Last Updated on February 23, 2023
In 2018, the Trump administration announced a new rule expanding the area of inadmissibility for immigrants. This rule, set to take effect on Oct. 15, 2019, was blocked by three separate judges on Friday, Oct. 11— days before it was set to be implemented.
Historically, immigration law has limited access for residency within the U.S. to those who are determined to be self-sustaining. The basic tenants of this administration’s new rule sought to change the understanding of ‘public charge’ from the current interpretation of ‘primarily dependent on the government for subsistence’ to someone who ‘receives public benefits for more than 12 months in the aggregate in any 36-month period.’
In addition, this new rule would allow immigration officials to evaluate the likelihood of becoming a public charge using a ‘totality of the circumstances’ test that ‘entail[s] consideration of the alien’s:
- Age
- Health
- Family status
- Education and skills
- Financial status
Factors to which immigration officers could appraise include household size, credit history or score, lacking private health insurance or a failure to be proficient in English.
Many Lawsuits Filed
The far-reaching impact of this rule resulted in over a dozen widely originating lawsuits being filed across the country. States, healthcare officials and non-profits filed suit as the rule was a deterrent to those seeking out and using public benefits necessary for a community’s interests. These include benefits to provide regular health examinations and testing to detect serious medical issues, programs assisting with vaccinations serving to limit contagious diseases and health care for pregnant woman and their children.
Judge George Daniels of the U.S. District Court for the Southern District of New York granted the first of the three injunctions. Judge Daniels based his order on the grounds that the new rule was not in accordance with the law. Judge Daniels found that the defendants did not articulate "why they are changing the public charge definition, why this new definition is needed now, or why the definition set forth in the rule — which has absolutely no support in the history of U.S. immigration law — is reasonable. The rule is simply a new agency policy of exclusion in search of a justification”.
While the courts have specifically enjoined immigration from implementing the new rule, including the slew of invasive new forms previously set to go into effect on Oct. 15, the U.S. Department of State’s enforcement outside the U.S. borders remains less certain.
A new rule proposal was released the same day as the court’s injunctions by the Department of State governing immigrant and nonimmigrant applications for those outside the U.S. (those visiting consulates for visas to enter the U.S.).
The State Department grants discretion for consular officers to determine if a visa applicant may become a public charge in the future. The factors in which an officer may evaluate include:
- Age
- Health of the individual
- Family size
- Bank accounts
- Education
While the future of the rule’s implementation and impact remain uncertain, the recent injunctions remain a large win for immigrant advocates and the preservation of the American Dream.
Envoy is pleased to provide you this information, which was prepared in collaboration with Susannah Nichols, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.
