Dec 03 2020

Ninth Circuit Reinstates Bar on Public Charge for Several States; Government Response Awaited

United States

At a glance

  • The U.S. Court of Appeals for the Ninth Circuit has reinstated two lower court preliminary injunctions, barring the Department of Homeland Security from enforcing the public charge rule in almost 20 states.

  • The government could quickly request a stay of the decision or appeal of the decision.

  • U.S. Citizenship and Immigration Services has not yet issued guidance on its implementation of the court order.

  • If implemented, the preliminary injunction would apply to the U.S. States of California and Washington as well as to their co-plaintiffs in the lawsuits: the District of Columbia, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, and Virginia.

The issue

The U.S. Court of Appeals for the Ninth Circuit has reinstated two lower court preliminary injunctions that temporarily bar enforcement of the Department of Homeland Security (DHS) public charge rule in several states and Washington DC. The case is State of Washington et al. v DHS (19-35914).

DHS could quickly request a stay of the decision, which if granted, would permit continued nationwide enforcement of the public charge rule.

U.S. Immigration and Citizenship Services (USCIS) has not provided guidance on the revived preliminary injunctions. Until it does so, submitting applications without public charge documentation where required risks rejection of the immigration benefit application.

Background

The Ninth Circuit ruling results from district court orders in the consolidated cases of City and County of San Francisco; County of Santa Clara v USCIS et al. (19-cv-04717) and State of California et al. v DHS et al. (19-cv-04975) and the separate case State of Washington et al. v DHS et al. (19-cv-05210).

Plaintiffs in the State of California case are California, the District of Columbia, Maine, Pennsylvania and Oregon. Plaintiffs in the State of Washington case are Washington, Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island.

Preliminary injunctions in these cases were initially issued in late 2019, but were quickly stayed by a divided panel of the Ninth Circuit Court of Appeals while appeals were pending. In staying the injunctions and permitting enforcement of the pubilc charge rule, the Ninth Circuit had found that DHS was likely to prevail on the merits of the case.

The December 2 ruling

After consideration of a more complete record, a split Ninth Circuit panel has now affirmed the lower court temporary injunctions, finding fault with DHS’s assessment of the rule’s financial impact and effect on public health and safety. At the same time, the court removed any nationwide applicability, meaning the injunctions will apply only to the territories of the Plaintiffs. However, there may be further court filings required in order to apply the newly narrowed injunction to all Plaintiff states in the State of Washington case.

Yesterday’s decision follows a string of judicial rulings regarding the public charge rule, which have resulted in a back and forth of USCIS’s authority to enforce the rule.

What this means for employers and foreign nationals

Though the Ninth Circuit ruling temporarily bars the public charge rule in Plaintiff states, the government may appeal the decision and seek a speedy stay or reversal.

In addition, until USCIS has issued instructions on its implementation of the injunctions, adjustment of status applications and nonimmigrant extension and change of status applications submitted without public charge forms and documentation risk rejection by the agency.

What’s next for the DHS public charge regulation

The public charge rule is being challenged in several separate ongoing lawsuits. There could continue to be quick reversals of USCIS authority to implement the rule in various states or nationwide. The cases may reach the U.S. Supreme Court for a final decision on the rule’s legality.

Separately, the State Department remains barred from enforcing its public charge regulation, which is applicable to foreign nationals applying for visas from outside of the United States.

Fragomen is closely monitoring the ongoing DHS public charge litigation and any USCIS guidance on public charge implementation.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.