Public Charge

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Latest litigation update: January 13, 2020

The Department of Homeland Security has submitted an application to the U.S. Supreme Court, asking the Court to grant a stay of the injunction that the Second Circuit Court of Appeals denied earlier this month. The current nationwide injunction prevents DHS from implementing the rule while the various lawsuits work their way through the courts. Opposing parties have until January 22, 2020 to file a response.

For more on how DHS’ public charge rule would impact people with disabilities if it were to become law, check out our fact sheet and explainer. The latest updates on the ongoing litigation 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 CaliforniaWashington, and New York, filed cases against the Trump Administration to block the new rule and were successful in delaying implementation of the rule. 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.   

Litigation Highlights

August 13, 2019: First lawsuit filed against the public charge rule in federal district court in the Northern District of California. Eight more lawsuits followed throughout August and September across the country.

September 9, 2019: 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 an amicus brief in support of litigation in federal district court in Washington state to stop the U.S. Department of Homeland Security (DHS) from implementing its new public charge rule and later filed amicus briefs in support of litigation in federal district courts in New York (in two separate cases, here and here), California, and Illinois.

October 11, 2019: Federal courts in New York, Washington state, and California issued preliminary injunctions to stop the public charge rule. The injunctions issued in New York (which can be read here and here) and Washington state were nationwide injunctions. Those courts also found that the rule was likely to discriminate against people with disabilities. The preliminary injunction issued by a federal court in California prevented the rule from going into effect only in the plaintiff states.

October 14, 2019: Federal courts in Illinois and Maryland issued preliminary injunctions. The court in Maryland issued a nationwide injunction and the court in Illinois also issued a preliminary injunction, only applying in Illinois. Our full statement on all of the preliminary injunctions can be found here.

October 30, 2019: The Department of Justice filed notices of appeal in eight of the nine cases challenging the Department of Homeland Security’s public charge rule (a decision in the Baltimore case has been deferred in light of the injunctions issued in other cases).

November 26, 2019: CPR, the ACLU, and 17 other disability advocacy organizations represented by Latham & Watkins filed an amicus brief opposing the Department of Homeland Security’s (DHS) motion to stay the preliminary injunction issued by a federal district court in New York in October.

December 5, 2019: The Ninth Circuit Court of Appeals granted a stay of the nationwide injunction issued by a federal district court in Washington state.

December 9, 2019: The Fourth Circuit Court of Appeals granted a stay of the nationwide injunction issued by a federal district court in Maryland in October.

January 8, 2020: The Second Circuit Court of Appeals denied a stay of the nationwide injunction of the public charge rule issued by a federal court in New York in October, meaning that despite the stays granted in the Fourth and Ninth Circuits in December, the nationwide injunction against the rule remains intact.

January 13, 2020: DHS appealed to the U.S. Supreme Court asking the Court to grant the stay of injunction that the Second Circuit Court of Appeals denied.

Resources and Media on the Final Public Charge Rule

Resources

Public Charge Update: What Advocates Need to Know Now, Protecting Immigrant Families (Dec. 18, 2019)

Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 2019)

Public Charge Analysis and FAQs, Protecting Immigrant Families (Aug. 2019)

Public Charge:  A Threat to Immigrant Families, Protecting Immigrant Families (Aug. 2019)

Let’s Talk About Public Charge , Protecting Immigrant Families (Aug. 2019)

Public Charge:  Getting the Help You Need, Protecting Immigrant Families (Aug. 2019)

Public Charge Webinar, Protecting Immigrant Families (Aug. 2019)

Final “Public Charge” Rule Discriminates against Lawfully Present Immigrants and Visa Applicants, Harming Health Families USA (Aug. 2019)

Immigrant Health Under Attack: Trump’s Public Charge Rule Webinar, Families USA (Aug. 2019)

Media

Disability rights groups join challenge to ‘public charge’ rule (The Hill, 9/11/19)

Trump’s New Green Card Policy Disproportionally Affects Immigrants With Disabilities (Forbes, 8/13/19)

Pediatricians speak out: A ‘public charge rule’ is dangerous for children (The Hill, 9/1/19)

Trump administration’s ‘public charge’ rule has chilling effect on benefits for immigrants’ children (LA Times, 9/3/19)

