Alert: 

On November 3, 2020, the Seventh Circuit has issued an administrative stay of the N.D. of Illinois decision to vacate the DHS Public Charge Final rule pending an appeal which is effective immediately. Accordingly, adjustment of status applications must be filed with the Form I-944. So much  back and forth.  We will continue to monitor the situation and provide any updates.

Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334)

On November 2, 2020, the U.S. district court for the Northern District of Illinois (Judge Gary Feinerman) granted summary judgment in favor of plaintiffs on their claim that the DHS Public Charge Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019) violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq.

The district court specifically ruled that the public charge rule:

• Exceeds DHS’s authority under the public charge provision of the INA, 8 U.S.C. § 1182(a)(4)(A);
• Is not in accordance with law; and
• Is arbitrary and capricious.

Therefore, the court immediately set aside the DHS Public Charge Rule nationwide without staying its decision pending appeal.

Form I-944 No Longer Required, for now

As a result, the USCIS under the Department of Homeland Security may not apply the public charge rule as of today when deciding on adjustment of status for a foreigner to become a US lawful permanent resident.  The 2019 public rule required submission of the form I-944, a form no longer required.

US Consulates Abroad Are Not Affected

This decision is binding on the USCIS, but interestingly enough is not binding on consular processing, such as for marriage visas.  US consulates abroad fall under the Department of State who was not a party to the lawsuit.  Consulates use a form DS-5540.

No USCIS Update

As of this time, USCIS has not posted any guidance on implementation of the order on its public charge website.  Even so, vacatur of the rule is effective immediately.

The ruling is a major victory for immigrant advocates who argued that the phrase, “public charge”, has long had meaning in the US immigration statutes and regulations.  The sudden change in definition is unjustified.