FOR IMMEDIATE RELEASE
May 18, 2020

CONTACT
– Juan Gastelum, National Immigration Law Center, (213) 375-3149, [email protected]
– Jen Nessel, Center for Constitutional Rights, (212) 614-6449, [email protected]
– Alejandra Lopez, The Legal Aid Society, (917) 294-9348, [email protected]
– Yatziri Tovar, Make the Road New York, (917) 771-2818, [email protected]

Advocates Ask District Court to Block Public Charge Rule Amidst Pandemic Following SCOTUS Rejection

Obstacles to public benefits will exacerbate health and economic crises, attorneys argue

NEW YORK — Today, lawyers from the National Immigration Law Center, the Center for Constitutional Rights, The Legal Aid Society, and Paul, Weiss, Rifkind, Wharton & Garrison LLP joined New York State Attorney General Letitia James arguing (via video) before a federal district court judge regarding three related lawsuits challenging several Trump administration “public charge” rules and seeking a preliminary injunction to stop enforcement during the COVID-19 pandemic.

The rules, which penalize immigrants who access certain public benefits or are deemed at risk of someday needing public benefits, primarily affect low-income immigrants of color. The rules are particularly harmful during the current public health crisis, as they cause families to forgo much-needed health care, food, and housing assistance. Among the issues argued today is an emergency motion to block the rule from remaining in effect during the pandemic.

“The Trump administration’s tests dangerously attack immigrants of color and low-income families who already lack health access and are currently facing food insecurity,” said Javier H. Valdés, co-executive director of Make the Road New York. “As the country faces a public health crisis, allowing these racist wealth tests to continue to be imposed on our immigration system can cause catastrophic harm to our loved ones and neighbors. We urge the court to put a stop to these unlawful and inhumane policy changes.”

Earlier in the pandemic, the U.S. Supreme Court rejected an emergency request, filed by Attorney General James on behalf of three states and New York City and supported by community groups that have sued over the public charge rules, to block one of the rules from taking effect amid the pandemic. Today, the attorney general, joined by the plaintiffs in the Make the Road New York v. Cuccinelli case, urged the district court to halt the Department of Homeland Security public charge rule during the COVID-19 emergency, an avenue left open by the Supreme Court decision. Also argued today were Trump administration motions to dismiss in the Make the Road New York v. Cuccinelli case, as well as the Make the Road New York v. Pompeo case challenging the U.S. Department of State public charge rule, as well as a presidential proclamation that bars entry to immigrants based on their ability to pay for health insurance.

Community groups, including lead plaintiff Make the Road New York, say that all these rules chill immigrants from accessing public benefits, because under the rules doing so threatens their immigration status. The public charge rules redefine and broaden the meaning of a “public charge” from those who are primarily reliant on government aid to include anyone who is likely to use any amount, at any time in the future, of various cash and noncash benefits, including Medicaid, food stamps, and housing subsidies. The presidential proclamation requires immigrants to demonstrate the ability to obtain private health insurance within 30 days of arrival in the U.S. or financial resources to pay for future medical costs, and bars entry to those who cannot. Advocates condemn the rules and proclamation as unlawful and discriminatory wealth tests.

“During this unprecedented pandemic, everyone, regardless of immigration status, needs access to the health care and government benefits for which they are eligible,” said Susan Welber, staff attorney in the Civil Law Reform Unit at The Legal Aid Society. “As long as people are deterred from seeking testing or treatment for COVID-19 and other types of vital benefits like food assistance out of fear of immigration consequences, efforts to slow the spread of the coronavirus are impeded and put immigrants and nonimmigrants alike at risk.”

“The implementation of these arbitrary and discriminatory rules, which target immigrants with medical conditions and low-income immigrants of color, is unconstitutional and undermines community efforts to combat the global pandemic,” said Ghita Schwarz, senior staff attorney at the Center for Constitutional Rights.

“The pandemic has brought to light how all of us are interconnected and essentially dependent upon each other. Yet this discriminatory wealth test is needlessly undermining everyone’s health, safety, and economic security,” said Joanna Cuevas-Ingram, staff attorney at the National Immigration Law Center. “The Trump administration’s relentless effort to put these new public charge regulations and his own ‘health care proclamation’ into effect puts lives at risk, hurting public health, the economy, and us all. The court heard powerful evidence today about why it can and should stop these regulations and the proclamation before they cause even more damage and harm to everyone.”

Make the Road New York v. Cuccinelli was filed by The Legal Aid Society, Center for Constitutional Rights, and Paul, Weiss, Rifkind, Wharton & Garrison LLP on behalf of Make the Road New York (MRNY), African Services Committee (ASC), Asian American Federation, Catholic Charities Community Services (CCCS), and Catholic Legal Immigration Network, Inc. (CLINIC).

