The Controversial Public Charge Rule Seems Here to Stay

Photo Credit: https://usa-esta.net/en/what-is-the-green-card/ (last visited Aug. 15, 2020).

Written By: Grey Robinson
Member, American Journal of Trial Advocacy

           Since the inception of Immigration legislation and law within the United States the concept of “public charge” as a factor in immigration evaluations has been a shifting standard.  While the term would take on many different definitions throughout the years, a “public charge” generally referred to any person who would be treated as a ward or need the care of the United States Government.[1]  Until the 1990’s this definition and application to immigration proceedings was largely determined by Immigration boards and common law.[2]  However, with the change in federal welfare definitions and restrictions on welfare availability came the beginnings of the codification of not only the term “public charge” but also a test for green card admissibility based on government assistance status.

           This first attempt arose with the Illegal Immigration Reform and Immigrant Responsibility Act, which codified five factors of what was to be concerned by immigration authorities in public charge considerations.[3]  These five factors are: age; health; family status; assets, resources, and financial status; and education and skills.[4]  In addition to this codification in subsequent years the procedure expanded to include a comprehensive evaluation of projected public charge applicability for many green card applicants.  With the five factors, immigration officers thus predicted the likelihood that an individual would become a public charge, and therefore inapplicable for a green card.

           In 2018, the Department of Homeland Security (DHS) began an exhaustive process of redefining the term “public charge,” as part of the boarder inadmissibility standards for green card applicants to the United States.[5]  By the end of their considerations, DHS defined and intended to change the public charge definition and standard for consideration to refer to any individual seeking citizen status who is likely to receive “one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.”[6]  This definition is taken into consideration alongside the historical consideration of the five factors.  The public charge rule was also changed by DHS to expand the types of public assistance programs immigration officers can consider under the new definition of public charge.[7]  Some of these programs are Medicaid, SNAP, Section eight housing, and any federally subsidized housing, all of which are now programs taken into consideration in defining public charge.[8]  Prior to this change, aid such as TANF and SSI were mainly taken into consideration in public charge considerations.

           The Public charge rule was officially modified in August 2019, with the change in the DHS definition. However, numerous challenges arose in the constitutionality of the definition, as well as the its application in courts across the United States. Federal District courts in areas such as California, Washington, and Maryland all held varying degrees of constitutionality under the Fifth Amendment.[9]  The Ninth Circuit stayed these decisions, but other courts differed.[10]

           In terms of Supreme Court consideration, two specific cases of note arose.  The first case, Wolf v. Cook County, Illinois,arose out of the Northern District of Illinois, which issued an injunction on the public charge rule specifically within the state of Illinois.[11]

           The second case arose out of the Second Circuit which upheld numerous district court injunctions on the application of the public charge rule to all cases, regardless of location.[12]

           In January of 2020, the Supreme Court responding specifically in Department of Homeland Security v. New York, issued a stay on the Second Circuit’s decision for a blanket national injunction.[13]  A stay for Wolf would soon follow,[14] allowing for the public charge rule to proceed in implementation, taking effect on February 24, 2020.

           Going into February, the public charge rule was the applicable federal law for every location.  The new public charge form, created by the Department of State, DS-5540, in addition to considering the original five factors also requires applicants to make note of any government assistance they applied for or are able to receive after the February 24 implementation.[15]

           However, with the rise of COVID-19, the usefulness and scope of the public charge rule was once again called into question.  A Judge in New York specifically called into question the usefulness of the standard, arguing that COVID-19 concerns impact individuals economic situations, and on a national scale lead to a greater use of social services.[16]  In April, the litigants in both Wolf and Dept. of Homeland Sec. petitioned the Supreme Court for a temporary lift of the stay on the implementation of the Public Charge rule during the COVID-19 crisis.[17]  Litigants argued that the national crisis constituted differing standards and that fear of public charge inadmissibility would lead immigrants to forgo public health services.[18]

           The court on April 24 in two separate orders denied the request, allowing the public charge rule to proceed.[19]  However, the Supreme Court did leave petitioners the option to take up their case again in District Court.[20]

           With courts across the United States returning to normal, and as the U.S. Citizenship and Immigration Services starts processing applications, we are sure to see immigration officers across the nation finally implement this rule.  Whether the standard will last, or whether courts will finally be successful in defeating the public charge rule, however, is yet to be seen.


[1] Casa De Maryland, Inc. v. Trump, 414 F. Supp. 3d 760, 767 (D. Md. 2019).

[2] Id.

[3] Id.

[4] 8 U.S.C.A. § 1182(a)(4)(B)(i) (West 2019).

[5] 83 Fed. Reg. 51114-01 (West 2018) (Defining inadmissibility on Public Charge Grounds).

[6] 84 Fed. Reg. 41292-01 (West 2018).

[7] Id.

[8] Id.

[9] See generally, Casa De Maryland, Inc. v. Trump, 414 F. Supp. 3d 760 (D. Md. 2019).

[10] See generally, City and County of San Francisco v. U.S. Citizenship and Immig. Services, 944 F.3d 773, 779 (9th Cir. 2019).

[11] Cook County, Illinois v. McAleenan, 417 F. Supp. 3d 1008 (N.D. Ill. 2019).

[12] State v. U.S. Dept. of Homeland Sec., 19-3591, 2020 WL 95815, at *1 (2d Cir. Jan. 8, 2020).

[13]Dept. of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (Granting Government’s stay on injunction). 

[14]Wolf v. Cook County, Illinois, 140 S. Ct. 681 (2020) (Granting Government’s stay on injunction). See also, Amy Howe, Government gets green light to implement “public charge” rule pending appealsSCOTUSblog (Jan. 27, 2020, 2:59 PM), https://www.scotusblog.com/2020/01/government-gets-green-light-to-implement-public-charge-rule-pending-appeals/.

[15] Public Charge, Immigrant Legal Resource Center (May 30, 2020), https://www.ilrc.org/public-charge.

[16] Frank G. Runyeon, Judge Says Virus Changes Debate Over ‘Public Charge’Rule, Law 360 (May 18, 2020), https://www.law360.com/immigration/articles/1274705/judge-says-virus-changes-debate-over-public-charge-rule.

[17]See Brief by Government Plaintiffs to Temporarily Lift or Modify the Court’s Stay of the Orders Issued by the United States District Court for the Southern District of New York, Dept. of Homeland Sec. v. New York, 140 S. Ct. 599 (2020);Amended Brief in Opposition to Defendants’ Motion to Dismiss, Wolf v. Cook County, Illinois, 140 S. Ct. 681 (2020).

[18] Id.

[19] Dept. of Homeland Sec. v. New York, 19A785, 2020 WL 1969276, at *1 (U.S. Apr. 24, 2020) (order denying motion for temporary lift or modify stay); Wolf v. Cook County, Illinois, 19A905, 2020 WL 1969275, at *1 (U.S. Apr. 24, 2020) (order denying motion for temporary lift or modify stay).

[20] Id.

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