WASHINGTON — A new “public charge” regulation finalized today by the U.S. Department of Homeland Security (DHS) adds critical protections to secure immigrant families’ access to the health and social services safety net. While the final regulation largely restores and improves upon the public charge policy in place for 20 years prior to the Trump administration, it also makes an improvement sought by more than 1,000 organizations coordinated by the Protecting Immigrant Families coalition (PIF): making it crystal-clear that DHS will not consider use of health care, nutrition, or housing programs when making immigration decisions. Reacting to the publication of the final public charge regulation, the PIF coalition issued the following statement by its director, Adriana Cadena:
“The final Biden public charge regulation is a major win for immigrant families. We know that anti-immigrant politicians will attack this reform through partisan litigation, but there are solid grounds for a court to uphold the rule. The new rule clarifies what is and is not considered in a public charge determination, providing assurances that eligible immigrant families can use health care, nutrition, and housing programs without public charge concerns.
“The more than 600 members of the PIF coalition are emboldened in our broader fight to repeal provisions in immigration law that are racist and discriminate against low-income people of color. Congress must strike public charge from the law and eliminate other barriers to the health and social services safety net. We will continue to push our leaders for action.”
Why does this matter?
Research confirms the now-reversed Trump public charge regulations and their widespread “chilling effect” deterred millions in immigrant families from seeking health care and aid during the pandemic, undermining pandemic response and widening racial disparities in its economic and health impact. Research indicates that, long after its reversal by the Biden Administration, persistent information gaps and concerns about the Trump policy continue to drive lower COVID-19 vaccination rates, food insecurity, and other disparities among immigrants of color.
How does this regulation relate to the Trump public charge policy?
The public charge regulation issued by the Trump DHS took effect just weeks before COVID-19 hit the United States. When the Biden Administration reversed the Trump policy in March 2021, it reverted to guidance in effect from 1999 through February 2020. The regulation issued today formally replaces that guidance. Regulations are harder to change than informal guidance, so the issuance of final public charge regulations protects against radical changes by future presidential administrations.
What process was used to issue this regulation?
In issuing the final rule, the Biden administration took the proper notice and comment steps required by the Administrative Procedures Act, which governs the process by which federal agencies make or change regulations. The process to arrive at this final public charge regulation began in August 2021 with an advance notice of proposed rulemaking that included a 60-day public comment period. It was followed in February 2022 with a final regulatory proposal also with a 60-day comment period. In addition to both comment periods, DHS invited input through a series of public listening sessions in late 2021.
What does the final regulation do?
Based on a PIF coalition analysis, selected provisions of the final regulation clarify that:
- A child’s or other family member’s use of federal safety net programs never affects the applicant’s immigration application.
- SNAP, WIC, the Child Tax Credit, Section 8, and other “non-cash” federal programs (and state- and locally-funded versions of those programs) never affect immigration applications.
- DHS will not consider use of health care programs (like Medicaid, CHIP and the marketplace) by eligible immigrants and their family members.
- DHS can consider long-term institutional care paid for by Medicaid (short term rehabilitation or community based services will not be considered), and cash assistance for income maintenance such as SSI, TANF, and state, local and tribal cash assistance. However, DHS must consider other factors such as education, income, and an affidavit of support. Therefore, the applicant’s use of long-term institutional care or cash assistance will not automatically result in a determination that the applicant is likely to become a public charge.