Search results for: public charge

After years of litigation followed by uncertainty, the Department of Homeland Security (DHS) has taken the official action of issuing a new final rule that “restores the historical understanding of a ‘public charge’ that had been in place for decades . . . .” The new rule, which goes into effect on December 23, 2022, basically codifies the Interim Field Guidance that had been in effect from 1999 until 2019.

In 2019, the Trump Administration started to consider supplemental public health benefits and nutritional assistance as part of the public charge determination. That 2019 rule, which was enjoined through litigation, frightened immigrants and their families into foregoing government services to which they were entitled. It also created a good deal of confusion in the immigrant community about what was and was not allowed. By enacting the new final rule and doing public outreach, DHS hopes to meet the goal of making the public charge assessment “consistent with America’s bedrock values” and restoring faith in the system.

Under the “new” rule, the public charge determination will be based on:

  • The age, health, assets, resources, financial status, family status, education, and skills of the noncitizen;
  • The applicant’s prior or current receipt of public cash assistance for income maintenance, such as;
    • Supplemental Security Income (SSI);
    • State, territorial, Tribal, or local cash benefit for income maintenance (often referred to as “General Assistance”); or
    • Cash assistance under Temporary Assistance for Needy Families (TANF) for income maintenance.
  • Long-term institutionalization at government expense; and
  • The Form I-864, Affidavit of Support, if required.

USCIS has clarified that past or current receipt of the above cash benefits does not, alone, render an applicant inadmissible. It is only one factor in the assessment that includes consideration of the totality of the circumstances at the time of the application. Indeed, because the decision on public charge is based on the totality of circumstances, it is possible that an applicant who has never received public benefits in the past could still be found inadmissible. Moreover, the public charge rule does not (and never has) require repayment of public benefits to avoid a finding of inadmissibility.

Public benefits that are not considered under the final rule include, but are not limited to:

  • Medicaid and other health insurance and health service programs;
  • Child Health Insurance Program (CHIP);
  • Nutrition programs;
  • Housing benefits and childcare services;
  • Head Start;
  • Job-training programs;
  • COVID-19 vaccines and public benefits related to the coronavirus pandemic; and
  • Benefits received by family members of the applicant (unless that benefit is the family’s only means of financial support).

Jackson Lewis attorneys are available to assist you with questions about how the public charge rule affects green card applications and general issues of admissibility.

Secretary of the Department of Homeland Security (DHS) Alejandro Mayorkas has announced that the public charge rule, put in place by the Trump administration in 2019, is no longer in effect. Instead, DHS will return to its previous policy, which had been in effect for 20 years, since 1999.

In his announcement, Secretary Mayorkas specifically stated that DHS will no longer consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP, also known as food stamps) benefits as part of the public charge inadmissibility determination.

This signals the end of close to two years of confusion over the Trump public charge rule. That rule, criticized as a “wealth test,” made it harder for low-income immigrants and non-immigrants, who might use even non-cash welfare benefits, to obtain admission to the United States. The rule was subject to litigation in various jurisdictions. There were injunctions and stays of injunctions. One month the rule was in effect in some jurisdictions, the next it was not, and then the next, it was in effect again. Applicants for adjustment of status or nonimmigrants were never quite sure if the rule would apply to their applications. The Trump administration public charge policy went twice to the U.S. Supreme Court, which is where it sat until March 9, 2021, when the Biden administration decided to stop defending the policy and asked the Supreme Court to dismiss the case – which it did.

This followed President Joe Biden’s executive order, in February 2021, directing a complete review of immigration policies, particularly the Trump public charge rule, in an effort to restore faith in the legal immigration system and reduce barriers to immigration. Once the review is completed, more changes may be forthcoming.

Jackson Lewis attorneys are available to assist you with any questions regarding the status of the public charge rule.

On December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions blocking USCIS from enforcing the “new” Public Charge Rule in 18 states and the District of Columbia.

The Court found the rule was inconsistent with any reasonable interpretation of the statute which requires long-term dependence on government support, not temporary resort to supplemental non-cash benefits. It opined that:

Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence.

