The government can continue applying the new public charge rule as before

TSimilar to what the election results have been for both the candidates and their voters, the last few days have also been a rollercoaster ride for foreign nationals and their employers. It all started with a federal District Court vacating the DHS’s public charge rule and ended in an appeals court staying the lower court’s decision of vacation.

The Decision and The Stay

On November 2, hearing the Case: 1:19-cv-06334 in the District Court, Cook County, Chicago, Illinois, the federal judge, Judge Gary Feinermanin, said that the new public charge rules must be vacated because they go against the Administrative Procedure Act (APA).

The Plaintiffs, the Cook County and the Illinois Coalition for Immigration and Refugee Rights (ICIRR), wanted the vacation of the Final Rule. The defendants, Chad Wolf, the DHS, Kenneth Cuccinelli, and the USCIS, wanted the vacation to be limited to Illinois. In October last year, the court stopped DHS from enforcing the public charge law in the State because the rule likely violated the APA. After DHS appealed the decision, the 7th Circuit Appeals Court denied the appeal to stay the injunction.

Besides the public charge rule charge, the Court also granted the Plaintiff’s claim that “the Rule violates the equal protection component of the Fifth Amendment’s Due Process Clause.” The equal protection part relates to the notion that “the Rule is motivated by the impermissible discriminatory purpose of favoring white immigrants over nonwhite immigrants.”

ICIRR CEO lauded the ruling, stating: “This is a major victory for immigrants across Illinois and throughout the nation and underscores the importance of protections for all.” The ICIRR was also grateful that they can continue litigating “the Equal Protection Clause claim against the federal government, and root out the discriminatory animus towards non-white immigrants inherent in this rule.”

In response to the decision, the DHS quickly launched an appeal to halt the decision pending appeal. On November 3, the U.S. Seventh Circuit Court of Appeals gave an administrative stay. The legality of the public charge rule is being challenged in various jurisdictions.

Previous Challenges to The Legality of The Public Charge Law

The Cook County and the ICIRR initially challenged the legality of the public charge rule in September last year. The challenge was upheld in court with blocking of the rule in the State. The Supreme Court granted the public charge rule on a 5-4 vote in January after it was denied in several rulings.

Public charge lawsuit filings have continued in the second half of the year as well. In July, a New York federal court stopped DHS from enforcing the rule during the COVID-19 emergency. This ruling was shortly followed by a Second Circuit ruling limiting the injunction to the States of Vermont, New York, and Connecticut.

The DHS sought a stay on the limited injunction as well. In September 2020, a Second Circuit court ruled In favor of the DHS, stating that the federal court did not have the authority to prohibit the department from requiring applicants to comply with the public charge rule.

“We will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020” (USCIS)

Implications for The Affected Parties

Of course, the most affected party in this legal back and forth are the applicants looking for an extension or adjustment of their status. What the November 2 decision meant for employers and foreign nationals is that they don’t have to worry about the new green card rules standing in their way. The expectation after the ruling was that the USCIS will acknowledge the decision and act accordingly. The 7th Circuit court decision of course changes all that: It means a return of the same procedure for the applicants. The public charge forms and documents required before the ruling are required again.

Perhaps the most notable side effect of this legal battle has been on the health of the immigrants. According to the Commonwealth Fund, before the final rule, Medicaid was considered as evidence of public charge status when it was used for long-term care. Unfortunately, after the final rule, any type of nonemergency Medicaid use by most public charge-restricted immigrants can affect their ability to become a citizen.

The public charge rule seems to be part of the regulatory wall the Trump administration has constructed against immigrants. The constant rejection and reinstatement of the final rule have created a culture of uncertainty for immigrants and their employers. Unfortunately, with more appeals against the rule, this environment of constant confusion and hardship for immigrants is likely to continue.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

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