Updated: Public Charge Rule Vacated Nationwide

November 3, 2020 Sara Herbek

Update: Court of Appeals Stays Decision to Vacate Public Charge Rule Nationwide

This post was originally published on Tuesday, November 3, 2020 and was updated on Wednesday, November 4 to reflect new information. We are following the story closely and will continue to provide updates as they become available.

Key Points

  • The 7th Circuit Court of Appeals in Chicago issued an administrative stay to the Northern District Court of Illinois’ order to vacate the Public Charge Rule
  • As a result of this stay, the Public Charge Rule is now effective again
  • Adjustment of Status (AOS) applications must be filed with the Form I-944 along with related Public Charge information for certain nonimmigrant petitions and applications
  • Appellees must submit briefs by November 17, 2020
  • We anticipate another update later this month

Overview

On November 3, 2020, the U.S. Circuit Court of Appeals for the Seventh Circuit in Chicago, Illinois issued an administrative stay of the Northern District Court of Illinois’ recent order vacating the Public Charge Rule nationwide. The court’s decision follows an appeal by the defendants: Acting Secretary of the U.S. Department of Homeland Security (C. Wolf), the U.S. Department of Homeland Security, a federal agency, Acting Director of the U.S. Citizenship and Immigration Services (K. Cuccinelli) and the U.S. Citizenship and Immigration Services, a federal agency. Appellees must submit briefs by November 17, 2020.


Public Charge Rule Vacated Nationwide

Key Points

  • The Federal District Court in the Northern District of Illinois in Chicago, Illinois vacated the Public Charge Rule effective November 2, 2020
  • The Public Charge Rule is vacated nationwide
  • Starting today (November 2), DHS can no longer apply the Public Charge Rule
  • The latest ruling follows extensive litigation on the Public Charge Rule since its implementation

Overview

On November 2, 2020, the Federal District Court vacated the Public Charge Rule nationwide. Effective immediately, the Department of Homeland Security (DHS) can no longer apply the Public Charge Rule.

Background

The Public Charge Rule was implemented on February 24, 2020. It has been the subject of ongoing litigation since then. Two nationwide injunctions were issued against DHS in July 2020 that temporarily blocked the Trump Administration from enforcing the Public Charge Rule due to the COVID-19 pandemic. On September 22, 2020, DHS reimposed the Public Charge Rule nationwide.

Who is Affected?

The Public Charge Rule impacts anyone who receives certain federal benefits, including all immigrant (IV) and nonimmigrant visa (NIV) applicants with limited exceptions. DHS considers foreign nationals who are likely to become a public charge at any time inadmissible to the U.S. and ineligible for lawful permanent resident status. DHS considers a public charge to be a foreign national who has received one or more public benefits for more than 12 months in a 36-month time period.

What has Changed?

On November 2, 2020, the Federal District Court ruled that the Public Charge Rule violates the Administrative Procedure Act. Specifically, the court ruled that the Public Charge Rule exceeds DHS’s authority under the public charge provision of the Immigration and Nationality Act (INA). The court ruled that the Public Charge Rule is not in accordance with the law, and it is arbitrary and capricious.

What are the Impacts?

Vacatur of the Public Charge Rule is effective immediately. Additionally, Form I-944 and supplemental questions on Forms I-129s and I-539s are no longer required; however, USCIS has yet to provide guidance following this decision. We will continue to monitor as updates become available.


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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