Federal District Court Temporarily Blocks Public Charge Requirement

August 8, 2020

On Wednesday, July 29th, the U.S. District Court for the Southern District Court of New York enjoined the Department of Homeland Security from enforcing its public charge final rule for the duration of the declared COVID-19 national emergency. Under the public charge final rule, which took effect on February 24 of this year, the USCIS could deny foreign nationals certain immigration benefits (green cards, changes of status, and extensions of stay) if the agency determined that the individual would more than likely become a public charge at any time in the future. Notably, under this rule, green card applicants are required to disclose receipt of any public assistance and provide documentation of federal income tax returns, credit reports, proof of assets and liabilities, among other financial documentation, on Form I-944. The USCIS, in the interim during the declared national emergency, will not reject green card applications on the basis of the inclusion or exclusion of Form I-944, nor will they reject requests for changes of status or extensions of stay based on whether the beneficiary has disclosed receipt of public benefits on Forms I-129 or Forms I-539.

 

In addition, the court issued a separate injunction that enjoins the Department of State (DOS) from implementing its interim Final Rule on Public Charge, as well as the Presidential Proclamation requiring immigrants to have healthcare insurance coverage, during the COIVD-19 pandemic. The DOS announced today that it will comply with the court’s injunction and is in the process of updating its guidance to consular officers. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders. Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. Applicants are not required to complete nor should they present the DS-5540, Public Charge Questionnaire. These temporary injunctions are nationwide, and we will provide an update when they are lifted.

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