Protecting Immigrant Families - Washington
Federal courts have blocked President Trump's Public Charge regulation from going into effect on October 15 as it applies to seeking green cards in the USA. We still don't know if or when this rule will go into effect. The key messages are:
- Courts have blocked the Trump Administration from using new rules that make it harder for low-income immigrants applying for green cards or changes of status or extension of stay with U.S. Citizenship and Immigration Services (USCIS) inside the U.S.
- Immigrants can continue to receive the key health care, nutrition, and housing programs that help them and their families thrive. If the rule goes into effect later, it will NOT be retroactive. In other words, it will have a start date well into the future.
- Different rules apply to immigrants seeking visas from outside the U.S. or when they need to go abroad to a U.S. consulate for their green card interview.
- We will continue to fight against the many attacks on immigrants and their families.
- Many groups of immigrants are not subject to the public charge test, including asylees and refugees.
Here's the latest information families and advocates need to know:
Open enrollment for 2020 health care coverage is from November 1 through December 15. The Washington Health Benefit Exchange explains which categories of immigrants can be eligible for coverage and national experts have recently posted 10 Facts About Access to Health Insurance for Immigrants and Their Families. The following resources may also be helpful:
- Public Charge: Does this apply to me?? (How 'public charge' will impact you based on your immigration status, what status you are applying for or may apply for in the future, and what you should do).
- You Have Rights - Protect Your Health (An overview for mixed-status families about going to the doctor or enrolling in health insurance).
- Should I Keep My Kids Enrolled in Health & Nutrition Programs? (Use this guide to help answer commonly asked questions about how to make good decisions for your family and their health).
- When Is It Safe for Immigrants to Get Public Benefits?
Also, President Trump issued a Proclamation, scheduled to go into effect on November 3, requiring some categories of immigrants to have certain kinds of health insurance within 30 days of entry in order to obtain immigrant visas at U.S. consulates abroad. But on November 2, a federal court issues a temporary restraining order that blocks the Proclamation from going into effect, at least until that court has another hearing on November 22 to consider issuing a preliminary injunction.
Background about Public Charge
Federal immigration officials apply a "public charge" test to some categories of immigrants who seek admission to the U.S. The test primarily affects people applying for green card status (lawful permanent residence) when sponsored or petitioned by a family member and a few categories of employment sponsored cases. The longstanding definition says that a person is a public charge only when "primarily dependent" on either cash assistance or long-term care, such as living in a nursing home or residential facility paid for by Medicaid. However, receiving these benefits along cannot be the sole basis for a negative public charge finding. Immigration officials must consider the "totality of circumstances," including the person's age, health, education, work experience, and job skills.
Some people can apply for a green card inside the U.S. at a U.S. Citizenship and Immigration Services (USCIS) office (called "adjustment of status"); others (including many people who are currently inside the U.S.) have to apply for a green card outside the country, at a U.S. Consulate abroad (called "immigrant visa" processing). In the past the policy was essentially the same for applicants inside and outside the U.S. Currently, there are different policies for each.
Immigrants applying outside the U.S.
In January 2018, the Trump Administration changed the instructions for U.S. consulates that grant immigrant visas (green cards) to people outside the United States. The new policy gives consular officials more discretion to evaluate a sponsor's affidavit of support (income and/or assets) and the public benefit use by applicants, sponsors, or family members. In general, the current consular interpretation of public charge rules is stricter for those who must apply for visas and green cards at U.S. consulates.
Immigrants applying inside the U.S.
In October 2018, the administration proposed a new public charge rule for immigrants applying for lawful permanent status inside the U.S. The new rule would make it more difficult for low-income and moderate-income immigrants to pass the public charge test. It would require immigration officials to look more closely at certain factors like
- work experience or opportunities, and
- English language skills,
and would put more emphasis on the intending immigrant's financial resources.
The rule would also expand the types of benefits immigration officials could consider in the public charge test to include federal food assistance, some health care, and subsidized housing (in addition to means tested cash and long term care).
The sponsor's affidavit of support would be scrutinized more closely, questioning whether the sponsor will actually be able to provide the support.
The new rule would also apply to applicants in temporary visas seeking to change or extend status.
Advocates from across the country submitted more than 260,000 comments opposing the rule. But in August 2019, the Administration adopted a new rule which included many of the provisions in the proposed rule. Many states, local governments, and other organizations challenged the rule in several federal courts.
Beginning on October 11, 2019, five federal courts issued preliminary injunctions, stopping the rule from going into effect until the courts can make a final decision.
Just before the court decisions, the Administration announced an "interim" rule to make the rules for immigrants applying outside the U.S. the same as the new rules for those applying inside the U.S. After the court decisions, the administration put that rule on hold. Therefore, the Consulates are applying the more restrictive earlier interpretation of public charge described above.
See here for the latest available, detailed update on public charge.
Impact on communities
If Trump's plan to change the rules about public charge takes effect, it would be easier to deny permanent residence to individuals who have used one or more forms of public assistance for a year or more such as food, health care, or housing, or even if no benefits were used, just because they have low income. The Administration's effort to expand the definition and application of the public charge test effectively penalizes immigrants for using certain essential public services that they are already entitled to received under current law. In Washington, 1 in 4 children grow up in immigrant or mixed status families. The result if they do not access existing services means poorer health, more hunger and greater inequity for children and families, particularly for immigrant communities of color.
That's wrong. Every family should be free to use the essential services they are legally entitled to and need to live. The changes to public charge policy in the U.S. are not final, but they are already causing significant harm and confusion because of the chilling effect of fear and misinformation that is causing or may cause people to disenroll from program or forego benefits for which they are eligible.
To find out what public charge rules apply to you, if at all, see Public Charge: Does this apply to me?? and Washington LawHelp. For additional information in other languages, browse the national Protecting Immigrant Families community resources page.
Join our efforts. Share your own family's experience about how accessing essential services has helped your family to thrive. You can still fight back by speaking up! If you think this rule could impact you or your family, you can also share your story about the hardship you would suffer to help policymakers understand how this proposal hurts families.
Sign up for emails from the Protecting Immigrant Families - Washington state campaign.
Finally, get a list of free or low cost legal resources that can help those who may be subject to the proposed rule.
Protecting Immigrant Families - Washington state is a broad coalition of more than 30 nonprofit, public, and private sector organizations working to address the impact of potential changes to the public charge rule. It includes Children's Alliance, OneAmerica, Northwest Immigrant Rights Project, Northwest Health Law Advocates, the Washington State Hospital Association, and many others. We are part of the national Protecting Immigrant Families, Advancing Our Future Campaign, co-chaired by the Center for Law and Social Policy and the National Immigration Law Center.