Five judges impose injunctions, delaying implementation of the new rule that would expand the definition of public charge in immigration
After multiple judges halted the Trump administration’s proposed changes to the public charge rule, immigration experts and attorneys are assessing the impact of public charge in immigration law and the next steps.
As previously reported by the Asian Journal, federal judges in California, Illinois, Maryland, New York and Washington State blocked the controversial new rule regarding government assistance programs for applicants seeking permanent residency or a non-immigrant visa from taking effect. (It was to take effect on Tuesday, October 15.)
In other words, the Department of Homeland Security’s (DHS) proposed changes to what defines a public charge do not currently apply.
On Thursday, October 17, immigration experts and attorneys broke down the current state of the public charge rule in a national teleconference hosted by Ethnic Media Services (EMS) along with the National Immigration Law Center (NILC) and the Immigrant Legal Resource Center (ILRC).
The Trump administration sought to expand the list of benefits that would determine whether or not someone is a public charge.
Included in that list are Medicaid, supplemental security income (SSI), certain subsidized housing (e.g. Section 8), Temporary Assistance to Needy Families (TANF), and food stamps, justifying the rule change by saying that “self-sufficiency has long been a basic principle of U.S. immigration law.”
Per the Trump rule, immigration officials may administer the public charge test, and if they find that a person has received any of the applicable government-funded services during a 12-month period within the last three years.
On the call, each speaker emphasized the fact that the public charge rule only affects a small sect of immigrants and, historically, has had a limited impact on the sect of immigrants seeking permanent residency that also relies on public benefits.
“The concept of public charge has been a part of immigration law for 100 years, and what is changed now is how the DHS wants to interpret it. They want to apply a stricter standard,” Allison Davenport, supervising attorney at the ILRC, told reporters on the call.
Several categories of immigrants are not affected by the public charge test, including refugees, asylum seekers, victims of crime applying for special visas like the U-visa and T-visa, unaccompanied minors, those seeking renewal of Temporary Protected Status or recipients of DACA.
Moreover, an overwhelming majority of immigrants who are permanent residents or already citizens are not affected by either the current rule or the Trump administration’s new rule if it is passed in the future.
“No matter what the courts decide, these people will not be directly affected by that potential change in the public charge rules,” Davenport said.
Davenport noted that if the court injunctions are lifted in the future, there will be a grace period before the public charge regulation will take effect. For now, the pending court cases will determine the future of public charge as a determinant in immigration law.
Despite the recent court injunctions, the confusion surrounding public charge has resulted in many immigrant families fearing that their existing benefits will be threatened.
Any rule changes to public charge would not apply retroactively. For example, if an immigrant is on food stamps before the rule is put into effect, they will still receive that assistance.
“Families should continue to use the services they need,” Mayra Alvarez, president of the Children’s Partnership, said during Thursday’s teleconference. “People should feel safe using those benefits even if the injunctions are lifted. This rule was not meant to be retroactive. It would only count benefits received after the date the new regulation goes into effect. The injunction is clear, that benefits received before that would not be considered.”
According to the Migration Policy Institute, misinformation and misrepresentation of the public charge rule may result in “millions of immigrants” who “will stop asking for help with health, nutrition and social services.”
How does public charge affect the API community?
When the rule was first implemented immigration advocates and attorneys estimated that millions of legal immigrants would lose crucial benefits.
Last year when the rule change was first proposed, senior policy manager with the Health Access Project Heng Lam Foong told the Asian Journal that roughly 3.8 million Asian and Pacific Islander immigrants have relied on public benefits.
“The Trump Administration’s proposed public charge rules would force families to choose between meeting basic needs like putting food on the table or seeing a doctor or maintaining immigration status,” she said.
Research from the Migration Policy Institute backs this up, revealing that 300,000 immigrants of the more than 941,000 recent green card holders that would have been subjected to the rule come from Asian countries.
“The policy itself, the mere suggestion that the administration was considering the policy, has resulted in Asian immigrants and other immigrants pulling out of public benefits,” John C. Yang, executive director of Asian Americans Advancing Justice, told NBC News this week, adding that the new rule was “just a made-up reason to exclude certain classes of immigrants.”
Another barrier to entry that may hinder Asian immigrants involves language. Currently, the public charge test factors in an immigrant’s age, health, family status, finances and education and skills.
The Trump administration’s rule would examine those categories on a more granular level wherein skills would involve English proficiency, which would disproportionately set back the high concentration of Asian residents who speak little to no English.
“The Trump administration has a very narrow view of what types of immigrants are so-called desirable in the United States and, frankly, it is a racist and xenophobic view,” Yang said. “That view is that only people who are desirable are already proficient in English already have a certain level of wealth or high skills.”
The attorneys and experts on Thursday’s conference call also encouraged immigrants who may be worried about their public benefits to seek legal assistance before either going off their benefits or signing up for them.