Make the Road New York v. Pompeo was filed by The Legal Aid Society, Center for Constitutional Rights, National Immigration Law Center, and Paul, Weiss, Rifkind, Wharton & Garrison LLP on behalf of Make the Road New York (MRNY), African Services Committee (ASC), Central American Refugee Center New York (CARECEN-NY), Catholic Legal Immigration Network, Inc. (CLINIC), Catholic Charities Community Services (CCCS), and individual plaintiffs.

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THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
APRIL 21, 2020

The COVID-19 public health crisis has demonstrated how our health and well-being — everyone’s — are interconnected. Congress has passed relief packages that help many Americans access health care, paid leave, and economic support, but these measures don’t sufficiently address the widespread harm caused by the crisis. Legislation passed to date, including the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Families First Coronavirus Response Act (FFCRA), has failed to address the needs of millions of our immigrant community members and their families.

Immigrants face many structural barriers to accessing health care, and they are highly represented in jobs that put them at risk during this crisis. The impacts of COVID-19 in low-income immigrant communities — places such as Langley Park, MD, and central Queens, NY — have already been catastrophic. We urgently need legislation that protects the health and well-being of all our communities, including immigrants. Outlined here are key provisions that would make the next phase of COVID-19 relief legislation more inclusive of immigrant communities.

Photo by CDC on Unsplash

Everyone must have access to COVID-19 testing and treatment

During this crisis, uninsured immigrant communities need coverage for COVID-19 testing, treatment, and, when they’re available, vaccines. The uninsured rate has risen in recent years, and immigrants are disproportionately represented in the uninsured population. People who are undocumented are ineligible for most Medicaid coverage and coverage through the Affordable Care Act Marketplace.

The CARES Act falls short on ensuring access to essential treatment for uninsured people who are ineligible for full-scope Medicaid. COVID-19–related coverage must be available under Medicaid for any individual who is uninsured. And Congress must ensure that information about the virus, health care, and benefits are accessible, through interpretation services, to people who don’t speak or read English fluently.

Congress must halt implementation of harmful “public charge” rules

No one should have to fear that getting the health care they need could adversely affect their immigration status, but, unfortunately, that’s already happening. In February 2020, the U.S. Department of Homeland Security (DHS) began implementing its new “public charge” rule that takes into consideration a person’s use of noncash public benefits, such as Medicaid and SNAP (food stamps), in determining their eligibility for lawful permanent resident status. Several courts preliminarily enjoined the rule, but these injunctions were lifted by the U.S. Supreme Court.

DHS’s public charge rule created a widespread chilling effect on immigrants’ accessing programs and services even before the government began implementing it. Now there’s clear evidence that immigrants are fearful of accessing medical treatment for COVID-19 because of public charge, even though U.S. Citizenship and Immigration Services (USCIS) announced that it would not consider the receipt of COVID-19 testing, treatment, or preventative care in public charge assessments.

The next COVID-19 relief package should include provisions to stop the DHS public charge rule’s implementation and also that of a similar rule being implemented by the U.S. State Department, whose consulates abroad issue visas to people seeking to immigrate. Congress should also pass legislation to halt any further action by federal agencies that are intended to make public charge policies more restrictive.

Immigrants must be able to access hospitals and health care facilities without fearing immigration enforcement

Undocumented communities must also be able to access the care and services they need without fear that visiting a health care facility will put them at risk of being separated from their families. The federal government has long designated “sensitive locations,” such as hospitals, schools and churches, as safe spaces that are off-limits to immigration enforcement.

As long as the present public health crisis lasts, DHS should cease all civil immigration enforcement, to help ensure that immigrant communities stay home and focused on remaining healthy or able to access crucial medical services without the added fear of being torn from loved ones. While U.S. Immigration and Customs Enforcement (ICE) has stated that it will not carry out enforcement operations at health care facilities during the COVID-19 crisis, states and localities should remain vigilant to hold ICE accountable. A NILC toolkit titled “Filing Immigration Enforcement Civil Rights Complaints for Violations of the ‘Sensitive Locations’ Policy At or Near Your School” can be used or adapted to help hold ICE accountable.

Immigrant taxpayers should be eligible for economic relief

The CARES Act provides some taxpayers a “recovery rebate” of up to $1,200 for individuals or $2,400 for jointly filing couples, and $500 per dependent child. However, many immigrant families have been left out of this program and subjected to additional financial hardship and also health risks, since many may be forced to continue working in unsafe conditions. Immigrant tax-filers who do not have Social Security numbers (SSNs) can file income taxes with an Individual Taxpayer Identification Number (ITIN). But under the CARES Act, households that include ITIN-filers are generally ineligible for this tax rebate.

Congress should remove the SSN requirement to ensure that all taxpayers have access to the recovery rebate and are able to provide shelter and food for their families.

