The Trump Administration’s New “Public Charge” Rule is a Major New Barrier to Immigration

According to the Department of Homeland Security, over a million people were granted permanent residence (“green card”) status in 2017, split about evenly between people who entered the US as permanent residents and people who entered the US without it and later adjusted their status to permanent resident.

One of the traditional hurdles in obtaining LPR status is proving to US immigration authorities that you will not become a “public charge” while in the United States. In other words, you must prove that you will not rely on US government financial assistance to support you. The Trump administration recently issued new rules that render this hurdle a much more difficult one to leap over.

The procedure for obtaining permanent residence is different, depending on whether you file your application in the US (in which case it will be handled by the USCIS) or you file it at a US embassy or consulate abroad (in which case it will be handled by the US State Department). Following is a summary of the changes to USCIS policy concerning the public charge barrier. Scroll down for a summary of the recent changes to State Department policy.

Strictly speaking, it is Congress that makes the law, not the President. But where congressional legislation is absent, or where it is vaguely expressied, bureaucrats appointed by the executive branch can step into fill the gaps in legislation with regulations. The new “public charge” rules are regulations that could theoretically be modified or overruled by contrary congressional legislation at some point, just as court decisions could modify or overrule them.

The gap in legislation that the new “public charge” rules exploits goes all the way back to 1882, when the public charge rule was first formulated by Congress with respect to immigration law. Congress neglected to define the term “public charge”, which allows the USCIS (and the State Department, with respect to applications filed from abroad) to come up with its own definition. The new public charge legislation represents a new definition of the term “public charge.”

For the last 20 years, a prospective immigrant was considered a public charge if he was primarily dependent on government benefits for subsistence. If you originally entered the US on a temporary visa, for example, your application for permanent resident status might be denied if you met the definition of public charge.

Only certain government benefit programs were taken into account, such as:

• Supplemental Security Income (SSI);
• “Welfare” — Temporary Assistance for Needy Families (TANF);
• State and local cash benefits; and
• Government benefits supporting long-term care in a nursing home or mental health institution.

Most permanent resident applicants were (and still are) required to have a sponsor who files an Affidavit of Support guaranteeing the sponsor’s financial support of the immigrant at a level of at least 125 percent of the poverty level — which amounts to a little over $21,000 per year for two people (the sponsor and the immigrant).

Because of the financial sponsorship requirement, and because most immigrants are legally barred from using most government benefit programs, until now very few people have been denied permanent residence on public charge grounds. It looks like this is about to change dramatically however.

The Department of Homeland Security (DHS) issued its final rule on “Inadmissibility on Public Charge Grounds”, with an effective date of October 15, 2019, which is the date that the new rules go into effect for all permanent residence applications filed within the US. Following is a summary of some of the changes:

• Instead of allowing you to gain permanent residence unless you are is “primarily dependent” on government benefits, the USCIS can now deny you permanent residence if it appears that you are “more likely than not” to rely on government benefits in the future. This innovation significantly adds to the discretionary element of a permanent residence application.
• The definition of “government benefits” has been expanded to include all of the abovementioned benefits plus food stamps, housing and rental assistance and non-emergency Medicaid benefits. The use of Medicaid will not be counted against you if you are under 21, or if you are either pregnant or you have given birth within the last 60 days.
• A permanent residence application could be denied if you used any of the foregoing benefits for more than 12 months during any 36-month period — and receiving two such benefits per month counts as two months of use. Nevertheless, the USCIS will not penalize you for the use of such benefits by your spouse or child.
• Triggering the 12-month rule does not result in an automatic denial; however, it will be weighted heavily against you. Even if you used government benefits for less than 12 months, however, you could still be refused permanent residence if the “totality of the circumstances” indicates a likelihood that you will become a public charge.

The “totality of the circumstances” includes many factors, but will almost always include at least:

• Your age (whether you are approaching retirement age, for example);
• Your health;
• The size of your household (three or more is a negative factor);
• How many dependents you have;
• Your family status;
• Whether you have private health insurance coverage;
• Your overall financial status including income, total assets and resources (a personal income of below 125 percent of the Federal Poverty Guidelines is a negative factor); and
• Your education, skills and general employability.

• The foregoing standards do not apply retroactively, which means, for example, that you cannot be penalized for using government benefits used prior to October 15, 2019.
• The USCIS lacks the authority to declare anyone ineligible for any federal, state or local benefit other than immigration itself,
• Most immigrants are ineligible for most of the foregoing benefits that they would be penalized for using; and
• Your applicant for permanent residence will not be prejudiced if you used the Children’s Health Insurance Program (CHIP) or the marketplace subsidies for the Affordable Care Act (“Obamacare”), except for certain uses of Medicaid as mentioned above.

