Search results for: public charge

Despite litigation that enjoined USCIS from proceeding with the implementation of the Public Charge Rule, Department of State (DOS) seemed ready to proceed with it at Consulates abroad.

But, as of this week, DOS is no longer “fast-tracking” the Public Charge Rule. It withdrew its request for emergency review of its new public charge form, DS-5540, that it proposes to use to determine if applicants are “self-sufficient and not a strain on public resources” and, on October 24, 2019, began a 60-day comment period.

Once the comment period is over, Office of Management and Budget (OMB) review will take place. How long that review will run is hard to know. If the experience with the OMB review of another controversial Trump Administration rule – the rescission of the H-4 EAD Rule – provides any indication, the review could go on for months.

Jackson Lewis will continue to provide updates as they become available.

U.S. District Court Judge George S. Daniels of the Southern District of New York enjoined the Trump Administration’s new Public Charge Rule scheduled to go into effect on October 15, 2019. The new Rule has been the subject of much controversy and would have made it more difficult for foreign nationals to obtain green cards or even secure or extend temporary non-immigrant visa status.

In State of New York et al. v. U.S. Department of Homeland Security, 1:19-cv-07777-GBD, the Judge Daniels held that:

  • Plaintiffs, including the State of New York, the City of New York, the State of Connecticut, and the State of Vermont, satisfied all standing requirements;
  • The new Rule violated the Administrative Procedure Act (APA) because it exceeded delegated authority under the Immigration and Nationality Act (INA) and was arbitrary and capricious; and
  • The new Rule violated the Rehabilitation Act because it denies access to benefits to individuals with disabilities.

In a companion case, Make the Road New York et al. v. Ken Cuccinelli, 1:19-cv-07993-GBD, Judge Daniels also enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice.

It has been reported that the Department of State will proceed with its own version of the Public charge Rule scheduled to take effect October 15, 2019, meaning that Judge Daniels’ nationwide injunctions are limited to DHS’s new Rule.

Jackson Lewis will provide updates as they become available.

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.

The 60-day comment period for the Administration’s new “public charge” rule just closed. There is currently no definition for “public charge” in the rule, but a public charge is understood to be an alien who depends on the government for subsistence, as demonstrated by the receipt of cash assistance for income maintenance or institutionalization for long-term care at the government’s expense. An example of public benefit having this effect is receiving Medicaid while at a nursing home.

The proposed rule actually aims to define public charge and to expand the public benefits that would render an alien a public charge. But even before public comments have been reviewed, the effects of the changes are apparent and controversial. The City of Baltimore is the first to file a lawsuit contesting the new delineation.  Baltimore is not challenging the proposed rule itself, since it has not yet been finalized. It is instead challenging changes that already have been made in the State Department’s Foreign Affairs Manual (“FAM”). These are the instructions that Consular officials use at Consulates and Embassies abroad when granting non-immigrant visas and immigrant visas, the latter of which is also known as “green cards.” Baltimore has requested the FAM changes be rescinded as being “arbitrary and capricious, procedurally infirm, and unconstitutional.”

Immigrant rights advocates have noted that under the revised FAM instructions, which go so far as to assess a sponsor’s use of public benefits, it may be more difficult for potential immigrants to overcome a public charge determination. Baltimore alleges that “the change in the State Department’s manual, along with [President Donald] Trump’s rhetoric, has already affected the city’s immigrant community” and that immigrants have been “chilled” from applying for benefits. The City notes particularly that in “the past few months, enrollment in Head Start early education programs by African immigrants has ‘virtually ceased.’” Indeed, a study presented at the American Public Health Association’s 2018 Annual Meeting and Expo showed that since Trump’s initial announcement on changes in the public charge determination, participation in the federal Supplemental Nutrition Assistance Program (SNAP, formerly known as “food stamps”) has declined by about 10% among immigrants who have been in the U.S. for less than five years.

California community clinics and agencies serving children reportedly are noticing that since the new rule was announced, immigrant parents are taking their children out of health and nutrition programs or not enrolling them at all out of fear that participation could affect their immigration status. In addition, physicians in Illinois have reported that immigrant parents are afraid to enroll in government-sponsored health insurance programs for their children for fear of jeopardizing their own status. The proposed new rule states that the use of benefits by U.S. citizen children of immigrants should not be held against the parents. But immigrant parents are afraid and confused about how that would play out. Immigrant advocates believe the new rule will end up costing the U.S. taxpayer more because the refusal of treatment and services ultimately means preventable problems will turn into larger health problems that will require more costly treatments.

