*UPDATE The United States Court of Appeals for the Second Circuit released a decision today on August 4, 2020 modifying the District Court injunction issued on July 29, 2020 regarding the new public charge rule, allowing it to stand only in New York, Connecticut, and Vermont at this time. As of August 4, 2020, only New York, Connecticut, and Vermont will be applying the 1999 public charge guidance. All others belonging to the other states should act under the 2019 Public Charge Rule as if it is under effect.

Injunction Applied to 2019 Public Charge Rule

On July 29, 2020, the U.S. District Court for the Southern District of New York issued an injunction enjoining the Department of Homeland Security (DHS) from enforcing, applying, implementing, or treating the February 20, 2020 Inadmissibility on Public Charge Grounds Final Rule made effective for the period in which there is a declared national health emergency as a response to the COVID-19 pandemic in the United States.

This is based on a January 31, 2020 public health emergency declaration declared by the Secretary of Health and Human Services related to the COVID-19 pandemic. On February 24, 2020, DHS implemented a Public Charge Rule applied to any prospective application or petition submitted electronically or postmarked on or after February 24, 2020. Shortly afterward on March 13, 2020, President Trump issued a Proclamation Declaring a National Emergency Concerning the Novel Coronavirus (COVID-19) Outbreak.

What does this Injunction do?

The effect of this injunction is that USCIS will no longer apply the 2019 Public Charge Rule. This injunction requires USCIS to apply the previous 1999 public charge guidance that was in effect before the 2019 Public Charge Rule. Also, USCIS will adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the 2019 Public Charge Rule.

How may this affect future applications and petitions?

For applications and petitions that USCIS adjudicates on or after July 29, 2020, USCIS will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129. Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.

USCIS plans to issue further guidance on the use of affected forms. USCIS explained that it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6 or Part 5, respectively, has been completed or left blank. For the appropriate guidance on public charge inadmissibility, please view the 1999 Interim Field Guidance and AFM Ch.61.1. As the situation develops, ILBSG will continue to monitor and provide our valued readers and loyal subscribers with relevant news as we learn more. If you have any questions regarding your immigration requirements, please contact your attorney our talented staff at International and Legal Business Services Group, LLP.

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