The Court also found the new rule was “arbitrary and capricious” because the Administration failed to adequately consider:

  • The financial effects of the new rule not only on legal immigrants, but also on the states to which they would turn after withdrawing from federal programs to protect their immigration statuses;
  • The effects on public safety, health, nutrition, hospital resources, and vaccination rates especially in this time of COVID-19; and
  • The abrupt change from the original 1999 guidance that focuses on long-term dependence.

The new Public Charge Rule has been controversial since it was first proposed by the Trump Administration. Characterized as a “wealth test” by immigration advocates, the rule has been the subject of litigation in various jurisdictions. There have been injunctions and stays of injunctions. This has led to a situation where one month, the rule was effect in some jurisdictions, but the next, it was not, and then a little later, it was in effect again. This endless back and forth has meant that applicants for Adjustment of Status and nonimmigrant visas are never quite sure whether the new Public Charge Rule will apply to their applications or not. This uncertainty has been particularly impactful in a year when immigrant visas became available for certain heavily backlogged categories and a significant number of applicants have been able to file Adjustment of Status applications beginning in October. As of November 4, 2020, USCIS was applying the new Public Charge Rule to all petitions postmarked or submitted electronically on or after February 24, 2020. But, USCIS has not yet reacted to the Ninth Circuit’s ruling.

The 18 plaintiff states (plus the District of Columbia) that are affected by the Ninth Circuit’s ruling are: California, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Washington and Virginia.

We await the Administration’s review and reaction to the ruling and will provide updates as they become available.

The U.S. Seventh Circuit Court of Appeals issued an administrative stay a day after a federal district court held the Public Charge Rule violated the Administration Procedures Act (APA)  and issued summary judgment in favor of the plaintiffs. 

During October 2020, thousands of Adjustment of Status (AOS) applications were filed by individuals and law firms around the country following the U.S. Citizenship and Immigration Service’s (USCIS) September announcement that for the month of October it would use the Department of State’s Dates for Filing Chart instead of the usual Final Action Dates Chart. This allowed individuals who previously could not file AOS applications because their priority dates were not current to file. Most of the filings had to include a new form, the USCIS’s Form 944, Declaration of Self-Sufficiency Form 944 was introduced as part of the Administration’s new Public Charge Rule and requires applicants to demonstrate they are not inadmissible on the public charge ground. Form 944 and the Public Charge Rule had been subject to an injunction, but the U.S. Supreme Court stayed that injunction in January 2020.

Form 944 is 18 pages long and includes questions about household income, assets, resources and financial status. Each family member must list their assets and resources, liabilities and debts, credit score and report, information about health insurance, any use of public benefits, and all education and skills. Each data point must be fully documented with attachments. Some of these filings included more than 150 pages of documentation per individual applicant.

In Cook County, Judge Gary Feinerman held that the Public Charge Rule violated the APA because the Rule exceeded DHS authority, is not in accordance with law, and is arbitrary and capricious. Accordingly, the court vacated the rule nationwide. Drawing support for the nationwide vacatur from precedent, the judge wrote: “What would it mean to ‘vacate’ a rule as to some but not other members of the public? What would appear in the Code of Federal Regulations?” Judge Feinerman refused to stay his decision pending appeal.

DHS has yet to issue guidance regarding these rulings, but it appears that the Form 944 must once again be used — at least for now.

Jackson Lewis attorneys will monitor the situation and provide updates as they become available.

The Department of Homeland Security (DHS) may resume implementation of the new Public Charge Rule, the U.S. Court of Appeals for the Second Circuit has ruled.

The factors that are considered under the new Public Charge Rule include the applicant’s use of public benefits, employment status and history of employment in the U.S., among others.

Since 2018, the Administration has been trying to enforce a new Public Charge Rule that expands the public benefits that would render an alien a “public charge,” thereby limiting the ability of certain immigrants and non-immigrants to obtain visas. When the 447-page Public Charge Rule was published, it immediately became controversial as a “wealth test.” Cities, states, and advocacy groups also opposed the new rule because it would result in immigrants forgoing benefits such as basic health benefits for themselves and even for their U.S. citizen children due to fear of potential adverse immigration consequences.