New York Governor Andrew Cuomo has threatened to sue the Trump Administration if the new public charge rule is finalized primarily on account of the negative impact on health care. Other cities and states may join Baltimore in its current litigation. Meanwhile, 100 business executives have submitted a public comment highlighting the wide-ranging effect on the growth of their businesses. Dave Gilboa, CEO of Warby Parker, told the Wall Street Journal that “[i]mposing these excessive and nonsensical boundaries on individuals seeking temporary visas and green cards would drastically narrow the opportunity for brilliant talent to come to the U.S.”

Jackson Lewis will continue to follow and provide updates on the effects of the new FAM instructions, the Baltimore case, and the progress of the proposed rule.

The DHS is getting closer to changing and hardening the standard for determining who is or might become a “public charge” for immigration purposes. The agency “pre-released” a new rule, “Inadmissibility on Public Charge Grounds,” that it plans to officially publish in the Federal Register soon in order to start the 60-day Notice and Comment Period.

Who Will Be Covered by the New Standard?

  • 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

Who Will Not Be Covered by the New Standard?

  • Most LPRs (Green Card Holders), even when applying to naturalize
  • Generally, refugees, asylees, those on active military duty, and children adopted by U.S.

What is the New Standard of Review?

  • Decisions will be made based upon the totality of circumstances
  • There are thresholds regarding the length and value of the benefits received
  • Officers may consider prior use of benefits, as well as likelihood of future use of benefits
  • Officers will look to the applicant’s age, health, family status, assets, resources, education and skills, and employment history

What Benefits May Subject an Individual to a Public Charge Determination?

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

What are Some Benefits that Would Not be Considered?

  • Emergency Medical Assistance
  • Disaster Relief
  • National School Lunch Program
  • Head Start Program
  • Receipt of benefits by dependents alone

The 447-page rule is a complex web of regulations. Critics believe that many low-income immigrants will forego programs they or their children may be entitled to out of fear that accepting those benefits will bar them from eventually becoming green card holders – even if those benefits are not covered by the new rule. Others, such as New York State legislators and Governor Jay Inslee of Washington, have argued that the new rule will have a substantial financial impact on some states and that “the proposal disrupts settled law by making unprecedented changes to longstanding immigration policies. . . .” Still others are considering challenging the new rule in court on various grounds, including under the Administrative Procedure Act and under the equal protection clause of the Constitution. These are avenues that have been pursued with regard to the travel ban, TPS, and DACA.

Undocumented individuals are not eligible for most public benefits. Therefore, the rule will affect only those immigrants who are legally in the U.S. or who wish to come to the U.S. legally.

Because of the complex nature of the new rule, the above is meant only to provide general guidance. If you have questions about the effects of the rule, please reach out to counsel. Jackson Lewis will provide additional updates on the new rule.

 

The Trump Administration reportedly is considering a new rule that would make it easier for the government to deny visas to individuals on “public charge” grounds. This has drawn the criticism of many New York legislators.

The Administration may have been contemplating the move for a while. In January 2017, when the first travel ban was implemented, the Administration reportedly had been working on a draft executive order meant to fulfill some of President Donald Trump’s campaign promises based on the assumption that “households headed by aliens (legal and illegal) are much more likely than households headed by native-born citizens to use federal means-tested public benefits.” That executive order was never signed and never formally released.

More than 70 New York State legislators, headed by Assemblyman Andrew D. Hevesi, sent a letter to Trump on June 8, 2018, opposing the proposed rule because they would “fundamentally and negatively alter who we are as a nation, directly threaten the health and well-being of millions of New Yorkers, and impose a significant economic burden on [New York].”

Under current regulations, the government may deny individuals seeking visas or permanent resident status if they likely will become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” That cash assistance includes Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and state or local cash assistance programs known as “general assistance.” However, according to the USCIS Fact Sheet, simple receipt of those benefits does not necessarily lead to a public charge determination. “Each determination is made on a case-by-case basis in the context of the totality of the circumstances.” USCIS would not consider many government programs, including Medicaid, Children’s Health Insurance Program (CHIP), housing benefits, and unemployment compensation, among many others, in making public charge determinations.