Trump Is Now Going to Make Life Hell for Immigrants With Disabilities (Vice, 8/16/19)

Trump officials move to deny greencards, path to citizenship for poor immigrants (Washington Post, 8/12/19)

Trump Policy  Favors Wealthier Immigrants for Green Cards (New York Times, 8/12/19)

Trump to deny green cards to immigrants receiving public benefits (Politico, 8/12/19)

Comments and Information on the Proposed Public Charge Rule

Comments Submitted on the Proposed Public Charge Rule

CPR Comments

NHeLP Comments

National Disability Rights Network Comments

Consortium for Citizens with Disabilities Comments

ACLU Comments

Access Living Comments on Proposed Changes to the Public Charge Rule

Justice In Aging Comments

Disability Rights Education and Defense Fund (DREDF) Comments

Autistic Self-Advocacy Network (ASAN) Comments

National Council on Aging Comments

Kaiser Permanente Comments

Community Catalyst Comments

Center for American Progress Comments

Media and Resources on the Proposed Public Charge Rule

How the Proposed Public Charge Rule Will Hurt People with Disabilities, CPR, The Arc, Autistic Self Advocacy Network (Nov. 2018)

Explainer: Impact of the Public Charge Rule Change on People with Disabilities, The Arc, Autistic Self Advocacy Network, CPR (Nov. 2018)

Proposed Changes to “Public Charge” Policies for Immigrants: Implications for Health Coverage, Kaiser Family Foundation

America’s Leading Health Plans Oppose Public Charge, Protecting Immigrant Families

Trump’s Public Charge: Poor, Disabled Immigrants Need Not Apply, Disability Rights Education and Defense Fund (DREDF)

Proposed Changes to Public Charge: Quick Analysis, Fact Sheet from Protecting Immigrant Families

Resources List from Protecting Immigrant Families

The Health Impact of the Proposed Public Charge Rules, Health Affairs (9/29/18)

DHS’ Proposed Rule: What May Change With Public Charge?, NHeLP (9/27/18)

Trump Targets Health of Immigrant Families In Seeking Change of Longstanding Immigration Law, NHeLP (9/24/18)

Public Charge: A Threat to the Health & Well-being of Older Adults in Immigrant Families Justice in Aging Fact Sheet (9/14/18)

Estimated Impacts of the Proposed Public Charge Rule on Immigrants and Medicaid, Kaiser Family Foundation (10/11/18)

A New Threat to Immigrants’ Health – The Public Charge Rule, New England Journal of Medicine (8/1/18)

Statements Opposing the Proposed Public Charge Rule

Center for Public Representation

National Council on Independent Living

The Arc

Autistic Self Advocacy Network

Center for American Progress

Consortium for Citizens with Disabilities (CCD)

Center on Budget and Policy Priorities

Jewish Federations of North America (JFNA)

American Association of People with Disabilities (AAPD)

U.S. Conference of Mayors

Coalition on Human Needs

Background

The “public charge” test is not new in federal immigration law. It is designed to identify people who may depend on government benefits as their main source of support. If the government determines someone is likely to become a “public charge,” the government can deny admission to the U.S. or refuse an application for lawful permanent residency.  However, under current law only a very narrow set of programs are considered in determining a “public charge” – cash assistance (such as Supplemental Security Income (SSI) or Temporary Assistance for Needy Families (TANF)) and government funded institutional care (like Medicaid-funded nursing homes). 

The rule was published in the federal register and was officially open for public comment (a required step toward making this a binding federal regulation) through December 10, 2018.  Over 260,000 comments were submitted opposing the rule.

The final public charge rule will be devastating to people with disabilities.  It  greatly expands the benefits that count in the “public charge” test.  It would include many programs that help people meet basic needs, such as Medicaid, food assistance, housing assistance and comparable state and local programs.  Many people with disabilities and their families rely on these programs, especially Medicaid.  The rule also greatly expands how health — including disability — is considered.  Having a disability or chronic health condition is counted as a negative factor.  If a person does not have private insurance that would cover all the medical costs of a disability or chronic condition, that counts as a “heavily weighted” negative factor.  Because many important community services are only available through Medicaid and not covered by private insurance, this factor will also count against most people with disabilities.  

Data Resources on the Impact of the Public Charge Rule
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