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Law360 (August 3, 2020, 2:47 PM EDT )
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| Dominique Pando Bucci |
These injunctions are a big win for immigrants and advocates, who argue that the new public charge regulations dramatically increase the number of immigrants who would be ineligible for green cards, regardless of whether they have been able to support themselves and their families in the past.[2]
The public charge regulations also have a chilling effect on families, who will forego essential services, such as testing, treatment and preventative care related to COVID-19, to avoid harming their chances of becoming permanent residents.
During the pandemic, DHS and the State Department are enjoined from enforcing the public charge regulations and corresponding Form I-944, known as a declaration of self-sufficiency, and Form DS-5540, known as the public charge questionnaire.
But immigrants are not getting a free pass.
The injunctions do not affect DHS and the State Department's responsibility to enforce the public charge ground of inadmissibility under Immigration and Nationality Act Section 212(a)(4) itself. Even without Forms I-944 and DS-5540, the agencies are likely to take a close look at the ability of green card applicants to support themselves and their family, as provided for in the INA.
And although DHS and the State Department used to be satisfied that most applicants would not become a public charge if their sponsor submitted a legally sufficient Form I-864, known as an affidavit of support, the new regulations make it clear that the agencies have shifted their focus from the sponsor's income and assets to the applicant's own ability to be self-sufficient.
It follows that practitioners should continue to submit sufficient evidence that demonstrates that the applicant is not likely to become a public charge, even though Forms I-944 and DS-5540 are not required while the injunctions are in place.
Background of the Public Charge Ground of Inadmissibility
The public charge ground of inadmissibility originated more than 125 years ago in the Immigration Act of 1882.[3]
Under INA Section 212(a)(4), DHS and the State Department must deny admission to the U.S. or adjustment of status if the applicant is "likely at any time to become a public charge."
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act amending the INA.[4] That amendment codified at INA Section 212(a)(4)(b) five minimum factors consular officers and immigration services officers must consider in a public charge adjudication: (1) age, (2) health, (3), family status, (4) assets, resources and financial status, and (5) education and skills.
Separately, the Illegal Immigration Reform and Immigrant Responsibility Act also established the affidavit-of-support requirement in INA Section 213A for most family-based and some employment-based immigrant visa and adjustment-of-status applications.
In 1999, the Immigration and Naturalization Service, now U.S. Citizenship and Immigration Services, issued interim field guidance regarding deportability and inadmissibility on public charge grounds, which defined the term "public charge" as an individual "primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense."[5]
The guidance also provided that certain cash benefits would be considered in public charge determinations.
DHS' final rule on inadmissibility on public charge grounds, which went into effect on Feb. 24, 2020, and is now enjoined, was meant to supersede the 1999 interim field guidance, but did not change the INA.[6] The final rule redefines public charge and public benefits, provides a framework for immigration services officers to weigh the public charge factors under the totality of the circumstances, and requires the submission of the new Form I-944 and extensive supporting evidence.
While the public charge final rule is enjoined, USCIS has stated that it will revert to following the 1999 interim field guidance.[7] And because the focus in the public charge inadmissibility analysis is still on the applicant, DHS is likely to actively consider the five factors laid out in the INA in addition to the affidavit-of-support requirement.
Inadmissibility on Public Charge Grounds Final Rule
Public charge is a question of admissibility. All immigrants and nonimmigrants are subject to that inquiry and the public charge final rule, unless exempted under the INA. Classes of immigrants exempted include refugees, asylees, certain T and U nonimmigrants, certain Violence Against Women Act self-petitioners, Afghan or Iraqi interpreters, Cuban adjustment applicants, special immigrant juveniles and others.
Even though the public charge ground of inadmissibility applies to nonimmigrants, DHS did not apply its new regulations to nonimmigrants, and nonimmigrants did not have to submit Form I-944. Instead, USCIS updated the existing nonimmigrant Forms I-129 and I-539 to include questions about the beneficiary's receipt of public benefits in the past. While the injunctions are in place, those questions should be left blank on the forms.[8]
The enjoined final rule redefines "public charge" as someone who is likely to receive at any time in the future public benefits for more than 12 months in the aggregate within a 36-month period.
The regulations also redefine "public benefits" and add noncash assistance benefits into the mix. Under the 1999 interim field guidance, only certain cash benefits were considered — i.e., Supplemental Security Income, Temporary Assistance for Needy Families, and general assistance in the state context. Under the new public charge regulations, DHS and the State Department also consider receipt of noncash benefits — i.e., Medicaid, Supplemental Nutrition Assistance Program and public housing.
While the final rule is enjoined, DHS and the State Department will go back to only consider the public benefits noted in the 1999 interim field guidance.
The final rule also provides a framework for officers to weigh the public charge factors under the totality of the circumstances. Over 45 public charge subfactors are assigned heavily positive, heavily negative, positive and negative weight. And Form I-944 exists to collect that information and support evidence.
Heavily weighted positive factors are household income, assets or resources of at least 250% of the federal poverty guidelines — for example, $43,100, $54,300 and $65,500 for households of 2, 3 and 4 members, respectively; work authorization and current employment with an annual income of at least 250% of the federal poverty guidelines; and private health insurance.[9]
Heavily weighted negative factors are unemployment, no recent employment history or no reasonable prospect of future employment; public benefits receipt for more than 12 months in the aggregate within 36 months; a medical condition that requires extensive treatment or institutionalization or a medical condition that interferes with the ability to provide for oneself, attend school or work, and the applicant is uninsured or lacks financial resources to pay for medical costs; and a previous finding of inadmissibility as a public charge by an immigration judge or the Board of Immigration Appeals.
It should be noted, that USCIS states that being primary caregiver of a child, or an elderly, ill or disabled person in the caregiver's household, may outweigh lack of employment or employment history.[10]
While the injunctions are in place, USCIS will follow the 1999 interim field guidance instead of the final rule.
Conclusion
The public charge injunctions provide a much-needed reprieve from the Trump administration's unwavering attacks on immigration.
Practitioners, however, must not let their guard down and can no longer rely on the sponsor's financial status alone. The green card applicant must also provide supporting evidence that demonstrates that the applicant is self-sufficient and not likely to become a public charge.
Dominique Pando Bucci is an associate at Kurzban Kurzban Tetzeli and Pratt PA and a German Chancellor Fellow of the Alexander von Humboldt Foundation.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] New York v. DHS
, No. 1:19-CV-07993 GBD, Doc. 221 (S.D.N.Y. July 29, 2020) (injunction against DHS); New York v. DHS , No. 1:19-CV-07777 GBD, Doc. 195 (S.D.N.Y. July 29, 2020) (injunction against DHS); Make the Road NY v. Cuccinelli, No. 1:19-CV-11633 GBD, Doc. 88 (S.D.N.Y. July 29, 2020) (injunction against DOS).[2] As Public Charge Rule Allowed to Take Effect, Congress Must Act Now to Protect Immigrant Communities, Says Immigrant Legal Resource Center, Immigrant Legal Resource Center (Jan. 27, 2020), https://www.ilrc.org/public-charge-rule-allowed-take-effect-congress-must-act-now-protect-immigrant-communities-says; American Immigration Council Condemns Trump Administration's Proposed "Public Charge" Regulations, American Immigration Council (Sept. 23, 2018), https://www.americanimmigrationcouncil.org/news/american-immigration-councils-statement-trump-administrations-proposed-public-charge; LPR Applicants, Their Sponsors, and Immigrant and Civil Rights Groups Sue Over Law Violations in Implementation of Trump Administration's Public Charge "Wealth Test," American Immigration Lawyers Association (July 13, 2020), https://www.aila.org/advo-media/press-releases/2020/lpr-applicants-their-sponsors-and-immigrant.
[3] Immigration Act of 1882, Pub. L. 47–376, 22 Stat. 214 (Aug. 3, 1882), https://www.loc.gov/law/help/statutes-at-large/47th-congress/session-1/c47s1ch376.pdf.
[4] Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) (codified as amended in scattered section of 8 U.S.C.), https://www.govinfo.gov/content/pkg/PLAW-104publ208/pdf/PLAW-104publ208.pdf.
[5] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999), https://www.federalregister.gov/documents/1999/05/26/99-13202/field-guidance-on-deportability-and-inadmissibility-on-public-charge-grounds.
[6] Inadmissibility on Public Charge Grounds Final Rule, 84 FR 41292 (Aug. 14, 2019), https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-17142.pdf, as amended by 84 FR 52357 (Oct. 2, 2019), https://www.govinfo.gov/content/pkg/FR-2019-10-02/pdf/2019-21561.pdf.
[7] Injunction of the Inadmissibility on Public Charge Grounds Final Rule, U.S. Citizenship and Immigration Services (July 31, 2020), https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/injunction-of-the-inadmissibility-on-public-charge-grounds-final-rule.
[8] Injunction of the Inadmissibility on Public Charge Grounds Final Rule, U.S. Citizenship and Immigration Services (July 31, 2020), https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/injunction-of-the-inadmissibility-on-public-charge-grounds-final-rule.
[9] Heavily Weighted Factors, U.S. Citizenship and Immigration Services, 8 USCIS-PM, Pt. G, Ch. 14, https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-14.
[10] Primary Caregiver, U.S. Citizenship and Immigration Services, 8 USCIS-PM, Pt. G, Ch. 11 ¶A1, https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-11#footnotelink-13.
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