Ninth Circuit Delays Its Decision to Bar Application of DHS Public Charge Rule for Several States

The issue

The U.S. Court of Appeals for the Ninth Circuit has ruled to delay its December 2020 decision that temporarily barred the enforcement of the Department of Homeland Security (DHS) public charge rule in almost 20 states and Washington DC. The case is State of Washington et. al. v DHS (19-35914). Today the Ninth Circuit granted DHS’s request to delay the effective date of the December decision until the U.S. Supreme Court determines whether it will grant writs of certiorari in two separate public charge cases (Wolf v Cook County, No. 20-450, and DHS v New York, No. 20-449). Writs were submitted to the Court in both cases in early October 2020.

The DHS public charge rule remains in effect nationwide at this time. The rule has been the subject of a string of judicial rulings, which have resulted in a back and forth of DHS’s authority to enforce it.

Background

Today’s 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).

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 early December 2020, upon full review of the case, a split Ninth Circuit panel ruled for the Plaintiffs and affirmed the lower court temporary injunctions. At the same time, the court removed any nationwide applicability, meaning the injunctions would apply only to the nearly 20 Plaintiff states and Washington DC.

What this means for employers and foreign nationals

Today’s decision means that the public charge rule will remain in effect for State of Washington Plaintiffs until the U.S. Supreme Court determines whether to hear one of two separate challenges to the public charge rule.

Since the rule continues to be in effect nationwide, adjustment of status applications and nonimmigrant extension and change of status applications should continue to be submitted with public charge forms and documentation.

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 DHS authority to implement the rule in various states or nationwide as challenges continue to seek review of the Supreme Court.

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.

President Biden has said that his Administration plans to repeal the public charge rules. Fragomen is closely monitoring the ongoing public charge litigation as well as policy developments on the rule.

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