U.S. Supreme Court Lifts Injunction, Allowing DHS and USCIS to Implement Public Charge Final Rule

Seyfarth Synopsis:  The Supreme Court’s decision clears the path for DHS/USCIS to implement its Public Charge final rule, which requires employers and employees to disclose receipt of certain public benefits in petitions/applications filed to USCIS.

On Monday, January 27, 2020, the U.S. Supreme Court voted 5-4 to allow enforcement of the Department of Homeland Security’s (“DHS”) Inadmissibility on Public Charge Grounds Final Rule.  U.S. Citizenship and Immigration Services (“USCIS”) will implement the final rule nationwide on February 24, 2020, except in Illinois where an injunction remains in effect.  USCIS will post updated forms, instructions, and an updated Policy Manual on its website during the week of February 3, 2020.  Previously, in early October 2019, the U.S. District Court in New York issued a nationwide injunction blocking the implementation of USCIS’ final rule on inadmissibility on public charge grounds (https://www.seyfarth.com/news-insights/court-blocks-implementation-of-revised-forms-addressing-new-public-charge-interpretation.html).

The administration’s revised final rule, initially issued in August 2019, dictated how DHS would determine whether a foreign national applying for admission to the U.S. or adjustment of status is admissible based on his or her likelihood of becoming a public charge at any time. The amended DHS regulations require officers adjudicating immigrant and nonimmigrant petitions and applications to determine whether an applicant is more likely than not to become a public charge using a “totality of the circumstances” analysis. 

When determining whether an applicant is likely to become a public charge under the final rule, USCIS clarified that they will not consider an applicant’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020. USCIS will apply the final rule to petitions and applications submitted on or after February 24, 2020.  USCIS will reject petitions and applications submitted with prior editions of the forms if the petition or application is postmarked or delivered electronically on or after February 24, 2020.     

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop.