Immigration Matters - 2019


The Evolution of the Public Charge under the Trump Administration

By Rishi P. Oza

The current occupant of 1600 Pennsylvania Avenue partially won the 2016 election with a core plank of his presidential platform focusing on the nation's sprawling immigration system. President Trump ran on cracking down on illegal immigration, securing the nation's borders and tightening legal immigration means of entering the country. As America reaches nearly three years into the Trump presidency, the Administration's record of success on immigration is a mixed bag and has been beset by false starts, extensive litigation and constant change at the top of the US Department of Homeland Security. With this churn has come a wave of new policies and regulations aimed at ensuring that newly arriving immigrants are not considered public charges in the United States.

What is a "Public Charge"

What is a “public charge"? The Immigration and Nationality Act does not explicitly define the term, but a long history of cases has provided a generally accepted description to include any individual that is reliant upon local, state or the federal government for support in the United States. Such support includes government assistance with housing, food supplements, health care and other care requiring taxpayer support. Historically, USCIS and the legacy INS before it, used a “totality of the circumstances" test to determine if an individual was a public charge, taking into account a person's age, educational level, capacity to earn a living, health and family situation, work history and support from current US citizens or green card holders. This multi-factor test has been the cornerstone of each agency's analysis in determining whether an individual coming to the United States would be likely to need governmental assistance in order to survive in the country.

With the immigration debate raging in the nation's political discourse, the use of public benefits by immigrants, particularly those that are undocumented, has led to prognosticators on all sides of the issue to debate the merits of widening or narrowing access to public benefits for those in the country. Despite wide-ranging research indicating shows that individual immigrants use public benefits at lower rates than native-born Americans, the Trump Administration has sought to implement a range of reforms aimed at restricting the number of individuals that will be able to establish that they will not become public charges in the United States. These changes have been met with mixed emotions and confusion both inside the agency and with practitioners in the field.

What may be the most impactful reform implemented by the Administration is President's Proclamation of October 4, 2019, requiring immigrants seeking to move to the United States establish that they will not “financially burden the United States healthcare system." Starting November 3, 2019, individuals will have to establish that they will be covered by an approved health insurance plan within 30 days of their arrival or possess sufficient financial resources to pay for reasonably foreseeable medical costs. Although this proclamation exists outside of the standard public charge rules governing financial security for newly arriving immigrants, the purpose and outcome are the same.

Most likely to be impacted by this change are elder immigrants (i.e. parents of United States citizens) that may be coming to the United States to be cared for by their children; those seeking to have their parents immigrate will now have to put into place some type of evidence substantiating that the immigrant will have health insurance or the ability to pay for medical expenses upon arrival, a daunting task given the complexities already associated with the country's healthcare system.

The President's proclamation was coupled with a second announcement from USCIS requiring applicants for a green card to submit an I-944 Declaration of Self-Sufficiency. The I-944, a new sprawling 19-page form, asked applicants to provide extensive amounts of personal information to the government, including credit reports, a listing of all household members and their assets, liabilities and debts, evidence of health insurance coverage and photocopies of educational degrees. In implementing the new Public Charge rules, USCIS sought to both roll out and implement the I-944, along with a number of other revised forms, on October 15, 2019, all without permitting any public preparation ahead of the implementation date.

Not surprisingly, the change was met with resistance from immigrant-rights groups and private practitioners, resulting in extensive court litigation. The implementation was mercifully halted by a federal court mere days ahead of the October 15 launch date, but not before grey hairs sprouted across law offices nationwide.

While the litigation over these new rules are sure to last months if not years, the American public has been put on notice as to the Trump Administration's desire to work within the current legal and regulatory framework in changing the rules as they apply to new immigrants. While pundits will argue as to whether these new rules are fair or foul, the fact remains that changes, like them or not, are going to continue to come while Mr. Trump continues to occupy the White House.

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Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com