On August 14, 2019, DHS issued the public charge rule, which bars certain aliens who have received or who are likely to receive certain public benefits from immigrating to the United States as lawful permanent residents (LPRs). That rule has subsequently been in about as many courtrooms as I was in my 15-year career as a prosecutor and immigration judge, but at long last, it is back on track. For now.
I explained that rule in depth in an August 12 post. Briefly, however, "public charge" is one of the oldest grounds of inadmissibility in federal law (dating from 1882), reflecting the fact that: "The United States has always been a country both of opportunity and of immigrants, but there is an expectation that foreign nationals who come to this country 'pull their own weight.'" Despite this fact, the rule has been derided as a "wealth test".
The public charge ground of inadmissibility, currently set forth in section 212(a)(4) of the Immigration and Nationality Act (INA) , has been amended by Congress on numerous occasions. That said, as the Fourth Circuit recently explained, Congress has largely left it to the executive branch to define which aliens are inadmissible because they are, or are likely to be, a "public charge". Notably, section 212(a)(4)(A) of the INA states:
Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General [or Secretary of DHS] at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. [Emphasis added.]
The most recent amendment was in section 531 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 531 did not make any substantive changes to subparagraph (A), but it added a list of factors for consideration in making the inadmissibility determination on this ground in section 212(a)(4)(B) of the INA. As the conference report for that bill explained with respect to this amendment: "Self-reliance is one of the most fundamental principles of immigration law."
In 1999, the then-INS under the Clinton administration issued new "field guidance" interpreting IIRIRA's public charge amendments, as well as section 212(a)(4)'s deportation counterpart, section 237(a)(5) of the INA (which is even more succinct and was not amended by IIRIRA). Contrary to Congress's clear direction to apply the public charge ground of inadmissibility more broadly, that field guidance instead applied it extremely narrowly, as I detailed in my August 12 post.
To address this inconsistency, on October 10, 2018, DHS issued a Notice of Proposed Rulemaking (NPRM), in which it proposed to amend the regulations governing inadmissibility on public charge grounds "to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations."
Specifically, the NPRM proposed amending the regulations to define the term "public charge", "and to identify the types, amount, and duration of receipt of public benefits that would be considered in public charge inadmissibility determinations." The proposed amendments were exceptionally specific, and included within the definition of "public charge" aliens who received certain non-cash benefits — a departure from the 1999 INS field guidance.
After reviewing and analyzing the 266,077 comments that it received in the 60-day notice and comment period for that NPRM, DHS published the final rule on August 14, 2019.
Under the regulations as amended by the final rule, a "public charge" is an alien who receives one or more defined public benefits for more than 12 months in the aggregate in a 36-month period (receipt of two benefits in the same month would be counted as two months). That list includes both cash benefits and non-cash benefits, including food stamps, housing vouchers, and (with limitations) Medicaid. It also includes exceptions for aliens in the armed forces and their spouses and children.
The promulgation of those regulations resulted in a slew of subsequent litigation to block enforcement of the new public charge rule. The Ninth Circuit stayed two injunctions of the rule issued by district courts in its jurisdiction in December, finding that DHS had "shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay."
Two other circuits in which injunctions of the public charge rule had been issued — the Second and Seventh Circuits — declined to follow suit, allowing preliminary injunctions of the rule to stand. In January, the Supreme Court stayed the preliminary injunction issued within the Second Circuit, and on February 21, it stayed a preliminary injunction issued within the Seventh Circuit, in separate orders.
I note, as an aside, that Judge Amy Coney Barrett — reportedly one of the front-runners for the Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg — wrote a very readable, enlightening ("There is a lot of confusion surrounding the public charge rule, so I'll start by addressing who it affects and how it works."), and well-reasoned dissent from the Seventh Circuit opinion subsequently stayed by the High Court. If you really want to get into the weeds on the history and scope of the rule, I strongly recommend reading it.
Notwithstanding the fact that the Supreme Court had stayed those injunctions, on July 29, the federal district-court judge in the Southern District of New York (SDNY) who issued the injunction at issue in the Second Circuit issued another order enjoining the public charge rule on a nationwide basis during the pendency of the "declared national health emergency in response to the COVID-19 outbreak".
Thereafter, on August 5, the Fourth Circuit reversed a nationwide injunction of the rule that had been issued by a federal district court judge in Maryland, in an extremely well-analyzed opinion. Then, on August 12, the Second Circuit narrowed the injunction issued in the SDNY, staying the injunction outside the states of Connecticut, New York, and Vermont, in which it has jurisdiction (heeding hints from certain justices who had begun to question the legitimacy of nationwide injunctions).
Thereafter, on September 11, the Second Circuit issued a separate order with respect to that injunction. In it, the circuit questioned whether the SDNY judge had jurisdiction to issue the new injunction, because the circuit court was still considering the government's appeal of his first injunction (the one stayed by the Supreme Court in January), and granted DHS's request for a total stay of the July 29 order.
Significantly, that Second Circuit panel "conclude[d] that DHS has shown irreparable injury from the district court's prohibition on effectuating the new regulation."
As a result of that order, on Tuesday, USCIS announced that it will be applying the regulatory amendments in the final public charge rule, and related guidance in the USCIS Policy Manual, "to all applications and petitions postmarked (or submitted electronically) on or after" February 24.
I will note that the rule should have gone into effect when published last August; however, USCIS is applying it as of the February date because of "litigation-related delays in the final rule's implementation". I would posit that date was likely chosen because February 24 was the first business day after the second Supreme Court stay.
Keep in mind, none of these decisions get to the merits of whether the issuance of the August 14, 2019, final rule was legal (although in my opinion, it plainly was). Therefore, that litigation will continue (the Ninth Circuit heard arguments last week), likely all the way back to the Supreme Court. In the interim, however, the public charge rule is in full effect — again, for now.