Emergency Justification Memo

U.S. Citizenship and Immigration Services
Office of Information Technology
Washington, DC 20529

Decision Memorandum
TO:

The Honorable Paul Ray
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget

THROUGH: The Honorable Karen S. Evans
Chief Information Officer
Department of Homeland Security
FROM:

KAREN S
EVANS

William S. McElhaney
WILLIAM S
Chief Information Officer
MCELHANEY
U.S. Citizenship and Immigration Services

Digitally signed by
KAREN S EVANS
Date: 2020.09.03
14:32:52 -04'00'

Digitally signed by WILLIAM S
MCELHANEY
Date: 2020.09.02 10:35:05 -04'00'

SUBJECT: Request for Emergency Approval of an Information Collection Request pursuant to
44 U.S.C. 3507(j)(1)(B) and 5 CFR 1320.13
Purpose: USCIS is requesting emergency approval of this collection of information under
5 CFR 1320.13.
Background: On August 14, 2019, DHS published the Inadmissibility on Public Charge
Grounds, Final Rule (84 FR 41292, Aug. 14, 2019, final rule; as amended by 84 FR 52357, Oct.
2, 2019, final rule correction), the “Public Charge Final Rule”. On February 24, 2020, after a
number of nationwide injunctions and stays of those injunctions, DHS implemented the Public
Charge Final Rule, including information collection instruments approved by the Office of
Information and Regulatory Affairs in connection with that rule.
Discussion: In the fall of 2019, following the filing of challenges to the public charge rule in
several federal district courts around the nation, and the issuance of multiple preliminary
injunction orders, both nationwide and limited in scope, the government appealed those orders to
the U.S. Circuit Courts of Appeals for Second, Fourth, Seventh, and Ninth Circuits. The Ninth
Circuit and Fourth Circuit stayed the injunctions issued within their jurisdictions. The Second
and Seventh Circuits declined to issue stays, and further appeal was necessary. On January 27,

Subject: Request for Emergency Approval of an Information Collection Request pursuant to 44
U.S.C. 3507(j)(1)(B) and 5 CFR 1320.13
Page 2
2020 the U.S. Supreme Court issued a stay regarding the injunctions issued within the Second
Circuit. On February 21, 2020, the U.S. Supreme Court issued a stay regarding the injunction
issued within the Seventh Circuit. At that time, there were no injunctions constraining DHS
from implementing the public charge rule and the public charge rule was implemented
nationwide on February 24, 2020.
On Wednesday, July 29, 2020, DHS was enjoined by the U.S. District Court for the Southern
District of New York from enforcing, applying, implementing, or treating as effective the Public
Charge Final Rule nationwide for any period during which there is a declared national health
emergency in response to the COVID-19 outbreak. On August 12, 2020, the Second Circuit
issued a partial administrative stay of the nationwide injunction limiting its scope to the Second
Circuit, i.e. New York, Connecticut, and Vermont. For the period between July 29, 2020 and
August 12, 2020, DHS was subject to a nationwide injunction prohibiting implementation of the
Public Charge Final Rule.
USCIS has been advised by the U.S. Department of Justice that the partial administrative stay of
the injunction and language of the partial administrative stay would allow USCIS to implement
the Public Charge Final Rule outside of the Second Circuit. The language of the injunction and
administrative stay does not directly address the use of forms impacted by the Public Charge
Final Rule and DOJ has advised USCIS that USCIS could proceed with using a single version of
the forms both outside and within the Second Circuit so long as USCIS provides clear guidance
to the regulated public in the Second Circuit that applicants/petitioners should not provide
information or evidence that would only be required under the Public Charge Final Rule. The
Office of Information and Regulatory Affairs Desk Officer has advised USCIS that it must
modify the instructions to impacted forms to make it clear on the instructions, in addition to the
planned USCIS web guidance, that applicants/petitioners in the Second Circuit need not provide
information and evidence that would only be required to make public charge inadmissibility
determinations under the Public Charge Final Rule during the pendency of the July 29, 2020
injunction in the Second Circuit.
Pursuant to 44 U.S.C. 3507(j)((1)(B) and 5 CFR 1320.13, DHS is requesting that the Director
approve modifications to the form instructions for the impacted information collection
instruments. USCIS certifies that the requirements of 5 CFR 1320.13(a)(1) are met and that:
x
x

The subject collection of information is needed immediately and is essential to the
mission of the agency; and
The agency cannot reasonably comply with the normal collection procedures because
public harm is reasonably likely to result if normal clearance procedures are followed.

Subject: Request for Emergency Approval of an Information Collection Request pursuant to 44
U.S.C. 3507(j)(1)(B) and 5 CFR 1320.13
Page 3
USCIS greatly appreciates the timely consideration of this request.
The following list are the forms impacted:
OMB Control Number
1615-0023
1615-0009
1615-0111
1615-0003
1615-0116

Form Number
I-485
I-129
I-129CW
I-539 and I-539A
I-912