Final Rule to Expand Public Charge Definition and Restrict Immigrants

On August 14, 2019 the Administration published a new final rule to expand the definition of “public charge” as it applies to immigrants legally seeking to enter the United States or adjusting their legal status (green card status). Under the new rule, the Administration will now consider use of health care, housing and nutrition programs as a potential sign a person will become a public charge.

For people entering the country there has been a test of whether an individually legally entering the country will become a public charge to the country based on use of certain human services. In evaluating the likelihood that an individual will become primarily dependent on the government, U.S. immigration has looked at cash assistance programs such as TANF or Supplemental Security Income (SSI). The government also looks at the affidavit of support which is signed by the immigrant-applicant’s sponsor in evaluating whether a person in the future will become a charge.

Under the new rule, scheduled to take effect on October 15 (pending any legal challenge), the list of publicly-funded programs that immigration may consider when deciding whether someone is likely to become a public charge will now include Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing and expands cash assistance to include not just TANF and SSI but any state or local cash assistance program.

In addition, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who receives any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Each benefit counts toward the 12-month calculation so if an applicant receives two different benefits in one month that counts as two-months use of benefits. The new rule does not count emergency health services or Medicaid to people under the age of 21.

The Immigrant Legal Resource Center has provided a resource toolkit here. There are at least six different lawsuits that have been filed against the new rule.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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