On August 4, 2020, the U.S. Court of Appeals for the Second Circuit extended a temporary restraining order in Connecticut, New York, and Vermont, upholding a prior injunction against the public charge final rule implemented by the Trump administration in February 2020.
Also, on July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) issued a nationwide injunction barring the Department of Homeland Security from enforcing, applying, implementing, or treating as effective the public charge final rule for any period during which there is a declared national health emergency in response to the COVID-19 pandemic.
U.S. Citizenship and Immigration Services (USCIS) stated that as long as the SDNY decision is in effect, the agency will apply the 1999 public charge guidance that was in place before the public charge rule was implemented on February 24, 2020, to the adjudication of any application for adjustment of status on or after July 29, 2020. In addition, USCIS said it will adjudicate “any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition.”
For applications and petitions that USCIS adjudicates on or after July 29, 2020, pursuant to the SDNY injunction, USCIS will not consider any information provided by an applicant or petitioner that only relates to the evidence required by the Public Charge Rule, including information provided on the Form I–944 or any supporting documentation included with that form, or information on the receipt of public benefits in Part 5 on Form I–539, Part 3 on Form I–539A, Part 6 on Form I–129, or Part 6 on Form I–129CW, or any additional documentation pertaining to the public benefit condition. Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I–944 or provide information about the receipt of public benefits on Form I–485, Form I–129, Form I–129CW, Form I–539, or Form I–539A.
USCIS will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I–485 on the basis of the inclusion or exclusion of Form I–944, nor Forms I–129 and I–539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.
In any public charge inadmissibility determination, USCIS said, it will consider the receipt of public benefits consistently with prior public charge guidance.
The Department of State (DOS) also issued a statement on August 7, 2020, in relation to the SDNY ruling. DOS said it is complying with the order and is updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, DOS said:
[V]isa 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.
- “Injunction of the Inadmissibility on Public Charge Grounds Final Rule,” USCIS
- USCIS Policy Manual, Alert, Part G—Public Charge Ground of Inadmissibility
- Public Charge page, USCIS
- “Update on Public Charge,” DOS
- Prior public charge guidance, Federal Register notice (March 28, 1999)
- “Featured Issue: Public Charge Changes at USCIS, DOJ, and DOS.”