A number of US courts have blocked the Trump Administration from using new, tougher rules on US immigration applications from low-income immigrants.
The Public Charge Final Rule is currently being litigated and some courts have issued an injunction, preventing the new rules from being applied until the legal challenges are resolved.
On August 14, 2019, the Trump Administration published a final rule that changes the definition of “public charge” and adds specific details about how immigration officials will take into account the applicant’s income, health, age, education and family status.
In response to the rule, multiple organizations and immigrant advocates, including states, counties and non-profit organizations, were successful in seeking injunctions to block the new rules, albeit temporarily.
Expanding the remit for public charge grounds
The policy guidance relating to immigrants, which has been effective since 1999, defines a public charge as an individual who is “likely to become primarily dependent on the government for subsistence.”
Under these existing rules, the Government can lawfully deny an immigration application if the applicant is deemed likely at any time to become a public charge.
The public charge test has been used for more than a century by US authorities to determine whether an individual applying for admission to the US or for lawful permanent resident (LPR) status has or will become financially dependent on the Government.
Since 2018, US consular officers have considered an increasingly broad range of benefits when assessing applications against the public charge requirement, and whether an applicant has been or might in the future become dependent on government benefits.
At this stage, the long-term implications of the rule remain unclear. However, the rule has already resulted in greater scrutiny of income and assets for marriage-based immigrant visa applicants, and the number of applications refused on the public charge grounds has risen during Trump’s presidency, in line with an overall increase in visa denials and measures to restrict family-based immigration to the US.
The process for determining public charge grounds depends on whether the immigrant’s application is being processed inside or outside the US.
Decisions about applications for admission or LPR status handled outside the US at embassies or consular offices abroad are guided by the Department of State (DOS) and are different from decisions on applications for LPR status processed inside the US, which are guided by regulations and policy from the US Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS).
While the courts have blocked the Department of Homeland Security’s (DHS) Final Rule, in October 2019 the DOS issued an interim final rule aligning DOS’s public charge standards with those of DHS.
The DOS confirmed it will not implement the interim final rule until the use of a new form for information collection and the Foreign Affairs Manual (FAM) revisions are approved by OMB following a public questionnaire.
As the legal challenge continues, the current policy remains effective, with the only benefits considered in determining whether a person is likely to become a “public charge” are:
- Cash assistance for income maintenance, which includes state and local cash assistance programs as well as federal programs such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF).
- Government funded long-term care (nursing home or other institutionalized care).
Applications processed outside the US
This affects non–US nationals applying through consular processing before entering the US, such as tourist or employment-based visas, lawful permanent resident applicants and those required to leave the US to apply for status.
On October 11, 2019, the Department of State (DOS) issued an interim final rule that aligns its definition of public charge to that of the DHS final rule. In doing so, it defined a public charge as an immigrant “who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months’ worth of benefits)”.
Under the updated rules, receipt of benefits by a family member will not be considered. Additionally, benefits used in another country will not be considered. Benefits (other than cash assistance or long-term care) used before October 15, 2019, will not be considered. Receipt of named benefits will continue to be just one factor in the broader totality of circumstances test which considers an applicant’s age, health, family status, income and resources, education and skills.
The State Department is seeking approval of a new form before changing the process. Once effective, the interim rule will supersede the Foreign Affairs Manual (FAM) manual changes from January 2018.
Five federal courts have issued preliminary injunctions that temporarily block implementation of the rule, including nationwide injunctions from federal judges in New York, Washington and Maryland.
As a result of these cases, the DHS public charge rules are currently prevented from going into effect anywhere in the US.
It is likely that the Government will seek to appeal the judges’ decisions. But for now, the rule is on hold, and the longstanding public charge policy will remain in place for as long as any one of the nationwide injunctions is in effect.