US finalizes green card rules that deviate from strict Trump requirements

The Biden administration will enact new rules in December governing applications for residency in the United States that depart from strict Trump-era requirements that made it harder for low-income immigrants to become permanent residents, the Department of Homeland Security (DHS) announced Thursday.

A final DHS regulation set to take effect Dec. 23 would codify standards in place since the Clinton administration that dictate when immigrants can be considered a “public charge” or an economic burden on the United States. Such a decision would disqualify them from obtaining permanent residency or a green card.

Under the rule, US Citizenship and Immigration Services (USCIS) will only consider green card applicants a public charge if “they are likely at any time to become primarily dependent on the government for their subsistence.”

That could be the case if they need long-term state-funded institutionalization or public cash assistance programs, such as Supplemental Security Income or Temporary Assistance for Needy Families.

The Biden administration rules represent a dramatic departure from a Trump administration regulation that raised Clinton standards by greatly expanding the number and types of public benefits that could jeopardize an immigrant’s application to become a permanent U.S. resident.

The Trump-era rule — which took effect in 2020 after the Supreme Court suspended lower court rulings that declared the policy illegal — included the use of housing stamps, food stamps and Medicaid in the public fee provisions. The regulation also created a new test that considered applicants’ income, age, medical conditions, skills and family size to determine whether they were likely to rely on these benefits in the future.

The Trump administration said its rule alienated immigrants’ self-sufficiency. But immigrant advocates denounced the policy as a draconian means test and highlighted the “chilling effect” it had on immigrant families, including those with U.S. citizen children, who feared accessing benefits for which they qualified.

Within two months of President Biden taking office, his administration stopped defending the 2019 prosecution rule against lawsuits, allowing a federal court ruling to block the policy, which Homeland Security Secretary Alejandro Mayorkas said was “inconsistent with our nation’s values.”

In February, the Biden administration released a draft version of its own government tax regulation, which received more than 10,000 public comments. The administration said Thursday that its regulation was designed to curb the “chilling effect” the Trump-era rule had on mixed-status immigrant households.

“This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” Mayorkas said in a statement Thursday. “Consistent with America’s founding values, we will not penalize individuals for choosing to access the health benefits and other supplemental public services available to them.”

Hundreds of thousands of immigrants apply for residency in the United States each year, most of them based on sponsorship requests from family members with U.S. citizenship or from employers. Those granted refugee or asylum status are also eligible to apply for green cards, although the government fee rules do not apply to them.

In fiscal year 2021, USCIS received about 648,000 green card applications, according to government data. During the first half of fiscal year 2022, the agency recorded 280,000 new applications for green cards.

The public fee test was first codified in American law in the late 19th century, when the federal government began to regulate immigration, particularly from non-European countries. During the same period, Congress passed the Chinese Exclusion Act, barring most immigration from China for decades.

The 2019 government fees rule was part of a broader Trump administration effort to limit legal immigration. Under former President Donald Trump, the United States reduced the number of refugees to record lows, sought to ban immigrants who could not afford health care and issued a partial immigration ban during the pandemic.

The Biden administration has reversed Trump’s immigration limits and dramatically increased the number of refugees. But it has struggled to rebuild the broken refugee resettlement infrastructure and reform a legal immigration system crippled by bureaucratic delays, reliance on paper records and a growing backlog of pending cases.