[UPDATE: On February 21, 2020 the Supreme Court lifted the public charge injunction in Illinois. This means that as of February 24, 2020, the regulations from the Department of Homeland Security take effect nationwide while the litigation proceeds on the merits in the lower courts.]
Earlier this week the Supreme Court issued a ruling to allow the Department of Homeland Security (DHS) to implement their new public charge rules on inadmissibility during the ongoing legal battles. The ruling followed a series of decisions in the lower courts, and it caught many of us by surprise. I’ll recap how we got here in a moment, but I think it’s important to emphasize one key point at the outset: If you live in the U.S. and your children qualify for Medicaid or CHIP, you should enroll them. Read on for the details.
In October 2018, DHS issued a notice of proposed rulemaking outlining draconian changes to the public charge grounds of inadmissibility for legal immigrants seeking permanent status in the U.S., such as a green card. After receiving over 260,000 comments, the vast majority of which opposed the proposed changes, DHS finalized the rule in August 2019. The rule was slated to take effect on October 15, 2019, but several lawsuits were filed and three district court judges issued nationwide injunctions to temporarily stop the rule. Two other district court judges issued more limited injunctions, blocking the rule from taking effect in select states.
In the weeks and months that followed, the Trump Administration appealed these decisions halting the rule. The appeals were heard by four different circuit courts – the 2nd, 4th, 7th, and 9th circuits. In two of the cases (2nd and 4th circuits), the circuit court reversed the lower court rulings imposing nationwide injunctions and said the Administration should be able to proceed with implementation. The 7th circuit supported the lower court decision, but the injunction at issue there was limited to the state of Illinois. The only remaining nationwide injunction was upheld by the 2nd circuit earlier this month, effectively preventing the Administration from implementing the DHS public charge rule nationwide. Then on January 27, 2020, the Supreme Court weighed in. In a 5-4 decision, the Supreme Court lifted the 2nd circuit’s nationwide injunction, effectively allowing the DHS public charge rule to be implemented.
It’s important to note that all the hearings and rulings so far – including the Supreme Court ruling – have been addressing the question of whether the Administration can proceed with implementing the DHS public charge rule while the lawsuits work their way through the courts. No judge has issued a ruling yet on the merits of the cases – that is, whether the rule itself is lawful.
In other words, the Supreme Court majority is taking issue with the “overuse” of nationwide injunctions generally (and in this instance) so they are allowing the Administration to implement the DHS rule while the many lawsuits play out. They have not said that the DHS public charge rule is lawful, or even that the Administration is likely to win in court. They have simply said that the courts should not prevent the rule from taking effect nationwide while the merits of the many legal challenges to the rule are considered. In fact, the Supreme Court ruling allows the statewide injunction from the 7th circuit to remain in effect, continuing to block the rule from taking effect in Illinois.
It’s unclear how exactly this will play out. The Supreme Court’s ruling allows DHS to implement the public charge rule immediately, but the U.S. Citizenship and Immigration Services (USCIS) announced it intends to implement the new rules for applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. This is probably because DHS has some additional steps to take first, such as finalizing forms to reflect the new rules. Also, though DHS reiterated that the new rules will be implemented everywhere except Illinois, it’s unclear how that will work in practice.
Let’s re-cap what we do know:
- The public charge test for inadmissibility does not apply to everyone; it applies to only certain groups of immigrants. For example, public charge does NOT apply to refugees; asylees; survivors of domestic violence, trafficking, or other serious crimes; juveniles who have been abused, neglected, or abandoned by a parent; and other categories of noncitizens.
- Of those immigrant groups subject to the public charge test for inadmissibility, very few are eligible for public benefits. For the small subset of immigrants subject to the test and eligible for benefits, there are some important exceptions related to benefit use. For example, Medicaid benefits received by children under age 21 and pregnant women are NOT included.
- The public charge test is prospective and based on the totality of the circumstances, so benefit use is just one of many factors that also include age, health, family size, financial status, and education.
- Benefits used by family members will not count against the applicant. For example, in a mixed status family where the parent is applying for a green card and the children are citizens, benefits used by the citizen children will not count against the parent.
To be clear, nothing is written in stone. The new test, once implemented, is subjective and could result in different outcomes for similarly situated applicants. Future administrations could also change the rules again. But where things stand today, children eligible for Medicaid and CHIP should continue to be enrolled. In fact, having health coverage for your children is an important part of protecting your family against the financial risk of an unexpected, large hospital bill that could make it harder to pass the new income test.
Don’t just take my word for it – learn and share the facts. The Trump Administration is actively spreading fear among immigrant communities with this rule and many other policy changes. Fight fear with facts. Go to https://protectingimmigrantfamilies.org/know-your-rights/ to learn more.