Block on ‘Public Charge Rule’ Limited to Three States

Roy Maurer By Roy Maurer August 21, 2020
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​A federal appellate court narrowed an earlier order blocking the nationwide implementation of the Trump administration's so-called public charge rule to the three states in its jurisdiction: Connecticut, New York and Vermont.

The public charge rule bars immigrants deemed likely to use public assistance programs from obtaining permanent U.S. residency. On July 29, a New York federal judge decided that the rule was hurting the national effort to contain COVID-19 by discouraging immigrants from requesting public assistance, including medical care.

The appellate court ruled that the federal judge's block only applied to Connecticut, New York and Vermont.

Since 2019, when the Department of Homeland Security (DHS) published the final version of the new rule, "there have been multiple court challenges, and the rule has been widely criticized," said Minnie Fu, an attorney in the Washington, D.C., regional office of Jackson Lewis.

First, several courts issued injunctions halting the rule before it could go into effect Oct. 15, 2019, Fu said. By Feb. 21, the U.S. Supreme Court had lifted the last remaining injunction, and the rule went into effect on Feb. 24. The rule was once again halted nationwide July 29 by the federal district court in New York.

"Two subsequent federal appellate court decisions were also released dealing with injunctions based on the public charge rule's overall legality, notwithstanding the COVID-19 pandemic," said Alexandra Holland, an attorney in the Atlanta office of Ogletree Deakins.

On Aug. 4, the 2nd Circuit upheld a separate nationwide injunction but again limited its applicability to residents of Connecticut, New York and Vermont. The following day, the 4th U.S. Circuit Court of Appeals reversed a nationwide injunction by a district court in Maryland, causing a split between the federal circuit courts and allowing the rule's enforcement to proceed.

Dan Hetlage, a DHS spokesperson, said the agency was reviewing the latest 2nd Circuit order to "determine the administrative viability of reimplementing" the policy "where applicable."

The State Department's version of the public charge rule, which applies to people from abroad applying for permanent resident visas, was also blocked.  

The Rule Explained

The updated rule, first established by Congress in 1882 to screen out permanent residence applicants deemed at risk of becoming dependent on government benefits (referred to as being a public charge), expands the definition of who can be disqualified from immigrating to the U.S.

The Clinton administration in 1999 issued the first guiding specifics. Being a public charge was demonstrated by either using public cash welfare or government-subsidized long-term care. But very few immigrants have ever been denied green cards on public charge grounds, because most are not eligible for welfare benefits and are generally required to have a financial sponsor.

The Trump administration's updated regulations enlarge the list of disqualifying government benefits to include use of food stamps, rental and housing assistance, and Medicaid. The new rule also provides immigration officers with an expanded list of criteria to consider when determining whether a visa applicant is likely to become a public charge at any point in the future.

"To make that determination, officers will review the totality of the circumstances, including an applicant's income, age, health, family status, assets, credit scores, liabilities, education and skills including English language, the visa classification and receipt of public benefits," said Sarah Barnhill, an attorney in the Omaha, Neb., office of Jackson Lewis.

She said that negative factors in that assessment will include receipt of public benefits for more than 12 months within any 36-month period; being unemployed and without a reasonable prospect of employment; and having a diagnosed medical condition that will require extensive medical treatment and no financial resources to pay for it. On the other hand, positive factors will include things like household income being above the threshold; a history of employment in the U.S.; and private health insurance for use in the U.S.

Foreign nationals and their employers should expect to spend more time preparing and processing additional documentation. "Since the rule went into effect, adjustment of status applicants have been required to submit the new Form I-944, which requires submission of substantial documentation, including information related to household income and assets, debts and liabilities, credit history, use of public benefits, education level, and health insurance," Holland said. "In addition, [temporary worker] visa applicants seeking to change or extend their status have been required to make attestations regarding their receipt of certain public benefits."

But foreign national workers sponsored by U.S. employers shouldn't panic, as they are not generally eligible for public benefits and either sit above the $21,137 annual income threshold (in the case of higher-paid H-1B and EB workers, for example) or are not eligible for green cards (in the case of lower-paid H-2A and H-2B workers, who would have to be sponsored by an employer for another permanent job in order to be eligible, which rarely happens).

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