New Public Charge Law

In the past four years, we have seen a shift in both the Department of State and U.S. Citizenship and Immigration Services (USCIS) in the application of longstanding immigration laws and policies. For example, federal law already required immigration applicants to prove they would not become a public charge, meaning applicants must prove to the government that they are able to, and will continue to, support themselves if their green card applications are successful[1]. Federal law requires immigration officials to consider a variety of discretionary factors when determining whether an immigrant is admissible, including, but not limited to, the applicant’s age, health, assets and resources, and education and skills[2]. However, after a recent change regarding public charge analysis, there has been an emphasis placed on applying the law under a totality of the circumstances. This includes the applicant’s history as a recipient of public assistance, Medicaid and food stamps, frequency of benefits, and when the applicant received such benefits. In an era of immigration during the COVID-19 pandemic, this could potentially produce a conflict among applicants – to either apply for a green card or seek medical treatment under Medicaid coverage. Lawsuits across numerous states have challenged the validity of these new rules, resulting in injunctions preventing application of the new rule. At the beginning of the year, the Supreme Court issued a ruling in a 5-4 decision that would allow the rules to stay and reversed a hold on the new rules while lawsuits raged.

On November 2, 2020, a federal judge blocked public officials from using the new rule because of concerns that the change in the law was not consistent with federal administrative law. With a turbulent history and an immediate halt to the new law, the public charge determination reverted to an assessment of the previously enumerated factors – education and skills and the like. USCIS has further stated that the office will fully comply with the decision, and as the decision is reviewed by their office, administrators will issue guidance on how immigration applicants should proceed with their residency applications[3].

On November 4, 2020, the Seventh Circuit gave life to the new public charge law, which allows the government to apply the new law for at least two more weeks. This back and forth on the application of the new law has created an unfair application of the law to immigration applicants depending on when their residency applications were processed by the government.

We will continue to monitor any changes with the new law to help take the uncertainty out of your immigration case. Please contact one of our immigration attorneys at (208) 331-9393.

[1] https://apnews.com/article/f440cbe61eb642c99f4d9a47e437c526

[2] https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge

[3] https://www.cbsnews.com/news/judge-blocks-trump-public-charge-rule-immigration-green-card-wealth-test/