August 13, 2020, Public Charge Rule Update
U.S. Second Circuit Judge Peter W. Hall narrowed Judge George Daniels’ July 29, 2020, nationwide-wide injunction. The new update limits the injunction to Connecticut, New York, and Vermont, which are under the Second Circuit’s jurisdiction. This ruling means the rest of the country must adhere to the Trump administration’s public charge rule changes. USCIS is reviewing the new ruling.
On July 29, 2020, U.S District Judge George Daniels issued a nationwide injunction of the Trump administration’s changes to the public charge rule. Daniels cited the COVID-19 pandemic and the public charge rule’s potential threat to public health as the reason for the decision.
In addition to blocking USCIS from implementing the new rule, the nationwide injunction also stops the Department of State from enforcing its own version of the new rule at U.S. embassies and consulates. The decision also halts President Trump’s proclamation suspending the entry of immigrants who might burden the U.S. healthcare system.
USCIS has indicated they will follow the injunction.
“As long as the July 29, 2020, SDNY injunction is in effect, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020 to the adjudication of any application for adjustment of status on or after July 29, 2020,” states USCIS in a new alert. “In addition, USCIS will adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition.”
Trump Administration’s Public Charge Rule, Explained
Being considered a possible public charge has been a ground of inadmissibility that has prevented nonimmigrants and those seeking permanent residence from entering the U.S. for many years.
There was no formal guidance for the public charge rule until 1996 when the I-864 Affidavit of Support form was created, which is used for family-based cases. Additional guidance was added in 1999 where potentially being primarily dependent on the government for subsistence through any public cash assistance program like Supplemental Security Income or institutionalization for long-term care at the government expense could be considered a public charge. The public charge test looked at the totality of circumstances.
The Trump administration’s change is the first one since 1999. It not only looks at an applicant’s potential for being a public charge but also the receipt of past benefits. The rule applies to both those seeking admission into the country and those adjusting their status. The rule started taking effect for all applications submitted on or after February 24, 2020.
The rule states that if a noncitizen receives public benefits for more than 12 months in any 36-month period, they could be considered in public charge. The benefits are considered in aggregate, so if in one month an applicant received assistance from three different benefits, that would be considered three months of benefits used.
Below are examples of the programs considered in the new rule in addition to those that were already considered a public benefit in 1999:
- Supplemental Nutrition Assistance Program (SNAP)
- Section 8 housing
- Section 8 project-based rental assistance
- Non-emergency Medicaid benefits
- Section 9 federal housing subsidies
Free and reduced lunch and Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) do not count against applicants. Below are other exemptions:
- School-based services for students below the secondary education level
- Benefits for people under 21 years old
- Benefits used by pregnant women during pregnancy and 60 days after giving birth
- Military families
- Children who will acquire citizenship
For judging the likelihood of being a public charge, there are heavily weighted factors that USCIS will look at, including:
- The current age to see if the applicant is at an employable age
- Health conditions that affect the applicant’s ability to take care of themself and work or go to school
- Household size
- Gross household income
- Cash assets and non-cash assets that can be converted to cash within 12 months
- Credit history
- Possession of private health insurance
- Skill set
- English language proficiency
- Prospective immigration status
- If the applicant was previously found inadmissible
Public Charge Forms I-944 and DS-5540
USCIS uses form I-944 to gather much of the information in the weighted factors while the Department of State uses form DS-5540 for those applying through U.S. embassies and consulates.
Form I-944, Declaration of Self-Sufficiency
For most of those adjusting their status through the I-485 form, they will have to submit an I-944. The I-944 is required for each individual family member seeking adjustment of status including children, although their parents can fill out the forms for them and use the same information.
Applicants entering the country for humanitarian reasons as well as the spouses and children of deceased U.S. soldiers are exempt from filling out I-944. You can find the full exemption list on the I-944 instruction sheet.
The form asks details about most of the heavily weighted factors including assets, income, liabilities, household information, education, skill sets, and more. The form must be submitted with supporting documentation including tax returns, pay stubs, deeds, proof of education, and more.
DS-5540, Public Charge Questionnaire
The Department of Sate’s form DS-5540 is similar to the I-944 in terms of the details asked. If the applicant is applying for an employment-based visa, a letter from the employer with their future salary and benefits can be used as supporting documentation for the income portion of the form.
The main difference between both forms is that for nonimmigrants the DS-5540 is not automatically required. It is up to the consular officer’s discretion as to whether an applicant needs to fill out the form. In addition, the consular officer can simply just ask the form’s questions orally to the applicant during the interview portion of the visa process.
The New Public Charge Rule and COVID-19
When the coronavirus pandemic reached the U.S., USCIS submitted an alert that testing and treatment relating to COVID-19 will be exempt from the public charge test. However, for Daniels, the alert was not sufficient.
“The Alert is unlikely to remedy Plaintiffs’ harms considering its limited scope in the context of the Rule,” wrote Daniels. “As Defendants explain, an immigrant’s enrollment in Medicaid will only be excluded from the public charge analysis if the immigrant enrolls ‘solely in order to obtain COVID-19-related testing, treatment, or preventative care’ and provided the immigrant ‘disenrolls from Medicaid once he or she no longer needs COVID-19-related care, or provides evidence of a request to disenroll.'”
Daniels notes that when someone enrolls in Medicaid they usually do it for a number of health reasons. There is no way for someone to ask health-care professionals to only treat them for COVID-19 and nothing else.
“At a minimum, such ambiguity and strict limitations belie any notion that the Alert adequately encourages immigrants to seek medical treatment or preventative care related to COVID-19,” wrote Daniels. “Any policy that deters residents from seeking testing and treatment for COVID-19 increases the risk of infection for such residents and the public.”
Daniels also noted that the USCIS alert did not provide any guidance regarding the economic destruction that has occurred due to COVID-19. Daniels notes that the use of economic assistance will still be considered in the public charge rule despite the alert.
“The country is experiencing a sharp economic downturn, as a predictable direct and indirect effect of the pandemic,” writes Daniels. “Accordingly, many immigrants and citizens alike, who otherwise would not be classified as public charges under any reasonable definition, are experiencing substantial financial burdens as employers slash jobs, benefits, and pay. Yet, the Rule offers no meaningful relief or incentive for immigrants in such circumstances to confidently access supplemental benefits, such as SNAP. The Alert provides no articulable standard to which one should conform one’s conduct.”
How Our Immigration Attorneys Can Help
This is likely not the end of the public charge rule as the government can appeal Daniels’ decision. With changing immigration laws and regulations, it is important to have an experienced immigration attorney that can help you navigate the process.
At our firm, our highly experienced immigration attorneys are well versed in both employment-based and family-based immigration and are always up to date to the last immigration changes. With our expertise in the field, we will help you avoid the common immigration pitfalls. To schedule a consultation with one of our immigration lawyers today, you can simply fill out this contact form.