By: Richard Hanus
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The New, Sharper Teeth of Existing Public Charge Provisions
Published August 31, 2019
Concerns about new immigrants becoming a “public charge” and dependent on U.S. government resources, have pretty much always been a part of our immigration related legal landscape. Form I-864 Affidavit of Support – a document required for the final stages of nearly all family based immigration filings – is the most well known representation of this concern. Typically U.S. based petitioning family members are required to personally guarantee that their incoming immigrant family member will not become dependent on government aid. Notwithstanding the extent to which immigrants becoming burdens on U.S. society is an actual problem, the Trump administration has recently taken bold steps to ratchet up existing public charge provisions and aggressively expand on existing hurdles intending immigrants must overcome to be issued green cards.
This past Monday, U.S. Department of Homeland Security issued an 837-page final rule detailing in great length these amped up “public charge” obstacles and bases of ineligibility for U.S. residence.
In the past, the use of non-cash benefits by a foreign national, such as Supplemental Nutrition Assistance Program or Medicaid were not considered in the context of the public charge equation. Pursuant to the new rule, set to take effect on October 15, 2019, a new definition of public charge will be applied, and will include recipients of both cash assistance and non-cash benefits.
According to the Trump administration, the new rule will lead to a savings in the billions of dollars since those who qualify for public benefits will either decide not to avail of them or terminate their current benefit to avoid being deemed a public charge. The administration also claims the new rule will act to deter immigrants from being attracted to the U.S. because of decreased public benefits options.
Within days of the new rules release, at least 4 lawsuits were filed by individual states seeking to halt the implementation of the rule. According to the lawsuits, the new rule represents a departure from the long-held principle that an immigrant must be primarily dependent on public benefits, rather than simply avail of them, to be deemed “likely to become a public charge”. It is also alleged that this new rule violates the constitutional principle of equal protection under the laws, violates the Administrative Procedure Act and interferes with states’ rights to protect their residents and with a disproportionate impact of nonwhite immigrants and rooted in “race- and national origin-based animus.” Others are charging that the motivation behind the unveiling of this program is simply politics and playing to an audience who enjoys seeing this type of policy implemented and regardless of necessity or existence of a problem.
Developments in the implementation of this program and how intending immigrants are being affected will continue to be covered here.
PUBLISHED August 31, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois