August Network – October 19, 2020 – on Immigration and Visa
On Sept 11. 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.
Therefore, USCIS will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020 including pending applications and petitions.
USCIS also announced that they will not re-adjudicate any applications and petitions that were approved following the issuance of the July 29, 2020, injunction continuing until the date of this notice.
What is the Public Charge Rule?
DHS originally promulgated the public charge rule on August 14, 2019. The rule went into effect on February 24, 2020, following a preliminary injunction on October 11, 2019, which the Supreme Court of the United States ultimately stayed.
The rule defines “public charge” as an alien who receives one or more certain public benefits for more than 12 months in the aggregate within any 36-month period. The rule applies only to public benefits received on or after February 24, 2020. For all the details in the regulation, please refer to https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge
Since the rule went into effect, adjustment of status (i.e., green card) applicants have been required to submit the new Form I-944, which requires submission of substantial documentation, including information related to household income and assets, debts and liabilities, credit history, use of public benefits, education level, and health insurance. In addition, nonimmigrant visa applicants seeking to change or extend their status have been required to make attestations regarding their receipt of certain public benefits.
Applicants for adjustment of status need not report the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (for example, the Supplemental Nutrition Assistance Program, Medicaid, and public housing) before Feb. 24, 2020.
USCIS will also not weigh heavily in the totality of the alien’s circumstances the receipt of certain previously included public benefits (for example, Temporary Assistance for Needy Families, Supplemental Security Income, and General Assistance) if received before Feb. 24, 2020.
History of Court Decisions
On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY), in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al., enjoined DHS from enforcing, applying, implementing, or treating as effective the public charge rule during a declared national health emergency. The decision was issued during the COVID-19 outbreak. (84 FR 41292, Aug. 14, 2019, final rule; as amended by 84 FR 52357, Oct. 2, 2019, final rule correction.)
On July 30, 2020, we announced that we would apply the 1999 public charge guidance when adjudicating any application for adjustment of status on or after July 29, 2020, and while the injunction was in place. We also announced that we would use the regulations that were in place before the public charge final rule was implemented on Feb. 24, 2020, to adjudicate applications and petitions for extension of nonimmigrant stay and change of nonimmigrant status (that is, we would not apply the public benefit condition while the injunction remained in place).
On Aug. 12, 2020, the U.S. Court of Appeals for the Second Circuit, in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, granted a temporary stay of the July 29, 2020, nationwide injunction in all states outside of the Second Circuit (that is, all states except New York, Connecticut and Vermont).
On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit, in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, granted a full stay of the July 29, 2020, injunction pending the government’s appeal. This full stay allows DHS to resume implementing the public charge final rule nationwide, including in New York, Connecticut and Vermont.