USCIS Expected to Re-Implement the Public Charge Rule Soon, After Federal Appeals Court Stays Lower Court Injunction

The issue

Following a recent Supreme Court decision, the U.S. Court of Appeals for the Second Circuit ruled that a federal district court did not have the authority to enjoin the Department of Homeland Security (DHS) from requiring applicants for adjustment of status and changes or extensions of nonimmigrant status to comply with 2019 public charge regulations. The case is New York et al. v. Department of Homeland Security.

The decision is the latest in a string of rulings concerning the public charge regulation. Most recently, on July 29, a New York federal district court barred DHS from enforcing the regulation during the COVID-19 national emergency; days later, the Second Circuit restricted the injunction to Connecticut, New York, and Vermont while the lawsuit continues. Shortly thereafter, DHS asked the Second Circuit to stay that limited injunction, arguing that the Supreme Court has allowed the agency to enforce the rule while challenges to it are litigated. Friday’s ruling is the result of that request.

The DHS public charge regulation is being challenged in several federal lawsuits; those lawsuits continue. Separately, an injunction that prohibits the State Department from enforcing its separate public charge regulation for foreign nationals applying for visas outside of the United States remains in place.

What this means for employers and foreign nationals

USCIS is expected to issue instructions requiring applicants and petitioners to comply with the public charge regulation when filing Form I-485 applications for adjustment of status and nonimmigrant applications to change or extend nonimmigrant status on Forms I-129 and I-539/I-539A. The agency is expected to resume requiring adjustment applicants to submit detailed personal and financial information on Form I-944, the declaration of self-sufficiency, unless otherwise exempt. The forthcoming USCIS instructions are also expected to provide information on public charge compliance for cases that were filed while the regulation was enjoined.

Fragomen is closely monitoring the status of the DHS public charge rule and will issue further client alerts as USCIS issues implementation instructions.

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