Federal District Court Blocks Enforcement of DHS Public Charge Regulation (Updated)

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At a glance

• A federal district court has issued a nationwide preliminary injunction that prohibits the Department of Homeland Security from enforcing a regulation that sought to apply strict new standards for determining whether a foreign national is a “public charge.”
• If implemented, the rule would have subjected applicants for adjustment of status and nonimmigrants seeking a change or extension of status to higher scrutiny of their personal circumstances.
• DHS is expected to appeal the ruling.

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The issue

Judge George Daniels of the Federal District Court for the Southern District of New York has enjoined the Department of Homeland Security (DHS) from enforcing its new public charge regulation, which was to take effect on October 15, 2019.

The regulation seeks to broaden DHS’s authority to determine whether certain foreign nationals will become a public charge of the United States and to expand that inquiry to nonimmigrants seeking an extension or change of status.

Judge Daniels’ ruling was issued in State of New York v. Department of Homeland Security. In the wake of the ruling, two other federal district courts have enjoined the regulation. In State of Washington v. Department of Homeland Security, a federal judge in the Eastern District of Washington issued a second nationwide injunction against the regulation. In City and County of San Francisco v. USCIS, a federal judge in the Northern District of California issued an injunction that applies only to residents of certain states; the limited nature of this injunction does not affect the two nationwide injunctions. A number of other lawsuits against rule remain pending in federal district courts in around the United States. 

Impact on related rules

Judge Daniels’ ruling applies to the DHS public charge regulation only. 

Today, the State Department issued a similar regulation that imposes a higher public charge standard on applicants for immigrant and nonimmigrant visas at U.S. consulates. That rule is set to take effect on October 15 and is not affected by Judge Daniels’ order, though it could be challenged separately. 

A presidential proclamation issued last week will require applicants for immigrant visas to demonstrate that they will have unsubsidized health insurance within 30 days after entry to the United States or the financial resources to pay for reasonably foreseeable medical expenses. The proclamation is set to take effect on November 3. It is likewise not affected by today’s court ruling.

What this means for employers and foreign nationals

Until further notice, applicants for adjustment of status will not be subject to the higher public charge standards of the regulation, including the requirement to provide detailed documentation of their personal financial circumstances. It also means that nonimmigrants will not be subject to questions about use of public benefits when applying for a change of status or an extension of stay.

However, because the ruling does not apply to the State Department public charge regulation or the presidential proclamation, applicants for U.S. immigrant and nonimmigrant visas should expect additional scrutiny at U.S. consulates.

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