Updated January 27, 2020. Today the U.S. Supreme Court lifted an October 11, 2019 nationwide preliminary injunction described below. The U.S. government is now permitted to implement and enforce its public charge rule while litigation continues in lower courts. We do not yet know when the rule will go into effect. There will be new forms to complete also.
Updated as of Oct. 18, 2019: A new government rule intended to make it difficult or impossible for lower-income immigrants to get green cards will not go into effect for the time being. The rule primarily applies to family-based applicants applying for lawful permanent residence (green cards) while in the U.S. five different courts have blocked it from taking effect for now; further hearings will take place. Importantly, the rules do NOT apply to applications submitted previously, and public benefits received before it goes into effect will not be taken into account.
In addition to this USCIS rule, the Department of State (DOS) issued an interim final rule (IFR), without any prior notice and comment, amending their regulations on how consular officers will determine whether an alien applying abroad is ineligible for a visa on public charge grounds. The goal was to match the State Department’s policies to the new USCIS policies.
In addition, President Trump issued a presidential proclamation on Oct. 4 declaring new immigrants will be denied entry to the United States unless they prove they can obtain eligible health insurance within 30 days of arrival or will have sufficient resources to pay for foreseeable medical costs. The health insurance changes are to go into effect on Nov. 3, 2019 but as of Oct. 18 there are no forms or guidance on how this will be implemented. So it probably will not go into effect for now. However, we have previously had cases in which an embassy required proof of current or future medical insurance for green card applicants. This is very difficult – you have to show you can get insurance before you move to the U.S., which is generally not possible until you actually live there.
What is the new public charge rule? In simple terms a public charge is a person who financially relies on the government. The Immigration and Nationality Act (INA) section 212(a)(4) says a green card can be denied if the U.S. government determines the individual is “likely to 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.” This is known as the public charge ground of inadmissibility.
The new DHS regulations radically redefine the meaning of this public charge ground of inadmissibility. Now visas can be denied if the government decides the person is “more likely than not at any time in the future to receive one or more public benefits . . . for more than 12 months within any 36-month period.” If you receive 2 public benefits at the same time, that counts as 2 months. This is much more restrictive than the long-standing current rule.
Why are people objecting to this new rule? First and foremost, the rule misinterprets long-standing law, as well as our history and values. For example, the New York State Attorney General said, when announcing a lawsuit in August 2019: the rule fundamentally misunderstands that these non-cash programs are designed to help immigrants who arrive in this country with limited means move out of poverty and achieve upward mobility.
You probably know the famous words of welcome and opportunity to immigrants from around the world engraved on the Statue of Liberty in New York harbor: “Give me your tired, your poor, Your huddled masses yearning to breathe free…” But n August 12, 2019, when announcing the new public charge rule, Ken Cuccinelli, acting director of US Citizenship and Immigration Services, revised the line to read “Give me your tired, your poor who can stand on their own two feet and who will not become a public charge.”
In addition, many are doubtful that government employees trained in immigration matters can efficiently and fairly review a person’s finances and make appropriate decisions. Under the current administration there are extensive backlogs – probably deliberate – in processing immigration applications. Officers will now need to be extensively trained to understand the financial details of applications, and decide whether the person is more likely than not…to become their new definition of a public charge.
The public charge rule does NOT apply to everyone. Importantly, the public charge rule does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others, as well as members of the military, and their spouses and children; and some others. There are exemptions from the health insurance requirement for some persons also.
New forms. USCIS revised several current forms, and introduced a new Form I-944 Declaration of Self-Sufficiency, running to 18 pages, that requires extensive financial information including credit reports, evidence of assets, receipt of public benefits, and much more. The forms were posted just days before the rule was to go into effect, but USCIS has now removed the forms due to the court orders. The State Department is also working on a new form, the DS–5540, officially called the “Public Charge Questionnaire.”
Not all benefits are counted against applicants. Non-cash benefits such as Medicaid, SNAP, Section 8 Project Housing and several others are included in the calculation. The government will look at “the totality of the circumstances” which can of course be very subjective. If the benefit is not on the detailed list, it’s not counted against you.
Applicants in the U.S. filing for change or extension of status also face new requirements. In addition to the changes for green card applicants, whether applying in the U.S. or abroad, there are also completely new requirements for those applying for a change or extension of nonimmigrant status. This can include visitors applying to change to student status, or students applying for H-1B temporary worker status. Such applicants must demonstrate that since obtaining their current nonimmigrant (temporary) status, and until the date USCIS decides the application, they have not received one or more of the listed public benefits for more than 12 months out of 36, as explained above. DHS will only consider public benefits received on or after the date the rule goes into effect.
For more information on the public charge rule, the nonpartisan Congressional Research Service has a helpful report
