2 Injunctions on Public Charge issued on July 29 impact on IR1 Consulates Interview and Visa Approval

[TaKane 53]

“On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the government from enforcing, applying, implementing, or treating as effective, the USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19)during the COVID-19 pandemic.

The court also issued a separate order granting an injunction that enjoins the government from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, the DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19), or the President’s October 4, 2019 Proclamation, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans (84 FR 53991, 10/9/19) during the COVID-19 pandemic.”

 

https://www.aila.org/advo-media/issues/all/public-charge-changes-at-uscis-doj-and-dos

 

As many of you have already been aware, the days old injunctions issued by SDNY have already halt some of the immigration visas at US Embassies or Consulates worldwide. Some people I know of or ready from the forum were told by CO that no visa will be issued until DOS has provided guidance. 

 

Wonder what would happen as our consulate interview is coming up in 2 weeks? Does that mean no need for DS-5540? Any ideas or thoughts?

[Hilde 381]

What does this all mean exactly? I am not sure I follow all the legal jargon but doesn't sound like good news... 😮

[Boiler 43,397]

Too early to be sure what will happen, my guess and it is a guess is the the Consulates etc will be looking for similar information that the form provided to be able to make a public charge judgement. Expect to see a lot more RFE's.

[TaKane 53]

It could go either way or at least hopefully DOS & Consulates will follow USCIS, which announced on 7/31/2020 to roll back to the “1999  public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020 to the adjudication of any application for adjustment of status on or after July 29, 2020” which is less strict.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/injunction-of-the-inadmissibility-on-public-charge-grounds-final-rule

 

Really hoping they can resolve it soon - rolling back to the previous old guidelines are better 😉

 

[TaKane 53]

1 hour ago, Hilde said:

What does this all mean exactly? I am not sure I follow all the legal jargon but doesn't sound like good news... 😮

It means USCIS and DOS will have to stop using the latest Public Charge screening criteria (implemented Feb 24th 2020) for inadmissibilty - at least for now. 

[Crazy Cat 39,190]

1 hour ago, Boiler said:

Too early to be sure what will happen, my guess and it is a guess is the the Consulates etc will be looking for similar information that the form provided to be able to make a public charge judgement. Expect to see a lot more RFE's.

I think you are correct.  This could add even more subjectivity into the process.

[Boiler 43,397]

The simple solution would be to issue an instruction to basically use the 5540 as a guidance for meeting the Public Charge issue rather than mandat it.

[Boiler 43,397]

9 minutes ago, Lucky Cat said:

I think you are correct.  This could add even more subjectivity into the process.

This has been some time coming, and I assume many on here are not familiar with what this superseded. My impression is that the old rules wer super vague and it was all basically down to how the Officers were told to interpretate them.  Now there seems to be an assumption that this will be leniently, I am not convinced. 

 

I could also be thinking of how other Countries, UK and Canada for example, look at this subject.

[Crazy Cat 39,190]

2 minutes ago, Boiler said:

Now there seems to be an assumption that this will be leniently, I am not convinced.

Concur.  

[JeanneAdil 6,190]

sorry i do not remember which post it was but one person on here was told case would be on hold for 4 months/ that being said 4 months takes us into the elections and depending on the outcome,  we could have more EO's or an entire change of policy/ who knows

This could be what keeps the embassies on hold / not knowing themselves what to do 

[TaKane 53]

26 minutes ago, JeanneAdil said:

sorry i do not remember which post it was but one person on here was told case would be on hold for 4 months/ that being said 4 months takes us into the elections and depending on the outcome,  we could have more EO's or an entire change of policy/ who knows

This could be what keeps the embassies on hold / not knowing themselves what to do 

I doubt that would be DOS would hold off Consulates IV visa processing that long (especially USCIS already said they would revert back to the previous Public Charge guideline) but who knows...

[OrihimeandIchigo 216]

6 hours ago, TaKane said:

It could go either way or at least hopefully DOS & Consulates will follow USCIS, which announced on 7/31/2020 to roll back to the “1999  public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020 to the adjudication of any application for adjustment of status on or after July 29, 2020” which is less strict.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/injunction-of-the-inadmissibility-on-public-charge-grounds-final-rule

 

Really hoping they can resolve it soon - rolling back to the previous old guidelines are better 😉

 

Oh I know I've been checking the DOS website all day looking to see if they will make a statement about the DS-5540 like USCIS did on the public charge ruling. 

[OrihimeandIchigo 216]

I also read that the "DOS public charge rule as applied by the DOS violated the Administrative Procedures Act, because no reasonable justification for the Rule had been offered and because proper notice and comment procedures were not followed. The Judge also found the Rule was likely contrary to the Immigration and Nationality Act (INA)."

 

Also:

 

Health insurance requirement for immigrant visas

In a similar vein, Daniels issued a separate ruling Wednesday putting a hold on a State Department rule revised in 2018.

That rule requires that foreigners applying for immigrant visas to the U.S. show they have "approved health insurance" to avoid being labeled a public charge. It also considers a person a public charge if they have received 12 months of public assistance during a 36 month period.

Judge Daniels agrees with the plaintiffs, who include Make the Road New York, the African Services Committee and Central American Refugee Center New York, that an Oct. 2019 proclamation by President Trump stipulating the health insurance requirement makes little sense.

"The Proclamation directs immigrants to purchase limited or temporary insurance plans that technically satisfy the Proclamation's requirements but do not actually provide comprehensive coverage," Daniels wrote in the 52-page ruling. "As a result, immigrants will be left underinsured and at greater risk of incurring uncompensated costs that will ultimately fall on and burden local and state governments."

The judge's decisions were applauded by immigrants' rights advocates. In a press release, Brittany Thomas of the Center for Constitutional Rights called the decisions "great victories for the plaintiffs and immigrant communities, who can now access life-saving benefits without fear."

One of the plaintiffs suing the Department of State hailed Daniels' injunctions as stopping "reckless and inhumane attacks" by the Trump administration on immigrant communities.

"The public charge rules by both DHS and DOS attacked our loved ones," Javier H. Valdés, co-executive director at Make the Road New York, said in an emailed statement, "by imposing a racist wealth test on the immigration system, leaving working immigrants to choose between vital services or remaining together with their families."

An appeal by federal authorities to the twin decisions is expected. On Thursday, a USCIS spokesperson told CBS that while the agency is currently reviewing the judge's ruling, "USCIS will fully comply with the court's order and will be providing additional guidance."

 

https://www.npr.org/2020/07/31/897429845/twin-rulings-by-federal-judge-block-public-charge-rules-for-immigrants

[Ela G. 389]

Definitely not on the right topic I think... But what does it mean for all of us who have already sent the I-944 form for our AOS? Is it going to affect us in any way?

[HRQX 4,145]

14 hours ago, TaKane said:

the days old injunctions

This thread's title is incorrect. The injunction from Make the Road New York v. Cuccinelli case does not affect DOS: https://ccrjustice.org/sites/default/files/attach/2020/07/Dkt 221.Judge's Order granting COVID-19 PI and denying most of MTD.7 29 2020 cuccinelli.pdf

DOS is only affected by the injunction from Make the Road New York v. Pompeo case: https://www.nilc.org/wp-content/uploads/2020/07/MTRNY-v-Pompeo-PI-Order-2020-07-29.pdf

2 hours ago, Ela S. said:

But what does it mean for all of us who have already sent the I-944 form for our AOS? Is it going to affect us in any way?

Assuming the injunction from Make the Road New York v. Cuccinelli case is still in effect when they adjudicate the I-485, then they won't consider the I-944.

Edited August 1, 2020 by HRQX