Judge Vacates Public Charge Rule But Seventh Circuit Stays The Order

Jackson Lewis P.C.

The U.S. Seventh Circuit Court of Appeals issued an administrative stay a day after a federal district court held the Public Charge Rule violated the Administration Procedures Act (APA)  and issued summary judgment in favor of the plaintiffs. 

During October 2020, thousands of Adjustment of Status (AOS) applications were filed by individuals and law firms around the country following the U.S. Citizenship and Immigration Service’s (USCIS) September announcement that for the month of October it would use the Department of State’s Dates for Filing Chart instead of the usual Final Action Dates Chart. This allowed individuals who previously could not file AOS applications because their priority dates were not current to file. Most of the filings had to include a new form, the USCIS’s Form 944, Declaration of Self-Sufficiency Form 944 was introduced as part of the Administration’s new Public Charge Rule and requires applicants to demonstrate they are not inadmissible on the public charge ground. Form 944 and the Public Charge Rule had been subject to an injunction, but the U.S. Supreme Court stayed that injunction in January 2020.

Form 944 is 18 pages long and includes questions about household income, assets, resources and financial status. Each family member must list their assets and resources, liabilities and debts, credit score and report, information about health insurance, any use of public benefits, and all education and skills. Each data point must be fully documented with attachments. Some of these filings included more than 150 pages of documentation per individual applicant.

In Cook County, Judge Gary Feinerman held that the Public Charge Rule violated the APA because the Rule exceeded DHS authority, is not in accordance with law, and is arbitrary and capricious. Accordingly, the court vacated the rule nationwide. Drawing support for the nationwide vacatur from precedent, the judge wrote: “What would it mean to ‘vacate’ a rule as to some but not other members of the public? What would appear in the Code of Federal Regulations?” Judge Feinerman refused to stay his decision pending appeal.

DHS has yet to issue guidance regarding these rulings, but it appears that the Form 944 must once again be used — at least for now.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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