Trump Administration Issues Public Charge Final Rule, Set to Take Effect in October
Framing the move as a way to protect public resources and preserve the social safety net, the Trump Administration this week issued a final rule on public charge, drastically reshaping the process in which the federal government determines whether an immigrant is likely to utilize public benefits. The rule, published in the Federal Register on Wednesday, will require individuals applying for or seeking adjustment to an immigration status or visa must establish that they are not likely at any time to become a public charge under the proposed rule. All individuals seeking an extension of a stay or change of immigration status must demonstrate that they have not received, are not currently receiving, and are not likely to receive public benefits.
The expanded public charge test as set forth in the final rule will weigh whether an immigrant is receiving one ore more specified public benefits, including non-emergency Medicaid, Temporary Assistance for Needy Families (TANF), housing subsidies, and Supplemental Nutrition Assistance Program (SNAP) benefits, among other considerations. Notably, the final rule does not explicitly include as public benefits Women, Infants, and Children (WIC) program benefits, public health assistance for immunizations and testing and treatment of symptoms of communicable diseases, Children’s Health Insurance Program (CHIP) benefits, or subsidies for Affordable Care Act (ACA) Marketplace coverage. The public charge determination will also not take into account benefits used by other family members, including children, of the person for whom officials are making a final determination.
Recall, the Trump Administration issued a proposed rule in October 2018. CHEAC solicited feedback from members regarding the proposed rule’s potential impact to local health department services and operations. CHEAC submitted a letter to the U.S. Department of Homeland Security (DHS) expressing concerns with the proposed rule’s likely impact on immigrant residents of California, including a likely decrease in utilization of essential public services, an increase in general mistrust toward public institutions, and an increase in reluctance among lawful immigrants to engage with or receive services from LHDs for which they are lawfully eligible.
Under the new final rule, DHS will find an individual “inadmissible” to the country if it is determined that the individuals are more likely than not at any time in the future to become a public charge based on the totality of the person’s circumstance. Considerations to be made include a person’s age, health, family status, assets and resources, financial status, and education and skills. Through positively and negatively weighted factors, the new regulations will tend to favor individuals who are healthier, younger, employed, and well-resourced. For example, heavily weighted negative factors include whether an individual has a medical condition that requires extensive treatment and is unemployed or does not have sufficient resources to pay for medical costs. A heavily weighted positive factor is whether an individual’s household has financial assets/resources of at least 250 percent of the federal poverty level ($53,325 for a family of three in 2019).
The final rule will have the greatest impact on individuals seeking to become lawful permanent residents (i.e. green card holders) and individuals seeking to immigrate to the United States. The rule is also widely expected to increase confusion and anxiety among immigrant populations regarding the utilization of public programs for themselves and their families, regardless of whether they are directly impacted by the rule’s changes. According to experts, including the Kaiser Family Foundation (KFF), the final rule is likely to lead to far-reaching decreases in participation in Medicaid and other public benefit programs across immigrant families, including their primarily U.S. born children.
A number of immigrant rights, healthcare provider, and health and social services organizations have underscored the importance of public outreach and education among immigrant families and communities to potentially reduce fears and confusion caused a result of the issuance of the Trump Administration’s final rule.
Response to the Trump Administration’s final rule has been swift and negative among a wide variety of individuals and organizations. A number of state and local governments and immigration groups have pledged to take legal action against the Trump Administration. Already on Tuesday, the County and City of San Francisco and Santa Clara County filed a lawsuit in the United States District Court in San Francisco, arguing local governments will be forced to provide and pay for services that would have otherwise been covered by the federal government absent the Trump Administration’s final rule.
Today, California Attorney General Xavier Becerra, leading a multistate coalition of Attorneys General from Maine, Oregon, Pennsylvania, and the District of Columbia, also filed suit against the Trump Administration. The coalition’s argument centers around how the final rule violates equal protection guaranteed through the Fifth Amendment, punishes immigrants for utilizing public benefits designed to mitigate economic inequality, and interferes with states’ rights to protect their residents.
Pending court intervention, the Trump Administration’s final rule will take effect 60 days after its publication in the Federal Register, which will be in mid-October 2019. Additional immigration-related information and resources are available on the CHEAC website.