More than 20 states are suing the Trump administration over a new Department of Homeland Security rule that would give immigration officials wider discretion in determining what constitutes a public charge, a statute that allows the government to deny visas or green cards to applicants it determines are likely to become dependent on government assistance.
The rule, which is set to take effect on Friday, would expand the list of possible government aid that officials could point to when deciding to disqualify an applicant.
New York State Attorney General Letitia James led a coalition of 21 states and Washington, D.C., in suing the administration over what they describe as punishment for immigrants’ law use of public assistance. New York City Mayor Zohran Mamdani led a separate lawsuit filed by a coalition of cities challenging DHS’ rule.
James said the rule would allow immigration officials to consider an immigrant’s use of benefits like Medicaid, the Supplemental Nutrition Assistance Program (SNAP) and participation in school meal programs when determining whether they could become dependent on government aid. She also said it could lead to more fear of interacting with the government for people who are part of an immigrant family.
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“Hardworking families should not be forced to go without the support they need because they fear asking for assistance will get them deported,” James said in a statement. “This rule preys on that fear and counts on families forfeiting the food assistance, health care coverage, and other public benefits to which they are legally entitled. My office fought this exact policy once before and won, and we are leading the nation to ensure the Trump administration cannot inflict this harm on families again.”
The public charge ground applies to certain immigrants seeking admission or adjustment of status. Most undocumented immigrants are ineligible for federal means-tested public benefits, although limited exceptions exist under federal and state law.
The states argue they would lose billions of dollars in federal funding if immigrants pull from programs over fears about the public charge rule.
Immigration officials under the Biden administration’s 2022 public charge rule generally considered only cash assistance for income maintenance, such as Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI), along with government-funded long-term institutionalization, when determining a public charge.
The rule does not specify a fixed list of public benefits that immigration officials may consider. Instead, it states that officers may consider the receipt of any means-tested public benefits as part of a public charge determination, giving them broader discretion in evaluating applicants.
The states’ and cities’ lawsuits asked the courts to declare the rule unlawful and prevent DHS from using it.
“It’s very hard to predict how courts will look at this issue. It is very unusual regulation though,” Cato Institute Director of Immigration Studies David Bier told Fox News Digital. “I think from that standpoint the states have a good argument that we had a well defined public charge rule and the administration didn’t replace it with some other well defined rule, it replaced it with nothing. So now there’s just discretion to the officers to do whatever they want with the underlying statute. There’s no regulation that clearly says this is what it means to be a public charge in the United States.”
“The rule as it was before this new regulation was you had to be primarily dependent on certain government benefit programs. This rule removes that definition and doesn’t replace it with anything. So now people and applicants, lawyers who are applying to the government on behalf of applicants, they don’t know really what the law is,” he continued.
The states’ lawsuit argues that DHS is exceeding its authority because Congress did not approve a broader interpretation of what it means to be a public charge. The states say the new rule is arbitrary and that the agency ignored the harmful consequences of the change.
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“Cruelty is the point,” James said at a press conference on Monday. “Having a chilling effect on immigrants is the point. Letting individuals know that they are not welcome here is the point. Immigration animus is the point. The fact that you’re going to deny individuals who are sick and hungry and homeless benefits just is beyond the pale.”
DHS did not respond to Fox News Digital’s request for comment in time for publication.
Bier said the rule does not prohibit immigrants from receiving welfare and is only used as an officer’s projection about someone’s likelihood of future welfare use in the U.S., warning that it could lead to self-sufficient applicants being denied.
“Whether someone is currently using benefits or not doesn’t matter under this evaluation. It’s this probabilistic determination of the future that they’re using in order to deny people legal status and legal permanent resident status in the United States. That’s a much more difficult assessment to make. That’s going to result in arbitrary denials. It’s just not possible to do this type of assessment and not result in people who would be self-sufficient being denied status,” he said.
This comes as President Donald Trump pursues a broader immigration crackdown that has extended beyond illegal immigration to legal immigration pathways. While Trump campaigned in 2024 on curbing illegal immigration, his administration has also imposed additional restrictions on legal immigration, including higher fees for certain work visas and new limits on how long some foreign students and journalists can remain in the U.S.
The administration has also pursued visa revocations and removal proceedings in cases involving political activity and speech, including some anti-Israel activists. Those efforts have prompted court challenges in which plaintiffs allege violations of First Amendment free speech and Fifth Amendment due process protections.
“It’s very clear that this administration wants to restrict both illegal immigration, which obviously it’s done at the border, and through deportations, but also legal immigration,” Bier said.
Last month, the administration directed U.S. embassies and consulates around the world to postpone immigrant visa interviews while consular officers complete training on new public charge guidance, temporarily stalling applications that had reached the interview stage.
“The primary population that’s going to be affected by this public charge rule are spouses of U.S. citizens and their kids who are trying to receive green cards so they can live with their American spouse or parent here in the United States. That’s the overwhelming majority of the people who are going to be affected by the rule. It’s going to result in many of those immigrant families being separated from their American spouse or parent,” Bier said.
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The public charge provision stems from the Immigration Act of 1882, when federal lawmakers sought to ensure that immigrants would be able to take care of themselves and not become a public burden.
After years of only considering cash benefits, the first Trump administration widened the categories of benefit programs that could be considered a public charge, including Medicaid, food stamps and housing vouchers. But the Biden administration in 2022 published a rule that returned to the previous guidance. The rule set to take effect this week would rescind the Biden administration’s rule.
The new rule is more broad than the one from the first Trump administration, as it does not specify which safety nets should be considered and only states that DHS “will consider the receipt of any means tested public benefits.”
“One of the most important things to understand is that during the first Trump administration, they had a public charge rule that was well defined that really did explain exactly what you were supposed to do in order to not be deemed a public charge or who was a public charge. This is completely different from that. It’s essentially the Wild West. No one knows what’s going on, no one knows what the law is now,” Bier said.