Nicole Narea, Vox, January 27, 2020
The US Supreme Court on Monday allowed a rule to go into effect that creates new barriers to low-income immigrants seeking to enter the US, representing a major victory for President Trump in his mission to restrict legal immigration.
The so-called public charge rule, published in August by the Homeland Security Department and originally scheduled to go into effect October 15, 2019, establishes a test to determine whether an immigrant applying to enter the US, extend their visa, or convert their temporary immigration status into a green card is likely to end up relying on public benefits. Opponents of the rule had challenged it on the basis that it flouts the narrow definition of what it means to be a “public charge” — dependent on government benefits — under federal immigration law.
In a 5-4 decision, the high court’s conservative majority voted to allow the rule to be implemented while legal challenges brought by the state of New York and immigrant advocacy groups proceed. Apart from Justice Neil Gorsuch, who derided lower courts’ attempts to block the rule before issuing final decisions, the justices didn’t elaborate on the reasoning behind the decision.
Immigration officials will now have much more leeway to turn away those who are “likely to be a public charge” based on an evaluation of 20 factors, ranging from the use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid — to English language proficiency.
It’s not clear exactly how many people could be affected by the rule. But Julia Gelatt, a senior policy analyst at the Migration Policy Institute, a nonpartisan think tank, said that 69 percent of the roughly 5.5 million people who were granted green cards over the past five years had at least one negative factor under the rule, which officials could have used as justification to reject their applications for immigration benefits.
The rule will affect immigrants applying for green cards in every state but Illinois for now. Once the State Department finalizes accompanying forms, it will also affect those applying for green cards abroad, Gelatt tweeted.
“I am tired of seeing our taxpayer paying for people to come into the country and immediately go onto welfare and various other things,” Trump said when announcing the rule. “So I think we’re doing it right.”
The US has been able to reject prospective immigrants who are likely to become a public charge since 1882. But since World War II, few immigrants have been turned away using those criteria. In 1999, the Clinton administration issued guidance that said only cash benefits, which very few immigrants use, would be considered in making the determination.
The Trump administration sought to define “public charge” much more broadly, giving immigration officials at US Citizenship and Immigration Services and Customs and Border Protection a laundry list of factors to consider. And it allows individual immigration officials to implement this complicated, 217-page rule as they see fit.
The rule gives individual, low-level officials much more vetting power than they have now, injecting a lot of uncertainty into the green card process. The rule could significantly affect who is allowed to enter and remain in the US as a lawful permanent resident.