Immigrant workers need to be able to keep their jobs and to work in safe and healthy conditions

Immigrant workers who continue working in industries designated as essential are encountering conditions that put their health and safety at risk every day, one of the many causes of significant racial and ethnic disparities seen in the impacts of COVID-19. Workers need a federal law, such as the Essential Workers Bill of Rights, that would require the Occupational Safety and Health Administration to issue an emergency temporary standard requiring employers to take minimum steps to protect workers during this crisis. Any safety plan should prioritize prevention of exposure, with an emphasis on increased physical distancing and personal protective equipment at no cost to workers. Workers in essential industries also need universal paid sick leave and paid family and medical leave to allow them to stay home and self-quarantine when necessary.

Congress should do all it can to avert layoffs and keep workers in their jobs — even if that means taking on temporary responsibility for covering employers’ payroll expenses. Workers who have temporary work authorization through Deferred Action for Childhood Arrivals (DACA), temporary protected status (TPS), or nonimmigrant visas need an automatic extension of their status or work authorization for the length of time they most recently held status or were work-authorized in order to ensure that they can keep working when able and qualify for unemployment insurance when they cannot. States and localities should follow California’s lead in setting up funds to help workers who are ineligible for unemployment insurance.

IF WE ARE SERIOUS ABOUT truly stemming the tide of the crushing health and economic consequences of this pandemic, we must include immigrants in our legislative solutions. More detailed information is available in NILC’s “Understanding the Impact of Key Provisions of COVID-19 Relief Bills on Immigrant Communities.”

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
APRIL 10, 2020

Across the United States, workers doing essential jobs continue reporting to them, keeping grocery shelves stocked and stores sanitized, laboring at construction sites, preparing and delivering packages to our doors, collecting trash and keeping communities clean, and harvesting and processing the food that keeps our supply chains running and our refrigerators stocked. Approximately six million essential workers are immigrants. Yet these workers, who are so integral to our collective health and survival during this unprecedented COVID-19 public health crisis, have been left without meaningful protections for their own health and safety on the job.

Retailers offer workers a patchwork of protections, with some offering masks and gloves, but some employers provide no protection for workers who are face-to-face with hundreds of customers each day. At least four people who worked at grocery stores already have died from COVID-19. Sanitation workers are picking up more trash than ever without masks. Construction workers have described an inability to wash their hands at work, working in cramped conditions, having to share tools, and lacking masks or gloves.

Photo by John Cameron on Unsplash

Many farmworkers have not received additional protective gear or handwashing stations to protect themselves, have not received adequate information about the virus, and find it difficult to effectively distance themselves from coworkers while in the fields and in crowded housing. At meat and poultry processing plants, workers who labor shoulder-to-shoulder in frigid conditions have continued reporting to work when ill, to avoid receiving disciplinary points for calling in sick. Meat and poultry workers at plants across the South and West have contracted COVID-19, and four have died. Immigrants, women, and people of color disproportionately fill many of these low-wage jobs and find themselves at heightened risk of exposure to COVID-19 while at work.

Undocumented workers and their families are particularly vulnerable because they are unable to access safety-net programs that provide essential health care coverage and nutrition assistance. When employers lay off workers because of COVID-19, those who lack work authorization are ineligible for unemployment insurance even when they’ve paid taxes and their employers have paid into their state’s unemployment insurance system. Despite being taxpayers and filing tax returns, these workers will not receive stimulus payments.

From a health and safety perspective, undocumented workers face high rates of exposure to occupational hazards, but they do not receive higher pay to compensate for that risk relative to other workers. Moreover, their legal precariousness makes undocumented workers hesitant either to file claims when their rights as workers are violated or to demand protections.

The federal Occupational Safety and Health (OSH) Act gives all workers the right to safe and healthful working conditions. Employers have a duty to ensure that workplaces are free of known hazards that could harm their employees. Yet while the Occupational Health and Safety Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) have offered employers guidance on COVID-19, no enforceable legal standard or regulation is in place to require employers to take certain minimum steps to protect workers who are on the frontlines of this crisis and risking their health and safety every day. Now more than ever we need policymakers to guarantee that policy responses are inclusive of all our community members — including immigrants.

In the absence of employers or government taking the necessary steps to ensure the safety and health of frontline workers at their jobs, workers have begun to take action on their own. At poultry plants in Virginia and Georgia, workers walked off the job because they fear being exposed to COVID-19 in unsanitary and unsafe working conditions and lack personal protective equipment. In Pittsburgh, sanitation workers went on a wildcat strike to protest lack of protective equipment and to demand hazard pay. Bus drivers planned a strike in Birmingham, Alabama, and a sickout in Detroit.

McDonald’s employees in San Jose, Calif., walked out because “they didn’t even have enough soap to clean their hands.” Whole Foods workers across the country held a sickout demanding paid leave and hazard pay. One thousand meatpacking workers in Colorado walked off the job after ten workers tested positive for COVID-19. These responses reveal the power workers — including immigrants — have when they act together to demand better and safer workplaces.

These bold actions demonstrate the need for the government to act now to protect the people who make up our essential workforce. The federal response to COVID-19 should include reforms that recognize immigrants’ contributions during an unprecedented crisis. All workers deserve to be treated with dignity and have safe and sanitary working conditions so they can go to work each day without fear of risking their lives. Workers have an urgent need for an OSHA standard that provides a legal safeguard requiring employers to take critical steps that will keep workers and their families safe as they keep the country running.

