On Saturday, September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule designed to redefine a status known as “public charge” — a category used to determine whether someone seeking permanent resident status is “likely to become primarily dependent on the government for subsistence” for those seeking to immigrate to the United States. This rule was signed by Department of Homeland Security Secretary Kirstjen Nielsen on September 21, 2018 and will open for comment on the date of the official version’s publication in the Federal Register. As per past practices, the comment period should last for 60 days from the date of publication.

The 400 page rule expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become 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. Specifically, under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. (Note that there are many exceptions in which a public charge finding would not apply, including but not limited to: Refugees and Asylees, those who are victims of violence (VAWA), Special Immigrant Juveniles (SIJ), Temporary Protected Status (TPS) applicants, Amerasians, Afghan/Iraqi interpreters or U.S. Government employees, Cuban Adjustment Act applicants, NACARA applicants, etc.)

Currently, there is no formal definition of a public charge, but DHS states that “A number of factors must be considered when making a determination that a person is likely to become a public charge”. The proposed new rule would define a public charge as “an alien who receives one or more public benefits.” In the past, people have been at risk of being defined a “public charge” if they took cash welfare — known as Temporary Assistance for Needy Families, or Supplemental Security Income — or federal help paying for long-term care. (Immigrants must be in the country legally for five years before being eligible for TANF or SSI.) The new rule would expand the list to include some health insurance, food and housing programs. Specifically, it would penalize green-card applicants for using Medicaid under certain conditions, using food stamps, Section 8 rental assistance, federal housing vouchers and even enrollment in a Medicare Part D program subsidy.

Specifically, pages 95-96 of the proposed Rule lists the following that would be considered Public Benefits:
· Monetizable benefits: – Any Federal, State, local, or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
– Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
· Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”),
· Public housing defined as Section 8 Housing Choice Voucher Program;
· Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
· Non-cash benefits that cannot be monetized:
– Many Benefits paid for by Medicaid;
– Premium and Cost Sharing Subsidies for Medicare Part D; Benefits provided for institutionalization for long-term care at government expense;
– Subsidized Housing under the Housing Act of 1937.

While public charge is an old idea dating back to the 1990s, the proposed changes are unprecedented. Including programs like Medicaid and food stamps, which are much wider in scope, is a significant change.

In the past, DHS has been forgiving regarding the issuance of immigration benefits if someone had obtained government benefits in the past, so long the individual can prove that he or she is not likely to become a public charge in the future. Under the proposed rule as currently envisioned, it is clear that DHS will not be forgiving now looking at multiple factors including age, health, and past employment history, and, most importantly, receipt of past public benefits.

If implemented as contemplated, DHS will look back within a 36 month period of receipt of government benefits in making their decision on admissibility. Immigrants are encouraged to reexamine any currently public benefits that he/she is currently receiving to determine whether in the upcoming months it will be necessary to drop-out of these public benefit programs once the new public charge rule formally goes into effect.

DHS estimates that 2.5 percent of eligible immigrants would drop out of public benefits programs because of this change — which would tally about $1.5 billion worth of federal money per year, but others expect a much larger impact, including a chilling effect on the use of routine health benefits, particularly for children. In the proposed rule, DHS itself notes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” and other concerns.

Fear of being deemed a public charge and being unable to attain lawful permanent residency, and ultimately U.S. Citizenship will necessarily result in a detriment to low-income immigrant populations and eventually, the separation of families.

This is an early step in the complex federal rule-making process and many things could still change. Once the proposed rule appears in the Federal Register, it opens a 60-day public comment period allowing members of the public to provide input. As such, a final rule is unlikely to take effect before 2019.

We recommend that any immigrant, regardless of immigration status, who has previously received a public assistance benefit in the past for themselves, or immediate family members, should contact an immigration attorney for evaluation of their case.

Fox Rothschild immigration attorney, Kristen Schneck will be speaking on this topic as a panelist on Oct 24th, at the DHS Advisory Committee meeting to be held in Pittsburgh hosted by the Allegheny Dept. of Human Services.

Fox Rothschild will continue to monitor and report on activity regarding these rule making efforts. Over the course of the next few weeks, we will publish a series of blog posts with more details and updated regarding the Public Charge proposed rule. As always, please refer to ImmigrationView for the latest information on topics of importance in the immigration law practice.
For questions or more information about this alert, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice