Following a Supreme Court stay of nationwide injunctions, U.S. Citizenship and Immigration Services (USCIS) announced recently that it plans to implement the public charge final rule on February 24, 2020, except in Illinois, where a federal court has blocked the rule. The Illinois exception remained as of February 1, 2020.
Upon the Supreme Court’s granting the stay on January 27, 2020, Justice Gorsuch noted in his concurrence, in reference to complex litigation nationwide, that “in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.” Justices Ginsburg, Breyer, Sotomayor, and Kagan said they would have denied the application for stay.
The final rule to be implemented February 24 requires, among other things, that those seeking extensions of stay or changes of status demonstrate that they have not received public benefits over a designated threshold since obtaining the nonimmigrant status they seek to extend or change.
USCIS noted that except for the state of Illinois, the agency will only apply the final rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt. The final rule prohibits the Department of Homeland Security (DHS) from considering an application for, certification or approval to receive, or receipt of certain non-cash public benefits, before October 15, 2019, when deciding whether the person is likely at any time to become a public charge. In light of the duration of the recently lifted nationwide injunctions and “to promote clarity and fairness to the public,” DHS said it will now treat this prohibition as applying to such public benefits received before February 24, 2020. Similarly, the final rule prohibits DHS from considering the receipt of public benefits by applicants for extension of stay and change of status before October 15, 2019, when determining whether the public benefits condition applies, and DHS will now treat this prohibition as applying to public benefits received on or after February 24, 2020.
- Supreme Court decision, https://www.supremecourt.gov/opinions/19pdf/19a785_j4ek.pdf
- USCIS announcements, https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions and https://www.uscis.gov/news/news-releases/dhs-obtains-another-judicial-victory-implementing-public-charge-inadmissibility-rule
- News article, https://www.nbcnews.com/politics/supreme-court/5-4-ruling-supreme-court-allows-trump-plan-deny-green-n1124056
- Final rule, https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-17142.pdf