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Kevin O'Flaherty

The Trump administration public charge rule has been rescinded. What does this mean for my immigration application?

We recently posted about the Public Charge rule and its effects in this article about 2021 Immigration Law Updates and in this article explaining the new Public Charge rule. There has recently been a new update in this area. On March 9, 2021, the Secretary of Homeland Security issued a statement announcing that they would no longer defend the previous administration’s rule in Court because doing so is neither in the public interest nor an efficient use of limited government resources. The Supreme Court allowed the dismissal of the two cases in front of it that dealt with the public charge rule that very same day. The Seventh Circuit that was going to review a final order issued on Nov. 2, 2020 from the Northern District of Illinois also allowed the dismissal of the government’s appeal. After all these changes in this arena, applicants may be left wondering: what does this mean new immigration applicants?

First, we need to recognize that the Public Charge rule as written under the Trump administration is no longer good law. In November of 2020, the rule was enjoined and vacated by the case of Cook County, Illinois et al. v. Wolf et al., No. 19-C-6334 (N.D.Ill. Nov. 02, 2020) from going into effect on a nationwide basis because it was found to be an arbitrary and capricious rule-making. The Trump administration failed to provide several rationales as to why this rule change was necessary. For instance, DHS did not adequately consider the reliance interests of state and local governments; did not acknowledge or address the significant, predictable collateral consequences of the Rule; incorporated into the term ‘public charge’ an understanding of self-sufficiency that has no basis in the statute it supposedly interprets; and failed to address critical issues such as the relevance of the five-year waiting period for immigrant eligibility for most federal benefits. Id. As a result, all of the policy guidance that was issued during the last few years of the Trump administration is no longer good law.

In this article, we discuss changes to the public charge rule, specifically regarding:

  • What is the rule concerning public charge now?
  • What benefits are covered under the public charge rule?
  • What other changes come with this removal of the new public charge rule?

What is the rule concerning public charge now?

Since the new public charge rule is no longer going to be in effect, this does not mean that there is no longer a public charge rule. What this means is that we are now reverting back to the rule that was in place previously. This older rule is based on a 1999 field guidance memorandum from the now defunct Immigration and Nationality Service (INS). An immigrant is likely to become a ‘‘public charge’’ if they become ‘‘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.’’ Institutionalization for short periods of rehabilitation does not constitute such primary dependence.  

To make it easier to digest: an immigrant is going to be determined to be a public charge if they primarily depend on the government for their survival. The government can show this dependence from the receipt of public benefits within 5 years of admission. However, these public benefits are limited to: Temporary Assistance for Needy Families (TANF) or the State’s equivalent and Social Security Income (SSI). These TANF like benefits are generally called “General Assistance” programs for each state. The other benefit that this rule is limited towards is the receipt of Medicaid to cover long term institutionalization expenses. This only applies if the individual who is immigrating into the USA applies for benefits for reasons that existed prior to their immigration into the USA. If, for instance, an applicant receives TANF or Medicaid benefits due to an accident that occurred after they became lawful permanent residents (i.e. an accident or health issues that arose unexpectedly), they are unlikely to be considered a public charge.

What benefits are covered under the public charge rule?

As mentioned above, under the old public charge rule the only benefits that will fall into the equation will be TANF and Medicaid for long term care.  

This means that all the other benefits that the Trump administration was seeking to add to the rule are no longer going to be considered. These benefits were: Section 8 housing, rental assistance, housing assistance, Supplemental Nutrition Assistance Program (SNAP), nonemergency Medicaid.

If you have further questions about the public charge rule our recommendation is still as follows: before you decide on whether you should stop your family from receiving benefits, you should speak with an immigration attorney. To be affected by the public charge, a person needs to be personally receiving benefits. Your family may need those benefits to live and maintain their health. Also, there may not be a pathway to status for you right now. This would mean that you are not going to get a public charge determination soon. The rules could change in the future by the time you are eligible for an immigration benefit. Furthermore, there are ways around the receipt of benefits that could make you eligible to become a resident without stopping public benefits for your family members. It all hinges on the specific facts of your case. To give you a fuller and complete answer, we would have to speak with you and learn the specific facts of your case.

What other changes come with this removal of the new public charge rule?

Two main changes: There is no longer a need to submit form I944 and the newly created heavily weighted factors are no longer going to be in play for new applications. It is still equally important to find a sponsor (or cosponsor(s)) that can help the applicant show that their income will be above and beyond 125% of the Federal Poverty Level for a family of their size. This, in most instances, will be the silver bullet a person needs to show that they are unlikely to be a public charge. This change in rules should make it relatively easier for people to once again immigrate into the USA and reunite with their families.

If you have further questions or need help with your immigration application, we would be glad to help. Please give the law offices of O’Flaherty Law a call at 630-324-6666 to schedule an appointment to speak with an attorney.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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