DHS Announces End of 2019 Public Charge Rule

On Tuesday March 9, 2021, Department of Homeland Security (DHS) Secretary Alejandro N. Mayorkas announced that the government will no longer defend the 2019 public charge rule. Section 4 of President Biden’s Executive Order 14,012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” called for DHS to immediately review its implementation of the public charge ground of inadmissibility. As part of this review, DHS has determined that it will no longer continue to defend the 2019 public charge rule, as doing so is neither in the public interest nor an efficient use of limited government resources.

DHS Secretary Mayorkas explained that, “The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them. Consistent with the President’s vision, [DHS] will continue to implement reforms that improve our legal immigration system.”

Additionally, the Department of Justice (DOJ) has announced it will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 public charge rule. Therefore, yesterday, March 9, 2021, the DOJ dismissed its pending appeals in the Supreme Court and Seventh Circuit, and is in the process of doing so in the Fourth Circuit. The final judgment from the Northern District of Illinois went into effect following the Seventh Circuit dismissal yesterday afternoon, thus vacating the 2019 public charge rule.

Subsequently, DHS announced that it will now revert to the 1999 interim field guidance on the public charge inadmissibility provision. This guidance was the policy in place before the 2019 public charge rule. Under the 1999 guidance, DHS will not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

DHS will continue to review agency actions on public charge inadmissibility and deportability and to consult with the Departments of Justice and State and federal benefits-granting agencies. DHS and USCIS will provide additional updates regarding the implementation of the public charge ground rule of inadmissibility, as the review continues. We are expecting USCIS to issue guidance on the implementation of Form I-944 soon.

Serotte Reich will continue to provide updates, as the status of Form I-944 and its implementation continue to shift frequently. If you need assistance or advisement regarding an immigration matter that will be affected by these new announcements, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

"Public Charge" Rule Headed to the U.S. Supreme Court

On Monday February 22, 2021, the U.S. Supreme Court granted certiorari to hear Dept. Of Homeland Sec., et al. v. New York. This means the Supreme Court will review the lower court’s decision in order to determine whether or not the “Public Charge” rule violates the law. An injunction was granted on July 29, 2020 during the COVID-19 pandemic, preventing DHS from enforcing the rule because of the national health emergency. However, the U.S. Court of Appeals for the Second Circuit issued a decision allowing DHS to resume implementation of the rule nationwide on September 11, 2020. 

Former President Donald Trump’s expansion of the rule currently bars immigrants from obtaining legal permanent resident status if the government deems them likely to become a “public charge,” meaning likely to use government benefits. Described as a “wealth test,” Form I-944, Declaration of Self-Sufficiency, is the form used to make this determination. An applicant seeking legal permanent resident status must complete the form and provide comprehensive documentation of their entire household’s income, assets, and resources – including family members outside of the U.S. if they provide financial support to the applicant or vice versa. The applicant is further required to disclose all liabilities and debts such as mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt. The applicant must provide documents attesting to their level of education and must disclose whether or not they have ever used public benefits in the past. Essentially, everything other than an applicant’s first-born must be turned over to USCIS for scrutiny. Trump’s “Public Charge” rule has been nothing but a headache and a roadblock for immigrants and immigration lawyers alike.

The granted writ of certiorari hopefully marks a turn for the better, as the Supreme Court awards certiorari in a very limited number of cases each year. If the challengers, the State of New York, City of New York, State of Connecticut, State of Vermont, Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, Archdiocese of New York, and the Catholic Legal Immigration Network, Inc., can successfully argue the illegality of the “public charge” rule, it will mean significantly less invasiveness and scrutiny for immigrants seeking permanent resident status. We remain hopeful that this significant impediment will finally be removed soon and that the prior standard for public charge will be reinstated.

Serotte Reich will continue to provide updates, as the status of Form I-944 and its implementation continue to shift frequently. If you need assistance or advisement regarding an immigration matter that has been affected by the “Public Charge” rule, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.