By Grant W. Godfrey, Immigration Attorney
On October 11, 2019, judges in three separate cases before the following courts —
- U.S. District Courts for the Southern District of New York,
- Northern District of California, and
- Eastern District of Washington
— enjoined the Department of Homeland Security (“DHS”) from implementing and enforcing its new final rule changing the interpretation of the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (the “INA”). The new rule was set to go into effect just four days later, but has been put on hold until there is a final resolution of these cases.
What is the Public Charge Rule?
The concept of a public charge was first introduced into immigration law by the Immigration Act of 1882, which stated that an immigrant who would be “unable to take care of himself or herself without becoming a public charge” would not be permitted to depart their vessel and enter the United States. Since then, the legal language and interpretation of who is considered likely to become a ‘public charge’ has changed several times, most recently in 1999 by the legacy Immigration and Naturalization Service (now the U.S. Citizenship and Immigration Services, which is a part of the DHS). The 1999 guidance defined a public charge as someone who has or is likely to become ‘‘primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”
Proposed Changes to Determine Public Charge
The new final rule would make several important changes to the public charge determination. For example, it increases the types of assistance programs that the federal government will consider in public charge determinations to include a number of public assistance programs that were previously not taken into consideration in this determination. It also explicitly directs immigration officers to take into account more qualitative factors that were always theoretically available for consideration but were often not considered in practice, including the individual’s age, health, family status, assets, resources, financial status, education, and skills. The new final rule would also change several common forms used in immigration proceedings (e.g. Form I-485, I-129, I-539, I-864, and I-864EZ) to ask direct questions related to this new interpretation.
Separately, on October 11, 2019, the Department of State published an interim final rule changing its interpretation of the public charge determination process, also broadening it and taking into account many of the same factors as DHS. This new rule was also supposed to be effective on October 15, 2019, but after the injunctions the State Department published a notice stating that it is awaiting approval to use a new form before it implements any changes to its rules or policies.
We will continue to monitor the situation regarding the Public Charge Rule and post updates as appropriate. In the meantime please do not hesitate to contact any of the immigration attorneys at Parker Gallini LLP should you have any questions.