Update on Public Charge (03/2021)

This is an updated version of the December 19, 2020 article: https://globalthinkers.wordpress.com/2020/12/19/update-on-public-charge/

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.

Timeline

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.
• February 2, 2021: President Biden issued Executive Order 14,012, directing the Secretary of DHS to review the actions of the DHS related to the implementation of the public charge rule. 
• March 9, 2021: In its review, DHS determined that continuing to defend the public charge rule is neither in the public interest nor an efficient use of limited government resources. DHS announced that DOJ will no longer pursue appellate review of judicial decisions invalidating or enjoining its enforcement.

Conclusion

As of now, the public charge rule is no longer in effect and the former regulatory text prior to the 2019 rule has been restored. However, USCIS may be required to implement the Final Rule once again if enough states intervene in cases calling for the reinstatement of the rule. President Joseph Biden has made it clear that he opposes the reinstatement of the public charge rule.

Noncitizens residing in the United States deserve the care they need during the current public health crisis. Hopefully, with the rule no longer in effect, immigrants in the United States will feel a sense of relief that they may get the medical attention they need—including a vaccination for COVID-19—without fear of triggering public charge. 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.

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