Public Charge Requirements for Immigrants Resume as of September 11

Court Order Authorizes Trump Decision to Resume Enforcement After Brief Moratorium

In July of 2020, a New York court decided that the Trump administration could not enforce its expanded public charge requirements for immigrants for the duration of the COVID-19 pandemic emergency. Judge George Daniels, the author of the decision, explained that the public charge requirements were endangering Americans by jeopardizing its ability to combat the spread of the virus. He went on to note immigrants who were either in the process of seeking green cards or expected to do so in the future were disincentivized from pursuing financial or medical relief.

United States Citizenship and Immigration Services (USCIS) complied with the decision at the time, but the Trump administration expediently appealed the ruling. On September 11, 2020, the 2nd Circuit Court of Appeals moved to suspend the lower court’s decision, opening the door to public charge requirements resuming. As a result, USCIS is now once again enforcing the expanded public charge requirements.

Any green card applications submitted after February 24, 2020 must now once again include the completed Form I-944, the Declaration of Self-Sufficiency. Any applications that were approved during the period in which Form I-944 was not required will not need to be reapproved.

Legal observers do not expect the Trump administration to see further challenges on the enforcement of its public charge requirements. The Supreme Court declined to address the matter when the case was escalated by the states of New York, Connecticut, and Vermont, meaning the 2nd Court of Appeals’ decision will likely stand.

Why Enforcement of the Public Charge Requirements Worries Immigration Advocates

Immigrants reeling from the impacts of the continuing COVID-19 pandemic are left in a difficult situation as the public charge requirements continue to be enforced.. Many sectors of the economy were forced to shut down in March 2020, putting an unprecedented number of people out of work. Though certain types of businesses have been permitted to reopen in many states, others remain involuntarily shuttered, and those that are operating do so under reduced capacities.

This leaves swaths of Americans – including many immigrants – without access to previously stable employment. Some that are working are doing so at heavily reduced hours. The federal government introduced some level of support in the early days of the pandemic through the CARES Act, which, among other things, offered direct stimuli and expanded unemployment.

Luckily, eligible immigrant workers do qualify for unemployment income, and accepting it does not contribute toward their being considered a public charge. However, accepting many other types of crucial financial benefits could jeopardize immigrants’ ability to pass the public charge requirements.

Types of benefits immigrants must be extremely cautious in pursuing to avoid becoming a public charge include:

  • Medicaid
  • Social Security income
  • Temporary Assistance to Needy Families
  • Supplemental Nutritional Assistance Plan (SNAP), also known as food stamps
  • Section 8 assistance

Support from the CARES Act has dwindled and many are approaching the end of their unemployment payout periods, leaving many immigrants and their families without clear financial options. Accepting help available will likely preclude them from passing the public charge requirements, placing them in an arguably impossible position. Even with support, reduced income on account of job loss or loss of hours could place an individual or family below the poverty threshold required of Form I-944.

How Medical Care Plays a Role in Public Charge Requirements

The public charge requirements are often referred to as a “wealth test.” While assessing the individual’s income and financial resources are a large component of the test, Form I-944 also evaluates the individual’s medical history and the likelihood they might come to rely on American medical benefits. Remember, in a grand majority of cases, you must undergo with a USCIS-approved physician before being approved for a green card.

The public charge rules create a sort of chilling effect in which immigrants are reluctant to seek healthcare for fear of tarnishing their medical record. This is damaging in any scenario, but during a pandemic, its effects can be especially deadly. Immigrants experiencing symptoms of COVID-19 may hesitate to travel to a hospital should their condition worse, endangering their lives and potentially those around them.

How Public Charge Requirements Could Change in the Near-Future

“Public charge” requirements date back to the late 19th century, when the federal government used the term to discriminate against the immigration of Chinese immigrants. The requirements have metastasized in U.S. immigration law over the following centuries, often suiting the political climate and priorities of the era.

With the present legality of the current public charge requirements cemented by the 2nd Circuit Court of Appeals decision, the Trump administration is likely to continue its enforcement unfettered. However, the immediate future of the policy could change depending on the results of the forthcoming presidential election in November.

Should President Trump be reelected for another term, it is likely enforcement of the public charge requirements in its current form will continue. The Trump administration might be emboldened and choose to enact even more draconian restrictions, making good on campaign promises to curb immigration wherever possible.

If Vice President Joe Biden instead assumes the presidency, it is conceivable his administration will choose to roll back many of the measures introduced by the Trump administration. This is especially possible given how the public charge requirements intersect with COVID-19 safety.

We Can Help You Navigate the Public Charge Requirements

We at Gambacorta Law understand how frustrating and unfair the public charge requirements may seem, especially as it interferes to our response to the COVID-19 pandemic. Unfortunately, for now, Form I-944 is a fact of seeking a green card. Fortunately, our immigration attorneys are prepared to help you through each step of the process and strategize on how to put you in the best possible position. Our lawyers have decades of combined experience and are prepared to leverage every facet of immigration law to get you the results you deserve.

If you are concerned about possibly violating public charge requirements as a result of accepting government benefits or seeking medical care, we want to help. Call (847) 443-9303 or contact us online to schedule your comprehensive evaluation.