States and advocacy groups filed suits and injunctions preventing the U.S. Citizenship and Immigration Service (USCIS) from proceeding with implementation were issued. The U.S. Supreme Court lifted one injunction in January 2020 and the new rule was set to become effective on February 24, 2020. However, due to the national emergency caused by the COVID-19 pandemic, a new injunction was issued by the U.S. District Court for the Southern District of New York on July 29, 2020. That injunction was completely overturned by the Second Circuit on September 11, 2020.

USCIS announced on September 22, 2020, that it would apply the new rule to all relevant applications or petitions postmarked or submitted electronically on or after February 24, 2020, including pending applications and petitions. It would do the following:

  • Applicants who filed Form I-485 Applications to Register Permanent Residence or Adjust Status after February 24, 2020 (but before the announcement) may receive Requests for Evidence requiring them to submit a Form I-944, Declaration of Self-Sufficiency, in accordance with the new rule.
  • Any applicants who submit Forms I-485 between September 22 and October 13, 2020, that do not include the evidence and forms required under the new rule will be asked to submit the missing forms and evidence.
  • After October 13, 2020, Forms I-485 that do not include the evidence and forms required under the new rule will be rejected.
  • The Form I-944 (which had been temporarily removed from the USCIS website) has been republished.
  • USCIS also announced that it would ask for any missing evidence for the following forms:
    • I-129, Petition for Nonimmigrant Workers;
    • I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Workers;
    • I-539, Application to Extend/Change Nonimmigrant Status; and
    • I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

USCIS announced it will not re-adjudicate any applications or petitions that were already approved following the July 29, 2020, injunction.

The Department of State (DOS) issued its last guidance regarding the application of the new rule in August 2020. At that time, DOS stated that the Form DS-5540, Public Charge Questionnaire, was not required due to the then-current injunction. DOS likely will provide an update.

Please reach out to your Jackson Lewis attorney with any questions about the new Public Charge Rule. We will continue to provide updates as they become available.

 

 

On August 12, 2020, the U.S. Court of Appeals for the Second Circuit limited the nationwide injunction on the Department of Homeland Security’s Public Charge Rule to three states: Connecticut, New York, and Vermont.

Since August 14, 2019, exactly one year ago today, when DHS published the final version of the new Public Charge Rule in the Federal Register, there have been multiple court challenges and the Rule has been widely criticized. With the new Rule, the Trump Administration is imposing additional requirements and background screening for foreign nationals who hope to obtain green cards or secure temporary non-immigrant status.

Due to the litigation, it is still not clear how the agencies will enforce this rule. The following recaps the twists and turns of the litigation:

  • The Rule was supposed to go into effect on October 15, 2019, but just before that could happen, several courts issued injunctions.
  • By February 21, 2020, the U.S. Supreme Court had lifted the last remaining injunction and the Rule went into effect on February 24, 2020.
  • The COVID-19 pandemic crisis began and, on July 29, 2020, the Rule was once again enjoined nationwide by a federal district court in New York because it impeded efforts to combat the disease – immigrants, many of whom are essential workers, were afraid to seek testing and this was detrimental to efforts to combat the disease.
  • USCIS issued guidance that, while the injunction was in effect, petitions and applications would be accepted without public charge information.
  • On August 12, 2020, in response to a request from the Administration, the Second Circuit limited the nationwide injunction to Connecticut, New York, and Vermont.

A USCIS spokesperson reported that the agency is reviewing the Court’s Order and “will determine the administrative viability of reimplementing the Inadmissibility on Public Charge Grounds Final Rule where applicable.”

If you have questions about the applicability to the Public Charge Rule, especially if you live or work outside of Connecticut, New York, or Vermont, Jackson Lewis attorneys are available to assist you.

On July 29, 2020, U.S. District Court Judge George B. Daniels of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.

The Rule makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was meant to go into effect on October 15, 2019. Before that could happen, in an earlier decision, Judge Daniels enjoined it. Ultimately, the U.S. Supreme Court lifted the injunction, but left open the possibility of further filings in the lower courts.

