Public Charge Rule Can Move Ahead, Supreme Court Rules

January 28, 2020 Erik Prado

Update to this ruling: On August 4, 2020, the Second Circuit Court upheld a previous injunction on the Department of Homeland Security’s (DHS) Public Charge rule that went into effect in February of this year, but limited the injunction to New York, Connecticut and Vermont. On August 5, 2020, a ruling from the Fourth Circuit Court of Appeals reversed a previous injunction from a lower court blocking the Public Charge rule.

However, a nationwide injunction issued on July 29, 2020 suspending the Public Charge rule in all 50 states will remain in place as long as there is a declared national health emergency in response to the COVID-19 pandemic.  

It is important to note that both of the aforementioned rulings are unrelated to the nationwide suspension and do not impact its standing in any way. As such, the new Public Charge rule is not being implemented due to this injunction. Please read here for more information.


What Happened?

The Supreme Court ruled that the Trump administration can move forward with implementing its new and expanded “public charge” rule, which applies to immigrant visas (e.g., green card applications) and certain employment-based nonimmigrant visas (e.g., H-1B petitions). 

Essentially, this rule can make it more difficult for foreign nationals to establish eligibility to receive green cards or nonimmigrant status in the U.S. 

This rule allows the administration to deny immigrant visas or certain employment-based nonimmigrant visas to foreign nationals if they are dependent on, or will likely become dependent on public-assistance programs. These programs can include food stamps, housing assistance or Medicaid.

The 5-4 decision overturns injunctions from lower courts that had blocked the rule from going into effect during the fall. The decision was divided along ideological lines.

Next Steps

The Trump administration is now expanding its definition of public charge. The administration will deem anyone a public charge if she or he receives benefits “for more than an aggregate of 12 months over any 36-month period…” according to Reuters.

Trump’s public charge rule can move forward across the country even though there are multiple outstanding legal challenges in the lower courts. 

Sign of Things To Come?

Following the ruling, Justice Neil Gorsuch issued an opinion in which he seemingly indicated his frustrations with the use of nationwide injunctions that federal courts have used to block some of the Trump administration’s rules and policies.

“We might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions,” wrote Justice Gorsuch.

His opinion is important to keep in mind because there is a presidential proclamation that was also blocked by federal judges last fall. This proclamation would have required immigrants seeking to obtain a visa prove they have health insurance or the financial means to pay for medical costs.

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Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is the Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.

 

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