The Department of State released a final rule reversing a 2019 interim final rule (IFR) that added nonemergency Medicaid and other types of public benefits to the public charge determination that consular officials use to evaluate visa applications.
Effective Oct. 5, the State Department’s regulations will revert to the narrower definition of public charge in a 1997 State Department rule, as well as the corresponding Foreign Affairs Manual (FAM) guidance, which exclude many of the benefits added by the 2019 rule. While this rule officially returns the regulations to the narrower public charge definition, the 2019 definition already had been on hold after the State Department halted its implementation following a federal district court ruling on July 29, 2020.
Background on 2019 Rule
In 2019, the Trump administration issued an IFR on ineligibility for visas on public charge grounds, which vastly expanded the types of public benefits consular officials consider when determining whether an individual is likely to become a public charge. This rule intended to align the State Department public charge definition with the Department of Homeland Security (DHS) definition finalized in a separate rule earlier in 2019. 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 in the future. The State Department regulations apply to applications for visas processed through U.S. embassies and consulates abroad, while the DHS regulations govern applications for individuals seeking to adjust status from within the United States.
The 2019 final rule expanded the types of benefits considered in making a public charge determination to include nonemergency Medicaid (with limited exemptions), nutritional benefits, and housing benefits. That rule also created a list of factors consular officials should consider in determining whether an applicant for benefits is likely to become a public charge, such as employment status, financial ability to pay for medical costs, and receipt of public benefits above a given threshold.
The 2019 public charge definition supplanted a narrower definition of public charge DHS previously enforced based on a 1997 rule and FAM guidance. That guidance defines public charge as an individual likely to “become primarily dependent on the government for subsistence,” which evaluated the receipt of:
- Long-term care paid for by Medicaid.
- Temporary Assistance for Needy Families.
- Supplemental Security Income.
- Other federal, state, and local general assistance programs.
The expansion of the definition in the 2019 rule created a chilling effect in immigrant communities, resulting in immigrants otherwise eligible for benefits forgoing enrollment or unenrolling.
In 2021, the Biden administration reopened the public comment period for the 2019 IFR, seeking additional feedback based on new developments and the administration’s executive order directing federal agency heads to review all policies related to the public charge definition. In 2022, DHS finalized a new definition of public charge that reversed the 2019 DHS rule and adopted a narrower definition that excludes Medicaid and similar benefits.
Details of New Final Rule
In response to feedback received in 2021 and to align with DHS’ 2022 revised public charge definition, the State Department has decided not to finalize the provisions of the 2019 IFR. In the new final rule, the State Department reverses the rule by removing regulatory text that it added to the Code of Federal Regulations through the 2019 final rule. Removing the regulatory text will revert the public charge definition back to the previous definition used since 1997, which excludes Medicaid, housing, and nutritional benefits. The State Department plans to issue a proposed rule to solicit comments on a new regulatory definition that would mirror the 2022 DHS rule.
Contact Senior Director of Policy Erin O’Malley at firstname.lastname@example.org or 202.585.0127 with questions.