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Under the public charge rule, immigrants to United States classified as Likely or Liable to become a Public Charge may be denied visas or permission to enter the country due to their disabilities or lack of economic resources. The term was introduced in the Immigration Act of 1882. The restriction has remained a major cause for denial of visas and lawful permanent residency ever since; in 1992, about half of those denied immigrant and non-immigrant visas for substantive reasons were denied due to the public charge rule. [1] However, the administrative definition of "public charge" has been subject to major changes, notably in 1999 and 2019.
The Immigration Act of 1882 found immigrants who were "unable to take care of himself or herself without becoming a public charge" unsuitable for American citizenship and therefore denied their entry. [2] In addition to LPC the act initiated a fifty cent head tax which would be used for bureaucratic processes. The act also denies entry of convicts.
The Immigration Act of 1891 continued this exclusion:
The following classes of aliens shall be excluded from admission into the United States ... All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists… [3]
The Immigration Act of 1903 allowed the deportation of immigrants who became a public charge within their first two years in the country. [4]
In its 1915 decision in Gegiow v. Uhl, the US Supreme Court found that the public charge restriction applied exclusively to those immigrants who "by reason of poverty, insanity, disease or disability would become a charge upon the public." [5]
The Immigration and Nationality Act (enacted in 1952, and amended in 1965) declares "any alien likely at any time to become a public charge" as inadmissible to the country and those who have received public benefits within their first five years in the United States as deportable. [6] [7]
Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is excludable. [8]
These INA restrictions often affect decisions about visas and admission to the country, but rarely serve as a cause for deportation. [6] [7]
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 raised the standards for sponsors of immigrants, requiring them to show greater financial capacity and obligating them to reimburse the government for means-tested public benefits received by the immigrant they sponsor. [6]
Granting of visas to the United States is carried out by consular officials under the Department of State, while awarding immigration statuses such as Lawful Permanent Resident is done by the US Citizenship and Immigration Service (USCIS), and previous by the Immigration and Naturalization Service (INS). Charles Wheeler stated that prior to 1999, "DOS and INS officers exercised broad powers in interpreting this provision. Unfortunately, they sometimes applied different standards and imposed inconsistent requirements." [9]
Historian Douglas Baynton writes that "The 'public charge' provision was intended to encompass people with disabilities more generally and was left to the examining officer's discretion." [10]
In May 1999, the Immigration and Nationalization Service issued formal guidance, "Field Guidance on Deportability and Inadmissibility on Public Charge Ground," defining a public charge as someone "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense." [11] [12] Examples of disqualifying assistance include Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program, and state or local cash assistance programs (often called "general assistance") for income maintenance. [12] The guidance explicitly excluded Medicaid, food stamps, WIC, unemployment insurance, housing benefits, child care subsidies, or other non-cash benefits from qualifying immigrants as public charges. [12] [13]
On August 12, 2019, U.S. Citizenship and Immigration Services (USCIS) formally announced a new rule restricting poorer immigrants from attaining Lawful Permanent Resident status, popularly known as a Green Card. Under the rule, which took effect on October 15, 2019, legal immigrants who have received public benefits such as Supplemental Security Income, Temporary Assistance for Needy Families, the Supplemental Nutrition Assistance Program, Medicaid, and public housing assistance for more than a total of twelve months within any thirty-six month period may be classified as a "public charge" ineligible for permanent residency. [14] Immigration officials may investigate the health, income, wealth, education, and family of applicants for permanent residency to predict whether they will become a public charge in the future. [15] The term "public charge" appears in the Immigration and Nationality Act, but is not defined by the law. Refugees, asylum seekers, pregnant women, children, and family members of those serving in the Armed Forces are excluded from the restrictions. [14] The Trump administration estimates that 58% of households headed by non-citizens use a public welfare program and half use Medicaid. [16]
Ken Cuccinelli, the acting director of USCIS stated the policy will "have the long-term benefit of protecting taxpayers by ensuring people who are immigrating to this country don’t become public burdens, that they can stand on their own two feet, as immigrants in years past have done." [14] The National Immigration Law Center stated that the rule "will have a dire humanitarian impact, forcing some families to forgo critical lifesaving health care and nutrition. The damage will be felt for decades to come." [15] The law center announced it would sue to prevent the policy from taking effect. [14] In January 2020, the US Supreme Court ruled that the Trump administration could begin enforcing the new rules while related lawsuits processed through the federal court system, [17] and Citizenship and Immigration Services subsequently began enforcement of the public charge rule on February 24, 2020. [18]
On July 29, 2020, the Southern District Court in New York enjoined the rule from being enforced during the Covid-19 pandemic, but the Second Circuit issued a partial stay on August 12 and a full stay on September 11. [19]
On November 2, 2020, the Northern District Court in Illinois determined that the rule violated the Administrative Procedure Act, but the Seventh Circuit issued a stay the very next day, allowing the rule to continue to be enforced. [20]
In March 2021, the 2019 public charge rule was repealed by the U.S. Citizenship and Immigration Service (USCIS). However, public charges remained, but would instead comply inadmissibility statute consistent with the USCIS 1999 Interim Field Guidance rule. [21]
Individuals who have physical or mental ailments along with pregnant women are most likely to be proposed as a public charge. Immigrants who were found with physical or mental ailments were prospective for exclusion. Their ailments were seen to affect their ability to obtain employment and thus qualified them as a public charge.
