Federal District Court Vacates Public Charge Regulation Nationwide

The issue

Today a federal district court in Illinois vacated the Department of Homeland Security (DHS) public charge regulation on the basis that the rule violates the Administrative Procedures Act (APA).  The court order takes effect nationwide immediately, and prevents U.S. Citizenship and Immigration Services (USCIS) from enforcing the public charge rule starting today. The case is Cook County et al. v Wolf et al. in the U.S. District Court for the Northern District of Illinois. 

USCIS is expected to acknowledge the decision and issue guidance on its impact to applicants for adjustment of status and nonimmigrant changes and extensions of status, but has not yet done so. Until the agency issues guidance, applications submitted without public charge documentation could be erroneously rejected by the agency.

Background

In Cook County, Judge Gary Feinerman granted a summary judgment order in favor of the Plaintiffs, agreeing with their APA claims that the public charge rule exceeded DHS authority and is arbitrary and capricious.  

Today’s decision follows a string of judicial rulings regarding preliminary injunctions of the public charge rule, which concerned temporary bars to enforcement of the rule while several lawsuits continue. The most recent preliminary injunction ruling was the Second Circuit's September 11, 2020 decision, which allowed USCIS to resume applying the public charge rule nationwide while Second Circuit legal challenges are pending. Today’s Cook County decision is within the jurisdiction of the Seventh Circuit and is a final decision on the merits of the district court case. It therefore supersedes the September 11 decision, and will remain in place unless and until it is overturned by the Seventh Circuit Court of Appeals or by the U.S. Supreme Court.

What this means for employers and foreign nationals

Starting today, DHS is not permitted to implement the public charge rule unless and until a higher court overturns its decision. However, USCIS has not yet updated its website guidance to reflect this new development. Until the agency acknowledges the Cook County court order and instructs its offices on the impact of the decision, employers and foreign nationals should be aware that erroneous rejection of applications filed without public charge forms and information could occur.

What’s next for the DHS public charge regulation

The government is expected to appeal the Cook Country district court decision to the Seventh Circuit Court of Appeals in an expedited manner. By the terms of the court order, however, USCIS may not implement the public charge rule while the appeal is pending.

Further, the public charge rule is still being challenged in several separate ongoing lawsuits. If the outcome of these lawsuits results in disagreement among Circuit Courts of Appeal on the rule’s legality, the cases may reach the U.S. Supreme Court for a final decision.

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 status of the DHS public charge rule and will issue further client alerts as developments occur.

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