District Court Vacates DHS Public Charge Rule Nationwide
This November is starting with some excellent news for those considering immigrating to the United States!
On November 2, 2020, a district court vacated the DHS final rule on public charge and denied DHS’s request to stay the judgment. This ruling is to take effect immediately thus DHS may not apply the public charge after the date of the order. (Cook County, et al. v. Wolf, et al., 11/2/20)*
*See the end of the article for important updates.
We would like to remind our readers what the public charge rule entailed.
When did Public Charge Rule apply?
Public Charge Final Rule applied to nonimmigrants and immigrants applying for visas or green cards processed inside the United States, including immigrants that leave for 180 days or more and apply to reenter.
The main impact of the new rule was felt by applicants for adjustment of status. Nonimmigrants seeking to change or extend their status were also subject to the new rule but face a substantially reduced burden compared to adjustment applicants.
On August 14, 2019, USCIS published a final rule amending the regulations related to the public charge ground of inadmissibility. The rule was to take effect on October 15, 2019. Before the regulation took effect, several nationwide injunctions halted its implementation. However, starting February 24, 2020, USCIS started the implementation of the public charge Final Rule and has published guidance speciifc to Illinois.
Summary of Benefits Included for Public Charge
Benefits Included for Public Charge
Cash Support for Income Maintenance
Non-Emergency Medicaid**
Supplemental Nutrition Assistance Program (SNAP or Food Stamps)
Housing Assistance (Public Housing or Section 8 Housing Vouchers and Rental Assistance)
** Exception for coverage of children under 21, pregnant women (including 60 days post-partum)
Benefits Excluded from Public Charge
ANY benefits not on the included list will not be applied toward the public charge test. Examples include:
Disaster relief
Emergency medical assistance
Entirely state, local or tribal programs (other than cash assistance)
Benefits received by immigrant’s family members
CHIP
Special Supplemental Nutrition for Women Infants and Children (WIC)
School Breakfast and Lunch
Energy Assistance (LIHEAP)
Transportation vouchers or non cash transportation services
Non-cash TANF benefits
Tax credits, including the Earned Income Tax Credit and Child Tax Credit
Advance premium tax credits under the Affordable Care Act
Pell grants and student Loans
Any other program not listed in the left column
Provided by Protecting Immigrant Families (https://protectingimmigrantfamilies.org/analysis-research/).
Public Charge rule was a significant burden for immigrants. Luckily, the District court’s decision removes this hurdle to return to a more balanced immigration system.
NOTE: Unfortunately, the victory was short-lived. On November 3, 2020, the Seventh Circuit has issued an administrative stay of the N.D. of Illinois decision to vacate the DHS Public Charge Final rule pending an appeal which is effective immediately. Accordingly, adjustment of status applications must be filed with the Form I-944. We will continue to monitor the situation and the state of litigation on the matter and will provide any updates.
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