The 2nd Circuit Limited Its Ruling to NY, CT, and VT

The Public Charge rule has created quite the stir among immigrants.  For those foreigners trying to adjust status in the US and obtain a green card, they must be screened for public charge issues.  Traditionally, this means that the foreigner must not be a vagrant on the street, collecting basic welfare.  The USCIS conducted a records search to learn whether the foreigner has received certain welfare benefits.

However, the Trump Administration changed the rules by stating that the term, “public charge” applies to whether the foreigner might become dependent on government assistance sometime in the future.  See, Presidential Proclamation of October 4, 2019.  Good health and education, and a work history help prove the foreigner is unlikely to become a public charge.  Such an interpretation is a departure from long standing immigration practice.  So, lawsuits were filed.

US 2nd Circuit

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).  As such, the public charge rule reverted to the original definition and manner of handling. 

However, that same court more recently modified its ruling to cover only NY, CT, and VT as follows:

“Instead, we exercise our own discretion, in light of the divergent decisions that have emerged in our sister circuits since the district court entered its orders, to modify the injunction, limiting it to the states of New York, Connecticut, and Vermont. Cf. Smith v. Woosley, 399 F.3d 428, 436 (2d Cir. 2005). As modified, the injunction covers the State plaintiffs and the vast majority of the Organizations’ operations.”

In the meantime, the American Immigration Lawyers Association¹ filed a complaint last month and will seek an expedited schedule for summary judgment, and not a preliminary injunction.

USCIS Website

Notably, the USCIS website still professes at the time of this writing that the injunction is nationwide:

What to do?

Failing to file a required form with supporting documentation is grounds for denial of immigration benefits and loss of the government filing fee.  The USCIS will have its work cut out to figure out which of the cases already filed without the public charge documentation should be processed and which should be held up.  Work authorization and international travel permission through advance parole can be held up.  At the same time, you don’t want to file documentation that can be used to deny your case if the public charge rule should not apply to you.  And … there is more litigation to come.

I believe that the Trump Administration was incorrect in redefining the term, public charge, as it has done.  In the meantime, we have a mess.

Please work with an attorney on immigration matters.  Everyone has an opinion until there is a problem.  Then, people go silent.  The attorney is responsible for giving good advice based on the standard of care in the legal community.  Legal fees are often reasonable, so call and discuss, and see if expert assistance can fit within your budget.

¹of which I am a member but not involved in the suit.