Immigrants in Vermont Should File Soon to Avoid Potential Changes
In August, the Trump Administration announced that new regulations were taking effect on October 15 that would dramatically change the way that United States Citizenship and Immigration Services (USCIS) determined whether an alien was likely to be a “public charge.” Under United States immigration laws, an alien is deemed a public charge if they have accepted certain means-tested public benefits, such as Welfare. If they have been a public charge or are likely to become one in the future, aliens who apply for green cards can be denied.
That principle has been embodied in our immigration laws for decades. Typically, one could show that they would not likely be a public charge by obtaining an “Affidavit of Support” from the sponsoring relative in family-based immigration cases. As long as that relative had an income of at least 125% of the federal poverty level for his or her household size, the public charge test was satisfied.
What is the New Public Charge Rule Proposed by the Trump Administration?
The Trump proposal would expand the list of means-tested public benefits that would disqualify an alien from obtaining a green card to include health benefits obtained through Medicaid and the Affordable Care Act (Obamacare). In addition, the Trump proposal would add scrutiny of other factors thought to be predictors of becoming a public charge, such as:
- Chronic health conditions and disabilities
- Educational attainment (or lack thereof)
- Employment history (or lack thereof)
- Credit history (or lack thereof)
Many U.S. citizens could not pass this Public Charge test if they were required to do so.
The Trump proposal would also render the Affidavit of Support just one piece of evidence that an immigration officer could consider in looking at the “totality of the circumstances” surrounding the likelihood of a given immigrant becoming a public charge. Other factors in that testing would include the items listed above.
The discriminatory impact of these requirements is obvious. If an alien has grown up in a poor country, they are unlikely to have amassed wealth. Such an alien may not own property, may not have had much of an employment history or higher education and would certainly not have a credit score. Further, the new regulations would require the alien to disclose health history so that the immigration officer, in his or her sole discretion, could determine if the alien had a chronic condition that made the receipt of public health care benefits likely. This element discriminates against the disabled and chronically ill. Although the alien could show that they had private health insurance waiting for them in the United States, the officer could give that factor little weight in the “totality of the circumstances” test.
These discriminatory effects and the unfettered discretion given to immigration officers under the proposed public charge rules led several States and immigrants’ rights groups to sue to block the implementation of the new regulations. On October 11, Federal Courts in New York, California and Washington issued injunctions to stop the regulations from taking effect. That is similar to what happened when the Trump Administration announced its Travel Ban in 2017. However, after two rounds of litigation, a modified Travel Ban was upheld by the courts. Something similar is likely to happen with regard to the public charge rules.
President Trump has made his views clear on the subject of which countries’ nationals should be allowed to become permanent residents of the U.S. Because some form of the public charge rules are likely to survive, we are urging our Vermont immigration clients – especially from less developed countries — to file their green card applications as soon as possible. Contact MSK Attorneys online or call us at 1-802-861-7000 for assistance in Vermont immigration cases.