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DHS Proposes New Public Charge Definition

Shahid Zaman
February 24, 2022

The Department of Homeland Security (DHS) issued a proposed rule on the public charge ground of inadmissibility for immigration decisions.

Background

The proposed rule is a step toward fulfilling the Biden administration’s pledge to withdraw and replace the controversial public charge regulation issued by the Trump administration in 2019. In the 2019 rule, DHS expanded the list of public benefits immigration officials consider when determining whether an individual applying for lawful permanent resident status or admission to the United States is likely to become a public charge. The expanded list included non-emergency Medicaid benefits, as well as nutritional and housing benefits, resulting in a chilling effect on immigrant access to health care and health benefit programs.

In early 2021, DHS reversed the 2019 rule, formally withdrawing it. Since the withdrawal, DHS has enforced the narrower and more favorable definition of public charge established in 1999 field guidance, which does not include non-emergency Medicaid benefits, nutritional benefits, or housing benefits. In August 2021, DHS issued an advance notice of proposed rulemaking, seeking to gather data and feedback on the public charge ground of inadmissibility to inform its development of a future regulation. The proposed rule is the next step toward finalizing a regulatory definition of public charge.

Details of Proposed Rule

The new proposal would define public charge as “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.” By including only cash benefits and long-term institutionalization in the public charge determination, the rule closely mirrors the 1999 field guidance. Cash assistance includes Supplemental Security Income; cash assistance for income maintenance under Temporary Assistance for Needy Families; or state, tribal, territorial, or local cash benefit programs for income maintenance. Long-term institutionalization at government expense includes Medicaid-covered institutionalization in a nursing home or mental health institution.

To avoid confusion about the scope of the public charge determination, the proposed rule includes a list of the groups of noncitizens exempt from the public charge ground of inadmissibility, such as refugees, asylees, and other noncitizens granted entry on humanitarian grounds.

Contact Director of Policy Rob Nelb, MPH, at rnelb@essentialhospitals.org or 202.585.0127 with questions.

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