Federal judge issues temporary nationwide injunction blocking new ‘public charge’ rule

A federal judge issued a preliminary nationwide injunction late last week blocking the enforcement of the new "public charge" rule, which was set to take effect Tuesday, Oct. 15. Below, co-managing partner Hannah Little discusses the impact of the ruling and what it could mean moving forward.

Q: What, exactly, does the term "public charge" mean, and is it something that is completely new?

Hannah Little (HL): Some context on what we mean when we say "public charge" and determining that someone is a public charge is important. The Immigration and Nationality Act, which is the statute that governs Immigration Law in the U.S., has long held that somebody who is likely to become a "public charge" is inadmissible to the U.S., meaning they’re ineligible to become a green card holder.

The determining factor, historically, has been whether an applicant was either dependent, or likely to be dependent, on government assistance for their day-to-day living or likely to be subject to long-term institutionalization at government expense. In other words, they were unable to be independently self-sufficient.

Q: What were the changes to the "public charge" rule set to take effect before the judge’s ruling?

HL: In August last year, the government substantially revamped the long-standing definition of who is likely to become a public charge, expanding it to anyone who has either utilized public benefits for a total of 12 months out of the last three years, or is likely to use public benefits for a total of 12 months in the future. Again, that substantially recharacterizes the prior interpretation of someone likely forever dependent on the government for their care and maintenance, effectively expanding it to include situations where folks might need short-term stop gaps.

The other piece that was alarming about the new "public charge" rule is the series of factors that U.S. Immigration Officers were instructed to consider when determining whether somebody would be likely to become a "public charge." Those factors include family size, English language proficiency, credit scores, and any application for certain public benefits, regardless of actual use or receipt of the benefits. It is a much more invasive and all-encompassing calculation than it had been previously.

Q: What does the judge’s ruling mean for the implementation of those changes?

HL: There are multiple ongoing lawsuits challenging the merits of this change to the "public charge" rule. We didn’t have any decision on those until Friday afternoon, and it was set to go into effect on Tuesday. That caused quite a bit of alarm and concern in the immigration community.

Luckily, the Southern District of New York, which was dealing with a lawsuit that was filed by the states of New York, Connecticut and Vermont, issued a preliminary nationwide injunction. This is a temporary reprieve from the implementation of this rule and what it would entail.

Q: Will this injunction become permanent?

HL: Based on the language of the preliminary injunction and the fact that there are several other pending lawsuits across the country, we are hopeful that this will eventually become a permanent injunction and that our clients will never have to deal with this new onerous calculation and documentation.

But that remains to be seen. The preliminary injunction is in place to stop the rule going into effect. The lawsuit has not been resolved. So, we are continuing to monitor to see what happens until the final determination by the court.

Q: How long will the temporary injunction last?

HL: It’s unclear because the preliminary injunction has, essentially, put off implementation of this rule until there is further order of the court. What that means is, at this point, the parties have additional opportunities to brief and to argue their motions before the court, before the court issues its final ruling.

There’s no finite time period on the injunction. It will remain in effect until the judge makes his final ruling.

Q: Are there any next steps you recommend clients take?

HL: I don’t recommend clients take immediate action. As I mentioned, the fact that there are more than 20 separate jurisdictions involved in various litigations challenging this lawsuit, and the strong language from the judge in issuing this preliminary injunction — that essentially confirms that the government has gone beyond the initial statutory intent of the public charge ground of inadmissibility and has been arbitrary and capricious in its rule making. I’m encouraged that clients won’t ever have to take action or plan based on this rule.

If it looks like these various lawsuits are going to be unsuccessful, or if the preliminary injunction is lifted, then my recommendation to those clients who are in the green card application process would be to start gathering relevant documents such as a U.S. Credit report generated in the last 12 months; a copy of your IRS tax transcript from the most recent year; a letter from your health insurance company confirming your current coverage, family members covered and the terms of your policy; evidence of current assets like bank statements, stocks and investments and copies of education documents, including degrees and transcripts, along with any professional certifications.

Q: Is there anything else you think clients should be aware of moving forward?

HL: Clients can trust us to continue to monitor and let them know as soon as the circumstances evolve. As they can see from our communications, and just from the fact we received this injunction on the afternoon of Friday, Oct. 11, before the rule was set to take effect at midnight Tuesday, Oct. 15, this is an ever-changing landscape with a lot of fast-moving changes to the immigration world. We are monitoring all of them closely and making sure to reach out and advise as it impacts our clients.