On January 27, 2020, in Department of Homeland Security v. New York, the US Supreme Court granted the government's application for a stay of a nationwide preliminary injunction barring implementation and enforcement of the Trump administration's public charge rule (589 U.S. ____, (U.S. Jan. 27, 2020)).

The stay allows the Department of Homeland Security's (DHS) public charge rule (which gives the government a wider basis to refuse visas and admission for individuals who are likely to become reliant on public benefits), to take effect during ongoing litigation. The rule now takes effect everywhere except Illinois where a limited injunction remains in place barring the rule's implementation.

Recently, the US Court of Appeals for the Second Circuit denied a motion to stay the nationwide preliminary injunction issued by the Southern District of New York, making it, at the time, the only appellate court maintaining a preliminary injunction preventing the public charge rule's nationwide implementation (New York v. U.S. Dept. of Homeland Security, (2d Cir. Jan. 8, 2020)).

For more information on the litigation surrounding the rule, see Practice Note, Assessing A Foreign National's Financial Solvency: 2019 Changes to the Public Charge Ground of Inadmissibility: Litigation Challenging the DHS Rule.

Justice Gorsuch, who concurred in the Supreme Court's granting of the stay, conveyed his concern about the rise of nationwide equitable relief, noting the problematic nature of the increasingly common trial court practice of ordering relief that transcends the case being adjudicated, by directing how the defendant must act, not just towards the plaintiff, but toward individuals who are not parties to the case.

The district court's October 11, 2019 orders granting the preliminary injunction are stayed pending disposition of the Government's appeal in the Second Circuit and disposition of the Government's petition for a writ of certiorari. The Supreme Court did not address the merits of the case here, so the matter may return to the high court in the future. In addition, Gorsuch notes that the court will inevitably address the complicated issue of increasing nationwide injunctions.

US Citizenship and Immigration Services (USCIS) has not yet announced how it will begin implementing the rule. Before it was enjoined, the agency had published new immigration benefits forms and form instructions, which it withdrew in light of the litigation. Those forms and form instructions will likely be reintroduced in the near future.

Update: On January 30, 2020, USCIS announced it will begin implementing the public charge rule everywhere except Illinois on February 24, 2020. The related new immigration forms and instructions will be published during the week of February 3rd, and will be required for affected petitions and applications filed beginning on February 24th. Relevant trigger dates are changed from October 15, 2019 (the original effective date) to February 24, 2020.