Unmarried pregnant women seeking to migrate into the United States was presumed a public charge on account of their condition, both in the early twentieth and early twenty-first century. [22] [23] These women were excluded from entry and were barred from arriving into the United States. In recent years, pregnant Mexican women visiting United States doctors present doctor's notes confirming they have prepaid their bills in order to cross the border. [23]
In addition, child-rearing amongst immigrant women is also presumptive causes of public charge. Although support for children was legal, undocumented women were denied legal citizenship due to the public assistance that their children received. In these cases and those of physical and mental ailments would render an obligation to government however, the government sought no obligation in this manner.
Immigrants who arrived with only twenty-five to forty dollars and with no source of employment were deemed liable to become a public charge. Immigrants were investigated through means of competent evidence.
Competent evidence includes the following;
In the early 1900s, The Book of Instructions for the Medical Inspection of Immigrants listed pregnancy (regardless of marital status), and the sexually transmitted diseases syphilis and gonorrhea as grounds for exclusion. [4]
Immigrants who had legally entered the United States but subsequently acquired any ailments that compromised their ability to earn a living were sought for deportation. These individuals had to leave within one year. Funds were distributed for their deportation by the Bureau of Immigration (Immigration Fund).
In the early 1900s, Maria Gambacurta, a twenty-year-old immigrant from Italy who had recently given birth, along with her US citizen child, was deported because the hospital in which they were seeking care was supported through public funds. [24]
Upon her arrival in New York City in 1902, Isabel Gonzalez was determined as liable to become a public charge as a young, pregnant, and single Puerto Rican immigrant. [25] She was denied entry into the United States despite the arguments made on her behalf by a fiancé and family members. [25] Nevertheless, Gonzalez was able to argue her case to the U.S. Supreme Court. Gonzalez did not argue her condition as likely to become a public charge; rather, she challenged the state of Puerto Rican immigrants in America claiming citizenship. [25] It was found that she would be considered not an alien under immigration, but she would be determined a "non-citizen national". [25]
The United States Immigration and Naturalization Service (INS) was an agency of the U.S. Department of Labor from 1933 to 1940 and the U.S. Department of Justice from 1940 to 2003.
A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. Green card holders are formally known as lawful permanent residents (LPRs). As of 2019, there are an estimated 13.9 million green card holders, of whom 9.1 million are eligible to become United States citizens. Approximately 65,000 of them serve in the U.S. Armed Forces.
The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H), that allows U.S. employers to employ foreign workers in specialty occupations. A specialty occupation requires the application of specialized knowledge and a bachelor's degree or the equivalent of work experience. The duration of stay is three years, extendable to six years, after which the visa holder can reapply. Laws limit the number of H-1B visas that are issued each year. There exist congressionally mandated caps limiting the number of H-1B visas that can be issued each fiscal year, which is 65,000 visas, and an additional 20,000 set aside for those graduating with master’s degrees or higher from a U.S. college or university. An employer must sponsor individuals for the visa. USCIS estimates there are 583,420 foreign nationals on H-1B visas as of September 30, 2019. The number of issued H-1B visas have quadrupled since the first year these visas were issued in 1991. There were 206,002 initial and continuing H-1B visas issued in 2022.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made major changes to the Immigration and Nationality Act (INA). IIRIRA's changes became effective on April 1, 1997.
An Application for Waiver of Grounds of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. The application is submitted to the consular office, U.S. Citizenship and Immigration Services office or immigration court considering the immigrant visa or adjustment of status application.
A K-1 visa is a visa issued to the fiancé or fiancée of a United States citizen to enter the United States. A K-1 visa requires a foreigner to marry his or her U.S. citizen petitioner within 90 days of entry, or depart the United States. Once the couple marries, the foreign citizen can adjust status to become a lawful permanent resident of the United States. Although a K-1 visa is legally classified as a non-immigrant visa, it usually leads to important immigration benefits and is therefore often processed by the Immigrant Visa section of United States embassies and consulates worldwide.
Parole, in the immigration laws of the United States, generally refers to official permission to enter and remain temporarily in the United States, under the supervision of the U.S. Department of Homeland Security (DHS), without formal admission, and while remaining an applicant for admission.
U.S. Citizenship and Immigration Services (USCIS) is an agency of the United States Department of Homeland Security (DHS) that administers the country's naturalization and immigration system. It is a successor to the Immigration and Naturalization Service (INS), which was dissolved by the Homeland Security Act of 2002 and replaced by three components within the DHS: USCIS, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).
