President Trump and an adviser, Stephen Miller, have cooked new public charge rules, subsequently issued by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS), as well as a Presidential Proclamation requiring immigrant visa applicants to buy health insurance.
Implementation has been chaotic, and these rules have been challenged in court. This article explains the status of each initiative.
USCIS Public Charge Rule
The USCIS public charge rule was published in the Federal Register on Aug. 14, 2019. USCIS then published corrections on Oct. 2, 2019. For a summary, see the USCIS Fact Sheet and our firm’s client alert.
Litigation has temporarily blocked USCIS implementation of its rule. Per the USICS Fact Sheet:
On Oct. 11, 2019, judges in three separate cases before U.S. District Courts for the Southern District of New York (PDF), Northern District of California (PDF), and Eastern District of Washington (PDF) enjoined DHS from implementing and enforcing the final rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act and postponed the effective date of the final rule until there is final resolution in the cases. Two of the injunctions are nationwide and prevent USCIS from implementing the rule anywhere in the United States.
DOS Public Charge Rule
To stay in alignment with the USCIS rule, the U.S. Department of State has published its own public charge rule, applicable to visa applicants. (Oct. 11, 2019 Rule).
Now, the State Department has posted to its website a message about implementation of its rule:
On October 11, 2019, the Department published an interim final rule that amends 22 CFR 40.41, Ineligibility Based on Public Charge Grounds, to add certain definitions, including definitions of public charge, public benefit, alien’s household, and receipt of public benefit.
Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. The Department is seeking approval for use of a new form before it implements any changes to our processes. We will inform applicants of any changes to current visa application procedures.
The State Department is currently awaiting approval from the Office of Management and Budget (OMB) for the new Form DS-5540, Public Charge Questionnaire. The announcement says that form will need to be approved before the State Department “implements any changes.”
Proclamation Requiring Health Insurance
On Oct. 4, 2019, President Trump issued a proclamation suspending issuance of immigrant visas to applicants who lack either U.S. health insurance or substantial assets to cover their health expenses. For a summary, see our firm’s client alert.
The State Department’s website explains the requirements for the interview:
During the visa interview, applicants should be able to demonstrate to the satisfaction of the consular officer that they have the financial resources to pay for reasonably foreseeable medical costs or will have approved health insurance from the list above within 30 days of entry into the United States. Officers will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed. Prior to the visa interview, applicants may wish to review costs and eligibility requirements for approved health insurance plans or consider how they would pay for the reasonably foreseeable medical costs of any current medical condition they may have.
On. Nov. 2, 2019, the U.S. District Court in Portland, Oregon, in the case of Doe v. Trump issued a temporary restraining order (TRO) stopping the federal government from implementing the policy. The TRO will be in effect not to exceed 28 days (Dec. 1, 2019), to allow the parties sufficient time to brief and argue whether the Court should issue a preliminary injunction suspending implementation of the Proclamation until the case has been resolved.
The court held that plaintiffs raises serious questions as to whether the Proclamation violates the Immigration and Nationality Act (INA). In particular, Congress has already enacted a statute, INA § 212(a)(4), barring admission of noncitizens likely to become public charges. The statute requires the officer to make a determination based on consideration of, at a minimum, the applicant’s age, health, family status, education and skills, assets, resources, and financial status. The Proclamation, by making health insurance a dispositive factor, may violate the law requiring a determination based on multiple factors.