Update: March 9, 2021
The Department of Justice notified the Supreme Court today that it would no longer defend the Trump Administration’s discriminatory public charge rule and the Supreme Court agreed to dismiss the case. This means that the public charge rule is no longer in effect.
The public charge rule put in place a new test for people who are applying for visas or green cards. It looked at people’s health, including whether they have a disability, and whether they have used or might one day use public benefits, including Medicaid-funded home and community-based services on which many people with disabilities rely.
The Biden Administration issued an executive order last month to begin the process of reversing the rule. For now, the 1999 field guidance on public charge determinations is in effect.
Additional background information on the rule, resources, and media can be found below and more on the litigation opposing the rule can be found here.
Overview of the Public Charge Rule
On August 12, 2019, the Department of Homeland Security (DHS) announced that it had finalized the “public charge” rule. The final public charge rule, like the proposed rule, will be devastating to — and explicitly discriminates against — people with disabilities and their families who are seeking to enter the U.S. or applying for a green card. CPR issued this statement condemning the new public charge rule.
The public charge rule is unfair and harmful to people with disabilities and their families who are seeking to enter the U.S. or applying for a green card. The rule expressly discriminates against people with disabilities and chronic health conditions. This rule also means that an individual could be denied admission or have their application for lawful permanent residency denied because they used (or even might use in the future) a wide range of government programs, including Medicaid, housing assistance, or food assistance. Because Medicaid provides critical services that help people with disabilities live in the community and that are not generally available through private insurance, this rule will especially harm people with disabilities and their families. It not only could prevent them from entering the US or becoming permanent residents, but will discourage eligible families from using critical public services for fear of harming their immigration status.
The rule was scheduled to go into effect on October 15, 2019, but twenty one states, led by California, Washington, and New York, filed cases against the Trump Administration to block the new rule and were initially successful in delaying implementation of the rule. However, the Supreme Court, in a pair of 5-4 decisions (which you can read here and here), decided to allow the rule to go into effect while the lawsuits make their way through the courts, and the Administration then announced the rule would go into effect on February 24, 2020. For more on the rule’s implementation, you can read our alert here. In April, the Court decided not to modify or lift its stay in light of the COVID-19 pandemic, but did state that lower courts could consider the issue.
On March 16, 2020, the US Citizenship and Immigration Services (USCIS) announced that in response to the coronavirus pandemic it “will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” in making public charge determinations, “even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).” However, on July 29, 2020, a federal district court in New York found that announcement was insufficient to ensure the rule would not cause harm during the pandemic and issued a temporary injunction against the rule, preventing it from being implemented, applied, or enforced nationwide while the national public health emergency declared by the Trump Administration is ongoing.
The Center for Public Representation, American Civil Liberties Union, and sixteen other national disability advocacy groups represented by the global law firm Latham & Watkins filed amicus briefs in support of the litigation. The advocacy groups – representing tens of thousands of people with disabilities and their families across the country – claim that the new public charge rule will prevent people with disabilities from entering this country or becoming legal residents in violation of federal disability law. Read our full press release here and learn more about the lawsuits here.
A fact sheet reviewing the basics of the rule and its impact on people with disabilities is available here. A more in-depth explanation of the rule and the lawsuits challenging it can be found here. Learn more about the final rule at the Protecting Immigrant Families Coalition website, and keep checking back here for updates.