Re-entry to the United States is challenging these days even for legal immigrants, amid President Trump’s immigration crackdown at ports of entry across the country. Green Card holders, who are lawful permanent residents in the US, are not exempt to the scrutiny that the CBP officers have intensified to assess the immigrant status and re-admissibility of foreign nationals (aliens) returning from their home countries or a trip abroad. Precisely, the Trump administration’s no-compromise efforts to fix loopholes in immigration and security has become a gnawing concern for legal immigrants too.

Elderly Indians among Green Card holders, who are flying back to USA after a winter trip to India, are in for an unprecedented surprise on arrival, as the CBP officers are interrogating them and inspecting their documents. Some cases have been reported wherein senior citizens faced intense pressure to sign Form I-407 to voluntarily surrender their Green Cards on arrival at US airports, according to immigration attorneys.

This AI-generated image is for illustration purpose only

Some elderly Green Card holders spend winter months in India as they are not yet accustomed to bone-rattling winters in America. They are among the targets of ‘Green Card abandonment’. The US Immigration and Nationality Act (INA) states that those who spend more than 365 days in a calendar year outside the US are subject to ‘Green Card abandonment.’ At the same time, they can exercise their right to challenge this in court.

What is more worrisome is that a period of 180 days outside the US, even a shorter absence, has become a premise for the CBP officers to heavily scrutinize Green Card holders, senior citizens in particular.

What are the rights of Green Card holders at the US ports of entry in the above scenario? Immigration attorneys are receiving such queries every day. “Generally, an individual’s Green Card cannot be revoked at the port of entry unless he/she voluntarily signs Form I-407 to surrender it,” Kripa Upadhyay, an immigration attorney in Seattle, was quoted saying in an article by The Economic Times. “Only an immigration judge can take away a Green Card, so individuals should not sign Form I-407,” said another Indian-origin attorney in the US.

Mostly, Green Card holders’ absence from the US for 180 days or more in a calendar year, and their failure to maintain strong ties to the US are triggering CBP officers who have legal rights to inspect and interrogate immigrants returning from their home countries. At the same time, Green Card holders reserve the right to a hearing before an immigration judge if there are attempts to revoke their lawful permanent residence status, like secondary inspections, legal notices, unjust detention on arrival, and threats of deportation. A lawyer can be hired to represent their case during a court hearing.

Immigration attorneys caution Green Card holders against making frequent travel and spending more than 180 days outside the US in a year. If an individual has history of secondary inspections, he/she may come under the CBP scanner on return from overseas travel. It is recommended that Green Card holders maintain tangible evidence of their strong ties to the US, like employment, family, property, or filing tax returns during their overseas stay for months. They can show the evidence during a routine inspection or additional scrutiny by the US Customs officers.

As part of the immigration law enforcement by President Trump, Green Card holders must have a re-entry permit for re-admission to the USA after spending 365 days or more abroad. In view of this, immigration attorneys advise Green Card holders to apply for a re-entry permit before flying out of the US for a year. CBP officers have the right to deny re-admission to you for not having a re-entry permit. In short, you should carefully plan a long absence from the US soil to maintain your LPR status.

Immigration attorneys advise Green Card holders to cooperate with the CBP officers if their electronic devices, luggage, and/or social media accounts are examined. The US Customs officer may not need a warrant to check your devices and luggage for prohibited items, documents, or anti-US sentiments that could impact your re-entry to the country after a period of stay abroad. Everything from your belongings to travel history and social media communications is under the CBP scanner these days.

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“I worked at top companies on an H-1B visa. Soon, I realized that I could not spend my whole life on an H-1B visa. There are just too many restrictions, limited career growth, and too much risk of being thrown out at any time,” CEO Aditya Sharma shared in a recent LinkedIn post. He chose not to end up waiting endlessly for legal permanent residence and not to join more than one million Indians, including H1B visa holders, stuck in the Green Card backlog. He chose not to let the ‘H1B visa country cap’ for India affect his future in the US, particularly during the Trump administration 2.0.

