Public Charge Rule is still in effect . . . but for how much longer?

This is an update to what we reported in December on the status of the “Public Charge Rule.” The rule remains in effect, but it is likely to either be rescinded by the Biden Administration or enjoined by a court. In the meantime, I-485 applicants for green cards should continue to comply with the rule.

Background

The Public Charge Rule, issued by the Trump Department of Homeland Security in 2019, includes a requirement that each I-485 applicant for a “green card” file the burdensome Form I-944, Declaration of Self-Sufficiency.

On December 2, 2020, the U.S. Court of Appeals for the Ninth Circuit, in an appeal that involved three consolidated cases against the DHS and the U.S. Citizenship and Immigration Services, upheld injunctions against the Public Charge Rule that had been issued by federal courts in California and Washington State. However, the nationwide injunction issued by the federal court in Washington State was vacated. The federal government (under President Trump) then moved to stay issuance of the Ninth Circuit mandate until the U.S. Supreme Court could rule on the government’s petition for certiorari. On January 20, the Ninth Circuit granted the government’s motion, which effectively “stays,” or puts on “hold,” the ability of the Biden Administration to enforce the injunctions.

Actions by the Biden Administration

The Biden Administration has not rescinded the Public Charge Rule. However, on February 2, President Biden issued an Executive Order titled “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” That Executive Order expressed a significantly more pro-immigration tone than that of the prior Administration. Among other things, the EO ordered the Secretaries of State and Homeland Security, and the Attorney General, to make recommendations intended to improve the naturalization process and promote naturalization. Although the EO did not specifically address whether the Public Charge Rule is to be enforced, it did revoke President Trump’s Memorandum of May 23, 2019, “Enforcing the Legal Responsibilities of Sponsors of Aliens.” The focus of that Memorandum was the obligations of legal sponsors of foreign nationals to reimburse the government if the sponsored individual received public benefits. The Memorandum directed agencies to address the concern that “[c]urrently agencies are not adequately enforcing these requirements.”

In addition, President Biden’s February 2 EO directed the Secretaries of State and Homeland Security, and the Attorney General (as well as the heads of other relevant agencies), as appropriate, “to review all agency actions related to implementation of the public charge ground of inadmissibility ...and the related ground of deportability ...,” and to issue a report by April 3.

Outlook

Because the Public Charge Rule has already taken effect, rescinding it would require the Biden Administration to first provide the public with notice and a period for public comment, all of which could take several months. This is likely to happen in the longer term, but here are the short term possibilities:

• The Biden Administration could withdraw the petitions for certiorari that the Trump Administration filed with the U.S. Supreme Court, or the Supreme Court could deny certiorari. In either case, the Ninth Circuit would be likely to issue its mandate. The nationwide injunction has been vacated and will not be restored, but the Public Charge Rule would be enjoined in the jurisdictions that filed the lawsuits (18 states and the District of Columbia).

• If the Supreme Court agrees to review the Ninth Circuit ruling, it is likely that the stay of the injunctions will remain in place until the Supreme Court issues its ruling.

• Several other lawsuits have challenged the Public Charge Rule. It is possible that another court, issuing a decision in one of these other cases, could issue a nationwide injunction.

• If the courts do not enjoin the rule, then the Biden Administration will have to rescind the rule, following the process described above.

While we wait, we recommend that I-485 applicants everywhere -- even those residing in the jurisdictions covered by the Ninth Circuit ruling -- continue to comply with the Public Charge Rule.

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