One of the new documentary requirements is the Declaration of Self-Sufficiency” (Form I-944), which must be filed along with your application for permanent residence. This form and the accompanying documentation give you the opportunity to prove that you are not likely to become a public charge in the future.

Form I-944 comes as an addition to Form I-864, used for years to support the applications of prospective immigrants. Form I-864 a form that your permanent resident sponsor must submit concerning his own financial ability to support you.

The statistics look grim for anyone hoping that the impact of the new public charge rules will be marginal:

• Nearly 19 in 20 noncitizens living in the US are subject to at least one negative factor that the USCIS could use against them on public charge grounds;
• More than 40 percent are subject to at least one “heavily weighted” factor that dramatically increases the odds of rejection of a permanent residence application; and
• Over one-third have personal incomes below the “125% of the Federal Poverty Guidelines” standard.

It may well turn out that more than 50 percent of all permanent residence applications filed within the US are rejected, although it is too early to tell at the time of this writing.

The USCIS, under the Department of Homeland Security, is responsible for handling permanent residence applications filed by prospective immigrants located within the United States. By contrast, it is the State Department that handles permanent residence applications filed with US embassies and consulates abroad.

Unlike USCIS policies, which must be grounded in regulations that undergo an extensive public comment process, the State Department has a much freer hand to change its policies — all it needs to do is simply amend the content of its Foreign Affairs Manual. In August 2018, the State Department did exactly that in response to the Trump administration’s policy of restricting immigration on “public charge” grounds.

The effect of the changes in the State Department Foreign Affairs Manual on the public charge immigraton barrier, instituted more than a year earlier than the new USCIS regulations on the same topic, might function as a “crystal ball” by which we might predict the effect of USCIS public charge regulations on domestically-based permanent resident applications. If so, the news is not good – immigration vIsa refusals have skyrocketed since August 2018.

Although the State Department takes essentially the same approach to the public charge barrier that the USCIS does, in some ways the State Department is even stricter. Some of the most important changes to the Foreign Affairs Manual include:

• The use of any public assistance, either cash or non-cash, can be held against you;
• The use of public benefits by your family members can be held against you;
• You may be required to submit proof of private health insurance;
• You may be required to demonstrate employment-related skills, document your working history and perhaps even obtain a job offer in the US prior to immigration;
• If you are relying a Form I-864 financial joint sponsorship application filed by someone else on your behalf, it will be scrutinized more closely than before, and your relationship with your sponsor may be questioned along with your sponsor’s motivation for sponsoring you.
• Anecdotal evidence suggests that the US Consulate in Juarez, Mexico, where all immigration applications from Mexico are processed, is particularly active in rejecting applications on public charge grounds;
• These standards will affect you even if you are located in the US, as long as you are required to leave the US to apply for permanent residence visa at a US embassy or consulate abroad (rather than adjust your status to permanent resident without leaving the US);
• The public charge standard can even be applied to tourist and non-immigrant visas, although it probably won’t be unless special circumstances exist; and
• The public charge barrier does not apply to certain categories of immigrants such as refugees, asylees, victims of certain crimes such as domestic violence, and certain other individuals.

These changes are resulting in the frequent denial of immigrant visa applications even when filed on behalf of spouses of US citizens, a category that was once considered “safe” as long as the marriage was not fraudulent. It is highly likely that you will experience delays even if your permanent residence application is ultimately approved.

A “chilling effect” occurs when, in response to new legislation, regulation or court-made law, someone refrains from exercising a right or a privilege out of fear that it could be used against him. In the immigration context, for example, the enhancement of the public charge barrier could result in immigrants failing to apply for public benefits even if they are entitled to them.

This could happen even with respect to the use of benefits that won’t be held against them by immigration authorities, if all they know about the new policy is something like “you can get deported if you use government benefits.” Imagine the effect, for example, on an immigrant family with a sick child and insufficient health insurance.

An example of how a chilling effect swept through the US with respect to changes in eligibility for public benefits occurred in 1996, when enrollment for public benefits dipped by anywhere from 21 percent to 54 percent (depending on who you ask) due to regulatory reform in the Temporary Assistance for Needy Families (TANF) program.

Please remember that if you are a permanent resident who is applying for US citizenship, you do not have to prove that you will not become a public charge in order to be granted US citizenship.

Only time will tell how extensively the newly enhanced public charge barrier will affect legal immigration. It remains to be seen how strictly the USCIS will enforce the rules, how much difference there will be in the interpretation of these rules among various US embassies and consulates abroad, whether the courts will strike down any of them, and to what extent political winds (the 2020 presidential election, for example) will shift over the next few years.

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