PC: Linkedin.com/in/aditya-hicounselor

Among the ways to obtain a Green Card in the US, EB1A became a safe bet for Aditya Sharma, the founder and CEO of HiCounselor in San Francisco. In his LinkedIn post that broke out the news of his Green Card approval on 27 JAN 2025, he further shared the timeline, June 2024 – January 2025, that he created and followed from preparation to application to approval for an EB1A Green Card.

• Jun 2024: Started working to meet the EB1A eligibility criteria.
• Aug 2024: Met 5 out of 8 criteria.
• Oct 2024: Got LOR from high-profile individuals, 3 research papers published, and got media coverage.
• Nov 2024: Met 8 out of 8 criteria. Started the application prep.
• Jan 2025: 912 pages of application. It was truly a crazy activity to review and finalize this big application.
• Jan 12, 2025: Application sent to USCIS in premium processing.
• Jan 16, 2025: Application received by USCIS.
• Jan 27, 2025: Approved!

It seems that he was fortunate enough to secure a Green Card in only 8 months. In fact, his journey to obtaining lawful permanent residence that helps actualize the American Dream began years ago when he realized, “HIB is a horrible visa to spend your life in the US.” Like hundreds of thousands of Indian students in USA, Aditya got his first job at Deloitte on an H1B visa after having earned a master’s degree from Duke University, North Carolina, in 2015.

Success stories of the Silicon Valley startups fired his zeal to become an entrepreneur. But soon he found that H1B visa holders cannot do a full-time business in USA. It did not hold him back from exploring possible ways of launching a startup business on H1B visa. He started attending entrepreneurship meetups in the Bay Area. At one such event, he learned about the O1 visa and that “it allows immigrants to start a company in the US.”

What is O1 visa? Who qualifies for O1 visa in USA?

The O1 visa is one of the US employment visas for non-immigrant foreign nationals. Highly qualified individuals of extraordinary ability in sciences, business, education, arts and sports can apply for the O1 visa. Indians who are national or international achievers in the aforementioned fields may qualify for the O1 visa. Unlike H1B visa, the O1 visa has a broad application window. You can apply for it at any time of the year. Statistically, 80-95% is the approval rate for O1 visa applicants including potential entrepreneurs and startup founders.

Is it difficult to get an O1 visa? HiCounselor CEO Aditya Sharma recalls, “When I looked at the criteria, I was shocked and dejected. They seemed so demanding that I didn’t think I could meet them. Slowly, I started working on them, and after a year, I applied for the O1 Visa. And guess what, I was approved within five days of my application.” In this visa category, the applicant is required to submit a significant amount of evidence that undergoes rigorous scrutiny by USCIS, ascertaining his/her extraordinary ability or achievement.

With the O1 visa approval, he resigned from his job at Deloitte and launched HiCounselor in 2020. However, he did not stop there. After a year into business, he started educating himself on the EB-1 visa eligibility criteria and application procedure. “I wish I had done this hard work sooner,” he shared on LinkedIn as it took him 4 years to understand and fulfil the EB-1A visa requirements. EB-1 is an employment-based, first preference visa in the immigrant category.

Who is eligible for EB-1A immigrant visa?

Individuals with extraordinary abilities and outstanding achievements can be eligible for the EB-1A visa. Having some national or international acclaim, you don’t need a US-based employment offer or labor certification to apply for an EB-1A visa. Among the paths to lawful permanent residency in America, this immigrant visa gives quicker access to a Green Card. But it is a highly competitive visa entailing a complicated application process and requiring strong evidence of your achievements or recognition in arts, sciences, education, business, or athletics.

Aditya Sharma’s EB1-A application was 912-page long, and he described it as an “incredibly daunting task”. This is one of the roadblocks for most immigrants, even those in high-paying roles, not to apply for a Green Card in the EB-1 category, according to him. He hosts sessions on O1 and EB1 visas aiming to help qualified H1B visa holders navigate the otherwise tough application procedure. In his LinkedIn post, he claimed to have helped 75 people get EB-1 and O-1 visas.