More information about workers’ rights related to COVID-19, including how workers can take action to protect themselves, can be found in “FAQ: Immigrant Workers’ Rights and COVID-19,” published by the National Immigration Law Center, the National Employment Law Project, and the OSH Law Project.

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

THE TORCH: CONTENTSBy Ignacia Rodriguez Kmec
APRIL 3, 2020 [*]

In response to the COVID-19 public health crisis, U.S. Citizenship and Immigration Services (USCIS) has clarified its process for handling Deferred Action for Childhood Arrivals (DACA) renewal requests. According to USCIS’s website, its offices will remain closed at least until June 4.

The Home Is Here campaign’s Informing DACA Recipients and Practitioners Working Group, composed of advocates and immigration legal service providers, has updated guidance for DACA renewal requestors in light of USCIS’s clarified process, which will remain in place while USCIS offices remain closed.

 

Here’s what you should know:

1. “Wet signatures” (your non-photocopied signature, which you wrote with a pen) are temporarily not required on renewal applications. A person requesting DACA renewal may work with their attorney electronically (for example, using email and video or telephone conferencing) to complete their application, which can then be sent to USCIS by mail, since neither the applicant’s nor the attorney’s signature has to be “wet”; rather, it can be a copy of a signature on a form that was scanned, then emailed or faxed.

2. Request for Evidence (RFE) and Notice of Intent to Deny (NOID) deadlines have been extended.

3. USCIS may now use previously done biometrics to process work permit (employment authorization) renewal requests.

We can’t know for sure how USCIS’s office closures will affect the processing of DACA renewal requests, but we expect this closure may affect processing times. If you decide to apply now, we encourage you to send your application via certified mail to have proof of postmark date and confirmation of when your application arrived to a USCIS lockbox. For more information, we encourage you to read this guidance from Home Is Here.

Nobody knows what will happen with DACA in the next few weeks and months. We are still expecting a Supreme Court decision on the DACA cases by the end of the June 2020, but we don’t know when or how the Court will rule. The COVID-19 pandemic creates an additional layer of fear and uncertainty. Tens of thousands DACA recipients are on the frontlines responding to COVID-19, according to a new Center for Migration Studies report, and they’re unsure if they’ll be able to keep their jobs in a range of fields, including health care, transportation, warehousing, retail, pharmacies, and waste management, if the Court’s ruling leads to the end of DACA.

Advocates and some governors, such as Colorado governor Jared Polis, have asked Congress and the Trump administration to automatically extend work permits to alleviate the stress many are experiencing right now.

In the meantime, for DACA recipients, it feels like it did in June through August 2012, the three months between the announcement and implementation of DACA. During that period, we had some questions answered by USCIS but didn’t know what the program would be like moving forward, and we relied on practitioners with years of experience in other areas of immigration, such as temporary protected status (TPS), for guidance. We learned by doing. We learned by monitoring how USCIS was handling DACA requests and the experiences of our clients, so we’ll do the same now, given these new changes, and share any insights we learn along the way.

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Ignacia Rodriguez Kmec is NILC’s immigration policy advocate.

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* This article was updated on May 29, 2020, in the following way: In the first paragraph, the date until which USCIS offices will remain closed was changed from “until at least May 3” to “at least until June 4,” based on information on the USCIS webpage to which the phrase hyperlinks.

THE TORCH: CONTENTSBy Avideh Moussavian and Manar Waheed
APRIL 2, 2020

Congress’s third bill addressing the impacts of COVID-19, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, was a necessary attempt to respond to this public health crisis, but its exclusion of immigrant communities is downright racist and xenophobic. Immigrants were cut out of provisions to ensure COVID-19 testing and care as well as economic relief, undermining our collective safety and economic future. COVID-19 doesn’t discriminate; Congress’s response shouldn’t either. It’s essential that another bill — one that encompasses everyone — be introduced and passed as soon as possible.

There are three major ways in which immigrants were left behind in the CARES Act: testing and care, cash rebates, and unemployment insurance. If recent weeks have highlighted anything, it is just how interdependent we are in confronting a virus that does not discriminate. Our country’s ability to contain this pandemic and the sustainability of our future depends on Congress closing the gaps created by the relief bills enacted to date. Immigrants are serving so many vital roles at the frontlines of our recovery from COVID-19, including the 1.7 million immigrant medical and health care workers caring for COVID-19 patients and the 27,000 Deferred Action for Childhood Arrivals (DACA) recipients working as doctors, nurses, and paramedics. It is both irresponsible and morally unforgivable to pass relief bills that fail to recognize that every person’s health and financial stability are critical.

