Public Charge Remains in Place After Seventh Circuit Stays Lower Court Decision
November 4, 2020
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At a Glance
- The Seventh Circuit Court of Appeals has stayed a lower court decision that vacated the Department of Homeland Security (DHS) public charge rule, permitting the agency to continue implementing the rule for now.
- Public charge forms and documentation will be required for adjustment of status applications and nonimmigrant extension and change of status applications until further notice.
- The legality of the public charge rule is being challenged in various jurisdictions. Disagreements among appeals courts could mean that the U.S. Supreme Court makes a final decision on whether the public charge rule is lawful.
The issue
The Seventh Circuit Court of Appeals has put the Department of Homeland Security (DHS) public charge rule back in effect by placing an administrative stay on a November 2 lower court ruling blocking the rule. The case is Cook County et al. v Wolf et al.
On November 2, a federal district court in Illinois vacated the public charge regulation nationwide on the basis that the rule violates the Administrative Procedures Act (APA). DHS appealed the decision quickly and requested the lower court decision be halted while the appeal moves forward. The appeals court granted this request and therefore, U.S. Citizenship and Immigration Services (USCIS) may implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.
What this means for employers and foreign nationals
Until further notice, adjustment of status applications and nonimmigrant extension and change of status applications must 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 a back and forth on USCIS authority to implement the rule. Further, 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.
