Federal Court Strikes Down DHS “Public Charge” Rule Nationwide

On Behalf of | Nov 2, 2022 | Firm News

On November 2, 2020, federal judge in the United States District Court for the Eastern District of New York issued an order vacating the U.S. Department of Homeland Security’s “public charge” rule on a nationwide basis. This means that the U.S. Citizenship and Immigration Services (USCIS) cannot apply its August 14, 2019 expanded public charge rule anywhere in the United States.   

This decision is the latest back-and-forth development in the lawsuits brought by state and local governments and nonprofit agencies against the Trump administration seeking to block the expanded public charge rule. Most recently, on September 22, 2020, USCIS had updated its website to state that it would resume applying the expanded public charge rule on a national basis. Pursuant to the Nov 2nd order, however, USCIS can no longer apply the expanded public charge rule.  

USCIS’s expanded (now vacated) public charge rule, among other features, increased the types of public benefits that DHS considers when determining when a person applying for a green card or certain visas will be a “public charge” in the U.S. and thus ineligible for a green card or visa. The expanded list of public benefits under the expanded rule included, among others, federal non-emergency Medicaid, Supplemental Nutrition Assistance Program (SNAP or food stamps), and Section 8 public housing. In his decision today, the federal court judge determined that DHS’s efforts to expand the public charge rule were illegal, and therefore that the expanded public charge rule is entirely invalid.  

What Does Today’s Court Decision Mean for the Expanded Public Charge Rule?

For those applying for adjustment of status (filing From I-485) in the United States or seeking to change their status to certain nonimmigrant visa statuses in the United States, USCIS cannot apply the expanded public charge rule and cannot require the Form I-944, Declaration of Self-Sufficiency as of today. However, please note that as of November 2, 2020, USCIS has not updated its website to reflect how USCIS is responding to today’s federal court decision. 

For those applying for immigrant visas through U.S. embassies and consulates overseasthe U.S. Department of State (DOS) most recently stated in August 2020 that it is not implementing the expanded public charge rule due to an early federal lawsuit blocking the rule. Although DOS had issued a new form for the public charge rule (Form DS-5540, Public Charge Questionnaire), visa applicants are not required to submit this form, and should not submit the form at their visa interviews.  

We recommend speaking with a qualified immigration attorney if you have questions regarding how today’s federal court decision on the expanded public charge rule may affect your immigration case.  

The above information is for informational purposes only and is not legal advice.  
Written by Joseph Fungsang, an immigration attorney and partner-in-charge of our New York City office.

© Margaret W. Wong & Associates LLC