AILA Quicktake #273: DHS Posts Final Public Charge Rule in the Federal Register

On 8/12/19, DHS posted an advance copy of a final public charge rule that will reshape legal immigration and threaten the well-being of millions of families. AILA’s Policy Counsel Jason Boyd discusses how this new rule changes DHS’s public charge standard and how it impacts legal immigration.

Video Transcript

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On Monday, August 12, DHS posted for public inspection
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a final public charge rule that will reshape our legal immigration system
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and threaten the well-being of millions of families.
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We anticipate the rule’s formal publication in the Federal Register
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on Wednesday, August 14.
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Once published, and unless halted in court, the rule will go into effect 60 days later.
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This rule dramatically changes the standard by which DHS determines
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whether an applicant for adjustment of status or admission is likely to become a public charge
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and therefore inadmissible to the United States.
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Under current policy, DHS regards as a public charge
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someone primarily dependent on government assistance.
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Generally, a sufficient affidavit of support is enough to establish
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that an adjustment applicant will not become a public charge.
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Under the final rule, DHS will consider as a public charge anyone
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receiving one or more specified public benefits for more than
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12 months in the aggregate within any 36-month period.
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A sufficient affidavit of support will not be outcome-determinative.
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Rather, DHS will apply a totality of circumstances test
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featuring a range of positive and negative factors.
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One heavily weighted negative factor is an applicant’s receipt
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of specified public benefits for 12 or more months in the aggregate
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within any 36-month period, beginning no earlier than the 36 months
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prior to the application for adjustment of status or admission.
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Critically, DHS will not regard as a negative factor the receipt of specified benefits
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prior to the rule’s effective date, with the exception of the cash assistance
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and long-term institutionalization benefits that DHS already considers relevant
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to the public charge determination under current policy.
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Under the rule, DHS would also conduct a more limited public charge determination
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of nonimmigrants seeking a change or extension of status.
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It’s important to note that some immigrants are exempt from public charge determinations.
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The rule will have profoundly harmful consequences throughout the nation.
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To begin with, it will erect substantial barriers to legal immigration in the United States.
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The rule could result in spikes in denial rates
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of adjustment of status applications subject to public charge determinations,
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forcing many families to choose between separation on the one hand,
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and leaving the United States together on the other.
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It also imposes a complex and nebulous legal standard
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that will produce inconsistent, if not outright arbitrary, adjudications.
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And it compels USCIS to process hundreds of thousands of new, lengthy forms
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each year that will heighten the agency’s already crisis-level case backlog.
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The Trump administration’s “invisible wall,” a wall made of policies and practices
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that restrict legal immigration will grow dramatically higher.
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The rule will also compound the chilling effect that has already swept through immigrant communities
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following publication of DHS’s proposed public charge rule in 2018.
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A July 2019 Urban Institute Study found that about 14% of adults in immigrants families
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disclosed that that they or a family member opted not to participate in a non-cash
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public benefit program in 2018 due to concern over jeopardizing their green card eligibility.
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The final rule will likely deter even greater numbers of individuals
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from obtaining vital medical assistance and meeting other basic needs,
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even when receipt of the benefits in questions is not penalized under the rule.
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In short, this meanspirited measure places at risk
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the health and safety of families throughout the nation.
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In its final rule, DHS noted its expectation that the State Department
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will align its own public charge policy with DHS’s.
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Even prior to DHS’s publication of its proposed rule in 2018,
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the State Department had changed its public charge policy significantly,
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changes that have resulted in a striking rise in visa denials on public charge grounds.
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Further changes to State Department policy made to align with DHS’s final rule
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could result in even higher rates of such visa denials.
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Separately from the DHS rule, the Department of Justice is developing a rule that will
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change its policy regarding inadmissibility and deportability on public charge grounds.
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DHS states in its final rule that it, and I quote,
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“will work with DOJ to ensure consistent application
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of the public charge ground of inadmissibility.”
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AILA will continue to monitor, and keep members apprised of
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the progress of the DOJ rule as well as further changes to State Department policy.
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Yes, organizations will move swiftly to litigate.
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In addition, Representative Judy Chu has introduced legislation
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that would prohibit the use of federal funds for implementing the rule.
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The ultimate fate of this rule, however, will almost assuredly be decided in court.
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AILA will monitor and notify members of litigation developments.
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Educate yourself and your clients.
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AILA maintains a webpage dedicated to the public charge policies
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of USCIS, DOJ, and the State Department.
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Already, AILA has posted on that site a copy of the final DHS rule.
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In the coming days and weeks, AILA will post a practice alert and practice pointer that
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will help members better understand and respond to DHS’s new public charge policy.
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We’ll also post additional helpful materials developed by partner organizations.
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We encourage members to access these resources,
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as well as take advantage of any relevant training sessions that arise,
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to best navigate and advise clients on the shifting public charge landscape.
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At a time of profound changes to the legal immigration system,
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AILA will continue to serve and support our members every step of the way.

Cite as AILA Doc. No. 19081331.