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The United States has recently grown vocal of the Heartland Visa, a new pathway to lawful permanent residency for skilled immigrants from different walks of life. Endorsed by the US Conference of City Mayors, the Heartland Visa is in addition to the existing popular Green Card options. This expedited path to obtaining a US Green Card has emerged from the need of offering a bait to attract skilled immigrants to cities with economic decline.

PC: Indian Eagle | Travel Beats

The US has a glorious history of immigrants having been a key driver for the socio-economic growth and innovation in coastal cities and metropolitan areas. Often referred to as a nation of immigrants, America is home to 47 million foreign-born immigrants (as of 2022) which account for not more than 14% of the total US population. Notably, India being the second largest source of skilled immigrants to the US. More than half of the total immigrant populace is mostly settled in four US states: California, Texas, Florida, and New York, according Pew Research Center.

Statistically, only 5% of highly skilled immigrants are sparsely scattered in heartland region of the United States. To be precise, the heartland regions are apparently deprived of the contributions that various skilled immigrant groups have made to a few metros in the northeast, south and west coast through relentless research, innovation, investment, and entrepreneurship. It is the immigrants who have developed 55% of America’s billion-dollar startup landscape spanning from medicine to ecommerce to technology.

In a bid to revitalize the economy of heartland regions, the US Conference of Mayors brought a bipartisan immigration proposal endorsing the Heartland Visa for skilled immigrant professionals and innovators. The Heartland Visa would act as a spur for them to rejuvenate Cleveland, Memphis, Kansas, Louisville and other economically backward cities in the heartland region with job creation, investment, innovation and technology. In lieu of that, they would have fairer chances for lawful permanent residency. Precisely, their petitions would be least likely to end up in the Green Card backlog.

Key features of Heartland Visa Program in the US

The US counties or cities with sluggish growth and low median incomes, can participate in the program. Highly skilled immigrants with a heartland visa will be required to live in the counties or cities participating in the program, but they can choose to work elsewhere. They would be allowed to select an area to live in. The petitions of high earners among the applicants will be given priority for the Heartland Visa program, as per reports.

Heartland Visas are allocated on a quarterly basis for an initial period of 3 years, which can be renewed for another 3 years. This newly endorsed Green Card program will be expanded to an allocation of minimum 100,000 visas per year in the future, depending on the number of heartland areas participating in the program.

John Lettieri, CEO and President of the Economic Innovation Group (EIG) applauded the US city mayors’ endorsement of the Heartland Visa Program and labeled it as a forward-thinking approach towards tapping into global talent for the urban areas grappling with economic stagnation and population decline.” The program seeks equitable distribution of skilled immigrant population for a balanced growth across the country.

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It will cost US visa seekers dearly to fulfil their American Dreams in the near future, as USCIS’ proposed visa fee hikes are likely to be effective in early 2024 for H1B, L, O, and EB5 categories. The visa fee hike proposal will also impact applicants seeking employment authorization, US citizenship, and green card status adjustment. Only the USCIS fees for premium processing of visas in all categories will remain unaffected; however, the premium processing timeline will increase from 15 calendar days to 15 business days as proposed by USCIS.

EB5 – the Golden Visa that ensures the fastest route to earning a Green Card – will cost foreign investors and entrepreneurs 204 times more than its current fees. Once USCIS’ visa fee hike proposal is approved, an EB5 visa will cost $11,160 instead of $3,675. This will surely be another setback to EB5 visa seekers, since the investment cap has been raised from $500,000 to a minimum $800,000.

The proposed H1B visa fee hike is, undoubtedly, not a fair surprise to H1B visa sponsors. The US employers hiring high-skilled foreign workers will have to shell out $780, a 70% hike on $460 per application. Moreover, the H1B pre-registration fee is to get a steep hike by 2050% – from a meagre $10 to a whopping $215. The US Citizenship and Immigration Services (USCIS) agency reasons that they sought a significant hike in the H1B pre-registration fee based on a review of the increasing cost of managing the H1B registration system.

