Immigration Rule Sparks Legal Battle

Rule change expands definition of ‘public charge’

The Trump administration on Aug. 12 finalized a rule that would tighten immigration restrictions for visa and green card applicants considered likely to receive public benefits in the future, sparking outrage among immigrant rights advocates and prompting more than a dozen states, including Colorado, to file a lawsuit to block the change.

The rule change, set to take effect Oct. 15, broadens the definition of who is considered a “public charge” inadmissible to the U.S. The term has been used in U.S. immigration law since 1882, but its interpretation has shifted over the years. The previous definition, which was clarified in a 1999 regulation, identified a public charge as someone who is “primarily dependent” on government benefits for more than half of their income and support.

The new rule would define the term as anyone who has received public benefits for more than 12 months out of any 36-month period and lower the standard for inadmissibility to anyone “more likely than not” to become a public charge in the future.

The change also expands the list of benefits — previously limited to cash assistance or long-term institutional care — that could exclude someone from obtaining a green card. Under the new rule, receiving non-cash benefits like Medicaid and subsidized housing could disqualify an applicant.

Additionally, more groups will have to prove they can pass the stricter public charge test. While the new rule doesn’t apply to refugees, asylum seekers, victims of crimes seeking U visas and a few other categories, the vast majority of immigrants seeking permanent resident status, whether sponsored by family or an employer, will be affected.

David Kolko, managing partner at Denver immigration firm Kolko & Casey, said that along with subjecting hundreds of thousands of employment-based applicants to the new standard, the rule places an additional burden on millions seeking green cards through family.

Under the new rule, applicants will be screened for their use of benefits, income, health and other factors that could influence whether they are likely to receive public assistance in the future, even if they have an affidavit of support from their sponsoring family member.

“It’s a real rewrite of this entire section of the immigration regulations by imposing this requirement now on the beneficiary, or applicants for the green card, rather than require that they only have a qualified financial sponsor,” Kolko said.


The likelihood of an immigrant becoming a public charge will be judged based on a “totality of the circumstances” evaluation that considers an applicant’s English fluency, credit score, past use of benefits, earning potential, skills and education, among other criteria. Critics of the new rule have said this test gives immigration officers too much discretion in deciding whether to deny an applicant.

There’s reason to be concerned about a lack of transparency in how the standard is applied, according to Kolko.

“There could be so many different subjective factors that they weigh,” he said. “Exactly what they weigh, or what criteria they’re going to use to deny somebody, or what criteria is going to be enough to get over the threshold — that is not clear at all.”

In addition to discouraging immigrants from receiving benefits they need and to which they are entitled, the new evaluation standards could end up creating more work for everyone involved in the screening process, according to Kolko.

“The amount of data and information that … will be provided under this rule to the immigration service is expansive, compared to what they gathered from the beneficiary before, including things like a credit score, education, language skills — all of those things are now part of the totality of the circumstances,” he said. “Gathering and submitting all of this data to [U.S. Citizenship and Immigration Services] is going to put a huge additional responsibility on people.”

It’s not just applicants and their attorneys who will be weighed down by the rule change, but also the immigration officers tasked with evaluating the additional criteria.

“That’s on top of an agency that is already backlogged at a level that’s unprecedented,” Kolko said.

“The agency is already struggling to meet any realistic processing deadlines, and now adding this additional burden on immigration officers is only going to be making an already catastrophic problem much, much worse.”


The new rule is already facing legal challenges. On Wednesday, Colorado joined 12 other states in filing a federal lawsuit against the Department of Homeland Security to block the changes.

A day earlier, two counties in California filed a separate lawsuit in the U.S. District Court in San Francisco.

Kolko said it’s too soon to predict whether the lawsuits will be successful in blocking the change, but that there are some “valid legal arguments challenging the rule.” 

“We’ll have to wait and see how the legal arguments develop and how they play out in the future,” Kolko said. “But eventually, these things could obviously go up to the Court of Appeals and up to the Supreme Court, which is now heavily weighted towards a conservative philosophy.”

The 169-page complaint filed Wednesday in Washington state alleges the rule change violates the Administrative Procedure Act and the Fifth Amendment’s equal protection guarantee. 

The states allege the rule was “motivated by Administration officials’ intent to discriminate on the basis of race, ethnicity, or national origin.”

“This rule threatens to undermine America’s core commitment towards treating people fairly and equally,” said Colorado Attorney General Phil Weiser in a news release announcing the lawsuit.

“This is a clear attempt to instill fear in those seeking to legally become part of our country. No law-abiding immigrant should have to choose between receiving legally available support and being forced to go homeless, go hungry, or go without preventative health care,” Weiser added.

 — Jessica Folker

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