On Friday, October 11, 2019, a federal judge in New York enjoined implementation of a final rule aimed at excluding from the United States aliens who have used public assistance programs, including in-kind assistance such as housing subsidies and health benefits. Finding that the Trump administration had likely exceeded its authority, Judge George B. Daniels (SDNY) issued a nationwide preliminary injunction that blocks the Rule from going into effect as scheduled tomorrow.

As discussed in our prior Legal Update, the Immigration and Nationality Act of 1952 (INA) and implementing regulations have long included grounds of inadmissibility and removal designed to limit access to public benefits by immigrants and nonimmigrants. Under the INA, foreign nationals found to be, or likely to become, a public charge may be denied admission to the United States, prevented from becoming a lawful permanent resident, or found subject to removal. The new rule defines a “public charge” to mean “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (receipt of two benefits in one month would count as two months of benefits).”

In advance of the public charge rule taking effect, US Citizenship and Immigration Services (“USCIS”) had published new and revised immigration forms designed to capture information needed by the agency to make a public charge determination. This includes updates to existing forms, such as Forms I-129, I-539 and I-485, used to request that a foreign national be given extended nonimmigrant status or lawful permanent resident status and new forms such as Form I-944, Declaration of Self-Sufficiency. Judge Daniels’ order prevents the agency from “requiring the use of any new or updated forms whose submission would be required under the Rule.”

The order was issued in two cases consolidated for consideration by Judge Daniels. In Make the Road New York et al. v. Cuccinelli et al., several non-profit organizations claim that the final rule “threatens grave, imminent harm to immigrants, their families, and their communities, and to immigrant assistance organizations” by causing hundreds of thousands of foreign nationals not to access benefits to which they are lawfully entitled on an annual basis, possibly leading to increased use of emergency rooms, increased prevalence of communicable diseases, and reduced educational attainment. Further, the complaint alleged that “the Rule is inconsistent with the language of the [INA] and with more than a century of judicial precedent and administrative practice” and that “DHS issued the Rule without statutory authority.”

In the second case, State of New York et al. v. United States Department of Homeland Security et al., the plaintiffs (State of New York, City of New York, State of Connecticut, and State of Vermont) allege that the rule would “cause immediate and irreparable injury” by forcing foreign nationals to withdraw from federal aid programs and rely instead on state and local governments. According to the complaint, the final rule violates the Administrative Procedure Act and the equal protection guarantee of the Fifth Amendment to the Constitution by exceeding DHS’s statutory authority to redefine the term “public charge,” discriminating against persons with disabilities and immigrants of color, and arbitrarily and capriciously departing from decades of practice.

A number of other challenges have been filed in the courts. For example, 13 states in State of Washington et al. v. United States Department of Homeland Security et al. claim that the “radical expansion of the public charge standard will cause irreparable harm to the working families and children who live in the Plaintiffs States, as well as the states themselves.” The complaint alleges that the final rule will have a chilling effect on foreign nationals’ participation in public benefit programs, leading to the forfeiture of health insurance, medical care, and nutrition assistance, imposing “uncompensable social and economic costs on the Plaintiff States that [DHS] entirely fails to confront.” We expect to see injunctive relief being issued in some of these other cases as well.