In its next bill, Congress first must ensure that everyone who needs it receives testing and treatment. This should not even be up for debate. Yet the second COVID-19 relief package, the Families First Coronavirus Response Act (Families First Act), left out tens of millions of people — including DACA recipients, people with temporary protected status (TPS), certain survivors of crimes (people with U visas), undocumented people, and many lawful permanent residents (people with “green cards”). This bill includes money to support testing for those who are uninsured and not covered by Medicaid, the Children’s Health Insurance Program, the Affordable Care Act marketplace, or any other individual or group health plan, but it kept immigrant eligibility restrictions in place.

The Families First Act should have made COVID-19–related services available under emergency Medicaid, so that it would not include the same immigrant eligibility restrictions as nonemergency Medicaid. It should also have ensured that these services would not be counted against a person in assessments of whether they are likely to become a “public charge,” which are effectively wealth tests of people seeking admission to the U.S. as lawful permanent residents or on an immigrant visa.

Unfortunately, both the Families First Act and CARES Act fail to address these gaps, leaving out tens of millions of people from testing and treatment. Some states, such as New York, are including COVID-19 testing, evaluation, and treatment as a part of emergency Medicaid coverage. Community health centers may also help fill this gap. But they may not be able to and shouldn’t have to — the federal response must be as holistic as possible in developing a national policy.

Second, Congress must include all immigrant workers and tax filers in the tax rebate so people can receive vital cash assistance. In the CARES Act, Congress funded cash rebates for recent tax filers based on their taxpayer identification numbers, but limited this to those using Social Security numbers (SSNs). However, many people file their tax returns using an Individual Taxpayer Identification Number (ITIN). Under the bill, if ITIN users file jointly with a spouse or child with an SSN, everyone in the household will be denied access to the cash assistance. While Congress did create an exception to allow military families to be able to use an ITIN number, this narrow exception only demonstrates that members of Congress understood that they created this cruel carveout and still deliberately chose to leave out millions. As a result, many immigrant workers are put in an increasingly difficult position, cut out of cash assistance and risking their health for essential work without even having access to testing and care.

Third, the bill must provide unemployment insurance for as many people as possible during this crisis. Under federal law, individuals must be work-authorized both for the period of time for which they are claiming unemployment insurance and at the time of filing their claim. However, many immigrant workers awaiting adjudication of immigration benefits or at risk of the looming threat of a loss of immigration status may experience a lapse in their work authorization — perhaps due to U.S. Citizenship and Immigration Services office closures during this crisis. Congress should ensure an automatic extension of work permits for people with DACA or TPS and nonimmigrant visas for the same duration of time as a regular renewal of that work permit, i.e., a two-year extension for DACA recipients. Exacerbating financial hardship will likely make it impossible for these workers and community members to survive, thus harming our short- and longterm recovery efforts.

Congress can and must take up another relief bill to address these significant gaps in order to ensure the well-being of people, families, and communities across the country — and for the future of our nation. And they need to do it now.

RESOURCES

• There may be other options for testing and care. While many immigrants have been left out of the relief packages thus far, there are some options available for immigrants to get tested and treated for COVID-19. Community health centers provide health care to all patients regardless of immigration status typically at a reduced cost or free of charge. Find the closest health center to you at https://findahealthcenter.hrsa.gov/. Call the community health center prior to going in person to ensure they are providing COVID-19 testing and care.

• Testing and care will not impact immigration benefits. USCIS recently posted an alert notifying the public that it will not consider testing, treatment, or preventive care related to COVID-19 of noncitizens as a public charge, so such assistance should not impact their Lawful Permanent Residency or visa applications.

• Immigration enforcement should not take place at or near health care facilities. On its “Guidance on COVID-19” website, U.S. Immigration and Customs Enforcement (ICE) has stated, “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.” ICE will not carry out enforcement operations “at or near health care facilities such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances,” per the agency’s previously issued sensitive locations memo and reiterated public statement on March 18, 2020. As always, it’s important to know your rights. Learn more about your rights here.

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Avideh Moussavian is legislative director for advocacy at the National Immigration Law Center. Manar Waheed is senior legislative and advocacy counsel at the ACLU.

THE TORCH: CONTENTSBy NILC Staff
APRIL 1, 2020

Today, NILC published a policy brief summarizing the impact that key provisions of recently enacted COVID-19 relief legislation — federal legislation — will have on low-income immigrant communities. Our policy brief focuses on access to health care, economic supports, and employment protections.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion economic relief bill, builds on the Families First Coronavirus Response Act (FFCRA) to provide economic relief and health care options amidst the growing global COVID-19 public health crisis. Nevertheless, these bills fall short of meeting the most basic health care and economic needs of millions of Americans, including immigrant workers and families who are on the frontlines caring for our communities by providing crucial services while others are able to shelter at home.

 

For example, the CARES Act builds on a provision of FFCRA that allows states to use their Medicaid programs to provide free testing to uninsured people. However, the FFCRA does not alter Medicaid eligibility for immigrants; therefore, many immigrants remain excluded under this option.

