The New York Times: “Supreme Court Allows Trump’s Wealth Test for Green Cards”

On Monday this week the Supreme Court issued a 5-4 decision to stay the current nationwide injunction of the “public charge” final rule. With this decision, the administration can implement the “public charge’ final rule for now while the underlying litigation continues, except in Illinois, which has a state-specific injunction. The “public charge” final rule will make it more difficult for immigrants to receive Green Cards 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. The rule arguably redefines the “historic meaning” of the term “public charge,” which will likely result in the denial of applications based on “a bureaucrat’s suspicions that they could use welfare.”

Kenneth T. Cuccinelli, the acting deputy secretary for the Department of Homeland Security, praised the Supreme Court decision, saying: “It is very clear the U.S. Supreme Court is fed up with these national injunctions by judges who are trying to impose their policy preferences instead of enforcing the law.” Ghita Schwarz, a lawyer for the Center for Constitutional Rights, which represents groups challenging the “public charge” rule, said in a statement that “the court’s decision to lift the injunction is very disappointing, but our challenge to the draconian public charge rule is still moving forward.”

Jesse Bless, Director of Federal Litigation for the American Immigration Lawyers Association (AILA), also criticized the Supreme Court decision in a statement: “This policy contravenes Congressional intent and provides the latest attempt to construct an invisible wall blocking the pre-existing rights for legal immigrants. The rule will undoubtedly result in the separation of tens of thousands of families seeking to reunite in the United States.”

UPDATE FEBRUARY 3, 2020: USCIS announced that with the recent Supreme Court decision staying the nationwide injunction, they will implement the “Inadmissibility on Public Charge Grounds” final rule effective February 24, 2020, except in the State of Illinois. The agency states that under this “public charge” final rule they “will look at the factors required under the law by Congress, like an alien’s age, health, income, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge.”

Except for Illinois, USCIS will apply the “public charge” final rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions sent by commercial courier (such as UPS/FedEx/DHL), the postmark date is the date noted on the courier receipt. The final rule as written “prohibits DHS from considering an alien’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before Oct. 15, 2019, when deciding whether the alien is likely at any time to become a public charge,” and to avoid confusion the agency will treat this prohibition as applying to such public benefits received before February 24, 2020. Additionally, the final rule “prohibits DHS from considering the receipt of public benefits by applicants for extension of stay and change of status before Oct. 15, 2019 when determining whether the public benefits condition applies,” and the agency will now treat this prohibition as applying to public benefits received on or after February 24, 2020.

USCIS will post updated forms, submission instructions, and policy manual guidance on USCIS.gov during the week of February 3, 2020, to provide applicants, petitioners, and others sufficient time to review updated procedures and adjust filing methods. After February 24, 2020, USCIS will reject (except in Illinois) prior editions of forms if the form is postmarked on or after February 24, 2020. If USCIS receives an application or petition for benefits using incorrect editions of the forms, the agency will inform the applicant or petitioner to submit a new application or petition using the correct forms. USCIS also plans to hold public engagement events for attorneys, industry representatives, and other relevant groups to discuss the final rule in the coming weeks.