Update on Public Charge
December 19, 2020 § 1 Comment
What is Public Charge?
Public charge is a ground of inadmissibility and is currently defined as “an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.” A ground of inadmissibility is a reason a person is denied a visa, permanent resident card, or admission into the United States. Immigration officers often consider whether an immigrant will become dependent upon government assistance in the future, thus making them a “public charge.” The public charge test does not apply to several classes of immigrants such as U visa holders, T visa holders, asylees, and refugees. The public charge test mainly impacts those seeking permanent resident status through family-sponsored petitions.
Why is Public Charge Controversial?
The public charge rule has sparked much controversy because it makes the green card process much harder for low-income immigrants. The public charge rule, implemented by the Trump Administration, was supposed to ensure that green cards only go to “self-sufficient” and economically independent immigrants. As a result of the rule, many immigrants have opted out of government programs and resources they so desperately need—such as food stamps, SNAP, and even medical treatment during the COVID-19 pandemic for fear that they might trigger public charge.
The controversial public charge rule has undergone a complicated litigation process as it has been struck down and reimplemented multiple times throughout the past two years. Here is a summarized timeline:
- August 14, 2019: The Department of Homeland Security (DHS) published the final public charge rule, effective 10/15/2019.
- October 11, 2019: The Department of State (DOS) published the interim final public charge rule, effective 10/15/2019.
- October 11-14, 2019: Multiple federal courts issued preliminary injunctions of the August DHS final rule, thus prohibiting the rule from going into effect.
- January 27, 2020: The Supreme Court lifted the last of the remaining injunctions. DHS said the rule would take place everywhere except Illinois, effective 02/24/2020.
- February 24, 2020: DOS and DHS final public charge rules went into effect nationwide.
- July 29, 2020: The DHS rule was enjoined nationwide due to the declared national emergency related to the COVID-19 pandemic. The DOS rule was enjoined nationwide indefinitely.
- August 12, 2020: The Second Circuit limited the DHS nationwide injunction to New York, Connecticut, and Vermont. Thus, the public charge rule could take effect in all but the three aforementioned states.
- September 11, 2020: The Second Circuit granted the government’s motion to lift the DHS nationwide injunction. Thus, the public charge rule could take effect nationwide.
- December 2, 2020: The Ninth Circuit enjoined the DHS final rule in various regions. As of now, the public charge rule cannot go into effect in California, Colorado, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, Washington D.C., and Washington State. The public charge rule remains in effect in all other states.
The outcome of the public charge rule remains uncertain due to ongoing litigation. As of now, the public charge rule cannot be implemented in 18 states and the District of Columbia. Furthermore, DOS cannot implement the public charge rule in any cases decided at embassies or consulates. President-elect Joseph Biden, who takes office in January, has expressed his desire for the public charge rule to be reversed; however, the rule has to make its way through the extensive rule-making process.
Noncitizens residing in the United States deserve the care they need during the current public health crisis. Fortunately, USCIS has announced that testing and treatment for COVID-19, including the newly approved vaccine, will not trigger public charge. Furthermore, USCIS has announced it will consider other factors related to the pandemic, such as job and income loss. However, even after the COVID-19 pandemic subsides, we must continue to ensure that all immigrants have access to adequate healthcare and the necessary economic tools to build a more prosperous life in the United States.