By Devon Senges, Immigration Attorney at Dummit Fradin

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For decades, the United States has denied permanent residency to anyone likely to rely primarily upon the government for their main source of support. This is the “public charge” bar to residency and is currently codified in the Immigration Nationality Act section 212(a)(4). The previous definition of public charge was anyone likely to become a lifelong dependent of the government. It did not include anyone who had received or was likely to receive temporary assistance. Someone was likely to become a lifelong dependent of the government if they did not have a job waiting for them or lacked a financial sponsor such as a family member. The financial sponsor would sign a contract to promise to provide financial support if necessary.

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Over the last year, President Trump has aggressively pushed to change this definition. Immigration agencies have published new regulations broadening the definition of public charge to deny as many people as possible. Under the new definition, officers will deny anyone likely to receive one or more public benefits for 12 months in any 36 months. They will analyze many factors beyond whether there is a willing financial sponsor. These new factors include job history, education level, English proficiency, health, age, the existence of medical insurance coverage, and whether anyone in the applicant’s family has received or is receiving benefits.

The States of New York, Connecticut, and Vermont, along with several non-profit organizations, sued the federal government over the implementation of this new definition and test. They argued that the new test was arbitrary and capricious, violated the intent of Congress, violated the Rehabilitation Act (which prohibits discrimination against those with disabilities), and would cause irreparable harm to applicants for residency and United States Citizens alike. On October 11, 2019 – Federal Judge George Daniels agreed!

Judge Daniels wrote a powerful opinion, disagreeing with many of the government’s arguments. For example, when the government claimed that English proficiency was an appropriate factor, Judge Daniels wrote:

“[O]ne can certainly be a productive and self-sufficient citizen without knowing any English. The United States of America has no official language. Many, if not most, immigrants who arrived at these shores did not speak English. It is simply offensive to contend that English proficiency is a valid predictor of self-sufficiency. It is repugnant to the American Dream of opportunity for prosperity and success through hard work and upward mobility. Immigrants have always come to this country seeking a better life for themselves and their posterity. With or without help, most succeed.”

Unfortunately, this agreement is only temporary. The government will have a chance to make their case again. At Dummit Fradin, we agree with Judge Daniels that immigrants have always been successful, prosperous members of our community. We are committed to protecting the rights of immigrants and their families and fighting for them every step of the way.

About Attorney Devon Senges

Devon Senges is a bilingual immigration attorney in Greensboro, North Carolina. Devon has experience helping immigrant clients with a variety of immigration issues. Her dedication and diligence make her an attorney you want on your side. Contact her today to schedule a consultation to discuss your immigration matter. We have offices throughout the NC Piedmont Triad in Winston-Salem, Greensboro, and High Point.