Back in 2019 the Trump Administration developed and briefly implemented a wide-ranging new rule for how the Department of Homeland Security (DHS) was supposed to make decisions about granting legal permanent resident applications. The rules (finalized back in 2019) was designed to block legal immigrants from extending their temporary visas or gaining permanent residency if DHS decides the applicant is “likely to rely on designated public benefits in the future”.

As you might expect, a lawsuit challenging the new law was filed immediately after the final rules were published. The case (called Department of Homeland Security v. New York, No. 20-449) had been winding its way through the federal courts, until last week when the case was (favorably) resolved at the request of both parties. Here’s some history:

Starting in February of 2020 DHS briefly began considering whether applicants for legal permanent status have received Medicaid (AHCCCS), the Supplemental Nutrition Assistance Program (food stamps), or Section 8 Housing assistance as they make decisions about extending visas or granting permanent residency.  The definition of a “public charge” in that Rule was:

an individual who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period”.  Medicaid limits eligibility (for immigrants) to qualified legal immigrants with refugee status, veterans, and people lawfully present in the US for 5 years or more. State Medicaid programs can elect to provide coverage to legally present immigrants before the 5-year waiting period ends (Arizona does not). 

Fortunately, the formerly final Rule did not consider whether benefits were used by an applicant’s kids. So, lawfully present kids that are receiving benefits (e.g. Medicaid) didn’t have that used against them if the child later applies for legal permanent residency (a “green card”).   The Trump administration’s public charge rule would have used a “totality of the circumstances” test for applicants, which means that DHS will use the statutory factors and now the new factors laid out in the final rule. Here’s my blog from about a year ago with more detail about that final rule.

However, DHS’ only implemented the new rules for a few days in early 2020 because US District Courts issued preliminary injunctions which stopped DHS from implementing their final rules. On December 2, 2020 the Ninth U.S. Circuit Court of Appeals upheld those preliminary injunctions.

The case then proceeded to the US Supreme Court.

A couple of weeks ago the US Supreme Court announced that it would hear the case (called Department of Homeland Security v. New York, No. 20-449) challenging DHS’ final public charge rules. 

At that point, the US Department of Homeland Security (now under new leadership) changed their position and decided to no longer challenge the decision by the 9th Circuit which upheld that District Court injunctions. The plaintiffs (the folks that filed the lawsuit in the first place – the New York Attorney General) also asked the US Supreme Court to dismiss the case, which they did.

OK…  so here’s where we stand.

The Northern District vacated the 2019  of Illinois’ judgement vacating the 2019 public charge rule is now in effect…. a convoluted way of saying that the Trump administration’s Public Charge Rule is no longer in effect.  According to DHS, they will continue to use the 1999 interim field guidance on the public charge inadmissibility provision (i.e., the policy that was in place before the 2019 public charge rule) is now in effect.”

So basically, DHS’ public charge rules still exist on paper but have no effect and DHS is using their old 1999 guidance to make decisions again.

Here is the Field Guidance on Deportability and Inadmissibility on Public Charge Grounds from 1999, if you are interested. DHS yesterday included this info on the 1999 Interim Field Guidance:

“Under the 1999 interim field guidance, DHS will not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.  In addition, medical treatment or preventive services for COVID-19, including vaccines, will not be considered for public charge purposes.”

Next, I expect the Department of Homeland Security to open a new Rulemaking to develop what they see as more appropriate rules governing DHS’ decision-making around applications for visa extension and permanent residency… but that’s just a guess.

Elections matter.