By: Prema Roddam

On December 2, 2020, the United States Court of Appeals for the Ninth Circuit ruled that the Department of Homeland Security (DHS) cannot enforce their public charge rule when making decisions on immigrant and nonimmigrant petitions in California, Maine, Oregon, Pennsylvania, Washington, and the District of Columbia. The public charge rule is still in effect for the rest of the country.

Case History

The Northern District of Illinois vacated the Department of Homeland Security's (DHS) public charge rule on November 2, 2020, stating that the rule:

• Exceeds DHS authority.
• Violates the Administrative Procedure Act (APA).
• Is arbitrary and capricious.

With this court decision, DHS was blocked from enforcing the public charge rule nationwide.

However on November 3, 2020, the United States Court of Appeals for the Seventh Circuit granted an immediate motion for stay pending appeal on the ruling. This allowed DHS to enforce the public charge rule again.

Previously, a nationwide injunction blocked DHS and Department of State (DOS) from enforcing their public charge rules. A subsequent lifting of that injunction enabled DHS to continue enforcing the public charge rule in most states.

Impact of the DHS Public Charge Rule

The DHS public charge rule has been effective since February 24, 2020 and requires foreign nationals to prove that they will not become a “public charge” by relying on US public benefits. Foreign nationals cannot adjust status or change or extend nonimmigrant status if they have used public benefits for 12 months or more during the previous 36 months.

next steps

We will closely monitor the progress of this litigation  and provide updates when they are available. For case-specific advice, please contact your trusted Chugh, LLP attorney.