Having focused on enforcement and illegal immigration, the Trump Administration has recently turned to legal immigration.  The new Public Charge rule which will go into effect on October 15, 2019, absent court action, will make it harder for some foreign nationals to obtain green cards or even to secure or extend temporary non-immigrant status.  What has been something that primarily affected family-based immigration may now affect some employers and their employees as well.  Any workers with a family of four and an income of less than $64,000 (or 250% of the federal poverty guidelines) could be subject to the Public Charge Rule.

The Public Charge rule was always meant to limit the admission or immigration of individuals who were not basically self-sufficient.  Until recently, the rule was interpreted to cover individuals who accepted cash welfare benefits.  But now the rule will also include those who use (or might use) food stamps, government-subsidized housing vouchers and subsidized medical insurance — if they use any of the covered benefits for 12 aggregate months or more during any 3-year period.  While any determination by USCIS or the Department of State at Consulates and Embassies abroad will still be based upon a consideration of the “totality of the circumstances,” the Public Charge rule likely will be more central to the discretionary decision-making process.   The rule will not apply in all circumstances.  There are exceptions.  For instance, the rule will not be applied to U.S. citizens  or penalize receipt of benefits by U.S. citizens — even if the U.S. citizen is related to the applicant for immigration benefits.  And, among other exceptions, the rule will not apply to refugees or pregnant women for up to 60 days after giving birth.

The new public charge rule has been widely criticized.  Lawsuits challenging the rule are expected.  Seventeen state attorneys general have argued that DHS “failed to estimate the true costs” of the regulation.  DHS itself stated in its discussion regarding the new rule that “[w]hile some commenters provided support for the rule, the vast majority of commenters opposed the rule.”  There is reportedly fear among immigrants about the impact of the rule. Since the mention of changes in the Public Charge rule, immigrants have been afraid to apply for benefits they need – even benefits for their U.S. citizen children.

With the attempt to add a citizenship question to the census, the ICE raid on poultry processing plants in Mississippi,  and now the announcement of the new Public Charge rule, the Trump Administration has in a short time made headway on one of President Donald Trump’s key campaign issues — protecting U.S. workers by limiting and chilling certain types of immigration to the United States.  Among the Administration’s priorities is limiting or eliminating “immigration magnets” such as government assistance and the related possibility of employment.

The new rule is over 800 pages long and complex.  If you have questions about how this could affect your workforce, your Jackson Lewis attorney is available to assist.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.