DHS Proposes New Public Charge Rule

The Department of Homeland Security issued a Notice of Proposed Rulemaking on February 17, 2022, updating the Department’s application of the “public charge rule” using “fair and humane treatment” of foreign nationals requesting visas or green cards. The Department’s proposed rule would return to its longstanding interpretation of the “public charge” regulation, a rule used to decide whether immigrants who have received certain public benefits may receive U.S. visas or green cards.

Under the “public charge” provision of U.S. immigration law, foreign nationals cannot receive U.S. visas or LPR status if they are found likely to become “primarily dependent on the government for subsistence” through cash assistance benefits or hospitalization for long-term care at the government’s expense. DHS had been employing the same guidance based on rules that went into effect in 1999, barring certain applicants from receiving immigrant visas where they received cash assistance from the government for long-term care at the government’s expense or cash assistance for income maintenance such as Temporary Assistance for Needy Families (TANF).

In 2019, under the Trump Administration, the government expanded the “public charge” definition to bar applicants from certain immigration statuses if they had received a much wider range of common government benefits, including housing and rental assistance, nonemergency Medicaid benefits, and Supplemental Nutrition Assistance Program (SNAP). The wider interpretation caused foreign nationals to be fearful of accessing benefits, even those that Congress intended them to have. In March 2021, the Biden Administration formally withdrew the Trump era 2019 public charge regulation. DHS Secretary Alejandro Mayorkas stated the 2019 public charge rule was “not consistent with our nation’s values.”

Under DHS’s proposed rule, DHS is returning to its previous understanding of “public charge,” where individuals will not be penalized for accessing health benefits or supplemental government services available to them. DHS will, however, still consider the following as penalties under the new rule: cash assistance for income maintenance under state, tribal, and local programs, or the Temporary Assistance for Needy Families (TANF) program, as well as supplemental security income (SSI), and long-term institutionalization at the government’s expense. However, the government will not consider receipt of the following as a penalty: noncash benefits such as food assistance programs, most Medicaid benefits, housing benefits, disaster assistance, pandemic assistance, benefits received via tax credits or deductions, or Social Security, government pensions, or other earned benefits. As always, DHS will not consider past receipt of public benefits for categories of foreign nationals exempt from the “public charge” rule, including refugees, asylees, VAWA self-petitioners, and foreign nationals applying for TPS, SIJ status, or T and U visas. The proposed rule is not expected to go into effect at least for a few months.