For over a year, the Trump administration has been developing a policy change to make it more difficult for immigrants to successfully obtain permanent residency in the United States, or their "green cards."  The change, called the "public charge rule," drew a record number of public comments as it made its way through the federal rulemaking process.  The new rule, which is 837 pages in length, focuses on the obscure definition of what it means to be someone who is dependent on the U.S. government for economic benefits, or someone who is likely to become financially dependent.

As the National Immigration Law Center (NILC) explains, "The public charge grounds of inadmissibility have been part of U.S. immigration law since the late 1800s. Throughout that time, a person has been considered a “public charge,” for immigration purposes, if the person was primarily dependent on the government for subsistence. Under guidance in effect since 1999, a person has been considered “primarily dependent” if they received federal, state, or local cash assistance for income maintenance or were institutionalized for long-term care at government expense."

Another NILC statement further explains that “[p]ublic charge” or the “public charge test” is used by immigration officials to decide whether a person can enter the U.S. or get lawful permanent resident (LPR) status. In this test, officials look at all a person's circumstances, including income, employment, health, education or skills, family situation, and whether a sponsor signed a contract (“affidavit of support”) promising to support the person. Officials can also look at whether a person has used specific benefit programs. The public charge test does not apply to people with LPR status who are applying for U.S. citizenship.

When a person applies to become an LPR, immigration officials look at all the person's circumstances to determine if the person is likely to use one or more of the following benefits in the future:

• cash assistance (Temporary Assistance for Needy Families, Supplemental Security Income, or state or local cash assistance like General Relief)
• Supplemental Nutrition Assistance Program (also known as SNAP, food stamps, or EBT)
• public housing or Section 8 housing assistance
• Medicaid (except for emergency services, children under 21, pregnant women, and new mothers (for 60 days))

Immigration officials consider the person's age, health, family and financial status, education, and skills. If the immigration official determines that the person is likely to become a public charge in the future, the official can refuse to grant the person's application to enter the U.S. or get LPR status."

The NILC advisory summarizes the significance of the new rule for immigrants applying for their green cards from inside the United States. "On August 14, 2019, the Trump administration published a new rule that changes the definition of “public charge” from a person primarily dependent on the government for support to a person who is likely to use one or more of the government programs listed above. The rule also adds specific details about how immigration officials will take into account the applicant's income, health, age, education, and family status. Immigration officials may not start applying the new rule until October 15, 2019.

• Health, nutrition, and housing benefits used before October 15, 2019, cannot be considered by immigration officials in a public charge test.
• Programs used by your U.S. citizen children cannot be used against you in the public charge inadmissibility test, with the possible exception of cash assistance that is your family's primary source of income."

The new public charge rule has come under intense criticism by immigration advocates.  Doug Rand, a former Obama administration official, told the Washington Post that, "[w]ith ne regulation, they are attempting to scratch two itches: One is penalizing immigrants for using public benefits that they are legally entitled to, and the other is cutting legal immigration in half. And the way you cut legal immigration in half is by kicking the doors out from the definition of ‘likely to become a public charge.'"  

The Washington Post goes on to report that "USCIS officials said the revised standards would apply to nearly 400,000 people seeking to adjust their immigration status per year, but the agency did not have an estimate of the total number of immigrants who would potentially be denied residency and other benefits.  Advocates for immigrant rights said Monday that hundreds of thousands of immigrants are likely to forgo or withdraw from a federal assistance program they are legally entitled to receive amid fears that their families could be separated because some members would be deemed ineligible to enter or remain in the country."

Fortunately, a number of organizations have filed lawsuits challenging the constitutionality of the new public charge rule.  Several federal courts have now temporarily blocked its implementation. 

At Green | Evans-Schroeder, our core purpose is to protect and advance the rights of the immigrant community.  For nearly 15 years, we have been fighting for our clients in their residency cases.  Nothing feels better than winning those cases, and sharing in our clients' excitement when they get their green cards.  We are closely monitoring the development of the public charge rule, and the progress of the lawsuits that will affect the timing of its implementation, and the scope of its application, so that we can continue to provide our clients applying for green cards with the best chance of winning their cases.