Likewise, the CARES Act provides for the issuance of an advanced Recovery Rebate to help taxpayers recover from the economic impacts of the coronavirus crisis. The maximum rebate amount is $1,200 for individuals and $2,400 for taxpayers filing taxes jointly. Unfortunately, the bill excludes many immigrant and mixed–immigration status families from receiving this financial assistance.

The current global public health crisis is a reminder of how interconnected we all are — and how our collective health and well-being are thoroughly interdependent. COVID-19 does not discriminate and neither should our public health response and economic relief efforts.

As Congress considers additional measures to bolster our economy and communities across the country, it must deliver relief that eliminates barriers to testing, diagnosis, and treatment and that supports other basic needs of low-income immigrants and their families.

Read the full policy brief.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
MARCH 2, 2020

In September 2018, the U.S. Department of Homeland Security (DHS) proposed a new set of regulations that would make drastic changes to determinations regarding which immigrants are eligible to be admitted as lawful permanent residents in the United States. The final rule, which has taken effect for applications submitted within the U.S. on or after February 24, 2020, substantially changes the criteria by which “public charge” determinations are made and, as a result, who has access to permanent lawful status in the country.

Previously, an individual’s likelihood of being designated a public charge — that is, deemed likely to become primarily dependent on government support in the future — was based on reliance on public cash assistance for monthly income or long-term institutionalization at government expense. Widely regarded as a wealth test, the new rule expands public charge determinations to include several new criteria, including new income thresholds, age, health, education, and use of noncash benefits such as the Supplemental Nutrition Assistance Program (SNAP, or “food stamp” benefits), nonemergency Medicaid (with some exceptions), and housing assistance. Litigation challenging the rule is ongoing.

An estimated 26 million people could be chilled from accessing nutrition, health care, or housing programs because of fear and misinformation related to this rule. In fact, there is evidence that the DHS rule has already chilled immigrant families’ participation in benefits programs for which they are eligible. Shortly after the rule was proposed — more than a year before it was implemented — a survey found that more than 20 percent of adults in low-income immigrant families had avoided participating in benefit programs.

 

In a new report, the National Immigration Law Center draws on accounts from service providers across the country to document how immigrant communities reacted to media reports, rumors, and other information circulating about “public charge” even before the Trump administration began implementing its new rule. The report describes how individuals who are not subject to a public charge test — including people who are already lawful permanent residents, members of exempted humanitarian groups, and even U.S. citizens — have already been impacted by the rule.

Providers interviewed for this study shared examples such as a working mother in Wisconsin who canceled food stamp benefits for her U.S. citizen children and planned to take on a third job, lawful permanent residents choosing not to enroll in health coverage programs in North Carolina, and a cancer patient in California who considered stopping treatment because she believed getting treatment could jeopardize her immigration status. Service providers reported that their clients were concerned not only about accessing programs that the new rule lists as being considered in public charge determinations — such as SNAP and Medicaid — but also programs that are not listed — such as Affordable Care Act Marketplace health coverage, county health programs, school lunches, and WIC, the Special Supplemental Nutrition Program for Women, Infants, and Children. These accounts demonstrate how fear and misinformation about public charge harm the health and well-being of immigrant communities.

The DHS rule is also making it harder for service providers such as benefits enrollers, health care providers, and outreach workers to do their jobs. For example, providers have taken on extra responsibility to research the rule, understand its implications, and explain it to their clients — even when they have no formal training in immigration law and policy. Providers must also overcome misinformation from media, social networks, and immigration attorneys. In some cases, they are doing so successfully, going above and beyond to make sure that their clients receive the programs and care they need.

But in other cases, even when service providers shared accurate information with their clients about whether they would be impacted, fear still made people decide to avoid programs and services that could significantly improve their lives. As an advocate for human trafficking survivors in Kentucky noted, “People feel like we can’t be confident that it won’t change again or become more restrictive, or that we still won’t get in trouble … [T]here’s just a realistic fear that there’s this constant changing, so how can I be sure?”

These findings identify a disconnect between the DHS public charge rule as written and the way it is being interpreted in immigrant communities. They illustrate that the rule negatively impacts not only people who are actually subject to its public charge test but also others, including people with lawful permanent residence, U.S. citizen children, and survivors of crime and human trafficking. As the rule has moved into the final stage of its implementation, it’s clear that the health and well-being of immigrants and their families are at stake.

The report is titled “Documenting through Service Provider Accounts Harm Caused by the Department of Homeland Security’s Public Charge Rule.” For more information and resources related to public charge, visit https://ProtectingImmigrantFamilies.org/.

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

THE TORCH: CONTENTSBy Ignacia Rodriguez and Diana Pliego
JANUARY 17, 2020

Earlier this week, on January 13, 2020, we marked the two-year anniversary of the first injunction that reopened the Deferred Action for Childhood Arrivals (DACA) renewal application process. The first injunction and the injunctions that followed were results of brave decisions made by DACA recipients across the U.S. to share how the termination of DACA by the Trump administration affected them.