Reportedly, under the proposed changes, programs not previously considered in making a public charge determination will be considered, including:

  • Certain health care subsidies
  • Some educational benefits, including Head Start
  • Affordable Care Act subsidies
  • Food Stamps, now known as Supplemental Nutrition Assistance Program (SNAP)
  • Women, Infants and Children assistance (WIC)
  • CHIP
  • Certain housing benefits
  • Transit vouchers

The New York legislators noted that immigrants, including those with U.S. citizen children, might stop enrolling in healthcare programs to preserve their ability to obtain immigration benefits. “It is not difficult to imagine the dire outcome for New York of hundreds of thousands of children disenrolling from health insurance benefits,” they observed.

The proposal has not yet been approved by Secretary of Homeland Security, Kirstjen Nielsen. The New York legislators have urged the Administration “to reject outright this ill-advised change in policy and recognize that this nation is not strong in spite of immigration; it is strong because of immigration.” States with large immigrant populations (such as New York and California) would be particularly affected by any change.

A Migration Policy Institute study found that almost half of noncitizens legally in the U.S. could be affected by the proposed rule – only three percent are affected by the current rule. Moreover, studies have shown that native-born Americans use public benefits at roughly the same rate as the foreign-born population.

Jackson Lewis will provide updates if a formal proposal is announced.

On Sept. 18, 2026, USCIS will publish a revised edition of Form I-485, Application to Register Permanent Residence or Adjust Status, the form used to apply for a green card through adjustment of status. The revised form aligns with the recently announced Public Charge Ground of Inadmissibility Final Rule and will immediately replace the current 01/20/25 edition without any grace period for the transition.

Employers and sponsors with pending or upcoming I-485 filings should review the changes below carefully.

What’s Changing?

The Public Charge Final Rule updates how USCIS determines whether an applicant is likely to become primarily dependent on the government for subsistence, a ground of inadmissibility that can result in denial of a green card. The revised Form I-485 (edition date: 09/18/26) incorporates new questions and documentation requirements to reflect these changes.

For a detailed overview of the rule, visit the USCIS Public Charge page.

Key Filing Deadlines and Requirements

Here is what you need to know:

  • Before Sept. 18, 2026: USCIS will only accept the current edition of Form I-485 (edition date: 01/20/25).
  • On or after Sept. 18, 2026: USCIS will only accept the new 09/18/26 edition. The old 01/20/25 edition will be rejected if it is postmarked or electronically submitted on or after Sept. 18, 2026.

In other words, there is a hard cutoff and applications filed with the wrong edition on or after Sept. 18 will not be accepted, regardless of when they were prepared.

Where Can I Find the New Form?

USCIS is providing a preview of the revised Form I-485 and its instructions ahead of the Sept. 18 effective date. The preview is available in the Special Instructions section of the Form I-485 webpage on the USCIS website.

What Should You Do Now?

  • Filing before Sept. 18, 2026? Ensure the application uses the current 01/20/25 edition and is postmarked or submitted before Sept. 18.
  • Filing on or after Sept. 18, 2026? Review the preview version of the new form now so your team is prepared to use the 09/18/26 edition when it takes effect.
  • Coordinate with counsel. The changes related to the Public Charge Rule may affect the supporting documentation required for your employees’ filings. Our team can help you understand how these changes apply and ensure each application is complete and filed with the correct edition.

Questions? We’re here to help.

Jackson Lewis attorneys are monitoring implementation of the revised Form I-485 and Public Charge Final Rule. If you have questions about the revised Form I-485, the Public Charge Final Rule, or any pending or upcoming adjustment of status filings, please don’t hesitate to reach out to our team. We are here to help you navigate these changes and keep your immigration matters on track.

USCIS issued a grace period on March 8, 2025, for the dozen updated immigration forms it released in February and March 2025 and made effective immediately. These forms include the N-400 for naturalization, I-485 for adjustment of status, and I-131 for travel documents. Applicants may use the previous editions until the specified grace period ends.