In its US visa fee hike proposal, USCIS sought a 201% increase from $460 to $1385 for an L1 visa, a non-immigrant visa for intra-company transfer. The O1 visa fee is likely to go up by 129%. O1, a visa for non-immigrant individuals with extraordinary ability or achievements, is one of the few options that highly-accomplished STEM professionals on H1B can switch to during the 60-day grace period following a layoff. They may find this option a deterrent in the event of the O1 visa fee increase.

Justifying the H1B, EB5, L1 and other visa fee hikes, USCIS said that the revision of the current visa fee schedule is a pressing need of the hour to meet the agency’s operating overheads, especially in view of the pandemic-hit revenue. The agency’s revenue plummeted by 40% during the pandemic – which resulted in freezing the hiring process and reducing the workforce, thereby affecting the capacity to clear backlogs. USCIS’ annual revenue is expected to rise from $3.28 billion to $5.2 billion if the latest revision of the visa fees is approved. The estimated revenue increase will help USCIS prevent the mounting of visa backlogs, upgrade the technological infrastructure, and augment the legal immigration system.

USCIS also proposed eliminating separate biometric services fee. At the same time, USCIS assured that the visa hike proposal would not impact the existing fee waiver eligibility norms for low-income groups. The agency also sought to introduce fee exemptions for visa applicants in the ‘humanitarian programs’ category.

The US visa hike proposal includes plans to introduce a new ‘Asylum Program Fee’ which will be levied on the employers filing Form I-129 (a petition for non-immigrant workers) and Form I-140 (a petition for employment-based LPR) for their foreign employees. The Asylum Program Fee, $600, will help the agency afford the expenses of administering the asylum programs.

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Nearly 7.19 lakh Indians are awaiting their employment-based green cards as of September 2021, noted a study published by the Cato Institute. Shockingly, the wait time is estimated to be 90 years (more than the average lifespan of a person!) if no measures are taken to address bureaucratic delays in green card issuance. 

These figures underline the necessity of reforms in the US immigration system, which unfortunately is keeping skilled immigrants away from the jobs needing them. Meanwhile, data also reveals that 2,30,000+ green cards under family and employment categories were unused in the period between 1992 and 2022. So, in an attempt to clear the long-pending green card backlog, the US President’s Advisory Commission has given its green signal to the proposal that unused green cards be recaptured. This move is expected to provide relief to over 1.4 million immigrants, who have been waiting for their green cards for years.

Picture Credit: Fileright.com

Why is this Green Card Recapture Recommended?

The US has a limit on annual green card issuance to immigrants. (A Green Card or Permanent Resident Card is an official document granting its bearer the permission to reside and work in the US permanently). This limit is set at 1,40,000 for employment-based green cards and 2,26,000 for family-sponsored green cards. Further, there is a 7% country-based quota system for these categories, which doesn’t take into account either the country’s population or the demand for green cards from them. So, the US doesn’t process more than 25,620 family and employment-based green cards annually to immigrants of a particular country despite receiving a high volume of applications, which only keeps increasing year after year. This led to accumulation of green card petitions, especially from countries like India and China.

Indian-American entrepreneur, Ajay Bhutoria, also a member of the President’s Advisory Commission on Asian Americans, Native Hawaiian and Pacific Islanders, recommended the recapture of the green cards that have remained unissued due to administrative complexities and delays. Reallocating these lost opportunities to those waiting in hope can help unburden the government by facilitating the clearance of some backlogged applications every year in addition to processing the annual limit of green cards for these categories. 

What does Recapture of Unused Green Cards Mean to Indian Immigrants Affected by Green Card Backlog?

