Public charge rule blocked again

BY Jason Gerrol

On July 29, 2020, the U.S. District Court for the Southern District of New York issued a nationwide injunction blocking the Trump administration and Department of Homeland Security (DHS) from implementing their controversial new public charge rule during the COVID-19 national health emergency. However, on August 12, 2020, the Second Circuit Court of Appeals limited the injunction to only Vermont, Connecticut, and New York. As a result, U.S. Citizenship and Immigration Services (USCIS) could begin enforcing the new public charge rule in all states but Vermont, Connecticut, and New York, but as of the writing of this post, has not done so and continues to indicate on their website that they will honor the July 29, 2020, nationwide injunction, will not enforce the new rules during the national health emergency, and instead will implement only the prior public charge guidance (dating from 1999).

The August 12, 2020, Second Circuit Court of Appeals decision does not impact a related July 29, 2020, decision blocking the Department of State (DOS) from enforcing their version of the new public charge rule. DOS, therefore, cannot enforce the new public charge rules, or the Trump administration's health care proclamation, at U.S. consulates/embassies abroad.

The Trump administration's public charge rule has been blocked before, only to be rejuvenated by the U.S. Supreme Court, which in a 5–4 decision found the nationwide injunction issued at that time "patently unworkable." Importantly, that decision was prior to the COVID-19 national health emergency, and the July 29, 2020, injunction addresses plaintiffs' concerns immigrants will be discouraged from seeking necessary financial and medical assistance during the pandemic for fear of being found a "public charge," and therefore ineligible for certain immigration benefits.

Given the active litigation regarding the new public charge rule, and the uncertainty regarding USCIS' enforcement of it, foreign nationals should be sure to consult with immigration counsel prior to filing any petition/application affected by the public charge rule.

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Jason Gerrol

Of Counsel

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