Thanks to their bravery, well over 600,000 people have been able to apply for renewal since the DACA renewal application process reopened. This is no small victory, and their bravery and this victory are worth keeping in mind as we continue working toward an America that honors all people and families — no exceptions.

 

As the fight continues, however, the new year brings with it a number of possible new developments and uncertainties. For one thing, the U.S. Supreme Court will issue a decision that could affect the availability of DACA renewals. For another, U.S. Citizenship and Immigration Services (USCIS) could implement proposed fee hikes that would make DACA renewals less affordable. And there are new reports of delays in DACA renewal application processing times. Each of these factors is very important to DACA recipients and impacts each person’s decision about when or if to submit a renewal application.

If you’re a DACA recipient considering when or whether to renew, it can be easy to become overwhelmed. However, despite the uncertainties, you do have some measure of control in this situation. You have the power to decide whether to apply to renew your DACA. And if your DACA expires any time in 2020, we encourage you to consider submitting a renewal application soon.

As you weigh all the factors and make your decision, we urge you to make use of tools we’ve developed with partners to help you with this process:

• Our DACA renewal calculator can help you identify when you have to submit your DACA renewal application based on the recommendation by USCIS to apply 120 to 150 days prior to your current DACA and work permit expiration date.

• Our “FAQ: USCIS Is Accepting DACA Renewal Applications” includes the most recent information we have on DACA renewal processing. If your DACA expires in more than 150 days and you’re considering applying early, you can find a list of pros and cons to consider under “I am interested in applying to renew my DACA. Does it matter when my DACA expires or expired?” We encourage DACA recipients to review this FAQ as they consider whether and when to apply for renewal.

• If you’ve applied for DACA and are experiencing delays in the processing of your application, there’s also a list of “Steps to Take if Your DACA Renewal Is Delayed.”

The choice to apply for renewal is not one you have to make alone. We recommend that DACA recipients talk to accredited legal service providers first and, if they choose to apply, to consider renewing their DACA very soon. The Supreme Court will issue its decision about DACA no later than June of this year, and it could come as early as later this month (January)

As you consider renewing your DACA, remember: we will always stand alongside immigrant youth, who are a critical part of the fight for immigrants’ rights. We are committed to reporting the latest updates and recommendations, and we encourage you to sign up to receive our emails (sign up on any page of www.nilc.org) and follow us on social media to receive real-time updates. Stay informed as we continue this fight together.

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Ignacia Rodriguez is NILC’s immigration policy advocate. Diana Pliego is a NILC policy associate and a DACA recipient.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
DECEMBER 17, 2019

A new set of fee increases proposed by U.S. Citizenship and Immigration Services (USCIS) is the latest tactic by the Trump administration to fundamentally alter our immigration system to favor wealthy people.

Under USCIS’s proposed regulations, people fleeing violence and persecution would have to pay a fee — $50 — simply to apply for asylum. Family members of immigrants with U visas (crime survivors) would be charged $1,515 for their petitions to immigrate, a more than 500 percent increase. Fees to apply for U.S. citizenship would increase 83 percent, to $1,170, and the cost of renewing Deferred Action for Childhood Arrivals (DACA) would increase by 55 percent, to $765. These fee increases fly in the face of longstanding policies not to charge for asylum application processing and to keep other immigration applications affordable, sending a clear message: The United States is closed to people who can’t afford to pay.

 

These fee increases could significantly harm immigrant youth with DACA. DACA doesn’t provide permanent lawful status; it must be renewed every two years. As a result, DACA recipients must continually pay the high renewal fees every two years in order to retain their work authorization and protection from being deported. Until Congress acts to provide permanent protections for this population, immigrant youth will rely on DACA, and we know that DACA allows recipients to thrive. DACA is associated with improved mobility pathways through the access it provides to higher education, better jobs, increased wages, credit, and improved financial positions. These new fees may block some recipients from being able to renew their DACA and cut off this crucial pathway to opportunity for immigrant youth and their families. In fact, past research has shown that the present cost of applying for and getting DACA already presents barriers for immigrant youth and their families.

Many young people who’ve applied for DACA come from low-income backgrounds. Research shows that DACA recipients already struggle to pay the present, lower fees, that not being able to afford the fees has delayed renewals, and that lack of affordability has prevented some people from applying or renewing at all. In addition to having to pay the fees, many DACA recipients retain paid legal assistance to submit renewal applications. We know that participation in DACA is lower in communities that have high unemployment and low levels of economic opportunity. In other words, the people who have the most to gain from DACA may be prevented from accessing its benefits because of these exorbitant fees.

Another troubling aspect of the new rule is its plan to bypass Congress and transfer more than $112 million in USCIS fees to fund U.S. Immigration and Customs Enforcement (ICE), the agency responsible for detaining and deporting hundreds of thousands of migrants every year. This means that the same fees paid by DACA recipients, asylum-seekers, and other petitioners would be used to pay for enforcement against their undocumented family members. A recent survey found that more than two-thirds of DACA recipients think at least once a day about a family member being detained or deported.

