"Public Charge" Rule Headed to the U.S. Supreme Court

On Monday February 22, 2021, the U.S. Supreme Court granted certiorari to hear Dept. Of Homeland Sec., et al. v. New York. This means the Supreme Court will review the lower court’s decision in order to determine whether or not the “Public Charge” rule violates the law. An injunction was granted on July 29, 2020 during the COVID-19 pandemic, preventing DHS from enforcing the rule because of the national health emergency. However, the U.S. Court of Appeals for the Second Circuit issued a decision allowing DHS to resume implementation of the rule nationwide on September 11, 2020. 

Former President Donald Trump’s expansion of the rule currently bars immigrants from obtaining legal permanent resident status if the government deems them likely to become a “public charge,” meaning likely to use government benefits. Described as a “wealth test,” Form I-944, Declaration of Self-Sufficiency, is the form used to make this determination. An applicant seeking legal permanent resident status must complete the form and provide comprehensive documentation of their entire household’s income, assets, and resources – including family members outside of the U.S. if they provide financial support to the applicant or vice versa. The applicant is further required to disclose all liabilities and debts such as mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt. The applicant must provide documents attesting to their level of education and must disclose whether or not they have ever used public benefits in the past. Essentially, everything other than an applicant’s first-born must be turned over to USCIS for scrutiny. Trump’s “Public Charge” rule has been nothing but a headache and a roadblock for immigrants and immigration lawyers alike.

The granted writ of certiorari hopefully marks a turn for the better, as the Supreme Court awards certiorari in a very limited number of cases each year. If the challengers, the State of New York, City of New York, State of Connecticut, State of Vermont, Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, Archdiocese of New York, and the Catholic Legal Immigration Network, Inc., can successfully argue the illegality of the “public charge” rule, it will mean significantly less invasiveness and scrutiny for immigrants seeking permanent resident status. We remain hopeful that this significant impediment will finally be removed soon and that the prior standard for public charge will be reinstated.

Serotte Reich will continue to provide updates, as the status of Form I-944 and its implementation continue to shift frequently. If you need assistance or advisement regarding an immigration matter that has been affected by the “Public Charge” rule, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.