As is well-known, a vast number of Indians fly to USA every year in pursuit of their American Dream. Most of them are usually H1B visa holders with ambitions to settle permanently in the US. Their applications for an employment-based green card are likely to get stuck in the mire of backlogs created by the per-country quota system. Situations turned so hopeless in the past for certain immigrants including Dr. Pranav Singh, who took a flight back to India being fed up with the long green card wait period.

Data suggests that the US issues around 7000 to 9000 employment-based green cards to Indians annually. If the dependents of primary applicants are excluded, then approximately 2000 H1B visa holders from India get green cards while the number of H1B work visas issued every year is close to 85,000. Even if we assume that only one fourth of them apply for a green card in a particular year, much less than one fourth of the total applicants would receive it and the rest would slip into the mounting backlog. 

The excruciatingly long wait time for Indians to get green cards is a result of this widening gap between the number of applications received and the country-based cap on green card issuance. Under these circumstances, recapture of green cards unused over the years can prove to be beneficial to thousands of Indian immigrants waiting to get their hands on the most-coveted green cards.

Although the green card recapture recommendation has been approved at the White House, it doesn’t take effect until it gets a Congressional nod. So, it remains to be seen how long it takes for this bill to translate into action. Hope the recommendation for recapture of unused green cards won’t meet the fate of the RELIEF Act that sought to keep immigrant families together and the failure of the EAGLE Act that sought to phase out the per-country limit on the issuance of employment-based green cards to Indians.

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The way the US Citizenship and Immigration Services (USCIS) is working to reduce visa wait times in India and upgrade the security features of Green Cards, it seems that the federal agency has regained its pre-pandemic tempo. Recently, USCIS announced details of the security upgrade to Green Card and EAD redesigns. Reportedly, the redesigned cards started to be issued starting January 30, 2023.

PC: Freepick.com

The new Green Card design and the redesign of Employment Authorization Documents are secured against counterfeiting with state-of-the-art technology. Redesigned last in May 2017, the cards need a new design with enhanced security features every three to five years in a bid to mitigate fraud and safeguard national integrity. The 2023 redesign of Permanent Resident cards and EADs substantiates USCIS’ delivery of its commitment towards maintaining top security standards through consistent updates.

The front of the redesigned Green Card displays updated artwork for the Statue of Liberty and features new tactile printing that is better integrated with the artwork. The cardholder’s fingerprint is no longer on the front of the card in the new design. Data fields are displayed in different places on the front than in the previous designs. The front and back of the new Green Card design have highly secure holographic images with optically enhanced variable ink. Furthermore, the security upgrades of Green Card redesign 2023 include a layer reveal feature with a partial window on the back photo.

USCIS made it clear that the launch of the new designs does not render the existing cards invalid. Rather, the cards in use will continue to be valid until their expiration date. Some Permanent Resident cards and EADs, though issued after the redesign launch on January 30, may have the old design as USCIS continues to use the existing cardstock and supplies until they are used up. Both designs of the cards – the old and the new – will be accepted for Form I-9 (Employment Eligibility Verification), E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some Green Cards with the old design do not have an expiration date. Those cards are also valid for use. USCIS recommends lawful permanent residents (LPRs) should consider applying for the new version, as their cards have risks of being tempered or counterfeited if lost or stolen. Green Card and EAD redesign is part of the Secure Identification Platform project.

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Non-immigrant visa holders felt the ordeal of being stuck in the green card backlog intensely during the pandemic, as their entry to the US was heavily restricted by President Biden’s proclamations curbing the import of COVID-19 cases from the affected countries. Consequently, thousands of H1B, H4, L1 and other non-immigrant visa holders were stranded in India, and many of them were separated from their families in the United States. They bore the brunt of long wait times for green cards. If they had got the magic wand (Green Card0, they would have spread a magic mat in the air and travelled to the US flying past all the restrictions.

In a recent development of attempts at phasing out per-country limits on issuance of employment-based green cards, two Senators – Kevin Cramer and John Hickenlooper – introduced a new version of the EAGLE Act 2021. Cleared by the US House Judiciary Committee in April this year, the legislation is now titled EAGLE Act 2022.

