Public Charge rule cancelled by Court Nov 2020

Public Charge Rule Cancellation- Court Judgment on Hold

In Green Card by KumarUpdated : Leave a Comment

Public Charge rule is one of the biggest regulations that was proposed by DHS last year. As per DHS, it impacts about 382,264 people annually. Also, it could impact about 50% or 200,000 marriage based green cards applicant as Boundless. Today, it was cancelled by a federal judge in court judgement. Public charge rule cannot be applied nationwide as per the judgment. In this article, we will cover the details on the background, court judgment, impact to H1B, Green Card Applicants, many others seeking green card and next steps.

Update : Adminstrative Stay on the Public Charge Judgement

Soon after the District Court gave final judgment cancelling the Public Charge rule, an appeal was filed on the same in US Court of Appeals, 7th Circuit in Chicago. The court has given administrative stay on the Judgement given by the federal judge.

What does Adminstrative Stay mean ? Adminstrative Stay means that the judgment given by federal judge cancelling the Public Charge Lawsuit is put on hold temporarily. The reason for that is the appeal done the other party in the case. As per the order, the appealing party need to submit Response to the Court by November 17th, 2020. Until then, the court judgment will not apply and the Judgment ruling is not effective. So, unfortunately, we need to wait longer for the Public Charge Rule Cancellation.

Impact – Need to file Form I-944 : The impact is that, you need to file Form I-944 until the court lifts the Adminstrative Stay. So, if you are filing for Adjustment of Status application with USCIS, you need to continue to submit the form I-944. If Biden wins, this may not even matter. Below is the court judgment official copy for your reference and the history of the docket from court.

US Court of Appeals - Adminsitrative Stay Public Charge Rule
US Court of Appeals – Administrative Stay onPublic Charge Rule
Lawsuit History in Appeals Court - Public Charge Rule
Lawsuit History in Appeals Court – Public Charge Rule

Background of Public Charge Rule

While the actual public charge rule from 2019 is pretty big with 837 pages of regulatory text, below is the summary of important information that you need to know on public charge for full context.

What is Public Charge ? History : The concept of public charge has been there in US since 1880s. There were revisions done to public charge over years. The general meaning of public charge rule is that “anyone planning to move to America as permanent resident or get green card should not be primarily dependent on Government benefits for their livelihood in the US”. The public charge rule basically wants people moving to US be self-sufficient and they do not become “public charge” or “burden to the US tax payers or US Govt”.  

What was New Public Charge Rule by DHS : In Aug 2019, DHS under the Trump Administration, published the new version of the public charge rule with new requirements added in it. As per the new public charge rule, DHS defined a new scope for public benefits and said that anyone using it for more than 12 months in a 36-month period would be classified as “Public Charge”.  Also, they put in assessment factors for public charge like some would be positive and some negative.  To assess application for public charge, they would look at individuals based on factors like age, education, health insurance, health, income, English speaking capability, etc. For complete details, read What is Public Charge, Impact to H1B, H4, Others

Public Charge Rule  & Impact on Green Card Application : When anyone applies for Green Card with USCIS, they need to submit form I-944, Declaration of Self Sufficiency as part of this rule. USCIS uses the Form I-944 to determine, if an individual would be considered as Public Charge. They use all the factors, scope defined in public charge rule to assess the individual. If USCIS believes that the individual would be a public charge, they will not be given Green Card or permanent residency in US, as they will be considered a public charge.

History of Lawsuits, Supreme Court : There were many lawsuits filed on the public charge in multiple courts in 2019 and also there were preliminary injunctions given by courts on stopping DHS from implementing the rule. But, finally it landed up in Supreme court and it said that DHS can continue with implementation of the Public Charge rule in end of January 2020.  

Supreme court did not give judgment, but only said that injunction is not going to be in effect and DHS can implement it, while the merits of case are reviewed by courts.  Later again, the rule was put on hold by other courts for some time due to COVID-19 situation. And again, in early September 2020, DHS started to enforce that everyone should comply with the public charge rule and submit form I-944 as per another court ruling.

Phew! that was a lot of court cases….

Also, due to fear and confusion on the public charge rule, many people have not used any of the public programs. This has put a heavy burden on the local governments and community based organizations.

Now that you have the background, let’s dive into what the court ruling is on Public Charge Rule.

Summary of Court Judgment that cancelled Public Charge Rule

The official title of the court case is “Cook County et al. v Wolf et al.” and it was filed in September 2019 in Illinois Northern District Court by Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. It has been over a year and there were many arguments back and forth and finally the judgment came in today, Nov 2, 2020.

Violated Administrative Procedure Act, many flaws

As per the court judgment, the public charge rule by DHS violated many aspects of “Administrative Procedure Act(APA)”. As per the arguments by plaintiffs ( people who put up the lawsuit ), DHS violated APA in three areas – exceeded their authority given to them in Immigration and Nationality Act (INA), it is not as per law and it is not backed by facts, logic or proper thought.


DHS made many arguments that did not convince the court. They also asked to have the judgment to be applicable only to Illinois residents or people who were part of the lawsuit. The Judge did not accept any of that and cancelled it nationwide. The judge reasoning is below :

  • The term Public Charge is very ambiguous and DHS interpretation of public charge did “violence to the English Language and statutory context.”
  • DHS does not have the authority to re-define the public charge definition.
  • If something violates the rules as per APA, it is for everyone and cannot be just applicable for certain geography or a set of people.

Based on the above reasoning, the judge cancelled the Public Charge rule to be implemented nationwide. Below is the screenshot of some of the above key points.

Public Charge Rule Discretion from Judgment Copy
Public Charge Rule Discretion from Judgment Copy

Equal protection Clause – DHS was also challenged on equal protection clause, that basically states – white applicants are favoured over non-white applicants. This claim is a separate one and the judge says that today’s judgment on public charge rule does not include this topic. It did not give any judgment on whether DHS had intention to favor white immigrants over non-white immigrants when they issued this public charge policy.

Below is the screenshot of the judgment that says Public Charge Rule is no long applicable.

Judgment by Court on Public Charge Rule
Judgment by Court on Public Charge Rule

Impact for Green Card Applicants

Now that the Public Charge rule is cancelled nationwide, USCIS should not apply the public charge rule to anyone.  What it means is that you do not have to file I-944 form anymore, if you are filing for Adjustment of Status Application for Green Card.  This saves a lot of burden for many applying for Green Card application with USCIS.

 If you are on H1B, H4 or any other visa and your priority dates are current or you are allowed to file for Adjustment of Status due to dates of filing chart, you do not have to file I-944 form that is required for public charge anymore.

USCIS have not put up any official notice on their website yet, it should be updated in few days. As per news reported by Bloomberg Law, USCIS spokesperson said that they will abide by the court judgment today and follow the directive. So, we should expect the update on USCIS website soon.

What’s Next ? Appeal ? Supreme Court ?

Well, this is going to be a big battle for Trump Administration, if Republicans win the election and Trump gets reelected as President. It will very likely be appealed again and it may finally end up in Supreme court. But, if Democrats win the presidential election, the next steps for this regulation may be completely different.

If Public Charge rule goes to Supreme court, this time, the outcome may be tricky. The reason is, new Justice Amy Coney Barrett had different opinion that courts should not interfere in policy disagreements. You can read the official copy of the court judgment below.

What do you think of the ruling by Court? Your thoughts on Election and this judgment? Add your thoughts in comments below.  

Court Judgment on Public Charge Rule

   

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