State Department to comply with court order blocking public charge rule

The State Department has released a statement regarding visa applications in light of a federal court order last Wednesday blocking the government from enforcing the public charge rule.

Key Points:

• The State Department is in the process of updating its guidance to consular officers on how to comply with the court order.
• In the meantime, visa applicants who appear to be ineligible under the public charge will be sent for administrative processing.
• At this time, the agency will not require visa applicants to fill out the new DS-5540 public charge questionnaire that has been required since Feb. 24 when the public charge rule took effect.
• Visa applicants do not need to take any additional steps at this time and should attend scheduled visa interviews.

Background: On July 29, a federal judge issued a preliminary injunction, ordering the government to stop enforcing the public charge rule during the COVID-19 national emergency. U.S. Citizenship and Immigration Services (USCIS) responded on July 31 by announcing that it will comply with the injunction for immigration applicants in the U.S. Today’s announcement by the State Department applies to visa applicants applying at U.S. consulates abroad.

This week, two appeals courts issued divergent rulings on nationwide injunctions against the public charge rule, but they do not affect the July 29 court injunction at this time, and USCIS and the State Department will continue to comply with it while it remains in effect.

BAL Analysis: At this time, the State Department and USCIS are not requiring applicants to submit new forms required by the new public charge regulations, while the injunction remains in place. BAL is monitoring for additional guidance from the State Department and developments in the multiple lawsuits challenging the regulation and will report any changes as 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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