The New Public Charge Regulation: What It Means for Providers and Clients
The U.S. Department of Homeland Security (DHS) and U.S. Department of State’s (DOS) new rules on public charge became effective on February 24, 2020, after the U.S. Supreme Court granted the government’s request to undo the District Court’s injunction in the MRNY v. Cuccinelli case on Monday, January 27, 2020 (on which The Legal Aid Society is counsel). On Friday, February 21, the Supreme Court also granted a stay of an injunction applying only in the state of Illinois. This means that the injunctions obtained to block the DHS public charge rule in New York and elsewhere are lifted pending further litigation. Rest assured we will continue to fight the DHS Rule, and that the fight is not yet over. In the meantime, the DHS Rule will remain in effect. We are also fighting the DOS Rule in a case called MRNY v. Pompeo. Return to this page updates on that case.
Litigation Update – COVID-19 and Public Charge
On January 27, 2020, the Supreme Court issued an order allowing the U.S. Department of Homeland Security to start applying the public charge rule while the litigation brought by The Legal Aid Society and co-counsel challenging the rule made its way through the courts. See Make the Road NY v. Cuccinelli. The Supreme Court’s decision resulted in the public charge rule going into effect on February 24. Today, April 13, the New York Attorney General filed a special motion with the Supreme Court requesting that the Rule be halted until the COVID-19 emergency is over because the health crisis is making the chilling effect caused by the public charge rule even more dangerous. If the New York Attorney General’s motion is granted, it would mean that the public charge rule would once again be set aside, this time temporarily during the public health crisis. Two of the plaintiffs in Legal Aid’s case filed declarations supporting the motion, Make the Road New York, our named plaintiff, and Catholic Charities Community Services-NY. They document the ways in which the public charge rule is causing immigrants to delay or decline COVID-19 related health care for fear of public charge.
Update: On April 28, 2020, after the U.S. Supreme Court declined to issue an order that would block the public charge rule during the state of emergency caused by the COVID-19 pandemic, but permitted the parties to seek relief in the trial court on April 24, 2020, the MRNY litigation team joined plaintiffs the States of New York, Connecticut and Vermont, and New York City in seeking a new injunction in the district court that would set aside the new public charge rule during the pendency of the crisis. The motion is supported by evidence of the many ways in which the public charge rule is exacerbating the impact of COVID-19 on immigrants and their families by discouraging access to health care, nutrition assistance and other benefits at the very time when such assistance is needed most to get through the public health and economic crisis caused by COVID-19. The plaintiffs have asked for their motion to be heard on May 5.
Important note to community members and advocates: Accessing COVID-19 testing and care WILL NOT count against an immigrant who is or may be subject to public charge in the future. Any community member or advocate with questions should call Legal Aid’s Immigration Helpline at 844-955-3424, Monday – Friday from 9 a.m. – 5p.m. Our public charge team can then call you back to answer additional questions relating to public charge. See also our updated FAQ on Public Charge which includes COVID-19 information, posted below.
Stay tuned to this page for updates.
When Did the New Public Charge Rules Go Into Effect?
Both the DHS and DOS public charge rules took effect on February 24, 2020.
Any application for adjustment of status (green card) postmarked on or after February 24, 2020 is subject to the new DHS Rule. Applicants to extend or change their nonimmigrant visa status have had to answer questions about certain public benefits use since February 24, 2020. Applications postmarked BEFORE February 24, 2020 are subject to the old rules.
The DOS public charge rule applies to consular interviews scheduled after February 24, 2020.
Benefits Use Under Both Rules
Under both of the new public charge rules, the use of non-cash benefits, specifically SNAP, federal Medicaid, and federal housing assistance BEFORE February 24, 2020, is not considered negatively.
So what does this mean for low-income immigrants?
For those clients who have yet to file an application for a green card, the Rules mean that it will be much harder to get over the public charge hurdle. This is true even if the client has never used government benefits, because the Rules penalize low-income people (especially anyone who makes less than 125 percent of the federal poverty level), lacks English proficiency, lacks education, has a disability, is under 18 or over 61 years of age, or runs afoul of any of several other discriminatory factors.
Read our updated Frequently Asked Questions – English
Read our updated Frequently Asked Questions – Arabic
Read our updated Frequently Asked Questions – Bengali
Read our updated Frequently Asked Questions – Chinese Simplified
Read our updated Frequently Asked Questions – Chinese Traditional
Read our updated Frequently Asked Questions – Farsi
Read our updated Frequently Asked Questions – French
Read our updated Frequently Asked Questions – Haitian Creole
Read our updated Frequently Asked Questions – Hindi
Read our updated Frequently Asked Questions – Korean
Read our updated Frequently Asked Questions – Nepali
Read our updated Frequently Asked Questions – Punjabi
Read our updated Frequently Asked Questions – Russian
Read our updated Frequently Asked Questions – Spanish
Read our updated Frequently Asked Questions – Urdu
On August 27, 2019, The Legal Aid Society, the Center for Constitutional Rights, and our pro bono counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP filed a complaint in federal district court in Manhattan on behalf of Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), and the Catholic Legal Immigration Network, Inc. (CLINIC), challenging the new regulation.
On October, 11, 2019 the federal court for the Southern District of New York blocked the Trump Administration’s new “public charge” rule, issuing a nationwide injunction.
On January 8, 2020, the federal Court of Appeals for the Second Circuit rejected the Trump Administration’s request for a stay to block the nationwide injunction.
On January 27, 2020, the Supreme Court granted the Trump Administration’s request for a stay to block the nationwide injunction. We are waiting to see when the government will choose to make the new rule effective.
Screening Tool and Attorney Referral Information
The Legal Aid Society, in partnership with the Empire Justice Center and Make The Road New York, has created a screening tool to assist attorneys, advocates, and other community-based providers with answering client questions about the new public charge regulation, as well as to provide referral information for additional assistance. Click the link below to download the tool.
On December 10, 2018, The Legal Aid Society shared public comments on the proposed rule changes governing public charge with the Department of Homeland Security, available here. As we stated in the comments:
“The Proposed Rule already has and will continue to make immigrant families even more fearful of accessing the critical government benefits for which Congress made them eligible, and thereby devastate the health and economic security of individuals and families and the communities we all share. . . . The Legal Aid Society’s Comments focus on the community we have served for over 140 years – New York City.”
How to Get Help
Clients who need more information on public charge and how it applies to them can call our Immigration Helpline at 844-955-3425, Monday – Friday from 9 a.m. – 5 p.m.
“The rule represents a brazen attempt to lay down the welcome mat for only the rich, while slamming the door on other immigrants. If adopted, the rule would dissuade immigrants who are here lawfully from accessing essential medical care and basic food assistance for their families. Simply put: the rule amounts to another attempt by the Trump Administration to tear families apart. As we have with other Trump Administration attacks on immigrants – from the Muslim ban to its cruel child separation policy — we will continue to push back on these xenophobic policies that marginalize our clients and other New Yorkers.”