The Public Charge Rule: Reflection of a Broken Immigration System

This past February the Immigration and Citizenship Service (USCIS) began applying a new approach to the public charge rule, expanding the reasons why an individual applying to obtain permanent residency[1] in the U.S. could be considered a public charge and therefore inadmissible. This shift in policy is in line with one of the current federal government goals related to immigration: conditioning immigration to the U.S. on the economic desirability of the applicant.

The public charge rule consists of a series of factors that USCIS uses to determine whether a person is likely to become dependent on certain government benefits in the future. Among those factors are the applicant’s age, health, family status, assets, available resources, financial status, education and skills. Further, if an applicant has received any public benefit[2] for a cumulative period of 12 months within a 36-month period, the individual would be deemed a public charge.

If the adjudicating officer determines that the applicant is a public charge or likely to become a public charge, the person will be classified as inadmissible under immigration law, which means that the individual could be denied legal status in the United States based on the determination related to public charge alone.

To be clear, the public charge rule is not new to immigration law. It is a rule that has been in place since 1882, and has progressively evolved with substantial changes in 1953, 1996, 1999 and finally in 2019[3]. The reason behind this policy is the desire to have self-sufficient and economically independent immigrants coming to the U.S., which is a positive attribute to consider. But with the most restrictive and strict enforcement of the rule that comes with the latest development in 2019, the process of obtaining legal status in the U.S. has become extremely burdensome for the applicants.

The practical effect of this change of policy is an increased worry from the immigrant community as to the ability to fulfill the strict requirements in order to be deemed eligible for legal status in the U.S. which translates in fewer applicants for permanent residency. Additionally, the individual applying for permanent residency has the time consuming and added expense of filling out additional forms and submitting documents to try to demonstrate his or her desirability in economic terms. Also, if the individual cannot demonstrate that he or she will not be a public charge, the application for permanent residency will be denied and the legal options left are even more burdensome, such as having to present a case in front of an immigration judge or enduring a long and demanding appeal process. A combination of the new public charge rule and current economically motivated measures in place at the moment, such a proposed increase to the current fees charged by the immigration service and a proposal to increase the fees for appeal in immigration courts, creates in practice an additional economic barrier to immigrants in the process to obtain legal status in the U.S.

It is worth noting that with the implementation of this policy, there are factors that the administration fails to properly address while considering the desirability of an immigrant, such as the family repercussions of not allowing an individual to remain or come into the U.S. By imposing these new requirements on family-based petitions, the administration is effectively curtailing the family considerations of the process, because even if the individual qualifies for a visa or residency based on his or her relationship to a U.S. citizen or a legal permanent resident, that family relationship consideration is set aside if the individual does not meet the economic requirements needed. As such, there will be an increase in family separation and all the concerning effects that come along with it. There will be a further tendency of immigrants to remain in the shadows due to fear and mistrust in authorities. Lastly, the immigration process will effectively exclude more individuals from obtaining immigration benefits in the U.S.

This public charge policy shift, motivated only by economic factors, clearly leaves behind other important human and social factors necessary to determining the desirability of an immigrant to come to the U.S., such as family relationships of the individuals involved in the process, and the long-standing concept that the U.S. is a country of opportunities. A short-sighted approach to immigration such as this one, only increases the current failures of the immigration system, by continuing to exclude well-deserved individuals from coming or remaining in the U.S.

[1] This new rule applies mostly to family-based residency application and certain nonimmigrant applicants, but does not currently apply to applications for permanent residency based on asylum, and other humanitarian basis.

[2] Any federal, state, local or tribal cash assistance for income maintenance such as Supplemental Security Income, Temporary Assistance for Needy Families, Federal, State, local, or tribal cash benefit programs for income maintenance (often called General Assistance in the state context, but which may exist under other names)

Supplemental Nutrition Assistance Program (formerly called Food Stamps)

Section 8 Housing Assistance under the Housing Choice Voucher Program

Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)

Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

Most forms of federally funded Medicaid (with certain exclusions)

(USCIS https://www.uscis.gov/greencard/public-charge)

[3] https://www.cssny.org/pages/public-charge-immigration-explainer