A Pause on the Public Charge Rule

By Samantha Davis, Richmond Immigration Lawyer

On Monday, August 12, 2019, the U.S. Department of Homeland Security (DHS) announced a final rule amending “public charge” regulations. The new public charge rule redefines whether a visa applicant seeking admission to the US or any applicant for legal permanent residency is considered inadmissible because DHS finds him or her “likely at any time to become a public charge.” USCIS will redefine public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). You can find more details on the public charge rule in our original blog post and our update post.

After DHS announced the final changes to the rule three lawsuits were filed by 21 states and the District of Columbia challenging the amendments. The lawsuits argued that not only was the new rule discriminatory against low-income immigrants and would undermine the well-being of both immigrant and US families but that the agency acted outside of its authority when enacting the new rule. On Friday October 11, 2019 federal judges overseeing those lawsuits issued preliminary injunctions on the public charge amendments. Two of the preliminary injunctions apply nationwide so at this time the new public charge rule has been put on hold and DHS is prohibited from implementing the new rule until final resolution has been reached in those cases. This means that as of October 11, 2019, DHS will continue reviewing cases according to current regulations regarding the use of public benefits and no changes were implemented on October 15.

What do I do next?

File your case now! While the injunctions will continue until final resolution is reached on those lawsuits, we don’t know how long that could take and what that could mean for how the rule is ultimately implemented. Due to the uncertainty of the situation if you are considering filing for adjustment of status in the US, and if you are eligible to do that now, we highly recommend that you do that now while we are under the injunction and the law remains the same. Please note that the public charge would also affect nonimmigrant petitions (for example H-1Bs, H-4s, Ls, etc) where the beneficiary seeks a change or extension of status. The forms associated with those filings may become longer and more complex, asking for information about the use of certain public benefits. We therefore also recommend proactively filing extensions as soon as possible (keeping in mind you can generally only file up to 180 days in advance of the expiration of the current I-94 expiration).

What about filing outside the US?

If a person applies for a green card from outside the US, they apply for an immigrant visa at the US consulate. This is often called consular processing. It is important to note that on October 11, 2019, the Department of State (DOS) has confirmed that the agency’s own version of the public charge rule will go into effect on October 15, 2019 as scheduled despite the rulings blocking DHS’s rule. However, the DOS has also confirmed that they are seeking approval of a “new form” and that for right now, interviews will proceed as normal. If you are thinking that this information is not very helpful, we totally agree! Unfortunately, this limited information is all that we have right now. We will continue to post updates and keep our clients updated as we receive additional information.

US immigration is becoming more and more complex seemingly by the moment. We are here to help you navigate the maze and aim to provide our clients with peace of mind and confidence. Contact Sumner Immigration Law to set a consultation to create your strategy today! We are immigration lawyers located in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com.

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