The U.S. Department of Homeland Security (DHS) published its final “public charge” rule in the Federal Register on August 14. Public housing, Housing Choice Vouchers, and Section 8 Project-Based Rental Assistance provided (or that may be provided in the future) at private, multifamily housing are now on the list of “public benefits” that could lead an immigrant to be considered a potential “public charge,” someone who is now defined as not self-sufficient and therefore who could be denied a green card or visa. A proposed rule was issued on October 10, 2018 (see Memo, 10/1/18 and 10/9/18). DHS received 266,077 comments on the proposed rule and, according to DHS, the vast majority of commenters opposed the rule.
Noncitizens seeking admission to the U.S. and those applying for lawful permanent resident status (green card) have long been subject to a review to determine whether they are, or might become, a public charge. A 1999 guideline defined “public charge” as someone who might become “primarily dependent on the government.”
The new DHS rule will make it far more difficult for people to convince officials at the U.S. Citizenship and Immigration Service (USCIS) that they are not and will not become a public charge. The rule is one more brick in the Trump administration’s invisible wall designed to intimidate and harm immigrants. Another brick is HUD’s proposal to evict “mixed-status” immigrant families from subsidized housing (see Memo, 5/13).
As Diane Yentel, NLIHC president and CEO wrote last week (see Memo, 8/14), “For the first time ever, an applicant for a visa or green card would be denied if they need support for safe and affordable housing, food assistance, or health care”. And as she wrote on August 14 in a joint statement with other organizations, “The administration designed this latest policy to do the greatest harm to low-income immigrants and their children by severely restricting their ability to access critical and life-saving benefits including food, health, and housing assistance. As low-income immigrant families lose access to needed housing assistance, they will face increased risk of eviction and homelessness, with tremendous personal and societal costs from poorer health, lowered educational attainment, and lessened lifetime earnings that will result.”
The rule goes into effect on October 15, unless litigation prevents its implementation. As of last week,, 17 states, the District of Columbia, the City of San Francisco, and the County of Santa Clara have filed suit. In addition, a suit was brought by the National Immigration Law Center, Western Center on Law & Poverty, National Health Law Project, and Asian Americans Advancing Justice-Los Angeles.
Advocates should ask their member of Congress to co-sponsor H.R. 3222, the “No Federal Funds for Public Charge Act of 2019.” The bill was introduced by Representative Judy Chu (D-CA) and currently has 61 co-sponsors. The bill would prevent federal funds to be used to carry out DHS’s public charge rule. The fiscal year 2020 spending bill for DHS also includes an amendment that would block the implementation of the rule.
The Protecting Immigrant Families (PIF)campaign has a variety of materials, including messaging to fight fear with facts. Advocates are encouraged to use the PIF resources and check their website periodically as new materials will continue to be added in the days ahead.
Key features of the rule follow. NLIHC also has a more in-depth preliminary summary.
Housing Assistance, SNAP, and Medicaid Added to List of “Public Benefits”
Under the Field Guidance on Deportability and Inadmissibility on Public Charge Groundsof 1999, public benefits only included Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI) primarily for people with disabilities, and state or local cash assistance such as “General Assistance.” That Guidanceinterpreted “public charge” to mean a person “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”
The final rule adds to the list of previous “public benefits,” public housing, Housing Choice Vouchers, and Section 8 Project-Based Rental Assistance (PBRA) which is used to subsidize private, multifamily housing. Also added by the new rule is the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, and most forms of Medicaid. Medicaid benefits received by someone under the age of 21 are not treated as a public benefit, nor are Medicaid benefits for a woman who is pregnant or for 60 days after giving birth.
The preamble to the final rule states that other housing programs are not “public benefits,” specifically referencing the Low-Income Housing Tax Credit (LIHTC) and Rural Development Section 515 and Section 514/516 programs. Other exempted housing programs are Section 202 housing for the elderly, Section 811 housing for people with disabilities, Housing Opportunities for Persons with AIDs (HOPWA), Family Self-Sufficiency (FSS), and Rural Development Rental Assistance. Because other programs such as HOME tenant-based rental assistance or state and local rental assistance are not specifically listed in the rule, immigration experts interpret that to mean those programs could not be considered public benefits.
