“Public charge” refers to a vaguely defined ground of inadmissibility that could stop someone from either entering the United States or receiving a green card. Essentially, it means that in an immigration case, the government decides that an applicant would likely become primarily dependent on the government. However, the immigration statute does not define it. In August 2019, the Department of Homeland Security (DHS) published a new public charge rule that took effect on February 24, 2020, that defines “public benefits” to include more public expenditures.
Under the rule, public charge refers to someone who used more than 12 months of public benefits over three years. If someone uses two benefit programs in one month, it counts as two months of using public benefits. Some benefits affected under the rule include
- Cash assistance for income maintenance;
- Supplemental Security Income;
- Temporary Assistance for Needy Families;
- State and local cash assistance programs;
- Institutionalization for long-term care at government expense in a nursing home or mental health institution, and covered under Medicaid;
- Federally-funded Medicaid (not Medicaid for pregnancy or those under 21 years old);
- Supplemental Nutrition Assistance Program; and
- Section 8 housing assistance and federally subsidized housing.
Anyone applying for entry into the U.S. or an adjustment of status undergo the public charge test. Some exceptions include refugees and asylum applicants, applicants of T or U visas, and individuals granted relief under certain relief acts. Additionally, some processes related to immigration status do not have a public charge test, such as the cancellation of removal, DACA renewal, naturalization, and applying for Temporary Protected Status.
Nonetheless, the public charge rule affects many people’s immigration status and can discourage immigrants from receiving proper health care or other fundamental services. For this reason, a group of applicants for lawful permanent residence, their sponsors, nonprofit immigration legal service providers, and some civil rights groups have sued the Trump administration for using the public charge rules to circumvent immigration law. The plaintiffs argue that the rule’s contradictory policies are meant to illegally prevent all immigrants but the wealthy from becoming lawful permanent residents of the United States.
They also allege that applicants facing the public charge test face unnecessary burdens and costs, with new requirements for the I-944 form, the declaration of self-sufficiency. This form, they argue, contradicts the regulation with no apparent justification, and some of the information it asks for is completely unrelated to the public charge. It, along with the entire new rule, was developed when DHS lacked a lawful secretary. Overall, plaintiffs argue that the president violated the Administrative Procedure Act on 4 counts and the Federal Vacancies Reform Act on 1 count.
If you are unsure how the lawsuit or public charge rule will affect your immigration status, please contact an immigration attorney to figure out what to do next.