Business Immigration Insights

On January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court to lift a nationwide temporary injunction on the DHS “public charge” rule that was upheld by the Court of Appeals (2^nd Circuit) last week.  The public charge rule, published in August 2019, expands the grounds on which the government can deny immigration benefits to various applicants seeking permanent residence (green card) status or work authorization to include those who have received certain public benefits, such as Medicaid, CHIP, and SNAP (see article, “DHS Reinterprets Public Charge”).  The rule gives the government broad discretion to deny an applicant if “at any time”, the applicant would “likely” become a public charge.  A medical condition alone could be enough for an immigration officer to exercise discretion to deny the application.

The emergency appeal remains pending at this time.  If it is granted, implementation of the public charge rule will affect more than 380,000 people annually, according to the Department of Homeland Security (DHS).  But DHS did not consider other effects of implementing this rule:  those requiring public assistance for themselves, their children, and/or their parents may avoid it in fear of harming their current and future immigration status.  This would cause a harmful ripple effect, as many would likely avoid assistance from programs that are not covered by the public charge rule.

Implementation of the public charge rule will directly affect US employers as well.  Employers may have a more difficult time extending work authorized visas for existing employees, and may have a more difficult time recruiting recent foreign student graduates of US colleges and universities.  Even in cases where the existing or prospective employees can meet the public charge burden, the additional costs to prepare the public charge forms and delays in processing them due to expected lengthy review will harm employers, not just the foreign nationals and their families.

We will update this blog as this story unfolds.