New York, Connecticut, and Vermont took up that challenge and sought a new injunction based on “new harms” that had become apparent due to the COVID-19 pandemic. Despite the Supreme Court ruling, Judge Daniels agreed he could review the case again. He wrote in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts . . . to stem the disease.” He also noted that many immigrants who were affected by the Rule continued to work during COVID-19 to provide healthcare, food, and sanitization across the country and were essential to COVID-19 recovery.

Although the Administration had issued an alert earlier this year indicating that immigrants would not be penalized under the Public Charge Rule for seeking COVID-19 treatment, the Judge agreed that the alert did not go far enough and simply added to the “confusion and chaos” that was leading immigrants to forego care. He stated, “What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario, we are experiencing its dramatic effects in very real time.”

In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad. He stated that the plaintiffs were likely to succeed on their claims that the Rule as applied by the DOS violated the Administrative Procedures Act, because no reasonable justification for the Rule had been offered and because proper notice and comment procedures were not followed. The Judge also found the Rule was likely contrary to the Immigration and Nationality Act (INA).

The Administration probably will appeal these decisions. If you have questions regarding the applicability of the new injunctions, Jackson Lewis attorneys are ready to assist.

 

On the same day the Public Charge Rule went into effect (February 24, 2020), immigrant advocates held a teach-in at Boston City Hall to try to lessen the uncertainty and fear that has been spreading through immigrant communities.

The Administration has stated that the Public Charge “[R]ule will protect hardworking American taxpayers, safeguard welfare programs for truly needy Americans, reduce the federal deficit, and re-establish the fundamental legal principle that newcomers to our society should be financially self-sufficient and not dependent on the largess of United States taxpayers.” However, immigration advocates view the rule as “penalizing poverty” and taking the chance to become self-sufficient away from immigrants, a group of individuals who historically has been an important part of our country and our economy.

Previously, this rule primarily affected those who accepted cash welfare benefits. However, the new rule makes admission to the U.S. more difficult for low-income immigrants and non-immigrants who use other, non-cash welfare benefits. The Department of Homeland Security (DHS) has said that the public charge rule is meant to determine whether a person is likely to use of certain government benefits in the future. To make that determination, officers will review the totality of the circumstances, including an applicant’s income, age, health, family status, assets, credit scores, liabilities, education, and skills (including English language), visa classification sought, and receipt of public benefits. Some factors serve as “negative” factors, others as “positive” factors.

Receipt of certain public benefits for more than 12 months within any 36-month period (following February 24, 2020) definitely is a negative factor (unless the individual was in the military at the time of receipt or is a U.S. citizen child of an applicant). These public benefits include:

  • Supplementary Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state, or local cash benefit programs for income maintenance
  • Supplemental Nutrition Assistance Program (SNAP, a.k.a., “food stamps”)
  • Housing Choice Voucher Program (Section 8)
  • Project-Based Rental Assistance
  • Medicaid (with certain exceptions, including for emergency medical conditions, for aliens under 21, or women during pregnancy)
  • Subsidized Public Housing (Section 9)

Other heavily weighted negative factors include:

  • Applicant is not a full-time student and, despite work authorization, has no current employment, recent employment history, or reasonable prospect of employment;
  • Applicant has a diagnosed medical condition that likely will require extensive medical treatment or institutionalization and has no financial resources to pay for this; or
  • Applicant previously was found inadmissible on public charge grounds.

Heavily weighted positive factors include:

  • Household income, assets, resources, or support from a sponsor of at least 250 percent of the Federal Poverty Guidelines ($65,500 for a family of four);
  • History of employment in the U.S. with an annual income of at least 250 percent of the Federal Poverty Guidelines; or
  • Applicant has private health insurance for use in the U.S. that will cover the period the applicant is expected to remain in the U.S.

If subject to the public charge test, applicants for adjustment of status or others applying for immigrant or nonimmigrant visas may need to provide a significant amount of financial data on either Form I-944, Declaration of Self Sufficiency, or Form DS-5540, Public Charge Questionnaire.

These groups of individuals will not be subject to the public charge test:

Jackson Lewis attorneys are prepared to assist in navigating the new rule, determining whether these forms must be completed, and how best to present your case.

