Alert: Courts Block ‘Public Charge’ Rule – for Now

The new DHS public charge rule will not take effect on Oct. 15

Oct 11, 2019

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IMPORTANT UPDATE — FEBRUARY 2, 2021: The new Department of Homeland Security (DHS) public charge rule, which initially took effect on Feb. 24, 2020, is currently in effect but under review by the Biden administration. The new Department of State (DOS) public charge policy that took effect the same day as the DHS rule was paused indefinitely on July 29, 2020. This page reflects those policies and will not be immediately updated according to the previous, longstanding guidance issued in 1999. Learn more.

Federal judges in New York and California today handed down the first rulings on legal challenges to the new public charge rule, issuing stinging rebukes to the U.S. government and temporarily barring the rule from going into force.

The rulings and accompanying injunctions are a major victory for immigrants and immigration advocates but a setback for the Trump administration, which had been poised to implement the public charge rule on Oct. 15. The New York ruling included a nationwide injunction enjoining the implementation of the public charge rule, while the California ruling barred the rule’s implementation in California, Oregon, the District of Columbia, Maine, and Pennsylvania.

“Once again, the courts have thwarted the Trump administration’s attempts to enact rules that violate both our laws and our values, sending a loud and clear message that they cannot rewrite our story to meet their agenda,” said New York Attorney General Letita James, one of the plaintiffs in the New York proceeding, in a statement.

Why was the rule blocked?

Both judges found that the public charge rule, which allows the government to deny green cards and visas to applicants deemed likely to use public assistance based on their health, financial status, age, English proficiency, and other factors, was both unduly sweeping and likely to harm would-be immigrants.

Judge George B. Daniels, who presided over the New York hearing, was scathing in his ruling, declaring that many of the government’s legal and policy arguments were grounded in anti-immigrant ideology and had “no logic” and “no rational basis” underpinning them. Daniels was especially critical of the government’s efforts to incorporate an English proficiency criterion, calling it “simply offensive” to suggest that immigrants without strong English skills would be unable to support themselves.

“The Rule is simply a new agency policy of exclusion in search of a justification,” he wrote in his ruling. “It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”

What will happen next?

The U.S. Department of Justice is likely to appeal the rulings, with acting U.S. Citizenship and Immigration Services (USCIS) Director Ken Cuccinelli implying that the rulings were the work of activist judges.

“An objective judiciary will see that this rule lies squarely within long-held existing law,” he said in a statement.

What does this mean for me?

If you’re applying for a green card or visa from within the United States

For now, people applying for green cards and visas from within the United States can breathe a sigh of relief. While the rulings aren’t the final word on the public charge rule, any delay provides an additional window of opportunity for green card applicants, since green card and visa applications received before the rule is formally implemented must be processed using the current rulebook.

If you’re applying for a green card or visa from outside the United States

The U.S. Department of State, which largely controls the green card evaluation process outside the United States, follows a different set of “public charge” guidelines. On Oct. 10, however, the agency announced it would conform its guidelines to the new DHS public charge rule. Although the DHS rule has been temporarily suspended, the State Department plans to move forward with enforcing the new guidelines for green card and visa applicants filing from outside the United States.

Is your application in danger of denial under the public charge rule?

Estimate your risk using the Boundless Public Charge Risk Estimator, or learn more about the new rule.

If you need legal advice on these issues, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you.

Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.

To stay up to date on changes throughout the U.S. immigration system, follow Boundless on Twitter or Facebook.

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