By Allison Lofgren, J.D. Class of 2023
In December, as the result of a new Department of Homeland Security rule, non-citizens who apply for a visa, arrive at a port of entry, or apply for adjustment to permanent resident status (a “green card”) will no longer be negatively impacted in immigration “inadmissibility” determinations as a result of receiving public benefits, such as medical and nutritional assistance, from the U.S. government.
The Immigration and Naturalization Act (“INA”) sets the general parameters for the “public charge” ground of inadmissibility. Section 212(a) of the INA lists ten categories of grounds for inadmissibility, including being a “public charge.” According to this section, the government, while making a public charge determination, should take into account the following factors: age; health; family status; assets, resources, and financial status; and education and skills.1 If the non-citizen is “likely at any time to become a public charge,” according to “the consular officer at the time of application for a visa” or “the Attorney General at the time of application for admission or adjustment of status,” then that person will be inadmissible.2
Congress additionally delegated the authority to promulgate more specific immigration-related rules and regulations (within the bounds of the INA) to other components of the federal government. For example, between 1999 and 2020, the applicable guidelines for making a public charge determination were laid out in the Department of Justice’s March 1999 field guidance. According to this guidance, public charge determinations couldn’t consider the receipt of non-cash public benefits.3
However, this guidance was altered in February 2020, when a new rule from the Trump administration went into effect.4 With this new rule, the Trump administration expanded the definition of “public charge” to include individuals who had taken advantage of health benefits such as Medicaid; nutritional benefits, such as Supplemental Nutrition Assistance Program (“SNAP”) and Children’s Health Insurance Program (“CHIP”); housing assistance, or other public benefits.5 This rule had far-reaching effects, and it “resulted in a drop in enrollments in such programs among individuals who are not subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households.”6
In February 2021, the Biden Administration began to roll back the Trump-era policy and the following month, it stopped enforcing the public charge rule, thereby returning to the March 1999 field guidance.7 However, these actions did not effectively reverse the impacts of the Trump Administration’s rule. According to the “Protecting Immigrant Families Coalition/BSP Research Survey,” concerns over the impact that using public benefit programs would have on their immigration status led 46% of surveyed families to refrain from seeking such assistance during the COVID-19 pandemic.8 This prompted calls for increased messaging to inform immigrant families about the Biden Administration’s actions to reverse Trump-era policies.9
On September 8, 2022, the Department of Homeland Security issued a final rule that reverses the Trump-era rule and formalizes the use of the March 1999 field guidance. This rule will take effect on December 23, 2022. Going forward, the DHS will not consider the following in public charge determinations: (1) benefits received by an applicant’s family members, or (2) non-cash governmental benefits such as SNAP, CHIP, Medicaid that are received by qualifying applicants.10 To ensure effective implementation of this new rule, “DHS will develop a Policy Manual update to help USCIS officers” and “will conduct public outreach and engagements to minimize the risk of confusion or chilling effects among both noncitizens and U.S. citizens.”11 Hopefully, this outreach will successfully address the concerns outlined in the aforementioned Survey. Ultimately, in the words of Secretary of the DHS, these actions will help ensure “fair and humane treatment of legal immigrants and their U.S. citizen family members.”12
[1] INA § 212(a)(4)(B).
[2] INA § 212(a)(4)(A).
[3] Gabriel R. Sanchez, It’s time for the Biden administration to let immigrants know about the public charge rule, Brookings institution (Jan. 19, 2022), https://www.brookings.edu/blog/how-we-rise/2022/01/19/its-time-for-the-biden-administration-to-let-immigrants-know-about-the-public-charge-rule-change/.
[4] Id.
[5] Kelly Garrity, DHS unwinds Trump-era ‘public charge’ rule for immigrants, Politico (Sept. 8, 2022), https://www.politico.com/news/2022/09/08/trump-public-charge-rule-immigrants-biden-00055505.
[6] DHS Publishes Fair and Humane Public Charge Rule, Dep’t Homeland Security (Sept. 8, 2022), https://www.dhs.gov/news/2022/09/08/dhs-publishes-fair-and-humane-public-charge-rule.
[7] Josh Gerstein, Supreme Court punts on case tied to Trump’s ‘public charge’ rule for immigrants, Politico (June 15, 2022) https://www.politico.com/news/2022/06/15/supreme-court-punts-on-case-tied-to-trumps-public-charge-rule-for-immigrants-00039818.
[8] Sanchez, supra note 3.
[9] Id.
[10] DHS Publishes Fair and Humane Public Charge Rule, Dep’t Homeland Security (Sept. 8, 2022), https://www.dhs.gov/news/2022/09/08/dhs-publishes-fair-and-humane-public-charge-rule.
[11] Id.
[12] Kelly Garrity, DHS unwinds Trump-era ‘public charge’ rule for immigrants, Politico (Sept. 8, 2022), https://www.politico.com/news/2022/09/08/trump-public-charge-rule-immigrants-biden-00055505.
William & Mary Law School Immigration Clinic Blog 