USCIS had released the new, “01/20/2025” editions of the forms without notice and made them effective immediately. Consequently, the previous edition(s) of the impacted forms that were received by USCIS after the release dates faced the risk of rejection. Following significant criticism and a lawsuit filed by the American Immigration Lawyers Association challenging the publication of new forms without proper notice or grace period, USCIS announced it would continue to accept the prior versions of the updated forms for a specified period. USCIS provided at least a one-month grace period for all the updated forms issued.  

USCIS will accept only the 01/20/2025 editions of the following forms starting:

1) March 24, 2025:

  • Form I-356, Request for Cancellation of Public Charge Bond
  • Form I-914, Application for T Nonimmigrant Status
  • Form I-941, Application for Entrepreneur Parole

2) April 3, 2025:

  • Form I-485 Supplement J, Confirmation of Valid Job Offer or Request for Job Portability Under INA Section 204(j)
  • Supplement A to Form I-485, Adjustment of Status Under Section 245(i)
  • Form I-485, Application to Register Permanent Residence or Adjust Status
  • Form G-325A, Biographic Information (for Deferred Action)
  • Form I-192, Application for Advance Permission to Enter as a Nonimmigrant
  • Form I-134, Declaration of Financial Support

3) April 4, 2025:

  • Form N-400, Application for Naturalization
  • Form I-131, Application for Travel Documents, Parole Documents, and Arrival/Departure Records

4) May 5, 2025:

  • Form I-918, Petition for U Nonimmigrant Status

Applicants should check the USCIS Forms and Forms Updates pages to ensure they are using the correct edition of an immigration form to avoid delays or rejections.

Please reach out to a Jackson Lewis attorney if you have any questions.

The Trump-era proclamation that would have kept immigrants who could not provide evidence of health insurance within 30 days of coming to the United States has been revoked by President Joe Biden. The move is in accordance with his prior executive order directed at “restoring faith” in the immigration system and to emphasize his administration’s commitment to expanding access to healthcare.

The proclamation was meant to go into effect on November 3, 2019, but was blocked by an injunction issued by the U.S. District Court in Portland, Oregon in Doe v. Trump. Thus, the policy was never implemented but was not rescinded until now. Advocates argued that the policy would have affected approximately two-thirds of intending immigrants.

In issuing the healthcare proclamation, the Trump administration reasoned that new immigrants without health insurance would create a financial burden on the U.S. healthcare system. However, a Tufts University School of Medicine study found that most immigrants arriving in the United States are healthier than most U.S. citizens and do not access as much healthcare as native-born Americans. The study also showed that immigrants who do eventually obtain health insurance, in effect, subsidize healthcare costs for U.S. citizens because they pay premiums but do not draw as much out of the system.

President Biden’s new proclamation is just one in a series of proclamations undoing Trump-era policies, intending to restore faith in and fairness of the U.S. immigration system. Others include the elimination of the public charge rule and the elimination of a rule that prevented undocumented college students from receiving federal pandemic relief for food and housing.

Jackson Lewis attorneys are available to provide information and assistance regarding all the new Biden Administration proclamations affecting immigration.

On the same day his nominee for Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, was confirmed, President Joe Biden signed several Executive Orders regarding immigration, including one that directs complete review of policies.

The first, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” is of particular interest to the business community.  It sets up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment based. This will include a review of the public charge rule, fee increases, and streamlining of the naturalization process, among others. Recognizing the difficulties created over the past four years by the many unpublicized rule, policy, and guidance changes, this Executive Order directs a comprehensive agency review of all immigration-related regulations, orders, guidance documents, policies, and other similar agency actions that impede access to fair and efficient adjudications. It likely will include a review of the policies that led to a 21% denial rate and a 47% Request for Evidence (RFE) rate for H-1B petitions in FY 2020.

The second looks to roll back damaging asylum policies and develop an effective strategy to manage asylum cases across the region.

The third creates a task force to reunify families that were separated at the border.

These latest Executive Orders build on changes already made since January 20, 2021, including:

These Executive Orders and policy announcements are consistent with the administration’s stated goal of creating an immigration system that is more welcoming to immigrants and to the employers who rely on them. President Biden recognizes that “new Americans fuel our economy, as innovators and job creators, working in every American industry and contributing to our arts, culture, and government.”

Jackson Lewis attorneys will provide updates as they become available. Our attorneys are ready to assist with questions regarding changes and strategies.