Proposed 84 FR 41292: New Public Charge Federal Rule

In proposed regulations posted Wednesday, October. 10, 2018, the Department of Homeland Security (DHS) intends to redefine the term “public charge” to block green cards and visas for low-income immigrants. The administration will more heavily scrutinize the financial status of foreigners before granting immigration benefits. Low-income immigrants include young adults, the elderly, individuals with disabilities, and non-English speakers. The changes would create significant hurdles for immigrating family members to the U.S. as well as for foreigners here on non-immigrant visas such as student visas.

Under current law, immigrants can be blocked from obtaining a green card or visa on public charge grounds if they have received or are likely to receive public benefits in the form of cash assistance, such as Supplemental Security Income or Temporary Assistance for Needy Families. The foreigner is a public charge if the government believes the immigrant is “primarily dependent” on these benefits.

Now, a “public charge” will be redefined include immigrants who have received in the past any public benefits at all. The prior receipt of benefits has a bearing on whether the immigrant may receive certain public benefits in the future, even if they are not primarily dependent on benefits. These non-cash benefits received for determining whether someone should be deemed a public charge will now include:

• Benefits under the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps.
• Section 8 housing assistance or rental assistance.
• Medicaid benefits (except for emergency Medicaid or certain school or disability-based benefits for children).
• Premium and cost-sharing subsidies under Medicare Part D.
• Subsidized housing under Housing Act of 1937.

Currently, immigrants can avoid being deemed a public charge if a sponsor submits an “affidavit of support” agreeing to financially support them. The sponsor is normally a family member with U.S. citizenship or a green card who must meet certain income guidelines and agree to repay the government if the foreigner receives benefits. Typically, the affidavit of support solves the problem.

Under the proposed regulations, an affidavit of support may no longer be enough.  The primary concern is whether the foreign beneficiary can be self-sufficient. A component of self-sufficiency can be the fact that the U.S. sponsor promises aid in support by signing the affidavit of support and providing documentation in support. The government can also look to the earning capacity of the foreign applicant.

The newly posted regulations allow for some limited, temporary benefit usage, such as emergency medical services. The government will only label an immigrant a public charge if they use an amount of benefits that goes above a specific threshold. The threshold level of benefits is low.  In addition, the proposed rule will not penalize immigrants for benefits taken up to 60 days after a final rule is published.

DHS admits a list of negative effects, including “worse health outcomes … especially for pregnant or breastfeeding women, infants, or children,” as well as “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty and housing instability; and reduced productivity and educational attainment.” In fact, even before the regulations have gone into effect, health providers report that fear among immigrant parents has already caused many to forego nutritional benefits for their U.S.-born children.

Importantly, the public charge rules do not apply to asylum seekers, refugees, children receiving Special Immigrant Juvenile Status, individuals who are the beneficiaries of visas for crime victims or victims of domestic violence, and multiple other special visa categories that Congress has exempted from the public charge determination.

The public has 60 days to provide comments. The agency will then be required to review those comments and will only issue a final rule after that process is complete. Written comments and related material to this proposed rule, including the proposed information collections, must be received to the online docket via www.regulations.gov, or to the mail address listed in the ADDRESSES section below, on or before December 10, 2018.

Please see The Public Charge Determination and Table of Public Benefits to learn more about public benefits and the public charge determination.