On July 29, 2020, U.S. District Court Judge George B. Daniels of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.

The Rule makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was meant to go into effect on October 15, 2019. Before that could happen, in an earlier decision, Judge Daniels enjoined it. Ultimately, the U.S. Supreme Court lifted the injunction, but left open the possibility of further filings in the lower courts.

New York, Connecticut, and Vermont took up that challenge and sought a new injunction based on “new harms” that had become apparent due to the COVID-19 pandemic. Despite the Supreme Court ruling, Judge Daniels agreed he could review the case again. He wrote in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts . . . to stem the disease.” He also noted that many immigrants who were affected by the Rule continued to work during COVID-19 to provide healthcare, food, and sanitization across the country and were essential to COVID-19 recovery.

Although the Administration had issued an alert earlier this year indicating that immigrants would not be penalized under the Public Charge Rule for seeking COVID-19 treatment, the Judge agreed that the alert did not go far enough and simply added to the “confusion and chaos” that was leading immigrants to forego care. He stated, “What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario, we are experiencing its dramatic effects in very real time.”

In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad. He stated that the plaintiffs were likely to succeed on their claims that the 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).

The Administration probably will appeal these decisions. If you have questions regarding the applicability of the new injunctions, Jackson Lewis attorneys are ready to assist.