The New Immigration Public Charge Rules: What You Need to Know About What It Does and Does Not Do

New Immigration Public Charge Rules

With new immigration public charge rules, the Immigration and Nationality Act (INA or the Act) makes any alien (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, if, in the opinion of the government they are likely at any time to become “a public charge.” The statute does not define the term ‘‘public charge.”

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. There has been a lot of public controversy about the Rule, including some misleading characterizations. Immigrant families, social workers, and insurance providers do need to know.

First, the rule will not take effect until October 15, 2019. Lawsuits have already been filed challenging it, and more lawsuits are expected. Therefore, there may be a delay in the rule becoming effective, and the rule may ultimately be blocked from ever becoming law. In the meantime, immigrants, their families, public agencies, not for profit benefit providers all may have to make decision based upon the possibility of these rules becoming law.

The rule will give USCIS (U.S. Citizenship and Immigration Services) officials greater discretion to deny status adjustments and embassies greater discretion to deny entry out of concern that an individual is likely to need public support programs, including certain housing subsidies and securing health insurance through public options (Obama Care). Immigrant families should consult with an immigration law expert about the possibility that there are immigration consequences of their accessing health and benefits programs before making important decisions about the health and well-being of their families. Medical providers and other service providers should not apply for benefits or funding on behalf of immigrant clients without consulting them and obtaining their specific permission for such application.

Here are the key provisions of the changes:

  1. The new public charge rule does not apply to any immigration applications filed before October 15, 2019. Those concerned that the changes might harm their applications should make every effort to apply before that date.
  2. The Rule will not affect all categories of immigrants and visa holders: asylees, refugees, U-visa holders, special immigrant juveniles, T-visa holders, VAWA applicants, and most permanent residents are not subject to public charge.
  3. The Rule is not a “bright-line” test. It gives the government official the authority to balance “positive” and “negative” factors in deciding to rule whether a specific alien subject to the Rule should be excluded or removed. Nevertheless, any alien should not count on persuading an officer to disregard the “negative” factors listed below:
    1. The final rule at 8 C.F.R. 212.21(b) defines a public benefit as:
      1. Any federal, state, local, or tribal cash assistance for income maintenance, including: Social Security Income (SSI), 42 U.S.C. 1381, et seq.; Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601, et seq.; and Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
      2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036(c);
      3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437(f);
      4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437(f));
      5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
      6. Public housing under section 9 of the U.S. Housing Act of 1937
  4. This rule redefines the term ‘‘public charge’’ to mean an alien who receives one or more of the above public benefits for more than 12 months in the aggregate within any 36-month period.
  5. The new rule counts each benefit received in a month as a separate “month” of benefit towards this total. For instance, receipt of two benefits in one month counts as two months).
  6. Critically, the fact that an immigrant has already made use of a public benefit will not disqualify them if they cease using it once the new Rule takes effect. DHS will not regard as a negative factor the receipt of specified benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.
  7. In this final rule DHS added a new heavily weighted positive factor for when the alien has private health insurance appropriate for the expected period of admission, and for which the alien does not receive subsidies in the form of premium tax credits (including advance premium tax credits) under the Affordable Care Act, (popularly known as Obamacare).
  8. The Rule only impacts immigration status not the entitlement to health and benefit programs. Immigrants who are currently eligible for public benefits will remain eligible.
  9. Children under 21 and pregnant women will not be penalized under the new public charge rule for using Medicaid/Medi-Cal. (SB 75 Medi-Cal for children in California is unaffected).
  10. Under the new public charge rule, many government-funded services are still safe to use and do not cause any immigration harm. School-funded programs like free and reduced lunch, emergency Medi-Cal (Medicaid), disaster relief, Head Start and more all remain safe to use.
  11. The use of benefits by family members, such as children, are not counted against the applicant for immigration status.