Court Blocks Trump’s “Public Charge” Rule

On July 29, 2020, a federal court blocked the Trump Administration’s new “public charge” rule.

In earlier posts, we have discussed the new rule and its harmful effects on thousands of people who have recently applied for permanent resident status.  Anyone who has had to prepare an application for permanent resident status under the new “public charge” rule knows the enormous amount of work involved, the need to provide reams of very sensitive personal financial data to USCIS, and the frustration of facing yet another enormous obstacle to legal status that the Trump Administration has created.

Well, for now, at least, the “public charge” obstacle has been put on hold, both for persons applying for permanent resident status in the United States, before USCIS, and for persons applying for immigrant visas at U.S. consulates throughout the world.

Judge George McDaniels, a judge of the U.S. District Court for the Southern District of New York, issued two separate opinions that block further implementation of the new “public charge” rule:  one decision affects USCIS, while the other decision affects the U.S. Department of State, which runs U.S. embassies and consulates throughout the world.  The main reasoning behind the judge’s decisions was the negative effect that the new rule had on persons struggling to maintain health and safety during the Coronavirus pandemic.

The judge indicated that the new public charge rule spread fear among immigrants that the new rule would label them as a “public charge” if they obtained medical care or other benefits related to the fight against Coronavirus.  The judge concluded that the new public charge rule harmed the United States and immigrants who were making choices that they believed would help them avoid “public charge” problems but that would place them at greater risk of harm as a result of Coronavirus.

It is expected that the Trump Administration will appeal the judge’s rulings.  But for now, both USCIS and the U.S. Department of State have indicated that they are no longer implementing the new “public charge” rules.

States Ask Supreme Court to Put “Public Charge” Rules on Hold

In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”

In January 2020, the Supreme Court issued an order that allowed U.S. immigration officials to put the new rules into effect while it is still being challenged in the courts.

In February 2020, USCIS and the U.S. Department of State began to require applicants to follow the new public charge rules.

On April 13, 2020, officials representing New York, along with Vermont and Connecticut, asked the Supreme Court to put the public charge rules on hold until the Coronavirus emergency is over.

In their request, the state officials argued that the public charge rule has the effect of discouraging noncitizens from seeking health care, including testing and treatment for the Coronavirus.  Leaving the public charge rule in place at this time “makes it more likely that immigrants will suffer serious illness if infected and spread the virus inadvertently to others—risks that are heightened because immigrants make up a large proportion of the essential workers who continue to interact with the public.”

On April 24, 2020, the Supreme Court denied the requests, but indicated that the petitioners could file motions in the federal district court.  It appears that officials representing the state challengers likely will file a motion in district court.

U.S. Consulates Implementing New Public Charge Rule

On Monday, February 24, 2020, the U.S. Department of State will implement new policies related to the Trump Administration’s public charge rule.  The new policy is scheduled to go into effect worldwide on February 24, 2020.

Applicants for immigrant visas will now be required to complete an additional form, called the DS-5540.

The U.S. Department of State has also amended the sections of the Foreign Affairs Manual (FAM) relating to the public charge ground of inadmissibility.

The new form asks for the following information regarding the immigrant visa applicant:

  • Whether you currently have health insurance in the United States
  • Whether you will be covered by health insurance in the United States within 30 days of your entry to the United States with your immigrant visa
  • Members of your household and whether they are employed
  • Information regarding your federal tax returns within the last 3 years
  • Your current income
  • Whether you have a job waiting for you in the United States, the name of the employer, and the proposed yearly income
  • Your assets
  • Your debts
  • Public benefits you have received on or after February 24, 2020
  • Your education level
  • Your employment skills

There is at least one lawsuit challenging the U.S. Department of State’s implementation of the public charge rule.  For now, it is required for immigrant visa applicants.

For Now, Supreme Court Allows USCIS to Use “Public Charge” Rules

In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”

That new rule was set to take effect on October 15, 2019, but courts issued orders blocking the implementation of the new rule while the cases challenging it were processed.

But on January 27, 2020, by a 5-4 vote, the Supreme Court lifted the injunction.  This means that USCIS may begin using the new rule while it is still being challenged in the courts.  There is one exception:  USCIS may not implement the new rule for green-card applicants in Illinois, because of an ongoing legal challenge in that state.

For now, we don’t know exactly if or how USCIS will begin to implement the new rule.  And it’s important to remember that lawsuits challenging the new rule are still moving forward.  The Supreme Court’s decision on January 27, 2020 simply states that USCIS may use the new rule (except in Illinois) while the lawsuits are pending.

Trump’s New Rule on the “Public Charge”

We recently wrote about the Trump Administration’s policy change regarding how U.S. immigration officials will determine who could be deemed “inadmissible” on “public charge” grounds.  Now that the policy shift has been published, we provide some more information here.

Please note that the rule is very long and contains lots of details and complexities.  This posting is meant to provide a general overview.  This posting is not legal advice.

Trump’s new rule is set to take effect on October 15, 2019.  Lawsuits challenging the new policy have already been filed, and more lawsuits are likely.  So, we don’t know yet whether the policy change will actually take effect on October 15, 2019 or not.  For now, it’s fair to say that it might take effect on that date, and we need to be prepared for it.

Who is affected?

Let’s discuss who is affected by the new rule, and who is not.  The new rule applies to persons who are applying for permanent resident status, otherwise known as “green card” status.  Persons apply either inside the United States or at a U.S. consulate in a country outside the United States.  The new rule also applies to persons who have a non-immigrant visa and who are seeking to extend their non-immigrant status or change it from one category to another.

