Supreme Court allows DHS to implement public charge rule

The Supreme Court has ruled in a 5-4 decision that the Department of Homeland Security may implement the new public charge rule while litigation challenging the regulation proceeds.

Key points:

• DHS may now enforce the public charge rule, except in Illinois. This is because a federal court in Illinois issued a separate injunction limited to Illinois that was not part of the nationwide injunctions the Supreme Court ruled on.
• Employers and applicants should anticipate that applicants will be subject to the public charge rule and will need to complete and submit updated versions of Forms I-129, I-485, I-539, I-539A and I-864, as well as a new form called the I-944 Declaration of Self-Sufficiency for adjustment of status (green card) applicants.
• The Supreme Court did not issue a ruling on the merits of the public charge regulation. The cases will continue to progress through the courts.

Background: DHS published the final public charge rule last August with an effective date of Oct. 15, 2019, but the rule was enjoined just before the planned effective date, and the agency has not yet been able to implement it. The regulation redefines “public charge” under the Immigration and Nationality Act and significantly tightens rules used by U.S. Citizenship and Immigration Services adjudicators when determining whether an applicant may become a public charge in the future and is therefore inadmissible. The agency also released new and updated forms that require applicants to answer questions about their past or potential use of public benefits and other indicia of whether they could become a public charge.

The State Department issued a similar public charge rule for visa applicants applying at U.S. consulates abroad, which has not yet been enforced as the accompanying public charge visa questionnaire has yet to be finalized. The Supreme Court case did not address that regulation.

BAL Analysis: USCIS has not yet republished the new and updated forms, nor has it provided guidance on when those forms will be required or whether the agency will provide a grace period. Employers and applicants for green cards and extensions or changes of nonimmigrant status in the U.S. should anticipate longer case processing timelines and factor in additional preparation time to complete updated or new USCIS forms. Employees should be prepared to furnish documentation and other information requested on the new forms pertaining to their finances, prior use of public benefits, or potential future reliance on public benefits. BAL is closely monitoring this issue and will provide updates as more information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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