By: Malou Mararang

Summary

The Second Circuit Court of Appeals has ruled that a recent suspension of the Department of Homeland Security’s public charge rule during the COVID-19 pandemic only applies within the Second Circuit, which includes the states of Vermont, Connecticut, and New York. The Department of Homeland Security (DHS) may still enforce the public charge rule in every other US state and the District of Columbia. This ruling does not impact the Department of State (DOS), which is still barred from implementing their public charge rule nationwide based on a separate lawsuit, Make the Road New York, et a. v. DOS. While each agency’s public charge rule varies, both penalize foreign nationals who use certain public benefits.

Enforcement of the DHS Public Charge Rule

Based on the case NY et al. v. DHS, the Department of Homeland Security (DHS) was barred from implementing the public charge rule nationwide. The Second Circuit Court of Appeals has ruled on August 12 that this injunction only applies to Vermont, New York, and Connecticut. DHS can now implement their public charge rule in the District of Columbia and all US states, except Vermont, New York, and Connecticut.

In Vermont, New York, and Connecticut, DHS can only enforce the public charge rule that was in effect before the February 24, 2020 rule.    

What is the Public Charge Rule?

The new DHS public charge rule first went into effect on February 24, 2020. It significantly increases the burden on foreign nationals to prove that they will not become a “public charge” to the United States by relying on public benefits. The rule limits foreign nationals from adjusting status, or changing or extending their nonimmigrant status if they have used certain public benefits for 12 months or more during the previous 36 months.

The DOS public charge rule limits the ability of foreign nationals who are applying for visas from outside of the US to enter the country if they are likely to become a public charge.

Next Steps for the Public Charge Rule

While the DHS has not yet issued guidance on how this ruling will impact the filing of immigration applications, it is likely that they will begin enforcing the February 24, 2020 public charge rule and related requirements for documentation.

The DOS is still barred from enforcing its public charge regulations[i]. At this time, visa applicants are not required to complete or present the related Form DS-5440, Public Charge Questionnaire.

[i] Interim Final Rule on Visa Ineligibility on Public Charge Grounds, the 2018 Foreign Affairs Manual (FAM) revisions, and the Presidential Proclamation 9945

Conclusion

For more information about how this ruling impacts your immigration petitions, please contact your trusted Chugh, LLP attorney.