Fortunately, this rule is not yet in effect, and there’s still time to try to prevent it from taking effect. As part of the federal rulemaking process, USCIS must take into consideration the voices of concerned individuals who submit public comments through its portal. You can submit a comment through December 30 on the Regulations.gov website.

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

THE TORCH: CONTENTSBy Trudy Rebert
NOVEMBER 12, 2019

Departing the U.S. Supreme Court into a cold fall day, dozens of people whose lives are in the balance — plaintiffs, their mothers, and other Deferred Action for Childhood Arrivals (DACA) recipients — emerged from today’s oral argument with their arms linked and raised. There, at the top of the long bank of marble steps, they paused before a sea of young people below who were waving signs and cheering to welcome them out of the courthouse. Their departure from the courthouse today was a reminder of the organizing, courage, and fight for inclusion that led to the creation of DACA in 2012, as well as of what’s at stake before the nine justices inside the courthouse.

Formally, today’s argument addressed two legal questions: (1) whether courts can even review the government’s decision to terminate DACA, a policy that had been in place since 2012, and (2) whether the Trump administration engaged in reasoned decision-making when it decided to terminate DACA (in nonlawyer terms, whether the administration properly “showed its work” or, instead, ended DACA arbitrarily).

But in practical terms, the daily lives of close to 700,000 young people — teachers, parents, medical professionals, neighbors — and the health and welfare of the communities they call home are at stake. Individuals like our plaintiffs Eliana Fernández, a community organizer with Make the Road New York who lives on Long Island with her two U.S. citizen children, and Martín Batalla Vidal, who lives in Queens, New York, and is finishing his college degree while working as a certified nursing assistant caring for people with traumatic brain injuries. Eliana and Martín, along with the plaintiffs in the eight other lawsuits currently before the Court, challenged the administration’s termination of DACA in September 2017.

DACA, first announced in 2012, has allowed hundreds of thousands of young people who grew up and went to school in the U.S. — who are integral members of their many communities — to come forward, declare themselves to the government, and in return receive work authorization and a measure of protection from deportation. DACA is consistent with a long history of deferred action programs enacted by administrations of both parties dating back to the Eisenhower era.

The vast majority of Americans support DACA recipients and their place in our national community. A recent poll showed that 83 percent approve of allowing DACA recipients to become U.S. citizens, meaning that Americans agree more about DACA recipients than just about anything else. This was also evident in the huge outpouring of supporting briefs filed with the Court before today’s hearing, including support from national security experts, many large corporations, medical schools, the Catholic Church, law enforcement, and more. As Justice Stephen Breyer noted from the bench today, 66 medical associations, 210 educational institutions, 3 home builders, 109 municipalities and cities,129 religious organizations, 145 businesses — and more — identified countless different reliance interests in DACA.

The lawyers presented detailed legal arguments about reviewability and the Administrative Procedure Act today, but what it comes down to is quite simple: The Court is also being asked to decide what government accountability means in our democracy. Should the government be able to hide behind legal reasons for ending DACA to avoid having to face the political consequences of ending a popular policy — even if the legal reasons it relies on are unexplained and directly conflict with an existing legal opinion by the Office of Legal Counsel? As Justice Sotomayor noted, “[T]his is not about the law; this is about [the] choice to destroy lives.”

Prior to the Trump administration’s termination of DACA, the president assured the public that DACA recipients would be treated with “great heart,” yet after receiving a letter from the attorney general on September 4, 2017, the then–acting secretary of the U.S. Department of Homeland Security (DHS) abruptly ended the program, writing that she had no choice but to end DACA because it is unlawful.

But through documents obtained as a result of Freedom of Information Act (FOIA) litigation that the National Immigration Law Center filed on behalf of Make the Road New York and Make the Road Connecticut, we know that the decision to terminate DACA was actually made at a meeting in the White House on August 24, 2017. There the administration hatched a plan to have the U.S. Department of Justice send DHS a letter “outlining the legal reasons that the DACA program is unlawful,” for DHS to draft a memorandum to terminate DACA, and for the administration to develop a list of legislative items that the president would trade to protect DACA recipients. Even Newt Gingrich warned that such a strategy risked sending a signal that the administration was dehumanizing DACA recipients as a “bargaining chip.” The Trump administration also reportedly considered terminating DACA by having the president issue an executive order, but abandoned that path.

DACA recipients around the country hope that the Supreme Court will see through the administration’s unreasoned decision-making and attempts to shirk responsibility for an unpopular political decision. Their lives and families depend on it. We have strong arguments that court after court have agreed with, U.S. district courts from California to New York to Maryland to DC. But whatever happens when the Court issues its opinion sometime between January and June, we will continue fighting alongside immigrant youth as they courageously lead the immigrant justice movement, fighting for inclusion and recognition and for the future of our country.

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Trudy Rebert is a NILC staff attorney.