Wealth Test to Continue Despite Problematic Historical Origins
The term “public charge” has a long history in the United States. Its origins date back to the 1880s, when the U.S. government instituted restrictions on Chinese immigrants under the false premise that they “endangered the good order” of American communities. To become a “public charge” is to become on a financial burden on the larger community.
In the centuries since then, “public charge” restrictions have metastasized, often being used as justification to enforce prejudices and limit immigration from lower-income populations. The underlying argument justifying the practice seldom changes: A “public charge” consumes too many benefits yet contributes too little to the country from which it siphons resources. Instead, an immigrant must be expected to be “self-sufficient” and not rely on handouts.
In more recent years, public charge rules were adjusted under President Bill Clinton to only limit immigration from those receiving certain types of government benefits or those who would require long-term institutionalized care. In 2019, however, President Trump dramatically expanded the scope of what has become known as the public charge test. The change has been controversial and the subject of judiciary challenges, some of which are only just now being resolved. Below, we cover recent developments involving these newer requirements, how they have changed a result of the COVID-19 pandemic and recent court rulings, and what we might expect in the near-future.
How the Public Charge Test Expanded Under the Trump Administration
Reducing immigration was a central pillar of President Trump’s election campaign and a promise his administration has made good on in his initial few years in office. In addition to introducing new obstacles for those seeking asylum at the border and freezing the issuing of several types of popular work visas, one of the Trump administration’s biggest immigration policy changes centers on the public charge test.
Enacted in 2019, the new, bolstered rules empower United States Citizenship and Immigration Services (USCIS) agents to reject green card applications if they suspect the applicant is or could become a public charge. Applicants must now proactively “prove” they will meet this requirement through filing Form I-944, the Declaration of Self-Sufficiency. This form requires an exhaustive inventory of you and your family’s finances, health, and other personal details.
Some of the elements immigrants must include on the Declaration of Self-Sufficiency include:
- Identifying details for you, members of your household, and any financial dependents you support or are supported by
- Federal tax returns
- Documentation supporting any income not listed on your tax returns
- Thorough inventory of all liquidable assets
- Clarification on any bankruptcies
- Information on your health insurance
- Information on any debts and liabilities
- Inventory of any current or past use of United States public benefits
- Your educational history, including any occupational training
- Explanation for any past use of USCIS fee waivers
The Trump administration’s new rules greatly expanded the number of disqualifying public benefits programs. An immigrant now cannot benefit or expect to benefit from any combination of Social Security income, Medicaid, food stamps, Temporary Assistance to Needy Families, institutionalization, or Section 8 assistance for greater than 12 months in a 36-month period. Anyone who has ever benefitted from any combination of these programs for more than 12 months in the past can also be denied.
Though becoming a “public charge” is often primarily associated with accepting help from government benefit programs, USCIS could now reject applicants under the new rules for numerous other reasons, including insufficient income, anticipated medical risks, and a lack of employable skills. Immigration advocates continue to argue that Form I-944 and its contents require too much of immigrants and give USCIS agents excessive leeway in justifying rejections.
How the COVID-19 Pandemic Impacted the Public Charge Rules
Many emergency efforts and temporary changes in policy were enacted in numerous sectors of government as the COVID-19 virus began to spread throughout the United States. Many businesses suffered mandatory closures as a matter of caution, and even as the country has slowly reopened, economic damage has been severe. The United States hit the highest unemployment levels since the Great Depression, and many have been left without work.
In July of 2020, Judge George Daniels of New York ruled that the public charge wealth test must not be enforced for the duration of the COVID-19 national emergency. The judge argued that the rules were hampering efforts to combat the virus and were doing more harm than good. Many immigration advocates had pointed out that immigrants were hesitant to pursue medical care after becoming afflicted with the virus; others who had lost their jobs were cautious about requesting financial support, nervous that their plight would disqualify them. At the time, USCIS complied with the judge’s order.
How a New Court Order Has Empowered the Trump Administration to Resume the Wealth Test
The federal government successfully appealed the July decision. The 2nd Circuit Court of Appeals decided to limit and eventually suspend the lower court’s ruling in its entirety, opening the door for USCIS to resume the public charge requirements.
Following the release of the decision, USCIS swiftly updated its protocols and resumed the requirement of Form I-944. It also released new guidance stating that any green card applications filed after February 24, 2020 would be subject to the 2019 public charge rules. Any applications that were already approved in the period where the injunction was in effect will not be re-adjudicated. In other words, any immigrant who had their green card application approved in the months where the public charge test was not required will not be retroactively subjected to it.
The 2nd Circuit Court of Appeals’ ruling represents a massive victory for the Trump administration and the future ability to enforce public charge requirements. The states of Connecticut, New York, and Vermont continued to seek relief on the matter but were shot down by the U.S. Supreme Court, who refused to take the case.
Immigration advocates continue to warn the policy will result in a “chilling effect” on immigrants. The COVID-19 virus continues to spread and poses a grave threat to many, including a disproportionate level of lower income communities. Many will likely be reluctant to seek medical care or government benefits, even if they become necessary to their survival, for fear of endangering future immigration efforts.
Trump administration officials continue to tout the rules as necessary to the long-term economic health of the country. They refer to “self-sufficiency” as a proud and necessary tenet of the immigration tradition, regardless of the test’s problematic origins.
What Could Be Next for Public Charge Rules
The Trump administration is likely to continue to require Form I-944 with green card applications for the foreseeable future, regardless of the evolving COVID-19 pandemic. The President might be emboldened by recent judicial support and consider other more restrictive, immigration-based rule changes.
The results of the imminent November presidential election are poised to determine the direction of immigration policy over the next several years. Should President Trump win another term, the public charge rules will likely continue to be enforced. If Former Vice President Joe Biden be elected, it is possible his administration could roll back some of the more draconian measures introduced to USCIS policy during the Trump administration’s term.
We Can Help You Navigate the Public Charge Test
The Fleischer Law Firm LLC has been assisting clients through the immigration process since 1973. Our attorneys have over 40 years of combined legal experience, and we have devoted our practice to helping immigrants build lives in the United States. Our team works to stay current with evolving legislation, including the recent public charge rule expansions, and is prepared to adapt our strategies to help clients overcome and obstacles and legally relocate to the U.S.
We understand how stressful dealing with the economic realities of the COVID-19 can be, especially when you must be careful to remain compliant with these new rules. When you hire our firm, you can expect direct lines of communication with our lawyers. We strive to give each of our clients the compassionate, individualized attention they deserve.
Schedule a free consultation to see how we can help you in these difficult times. Call (513) 880-9969 or contact us online today.