Let’s talk this “Public Service charge” rule

First, let me share the good news. On Friday, Oct. 11, 2019, federal district courts in New York, California and Washington temporarily enjoined the Department of Homeland Security’s implementation of its Public Charge rule, which was slated to go into effect on October 15. The New York injunction also blocked the revised or new DHS forms that go with this rule. 

Basically, this rule would deny green cards to many immigrants who use Medicaid, food stamps and other government benefits, dealing a setback to one of the president’s most aggressive moves yet to cut legal immigration and make it more based on employment skills than family ties.

What is this “Public Charge” anyway?

Friday’s rulings put the policy to deny green cards to more immigrants on government aid on hold while lawsuits proceed. Federal law already requires immigrants seeking to become permanent U.S. residents to prove they will not be a burden on the country — a “public charge,” in legal terms —but the new rules detail a broader range of programs that could disqualify applicants.

On average, 544,000 people apply for green cards every year, with about 382,000 falling into categories that would be subject to the new review, according to the government. Guidelines in use since 1999 refer to a “public charge” as someone primarily dependent on cash assistance, income maintenance or government support.

Under the new rules, the Department of Homeland Security has redefined a public charge as someone who is “more likely than not” to receive public benefits for more than 12 months within a 36-month period. If someone uses two benefits, that is counted as two months. And the definition has been broadened to include Medicaid, housing assistance and food assistance under the Supplemental Nutrition Assistance Program, or SNAP.

What do the Injunctions or Rulings mean?

Judge George B. Daniels, of the Southern District of New York ruled that the plaintiffs — Make the Road, African Services Committee, Asian American Federation, Catholic Charities Community Services, & Catholic Legal Immigration Network, and the states of New York, Connecticut and Vermont, plus New York city— are likely to succeed on the merits in their claims against the Trump administration. 

“The Rule is simply a new agency policy of exclusion in search of a justification,” Daniels wrote. “It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.

In a suit brought by California, Maine, Oregon, Pennsylvania and the District of Columbia, Judge Phyllis Hamilton in the Northern District of California ruled that Trump administration officials “acted arbitrarily and capriciously during the legally-required process to implement the changes they propose” in violation of the Administrative Procedure Act.

Judge Hamilton also found the Department of Homeland Security failed to adequately consider the costs to local and state governments when immigrants leave or abstain from public health benefit programs for which they or their family members are eligible. Hamilton said that the government minimized the potential public-health consequences of the proposed rule. 

A suit in the Eastern District of Washington, brought by Washington state and 13 other states, resulted in a nationwide injunction issued by U.S. District Judge Rosanna Malouf Peterson. Her ruling noted that DHS had “not cited any statute, legislative history, or other resource that supports the interpretation that Congress has delegated to DHS the authority to expand the definition of who is inadmissible as a public charge or to define what benefits undermine, rather than to promote, the stated goal of achieving self-sufficiency.”

For now, this means that domestic implementation of the revised DHS Public Charge regulation, promulgated August 14, 2019, must await further review, and that the new and revised DHS forms based on that rule which were only published on the evening of Oct. 9, 2019, cannot be required by US Citizenship and Immigration Services for filings on or after October 15th. For now, applicants do not have to file a Form I-944, Declaration of Self-Sufficiency, and may continue to use the “old” versions of Form I-864, Affidavit of Support (03/06/2018 edition); Form I-485 Application to Adjust Status to Lawful Permanent Resident (07/15/2019 edition); Form I-539 Application to Extend/Change Nonimmigrant Status (02/04/2019 edition); and Form I-129, Petition for Nonimmigrant Worker (01/31/2019 edition).

However, the playing field is now lopsided, as the U.S. Department of State, which was not a named defendant in any of the above lawsuits enjoining enforcement of the DHS Public Charge rule, seems to be going full-steam ahead with implementation of their own new rule, published in the Federal Register on Friday, which mirrors the rule proposed by DHS. This may cause serious, potentially irreversible, trouble for immigrant visa applicants with upcoming interviews at U.S. Consulates abroad. The DOS has now decided to hold off implementation of their new rule until there is an approved form to go with it, since use of the Form I-944 has been enjoined.

Expect more changes to Public Charge adjudications in the coming days and weeks, especially inconsistency in the handling of cases at the National Visa Center and US Embassies for overseas immigrant visa processing.  The DOS rule is likely to be enjoined as well, but not before significant damage is done.

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