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New Immigration Rule’s Approach to Public Aid Is Not New

By: Raymond G. Lahoud

The U.S. Department of Homeland Security recently announced a final rule amending the department’s regulations on determining whether a prospective immigrant to the U.S. will likely become a “public charge” — a finding that would, in nearly all circumstances, prevent one from immigrating to the United States.[1] The announcement, yet again, brought the implementation and enforcement of federal immigration law to the forefront of political debate.

The public charge concept, however, is anything but novel in the practice of federal immigration law. It has long been one of several statutorily required points of consideration when federal officials determine whether a foreign national has established eligibility to immigrate to the United States.

Central to the public charge question is whether the prospective immigrant will, through receipt of certain public benefits, likely require U.S. taxpayer funded financial support, thereby rendering the prospective immigrant a “public charge” and ineligible to immigrate to the United States. The public charge rule is a centuries old question of admissibility that has been reviewed, debated, reenacted and amended time and again, and in 1996 toughened by legislation that provides the very premise of the final rule that the department now publishes.

The Immigration and Nationality Act requires that foreign nationals seeking to immigrate to the United States meet several requirements. The burden to establish “admissibility,” or the ability to enter and remain in the United States, rests solely with the person seeking to immigrate, absent any constitutional or statutory right of entry into the United States for non-U.S. Citizens.

One such requirement that the prospective immigrant establish they are not likely to become a “public charge.” Since the 1880s, the U.S. has restricted the entry of foreign nationals on this public charge ground.

In the 1907 Immigration Act, Congress specifically barred from entry into the U.S. a “[p]erson likely to become a public charge,” within the same provision that prevented the admission of “paupers and professional beggars, … idiots, persons dangerously diseased, persons certified by the examining surgeon to have a mental or physical defect of a nature to affect their ability to earn a living, convicted felons, [and] prostitutes.”[2]

Federal courts interpreted the 1907 Immigration Act’s “person likely to become a public charge” clause to include “one who for some cause is about to be supported at public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy and poverty.”[3]

In 1952, Congress overhauled federal immigration law when enacting the INA. In the original INA, Congress excluded from entry into the U.S., “[a]liens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges.”[4]
Rather than define “public charge,” Congress left any interpretation to the executive branch:

Since the elements constituting likelihood of becoming a public charge are varied, there should be no attempt to define the term in the law, but rather to establish the specific qualification that the determination of whether an alien falls into that category rests within the discretion of the consular officers or the [Immigration] Commissioner.[5]

Pursuant to their authority under the INA, federal immigration officials and U.S. Department of State consular officers adopted a totality of the circumstances review when evaluating whether one is likely to become a public charge, with a focus on “an alien’s work history, age, capacity to earn a living, health, family situation, affidavits of support, and other relevant factors in their totality.”[6]

The Immigration Act of 1990 removed the words “paupers, beggars, and vagrants” from the INA, deeming these grounds sufficiently covered by the public charge exclusion ground.

In 1996, former President Bill Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRAIRA, which toughed federal immigration law and codified very specific factors that must be considered when determining whether is likely to become a public charge:

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s—

  1. age;
  2. health;
  3. family status;
  4. assets, resources, and financial status; and
  5. education and skills.[7]

Moreover, IIRIRA provided that a consular officer or the U.S. Attorney General may “also consider any affidavit of support” submitted on the prospective immigrant’s behalf by a lawful permanent resident or U.S. citizen who agrees to sponsor the prospective immigrant by agreeing, in a contract with the U.S. government, to reimburse any public agency that actually provides the prospective immigrant certain public benefits.

Congress failed to define age, health, family status, assets, resources, financial status, education or skills in IIRIRA. Rather, IIRIRA left the determination within the discretionary review of federal immigration officials and U.S. State Department consular officers.

IIRIRA specifically provided that any “public charge” finding shall be made “in the opinion of the consular officer … or, in the opinion of the Attorney General.”[8] When making public charge determinations, the consular officer or the attorney general “shall at a minimum consider the alien’s age, health, family status, assets, resources, financial status, education, and skills.” [9]

The public charge ground of inadmissibility remains unamended since IIRIRA. Since 1996, federal law has required a review of one’s age, health, family status, assets, resources, financial status, education and skills when a federal immigration official or State Department consular officer is making “public charge” determination.

