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Expanded Public Charge Rules Suspended During the Pandemic

On July 29, 2020, U.S. District Court Judge George B. Daniels of Southern District of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Trump’s Administration’s public charge rule during the declared national health emergency in response to the COVID-19 pandemic.

The new public charge rule that took effect in February 2020 makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was intended to discourage immigrants from utilizing government benefits and penalizes them for receipt of financial and medical assistance.

Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the public charge rule and its attendant health insurance proclamation for visa applicants abroad.

The subsequent decisions by the Second Circuit decision in Make the Road New York v. Cucinelli on August 4, 2020, and the Fourth Circuit decision in Casa de Maryland, Inc. v. Trump on August 6, 2020, do not impact this nationwide injunction.

Judge Daniels stated in his decision that there is ample evidence to show that because of the new public charge rule immigrants who do not have the financial capacity to seek medical care are discouraged from seeking testing and treatment for COVID-19, which impedes public efforts to stop the disease from spreading. So any person who does not access health care risks everyone of us from being infected with the coronavirus. It recognizes that every member of communities in this country including immigrants are able to access necessary resources they need to keep themselves healthy and safe.

Impact of the Decision
USCIS stated that for applications and petitions that USCIS adjudicates on or after July 29, 2020, it will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129.

Moreover, applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.

USCIS also indicated that it will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.

Availing of the Expanded Public Benefits Without Immigration Consequences
The Administration’s new public charge rule often referred to as the wealth test was enacted and made effective in February 2020 expanded the list of programs that will be considered as public benefits. So with this ruling the expansion of the list of benefits will not apply like access to publicly provided medical programs, food and housing assistance. Just like anyone of us, we all need to be able to access life-saving healthcare, food assistance and other essential services to protect our families without fear of being separated from our families or being denied visas in the future.

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