Federal Court Blocks “Public Charge” Rule Due to COVID-19: UPDATE

Update:    Two federal appeals courts issued decisions in challenges to the public charge rule on August 4th and 5th, 2020.   In the first decision, the 2nd Circuit Court of Appeals upheld a lower court ruling blocking application of the public charge rule, but narrowed the nationwide preliminary injunction to cover only Connecticut, New York and Vermont. The second decision from the 4th Circuit Court of Appeals ruled against enjoining the public charge rule.    Both of these decisions, however, have no practical effect due to a prior Supreme Court ruling in January 2020.

The government has appealed from the July 29, 2020 decision blocking application of the “public charge” rule for the duration of the pandemic public health emergency, discussed below, but it is still in effect at this writing.   Both U.S. Citizenship and Immigration Services and the Department of State have issued guidance to comply with the nationwide injunction while it remains in effect.  USCIS has removed Form I-944, the Declaration of Self-Sufficiency created as part of its implementation of the new public charge rule from its website, and says that any applications or petitions postmarked on or after July 29, 2020 should not include that form and should ignore questions on other forms  relating to public benefits.

Since the new public charge rule would prevent hundreds of thousands of immediate family members of U.S. citizens and permanent residents, and diversity lottery winners, from having their residency approved, and adds dozens of hours of paperwork and voluminous document preparation to immigration applications, the injunction is a welcome reprieve, for however long it lasts.

Original July 29, 2020 post: 

On July 29, 2020, a federal court issued a nationwide injunction temporarily blocking the administration’s application of the controversial “public charge” rule during the COVID-19 national public health emergency.

Litigation challenging the “public charge” rule has been pending since October 2019, but the Supreme Court had allowed the administration to apply the rule while those lawsuits proceeded.  (Maine is a party to one of the pending lawsuits challenging the rule.)

The public charge rule has resulted in immigrants, even those who have had residency and have paid taxes for years and who are eligible for public benefits, being afraid to access medical care and other public health and food programs to help them stay healthy and safe due to fears and confusion around the rule.

The federal court found that

Plaintiffs provide ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts in the Governmental Plaintiffs’ jurisdictions to stem the spread of the disease. Doctors and other medical personnel, state and local officials, and staff at nonprofit organizations have all witnessed immigrants refusing to enroll in Medicaid or other publicly funded health coverage, or forgoing testing and treatment for COVID-19, out of fear that accepting such insurance or care will increase their risk of being labeled a “public charge.”

COVID-19 has increased economic pressures on low-income immigrants. During the public health emergency, it’s imperative that everyone in the U.S. have access to healthcare and financial and health supports needed to stay housed, safe, and healthy, even if that means turning to government benefits.

The court’s injunction should help reassure immigrants, who data shows are disproportionately impacted by COVID-19 as they often work in “essential jobs” and in jobs where working from home is not an option, that they are not risking their or their families’ immigration status if they seek out the help they need.

However, the government is likely to appeal the decision.  If it does, it will be putting the health of everyone, not just immigrants, at higher risk of COVID-19.