The Department of Homeland Security has released a final rule that it claims provides “clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility.” The rule will be published in the Federal Register soon.
According to the administration, the new rule “restores the historical understanding of a ‘public charge’ that had been in place for decades.” Under President Trump, DHS began considering supplemental public health benefits such as Medicaid and food stamps as part of the public charge inadmissibility determination. “The rule announced today speaks to the Biden Administration’s commitment to restoring faith in our legal immigration system,” said the department.
DHS Secretary Alejandro N. Mayorkas proclaimed,
This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members. Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.
U.S. Citizenship and Immigration Services Director Ur M. Jaddou added,
In keeping with our nation’s values, this policy treats all those we serve with fairness and respect. Though there is still much to do to overcome confusion and fear, we will continue to work to break down barriers in the immigration system, restore faith and trust with our immigrant communities, and eliminate excessive burdens in the application process.
Section 212(a)(4) of the Immigration and Nationality Act (INA) renders a noncitizen inadmissible if they are “likely at any time to become a public charge,” meaning that they are likely to become primarily dependent on the government for subsistence, and can be denied admission or lawful permanent residence.
Before 2019, essentially all taxpayer-funded non-cash government benefits such as Medicaid or food stamps were excluded from consideration. “The publication of this rule in the Federal Register avoids these effects by formally codifying the historical understanding of the term,” says DHS.
Under the new rule, DHS will determine if an alien is likely to become a public charge based on:
- The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the INA;
- The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and
- The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.
DHS will not consider in public charge determinations benefits received by family members other than the applicant. DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible. These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.
“The final rule will be published in the Federal Register on September 9, 2022 and be effective on December 23, 2022. DHS is currently making public charge assessments consistent with the statute and the 1999 Interim Field Guidance and will continue to do so until it implements the final rule for applications postmarked on or after the effective date.”
You can read the full press release here.