Permanent Residence Under Color of Law (PRUCOL) is an immigration-related status used under some US federal and state laws for determining eligibility for some public benefits, an example being unemployment benefits. It allows for a broader group of non-citizens to qualify for benefits than just those with green cards. This status is used solely for benefit application purposes and is not recognized as an immigration status by the U.S. Citizenship and Immigration Services (USCIS). This category was created by the courts and is a public benefits eligibility category. For a person to be residing "under color of law," the USCIS must know of the person’s presence in the U.S., and must provide the person with written assurance that enforcement of deportation is not planned. A person residing under PRUCOL status cannot directly apply for U.S. citizenship or sponsor family members to obtain U.S. Citizenship. A person from any country, who resides in the United States without current legal immigration status including, but not limited to, citizenship, permanent residency, unexpired immigrant visa, is an undocumented person. They are ineligible for most federal public benefits.
Adjustment of status in the Immigration and Nationality Act (INA) of the United States refers to the legal process of conferring permanent residency upon any alien who is a refugee, asylum seeker, nonpermanent resident, conditional entrant, parolee, and so forth.
Temporary protected status (TPS) is given by the United States government to eligible nationals of designated countries, as determined by the Secretary of Homeland Security, who are present in the United States. In general, the Secretary of Homeland Security may grant temporary protected status to people already present in the United States who are nationals of a country experiencing ongoing armed conflict, an environmental disaster, or any temporary or extraordinary conditions that would prevent the foreign national from returning safely and assimilating into their duty. Temporary protected status allows beneficiaries to live and, in some cases, work in the United States for a limited amount of time. As of March 2022, there are more than 400,000 foreign nationals in Temporary Protected Status.
The Immigration Act of 1903, also called the Anarchist Exclusion Act, was a law of the United States regulating immigration. It codified previous immigration law, and added four inadmissible classes: anarchists, people with epilepsy, beggars, and importers of prostitutes. It had minimal impact and its provisions related to anarchists were expanded in the Immigration Act of 1918.
Deferred Action for Childhood Arrivals, colloquially referred to as DACA, is a United States immigration policy that allows some individuals with unlawful presence in the United States after being brought to the country as children to receive a renewable two-year period of deferred action from deportation and become eligible for an employment authorization document in the U.S. To be eligible for the program, recipients cannot have felonies or serious misdemeanors on their records. Unlike the proposed DREAM Act, DACA does not provide a path to citizenship for recipients. The policy, an executive branch memorandum, was announced by President Barack Obama on June 15, 2012. U.S. Citizenship and Immigration Services (USCIS) began accepting applications for the program on August 15, 2012.
The U visa is a United States nonimmigrant visa which is set aside for victims of crimes who have suffered substantial mental or physical abuse while in the U.S. and who are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. It permits such victims to enter or remain in the US when they might not otherwise be able to do so. An advantage that comes along with the acceptance of a U-visa is the individual will have deportation protection which is important when they are collaborating with law enforcement.
Consular nonreviewability refers to the doctrine in immigration law in the United States where the visa decisions made by United States consular officers cannot be appealed in the United States judicial system. It is closely related to the plenary power doctrine that immunizes from judicial review the substantive immigration decisions of the United States Congress and the executive branch of the United States government.
The Legal Immigration Family Equity Act of 2000, also known as the LIFE Act and as the Legal Immigration and Family Equity Act, along with its Amendments, made some changes to laws surrounding immigration for family members of United States citizens and Lawful Permanent Residents, as well as people eligible for employment-based immigrant visas, in the direction of making it easier for family members and immigrant workers to move to and adjust status within the United States. It was passed on December 21, 2000, as title XI of Pub. L. 106–553 (text)(PDF).
Special Immigrant Juvenile Status (SIJS) is a special way for minors currently in the United States to adjust status to that of Lawful Permanent Resident despite unauthorized entry or unlawful presence in the United States, that might usually make them inadmissible to the United States and create bars to Adjustment of Status. The key criterion for SIJS is abuse, neglect, or abandonment by one or both parents.
Systematic Alien Verification for Entitlements (SAVE) is a program managed by United States Citizenship and Immigration Services (USCIS), a branch of the U.S. Department of Homeland Security (DHS). SAVE facilitates lookups on the immigration and nationality status of individuals in the United States. It is an intergovernmental initiative designed to help federal, state, tribal, and local government agencies, or by a contractor acting on the agency's behalf, to determine eligibility for benefits, licenses or grants, government credentials, or to conduct background investigations. It is one of two programs that uses the Verification Information System (VIS). The other program is the Electronic Employment Eligibility Verification Program, also known as E-Verify, and is used by employers to verify the immigration status of employees. For additional verification, SAVE relies on the Person Centric Query System (PCQS).
Immigration policy, including illegal immigration to the United States, was a signature issue of former U.S. president Donald Trump's presidential campaign, and his proposed reforms and remarks about this issue generated much publicity. Trump has repeatedly said that illegal immigrants are criminals.
The U.S. Citizenship Act of 2021 was a legislative bill that was proposed by President Joe Biden on his first day in office. It was formally introduced in the House by Representative Linda Sánchez. It died with the ending of the 117th Congress.