USCIS has announced the new Public Charge Rule will become effective on February 24, 2020, now that the U.S. Supreme Court has lifted the injunction.

This Rule affects legal immigrants (those who are legally in the United States and those who are seeking admission to the United States) and illegal immigrants (who have never been eligible for the benefits covered by the Rule).

The Rule will be felt primarily by lower-income legal immigrants, but it also will affect those with higher incomes who are elderly or who, due to illness, pregnancy, and other temporary disabilities, may have taken advantage of benefits, such as prescription drug subsidies, Supplemental Nutrition Assistance Program (SNAP), or housing assistance.

According to USCIS:

  • The Rule will apply to all applications and petitions postmarked on or after February 24, 2020. For applications and petitions sent by commercial courier, the postmark date is the date on the courier receipt.
  • USCIS will start to issue new forms that include public charge queries during the week of February 3, 2020.
  • “Old” forms submitted after February 24, 2020, will not be accepted and applicants and petitioners will be told to submit the “new” forms.
  • The Rule will not apply to benefits received prior to February 24, 2020.
  • The Rule does not apply in Illinois (at this point) where an injunction is still in place.

USCIS plans to issue guidance on the implementation of the Rule starting the week of February 3, 2020. The new forms that will need to be used have been released.

According to the Migration Policy Institute:

Taken as a whole, the public-charge rule stands to slow the integration of immigrant families, overturn state choices regarding the services they have opted to provide to their residents, and to alter the composition of future immigration to the United States—all without the benefit of endorsement or direction from Congress.

Jackson Lewis attorneys will provide updates on implementation as they become available.

The Trump Administration’s new Public Charge Rule can go into effect (for now, at least).

The U.S. Supreme Court, in a 5-4 ruling, has lifted the injunction that prevented DHS from enforcing its new Public Charge Rule despite New York’s argument that doing so would “inject confusion and uncertainty” into the process.

The Public Charge Rule is meant to limit the admission or immigration of individuals who are not basically self-sufficient. In the past, the Rule primarily affected individuals who accepted cash welfare benefits. The new Rule will make it harder for low-income immigrants and non-immigrants who might use even non-cash welfare benefits to obtain admission to the United States.

The new Rule, more than 400 pages long and complex, applies to:

  • Those applying for immigrant or nonimmigrant status abroad
  • Those seeking admission as an immigrant or nonimmigrant
  • Those applying for Adjustment of Status
  • Nonimmigrants seeking a change of status or extension of status

The benefits that may be subject to a Public Charge determination include:

  • Cash assistance for income maintenance
  • Most Medicaid participation
  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)
  • SNAP (Supplemental Nutrition Assistance Program), i.e., food stamps
  • Long-term care at government expense
  • Section 8 Housing Choice Vouchers
  • Section 8 Project Based Rental Assistance
  • Public Housing

Critics have argued that low-income immigrants will be intimidated into not accepting benefits that are not covered by the new Rule out of fear and that this will end up having a substantial financial impact on some states. Indeed the “chilling effect” of the Rule and the Rule itself could be particularly harsh on pregnant women and young children, including infants and pre-schoolers, who may forego health benefits and nutritional assistance in order retain all of their immigration options.

The Court’s Order, like the injunction, applies nationwide. The case below, State of New York et al. v. U.S. Department of Homeland Security, et al., will continue to be litigated in the Second Circuit. The litigation likely will result in a petition for writ of certiorari. Accordingly, the Court probably will hear the case again. In a separate, companion case in the U.S. District Court for the Southern District of New York, Make the Road New York et al. v. Ken Cuccinelli, the District Judge enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice. Those forms, which themselves are more complex, may go into effect.

Justice Neil Gorsuch, joined by Justice Clarence Thomas, filed a concurring opinion with the Court’s brief Order. Judge Gorsuch expressed his general dislike for nationwide injunctions. These nationwide injunctions have frustrated the Trump Administration, and Attorney General William Barr expressed his desire to see them curtailed.

Jackson Lewis attorneys are available to assist you with your questions about the effects of the new Public Charge Rule.