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The New Public Charge Rule: What It Means for the Community and Providers

Editor's note: ASC thanks our partners at Legal Aid SocietyProtecting Immigrant Families, and The New York Immigration Coalition for providing information and resources. 

Updated Feb. 1, 2020: The U.S. Supreme Court granted the government’s request to undo the District Court’s injunction in the MRNY v. Cuccinelli case on Monday, January 27, 2020, which African Services Committee is a plaintiff. This means that the October 11, 2019 injunction we had obtained to block the DHS public charge rule will be un-blocked pending further litigation. The Supreme Court’s stay will last at least until the appeals court's decision, until the Supreme Court denies any request for certiorari (a writ or order by which a higher court reviews a decision of a lower court), or agrees to hear the case and issue a decision. However, even if we ultimately prevail in court, in the meantime the Rule would likely remain in effect for at least several months. 

Exactly when will the Rule go into effect? February 24, 2020. On January 30, 2020, USCIS announced that the DHS Rule will take effect on February 24, 2020. The announcement makes clear that any application for adjustment of status (green card) postmarked on or after February 24, 2020 will be subject to the new Rule (except in the state of Illinois, where an injunction is still in place). Applications postmarked BEFORE February 24, 2020 will be subject to the current rules. Likewise, the use of non-cash benefits, specifically SNAP, federal Medicaid, and federal housing assistance BEFORE February 24, 2020, will not be considered under the test set forth in the new rule.

"African Services Committee represents some of the most vulnerable populations who will be devastated by the implementation of these illegitimate policies. This Administration has arbitrarily and capriciously discarded a century-old system that already requires a financial guarantee be provided against someone becoming a public charge, in favor of placing their thumbs on the scales to disqualify otherwise eligible people from obtaining lawful status in the U.S.” says Franco Torres, African Services Committee Supervising Attorney.

"The bottom line is that under well-established law, the Executive Branch may not carry out policies specifically rejected by Congress,” says ASC Staff Attorney, Gabriel Guimaraes.  

The new rule is just one brick in the Administration's invisible wall. The Muslim and refugee bans, Census citizenship question, raids separating Mississippi children from their parents on the first day of school, health insurance proclamation, and the fee waiver rule all represent other bricks in this wall. And these attacks have nothing to do with immigration — they’re about race and class, designed to send one message: if you’re not white and you’re not wealthy, you’re not welcome. 

"ASC will continue to challenge these arbitrary and capricious attempts to redefine public charge into a virtual wall that prevents lawful immigration and family unification. We stand ready to fight with our partners to make sure this administration is not allowed use its racist and xenophobic views towards immigrants to illegally rewrite our country's immigration laws," says Torres. 

We will carry on with our efforts to educate and prepare the immigrant community. We want to underscore the importance of speaking with a licensed immigration attorney before individuals consider any changes to their use of public benefit programs.

New Yorkers who have questions about the new rule can contact the Office for New Americans hotline at 1-800-566-7636 to receive more information and be connected to resources. 

Who Does the Court’s Ruling Apply to?  Anyone who is applying to obtain a green card through a family-member, regardless of where they live in the U.S.

  • The DHS regulations do not apply to all immigrants - there are many exemptions.
  • Many benefits are not considered in the public charge assessment.
  • Only benefits used by the applicant for Lawful Permanent Resident status are considered under the DHS rules.
  • Different rules may apply to immigrants seeking visas from outside the U.S.
  • We will continue to fight against the many attacks on immigrants and their families.

 

So what does this mean for low-income immigrants? The Supreme Court's ruling helps the Trump Administration shut America’s doors to all but the white and wealthy. However, It is critical to note that not all immigrants are affected by the rule, which excludes legal permanent residents and many other immigrants. Also, the regulation not retroactive — immigrants using these benefits before February 24th will not have that held against them when they apply for their green card.   

For those who have yet to file an application for a green card through a family member, the Rule means that it will be much harder to get over the public charge hurdle. This is true even if the client has never used government benefits, because the Rule penalizes low-income people (especially anyone who makes less than 250 percent of the federal poverty level), lacks English proficiency, lacks education, has a disability, is under 18 or over 61 years of age, has a large family, or runs afoul of any of several other discriminatory factors. 

Read Common Questions About Public Charge Rule Changes and Where To Get Help from Legal Aid Society. - English 

Read Common Questions About Public Charge Rule Changes and Where To Get Help from Legal Aid Society. - Spanish 

Public charge only applies only to the following groups: (1) people in the U.S. who are in the process of applying for green card status through a family member (often a parent, child or spouse); (2) people who are sponsored by a small business owned by their family members; (3) people who already have a green card but who (a) have traveled abroad for more than 180 days or (b) have traveled abroad and have a criminal conviction, and are seeking to re-enter the U.S. 

The Court issued a temporary order directing that the Rule will not take effect on October 15, 2019. This means that, for now, the rule governing public charge will remain the same as it has been for the last twenty years under the 1999 Field Guidance.  Under the 1999 Field Guidance, only receipt of cash assistance or government-funded long-term institutional care will make it likely that someone is found a public charge. No other benefits count.  

If you or your loved ones have concerns or think you will be affected by these changes, please consult a qualified attorney, or direct your questions to the New Americans Hotline at (1-800-566-7636).  

Who Should I Contact For More Information?

  • New Americans Hotline at (1-800-566-7636). 
  • African Services Committee Legal Hotline
    • First + Third Thursdays 9am - 12pm (212) 222 - 3882 Dial Option 1
    • The hotline operates live every First and Third Thursday of the month from 9am to 12pm. The Hotline will serve to pre-screen legal callers and schedule follow-up consultations/ upcoming workshops , where they will meet with ASC staff to provide legal advice or services as appropriate. Hotline callers will not receive legal advice on the hotline.

 

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Litigation

On August 27, 2019, The Legal Aid Society, the Center for Constitutional Rights, and our pro bono counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP filed a complaint in federal district court in Manhattan on behalf of Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), and the Catholic Legal Immigration Network, Inc. (CLINIC), challenging the new regulation.

Read the Complaint 

Preliminary Injunction
On October, 11, 2019 the federal court for the Southern District of New York blocked the Trump Administration’s new “public charge” rule, issuing a nationwide injunction.

Read the Order

Read the Decision 

On January 8, 2020, the federal Court of Appeals for the Second Circuit rejected the Trump Administration’s request for a stay to block the nationwide injunction.

Read the Order

On January 27, 2020, the Supreme Court granted the Trump Administration’s request for a stay to block the nationwide injunction. We are waiting to see when the government will choose to make the new rule effective.

Read the Order 

Screening Tool and Attorney Referral Information

The Legal Aid Society, in partnership with the Empire Justice Center and Make The Road New York, has created a screening tool to assist attorneys, advocates, and other community-based providers with answering client questions about the new public charge regulation, as well as to provide referral information for additional assistance. Click the link below to download the tool.

Screening Tool

Join the fight: protectingimmigrantfamilies.org

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