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Employers to benefit from “eviscerated” Trump immigration policy
14/03/2021
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U.S. Citizenship and Immigration Services

The removal of a hardline and “burdensome” Trump-era immigration policy will benefit multinational employers whose key employees and executives have, until now, been forced to provide “mountains” of evidence to obtain legal permanent residency.

Last week, the US Supreme Court dismissed a legal challenge to a controversial immigration policy after the White House said it would not defend the former Trump administration’s “wealth test” on foreign nationals looking to settle in the United States.

Announced in August 2019, the updated “public charge” policy redefined a more than 100-year old immigration law making it easier for the federal government to deny green cards to immigrants requiring public welfare, such as Medicaid, food stamps, or housing assistance.

When determining eligibility for residency, immigration officials may consider applicants’ education, English-language skills, and current wealth. Under President Trump, the salary required for a family of four to be granted residency was raised from $32,000 to $60,000 per year.

The updated rule was described as “blatantly racist and xenophobic” by critics and challenged in federal courts across several states, including California, New York, Connecticut, and Vermont.

On 27 January 2020, the US Supreme Court stayed state injunctions allowing the public charge to go into effect starting 24 February 2020. However, following representations from the Biden administration and plaintiffs challenging the rule, the nation’s highest court dismissed the appeal. Two other pending cases involving the rule were also dismissed.

The rule was designed to create barriers to lawful immigration for hardworking immigrants of all economic backgrounds

“The 2019 public charge rule was not in keeping with our nation’s values. It penalised those who access health benefits and other government services available to them,” said Secretary of Homeland Security Alejandro N Mayorkas. “Consistent with the President’s vision, we will continue to implement reforms that improve our legal immigration system.”

Eleanor Pelta, co-leader of Morgan Lewis & Bockius’ global employment and immigration practice, said the 2019 rule was “a novel and highly burdensome” interpretation of a law that went “much further than the law’s original purpose”.

“The rule was designed to create barriers to lawful immigration for hardworking immigrants of all economic backgrounds,” said Pelta. “Those complex and confusing forms, as well as a mountain of supporting financial documentation, were required of every single applicant for lawful permanent residence, including executives and other key personnel working at large companies, and each of their family members.”

Pelta added that the Biden administration’s decision not to defend the rule “immediately eviscerated these ‘paper walls’ that had been so daunting for both smaller companies and nonprofits, as well as employees of larger multinational clients”.

As a result of the appeal’s dismissal, the 1999 interim field guidance on the public charge inadmissibility provision is now in effect. However, a group of 11 Republican-led states have asked the US Court of Appeals for the Ninth Circuit for permission to defend the rule.

In an interview with The Hill, Arizona attorney general Mark Brnovich said: “All we are trying to do is uphold common sense immigration rules that ensure that folks that come to this country can truly be self-sufficient. This policy ensures our government welfare programmes won’t be overrun.”

In a statement, immigrant rights groups that brought the appeal said the Trump wealth test “erected an invisible wall” that discriminated against people on the basis of race.

“This rule invited arbitrary, biased decision-making. And because of the public charge rule, immigrant families have been living in fear of using essential benefits like healthcare, despite serving as frontline workers who have been among those hardest hit by covid-19.”