In response to many comments that temporary access to public services help people transition to better conditions, DHS replies that it “does not believe that Congress intended for DHS to administer [the Immigration and Nationalization Act (INA)] in a manner that fails to account for alien’s receipt of food, medical, and housing benefits so as to help aliens becomeself-sufficient.” (emphasis in original). “DHS believes that it will ultimately strengthen public safety, health, and nutrition through this rule by denying admission or adjustment of status to aliens who are not likely to be self-sufficient.”
Definition of “Public Charge”
The 1999 Guidancedefined “public charge” to mean someone who is “primarily dependent on the government for subsistence.” The new rule redefines “public charge” to mean “an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period.” The rule explains that, for instance, receipt of two benefits (such as a voucher and SNAP) in one month counts as two of the 12 months. DHS refers to this as the public charge “threshold.”
Whether someone is “likely at any time” to become a public charge, USCIS has to consider “the totality of the alien’s circumstances by weighing all factors relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits for more than 12 months in the aggregate within any 36-month period.”
Factors that Might Make Someone “Inadmissible”
The Immigration and Nationality Act (INA) indicates that in determining whether someone is “inadmissible,” an administering agency must consider a person’s age, health, family status, assets, resources and financial status, and education and skills. To that end, the new rule elaborates on those five factors for assessing the totality of someone’s circumstances. As an example, the preamble to the rule considers a person’s age younger than 18 or older than 61 to be a negative factor. See NLIHC’s in-depth summary for details.
Heavily Weighted Factors
In addition, the rule adds a list of four negative and three positive “heavily weighted factors.” One example of a heavily weighted negative factor is an inability to demonstrate current employment, a recent employment history, or a reasonable prospect for future employment. However, the preamble indicates that a single heavily weighed negative (or positive) factor will not on its own create a presumption that someone is likely to become a public charge. See NLIHC’s in-depth summary for details.
People Exempt from the Public Charge Rule
There is a long list of categories of people for whom the public charge rule does not apply. The primary categories are refugees, people seeking asylum, and Violence Against Women Act (VAWA) self-petitioners. The many other categories refer to obscure statutes.
DHS Admits Potential Adverse Consequences
DHS issued a Regulatory Impact Analysis (RIA), but buried it amidst 85 other “supporting documents.” In the RIA DHS admits that a number of consequences could occur as people exit public benefit programs or decide not to apply for assistance. The list of “non-monetized” potential consequences include:
- Worse health outcomes, especially for pregnant and breastfeeding women, infants, or children;
- Increased use of emergency rooms as a primary method of health care due to delayed treatment;
- Increased prevalence of communicable diseases;
- Increased rates of poverty and housing instability; and
- Reduced productivity and educational attainment.
Housing Related Observations
In response to a variety of objections to including the housing programs, DHS replies, “DHS has determined that considering housing programs such as Section 8 Vouchers, Section 8 Rental Assistance, and public housing in the rule is important in ensuring that aliens are self-sufficient and rely on their own capabilities and the resources of their families, their sponsors, and private organizations. These programs have high expenditures and relate to the basic living need of housing, and therefore the receipt of such housing related public benefit suggests a lack of self-sufficiency.”
Commenters wrote that many people receiving housing assistance are working. In reply, “DHS recognizes that people receiving public benefit may nonetheless be working, but as they are seeking public benefits, such aliens are not self-sufficient.”
The official Federal Registerversion of the public charge rule is at: https://bit.ly/2yY3rzd
An easier to read advance version of the public charge rule is at: https://bit.ly/2N1Nxfq
The DHS Regulatory Impact Analysis is at: https://bit.ly/2KBg2Pf
NLIHC’s more in-depth preliminary summary of the key features of the rule are at: https://bit.ly/2YUMbdy
H.R. 3222, “No Federal Funds for Public Charge Act of 2019,” is at: https://bit.ly/31EJp96
The Protecting Immigrant Families campaign is at: https://protectingimmigrantfamilies.org
Slides from a PIF webinar are at: https://bit.ly/2KOMVXG and a recording of that webinar are at: https://bit.ly/2MilqJ8
The joint statement made by NLIHC, the Center on Law and Social Policy, Center on Budget and Policy Priorities, Housing California, National Housing Law Project, the National Immigration Law Center, and Non-Profit Housing Association of Northern California is at: https://bit.ly/33FIZRA