Picture Credit: YesPunjab.com

Amid a row over the pandemic-induced travel ban on India in 2021, Congresswoman Zoe Lofgren and Republican John Curtis had brought a bipartisan legislation onto the table. The Equal Access to Green cards for Legal Employment Act (HR 3648 EAGLE Act 2021) was aimed at removing the obstacles that are responsible for the mounting backlog of green card applications. Needless to say the obstacles include the fixed 7% country-wise limit on the allocation of employment-based green cards. The HR 3648 EAGLE Act 2021 also addressed the need to raise the per-country cap on issuance of family-based green cards to 15%.

Not the country of origin but skills should be the basis of hiring foreign workers and issuing green cards to them – is the basic premise of the Equal Access to Green cards for Legal Employment Act. Over the years, the US Congress saw several bills seeking phasing out of the per-country cap in order to ensure fair allocation of employment-based green cards. But, none of the bills made a cut. The last bill was the Fairness for High-Skilled Immigrants Act (HR 1044, S386) that gained momentum when Donald Trump’s days were numbered at the White House.

The final version of the combined HR 1044, S386 served as the foundation of the newly introduced bill, HR 3648 EAGLE Act 2021. President Biden’s US Citizenship Act of 2021, which promised a lot to those stuck in the green card logjam, has not yet clicked with the Senate since it was introduced within a few days of Biden’s swearing in to the presidential office. Hence, John Curtis and Zoe Lofgren’s ‘Equal Access to Green cards for Legal Employment Act’ was another big attempt at removing per-country caps on green card allocation.

The HR 3648 EAGLE Act 2021 was vocal about certain advantages to the US economy that fair allocation of employment-based green cards would have ensured. “The basic framework for allocating immigrant visas dates back to the middle of the 20th century and was last seriously updated in 1990,” Congresswoman Lofgren said. “The effect of the per-country caps is that countries with small populations are allocated the same number of immigrant visas as that to skilled labor from a relatively large-population country,” she further said.

“The bipartisan act, if signed into a law, will lead America towards a system that de-emphasizes birthplace and better serves the nation and its economy,” Zoe Lofgren opined while explaining the benefits of the EAGLE Act 2021.

The bill requires the Department of Labor (DOL) to set up a ‘Searchable Internet Website’ where all H1B jobs will be posted for unrestricted public viewing. The website should come up within 180 days from the signing of the bill into a law. The jobs posted on the website will remain live for 30 days from the day of posting and must have such details as education, experience and training required; salary details; employment location and benefits; and application process. Each H1B job post should have a title, a description and occupational classification.

The bill will enable American employers to focus on roping in the best talent from overseas and building great products that will create employment in the country and strengthen the local economy, according to Republican John Curtis.

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A presidential advisory commission has made certain recommendations, through unanimous voting, for the Biden administration to clear the existing green card backlog within 6 months. If the recommendations, if adopted through an executive order to reduce the green card wait times to six months, will be the best boon that hundreds of thousands of Indians have been waiting for decades.

The President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders (PACAANHPI) will soon send the recommendations to the White House for approval. The PACAANHPI meeting saw one of the proposals regarding the need to reduce the green card processing time moved by Ajay Jain Bhutoria, a noted Indian American community leader.

One of the recommendations made by the Presidential Advisory Commission is to speed up the processing of family based green card applications by streamlining the internal process within 6 months once President Biden approves and implements the recommendations through an executive order. The National Visa Center (NVC) is recommended to accelerate the hiring of additional officers and overhaul the operational capacity in order for green card interviews to be held by 100% in 3 months starting from August 2022.

This Indian family falls apart over green card limbo  

Some of the recommendations are those for the US Citizenship and Immigration Services to upgrade the systems, revise the policies, automate manual approvals, update the dashboards, remove redundant phases, correct the internal time cycle and review the policies, so that the existing green card logjam can be reduced by more than half of it. Only 65,452 – one fourth of the annual 2,26,000 green cards available in the family-based category, were issued in fiscal 2021. If the recommendations are adopted, the permanent waste of family-based green cards can be prevented to keep immigrant families united.

