The Department of Homeland Security (DHS) has recently issued a much-anticipated final rule, published in the Federal Register on September 9, amending its regulations on how it will administer the public charge determination made when an immigrant applies for lawful permanent resident (LPR) status, admissibility to the U.S., or seeks to extend or adjust their status. The new rule adds critical protections to secure immigrant families’ access to health care, food assistance, and other critical supports.
The new rule restores the previous longstanding public charge policy, which was in place until 2019, when the Trump Administration issued a rule to consider a number of previously exempt public benefits, such as Medicaid and nutritional assistance, as part of the public charge inadmissibility determination. In fact, the 2019 rule led to a documented “chilling effect” as immigrant families avoided public benefits such as SNAP, Medicaid, the Children’s Health Insurance Program (CHIP), and housing subsidies for fear of risking their future green card eligibility. This rate was even higher among low-income immigrant families; three in 10 reported these chilling effects.
The Biden Administrations’ final rule, which will go into effect on December 23, 2022, is positive news for immigrant families and their ability to seek the health and social services that they need without a fear of retribution. Consistent with field guidance in place for two decades before the Trump Administration’s changes, the new rule states that a noncitizen would be considered likely to become a public charge if DHS determines that they are likely to become primarily dependent on the government for subsistence. In making this determination, the rule states that DHS can consider prior or current receipt of SSI; cash assistance for income maintenance under TANF; State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.
The rule is clear that DHS will not consider receipt of SNAP, WIC, the Child Tax Credit, Section 8, other “non-cash” federal programs (and state- and locally-funded versions of those programs), or Medicaid (with the exception for long-term use of institutional care) in a public charge determination. In addition, many forms of cash assistance will not affect immigration applications (i.e., unemployment programs, LIHEAP, pandemic relief, veterans benefits and more).
Now that the Trump Administration’s harmful public charge rule has been reversed, the hard work of educating communities to ensure immigrant families access the supports to which they are entitled begins. Immigrant families remain fearful and worry that a future Administration could easily revert back to the Trump era public charge policy. National, state, local, and community-based organizations need to ensure that immigrant communities understand the new rule and participate in programs for which they are eligible. Immigrant-serving community-based organizations will play a critical role in conducting outreach, educating communities, and helping families with applications for benefits to increase access to much-needed programs including SNAP, WIC, the Child Tax Credit, Section 8, and Medicaid.
Ultimately, in order to ensure immigrant families, and all families are able to access the supports they need, the public charge provision in immigration law must be repealed. It is inherently racist, harmful, and biased against low-income immigrants of color. No regulatory reform can change that.