Update – on Aug. 12 an appellate court limited the injunction described below to the 3 states of Connecticut, New York, and Vermont. As of Aug. 20, USCIS continues NOT to implement the rule nationwide. The Department of State is not implementing it currently. Be sure to check the latest status before proceeding with your case.
There’s good news, at least for now, regarding the very onerous public charge rule that went into effect in Feb. 2020. Our previous post explains the rule. In brief, immigrant applicants who have used certain public benefits can be denied a visa or green card because they are deemed to be a “public charge.”
On July 29 2020 a federal judge in New York, George Daniels, granted a preliminary injunction to prevent further implementation of the rule during the coronavirus public emergency. The order applies nationwide, both to USCIS, which decides on applications in the U.S., and the State Department which grants visas at foreign consulates. Previous litigation in this case went to the Supreme Court which decided the government could implement the rule while the case is pending in the courts. But the current ruling focuses on the impact of the rule on testing and treatment of COVID-19 and immigrants’ use of Medicaid for this purpose. Judge Daniels said:
… the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts … to stem the spread of the disease. Doctors and other medical personnel, state and local officials, and staff at nonprofit organizations have all witnessed immigrants refusing to enroll in Medicaid or other publicly funded health coverage, or forgoing testing and treatment for COVID-19, out of fear that accepting such insurance or care will increase their risk of being labeled a “public charge.”
…..Immigrants make up a substantial portion of workers in essential industries who have continued to work throughout the national emergency and interact with large swaths of the population, whether in healthcare, agriculture, food packing and distribution, or sanitation, among other industries…Essential workers have been disproportionately affected by COVID-19. Protecting them is in their best interest and the interest of the public at large. When individuals with a high percentage of public exposure are fearful of receiving medical care for a deadly, contagious disease, the health and security of communities across the country is jeopardized.
On July 31 U.S. Citizenship and Immigration Services issued guidance on the ruling as follows:
For applications and petitions that USCIS adjudicates on or after July 29, 2020, pursuant to the SDNY injunction, USCIS 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. 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.
On Aug. 7 the Department of State announced it will comply with the order:
The Department is complying with the court’s order and is in the process of updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders. Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. Applicants are not required to complete nor should they present the DS-5540, Public Charge Questionnaire
