The Department of Homeland Security (DHS) on Nov. 19 issued a proposed rule, Public Charge Ground of Inadmissibility, which aims to provide immigration officers broad discretion to determine if an individual likely will become a public charge. The term “public charge” describes a person who is likely to become primarily dependent on the government for support. DHS also proposes to address the breach and cancellation of public charge bonds.
Under immigration law, individuals seeking to enter or who reside legally in the United States and apply for a green card (adjustment of status) must demonstrate they are not likely to become a public charge. The public charge ground of inadmissibility has faced significant administrative, regulatory, and judicial activity in the past several years. The 2019 final rule expanded the types of public benefits immigration officials consider when determining whether an individual is likely to become a public charge, including the addition of nonemergency Medicaid, housing benefits, and nutritional benefits.
The 2022 final rule codified longstanding 1999 field guidance and reversed several policies from the 2019 rule. The 2022 rule narrowed the types of benefits considered in public charge determinations by excluding nonemergency Medicaid and other in-kind benefits included in the 2019 final rule.
DHS proposes to rescind the 2022 public charge ground of inadmissibility regulations but does not propose replacing them with new language. The rule includes an explanation of how the agency intends to interpret “public charge” to include the consideration of any past or future benefit use for any length or duration of time, including the use of “means-tested public benefits.”
The proposed rule also removes the definition of “receipt of public benefits,” which explicitly states that applying for or receiving benefits on behalf of family members is not considered “receipt.” Immigration officers are to consider every change of status application on a case-by-case basis considering the totality of the individual’s circumstances.
The rule signals that the agency may introduce new policy in the future, possibly through agency guidance without seeking notice and comment beforehand.
The multiple regulation changes cause significant confusion and a chilling effect for immigrants, including those who otherwise were not affected by the change in the public charge definition. DHS estimates over 400,000 eligible individuals could forgo or disenroll in Medicaid and CHIP, saving the federal government between $1.7 and $8.8 billion.
The association will submit comments on this proposal. Comments are due to DHS Dec. 19.
Contact Policy Manager Julie Kozminski, MPH, at jkozminski@essentialhospitals.org or 202.585.0113 with questions.
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