12.7.20

The “Inadmissibility on Public Charge Grounds” rule issued by the U.S. Department of Homeland Security in 2019 (also known as the “Public Charge Rule”) has had its ups and downs. The rule includes the requirement that each I-485 applicant for a “green card” file the burdensome Form I-944, Declaration of Self-Sufficiency.

In a recent “down/up,” on December 2, the U.S. Court of Appeals for the Ninth Circuit upheld injunctions against the Public Charge Rule that had been issued by federal courts in California and Washington State. According to the court, the rule was inconsistent with the longstanding interpretation of the term “public charge.” Moreover, the court said, the rule was arbitrary and capricious because the DHS failed to consider all of the consequences of the rule and failed to adequately explain its abrupt change in policy. However, the appeals court vacated a nationwide injunction issued by the federal court in Washington State, which means that the injunctions now apply only in the jurisdictions that were plaintiffs in the lawsuit.

The appeal involved three consolidated cases against the DHS and the U.S. Citizenship and Immigration Services. Two of the lawsuits were filed by 18 states (California, Colorado, Delaware, Hawaii, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, New Jersey, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, and Washington), and the District of Columbia. The third lawsuit was brought by the City and County of San Francisco, and Santa Clara County (California).

The ups and downs of the Public Charge Rule

The Public Charge Rule has had its ups and downs this year in the federal courts. The following is an overview, adapted from a December 3 and an earlier post on the website of the American Immigration Lawyers Association (paid AILA membership is required for access):

Down. On July 29, a federal judge in the Southern District of New York issued a nationwide injunction against the Public Charge Rule. The injunction was to be in place for the duration of the State of National Emergency related to COVID-19.

Up. Meanwhile, on August 5, the U.S. Court of Appeals for the Fourth Circuit (Maryland, the Carolinas, Virginia, and West Virginia) reversed a nationwide injunction imposed by a federal court in Maryland, and upheld the Public Charge Rule.

Up. On August 12, the U.S. Court of Appeals for the Second Circuit limited the New York injunction to the three Second Circuit states -- Connecticut, New York, and Vermont -- which meant that the Public Charge Rule remained in effect everywhere else in the United States. On September 11, the Second Circuit vacated the injunction entirely, which meant that the rule applied even in Connecticut, New York, and Vermont.

Down. On November 2, a federal judge in Chicago said that the Public Charge Rule was issued in violation of the Administrative Procedure Act and issued a nationwide injunction.

Up. The next day (November 3), the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) stayed the nationwide injunction issued by the court in Chicago. The Seventh Circuit affirmed the stay on November 19.

Down/Up? On December 2, the Ninth Circuit issued its decision, which upheld the injunctions as applied in the jurisdictions that had sued but vacated the nationwide injunction.

What’s next?

It is not yet clear what action the DHS or the USCIS will take in response to the Ninth Circuit ruling. The Administration could seek a stay from the Ninth Circuit or the U.S. Supreme Court.

However, with the expected change in administrations, the long-term outlook is positive. In addition to dropping any appeals, petitions for certiorari, or efforts to have the decision stayed, a Biden Administration would probably seek to have the Public Charge Rule rescinded altogether. (Doing that would require notice, a period for public comment, and consideration of the comments, so rescission could take a while.)

Meanwhile, I-485 applicants -- even those residing in the jurisdictions covered by the Ninth Circuit ruling -- should continue to comply with the Public Charge Rule. As of now, there has been no recognition by the DHS or the USCIS of the Ninth Circuit’s ruling. Thus, applicants who fail to file Form I-944 may risk rejection of their I-485 applications.

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