Immigration and Public Charge: DHS Final Rule

2/25/2020

stack of formsThe federal rule on public charge became final Feb. 21, 2020 when the Supreme Court ruled against  Illinois, staying an injunction prohibiting its implementation and permitting the rule to apply nationwide. NCSL had filed comments with DHS's U.S. Citizenship and Immigration Services (USCIS) objecting to its implementation due to its detrimental impact on states. DHS received more than 266,000 comments.

The final rule, published on Aug. 14, 2019, and originally scheduled to go into effect on Oct. 15, 2019, prescribes how the DHS will determine whether an alien is granted a visa to enter the United States or whether a noncitizen can adjust to lawful permanent residence in the U.S. "Public charge" means likely to become dependent on government assistance under section 212(1)(4) of the Immigration and Nationality Act. USCIS will now apply the final rule to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. 

Public charge is now defined as an individual receiving one or more public benefits for a period of 12 months during a 36-month period. Receipt of two benefits in one month will count as two in the 12-month requirement. Previously, public charge was defined 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.”

The rule expands 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, local or tribal cash assistance and long-term institutional medical care—to include these additional programs:

  • Medicaid, with exceptions for emergency services, pregnant women and children;
  • Supplemental Nutrition Assistance Program (SNAP);
  • Federal Public Housing, Section 8 housing vouchers, and Section 8 project-based rental assistance.

The final rule exempts disaster relief; emergency medical assistance; services provided in connection with the Individuals with Disabilities Education Act; school lunch and school breakfast; Children’s Health Improvement Program; Women, Special Supplemental Nutrition for Women, Infants and Children (WIC); and Medicaid benefits received by pregnant women and children under the age of 21. It also exempts programs entirely funded by state, local or tribal government, other than cash.

Exempted populations not subject to this rule 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); Afghans and Iraqis with special immigrant visas; children seeking Special Immigrant Juvenile status; and active duty service members. Lawful permanent residents applying for citizenship are also not subject to the public charge test.

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. 

The implementation of the rule comes after a lengthy legal battle that delayed the rule’s original enforcement from October 15, 2019 until February 24, 2020. Federal judges in California, Maryland, New York, and Illinois issued injunctions against the rule’s enforcement. On February 21, the Supreme Court lifted the  last  injunction in Illinois, allowing for the rule’s enforcement nationwide. A continued legal battle is expected, with lower courts set to hear lawsuits on the public charge determination in the upcoming months. As the Supreme Court only ruled on the injunctions and not on the merits of the suit, it is possible the Court will review the issue as well.

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 (MPI) found that 47 percent of immigrants live in a family receiving these means-tested benefits, compared to 3 percent of noncitizens using only TANF or SSI under the previous standard. MPI’s research also found that confusion around receipt of public benefits leads immigrants to forego benefits for which they are eligible, the so-called “chilling effect.” A 2018 study conducted by the Urban institute found that approximately 1 in 7 or 13.7 percent of adults in immigrant families reported they did not participate in a benefit program for fear of risking future green card status.

1999 Rule Compared to 2019 Public Charge Rule
 

 

1999 Rule

Final 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
  • Medicaid (non-emergency)
  • Housing assistance
  • Government- funded institutionalized long-term care

 

 

 

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 Carlee Goldberg