Today, the Department of Homeland Security’s new public charge rule was supposed to go into effect. It will not. Multiple federal judges have issued temporary injunctions against the Trump administration’s public charge rule change. If implemented, this controversial policy would make it more difficult for immigrants to get green cards if it seems like they might need public assistance. Critics see it an attempt to keep out immigrants who are poor or in need of help. But the rule imposes a new burden on even financially self-sufficient applicants. The policy requires most applicants to prepare an additional 18-page form in order to adjust status. This additional step would add to the difficultly and complexity of getting a green card. The court injunctions are a welcome reprieve for intending immigrants and their families. However, the measure may only be temporary.
Titled “Inadmissibility on Public Charge Grounds,” the rule sparked several legal challenges. The new rule basically reinterprets how the law defines inadmissibility. In other words, it re-defines how the government can keep out certain immigrants that may use or have used certain public benefits. In fact, there has always been a public charge rule. The Trump administration evaluated the law, and decided to interpret it differently.
Existing Public Charge Rule
There is existing law that prevents persons from gaining admission to the United States or adjusting status to permanent resident if they are likely to become a public charge. In other words, the government may already deny a visa if the intending immigrant is likely to depend on certain public benefits. The government’s guideline for determining public charge has been someone who is “primarily dependent on the government for subsistence.” USCIS considers the following public benefits to make this determination:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
- State and local cash assistance, sometimes called “General Assistance”
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
The irony is that most immigrants are not eligible for the welfare listed above. Thus, the government has denied very few green cards based on public charge. Further, USCIS already requires most immigrants to submit Form I-864, Affidavit of Support. Generally, the immigrant’s financial sponsor prepares this form. The affidavit of support is a promise from the sponsor to the U.S. government to repay the government should the immigrant ever depend on government benefits. In most cases, the affidavit of support is in effect until the immigrant dies or becomes a U.S. citizen.
Removing the Public Charge Ground for Inadmissibility
In general, intending immigrants have been able to overcome to public charge ground for inadmissibility by submitting Form I-864, Affidavit of Support. A financial sponsor prepares the form. The sponsor promises the U.S. government to support the intending immigrant if he or she is unable to do so on their own. In fact, USCIS requires Form I-864 for most family-based immigrants and some employment-based intending immigrants to show that they have adequate means of financial support and are not likely to become a public charge.
In the vast majority of cases, employment-based applicants do not require the use of Form I-864. Alien workers under the employment-based preference categories only need to submit the I-864 Affidavit of Support if one or both of the following conditions exist:
- a relative filed Form I-140 on behalf of the applicant; or
- a relative owns five percent or more of the business that filed the I-140 petition.
Widows of U.S. citizens, VAWA self-petitioners, diversity visa applicants, asylees, refugees and other categories are typically exempted from filing Form I-864.
New Public Charge Rule
The Immigration and Nationality Act (INA) does not explicitly define the term “public charge.” However, since 1999, U.S. Citizenship and Immigration Services (including the former INS) defined it to mean a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” The Trump administration’s new public charge rule is a re-interpretation of the law that gives the government more power to restrict certain immigrants.
According to the new rule, a public charge is a person who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. For example, receipt of two benefits in one month counts as two months. Receipt of these two benefits over a three-year period for a combined six months would trigger the public charge ground. Likewise, receipt of a single benefit over any combination of 12 months in a three-year period would also trigger the public charge ground.
Removing the Public Charge Ground for Inadmissibility
When filing Form I-485 with USCIS, most applicants will need to demonstrate that they are not likely to become a “public charge” at any time in the future. In addition to Form I-864, USCIS will require most applicants to submit a new form called Form I-944, Declaration of Self-Sufficiency, under the new rule.
Adjustment of status applicants will be required to submit Form I-944, Declaration of Self-Sufficiency, unless exempt from the public charge inadmissibility ground, to demonstrate that they are not likely at any time in the future to become a public charge. The new form will expose applicants to a variety of questions never asked before. Form I-944 inquires about the intending immigrant’s assets, financial status and other family member’s finances. USCIS wants information about all assets owned as well as any liabilities such as loans, credit card debt or unpaid taxes. They will even ask about an applicant’s credit score. Factors like health insurance coverage, education and occupational skills will be queried. Receiving (and even applying for) certain public benefits in the U.S. will weigh in the decision. If the new rule is implemented in the future, Form I-944 is a significant new burden for the vast majority of applicants.
The rule affects several classes of immigrants that were previously not required to submit Form I-864. For example, USCIS will require widows of U.S. citizens, alien workers, diversity visa applicants, and certain special immigrants to file Form I-944.
Some individuals will be exempt from filing Form I-944. Applicants filing Form I-485 to adjust status as a permanent resident are exempt from the public charge ground of inadmissibility if they are adjusting in the following categories:
- VAWA self-petitioner
- Special immigrant juvenile
- Certain Afghan or Iraqi nations employed by the U.S. government
- Asylees and refugees
There are several other exceptions for other classes of immigrants exempted from the public charge ground.
What Happens Next
On Friday, October 11, three federal court rulings blocked the new rule from going into effect on October 15. Two of the courts issued nationwide injunctions while the third in California limited the ruling to the nine western states in the Ninth Circuit. In his ruling, Judge George B. Daniels of the Federal District Court in Manhattan wrote, “It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”
In fact, there are presently lawsuits filed by 21 states and the District of Columbia. They argue that the new rule discriminates against low-income people and undermines the well-being of children whose families might certain public assistance programs.
Many experts believe that the recent rulings and additional lawsuits will likely prevent the administration from implementing the policy any time soon. The court cases will almost certainly delay, USCIS from imposing the new restrictions. It is possible the courts could completely stop the policy.
The issue could go all the way to the Supreme Court. If so, it means the policy could be canceled by another administration first. However, there is always the possibility that courts will rule in favor of the government’s position, making the new rule a reality.
Adjustment of Status Applicants
Individuals who are in the United States and presently eligible for a green card, should take reasonable measures to file Form I-485 soon. It is not clear how much time we have.
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