Anti-Poor Public Charge Rule Blocked – For Now

by Cristina A. Godinez, Esq.

Statue of Liberty | Public Domain

The U.S. District Court for the Southern District of New York last week blocked the new public charge rule that would have made it more difficult for persons with low income from seeking admission to the U.S. or from applying for a green card.

Who is a Public Charge?

A person is considered a public charge if s/he receives public cash assistance or long-term care to survive in the U.S. Under previous rules, the only government benefits considered in making a public charge determination are Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), state and local cash assistance for income maintenance and institutionalization for long-term care at government expense.

A person who seeks admission to the U.S., applies for a visa or for adjustment of status to permanent resident (also referred to as the “green card application”) must prove that s/he will not depend on government resources. Otherwise, s/he will be considered inadmissible for being a public charge, and therefore will not be issued a visa or a green card.

In 2018, the government announced changes to the public charge rule that added more public benefit programs, and directed the State Department and Department of Homeland Security (DHS) to evaluate various factors differently, in determining whether a person may become a public charge. The new rule was criticized for discriminating against poor would-be immigrants who may not qualify for a green card because they will be subjected to more stringent public charge rules. This anti-poor public charge rule took effect in February 2020.

Court Challenges

Over the past few months, the public charge rule had been shifting beneath our feet as a result of court challenges.

Beginning February 2020, persons applying for a green card, or for a change or extension of nonimmigrant status were required to satisfy the new public charge test. This meant applicants needed to complete a new 18-page Declaration of Self-Sufficiency Form (I-944) and submit copious materials that show:

• household income;
• checking and savings accounts;
• retirement accounts;
• real estate holdings in the U.S. with appraisal and cash value;
• liabilities;
• recent credit score reports;
• health care coverage;
• use of public benefits;
• educational and occupational background, among others.

On July 29, 2020, the U.S. District Court for the Southern District of New York barred the DHS from implementing the new public charge rule while there is a declared national health emergency due to Covid-19. A similar order was separately issued by the same court barring the State Department from adjudicating visa applications under the new public charge rule.

This means the DHS will follow the previous and less stringent public charge guidance in adjudicating green card applications as well as any application or petition for extension of nonimmigrant stay or change of nonimmigrant status. The State Department, on the other hand, already announced yesterday that it is complying with the court order.

“Give me your tired, your poor, your huddled masses”

When the new public charge rule was announced in 2018, U.S. Citizenship and Immigration Services (USCIS) Director Ken Cuccinelli defended it by saying it had always been part of U.S. immigration law for the past 140 years. He went so far as to tweak the poem engraved at the foot of the Statue of Liberty, “(g)ive me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

What many may not be aware of is that the public charge rule has a long history of being bent and twisted by legislation and interpretation to exclude groups of persons on the basis of class, ethnicity and sexual orientation.

The earliest federal iteration of the public charge rule emerged in the Immigration Act of 1882 which prohibits from entry, “convicts, lunatics, idiots, or any person unable to take care of himself or herself without becoming a public charge.” Subsequent legislation included alcoholics, vagrants, polygamists and homosexuals under the expanding tent of the public charge rule.

The Trump government is now bending and twisting public charge anew to constrict immigration by giving preference to immigrants who have higher income and more assets.

For now, this new anti-poor public charge rule is of no force or effect– at least until the Covid-19 national emergency remains. In the meantime, it would be best to explore immigration options sooner rather than later. The legal tussle over implementing this rule is not yet over and there is no telling which way the higher courts will rule on this issue.

Cristina Godinez is an attorney who has provided immigration solutions to families, businesses and at-risk migrants in the United States for over 15 years. She worked with the immigration law practice group of a top-tier global law firm and later, with the world’s largest immigration law firm. She is also the attorney at the faith-based Migrant Center of New York where she oversees the delivery of immigration legal services to low-income clients. Cristina is a member of the American Immigration Lawyers Association.

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