On February 17, the Department of Homeland Security (DHS) released a proposed rule (2022 Proposed Rule) that would largely codify long-standing federal guidance regarding DHS’ authority to refuse a noncitizen’s application for admission or application for visa adjustment (including receipt of a green card) on grounds that they are “likely at any time to become a public charge.” From 1999 until 2019, the federal government interpreted this phrase to mean a noncitizen (subject to various exclusions) who, based on a totality of the circumstances, was likely to become “primarily dependent on government for subsistence as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”1 The 2022 Proposed Rule would codify that standard in regulation and includes policy clarifications that appear motivated to provide more certainty to immigrants and their family members about how applying for and using certain public benefits would or would not impact public charge determinations.
Comments on the 2022 Proposed Rule are due on April 25.
Background: Recent Public Charge Rulemaking and Litigation
In 2019, the Trump Administration proposed and later finalized a rule (2019 Rule) that vastly expanded the definitions of “public charge” and “public benefit.” These changes would have made it easier for DHS to deny admission or change in legal status for noncitizens based on their receipt of many noncash public benefits that were excluded from the historical public charge framework. (See below for more details on the 2019 Rule.) Following numerous lawsuits, an Illinois federal court’s order vacating the 2019 Rule nationwide, the Biden Administration’s decision to not enforce or defend the 2019 Rule in front of the Supreme Court, and the subsequent removal of the 2019 Rule from the code of federal regulations, the 2019 Rule is no longer in effect. Instead, DHS has reverted to applying the public charge inadmissibility statute in accordance with the 1999 Interim Field Guidance that was in effect until 2019.
However, 13 Republican-led states’ attorneys general petitioned to intervene to defend the 2019 Rule in ongoing litigation, asserting their right to defend the rule once the Biden Administration decided not to. Their claim was denied by the U.S. Court of Appeals for the Ninth Circuit, and the Supreme Court recently heard oral arguments on their appeal.2 In an attempt to preempt arguments in favor of reinstating the 2019 Rule, the Biden Administration has released the 2022 Proposed Rule.
The 2019 Rule and Its Impact
Under the 2019 Rule, the Trump Administration expanded the public charge basis of ineligibility to noncitizens who received one or more public benefits for more than an aggregate of 12 months over any 36-month period, counting receipt of two benefits in one month as two months. Additionally, the 2019 Rule redefined “public benefit” to include noncash public benefits, such as Supplemental Nutrition Assistance Program (SNAP) and other food assistance benefits, most forms of Medicaid, and many subsidized housing benefits, in addition to public cash assistance and institutionalization at government expense. The 2019 Rule also considered noncitizens’ applications for public assistance as “use,” even if benefits were not ultimately received.
These provisions were widely criticized in academic research, the media and federal court opinions for “chilling” legal immigrants’ enrollment in and use of public benefits for which Congress expressly made them eligible, due to their fears of being deemed a “public charge.” Chilling effects of the 2019 Rule produced deleterious public health and nutritional consequences that disproportionately affected low-income and immigrant communities and increased uncompensated care costs for health care facilities; such damaging effects were only compounded by the COVID-19 pandemic.
Overview of the 2022 Proposed Rule
The 2022 Proposed Rule aims to reset the public charge framework to the historical focus on use of public benefits for “subsistence” rather than use of public benefits to support certain specified needs (i.e., rejecting consideration of food, housing, energy, childcare and health care assistance). Leveraging substantial public comments received in response to the Biden Administration’s 2021 Advanced Notice of Proposed Rulemaking (described in the August 20 edition of Insights This Week), the 2022 Proposed Rule appears to be crafted to mitigate the reported chilling effects and negative impacts on health equity that resulted from the 2019 Rule. The preamble to the rule specifically considers the impact of the 2019 Rule on health equity in the context of the COVID-19 pandemic as a rationale to restore the long-standing 1999 guidance standard.
The 2022 Proposed Rule rejects the 2019 Rule’s system of projecting whether a noncitizen would surpass a specific threshold of public benefits use in the future based on their current or past use of noncash benefits. Under the 2022 Proposed Rule, individuals who rely on their own resources, in addition to some limited government supports, are less readily characterized as public charges. As was long-standing policy under the 1999 Interim Field Guidance, the 2022 Proposed Rule directs that individuals may be found likely to become “primarily dependent on the government for subsistence” based upon the use of only two categories of benefits:
1. Public cash assistance for income maintenance (e.g., Supplemental Security Income, cash assistance under the Temporary Assistance for Needy Families (TANF) program, or state or local cash benefits)
2. Long-term institutionalization at government expense (including Medicaid coverage of nursing home or mental health institution care)
The use of these benefits would be considered in the “totality of the circumstances,” a statutory standard that includes consideration of such factors as age, health, family status, assets, education and skills, and whether an individual has a required affidavit of support. Of note, the 2022 Proposed Rule does not adopt the 2019 Rule’s system of evidentiary requirements or weighted factors when DHS evaluates the totality of the circumstances. Instead, DHS is to rely on the 1999 framework of considering the statutory minimum factors and required affidavits of support, although DHS seeks comment on the level of evidentiary detail required and how to consider the statutory factors in the totality of the circumstances. The 2022 Proposed Rule also indicates that DHS may periodically issue guidance to adjudicators to inform the totality of the circumstances assessment, including “how these factors affect the likelihood that an immigrant will become a public charge at any time based on an empirical analysis of the best-available data as appropriate.”3
Notably, the 2022 Proposed Rule takes care to structure the public charge framework in a way that mitigates potential chilling effects caused by previous confusion over its application. For example, it clarifies that a noncitizen’s receipt of public benefits solely on behalf of another does not constitute receipt of public benefits for public charge purposes; only receipt of public benefits by named beneficiaries are considered. Moreover, the 2022 Proposed Rule would improve transparency by requiring denial determinations to be supported by written discussion of each statutory factor, whereas the 2019 Rule contained no such requirement.
1 This standard was established in Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (Interim Field Guidance), 64 Fed. Reg. 28689-28693 (May 26, 1999).
2 Even if the Supreme Court holds in favor of the attorneys general after oral arguments later this month, the case would be sent back to the lower court that invalidated the rule for further consideration. The Supreme Court could also reject the attorneys general’s intervention attempt.
3 2022 Proposed Rule at 8 CFR 212.22(b).