Public Charge Rule Vacated Nationwide

On November 2, 2020, the district court in Cook County, Illinois, et al v. Wolf et. al., granted summary judgment in favor of plaintiffs who claim that the Department of Homeland Security's (DHS) latest incarnation of the Public Charge Rule violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq. As outlined in previous posts*, the new Public Charge Rule was initially set to take effect on October 15, 2019, but has seen numerous challenges leading to this latest halt to its implementation. The Rule greatly expands the ability for immigration officials to deny entry or legal status to individuals that have accepted public benefits or are likely to do so in the future, and has resulted in the addition of multiple measures to collect information not only about the receipt of public benefits, but applicants' financial solvency, credit scores, and health care coverage status.

The district court specifically ruled that 1) the Rule exceeds DHS's authority under the public charge provision of the INA, 8 U.S.C. § 1182(a)(4)(A); 2) is not in accordance with law; and 3) is arbitrary and capricious. As a result, the court has set aside the DHS Public Charge Rule nationwide without staying its decision pending appeal. Therefore, as of November 2^nd, DHS may not apply the public charge rule, which includes a requirement to submit the Form I-944 Declaration of Self-Sufficiency associated with green card applications. The court also continued litigation as it relates to equal protection claims raised by plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. (ICIRR).

As of this time, USCIS has not yet posted guidance on how they will implement the order on its public charge website, but the rule is nonetheless effective immediately. The news is of particular import as forward movement in the October 2020 and November 2020 Visa Bulletins made a larger than expected number of foreign nationals eligible to submit their green card applications after several months, and in some cases years, of waiting for the green card backlogs to subside. This latest public charge news should alleviate green card applicants from needing to complete the arduous Form I-944 and submitting the associated documentation required to evidence their financial self-sufficiency, at least for now.

Update: In yet another development on implementation of the Public Charge Rule, on November 3, 2020, the Seventh Circuit issued an administrative stay of the district court's decision to vacate the Rule, pending an appeal. As a result, Form I-944 Declaration of Self-Sufficiency is still required to be filed with most Form I-485 Adjustment of Status (green card) applications. Applicants should continue monitoring this rapidly developing situation.

* Read our previous insights on this topic: