LPR Applicants, Sponsors, and Rights Groups Sue Over Violations in Implementation of Public Charge “Wealth Test”

July 13, 2020

Hayley Burgess, NILC, [email protected], 202-805-0375
Belle Woods, AILA, [email protected], 202-507-7675
Anne Gallagher, Jenner & Block LLP, [email protected], 312-923-2641
Julie A. Fei, Morgan, Lewis & Bockius LLP, [email protected], 714-830-0684

LPR Applicants, Their Sponsors, and Immigrant and Civil Rights Groups Sue Over Law Violations in Implementation of Trump Administration’s Public Charge “Wealth Test”

WASHINGTON, DC — Today,  a group of applicants for lawful permanent residence, their sponsors, nonprofit immigration legal service providers, and immigrant and civil rights groups sued the Trump administration for violating the law in its implementation of the new “public charge” regulation, alleging that the new guidance goes further than the regulation itself to exclude individuals who merit admission to the United States. The complaint was filed by lawyers from the National Immigration Law Center (NILC), the American Immigration Lawyers Association (AILA), Jenner & Block LLP, and Morgan Lewis & Bockius LLP. Plaintiffs claim that the guidance contains a complex and contradictory set of policies designed to unlawfully and arbitrarily prevent all but the wealthiest of immigrants from becoming lawful permanent residents.

“Our plaintiffs have navigated increasingly onerous obstacles imposed by the immigration system in their attempts to create a safe, permanent home in the United States, only to be confronted with a new set of arbitrary and unlawful barriers,” said Joanna E. Cuevas Ingram, staff attorney with the National Immigration Law Center. “The Trump administration is attempting to circumvent and reshape our immigration system and the statutory standards for admission that Congress has established by using this backdoor and unlawful approach in the interest of changing the face of immigrants allowed into this country.” 

The Trump administration published sweeping changes in a public charge regulation in August 2019, after receiving hundreds of thousands of comments in opposition to the proposed rule change. This regulation, which critics claim makes it more difficult for immigrants who are not wealthy to become lawful permanent residents, has already caused immigrants of all statuses to forego health care and vital economic support out of fear of jeopardizing their immigration status. 

The lawsuit filed today alleges that the guidance purporting to implement the regulation is contradictory and even more punitive than the regulation itself, creating additional burdens for immigrants who are applying for lawful permanent residence by fundamentally altering the standard of proof and counting the mere fact of the application for lawful permanent residence against every applicant.  

The complaint also alleges that the defendants impose additional unprecedented, arbitrary burdens and costs, adding new evidentiary requirements via the I-944 “Declaration of Self-Sufficiency.” The information sought in the Form I-944 goes beyond and in some cases contradicts the regulation, without explanation. Some of the mountains of information required are irrelevant to the public charge inquiry and appear designed to deter applicants from applying at all.

Plaintiff Alhassan Nabieu Sesay is a U.S. citizen and health care worker who is sponsoring visas for his parents, who live with him and his family. The challenged guidance has raised the burden of proof and the amount of evidence needed to apply for and secure lawful permanent residence, and the policies count against applicants the very fact that they are seeking lawful permanent residence in weighing the evidence. 

“Our family members, including my parents — as well as the grandparents who care for their grandchildren, or the uncles and aunts who carry on family traditions — are some of our country’s most precious resources,” said Sesay. “Yet the Trump administration’s guidance stacks the deck against them. I’m suing today to make sure that my parents — and other parents — are afforded the dignity they deserve.” 

“As immigration attorneys, our 15,000 members are used to navigating the complexity of immigration laws, regulations, and the agency’s binding policy manual,” said Jesse Bless, director of federal litigation for AILA. “Unfortunately, USCIS has taken the liberty of legislating new requirements for purposes of those who must demonstrate that they are not likely to become a public charge. Put simply, the administration took a discriminatory and terrible regulation that they promulgated with the intent to keep immigrants from becoming green card holders and eventually citizens, and made it even worse through the manual and overreach for information included in the new Form I-944. As we learned with the Supreme Court’s DACA decision, the Trump administration cannot play fast and loose with the laws that govern administrative rulemaking.”

The complaint further charges that the guidelines and Form I-944 are additionally invalid because they were developed when the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services lacked a lawfully serving secretary or director. 

Other plaintiffs in the case include Community Refugee and Immigration Services, a nonprofit based in central Ohio, and Immigrant Legal Defense, an immigrant-serving organization in Oakland, California. Khudheyer et al. v. Cuccinelli, et al., No. 20-cv-1882, was filed in the U.S. District Court for the District of Columbia. Read the complaint here

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