The Trump administration is going forward with its expansion of the Public Charge grounds of inadmissibility. This expansion has been blocked by lawsuits for several months but, as of February 24, 2020, it will go into effect in every state except Illinois. This is because of a recent decision by the Supreme Court to remove a temporary nationwide injunction against this rule that was entered by a district court judge. It is important to note that the Supreme Court decision did not discuss the constitutionality of the new Public Charge policy – we haven’t gotten that far yet. The new rule is currently pending review at the 2nd Circuit Court of Appeals and we are expecting a formal judicial decision about its constitutionality soon. In the meantime, we want our clients and others seeking admission to the United States to be aware of how this rule may affect them.

What is Public Charge

“Public charge” is a ground of inadmissibility. The Immigration and Nationality Act states that foreign nationals who are likely to become a public charge, i.e. become dependent on public assistance in the United States, cannot be admitted on temporary visas or become permanent residents. While public charge rules have been part of immigration policy since 1882, the immigration laws do not clearly define what exactly does public charge mean. The U.S. government has previously implemented general public charge guidelines that have been used in a less restrictive manner. For example, the financial Affidavit of Support that U.S. citizens are required to sign when filing permanent residence cases for their foreign spouses has up to now been sufficient to address any potential public charge concerns. After all, the United States is famous for providing opportunities for hard-working immigrant families to improve their lives over generations and this is at the core of the “American Dream.”

What is different about the new rule?

The new Public Charge rule is a massive departure from the existing immigration framework. It is not only a lot more restrictive but also adds substantially more uncertainty and subjectivity to an already complex immigration process. The new rule defines Public Charge as follows:

‘public charge’ means an alien who receives one of more public benefits, as defined at new 8CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months.

The public benefits listed at 8CFR 212.21(b) include the following:

  • Any Federal, State, or local cash assistance like SSI, TANF, or “general assistance” programs
  • SNAP, Supplemental Nutrition Assistance Program (food stamps)
  • Section 8 Housing Assistance
  • Section 8 Rental Assistance
  • Medicaid (called TennCare in Tennessee), but not including emergency benefits, funds for Individuals with Disabilities Education Act, and school-based services,
  • Public Housing

In addition to disqualifying people who receive certain benefits that are entirely legal and allowed under various state laws, the new rule also requires officers of the U.S. Citizenship and Immigration Service, the Customs and Border Protection agency, and the U.S. Department of State to evaluate an applicant’s prospective likelihood of becoming a public charge in the future. Factors that will be used to determining whether a foreign national is likely to become a public charge include the following:

  • Having income less than 250% of the Federal poverty level for their household size
  • Being unemployed
  • Having disabilities
  • Having serious health conditions
  • Not having health insurance
  • Having limited proficiency in English
  • Having debt or a low credit score

Does the new rule apply to you?

Foreign nationals who fall within any of the following groups will be screened for public charge:

  • People applying for permanent residence (except through asylum or refugee status, U or T visa, or VAWA)
  • People applying for visas or for admission to the United States using a visa
  • People who already hold a green card but have been outside the United States for over 180 days or have travelled abroad and have a criminal conviction
  • People applying to extend or change non-immigrant status (they are subject to only backward-looking questions about the receipt of public benefits in the past)

Are there any exceptions to the new rule?

Not everyone will be subject to the new Public Charge rule. Refugees, asylees, VAWA and U and T visa recipients are among those who will not be subject to this additional screening.

Is this the final word on Public Charge?

While the expanded Public Charge rule is moving ahead now, the courts have not yet issued a final ruling on its constitutionality and there is still a good chance that it will be deemed unconstitutional. We believe that it unduly punishes immigrants and forces immigrant families to choose between their immigration status and critical health, nutrition, and housing assistance to which they are entitled under various Federal and state laws. This is a wealth test that is antithetical to this country’s history of welcoming immigrants and is rooted in racism and classism. Until there is a change, we will be ready to advise clients with the most up-to-date information on this issue.

Anyone applying or planning to apply for most types of visas or permanent residence needs to be aware of the expansion of this rule. If you have not spoken to an immigration attorney about how the Public Charge Rule affects your case, call us for a consultation. We can help you determine your risk and advise you on any changes that may be necessary.