Supreme court allows the public charge rule to be implemented

On Tuesday morning, I woke up to a frantic call from a client who was strongly unsettled by the new public charge policy update. I could tell from her voice that she needed answers and clarification.

It is public knowledge that on Monday, the US Supreme Court lifted the nationwide preliminary injunction imposed by a district judge in New York, preventing the public charge rule from taking effect. In other words, the administration will commence the implementation of the public charge rule except in Illinois, where the there’s a statewide injunction on the public charge rule.

I’m pretty sure most of us have forgotten what the public charge rule is all about. Here’s a little refresher on the nitty-gritty of the rule.

The Department of Homeland Security announced in August of 2019 that it would expand the definition of "public charge," to be applied to people whose immigration to the United States could be denied because of a concern that they would primarily depend on the government for their income. Someone who is “Likely at any time to become a public charge” means anyone who is more likely than not to use public benefits for more than 12 months in any three-year period.

Determining factors:

USCIS will assign weight—negative and positive, as well as heavily negative and heavily positive—to five factors to determine whether the applicant passes the public charge test.

1. Age-Applicants younger than 18 or older than 61 will have to demonstrate why their age will not affect their ability to work. Full time students who do not work will be viewed as heavily negative.

2. Health- Applicants with long term medical needs must show whether their condition affects their ability to work or care for themselves. Having private health insurance (not ACA) is viewed as highly positive.

3. Family status-Household size will include dependents and persons providing the applicant with more than 50% of financial support.

4. Assets, Resources, & Financial Status- The annual income of the applicant is at least 125% of the federal poverty guideline (FPG) or the household income of the sponsor is over 250% of the FPG. An applicant who is gainfully employed and authorized to work is viewed as heavily positive.

5. Education & Skills- DHS will consider the education level of applicant, occupational skills, English proficiency, and status as caregiver.

Public Benefits: The following benefits affect the public charge rule:

• Supplemental Security Income (SSI) • Temporary Assistance to Needy Families (TANF) • State General Cash Assistance Programs • Medicaid Covering Institutionalized Long Term Care • Non-Emergency Medicaid • Supplemental Nutrition & Assistance Program (SNAP, formerly food stamps) • Section 8 Housing Voucher Program • Section 8 Project Based Rental Assistance • Public Housing

The following benefits DO NOT affect the public charge rule:

• Emergency Medicaid (including vaccines) • Children’s Health Insurance Program (CHIP) • National School Lunch Program • Head Start and Public Schools • Foster Care and Adoption • Earned Income Tax Credit • Disaster Relief • Special Supplemental Nutrition Program for Women, Infants and Children (WIC) • Benefits mentioned above if they are received by US Citizen Children

Pretty sure most readers are wondering who the public charge applies to. Hold your horses, because that’s the next thing to be addressed.

The public charge test affects people seeking to be admitted to the U.S. as lawful permanent residents. For instance; the spouse / parent / child of a US citizen applying to become a green card holder will have to show that he or she is not likely to depend on public benefits in the United States.

Additionally, it affects non–U.S. citizens who go through processing in their home country before entering the U.S. This includes people seeking non-immigrant visas, such as tourist or employment-based visas. The changes also could affect green card applicants who are required to leave the U.S. to seek status through consular processing.

Just like every cloud has a silver lining, the rule does not apply to humanitarian immigrants such as refugees; asylees; survivors of domestic violence, trafficking and other serious crimes; special immigrant juveniles; and certain individuals paroled into the U.S. If you are already a survivor of domestic violence with a green card, receipt of public benefits will not affect you at the time you are due to become a citizen.

The new rule expansion could affect green card holders (lawful permanent residents) and lead to deportation. Congress states that a permanent resident can be deported on public charge grounds within the first five years of obtaining their green card – and only if they become a public charge based on circumstances that existed before they obtained their green card. (For instance, a healthy person who is a green card holder suddenly has a life-threatening condition leading to his / her disability, such a person will not be deported on public-charge grounds if they need public assistance).

Most importantly, it does not have a retroactive effect.

The acting deputy secretary of the DHS, Ken Cuccinelli, said the proposed rules would reinforce "the ideals of self-sufficiency and personal responsibility, ensuring that immigrants are able to support themselves and become successful here in America." To further strengthen the new rule, “The Department of Justice (DOJ) intends to conduct a parallel rule making on public charge deportability, and will ensure that the standards are consistent to the extent appropriate.” Further details on this DOJ plan was reported by Reuters recently.

In a nutshell, this move by the Supreme Court will force countless of immigrants to forgo food stamps, housing assistance, healthcare, etc. Hopefully this does not result to having more homeless people, illness and starvation in the immigrant community.

Nnenna Jones is a foreign trained lawyer and a US Department of Justice Accredited Immigration Practitioner. She is an advocate who aims to increase access to justice for low-income immigrants. She writes articles on immigration and provides resources for advocacy on immigration issues including tips for effective advocacy.