Judge writing on clipboard.

Latest updates regarding the ‘public charge’ rule

The “public charge” rule remains in effect.

Judge Gary Feinerman, of the United States District Court for the Northern District of Illinois, vacated the “public charge” rule earlier this month , finding that the guidelines were not “in accordance with law;” were “arbitrary and capricious;” and exceeded the Department of Homeland Security’s authority under the public charge provision of the Immigration and Nationality Act.

However, the Seventh Circuit Court of Appeals granted the Trump administration’s request Nov. 4 for an administrative stay of Feinerman’s ruling. The stay will last at least two weeks and means that U.S. Citizenship and Immigration Services (USCIS) can once again implement the new “public charge” guidance.

Garfinkel Immigration Law Firm continues to monitor the situation closely and will alert clients as the situation evolves.

‘Public charge’ rule background information

In early 2020, USCIS implemented extensive regulations for determining whether a foreign national would be deemed inadmissible to the U.S. based upon the likelihood of becoming a public charge at any time in the future.

Applicants for Adjustment of Status, as well as sponsoring employers and beneficiaries of applications to change or extend nonimmigrant status on Forms I-129 and I-539, are subject to the procedures and requirements.

USCIS guidance specifies that the following benefits could be considered as part of a “public charge” determination:

  • Any federal, state, local or tribal cash assistance for income maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
  • Public Housing under section 9 of the Housing Act of 1937, 42 U.S.C. 1437 et seq.
  • Federally funded Medicaid (with certain exclusions)

While the “public charge” rule is in place, the mere receipt of the above benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent residency or deportable on public charge grounds, as each determination is made on a case-by-case basis in the context of the totality of the circumstances.


Previous injunctions and rulings

Multiple federal judges blocked the “public charge” rule in late 2019, but the Supreme Court lifted those temporary injunctions while legal challenges continued. USCIS then implemented in late February the extensive new regulations and guidelines.

A federal judge in New York again temporarily blocked the policy nationwide in late July during the coronavirus (COVID-19) pandemic, an order that was then narrowed to only apply in New York, Connecticut and Vermont. That injunction was completely overturned less than two months before the two rulings in early November from Feinerman and the Seventh Circuit Court of Appeals.

Note: This article was last updated on Nov. 9

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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