Re-Implementing Public Charge Rule After Recent Injunction

Last evening, the 2nd Circuit Court of Appeals limited an order that blocked the application of Trump’s Public Charge Grounds Final Rule during the duration of the COVID-19 pandemic. The federal appellate court concluded that the Department of Homeland and Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) may implement the public charge policy in every state but New York, Connecticut, and Vermont. These three states had previously sued the Trump administration over the public charge rule.

Since July 29th, U.S. District Court for the Southern District of New York issued an injunction of the Trump administration’s public charge rule, meaning that USCIS and DHS had temporarily reverted to the 1999 Interim Field guidance established before Trump’s Public Charge Grounds Final Rule. The N.Y. district court reasoned that Trump’s rule had deterred immigrants from seeking testing and treatment for COVID-19, as they feared such acts would negatively impact their immigration cases.

The federal appellate court’s most recent decision, briefly detailed in a one-paragraph order written by U.S. Circuit Judge Peter Hall, will revive Trump’s “wealth test” for immigrants, a victory for the Trump administration as this is one of the most extensive restrictions on legal immigration. Under this test, DHS may negatively consider immigrants’ past usage of public benefits programs, such as food stamps and housing subsidies, as well as health and education level, to determine whether they will rely on government assistance. Such a reliance would adversely impact green card applications.

In the short order, the 2nd Circuit Court of Appeals – a higher level court than the U.S. district court that issued the primary injunction – explained that the public charge injunction is no longer nationwide and only applies to residents of New York, Connecticut, and Vermont.

Since the nationwide injunction was announced, USCIS instructed applicants to hold off from filing Form I-944 Declaration of Self-Sufficiency for those filing on or after July 29th, 2020. USCIS has yet to publish further instructions for applicants who have already filed without the Form I-944, and USCIS has yet to update its website with the new ruling. However, because USCIS still has these instructions from July 29th on its website despite having adopted a new ruling, it may be useful to save a copy of this, along with the date, if an applicant has already filed without Form I-944.