News

The federal district court in the Southern District of New York has enjoined the Department of Homeland Security USCIS's Public Charge Rule as of 11 October 2019, four days before the rule was set to take effect.  This rule would have burdened applications for adjustment of status to Permanent Resident from 15 October 2019 with a new form filing requirement, Form 944.  Form 944 requested sweeping and invasive documentation disclosures including credit reports and full debt information like residential mortgage loans.

The winning brief was filed 9 September 2019.  The Plaintiffs argued effectively that the term “public charge” has been used by US law makers with a narrow definition effecting a very small percentage of potential immigrants to the United States for more than 130 years, and that the new DHS Public Charge Rule would have expanded the definition in contravention to legislative intent.  The DHS’s new Public Charge Rule is likely to be considered unlawful as in contravention to law that has been passed by the US Congress, so the Rule has been at least temporarily enjoined from taking effect.

Since the Immigration Act of 1882, the term “Public Charge” has been interpreted narrowly and plainly to refer to persons who are institutionalized or otherwise almost wholly dependent on the government for subsistence. The US Congress has repeatedly used and approved that interpretation. Someone inadmissible as likely to become a “public charge” would include those likely to become long-term residents of “poor houses and other alms houses.” 13 Cong. Rec. 5109 (June 19, 1882) (statement of Rep. Davis), Ex. 9. (“[D]eportation based on the public charge clause applied only to people accommodated at public charitable institutions or who were substantially dependent on public relief for the basic maintenance of their lives.” Torrie Hester et al., Comment, at 3 (Oct. 25, 2018), Ex. 10.)

“Consistent with the narrow scope of the public charge provision, federal immigration officials have historically excluded only a miniscule percentage of arriving immigrants on public charge grounds,” according to the 9 September 2019 brief.  Less than 1% historically, and even about .1% from 1931-1980!

The new DHS Public Charge Rule would contravene the US Congress’s intent stated in Immigration & Nationality Act, by greatly expanding the circumstances in which noncitizen can be denied adjustment of status to lawful permanent resident.

Under the new rule, 94% of noncitizens who originally entered the US without LPR status have at least one negative factor for a finding of public charge inadmissibility, per the Kaiser Family Foundation’s research (cited in the September Plaintiffs' brief). 42% have heavily weighted negative factors, according to the Kaiser Family Foundation.