Courts Halt President Trump’s Public-Charge Rule

Revised versions of key immigration petition forms suspended

Roy Maurer By Roy Maurer October 22, 2019
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​Three federal courts recently prevented President Donald Trump's administration from enforcing a regulation applying new standards for determining whether a foreign national is a public charge, meaning he or she is likely to use public welfare benefits programs.

The Department of Homeland Security (DHS) rule was scheduled to go into effect Oct. 15 and would have expanded a test to determine whether immigrants applying to enter the United States, extend their visa, or convert their temporary immigration status to permanent residency are likely to depend on public benefits, such as food stamps or Medicaid.

The regulation would primarily affect immigrants seeking permanent residence through family-based sponsorship, although it could potentially affect lower-skilled workers on temporary work visas who are attempting to adjust their status to permanent.

Judge George Daniels of the Federal District Court for the Southern District of New York, who issued a nationwide injunction blocking the policy, said the DHS failed to provide "any reasonable explanation" for changing the definition of public charge.

Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council, a Washington, D.C.-based nonprofit advocacy group for immigrants, explained that federal law banning an immigrant who is likely to become a public charge from gaining permanent residence in the United States has been around since 1882. But Congress never clearly defined what "public charge" meant, so the government interpreted it to mean someone who is primarily dependent on public financial support.

"Since 1999, only those individuals who received more than 50 percent of their income from federal cash-assistance programs were determined to be a public charge," Reichlin-Melnick said. "But in 2018, the Trump administration proposed a broad redefinition of 'public charge,' which would find that someone was a public charge for receiving noncash supplemental benefits like Medicaid or food stamps."

In response to the judge's ruling, U.S. Citizenship and Immigration Services (USCIS) acting Director Ken Cuccinelli said in a statement that "long-standing federal law requires aliens to rely on their own capabilities and the resources of their families, sponsors and private organizations in their communities to succeed. The public-charge regulation defines this long-standing law to ensure those seeking to come or stay in the United States can support themselves financially and will not rely on public benefits."

DHS is expected to appeal the injunctions, while several other courts are currently reviewing legal challenges to the rule.

Following the rulings, the Department of State decided to postpone enforcement of its mirror regulation applying to visa applicants at U.S. consulates abroad. The State Department rule—also originally scheduled to go into effect Oct. 15—would allow consular officers to consider a formula accounting for the applicant's age, household size, income, finances, receipt of public benefits, health, education and skills.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Form Changes on Hold

Newly revised forms timed to accompany the scheduled rule's effective date have also been suspended.

The rule had resulted in significant changes to two widely used petition forms: Form I-129, Petition for a Nonimmigrant Worker, and Form I-485, Application to Register Permanent Residence or Adjust Status, said Cheryl Gardner, an attorney in the Washington, D.C., office of Seyfarth Shaw.

"Specifically, for I-129 petitions requesting a change of status or extension, USCIS proposes to require the petitioner to attest to the employee beneficiary's receipt of public benefits and require documentation if the beneficiary has received benefits," she said. "For I-485 applications, commonly referred to as green card applications, the revised version includes a new series of public-charge questions, the answers to which may require a concurrent filing of Form I‑944, Declaration of Self-Sufficiency, or Form I-864, Affidavit of Support. This would require the submission of additional information, essentially including a net worth and projected earnings assessment, which would necessitate extensive documentary evidence, including documents such as a credit report."

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