Public Charge: Five Things to Know Now
THE TORCH: CONTENTSBy Gabrielle Lessard
AUGUST 31, 2020
Recent decisions by federal courts have significantly altered the “public charge” landscape, creating uncertainty about the extent to which the U.S. Department of Homeland Security’s (DHS’s) public charge regulations are in effect, but certain issues and facts remain clear.
Legal challenges to the regulations continue in multiple courts. While those cases proceed, plaintiffs in New York asked a federal court to put the regulations on hold during the COVID-19 pandemic. A U.S. district court there granted that request on July 29, 2020. (The district court also issued a nationwide preliminary injunction blocking the U.S. State Department’s public charge regulations. That injunction remains in effect nationwide and is not tied to the pandemic.)
On August 12, 2020, one Second Circuit judge affirmed but narrowed the district court’s order by indicating that the injunction will apply only within the states in the Second Circuit (New York, Connecticut, and Vermont). The federal government is seeking a complete stay of the district court’s order. The government’s motion for a stay will soon be reviewed by a panel of three Second Circuit judges.[*]
The U.S. Citizenship and Immigration Services (USCIS) website currently refers to the nationwide preliminary injunction issued by the district court in New York on July 29, 2020, which prevents USCIS from “enforcing, applying, implementing, or treating as effective” its public charge regulations. The form that applicants would use to provide the information contemplated by the regulations, Form I-944, “Declaration of Self-Sufficiency,” is no longer available on the website. Given the recent order narrowing the injunction, the website message is puzzling
A spokesperson for USCIS told a reporter that the agency was reviewing the order to “determine the administrative viability of reimplementing” the policy in the 47 remaining states. USCIS’s public charge policy is evolving and may change again. But some things remain certain, whether or not the new regulations are in effect.
1. Many categories of immigrants are exempt from the public charge ground of inadmissibility, including refugees; people granted asylum; survivors of trafficking, domestic violence, or other serious crimes (VAWA, T or U visa applicants/holders); and applicants for temporary protected status (TPS). These exemptions are in the immigration statute and cannot be changed by regulations.
2. Inadmissibility to the U.S. based on public charge is assessed when non–U.S. citizens seek permission to enter the U.S. or to become a lawful permanent resident (LPR), i.e., to get a “green card.” There is no public charge assessment when an LPR applies to become a naturalized U.S. citizen.
3. Once the regulations go into effect, only the specific programs they list as public benefits can be considered in a public charge determination. Many public programs will not be considered, including health services for children and pregnant women, unemployment insurance, and disaster relief.
4. Most people who face a public charge assessment are not eligible for the benefits that may be considered in this assessment.
5. A public charge assessment looks at a balance of positive and negative factors that make a person likely to depend on the government in the future. People can take action to improve their balance of factors by, for example, pursuing education, job training, or employment. Many community colleges and workforce investment boards offer free or low-cost options.
If you have questions about your situation, consult an immigration lawyer. Organizations that provide free or low-cost legal help can be found at https://www.immigrationadvocates.org/legaldirectory/.
Gabrielle Lessard is a NILC senior policy attorney.
[*] UPDATE (Sep. 15, 2020): On September 11, 2020, the Second Circuit Court of Appeals stayed a lower court’s nationwide injunction of the DHS public charge rule. This means that U.S. Citizenship and Immigration Services is now free to implement the DHS public charge regulations in all jurisdictions. Litigation on the Trump administration’s public charge rules and policies is ongoing in multiple federal circuits.