Once the backlog is cleared, the processing timeline for fresh green card applications should not exceed 6 months. It will do good to more than 8 lakh Indian immigrants who hopefully won’t meet the fate of this eminent Indian doctor who left USA for India after 15 years of disappointment over the green card fiasco.

There are other recommendations that require the USCIS to review requests for scrutiny of work permits, travel documents, and visa status extensions or changes within 3 months, so that non-citizen immigrants find it easier to continue to stay and work in the United States. Providing automatic work permit renewals to H4 visa holders and expanding the premium processing service to other visa categories in addition to H1B are among other recommendations by the advisory commission.

Early this month, the USCIS increased the automatic extension of work permits for non-citizen immigrants, including spouses of H1B visa holders. If it has been 180 days since your work permit expired, you can continue to be working for additional 12 months. The 540-day extension of work permits came into effect on May 4, 2022. This not only provides a relief to those whose employment authorization renewal applications are facing delays due to a huge backlog, but also saves employers from facing a talent crunch.

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After one year of having assumed presidential responsibilities, Joe Biden is all set to put the Trump-era public charge rule on a reverse gear. Introduced in the Trump regime of immigration-related uncertainties, the hardline public charge rule curbed immigrants’ claim to permanent residency on grounds of limited self-sufficiency. Since the 1800s, there has been a law that foreign nationals are inadmissible to the country and immigrants are ineligible for green cards if they lack self-sufficiency, or if they are likely to become a ‘public charge’ (economic burden on the country). The Trump administration defined ‘self-sufficiency’ as a fundamental criterion for individuals seeking entry to the US, noncitizens seeking legal permanent residency, and non-immigrant visa holders seeking extension of stay in the US.

On February 17, President Biden proposed new regulations to soften the ‘public charge’ definition and limit public charge determinations, as the Department of Homeland Security’s Secretary Alejandro Mayorkas made it clear that the 2019 public charge rule is not consistent with the United States’ constitutional values. He said, “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”

The Trump administration defended the public charge rule by arguing that it would help non-immigrants and certain immigrant groups become self-sufficient in the best interests of the US economy. The then Secretary of DHS, Kirstjen Nielsen said, “Those planning to immigrate to the United States must establish their ability to meet their housing and healthcare needs and other requirements, relying on their own capabilities and resources as long as they will be staying here.” However, humanitarians, civil rights activists and Democrats condemned the 2019 public charge rule as a deliberate act of discrimination against low-income immigrants.

The Trump-era public charge rule, if enforced, would have affected mostly the green card seekers who entered the US through family-based immigration. Furthermore, H4 visa holders would have been required to prove their self-sufficiency despite having no work authorization. The breakup of many immigrant families would have been the worst repercussion of the public charge rule.

Joe Biden’s proposal, which will soon be open to public comments, seeks to provide ‘fair and humane treatment’ to noncitizens by redefining “likely at any time to become a public charge” as “likely to become primarily dependent on the government for subsistence.” Biden’s version of the public charge rule will not consider those receiving noncash benefits, among the federal aid programs, as a ‘public charge’. The federal government’s noncash benefits include the Children’s Health Insurance Program, Medicaid, the Supplemental Nutrition Assistance Program, housing and transportation vouchers.

The new public charge rule will also not include Social Security, pandemic assistance, government pension, disaster aid received under the Stafford Act, and benefits in the form of tax credit or deduction. Some categories of non-citizens, including refugees, asylees, special immigration juveniles, temporary protected status (TPS) applicants, and petitioners under the Violence Against Women Act will be exempt even from the new public charge rule.

However, the Department of Homeland Security will continue to consider certain federal benefits as public charge inadmissibility determinations. These benefits are Supplemental Security Income (SSI), Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF), program, and long-term institutionalization at government expense.

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