A federal court in New York has issued a nationwide injunction blocking the Department of Homeland Security from implementing or enforcing the public charge rule that was scheduled to take effect Oct. 15.

Key points:

  • Under the order, DHS is enjoined from implementing or enforcing the public charge rule. The agency is also enjoined from requiring applicants to submit any new or updated versions of forms related to the rule, including the new Form I-944, Declaration of Self-Sufficiency that U.S. Citizenship and Immigration Services introduced earlier this week.
  • Employers and individuals should anticipate that they will be able to continue to file petitions and forms with USCIS under the status quo until a further ruling by a court.
  • The State Department issued a similar rule today that requires U.S. consular officers to apply a heightened public charge standard to visa applicants who are subject to the public charge ground of inadmissibility. This rule was not subject to the lawsuit and is scheduled to take effect Oct. 15, but could still be subject to a legal challenge.

Background: DHS finalized a regulation in August that redefined the “public charge” ground of inadmissibility under the Immigration and Nationality Act (INA) and changed the way USCIS officers determine whether an applicant is inadmissible under that statutory ground. Among the 11 lawsuits challenging the rule, several states led by New York sued DHS, arguing that the agency did not give sufficient justification for reversing longstanding policy as required by the Administrative Procedure Act (APA).

The court ruled that the states were likely to succeed on their claims and enjoined DHS from implementing the rule while the litigation proceeds.

“In short, [government officials] do not articulate why they are changing the public charge definition, why this new definition is needed now, or why the definition set forth in the Rule—which has absolutely no support in the history of U.S. immigration law—is reasonable. The Rule is simply a new agency policy of exclusion in search of a justification,” wrote U.S. District Court Judge George B. Daniels in a 24-page decision and order.

BAL Analysis: The government will likely appeal the order. In the meantime, to comply with the order, DHS cannot require applicants to submit new forms or updated versions of forms reflecting the new public charge questions while the injunction remains in place. Pending further court rulings, this means that adjustment-of-status applicants and those applying for a change or extension of nonimmigrant status will not be subject to the new DHS public charge standards. However, companies should be aware of the State Department rule and anticipate increased scrutiny of visa applicants who are applying at U.S. consulates abroad. The State Department has not yet released guidance regarding how this rule will be implemented. BAL is following these issues closely and will update clients with new developments as they become 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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