Public Charge: Topic Overview

On February 2, 2021, President Biden issued an Executive Order that included a directive to review the public charge rules. We are waiting to see what steps the Administration will take in response to that directive.

The U.S. Department of Homeland Security’s (DHS) new rules on public charge became effective on February 24, 2020, after the U.S. Supreme Court granted the government’s request to undo the District Court’s injunction issued in the MRNY v. Cuccinelli case on Monday, January 27, 2020. Our litigation to defeat the DHS public charge rule is ongoing (see below for the status). In the meantime, the DHS Rule remains in effect.

DOS Public Charge rule: We are also fighting the U.S. Department of State (DOS) public charge rule in a case called MRNY v. Pompeo. We obtained an injunction blocking the DOS Rule on July 29, 2020. Although the government has appealed the injunction, the DOS Rule is not in effect at this time because of our litigation.

On October 11, 2019, soon after filing our first public charge case, MRNY v. Cuccinelli, together with co-counsel at the Center for Constitutional Rights and Paul, Weiss, Rifkind, Wharton & Garrison, we were successful in obtaining a nationwide injunction that blocked implementation of the DHS public charge rule. The Department of Homeland Security (DHS), sought a stay pending appeal, and appealed. Before the merits of the appeal were heard by the Second Circuit, the Supreme Court issued a stay of the nationwide injunction on January 27, 2020. The Court’s order allowed the U.S. Department of Homeland Security to start applying the public charge rule while the litigation continued. On August 4, 2020, the Second Circuit affirmed the October 11 injunction. From there, DHS filed a petition for certiorari with the U.S. Supreme Court, which the plaintiffs opposed. If the Court grants the petition, then the Supreme Court would hear the Defendants’ appeal. If the Court denies the petition, then the rule would once again be blocked in New York, Vermont, and Connecticut. We are awaiting the Court’s decision.

In the meantime, plaintiffs in the MRNY case together with New York State, New York City, and the states of Vermont and Connecticut, sought a second, temporary injunction in the Spring of 2020 presenting evidence to the Court that the DHS public charge rule was exacerbating the impact of the COVID-19 pandemic by deterring immigrants from using government benefits, including testing and treatment for COVID-19 and underlying conditions that make COVID-19 more lethal. On July 29, 2020, the District Court granted the temporary injunction stopping the rule on a nationwide basis. The defendants against sought a stay, which was granted by the Second Circuit, and filed an appeal. The appeal is now fully briefed in the Second Circuit.

We filed MRNY v. Pompeo to challenge the DOS public charge rule, and related rules, several months after our first public charge case was filed. We obtained a nationwide preliminary injunction from the District Court on July 29, 2020 blocking the DOS public charge rule, President Trump’s Healthcare Proclamation, and an earlier public charge rule change to the Foreign Affairs Manual. This injunction remains in place nationwide, while efforts to stay the injunction of the DOS public charge rule, and appeal all three rules are pending in the Second Circuit.

Accessing COVID-19 testing and care WILL NOT count against an immigrant who is or may be subject to public charge in the future.

Any community member or advocate with questions should call The Legal Aid Society’s Immigration Helpline at 844-955-3424, Monday – Friday from 9 a.m. – 5p.m. Our public charge team can then call you back to answer additional questions relating to public charge. See also our updated FAQ on Public Charge which includes COVID-19 information, posted below.

Return to this page for updates on the litigation and our ongoing efforts to stop the public charge rules and related advocacy.