Last week, on July 29, 2020, Judge George Daniels of the US District Court for the Southern District of New York blocked the government from “enforcing, applying, implementing, or treating as effective,” the “public charge” rule during the COVID-19 pandemic. Separately, the court also blocked the government from implementing or taking any actions to enforce or apply the 2018 FAM Revisions, the DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19), or the President’s October 4, 2019 Proclamation, “Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans,” during the COVID-19 pandemic. These injunctions apply nationwide.
The “public charge” rule, which went into effect on February 24, 2020, makes it more difficult for immigrants who came to the country legally to stay as permanent residents if they’ve ever used, or are seen as “likely to use,” public benefits such as food stamps, Section 8 housing vouchers, and Medicaid, among others, and also applies in certain cases to those seeking an extension or change in nonimmigrant status.
In his decision issued last week, Judge Daniels noted the danger of the “public charge” rule during the pandemic, despite the government’s attempt earlier this year to clarify that the government would not include testing, treatment, or preventative care related to COVID-19 as part of a public-charge determination. "What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario; we are experiencing its dramatic effects in real time," Judge Daniels wrote. He added: "Any policy that deters residents from seeking testing and treatment for COVID-19 increases the risk of infection for such residents and the public. Adverse government action that targets immigrants, however, is particularly dangerous during a pandemic.”
In response, US Citizenship & Immigration Services (USCIS) posted a statement regarding the injunction:
As long as the July 29, 2020, SDNY decision is in effect, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020 to the adjudication of any application for adjustment of status on or after July 29, 2020. In addition, USCIS will adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29,2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition.
New York State Attorney General Letitia James, part of the coalition seeking to block the “public charge” rule, noted immigrants have been on the “front lines” during the COVID-19 pandemic. “[T]oday's injunction will ensure they are not targeted for obtaining health coverage or other vital services, as they continue to battle COVID-19," she said in a statement last week. "This order is vital to our national health, as every person who doesn't get the health coverage they need today risks infecting another person with the coronavirus tomorrow."
UPDATE NOVEMBER 25, 2020: On November 4, 2020, USCIS confirmed that the agency “will apply the Public Charge Final Rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions.”
While over the past year several courts have issued stays regarding the “Public Charge Rule” only to have them overturned by higher courts, the bottom line is that, for now, applications/petitions filed after February 24, 2020 must include Form I-944, Declaration of Self-Sufficiency. We will post any additional updates as we receive them.