Since the 19th century, immigration laws excluded or made deportable immigrants deemed “likely to become a public charge (LPC).” While the definition for LPC has remained relatively consistent since the early 20th century, defined as someone who received government cash benefits or long-term institutionalization, the Trump administration proposed an administrative rule change in 2018 to expand the terms by which someone might be deemed LPC. After a comment period, the Department of Homeland security published the final rule in August 2019, which applies to those who seek admission to the United States on immigrant or nonimmigrant visas and those in the United States who wish to adjust their status to that of a lawful permanent resident. The rule change expands the list of government benefits that may make an applicant excludable or deportable to include means-tested programs like Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), non-emergency Medicaid, and Section 8 housing assistance. The rule also considers applicants’ employment history, assets, English language ability, and medical status in determining admissibility or deportability, meaning that an applicant may be deemed LPC even if they have not collected government benefits.
August 14, 2019
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This rule changes how the Department of Homeland Security (DHS) interprets and implements the public charge ground of inadmissibility. The Immigration and Nationality Act (INA or the Act) renders inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS (or the Departments of State (DOS) or Justice (DOJ), as applicable), is likely at any time to become a public charge. The statute does not define the term “public charge,” but in a related statute, Congress has articulated a national policy that (1) “aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations,” and (2) “the availability of public benefits not constitute an incentive for immigration to the United States” . . . .
“[P]ublic charge” has been interpreted to mean a person who is “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” As a consequence, an alien’s reliance on or receipt of non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; and housing vouchers and other housing subsidies are not currently considered by DHS in determining whether an alien is deemed likely at any time to become a public charge.
DHS is revising its interpretation of “public charge” to incorporate consideration of such benefits, and to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations. This rule redefines the term “public charge” to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). This rule defines the term “public benefit” to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing . . . .
[T]he rule contains a list of negative and positive factors that DHS will consider as part of this determination, and directs officers to consider these factors in the totality of the alien’s circumstances . . . These positive or negative factors operate as guidelines to help the officer determine whether the alien is likely at any time to become a public charge, i.e., is more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period . . . .
Additionally, this rule contains additional provisions that will render certain nonimmigrants ineligible for extension of stay or change of status if she or he received one or more public benefits for more than 12 months in the aggregate within any 36-month period since obtaining the status he or she wishes to extend or change.
DHS Notice of Proposed Rule “Inadmissibility on Public Charge Grounds” (Immigrant Law Center of Minnesota)
FR 2018-21106 (Oct. 5, 2018)
By: Torrie Hester, Hidetaka Hirota, Mary E. Mendoza, Deirdre Moloney, Mae Ngai, Lucy Salyer, and Elliott Young
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The expanded definition and negative factors in the test could exclude many low and moderate wage workers from immigrating, even if they are not eligible for receiving public benefits. Beyond this, the proposed rule will chill access to critical services for a much broader group. Out of fear that their green card applications would be denied and they would be ultimately deported as a result, immigrants
earning low-wages have already started withdrawing from public benefit programs, including food assistance. The same fear keeps immigrants from seeking public medical services. Without appropriate immunizations and screenings, they are vulnerable to infectious diseases, placing both themselves and citizens at greater public health risks . . . .
(1) Definitions of “public charge” and the grounds for exclusion and deportability of public charges have remained remarkably constant for more than 100 years under statute, case law, administrative regulation, and customary practice. “Public charge” has been narrowly construed to the use of cash benefits for subsistence or long-term institutionalization.
(2) As public benefits expanded for low-income people since the 1960s and 1970s, both legal and undocumented immigrants had access to public benefits. Since the 1970s, undocumented immigrants have been ineligible for most benefits. Since 1996 legal immigrants face time
barriers to access federal benefits but they have not been categorically excluded.
(3) Restrictions on aliens’ eligibility for public benefits generally have been authorized by statute.
In conclusion, we submit that the proposals for these sweeping changes in immigration public charge policy would reverse over 100 years of consistent policy. That policy recognizes two principles: first, the nation’s desire for immigrants who are able-bodied and employable, capable of supporting themselves and their families; and second, our commitment to assist members of our communities who fall on hard times. The proposed policy is punitive and carries high social costs for welfare and public health beyond the lines of citizenship. Chilling access would undermine the goals of the public charge provision. The proposed policy is at odds with historical experience and policy and will directly harm America’s future