The Trump administration’s “Inadmissibility on Public Charge Grounds Rule” places an extra layer of difficulty on immigrants seeking green cards through an Adjustment of Status or through consular proceedings. According to the U.S. Citizenship and Immigration Service (USCIS), the Department of Homeland Security (D.H.S.) published an Inadmissibility Rule on August 14, 2019. Since that date, several federal courts have enjoined the implementation of the rule. The U.S. Supreme Court removed those injunctions, which means that all applications and petitions submitted after February 24, 2020, must comply with the rule.
A broad public charge rule dates back to the Immigration Act of 1882. The Trump administration’s Inadmissibility Rule defines explicitly what information USCIS can request. The 2019 rule also states that a person will be considered a public charge if they receive one or more public benefits (as set forth in the new rule) for more than 12 months in any 36-month period. The new rule means many applicants are inadmissible even though many immigrants who have received benefits in the past have become productive residents and citizens.
A federal district judge Northern District of Illinois, in November 2020, ruled that the 2019 Inadmissibility on Public Charge Grounds Rule violates the Administration Procedures Act (A.P.A.). The U.S. Seventh Circuit Court of Appeals (which includes Illinois, Indiana, and Wisconsin) stayed that judge’s ruling.
The background of the Public Charge Rule
The USCIS discussion of the public charge rule and the 2019 Trump administration’s specific 12-month public benefit use (in a 36-month) period state that under the Immigration and Nationality Act, a foreigner who seeks admission to America or seeks to adjust their status – to that of a lawful permanent resident is not admissible if, when the application is filed, the alien is likely to become a public charge.
The 2019 rule focuses on green card applicants, many of whom seek Lawful Permanent Resident (LPR) status by submitting an Adjustment of Status (A.O.S.) application. The A.O.S. application (an I-485 Form) is used by immigrants to seek green cards based on employment, relationship to a current LPR or U.S. citizen, or for other reasons.
The 2019 rule provides that “public benefits” include:
- Supplemental Security Income
- Temporary Assistance for Needy Families
- Supplemental Nutrition Assistance Program (SNAP) (formerly called food stamps)
- Federally funded Medicaid (with certain exclusions).
- Section 8 Housing Assistance under the Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
- Public Housing (under the Housing Act of 1937, 42 U.S.C. 1437 et seq.)
- Other cash benefit programs
There are exclusions for:
- Asylum seekers
- Pregnant women
- Children and family members of people serving in the U.S. Armed Forces
The 2019 Inadmissibility Rule permits USCIS officers the right to consider a variety of factors to review the public charge issue including the applicant’s
- Family status
- Financial status including assets and resources
- Education and skills
- Prospective immigration status
- Other factors
- Affidavits of Support
- USCIS Form 944 – Declaration of Self-Sufficiency
USCIS Form 944 is complicated to complete. It’s an 18-page form that each family member must complete. All the requested information must be fully documented with attached materials. Some filing can include hundreds of pages.
Some of the benefits that aren’t included in the review are disaster relief, emergency medical care, children’s health insurance programs, and many other programs and benefits.
The federal judge’s ruling
Federal District Judge Gary Feinerman ruled that the 2019 Inadmissibility Rule violates the Administrative Procedures Act (A.P.A.) because the rule is “arbitrary and capricious” and because the Inadmissibility Rule does not comply with the A.P.A. The A.P.A. governs how federal administrative agencies can propose and establish regulations.
Based on the Seventh Circuit’s stay, green card applicants must comply with the Inadmissibility Rule, including filing Form 944.
The Inadmissibility Rule is especially problematic now because thousands of A.O.S. applications were filed in October to take advantage of the cut-off dates outlined in the U.S. Visa Bulletin. Applicants who were normally required to use the Visa Bulletin’s Final Action Dates Chart were permitted, for October, to use the Dates for Filing Chart – which is a later date. The later the cut-off date, the greater the number of applications that can be considered for a green card.
Please speak with one of our experienced Austin immigration attorneys today.
At Lyttle Law Firm, our immigration lawyers keep current with how court decisions affect your immigration applications and petitions – and what rules may disqualify you. We fight for people nationwide. Contact us at 512.215.5225 or via our online form to schedule an appointment.