We have been closely tracking the new Public Charge Rule that was initially set to take effect on October 15, 2019. January 27, 2020 marked another important development as the U.S. Supreme Court issued a 5-4 decision to stay the current nationwide injunction of the rule. With that, the Trump administration can now move forward with enforcing a rule that will greatly expand the ability for immigration officials to deny entry or legal status to individuals that have accepted public benefits.

As outlined in our previous posts*, the history surrounding the rule has had many twists, turns and uncertainties. The key initial development occurred in August 2019 when the U.S. Department of Homeland Security (DHS) published a final rule on inadmissibility based on public charge grounds. The new rule set out to drastically expand the definition of “public charge” and integrate a wider range of public benefit programs that could lead to public charge concerns and ultimately a determination of inadmissibility. The new rule defines “public charge” and “public benefit” by using a totality of circumstances approach for making a public charge inadmissibility determination that weighs the foreign national’s age, health, family status, education and skills, assets, resources and financial status, taking into account a broad range of positive and negative factors. However, as the October 2019 implementation date approached, there was wide-spread uncertainty as to how the new rules would actually be implemented, particularly as U.S. Citizenship and Immigration Services (USCIS) had yet to finalize and publish revised immigration forms such as the I-129, I-539 and I-864 as well as the brand new form I-944 Declaration of Self-Sufficiency that would be used to collect the public benefit information. USCIS finally released the new version of forms on October 9, 2019, just three weekdays before the new rule was set to take effect, causing great consternation to employers, applicants and practitioners alike as everyone sought to digest the new information being requested and potential impacts.

However, the U.S. District Courts for the Southern District of New York, Northern District of California, Eastern District of Washington, Northern District of Illinois and District of Maryland all acted quickly and ordered that DHS could not implement and enforce the final rule. The effective date of the final rule was also postponed until a resolution on the cases was finalized. With the Supreme Court decision just handed down, the administration can now move forward with implementing the rule while the underlying litigation continues, at least temporarily. One exception currently exists in Illinois, where the litigation resulted in a state-specific injunction. For now, the rule is still enjoined in Illinois.

USCIS has yet to provide information on how they will proceed given this latest development. One clear point is that the Public Charge question is poised to become a critical point of assessment and a potential challenge for a wide range of both family and employment-based immigration cases moving forward.

* Read our previous insights on this topic: