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.