WASHINGTON, D. C. – Attorney General Karl A. Racine and California Attorney General Xavier Becerra today led a coalition of 19 states in a friend-of-the-court brief opposing a Trump administration policy that could discourages tens of thousands of legal immigrants in the District and across the country from accessing services such as healthcare or nutrition assistance for themselves and their families. The amicus brief, filed today in Mayor and City Council of Baltimore v. Trump before the United States District Court for the District of Maryland, opposes a new U.S. Department of State policy that makes it easier to deny foreigners visas to travel to the United States. The policy allows federal officials to consider new factors—including an applicant’s employment history, proof of medical insurance, and the use of public benefits by the applicant’s relatives—in deciding whether to deem someone a “public charge” and deny a visa application. The states argue that the expansion of the “public charge” criteria is already discouraging immigrants and their families from using public benefits.

“Redefining ‘public charge’ is another blatant and illegal attempt by the Trump Administration to change the demographics of who is permitted to come to our country, and it hurts legal immigrants and their families by denying them services that are critical to their health and well-being,” said AG Racine. “This radical policy also creates more hurdles for tens of thousands of visa applicants who are trying to join their families in or visit the United States.”

On January 3, 2018, the State Department published revisions to its Foreign Affairs Manual (FAM) “public charge” criteria. The FAM provides instructions that U.S. embassy and consulate staff use to make decisions about whether to grant foreign nationals permission to enter the United States. The new guidance expands the factors under which these officials could consider a visa applicant likely to become a “public charge,” or someone who is primarily dependent on public benefits—thus making them ineligible for a visa to travel to the United States.

For nearly two decades, State Department officials took factors such as age, health, income, education, and family situation into account when determining whether a visa applicant was likely to become a “public charge” after arriving in the United States. The revised guidance, however, changes the factors that officials may evaluate in several critical ways. First, it permits officials to take into account past use of public benefits (such as public healthcare) other than direct cash assistance (such as Temporary Assistance for Needy Families) by the applicant and their family members. Second, it may require applicants with health conditions to provide proof of medical insurance or ability to pay for medical expenses after arrival in the United States. Third, applicants are more likely to be forced to provide details about their employment history and job skills and their plans for employment once in the United States. Finally, the new guidance discounts the weight that officials must give to the affidavit of support provided by a visa applicant’s sponsor in the United States and also suggests that the sponsor’s use of public benefits may weigh against the applicant.

In their brief, the District and states argue that the changes are already having negative impacts on the states and their residents. The brief argues that the policy harms the states by:

• Interfering with the states’ efforts to encourage residents’ use of certain benefits: The District and states operate several programs that encourage residents—including immigrants—to enroll in public benefit programs. These include school lunch programs, health-care services that supplement Medicare and Medicaid, and childcare assistance. However, studies have shown that expansion of the definition of “public charge” may discourage immigrants from using these programs for fear that it would negatively affect visa applications for themselves or their relatives.
   
• Undermining public health and harming the states’ economies: The District and numerous states operate public-health programs, including Medicaid expansion under the Affordable Care Act (ACA). The ACA significantly increased Medicaid enrollment, but many immigrant families may refrain from signing up for Medicaid if they fear doing so could endanger their ability to stay in the United States or a loved one’s ability to come to the United States. This, in turn, would lead to less use of preventative medicine and more use of costly emergency services, the cost of which would be borne by the states and by other healthcare consumers.
   
• Separating immigrant families and endangering their health and well-being: Many immigrants currently residing in the United States legally must return to their home countries for visa processing. The expansion of the “public charge” criteria would likely make the application process longer and more onerous for these individuals—meaning longer periods away from their families and their jobs in the United States. Likewise, families who refrain from signing up for benefits like pre-natal care or nutrition assistance may suffer negative health, educational, or financial consequences in the future.

In addition to the District and California, states joining today’s brief include: Colorado, Connecticut, Delaware, Illinois, Iowa, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Virginia, Vermont and Washington.

The amicus brief in Mayor and City Council of Baltimore v. Trump is available at: https://oag.dc.gov/sites/default/files/2019-03/FAM-Multistate-Amicus-Brief.pdf

The State Department guidance change applies to foreign nationals who are currently outside of the United States and applying for admission or re-admission. The “public charge” standard also applies to foreign nationals currently residing within the United Sates who are seeking to change their immigration status. In December, AG Racine submitted comment letters opposing a proposed U.S. Department of Homeland Security expansion of the “public charge” criteria for lawful current U.S. residents who seek changes in their immigration status. For more information on that proposed change and how it would negatively affect immigrants, visit OAG’s website at: https://oag.dc.gov/public-safety/information-about-proposed-changes-public-charge