USCIS form I-944

On July 29, 2020, US District Judge George B. Daniels for the Southern District of New York enjoined the government from enforcing, applying, implementing, or treating as effective, the USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19).

On July 31, 2020, the USCIS posted guidance, stating:

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.

This means that the traditional review methods for determining public charge will focus on whether the beneficiary is at risk of becoming a vagrant.

DOS form DS-5540

The court also issued a separate order granting an injunction that enjoins 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 (84 FR 53991, 10/9/19) during the COVID-19 pandemic.

While DOS has not yet issued guidance, it is the court ruled:

Plaintiffs’ motion for preliminary injunction, (ECF No. 43), is GRANTED.  Defendants are enjoined from enforcing, applying, implementing, or treating as effective the 2018 FAM Revisions, DOS Rule, and Proclamation until further order of this Court, the Circuit Court of Appeals, or the United States Supreme Court.

The court’s injunctions against DHS and DOS are nationwide. 

Discretion to Deny Remains

Bear in mind that the Trump Administration issued a memorandum to all immigration agencies encouraging immigration officers to exercise “discretion” when deciding whether to grant immigration benefits.  Discretion is to be exercised even if the participants meet all requirements.  In other words, you must present a compelling immigration case and not just the bare minimum to meet requirements for green card or visa issuance.  This administration is focused on limiting legal immigration in addition to eliminating unlawful presence in the US by foreign immigrants.

Although the court ruled that the new public charge rules are enjoined, this does not mean you will be successful in obtaining a visa or green card for your loved one.  You only want to go through this process once and do things correctly, if possible.