[Editor’s Note: As of September 22, 2020, the Department of Homeland Security’s new rules on public charge are in effect nationwide.]
The COVID-19 pandemic has upended every aspect of our lives – health, work, home life, financial stability – and for immigrant communities, COVID-19 has changed the public charge rules, too. At the end of July 2020, nationwide injunctions blocked the implementation, application, and enforcement of the new public charge rules that went into effect in February 2020. But just a couple of weeks later, the 2nd Circuit narrowed the injunction to just New York, Connecticut, and Vermont.
Readers of SayAhhh! might be experiencing that strange sense of déjà vu. Haven’t we been here before? The short answer is yes. The new public charge rules, which essentially add a wealth test to our immigration system, were finalized in August 2019 and slated to go into effect in October of that year. But several lawsuits were filed and injunctions were granted by three district court judges to prevent the rules from going forward nationwide while the cases made their way through the courts. Two of the nationwide injunctions were reversed on appeal, with only the 2nd Circuit upholding the lower court ruling and preventing the rules from taking effect. But in January 2020, the Supreme Court weighed in, lifting the remaining injunction in a 5-4 opinion that admonished the “overuse” of nationwide injunctions. The Supreme Court had the final word on implementation, and the rules went into effect on February 24, 2020.
But then COVID-19 hit and litigants in the earlier cases asked the Supreme Court to reconsider their decision in light of the pandemic. The Supreme Court declined to do so, but allowed the litigants to file again with the trial court. And in that round, opponents of the new public charge policy won – the United States District Court for the Southern District of New York granted a new, nationwide injunction on July 29, 2020 – blocking the rules from being implemented for the duration of the national emergency related to COVID-19.
The District Court found that circumstances had significantly changed after the Supreme Court’s ruling and that the government’s actions did not sufficiently mitigate the harms, therefore another nationwide injunction to stop the rules is justified.
“Any policy that deters residents from seeking testing and treatment for COVID-19 increases the risk of infection for such residents and the public. Adverse government action that targets immigrants, however, is particularly dangerous during a pandemic. Immigrants make up a substantial portion of workers in essential industries who have continued to work throughout the national emergency and interact with large swaths of the population, whether in healthcare, agriculture, food packing and distribution, or sanitation, among other industries. Essential workers have been disproportionately affected by COVID-19. Protecting them is in their best interest and the interest of the public at large. When individuals with a high percentage of public exposure are fearful of receiving medical care for a deadly, contagious disease, the health and security of communities across the country is jeopardized.”
This news came as a welcome relief, but it was short-lived. On August 12, the 2nd Circuit narrowed the Judge’s ruling so the temporary freeze on the public charge rules only apply to states under the Court’s jurisdiction – New York, Connecticut, and Vermont. But we should all brace for even more changes as the cases challenging the new public charge rules work their way through the courts. If the case ends up before the Supreme Court again, the Justices may find that the justification for even a limited injunction is insufficient (as the Supreme Court found in an earlier case involving an injunction for Illinois only).
Meanwhile, no court has issued a ruling on the merits of the cases yet, that is whether the rule itself is legal. All of these confusing rulings so far have simply addressed the question of whether the Administration can proceed with implementing the public charge rule while the cases questioning the legality of the rule play out.
As with the earlier ups and downs surrounding this highly controversial and harmful rule, it’s important to fight fear with facts and some key facts remain unchanged:
- If you live in the U.S. and your children qualify for Medicaid or CHIP, you should enroll them.
- Benefits used by family members will not count against the applicant, even if the rules are allowed to go forward. 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.
We should also keep a keen eye on the next round of COVID relief that is currently being negotiated in Congress. Progress has stalled since the CARES Act was passed back in March, and immigrant communities still face gaps in coverage and barriers to access even when testing and treatment should be provided.
If the COVID pandemic has taught us nothing else, it has taught us that everything can change and nothing is simple. But as things stand today, children eligible for Medicaid and CHIP should continue to enroll. Having health coverage can help children stay healthy and protect the whole family from financial instability due to unforeseen medical costs. USCIS has also announced that immigrants can seek testing, treatment, and prevention of COVID-19 without fear of immigration consequences due to public charge rules. To learn more about immigrant eligibility for public programs during COVID-19, visit the Protecting Immigrant Families website and review their table of benefit eligibility.