Homeland Security Finalizes Controversial Immigration Rule

On September 8th, the U.S. Department of Homeland Security (DHS) finalized a rule re-defining a “public charge,” a controversial concept with substantial implications for state and local government services.

At its most basic level, a public charge is a lawful non-citizen who must rely on government services for subsistence, and as a result, can be denied citizenship or legal residency (a green card). The new rule codifies what DHS describes as the “historical understanding of the term,” excluding supplemental public health benefits as part of the public charge inadmissibility determination. DHS Secretary Alejandro N. Mayorkas explained the intent behind the rule in a press release:

‘This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,’ said Secretary Mayorkas. ‘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.’

In 2019, the threshold of when one could be considered a public charge shifted to include almost all non-cash government benefits such as Medicaid or nutrition assistance, and did not consider the duration of benefits received. According to DHS, the rule “resulted in a drop in enrollments in such programs among individuals who are not subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households.”

Fearing disenrollment in critical health and human services programs among vulnerable immigrant populations, the State of Maryland and several local governments sought to prevent the rule from taking effect by filing lawsuits. At the time, Maryland Attorney General Brian Frosh said the following about the then-proposed rule in a press release:

‘Wealth has never been, and should not now be, the primary determinant of an immigrant’s status in America,’ said Attorney General Frosh. ‘America has always stood as a beacon of hope for those looking for a better life, and immigrants have lifted our country up as we have given them refuge. The ‘public charge’ rule is unlawful and un-American, and it jeopardizes the health and welfare of children and families.’

Thirteen other states, including Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, Virginia, and Washington, also filed suit. In 2020, the United States Supreme Court allowed the 2019 rule to go into effect. However, the Biden Administration refused to enforce the rule, and the United States Supreme Court subsequently declined to force the Administration’s hand earlier this year.

Under DHS’s newly finalized rule, which is based on its 1999 Interim Field Guidance, a public charge determination will depend on:

  • The non-citizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the Immigration and Nationality Act (INA);
  • The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a non-citizen’s behalf when one is required; and
  • The non-citizen’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.

More importantly, DHS will not consider enrollment in the following:

  • 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 effective on December 23, 2022, and was published in the Federal Register on September 9, 2022.

Read the full DHS press release.