Feb, 05, 2020

The Department of Homeland Security Will Begin Implementing Its Public Charge Rule on February 24, 2020

Allison Orris, Elizabeth Dervan, Alice Lam, and Patricia Boozang, Manatt Health

On January 27, in a 5-4 decision, the Supreme Court granted the Administration’s request to stay a nationwide preliminary injunction that blocked the Department of Homeland Security (DHS) public charge final rule from taking effect in October 2019. As a result of the Supreme Court ruling, the government will move forward with its dramatic changes to public charge in all states except Illinois, where an injunction applicable only to that state continues to be in effect.

The new rule will be implemented on February 24, 2020, as announced by DHS’s U.S. Citizenship and Immigration Services (USCIS) on January 30, 2020. This means that for applications for admission or lawful permanent residence (a green card) submitted on or after that date, DHS public charge determinations will newly consider certain immigrants’ use of non-emergency Medicaid (with exceptions for pregnant women and children under 21), housing assistance, and Supplemental Nutrition Assistance Program benefits as well as an expanded set of factors about an applicant’s circumstances, including credit history and English proficiency. Coverage through the Children’s Health Insurance Program, the Marketplace, Medicare, and state or local health care programs will not be considered. Importantly, the rule will not be enforced retroactively; USCIS clarified that it will not consider a person’s receipt of, or applications for, non-cash benefits prior to the February 24, 2020 effective date.

DHS had been blocked from implementing the rule since October as a result of preliminary injunctions issued by federal district courts in multiple states. Three courts (in New York, Maryland, and Washington) had issued nationwide orders, while two others (in California and Illinois) issued injunctions that were more limited in scope. Soon thereafter, the federal government asked Courts of Appeals in the Second, Fourth, Seventh, and Ninth Circuits to stay the preliminary injunctions while the government appealed the lower court decisions. The Fourth and Ninth Circuits granted the government’s requests, rolling back nationwide orders from Maryland and Washington as well as a limited order from California that applied to 13 states. The Seventh Circuit denied the stay request and kept a preliminary injunction in place for Illinois. On January 8, the Second Circuit also denied the government’s stay request, allowing the New York nationwide preliminary injunction against DHS to remain in effect. DHS then appealed the Second Circuit’s decision to the Supreme Court, leading to the ruling issued earlier this week. The Supreme Court order allows DHS to begin implementing the final rule in all states but Illinois, where the statewide preliminary injunction remains.

The status of the DHS rule could change dramatically in the months ahead while litigation over the merits of the preliminary injunctions continues in all four circuit courts. The circuit courts have each set expedited schedules for the appeals, which means briefing will likely be complete by early March and decisions may be issued by the end of May. In the Second Circuit, arguments have been scheduled for March 2. The Second Circuit could decide to again enjoin the rule (a decision the Administration would likely appeal back to the Supreme Court) or could determine that the rule can go into effect.