IMPORTANT UPDATE: The U.S. Department of Homeland Security’s public charge rule will take effect on Feb. 24 after the Supreme Court lifted a nationwide injunction blocking the rule. This means that people applying for green cards and visas from within the United States — through a process known as “Adjustment of Status” — will soon be affected by the new rule.
The U.S. Department of State’s public charge policy, which was recently aligned with the DHS rule, was temporarily delayed from going into force on its scheduled effective date, Oct. 15. This means that people applying for green cards and visas from outside the United States — through a process called “Consular Processing” — are not currently affected by the policy changes.
That’s good news for current and would-be immigrants, but it doesn’t affect everyone equally, and it doesn’t mean the public charge rule has gone away for good. Let’s look at where things currently stand, and what could happen next.
What is the public charge rule?
A quick recap: The new public charge rule will give the government sweeping powers to deny green cards and visas to people it suspects won’t be able to financially support themselves when in the United States. Officials would consider factors, such as age, health, education, and even English proficiency to decide whether people are likely at any time in the future to use public benefits such as food stamps or Medicaid.
The public charge rule is a dramatic expansion of rules that have been in place, in one form or another, for more than a century. Under current rules, an immigrant’s sponsor must promise to support them financially so that they don’t become reliant on public benefits. The new public charge rule significantly raises that bar, and makes it far easier for the government to deny green cards based on a range of factors only tenuously related to public benefits.
Are there different versions of the public charge rule?
Different government agencies handle different parts of the U.S. immigration process, and will apply the public charge rule in different ways.
The U.S. Department of Homeland Security (DHS) will use the rule to decide whether to grant green cards and temporary visas to people who are already in the country. After a long rule-making and public consultation process, and some last-minute changes, the DHS rule had been poised to take effect this month, but the courts blocked it (more on that below).
The U.S. Department of State quietly implemented its own expanded public charge test in January 2018, by altering its guidance for consular officers in the Foreign Affairs Manual (FAM). That guidance, which in some way is more far-reaching than the DHS rule, is already being used to decide whether to grant visas to people who are outside the United States.
What just happened?
Five federal courts — in New York, California, Washington, Illinois, and Maryland — ruled against the government and blocked DHS from implementing its version of the public charge rule, which had been due to take effect on Oct. 15. The decisions came in response to lawsuits filed by states, local governments, and immigration advocates, arguing that the public charge rule would harm both immigrants and their communities.
All 5 judges ordered injunctions against the public charge rule. An injunction is a legal order that forbids the government from implementing or enforcing a rule for as long as the injunction remains active.
Most of the courts imposed nationwide injunctions that prevent the government from applying the public charge rule anywhere in the United States. The California injunction is more limited, and only prevents the rule’s enforcement in Maine, Pennsylvania, Oregon, the District of Columbia, and California. Similarly, the Illinois ruling only affects applicants in that state.
How does this affect people living in the United States?
As long as any single nationwide injunction is in effect, DHS won’t be able to apply the public charge rule to green card applications filed anywhere in the United States.
If you’ve already filed Form I-485 (officially called “Application for Adjustment of Status”), then your application will be handled using the existing rules, regardless of what happens with the public charge rule injunctions.
If you haven’t yet filed your I-485, you have a new window of opportunity to make sure your application is handled under the existing rules. As long as you file while the nationwide injunctions are still in effect, the public charge rule won’t apply to your case.
How does this affect people living abroad?
The injunctions against DHS only stop the government from enforcing the public charge rule within the United States. The Department of State is already using its own version of the public charge test, as implemented in the FAM, for visa and green card applicants filing from outside the United States, and will continue to do so.
Complicating things, the Department of State on Oct. 11 attempted to align its public charge policy with the DHS rule, so that applicants would be treated the same regardless of which agency handles their application. Like the DHS rule, the State Department’s updated guidelines were intended to take effect on Oct. 15—but were delayed while officials finalize a new immigration form (equivalent to DHS’s new Form I-944). In the meantime, the FAM public charge guidelines will remain in effect.
It is unclear when the Department of State will push ahead with its efforts to align its procedures with the DHS rule, but it will take several months at least.
What happens next?
The injunctions blocking the DHS public charge rule are preliminary rulings, not final verdicts. That means the cases are still ongoing, but the judges have decided the government likely overstepped its authority and may lose in the end. In order to ensure people aren’t harmed by the public charge rule in the meantime, the courts have hit pause, and ordered the government not to enforce the rule until the lawsuits are over.
In theory, the government could still win the lawsuits, have the injunctions lifted, and start enforcing the public charge rule. That would likely take months, though, and if the government failed to overturn even one of the national injunctions, it would be unable to implement the public charge rule.
It’s more likely that the government will appeal, and ask higher courts to overturn the rulings and lift the injunctions. There’s no timeline for that yet, but it could mean the public charge rule eventually comes before the Supreme Court. In that case, the Supreme Court could issue a definitive decision either upholding the lower courts’ decisions, or overruling them and allowing the government to implement the public charge rule.
In the meantime, DHS’s public charge rule is likely to remain on hold. Meanwhile, the Department of State’s current version of the public charge test, as set out in its FAM guidance (or ultimately its new regulation) will continue to be used for applicants filing from outside the United States—although that too could change if the government loses a separate lawsuit challenging the Department of State’s existing policy.
The government could also try to enforce policies similar to the public charge rule through separate executive orders, like the health insurance mandate issued Oct. 4 by President Donald Trump. Such moves would also likely face legal challenges.
What should you do?
If you’ve already filed your green card application, your application will be processed under existing rules. If you haven’t applied yet, you might want to move quickly and submit your paperwork before the public charge rule takes effect.
The rush to implement the public charge rule has been pretty chaotic, and it can be hard to keep up. Bookmark this page to stay on top of new developments, and use the Boundless Public Charge Risk Estimator to see how the new rules will affect your application.