Virginia, US

Aug 12 2020

Second Circuit Allows DHS to Implement Public Charge Rule in All States Except Vermont, Connecticut, and New York

United States

At a glance

  • The Second Circuit Court of Appeals has limited a lower court nationwide injunction on the DHS public charge rule; the rule is now barred only in Vermont, Connecticut, and New York.
  • While the limited injunction is in effect, DHS may implement its public charge rule in all other U.S. states and the District of Columbia.
  • The agency has not yet issued guidance on how it will implement differing public charge standards across U.S. states.
  • Today’s decision does not affect the court order barring implementation of the Department of State public charge rule, which is enjoined in a separate lawsuit.

The issue

The Department of Homeland Security will be permitted to implement its public charge rule in all U.S. states except for Vermont, Connecticut, and New York, pursuant to a Second Circuit Court of Appeals order issued today. The Second Circuit limited the nationwide injunction issued by a lower court on July 29 to these three states only. The case is NY et al. v. DHS.

In Vermont, Connecticut, and New York, DHS must continue to apply the public charge guidance that was in place before the public charge rule effective date of February 24, 2020.

The rule significantly increases the burden on foreign nationals to establish that they will not become a “public charge” of the U.S. government in adjustment of status applications, and in nonimmigrant extension of stay and change of status requests.

Today’s decision does not affect the court order barring implementation of the Department of State public charge rule, which is enjoined in a separate lawsuit.

What’s next

DHS is expected to issue guidance regarding the filing of immigration applications impacted by the new limited injunction. It is expected that these applications must again adhere to the new public charge regulation form and documentation requirements. 

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