The Inadmissibility on Public Charge Ground rule was published in the Federal Register on August 14, 2019 and became effective on October 15, 2019. The U.S. Department of Homeland Security (DHS) issued a rule interpreting the provision of the Immigration and Nationality Act (INA), ch. 477.66 (8 U.S.C. 1101 et seq.), that makes an alien inadmissible if, “in the opinion of “the Secretary of Homeland Security, the alien is “likely at any time to become a public charge.” 8 U.S.C. 118(a)(4)(A).

On November 3, 2020, the Seventh Circuit has issued an administrative stay of the N.D. of Illinois decision to vacate the DHS Public Charge Final rule pending an appeal which is effective immediately.

On November 2, 2020 a federal district court in Illinois vacated the Department of Homeland Security (DHS) public charge rule as a violation of administrative law. The ruling prevents U.S. Citizenship and Immigration Services (USCIS) from applying the public charge rule starting as of the date of the decision. The case is Cook County et al. v. Wolf et al. in the U.S. District Court for the Northern District of Illinois. (19-cv-6334). DHS may not apply the public charge rule as of November 2, 2020, including the submission of Form I-944, Declaration of Self-Sufficiency and the information contained therein.

The U.S. Citizenship and Immigration Services (hereinafter USCIS) agency reports that they will apply the Public Charge Final Rule to all applications and petitions postmarked or submitted electronically on or after February 24, 2020, including pending applications and petitions. The USCIS will not re-adjudicate applications or petitions approved in the period after the November 2 order by the U.S. District Court for the Northern District of Illinois to vacate the Public Charge Final Rule and before the administrative stay was issued on November 3, 2020.

If a Form 1-485, Application to Register Permanent residence or Adjust Status, is postmarked on or after February 24, 2020, a Form I-944, Declaration of Self-Sufficiency may be required as well as other forms such as the Form I-129, Petition for a Nonimmigrant Worker, Form I-129CE, Petition for a CNMI-Only Nonimmigrant Transitional Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; and Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

The following is a chronological history of the associated Court Decisions pertaining to the Public Charge Rule:

July 29, 2020 – U.S. District Court for the Southern District of New York (SDNY), in State of New York, et al. v. DHS, et al, and Make the Road NY et al. V. Cuccinelli, et al, enjoins DHS from enforcing, applying, implementing, or treating as effective the Public Charge Final Rule during a declared national health emergency. This decision issued during the current COVID-19 outbreak. (84 FR 41292, Aug. 14, 2019, final rule, as amended by 84 FR 52357, Oct. 2, 2019, final rule correction.)

August 12, 2020 - U.S. Court of Appeals for the Second Circuit, in State of New York, et al. v. DHS et al. and Make the Road NY et al. v. Cuccinelli, granted a temporary stay of the July 29, 2020, nationwide injunction in all states outside of the Second Circuit (that is, all states except New York, Connecticut and Vermont).

September 11, 2020 – U.S. Court of Appeals for the Second Circuit, in State of New York, et al. v. DHS et al. and Make the Road NY et al. v. Cuccinelli, granted a full stay of the July 29, 2020, injunction pending the government’s appeal. The full stay allowed DHS to resume implementation of the Public Charge Final Rule nationwide, including New York, Connecticut and Vermont.

November 2, 2020 – U.S. District Court for the Northern District of Illinois found the Public Charge Final Rule procedurally and substantively invalid under the Administrative Procedure Act and vacated the Public Charge Final Rule nationwide effective November 2, 2020.

November 3, 2020 – U.S. Court of Appeals for the Seventh Circuit issued an administrative stay of the U.S. District Court for the Northern District of Illinois’ November 2, 2020 decision that vacated the DHSC Inadmissibility on Public Charge Grounds Final Rule. The administrative stay allows DHS to resume implementing the Public Charge Final Rule nationwide.

Summary of Benefits Including for Public Charge

NOTE: The rule is not retroactive. This means that benefits -- other than cash or long-term care at government expense -- that are used before the rule is effective on February 24, 2020, will not be considered in the public charge determination.

Provided by Protecting Immigrant Families (https://protectingimmigrantfamilies.org/analysis-research/).