Immigration and Public Charge: DHS Proposes New Definition


stack of formsThe U.S. Department of Homeland Security (DHS) released a Notice of Proposed Rulemaking in the Federal Register on Oct. 10, 2018, that would revise the 1999 rule and dramatically expand the definition of “public charge” for legal immigrants. Under the current regulations, DHS defines public charge as "primarily dependent on the government for subsistence by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense."

A public charge determination affects legal immigrants seeking adjustment of immigration status or permanent residence and those seeking a visa to enter the United States. Those found to be a potential “public charge” can be denied immigration visas or permanent residence. NCSL's comments can be found here. DHS received more than 216,000 comments.

The proposed rule would:

  • Expand the list of public programs considered in making a public charge determination from cash assistance—currently defined as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), state and local cash assistance and long-term institutional medical care—to include these additional programs: non-emergency Medicaid, Medicare Part D Low-Income Subsidy Program, Supplemental Nutrition Assistance Program (SNAP), and housing assistance programs such as public housing, Section 8 housing vouchers, Project Based Section 8 and rental assistance.
  • Expand the definition of “dependence on government assistance” from more than 50 percent of income to the receipt of 15 percent of the federal poverty line in public benefits—or $1,821 for an individual per year.

The proposed rule exempts disaster relief, emergency medical assistance or state, local or tribal programs. DHS is asking for public comment on whether to include use of the Children’s Health Insurance Program (CHIP) in the determination of public charge.

Exempted populations include: refugees; asylees; survivors of domestic violence; individuals who have or are applying for U or T visas (victims of certain crimes and trafficking survivors); children seeking Special Immigrant Juvenile status; and active duty service members. Public charge policies also do not apply to legal permanent residents seeking to obtain citizenship.

DHS will consider 15 factors for a public charge determination, including age, health, resources, financial status, education and skills. DHS estimates that 382,600 green card applications a year would be subject to the new public charge test and an additional 517,500 visa applications. 

State Impacts

The Kaiser Family Foundation found that these changes could lead to decreased Medicaid participation for legal immigrant families. Nationwide, more than 19 million, or 1 in 4 (25 percent), children live in a family with an immigrant parent, and nearly 9 in 10 (86 percent) of these children are citizens.

The loss of access to federal public benefits typically increases state and local costs. For example, the loss of Medicaid benefits means individuals will not receive preventive care and will likely seek medical assistance in emergency rooms. The loss of SNAP benefits will affect immigrant and citizen children who will come to school hungry. SNAP has been shown to improve test scores and readiness to learn and reduce behavioral problems for these children.

The Migration Policy Institute has also found that the confusion around receipt of public benefits leads immigrants to forego benefits for which they are eligible, the so-called “chilling effect.” MPI’s research found that the affected population of immigrants would increase from 3 percent to 47 percent in their review of a leaked draft rule earlier this year.  

1999 Rule Compared to 2018 Proposed Public Charge Rule


1999 Rule

Proposed Rule

Public Benefits

  • SSI
  • TANF
  • State/Local Cash Assistance Programs
  • Public Assistance for long-term institutional care (including Medicaid)
  • SSI
  • TANF
  • Federal/State/Local Cash Assistance Programs
  • SNAP
  • Section 8 Housing Voucher Program
  • Section 8 Rental Assistance
  • Medicaid
  • Medicare Part D Low-Income Subsidy Program
  • Government- funded institutionalized long-term care
  • Subsidized public housing

Threshold of Use of Public Benefits

  • Past and current receipt of cash public assistance
  • Cash benefits received by children or other family members should not considered.
  • Cash public assistance exceeds 15 percent of the FPL for a household of one within a 12-month period.
  • For benefits that cannot be translated into a cash value, receipt of any benefit for more than 12 months within a 36-month period.

Note: Immigrants’ Eligibility for Public Benefits

Congress barred legal immigrants from accessing means-tested programs (TANF, SSI, Food Stamps, Medicaid and CHIP) for five years in the 1996 welfare reform law. After five years, immigrants are eligible on the same basis as citizens. Most newly arriving legal immigrants must also have an affidavit of support from their sponsor demonstrating income of 125 percent of the federal poverty level. Unauthorized immigrants are not eligible for public benefit programs, with the exception of emergency medical assistance or K-12 public education.

Additional Resources

Prepared by: Ann Morse and Ishanee Chanda, NCSL Immigrant Policy Project