September 28, 2020

Volume X, Number 272

September 28, 2020

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September 25, 2020

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U.S. Supreme Court Lifts Injunction on Tough DHS Public Charge Rule

The Trump Administration’s new Public Charge Rule can go into effect (for now, at least).

The U.S. Supreme Court, in a 5-4 ruling, has lifted the injunction that prevented DHS from enforcing its new Public Charge Rule despite New York’s argument that doing so would “inject confusion and uncertainty” into the process.

The Public Charge Rule is meant to limit the admission or immigration of individuals who are not basically self-sufficient. In the past, the Rule primarily affected individuals who accepted cash welfare benefits. The new Rule will make it harder for low-income immigrants and non-immigrants who might use even non-cash welfare benefits to obtain admission to the United States.

The new Rule, more than 400 pages long and complex, applies to:

  • Those applying for immigrant or nonimmigrant status abroad

  • Those seeking admission as an immigrant or nonimmigrant

  • Those applying for Adjustment of Status

  • Nonimmigrants seeking a change of status or extension of status

The benefits that may be subject to a Public Charge determination include:

  • Cash assistance for income maintenance

  • Most Medicaid participation

  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)

  • SNAP (Supplemental Nutrition Assistance Program), i.e., food stamps

  • Long-term care at government expense

  • Section 8 Housing Choice Vouchers

  • Section 8 Project Based Rental Assistance

  • Public Housing

Critics have argued that low-income immigrants will be intimidated into not accepting benefits that are not covered by the new Rule out of fear and that this will end up having a substantial financial impact on some states. Indeed the “chilling effect” of the Rule and the Rule itself could be particularly harsh on pregnant women and young children, including infants and pre-schoolers, who may forego health benefits and nutritional assistance in order retain all of their immigration options.

The Court’s Order, like the injunction, applies nationwide. The case below, State of New York et al. v. U.S. Department of Homeland Security, et al., will continue to be litigated in the Second Circuit. The litigation likely will result in a petition for writ of certiorari. Accordingly, the Court probably will hear the case again. In a separate, companion case in the U.S. District Court for the Southern District of New York, Make the Road New York et al. v. Ken Cuccinelli, the District Judge enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice. Those forms, which themselves are more complex, may go into effect.

Justice Neil Gorsuch, joined by Justice Clarence Thomas, filed a concurring opinion with the Court’s brief Order. Judge Gorsuch expressed his general dislike for nationwide injunctions. These nationwide injunctions have frustrated the Trump Administration, and Attorney General William Barr expressed his desire to see them curtailed.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 28

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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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