By Roujin Mozaffarimehr
On July 29th, The United States District Court, Southern District of New York issued two decisions to temporarily enjoin the Department of Homeland Security and the Department of State from implementing the recent Public Charge Rule that took effected earlier in February 2020. Below, we discuss the recent changes to the Public Charge Rule and Foreign Affairs Manual as well as the Court’s reasoning for placing injunctions on these rules and changes amidst the COVID-19 pandemic.
The Public Charge Rule (USCIS and DOS) and FAM revisions
The Department of Homeland Security (DHS) published a final rule in August 2019 drastically changing and expanding the definition of public charge grounds of inadmissibility. The final rule at 8 CFR 212.21(a) was slated to take effect on October 15, 2019, but a nationwide injunction was put in place prior to this date. On January 27, 2020, the US Supreme Court lifted the nationwide injunction placed on this rule, allowing the new public charge rule to take effect within the United States (with the exception of Illinois). The United States Citizenship and Immigration Service (USCIS) announced on January 31, 2020 that the final rule would apply to applications and petitions postmarked or submitted electronically on or after February 24, 2020.
The Department of State’s (DOS) public charge rule generally mirrored that of the DHS final rule on public charge. The DOS also announced the implementation of the final rule on public charge beginning on February 24, 2020 by updating the Foreign Affairs Manual (FAM) and issuing a new form DS-5540, Public Charge Questionnaire. These changes affected both non-immigrant visa (NIV) and immigrant visa (IV) applicants applying for visas at any consulate abroad. Please note that there were additional changes to the FAM in 2018 which further impacted consular processing to the United States.
Public Charge was redefined as a person (non-citizen) who receives a public benefit for more than 12 months in the aggregate within a 36-month period. The new standard that was to be applied to the public charge analysis was, “likely at any time,” which is defined in the final rule to mean that it is “more likely than not” the applicant will receive one or more public benefits in the future.
Further, the USCIS and DOS previously considered limited types of cash assistance for public charge (i.e., welfare, SSI, TANF) and long-term institutionalization for medical care. The new rule added non-cash assistance programs, most significantly Medicaid (i.e. MediCal in California), several housing assistance programs, and income maintenance assistance. The rule further emphasized the totality of the circumstances test, taking into consideration a set of factors in conducting a prospective (future looking) evaluation of a non-citizen’s risk of becoming a public charge. Those factors included age, health, family status, assets, resources, and financial status, education and skills, and affidavit of support.
Federal Court Decisions
Judge George Daniels issued two decisions placing injunctions on USCIS and DHS on implementing its controversial public charge rule and changes to the FAM in light of the public charge rule.
In his decision relating to the USCIS’ public charge rule, Judge Daniels held that USCIS’s efforts in addressing COVID-19 in light of the public charge rule was “plainly insufficient.” He referred to USCIS’s informal guidance on its website, which attempts to clarify that testing, treatment, and preventative care related to COVID-19 will be excluded from public charge determinations. Judge Daniels found that the nuances of COVID-19 care and Medicaid coverage and enrollment could result in triggering the new Public Charge rule if someone were seeking medical care for COVID-19, deterring residents from seeking healthcare to avoid immigration consequences. He reasoned:
Plaintiffs provide ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts in the Governmental Plaintiffs’ jurisdictions to stem the spread of the disease. Doctors and other medical personnel, state and local officials, and staff at nonprofit organizations have all witnessed immigrants refusing to enroll in Medicaid and other publicly funded health coverage, or forgoing testing and treatment for COVID-19, out of fear that accepting such insurance or care will increase their risk of being labeled a “public charge.”
Judge Daniels further cited to “…substantial financial burdens as employers slash jobs, benefits, and pay.” And that the public charge rule and the USCIS’ unofficial online guidance “offers no meaningful relief or incentive for immigrants in such circumstances to confidently access supplemental benefits, such as SNAP.” Judge Daniels concluded that USCIS’ website guidance “…gives no articulable standard to which one should conform one’s conduct,” and that USCIS conceded that it “has no obligation to retain the Alert for any period of time, let alone for the pendency of the public health emergency.” As a result, Judge Daniels found that it is in the public interest to issue an injunction for the duration of the National Health Emergency relating to COVID-19.
In the decision relating to the DOS’ public charge rule and changes to the FAM, Judge Daniels held that family separation and destabilization, shortages in the labor market, increased medical costs, uncompensated medical care and other economic and public health harms warrant the injunction. Judge Daniels further agreed with the Plaintiffs that the new public charge framework has a chilling effect on immigrants, “who have foregone coronavirus-related medical care to which they are legally entitled out of fear that seeking such care will jeopardize their immigration status.” As a result, Judge Daniels held that it is in the public interest to issue an injunction for the duration of the National Health Emergency relating to COVID-19.
USCIS has released its guidance on the procedural implications of this ruling today (July 31, 2020). While the injunction is in effect, USCIS will apply the public charge guidance that was in place prior to February 24, 2020 and will not apply the public charge rule for cases filed or adjudicated on or after July 29, 2020. This includes suspending the use of form I-944.
Please contact MPLG if you have any questions regarding public charge in light of the Court’s injunctions.
 See Make The Road New York et. al. vs. Michael Pompeo et. al., 1:19-cv-11633-GBD; See Also, 1:19-cv-07993-GBD
 The grounds of inadmissibility on the basis of public charge impact both employment based and family-based filings, including:
- Nonimmigrant visa applications, change of status petitions and applications, and extension of status petitions and applications (i.e., B,F,H,L,O,P, and R visas)
- Immigrant applications (i.e. green card cases)
- Applications for admission to the US including legal permanent residents who are found to have abandoned their residency.
- Exceptions for U visa, VAWA, Asylees, among others.