Challenging the Public Charge Inadmissibility Regulation

The Shapiro Law Group

Illinois and 12 other states have sued the federal government challenging a new rule interpreting the public charge provision of inadmissibility in the Immigration and Nationality Act. Changes to the definitions of “public charge” and “public benefits” are critical to the determination of who will be considered a public charge, and therefore be inadmissible. The states that are challenging this rule argue that it will unfairly target poor people while favoring wealthy immigrants.

The Public Charge Rule

Under the Inadmissibility on Public Charge Grounds rule, people who are likely to become public charges if they are allowed to become naturalized citizens or residents are not eligible for green cards or changes of status. Previously, the regulation targeted immigrants who had been primarily dependent on public benefits in the form of cash assistance, income maintenance, or long term care. With the changes, immigrants who are more likely than not to use even non-cash benefits like food stamps, Medicaid, or housing assistance for more than 12 months within a period of 36 months may be denied green cards.

Why the Rule Is Under Fire

The public charge inadmissibility rule is under fire for several reasons. Under the rule, people who are working but poor will have trouble becoming naturalized citizens if they have received food stamps, Medicaid, or other basic benefits for longer than the designated threshold. Immigrants whose parents received benefits for them while they were children could be prevented from gaining citizenship status later. Additionally, many needy families may not apply for food stamps, Medicaid, or housing assistance, leaving children to go without proper shelter, medical treatment, and the food they need to survive. Immigrant families should not be placed in a position of having to forgo medical care, housing, and food simply to try to avoid losing their immigration status or their ability to become permanent residents or citizens of the U.S.

As a result of public comments, several amendments have been made to the final rule. Some immigrants may now be exempted from the public charge ground of inadmissibility.

Ken Cuccinelli, the acting director of the U.S. Customs and Immigration Service argues that the new public charge rule falls within the confines of existing U.S. law. He argues that the law has always required people to not have the potential of becoming public charges after they immigrate.