Supreme Court allows a “Wealth Test” for green card holders

By Gerhard Ottehenning

March 5, 2020

WASHINGTON, D.C. — In August the Trump Administration announced revisions to a rule impacting immigrants dependent upon government welfare. Before the change could be enacted, a federal district court in New York blocked its implementation- at the Trump Administration’s request – drawing in the Supreme Court, which issued an interim decision staying the nationwide injunctions.  

Steven M. Schneebaum, Interim Director of the International Law and Organizations Program at SAIS, said the “issue, ultimately, is the Administration proposal to expand the definition of a ‘public charge,’ denying admissibility to someone who has received non-cash assistance (such as food stamps or most forms of Medicaid), as opposed to actual monetary support.” An expansive definition of “public charge” could potentially make thousands of immigrants ineligible for a green card. 

The government has long held the ability to deny permanent legal status to immigrants at risk of becoming a “public charge.” The first mention of the phrase appears in the 1882 Immigration Act. During the early twentieth century, roughly 2 percent of immigrants were denied entry for any reason and two-thirds due to being deemed likely to be a public charge. However, being low-income did not necessarily result in total exclusion. In 1949, Immigration and Naturalization Service (INS) Counsel Charles Gordon, stated: 

“It is wrong to assume that poverty alone will disqualify an immigrant. Such an assumption is refuted by the epic American story which tells of millions of immigrants—largely the poor and oppressed of other lands—who have found vast opportunities in America… What is more important than immediate assets is the desire to become a productive member of the community.”

In the 1970s, the government moved toward a more holistic approach. The criteria used to determine if an immigrant should be excluded relied on a mix of legislative history and administrative policies. Government officials considered multiple factors including age, financial status, physical and health, and the availability of familial support. While these served as guidelines for the INS, the courts refrained from setting strict standards and left the decisions up to the discretion of agency officials. Welfare reform implemented during the Clinton administration put additional barriers on an immigrant’s ability to draw local, state, or federal benefits, but it did not lead to a formal regulatory definition other than the requirement to consider the “totality of circumstances” in any immigration case. 

Many questions surrounding an immigrant’s ability to draw upon government welfare resources remain unresolved. Given the Administration’s penchant for enacting restrictive immigration policies, combined with a divided Congress, it is unsurprising that these regulatory changes would find themselves bogged down in the courts. Whether the courts ultimately allow the Trump Administration’s rules to go forward remains to be seen. 

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