On February 2, 2021, President Biden signed an executive order titled “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” It directs the U.S. Secretary of State, the attorney general, the secretary of Homeland Security and the heads of other relevant federal agencies to review all agency actions related to implementation of the public charge ground of inadmissibility and deportability.
In response to this call, this past February, The Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking to clarify the meaning of the “public charge ground of inadmissibility.” The new guidance will be welcome news for immigrants as well as state governments and immigrant-serving organizations across the country that have worked to combat fear and misinformation around public charge.
What Is A Public Charge?
A public charge is anyone who would become dependent on the U.S. government after gaining immigrant status. Public charge is a ground of inadmissibility and can deny a person a green card, visa or admission into the United States. Since 1999, immigration officers have adopted the guiding principle that a public charge is someone “primarily dependent on the government for subsistence,” as demonstrated by either (a) using public cash assistance for income maintenance or (b) institutionalization for long-term care at government expense. Under President Biden’s proposed rule, DHS is clear that “institutionalization” does not include immigration detention or the serving of a penal sentence.
Public Charge Under the Trump Administration
The Trump administration attempted to change this standard by implementing its own version of the public charge rule in 2019. The public charge inadmissibility rule under Trump was so complex and difficult to understand that many immigrants and service providers chose not to enroll or disenrolled from public benefits programs not even covered by the rule. Many simply avoided their right to these benefits fearful of making a mistake. Statistics estimate that the rule may have led to a decrease of 260,000 enrollees in child Medicaid and 21,000 enrollees in the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) – even though neither of these programs was targeted by the rule. The stricter 2019 rule issued by DHS under the former Trump administration is no longer in effect.
New Proposed Public Charge Rules Under the Biden Administration
“The 2019 public charge rule was not consistent with our nation’s values,” said Secretary Alejandro N. Mayorkas. “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”
Now that the prior administration’s rule has been vacated, DHS is moving forward to establish a more fair regulation. The 1999 field guidance makes it clear that the use of most public benefits programs – such as health, nutrition, and housing programs – will not impact an individual’s ability to obtain immigration status. Contrary to the standard imposed by the Trump administration, the good news is that DHS will no longer consider noncash benefits such as food and nutrition assistance programs including Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program, most Medicaid benefits (except for long-term institutionalization at government expense) and transportation vouchers as part of the public charge inadmissibility determination. DHS would also not consider 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.
Biden proposes fair and humane treatment for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States. In that regard, the proposed rule will formally exempt several categories of noncitizens from public charge including refugees, asylees, noncitizens applying for or re-registering for Temporary Protected Status (TPS), special immigration juvenile status (SIJS), T and U nonimmigrants, and self-petitioners under the Violence Against Women Act (VAWA). Nor will DHS consider vaccines or public benefits specifically related to the coronavirus pandemic when making public charge determinations.
When Can We Expect To See the Changes?
The administration will accept comments from the public on the new proposed rule until April 25, 2022, and a final rule could be unveiled soon afterward. This proposed rule is an important step in creating a more fair and efficient immigration system because it will provide a greater level of flexibility and certainty to noncitizens who seek to obtain or maintain immigration benefits in the United States.
The Law Office Of Michele Alcalde Can Help Immigrants Understand their Rights Under Changing Laws
Changing laws can be confusing and intimidating, especially for immigrants who are trying to make a home in a new land. The proposed changes to public charge standards are one of those laws that can be hard to interpret, particularly for people who struggle with English. Michele Alcalde and her devoted team can help you make sense of your rights and privileges to public benefits. Before you decide to take any steps or disenroll from benefits that could rightfully be yours due to concerns over immigration status and public charge, reach out to Michele. She has the experience and sincere interest in helping families receive the benefits and fair treatment they deserve and to help them make the most informed decisions for their families. Find us at our social media accounts or call us at 732.766.1407.
Posted in: Immigration