DHS Announces DOJ Will No Longer Defend the 2019 Public Charge Final Rule

Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced yesterday that the government will no longer defend the 2019 public charge rule as doing so is neither in the public interest nor an efficient use of limited government resources. Specifically, the Department of Justice (DOJ) will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 rule. DOJ has filed a joint motion to dismiss the petition for certiorari in the Supreme Court, as well as joint motions to dismiss appeals in various circuit courts, all of which have been granted.

In a separate statement, DHS clarified that once the 2019 rule is permanently invalidated, DHS will follow the 1999 interim field guidance on the public charge inadmissibility provision (i.e., the policy that was in place before the 2019 rule). Under the 1999 interim field guidance, DHS will not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination, among many other factors that made up the expansive and largely irrational requirements of the 2019 rule.

The takeaway: As of today, the 2019 public charge rule remains in effect as to applications filed with USCIS (if those applications come under the scope of the rule), but its days are numbered. Stay tuned for updates from DHS and USCIS regarding the administration of the public charge ground of inadmissibility, including a formal announcement from DHS/USCIS when the 2019 public charge rule definitively stops being applied.