“PUBLIC CHARGES” – INCREASINGLY USED BY THE TRUMP ADMINISTRATION TO SUPPORT VISA DENIALS

Written by: Taher Kameli, Esq.

There seems to be no end to the arguments being used by the Trump administration to restrict immigrant rights.  An increasingly used strategy by the Trump administration is to argue that a visa should be denied because the immigrant would become a “public charge”.  Based on how the Trump administration interprets the term, “public charge”, an increasing number of immigrants, especially Mexicans, are being denied visas to the United States.

“Public charge” is a term used by U.S. immigration officials to refer to a person who is considered primarily dependent on the government for support.  An immigrant who is found to be likely to become a “public charge” may be denied admission to the United States or lawful permanent resident status.

The Trump administration, initially in changes to the State Department’s Foreign Affairs Manual in January, 2018 and subsequently in a proposed regulation in October, 2018, has made 2 key changes to the construction of the term, “public charge”.  First, previously, an “affidavit of support”, signed by a U.S. citizen or permanent resident making at least 125 percent of the U.S. poverty level for such person’s household size and offering to act as sponsor of an immigrant, was typically treated as sufficient evidence to avoid classification of the immigrant as a “public charge”.  Now, under the Trump administration, an “affidavit of support” is just one factor among many, and not sufficient evidence, in assessing whether an immigrant should be classified as a “public charge”. Second, previously, the prior or current use of health services, nutrition services, or other non-cash government benefits by an immigrant or the immigrant’s family was not considered in determining the immigrant’s “public charge” status.  Now, under the Trump administration, the prior or current use of health services, nutrition services, or other non-cash government benefits by an immigrant or the immigrant’s family (even if they are U.S. citizens) can be considered by consular officials as relevant on the “public charge” issue. Thus, the use of Medicaid or food stamps (as non-cash government benefits) by an immigrant or the immigrant’s family possibly can lead to visa denials because of the Trump administration’s interpretation of the term, “public charge”.

While certainly not the only reason for visa denials, these changes in the construction of the term, “public charge”, have definitely been a cause of a significant increase in “public charge” visa denials.  In the 2018 fiscal year (which ended in September, and thus after the above-described changes to the State Department’s Foreign Affairs Manual in January, 2018, but even before the above-described proposed regulation in October, 2018 ), nearly 13,500 immigrant visa applications were denied on “public charge” grounds – quadruple the number in the previous fiscal year and the highest total since 2004.  Immigration lawyers have said that enforcement with respect to the “public charges” issue has been especially rigorous at the U.S. consulate in Ciudad Juarez, where all Mexican immigrant visa applications are processed. Mexicans received 11 percent fewer immigrant visas in fiscal year 2018 compared in 2017 (much higher than the 4.7 percent overall decline in such visas to people of all nationalities over such period).

One worry is that a collateral effect of the Trump administration’s harsher approach to the “public charge” issue is that immigrants may be discouraged to seek non-cash government benefits, such as Medicaid and food stamps.  Such a result could have disastrous consequences for immigrant families whose daily livelihoods depend on the receipt of these benefits. While litigation has been filed to challenge the Trump administration’s interpretation of the “public charge” issue, in the interim, the Law Offices of Kameli and Associates, with its extensive immigration law experience, can guide immigrants on how to best meet the “public charge” issue without sacrificing critical government benefits.  Please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for assistance on this significant issue.