February 6, 2020

Supreme Court Ruling Makes Immigrants 12 Times More Likely to be Designated as Public Charges

On January 27, the Supreme Court made a ruling that will “make it easier to deny immigrants residency or admission to the country because they have or might use public assistance programs.” This policy, known as Public Charge, was discussed in this column back in September 2018 when Department of Homeland Security first proposed it. At that time, together with 34 other HIV-focused organizations, the Academy submitted public comments strongly opposing it. The policy since then has been contested in several courts.

The implications of this recent ruling for people with HIV or are at high risk are manifold.  If they meet any of the Public Charge criteria, they will have a strong incentive to avoid all government-funded services, including clinic visits for HIV testing, PrEP, STI services and HIV-related care. Their overall health, as they struggle with HIV, is also affected. They may choose to turn down services such as staple foods (including infant formula) provided by SNAP, public housing and other benefits just to stay off of any public record that might be later used to label them as a Public Charge.

At the crux of the argument are the criteria for labeling someone as a “public charge.” According to the Supreme Court, the term now applies to someone (1) currently dependent on the U.S. for essential benefits, (2) has ever used them, or (3) is judged likely to use them in the future. Immigration officers evaluate multiple criteria to assess this including as an applicant’s employment status and fluency in English. Those with low scores can be designated a “Public Charge” and ineligible for a green card or a path to citizenship.

This revision of Public Charge is a sharp departure from the 130-year-old definition of a Public Charge which, according to U.S. District Judge George B. Samuels, was someone “who is or is likely to become a primary or permanent dependent on the government for subsistence.” Nicholas Esperitu of the National Immigration Law Center said that the Supreme Court’s new interpretation would dramatically expand [public charge] ”beyond what any court has previously understood the public charge regulation to mean.”

This policy also threatens the health of the general public given that the incidence of easily transmitted diseases – including tuberculosis, STIs, influenza, etc. – increases when access to safe health care for part of the population is decreased.

The four Supreme Justices opposing the decision (Bader Ginsburg, Sotomayor, Kagen and Breyer) argued  that “punishing legal immigrants who need financial help endangers the health of immigrant families – including U.S. citizen children – and will foist potentially millions of dollars in emergency health care and other costs onto local and state governments, businesses, hospitals and food banks.”

Kaiser Family Foundation’s analysis predicts that this policy change will cause 27% of legal immigrants to have their green card applications “weighed negatively” and 79% will probably undergo extra scrutiny.

Politico pointed out that, under Trump, the State Department “disqualified more than 12,000 visa applicants on public charge grounds last year.” By contrast, the Obama administration rejected only 1,033 people in fiscal year 2016.

Illinois is the one state in which this Supreme Court ruling has not gone into effect. The state passed a statewide injunction blocking the new Public Charge and it is being upheld by a federal appeals courts there. We will stay tuned and relay upcoming developments. Congratulations, Illinois!