Statutes of Liberty: New Fees Enjoined, New Requirements Applied — A Chaotic Week in Federal Court

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The Trump Administration moved in February to apply extensive additional requirements to the Public Charge Rule. We told you all about it. The Administration also moved in August to raise fees for most immigration cases. We told you all about that, too.

In the past fortnight, both of those reforms have been the subject of federal court action, with major implications for people with pending green card applications or thoughts of applying for a green card in the coming months. We will summarize the latest developments here, prioritizing “what to do” over “esoterica only a lawyer would care about.”

The Public Charge Rule

The new Public Charge Rule imposed a huge administrative burden on green card applicants. The new Rule was, accordingly, attacked in federal court by impact litigators in the immigration bar.

This effort met with initial success; Federal District Judge George Daniels enjoined enforcement of the new Public Charge Rule nationwide in July 2020. On September 11, 2020, the Court of Appeals for the Second Circuit lifted that nationwide injunction and allowed DHS to proceed with enforcement of the new Public Charge Rule. Here is a detailed, fair summary of the litigation from DHS.

What does all of that mean, practically speaking, for green card applicants? The answer depends on when your green application was filed.

1. If your green card application was filed before or on February 24, 2020, you will not need to file the new Public Charge form (Form I-944) and supporting documents.
2. If your green card application was filed on or after February 25, 2020, you will probably need to file the new Public Charge Form and supporting documents even if the injunction was in place at the time you filed. You should expect a big, fat Request for Evidence in the next few months.
3. If you haven’t filed yet, but manage to file your green card application before October 13, 2020 without the new Form I-944, USCIS will send you a big, fat Request for Evidence but will not reject the application.
4. If you file your green card application on or after October 13, 2020 without the new Form I-944, USCIS will simply reject your filing.

Our expectation is that lots of folks in #2, above, are going to get hit with Requests for Evidence and are going to need help in responding to them. Obviously, we’re here to help.

Immigration Fee Increases Enjoined Nationwide

USCIS fee increases were scheduled to go into effect on October 2, 2020. On September 29, just three days before the scheduled fee increases, Federal District Court Judge Jeffrey S. White enjoined the proposed fee increases in their entirety, thereby releasing — to borrow a metaphor from Dahlia Lithwick — a live ferret into the staid halls of immigration procedure.

USCIS managed to put out a press release yesterday bemoaning the decision, but has not otherwise updated its website to inform citizens and non-citizen applicants for immigration benefits about what will happen to the fees on October 2.

Here’s the straight dope: the fee increases will not happen on October 2. The fee increases will eventually happen, but not quickly. A Federal Court of Appeals (in this case, for the 9th Circuit) may lift the injunction and allow the increases to proceed, or the Department of Homeland Security may redo its rulemaking process in order to address Judge White’s concerns.

If you file an immigration application on or after October 2, do not send the higher fee. USCIS reacts to excess payments by rejecting the application in full, and application rejections can delay or even prevent you from obtaining immigration benefits.

On a more theoretical level, one might wonder whether these nationwide injunctions (and stays of injunctions, and reimpositions of stays) are a healthy way to make immigration policy. Justice Thomas has raised such concerns in a broad way in his concurring opinion in Trump v. Hawaii. It’s an interesting question — tell us what you think in the comments — but we won’t address it here. Our focus is on getting the word out about these practical changes to our immigration system.

As always, we welcome your thoughts and comments and will do our best to respond.