The rule does not apply to persons who are already permanent residents (including permanent residents on a conditional basis who have a permanent resident card valid for two years).

It appears that the new rule could apply to permanent residents who are returning to the United States after a trip and who are deemed to be applicants for admission to the United States.  This situation could occur if a permanent resident takes a trip that lasts more than 180 days, or commits a crime either before or after taking a trip outside the United States, and certain other circumstances.

The rule also does not apply to asylees and refugees.  The rule also does not apply to U.S. citizens.

Trump’s new rule states that U.S. immigration officials will only consider public benefits received directly by the person applying for permanent resident status, or where that person is listed as a beneficiary of the public benefit.  If there are others in the household who are receiving public benefits, that will not cause a problem for the person applying for permanent resident status, unless he or she is listed as a beneficiary of the public benefit.

How does the new rule change things?

Under the new rule, a person is designated as a “public charge” if he or she receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.  If a person receives two different benefits in one month, that counts as two months.  “Public benefits” include:

  • Cash benefits for income maintenance, including any federal state, or local program such as SSI (Supplemental Security Income) and TANF (Temporary Assistance for Needy Families)
  • SNAP (Supplemental Nutrition Assistance Program) (known as “food stamps”)
  • Most forms of Medicaid
  • Section 8 Housing Assistance
  • Certain other forms of subsidized housing

The new rule will determine whether an applicant for permanent residence is likely to become a public charge at any time in the future.  At a minimum, U.S. immigration officials must consider:

  • Age: People under 18 or over 62 are considered to be more likely to become a public charge.
  • Health: People diagnosed with a medical condition likely to require extensive treatment will be considered more likely to become a public charge.
  • Education and Skills: History of employment in the last 3 years; education level, occupational skills, proficiency in English.
  • Assets, Resources, and Financial Status: U.S. immigration officials will consider:
    • the applicant’s credit history and credit score in the United States.
    • mortgages, car loans, unpaid child or spousal support, unpaid taxes, credit card debt.
    • ability to pay for medical costs associated with medical conditions.

What are the most important factors?

The new rule describes certain factors that will “weigh heavily” in the decision of whether a person is likely to become a public charge.

Heavily weighted negative factors:

  • The applicant is no a full-time student and is authorized to work, but is not able to show current employment, recent employment, or a reasonable prospect of future employment.
  • The applicant has received or been approved to receive one or more public benefits for more than 12 months in the aggregate within the most recent 36 months.
  • The applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment that will interfere with the ability to provide for oneself, attend school, or attend work, and the applicant is uninsured and is not likely to obtain insurance or to pay for medical care.

Heavily weighted positive factors:

  • The applicant’s household has income and/or assets that amount to at least 250 percent of the Federal Poverty Guidelines for the household size.
  • The applicant is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for the household size.
  • The applicant has private health insurance, which does not include insurance for which the applicant “receives subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act.”

Public Charge Bonds

U.S. immigration officials may, in some cases, allow applicants to submit a public charge bond of at least $8,100, to be kept until USCIS grants a request to cancel the bond.

Bonds may be cancelled after the applicant:

  • becomes a U.S. citizen,
  • permanently departs the United States,
  • dies, or
  • completes 5 years as a permanent resident.

We are here for you.

The new rule is likely to mean significant changes to the process of applying for permanent resident status.  As noted above, lawsuits challenging the new rule might delay or even prevent implementation of the new rule.  We will continue to study the situation and we will work with you to provide high quality legal services for your immigration matter.

The Trump Administration’s (Bad!) Shift on “Public Charge”

The term “public charge” is used in immigration law to refer to an individual who is likely to become primarily dependent on the government for support by receipt of cash assistance or long-term care at the government’s expense.

Whether someone is likely to become a public charge is considered when a person applies for a nonimmigrant or immigrant visa to enter the United States and when they apply for adjustment of status (to obtain a green card).  An immigration officer must look at the totality of circumstances when deciding whether a person will become a public charge.  They can consider factors such as age, health, family status, assets, resources, financial status, and education and skills in their overall analysis.  Any persons who are deemed to become a public charge will not be able to obtain the immigration benefit that they are seeking.

On October 10, 2018, the Department of Homeland Security (DHS) introduced a new rule regarding public charge.  The rule will soon take effect.  The rule is likely to negatively affect many immigrants by expanding the list of publicly funded programs that officers can consider when deciding if someone will become a public charge.  Under the proposed rule, past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

The DHS proposal would also allow immigration officers to consider English proficiency as well as use of all cash aid including state and local cash assistance programs.

Under the DHS rule, consideration would be given not only to whether an applicant was so poor that they were likely to receive certain U.S. government benefits, but also to whether the applicant received these benefits already.

While the DHS proposed rule remains under development, the Department of State has already revised the Foreign Affairs Manual to tighten the public charge analysis.  U.S. consulates around the world have already been applying these new policies, which have led to an increase in visa denials.  From October 2018 through July 2019, the State Department has denied 5,343 immigrant visa applications for Mexican nationals based on public charge grounds.  That is up from only seven denials in 2016!

U.S. consulates in other countries have also begun denying more visa applicants on the public charge ground.  For example, the U.S. consulates in Bangladesh and Pakistan refused more than 2,700 applicants in the most recent fiscal year, a sharp increase over previous years.

This new change to the public charge assessment is just one of numerous actions that the Administration has taken and will continue to pursue in order to restrict immigration to the United States.  Sadly, many immigrant families are suffering the effects.