DHS Publishes Proposed Public Charge Rule

The U.S. Department of Homeland Security (DHS) has published a proposed rule that, if implemented, would reaffirm long-standing guidance applicable for determinations of whether an individual will become a public charge. In its announcement, the DHS calls the rule “fair and humane,” in contrast to the 2019 rule implemented under the Trump Administration.

Background on Public Charge

Under U.S. immigration law, a foreign national who is considered likely to become a public charge is inadmissible, and therefore will not be issued a U.S. visa, granted admission to the United States, or allowed to adjust status (i.e., be issued a green card while in the U.S.). In 2019, the Trump Administration dramatically expanded the definition of public charge and implemented a more stringent rule to determine inadmissibility in connection with receipt of public benefits. This resulted in a complex and burdensome system to determine whether a foreign national would likely be denied an immigration benefit based on public charge grounds. The rule was eventually blocked by several federal courts.

Overview of Proposed Rule on “Public Charge” with Examples

The proposed rule returns the definition of “public charge” to the 1999 definition. Prior to implementation of the Trump Administration’s 2019 public charge rule, the DHS relied on the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds to define public charge. This guidance defined a public charge as 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.”

Examples of public charge under the proposed rule include the following:

• Supplemental Security Income (SSI)
• Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program
• State, tribal, territorial, and local cash assistance for income maintenance
• Long-term institutionalization at government expense

Exemptions from Public Charge with Examples

Additionally, the proposed rule explicitly states that receipt of some commonly used public benefits are not considered when making a public charge determination. Some of these exempted benefits include the following:

• Food and nutrition assistance programs including the Supplemental Nutrition Assistance Program (SNAP)
• Children’s Health Insurance Program
• Most Medicaid benefits (except for long-term institutionalization at government expense)
• Housing benefits
• Transportation vouchers
• Disaster assistance received under the Stafford Act
• Pandemic assistance
• Benefits received via a tax credit or deduction
• Social Security
• Government pensions or other earned benefits

Conclusion

The proposed public charge rule under the Biden Administration balances the desire to keep the United States a welcoming destination for immigrants with the responsibility of not unduly shifting financial burdens onto U.S. taxpayers. The public has until February 24, 2022, to submit comments to the DHS regarding the proposed rule.

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