The Supreme Court Reverses Injunction Delaying Trump Administration’s Enforcement of Immigration Public Charge Enforcement, Set To Begin February 24, 2020.
The US Supreme Court voted in a 5-4 decision to lift the nationwide injunction that prevented the US Citizenship & Immigration Services (USCIS) from enforcing the “Public Charge” policy (read the full decision). The Department of Homeland Security (DHS), has announced that USCIS will begin enforcing the public charge policy beginning February 24, 2020.
There has long been a regulation that made immigrants inadmissible to the US if they are deemed to be a public charge (INA Sections 212(a)(4) and 237(a)(5)), but this policy was rarely enforced. If an immigrant applying for legal permanent resident status (commonly referred to as a greencard), they must be found to be admissible to the US or their application will not be granted. Thus, an immigrant who is found to be a public charge will be deemed inadmissible and ineligible for a greencard (without needing a waiver of inadmissibility).
Individuals who are applying for a non-immigrant visa, a visa that would allow them to enter the US to work or visit for a temporary period of time, must also be admissible or their visa will be denied. The enforcement of the public charge policy will also impact individuals who are not seeking a greencard but are merely seeking to enter the US on business trips, for seasonal work, traveling performers, and others visiting the US for a short period of time.
USCIS has stated that new forms and rules will be released prior to February 24, 2020. After the implementation date, USCIS will reject any filings using the earlier forms. The new forms will include additional questions related to receiving public benefits to help determine whether an applicant for permanent resident status is likely to become financially dependent on the taxpayers any time in the near future if they are granted a greencard. The existing forms do ask questions about this but the issue is usually passed over without much concern during adjustment of status interviews and applicants are rarely, if ever, denied a greencard for collecting public benefits that they were not legally allowed to collect. It is expected that the new forms will ask more detailed questions and result in this issue being examined more closely during the adjustment of status interview.
USCIS has clarified that it will not consider non-cash public benefits received prior to February 24, 2020, when the decision whether an individual is likely to become a public charge. USCIS has a website has page devoted to this topic where you can learn more about the technical details: https://www.uscis.gov/greencard/public-charge
USCIS posted an official news release on this topic titled: USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions
The policy for determining whether or not an immigrant is or is likely to become a public charge is fairly simple according to what USCIS has posted thus far. If the immigrant received social/public benefits for more than 12 months, in the aggregate, within any 36-month period then USCIS can make a finding that the immigrant is “not self-sufficient” and thus a public charge or likely to become a public charge and are inadmissible and thus ineligible for legal permanent resident status (a green card). Public and social benefits include but are not limited to: food stamps, housing assistance, cash benefits, and federally funded Medicaid services.
On January 31, 2020, USCIS tweeted that new forms and filing instructions will be posted on the USCIS website, “in the near future.” Experts on this issue have discussed possible changes on the AILA website. USCIS has further stated that a practice advisory will be issued regarding the new forms and policy.
It is unclear how the new rules will affect applicants for legal permanent residence who are consular processing at a US consulate overseas rather than adjusting status in the US. Consular interviews are typically less involved than adjustment of status interviews and USIS has no jurisdiction over consular interviews (beyond the visa petition). We will have to wait for official guidance to be issued. We will post information as soon as it becomes available but you can also check the USCIS official Policy Memorandums listing at https://www.uscis.gov/policy-manual .
In support of this new policy President Trump, who was the son of a billionaire real estate mogul and who was never self-sufficient himself, said, “self-sufficiency is a core American value and his been art of immigration law for centuries.” It is unclear what the President is referring to, as the immigration laws have not existed for centuries, but it is true that the public charge rule has existed in the immigration code for decades and President Trump is simply electing to enforce a policy that existed well before Trump was President.
There is a website that has a "Public Charge Risk Calculator," that I discovered while writing this article. I have yet to test this tool and I intend to test it to see if it's worthy of a post itself but you can find that site here: https://www.boundless.com/public-charge-estimator/
Many immigration advocates and immigration attorneys have been speaking out against the enforcement of this policy and the Supreme Court’s decision but their criticisms have no merit and are rather absurd.
I am by no means a Trump supporter. I did not vote for Trump. I am embarrassed that he is my president. I find his entire presidency to be a disgrace. That being said, criticizing President Trump for enforcing a law that was created before he held any elected office makes absolutely no sense and shows ignorant fools will attack Trump for anything he does. Partisan politics have turned public policy into a sporting event where people blindly defend their favorite team rather than considering facts or exercising any sort of independent thought.
Furthermore, criticizing the policy itself is odd. The immigration policies in this country are racially discriminatory by their very nature and are enforced in a way that make no sense. The public charge policy is a policy that seems fairly logical. If a person is in the US, not paying taxes themselves but instead living off the taxpayer dime, collecting benefits they are not legally entitled to, that seems like a valid consideration for the granting of an immigration benefit.
Reading the media coverage swirling around this matter, they make it seem like there is no valid reason to deny an immigration benefit under the public charge policy but there is no justification provided for this claim. It is hard to understand how any reasonable person could claim that a person who has been unlawfully collecting public benefits (paid for by the taxpayers) for a third of the time they have been present in the US should not have to provide any sort of assurance that if they are granted legal permanent resident status in the US they don’t intend on becoming a permanent financial burden on the taxpayers and drain on limited social benefits, or that USCIS should not at least be able to consider the applicant’s past dependence on public benefits when adjudicating an application for legal permanent resident status.
The public charge ground of inadmissibility is not new but it is finally going to be enforced consistently. There will now be an official policy regarding the enforcement of these policies and now immigrants and immigration lawyers will know who to avoid findings of inadmissibility under the public charge grounds.
The Final Rule on Inadmissibility on Public Charge Grounds is published in the Public Register by the State Department and can be found here: https://www.federalregister.gov/documents/2019/10/11/2019-22399/visas-ineligibility-based-on-public-charge-grounds
Speak to an experienced immigration lawyer today to see how this new policy could affect you.
Find out more about how the new Public Charge Policy will affect applicants for legal permanent residence and immigrants who may seek to obtain a greencard in the future. Follow NYImmigrationLawyers.org for news and updates about the implementation of the Public Policy Charge as well as news, updates, and information regarding all matters relating to US Immigration law.