By Alexander Somodevilla and Sara Rosenbaum
On Aug. 14, 2019, the Department of Homeland Security (“DHS”) published the long-awaited public charge final rule titled “Inadmissibility on Public Charge Grounds.” This final rule is sweeping. In defining who is a “public charge,” the rule greatly expands the list of benefits to be considered in an individual’s public charge determination, and it establishes some “bright-line” standards to provide both immigration adjudicators and immigrants clarity as to the public charge determination process. Yet in a direct contradiction, the rule then effectively sets aside this bright-line test (12 months of public benefits in the aggregate within a 36-month look-back time period) by further providing that any receipt of a public benefit within any period of time will be considered relevant in making the “totality of circumstances” determination as to whether an individual “is more likely than not” to become a public charge at “any time in the future.” Under the rule, “adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold.” Thus, any public benefits received at any time appear to become relevant to the “totality of the circumstances” test by which a person’s status as a public charge will be measured.
In its final form the rule removes Medicare Part D low-income subsidies from the definition of public benefits, while creating new exemptions for children under 21 and pregnant women through the postpartum period. But non-pregnant working age adults and the elderly remain subject to sanctions for using Medicaid – not only during the ostensible look-back period but also, apparently, at any time. Similarly included as a public benefit are means-tested federal, state, and local public cash assistance such as SSI or TANF, as well as SNAP and housing assistance. Prior policy limited the public benefits considered relevant to the public charge determination to cash welfare and Medicaid for long term institutional care, and then, only if an individual was “primarily dependent” on these sources of assistance.
The durational test is also qualified by the fact that under the rule, the 12-month durational test is likely not 12 months. This is because the rule specifies that the 12-month test is to be applied in terms of benefit months, meaning that if an individual subject to the public charge determination were to receive, say, both SNAP and Medicaid in a single month, this would count as two benefit months. As a practical matter, a working-age woman with breast cancer, who must rely on Medicaid, SNAP and short-term housing assistance while she undergoes treatment could reach the limit of the allowed time period within only a few months.
The rule also identifies “heavily weighted” negative and positive factors that are weighed during a public charge determination. Taken together, the rules make clear that certain types of immigrants are disfavored – those with children and elderly parents and with low incomes and limited English-speaking abilities. All of these factors, according to the rule, are predictors of an ongoing need for government assistance, including the “public benefits” that can trigger serious sanctions including denial of permanent residency status (i.e., green cards). For this reason, experts consider the rule likely to trigger a large-scale “chilling effect”, driving immigrants away from public services generally, with the downstream impact felt across entire communities.
A chart that details the relevant provisions of the proposed rule and the final rule can be accessed HERE.