Tag: public charge

Biden Administration Halts Enforcement of 2019 Public Charge Rule


This Wednesday, the Biden administration announced the end of the 2019 “public charge” restrictions following the reinstatement of a federal court order blocking the policy. The Department of Homeland Security determined the legal battles the policy incurred to be an inefficient use of government resources, and Homeland Security Secretary Alejandro Mayorkas described the 2019 policy as “not in keeping with our nation’s values.”

The 2019 “public charge” rule was a Trump-era policy that targeted low-income immigrants and erected major barriers in the green card application process. It granted the government broader discretion to reject green card applications from individuals suspected of relying on public benefits. The restrictions also applied to those only considered “at risk” of reliance. It was widely denounced by immigration advocates.

U.S. Citizenship and Immigration Services will now refer to the 1999 version of the policy. This means that USCIS will no longer be considering an applicant’s receipt of “Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits” when determining public charge inadmissibility. In addition, green card applicants will no longer need to include Form I-944 when applying from within the U.S.


Read the USCIS statement here: https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge 

I have a green card. Can I be a “public charge”?

The new public charge rules implemented by this Administration are causing extreme stress and confusion among immigrant communities and their advocates.

A question that frequently has arisen in my practice is whether a “green card” holder is subject to public charge rules. The answer is, generally, no. A green card holder with a ten-year green card or a two-year (conditional) green card is not subject to the public charge rules. This means that the green card holder’s income does not matter after s/he obtains her green card, and does not matter at the time the green card holder files Form I-751 to remove the conditions of the two-year card. Also, public benefits for which the green card holder is legally eligible will not affect her/his eligiblity to maintain the green card.

There are two important exceptions. First, if the green card holder did not disclose prior use of public benefits at the time of obtaining the green card and was required to disclose such benefits, those benefits could come back to bite the green card holder from the perspective of misrepresentation. That means that USCIS may allege that the green card holder lied to get the green card.

The second important exception is a green card holder who leaves the US for more than 180 days. Upon returning to the US, CBP (and USCIS) can inquire about the green card holder past use or future use of public benefits. See https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds, which states: “DHS notes that a person who is already a lawful permanent resident has already undergone a public charge inadmissibility determination, unless she or he was exempt from such a determination at the time of application for such status. Such a person would not undergo another public charge inadmissibility determination unless U.S. Customs and Border Protection (CBP) determines, upon the alien’s return from a trip abroad, that the returning lawful permanent resident is an applicant for admission based on one of the criteria set forth in section 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C), such as the alien has been absent from the United States for more than 180 days. “

Courts block USCIS’s Implementation of New Public Charge Rules

On October 11, 2019 various courts blocked the Trump administration’s implementation of new public charge rules that drastically increase the scope of inquiry for the public charge determination.

The new rules, if ever formally implemented, will prevent applicants for receiving green cards if they have used a wide variety of “benefits” most of which fall well outside the long-standing practice of considering “cash” benefits (often called “welfare” payments). The new rules consider the applicant’s family’s receipt of benefits, even when the family members are clearly eligible for the benefits as US citizens.

Since the announcement of the proposed rules, immigrant families and communities have been in fear of losing their current immigration statuses or being ineligible for future immigration statuses. Schools have seen decreases in enrollments for subsidized school-lunches. Health-care facilities have seen decreases in Medicare enrollment. (Schools and medical clinics may still be helping the same numbers of hungry and sick kids–but they are not getting financial credit (funds) for their numbers because of the decline in official enrollment in the programs. To me, this outcome is completely unacceptable and immoral. The Trump administration is scaring parents into not seeking food and medical care for their children. Like many other humans in the US and around the world, this result of this administrations policies sickens me.

Despite the courts blocking the formal implementation of the rules, the new public charge rules have been sneaking into immigration policy for many, many months. For example, many embassies/consulates are requiring additional documents for immigrant (“green card”) applicants and temporary visa (such as tourists and students) to prove that they will not be “public charges.” For example, people with medical conditions that would clearly be eligible for medical treatment in the US (that is, there is proof of future medical insurance) have been denied visas because they cannot prove ability to pay for treatment or prescriptions out of pocket. Similarly, tourists and students have been asked to prove that they will carry full insurance in the US–something that in most cases (at least that I know of) is impossible for a non-resident of the US to prove.

Until the Trump administration, one of my main jobs as a lawyer was to tell clients the law and the likely possible outcomes of their interaction with the law. Under this administration, we are bombarded by unconstitutional, illegal and/or immoral policies and proposed rules almost on a daily basis. Many of the proposals go no where legally but almost all of them have one effect of the administration: to make people live in fear. My practice has been affected. For example, while these horrible public charge rules are not “officially” in place, I now counsel clients on how to deal with the issues as if those rules were in place. I have talked with parents about making a difficult decision of whether to get their children covered for health insurance for which they qualify or to forgo such benefit to avoid any potential problem with immigration applications. What a horrible decision for a parent to have to make. Let’s hope that this madness ends soon. If you are eligible to become a US citizen, apply now so that you have a chance of voting in the presidential election of 2020!



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