On September 8, 2022, the Department of Homeland Security finalized a new “Public Charge” regulation that allows immigrants to apply for permanent residency, known as green cards, even if they use non-cash public assistance programs, like Supplemental Nutrition Assistance Program (food stamps), Medicaid, or housing benefits. The new rule goes into effect on December 23, 2022.
Although the term “public charge” doesn’t have a clear single meaning, its basic thrust is clear: significant reliance on the government for support, according the Department of Homeland Security Public Charge Ground of Inadmissibility Final Rule.
This is a welcomed reversal from a Trump-era policy that had expanded the long-held definition of a public charge. There are an estimated 1.5 million U.S. households with at least one non-citizen member who receives food stamps and another about 1 million who receive Medicaid benefits, according to Reuters.
For patients, this means that you can receive Medicaid benefits (known as “Apple Health” coverage in Washington), as well as emergency care and COVID-19 treatment, without affecting your immigration status. However, those receiving long-term, institutionalized care, such as that of a hospice or nursing facility, is considered a public charge under the new rule. This is much like the 1999 Field Guidance that defined “public charge” for nearly two decades.
If this criteria of a public charge applies to you or anyone you know, or you have questions about your specific situation, you may want to contact an immigration attorney to discuss the implications of that care on Lawful Permanent Resident status. If this applies to you or anyone you know, you may want to contact an immigration attorney to discuss the implications of that care on Lawful Permanent Resident status. Our Legal and Immigration Resources page includes links to help you find an attorney if needed.
Resources and Trainings
While the Trump administration’s public charge rule was withdrawn and is no longer in effect, it created a “chilling effect,” and there continues to be confusion and concern related to the use of public benefit programs. See below for multilingual educational tools on this topic available from Protecting Immigrant Families (PIF):
What is the latest happening around Public Charge?
January 2023 – The Supreme Court has declined the Trump Administration’s “public charge” immigration regulations
The Supreme Court has declined to consider litigation (Texas, et al. v. Cook County, IL, et al.) by Texas and 13 other states concerning the Trump Administration’s “public charge” immigration regulations on January 9, 2023. This ruling ends a bid to revisit a 2020 ruling by a federal trial court in Illinois invalidating (“vacating”) Trump Administration public charge regulations as unlawful.
The Texas petition that was the subject of the procedural decision by the Supreme Court did not challenge the Biden Administration’s 2022 public charge regulation. On January 5, Texas filed a separate lawsuit challenging the Biden administration’s final public charge rule that took effect on December 23, 2022. That lawsuit was filed in the United States District Court for the Southern District of Texas. The filing of this new January 5th lawsuit does not change immigration policy. The Biden public charge rule is still in effect and immigrants and their family members can use health care, nutrition, housing and other public benefits that are not cash assistance for income maintenance or long term institutionalization at government expense without fear of immigration consequences.
You can review the Protecting Immigrant Families California coalition statement over SCUTOS decision HERE.
September 2022 — New public charge rule is finalized
On September 8, the U.S. Department of Homeland Security finalized the new public charge rule, which goes into effect on December 23, 2022. This allows immigrants who use non-cash government assistance, like Medicaid or food stamps, to apply for permanent residency.
February 2022 – New proposed public charge rule; comment period closes April 25, 2022
On Thursday, February 24, the US Department of Homeland Security issued their new proposed public charge rule. This rule determines the admissibility of a noncitizen into the US based on whether they are likely to become a “public charge,” or primarily dependent on the government.
We are still reviewing the new rule, but it affirms that the 2019 rule enacted during the Trump administration is no longer in effect.
The rule is subject to a 60-day comment period, and all comments must be submitted no later than April 25, 2022.
January 2022 – Emphasizing that the 2019 public charge rule is no longer in effect.
In November 2021, U.S. Citizenship and Immigration Services (USCIS) published a letter emphasizing that the 2019 public charge rule is no longer in effect. It also lists examples of noncash benefits that cannot be used in a public charge determination, including Medicaid and food stamps. Read the full letter on the USCIS website.
October 2021 – New Public Charge rulemaking underway
Under the previous administration, strict public charge regulations and anti-immigration policies negatively impacted the health and wellness of our immigrant communities in Washington state. Even though many of the harmful policies have been reversed, they continue to create fear and discourage people from accessing critical benefits. Now we have an opportunity to participate in the process to create new regulations. By working together, we can help ensure future regulations protect access to healthcare and public programs for immigrants in Washington and across the United States.
On August 23, 2021, the Department of Homeland Security (DHS) issued an Advanced Notice of Proposed Rulemaking (ANPRM), inviting public comment on questions and topics DHS is thinking about for new public charge regulations it is drafting. Under the Biden administration, DHS wants to ensure that new regulations do not place undue burdens on immigrants. In the ANPRM, DHS stated its intent to draft a rule that does not “cause undue fear among immigrant communities or present other obstacles to immigrants and their families accessing public services available to them, particularly in light of the COVID-19 pandemic and the resulting long-term public health and economic impacts in the United States.”
Community Health Network of Washington, Community Health Plan of Washington, Washington Association for Community Health and 26 of Washington’s community health centers submitted a comment letter responding to the ANPRM on October 21, 2021.
The ANPRM was just the first step in this process. DHS will review the responses it received and then it will publish a Notice of Proposed Rulemaking. When that happens, there will be a chance to comment on the proposed rule.
Please stay tuned for next steps in this recent public charge rulemaking process. We will share information here as it is made available. For additional questions or information related to public charge please feel free to contact Jessica Hauffe at CHNW, [email protected].
Reviewed on 01/10/2023