but it remains to be seen how they will do so in every state but Illinois. Foreign nationals should be sure to consult with immigration counsel regarding the status of the rule and its impact on their particular immigration process.

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Jason Gerrol

Of Counsel

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