Moreover, the burden has remained with the prospective immigrant to establish that there is no likelihood of becoming a public charge if permitted to immigrate to the United States.

With great confusion as to what IIRIRA meant in enumerating the statutory factors noted, in 1999 the department, then known as the Immigration and Naturalization Service, published a final rule that defined a “public charge” as an alien likely to become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”[10]

In addition, the final rule required prospective immigrants to submit a completed “Form I-864, Affidavit of Support,” that requires a lawful permanent resident or citizen of the U.S. to “demonstrate that they are able to maintain the sponsored alien at an annual income of not less than 125% of the federal poverty level.”[11]

The affidavit of support was legally enforceable against the financial sponsor, allowing the federal government to seek reimbursement from the financial sponsor should the prospective alien receive any public benefits.[12]

While required, the Affidavit of Support did not supplant the enumerated statutory factors in IIRIRA, which federal immigration officials and State Department consular officers are required to consider.”[13] The 1999 final rule simply limited the phrase “public charge” to either “(i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”[14] It did not limit the review of an “alien’s age, health, family status, assets, resources, financial status, education, and skills,” but mandated the Affidavit of Support requirement — something that only made one’s ability to establish no likelihood of becoming a public charge even more difficult for those who had limited relatives, friends or others in the U.S. willing to assume a substantial contractual agreement with the U.S. government.

It is important to note that the 1999 final rule, like IIRIRA, failed to define “age, health, family status, assets, resources, financial status, education, or skills,” leaving the same to the very broad discretion of individual federal immigration officials and State Department consular officers.

Practice has established that, in the last two decades, many have indeed been refused permission to immigrate to the United States as a result of one or more of these factors, or for failing to have a U.S. citizen or lawful permanent resident of sufficient means willing to enter into a long-term contract with the U.S. government.

This has been the result of legislation that, time and again, worked its way through the legislative process to the desk of the president then serving, who would sign the public charge inadmissibility provision into law, notwithstanding what many would argue are broad, personal and unnecessary factors for review.

Neither political party has ever introduced in Congress legislation that would amend, limit, or, if the will of the people wish, eliminate the public charge inadmissibility provision.

While the Department’s recently announced final rule brought immigration to the forefront of political debate, it only defined already enacted requirements. The final rule does indeed expand the definition of “public benefits” to include not only cash benefits for income maintenance, but also the potential for receipt, or certain durations of prior receipt, of benefits from the Supplemental Nutritional Assistance Program, Medicaid, premium and cost-sharing subsidies for Medicare Part D, Section 8 housing assistance under the Housing Choice Voucher Program, and Section 8 project-based rental assistance.[15]

The final rule, however, also outlines relatively straightforward factors, none of which is outcome determinative, as well as guidance on those factors for federal immigration officials and State Department officers to consider when assessing the statutorily required age, health, family status, assets, resources and financial status, and education and skills, and the impact of any or all of these, on whether the prospective immigrant will likely become a public charge.

To many in the practice of federal immigration law, the final rule provides clarity to a statute that that lacked any guidance on implementation or interpretation. Moreover, while the final rule will require prospective immigrants to provide more information when seeking to enter the United States, it is unlikely that there will be any significant increase in public charge determinations, given that the factors that the final rule further outlines have long been an integral part of federal immigration law. In other words, very little has changed.

This article was originally published by Law360.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Inadmissibility on Public Charge Grounds, 83 FR 51114-01.
[2] Gegiow v. Uhl , 239 U.S. 3, 10, 36 S. Ct. 2, 3, 60 L. Ed. 114 (1915).
[3] Matter of Harutunian , 14 I. & N. Dec. 583, 587–88 (BIA 1974).
[4] Matter of Martinez-Lopez , 10 I. & N. Dec. 409, 424 (BIA 1962).
[5] Harutunian, 14 I. & N. Dec. at 588 (quoting Omnibus Report of the Senate Judiciary Committee, S. Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, p. 349.).
[6] Matter of A- , 19 I&N Dec. 867-869 (Comm’r 1998).
[7] 8 U.S.C. § 1182(a)(4).
[8] Id.
[9] Id.
[10] See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689-01.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] See Inadmissibility on Public Charge Grounds, 83 FR 51114-01.