As published in the Immigration Daily on October 15, 2019
The Administration’s public charge rule for immigrants due to be implemented on October 15, 2019, ran into roadblocks thrown up by US district courts in New York, California, and Washington State. The preliminary injunctions in both New York and Washington were nationwide in scope while the one in California was more localized.
Judge Rosanna Malouf Peterson of the Eastern District Court of Washington stayed the implementation of the public charge rule “in its entirety” pending entry of a final judgment; that “the effective date of the final rule is postponed pending conclusion of these review proceedings”; and that DHS was preliminarily enjoined from implementing or enforcing the rule.¹ Judge Phyllis J. Hamilton of the Northern District Court of California enjoined among others Donald J. Trump, as President of the United States, from applying the rule to any person in San Francisco, Santa Clara, California, Oregon, the District of Columbia, Maine, or Pennsylvania or to anyone part of a household including such a person.² Judge George B. Daniels of the Southern District Court of New York in a pair of rulings issued a nationwide injunction, as well as a stay postponing the effective date of the rule pending a final ruling on the merits or further order of the court in one,³ and more specifically in the second restraining and enjoining DHS and USCIS from “implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule, including the new form I-944, titled’ Declaration of Self-Sufficiency’, and the updated form I 485, titled ‘Application to Register Permanent Residence of Adjust Status’”; that the effective date of the public charge rule is stayed and postponed; that if the court’s order is later terminated and the rule goes into effect, the rule’s stated effective date of October 15, 2019 “shall be replaced with a date after this Order is terminated.”4
So insofar as adjustment of status in the US is concerned, it would appear that applicants can continue filing with the old forms until such date that the courts’ preliminary injunction rulings are overturned on appeal, or the government wins on the merits on the case as a whole before the same court or on appeal thereafter.
Yet none of these rulings enjoin the Secretary of State who published an interim final rule on October 11, 2019, implementing rules on public charge to go into effect on October 15, 2019, based entirely on the public charge rule. The question is whether consular officers will be permitted to implement the interim final rule even though the summary clearly states its purpose as being in sync with DHS:
This rulemaking is also intended to align the Department’s standards with those of the Department of Homeland Security, to avoid situations where a consular officer will evaluate an alien’s circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts. 5
Although not directly enjoined by any of the three courts, a turkey (as we are getting close to Thanksgiving and as the public charge rule is one) with its head chopped off cannot still operate its wings to fly, and so the State Department should not believe that it has authority to put its own rule into effect at this time. (Please see note below)
The rulings by the three courts also did nothing to suspend the October 4, 2019, “Presidential Proclamation on the Suspension of Following the writing of this article, a Department of State official confirmed that the public charge rule will not be implemented until a new form is approved, and it was subsequently learned that the State Department will use a new form DS-5540 (Public Charge Questionnaire), which is awaiting clearance by the Office of Management and Budget (OMB). The form will be demanded of approximately 450,000 green card applicants annually. This is a technical stoppage, but it remains to be seen whether the public charge rule can be implemented by State even if the form swiftly passes OMB in light of the outstanding preliminary injunctions collapsing the DHS public charge regulation for the time being.]Entry of Immigrants Who Will Financially Burden the United States Healthcare System”, slated to go into effect on November 3, 2019. That Proclamation affects consular processing and not adjustment of status, but would require of immigrant visa applicants (with limited exceptions) that they show that they will be covered by approved health insurance (not one with coverage under the Medicaid program) within 30 days of entry into the US, or they have sufficient financial resources to pay for reasonably foreseeable medical costs. Based on a study by the Migration Policy Institute, a nonpartisan, independent think tank dedicated to analysis of US and global migration, up to 65% of legal immigration could be barred from entering the US. It is believed that legal challenges will be filed to enjoin the Proclamation before the date of implementation.
It is unfortunately even more clear with the relentless attacks of Mr. Trump and his cohorts on immigrants focused on who has money that, with his wealth tests for entry which includes knowing the English language, he is looking mainly for white Europeans to come while rejecting most of the rest of the world.
- State of Washington at al v. United States Department of Homeland Security et al., No. 4:19-CV-5310-RMP (EDWA. 10/11/19)
- City and County of San Francisco, et al v. US Citizenship and Immigration Services, et al., Cases Nos. 19-CV-04717-PJH, 19-CV-04975-PJH, 19-CV-04980-PJH (NDCA 10/11/19)
- State of New York, at al v. United States Department of Homeland Security, et al., No. 19 Civ. 7777 (GBD) (SDNY 10/11/19).
- Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19 Civ. 7993 (GBD) (SDNY 10/11/19)
- “Visas: Ineligibility Based on Public Charge Grounds”, Federal Register, Volume 84, No. 198, October 11, 2019.
Following the writing of this article, a Department of State official confirmed that the public charge rule will not be implemented until a new form is approved, and it was subsequently learned that the State Department will use a new form DS-5540 (Public Charge Questionnaire), which is awaiting clearance by the Office of Management and Budget (OMB). The form will be demanded of approximately 450,000 green card applicants annually. This is a technical stoppage, but it remains to be seen whether the public charge rule can be implemented by State even if the form swiftly passes OMB in light of the outstanding preliminary injunctions collapsing the DHS public charge regulation for the time being.