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The Biden administration must confront a plethora of immigration issues following the immense number of restrictions the Trump administration placed on immigrant applicants. These “land mines” of Trump-era anti-immigrant policies are rooted deep- “buried under layer after layer of bureaucratic actions and then [can] essentially devastate the system in untold ways that aren’t discovered until policies are applied in particular cases.” One land mine worth addressing is the controversial “Public Charge” Rule. 

In 1882, Congress first implemented the “Public Charge” Rule as a relatively vague statute that allowed the U.S. government to deny a visa to anyone who “is likely at any time to become a public charge.” The Public Charge Rule was designed to prevent noncitizens from entering and remaining in the country if they are likely to require some undesignated degree of public assistance. Laws frequently identify self-sufficiency of noncitizen applicants as a compelling government interest and cite it as justification for this exclusion rule. This Rule is also meant to remove the incentive for illegal immigration provided by the availability of public benefits. However, the 1882 federal law did not provide a set definition of what a “public charge” is, nor did it provide any specific guidelines to use in identifying a “public charge.”  After the Immigration and Nationality Act was implemented in 1952, the only change to the statutory language was a new provision underscoring the discretionary authority of administrative officers in the Department of State and the Immigration Service to determine the definition of a public charge. The current controversy over the Public Charge Rule stems from the lack of defined standards specified within the federal law.

The Trump administration implemented an unprecedentedly harsh interpretation of the Public Charge Rule in October of 2019. Under the 2019 Rule, government officials could deny green cards to noncitizens if the officials believed the recipients would receive, or were likely to receive, public benefits like food stamps, Medicaid, or housing vouchers.  Prior to the 2019 Rule, the 1999 Field Guidance Rule on Deportability and Inadmissibility on Public Charge Grounds  helped define “public charges.” The 1999 guidance narrowly interpreted “public charges” and only focused on two potential factors: ‘‘either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” The 2019 Rule redefined a “public charge” as a non-citizen who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. Furthermore, the 2019 Rule expanded the list of public assistance programs that may be considered dispositive factors for a “public charge” determination, such as Medicaid, Supplemental Nutrition Assistance Program (SNAP) benefits, and subsidized housing, among other previously unconsidered benefits. In justifying the 2019 Rule, the Trump administration cited its desire to “protect benefits for American citizens” and stated that “immigrants must be financially self-sufficient” in order to do so.  Proponents of the Public Charge Rule also believed that it provided formal regulation to a Rule that was previously only interpreted by an informal Clinton-era guidance that lacked statutory support. Supporters further believed that the 1999 guidance was counteractive to the government’s compelling state-interest in the self-reliance of immigrant applicants. In their eyes, the 2019 Rule addresses the issue of immigrants’ public welfare usage, where immigrants “are creating a significant burden on public coffers.”  Despite these beliefs, the evidence suggests strongly that – even with usage of public benefits – immigrants tend to grow the US economy by nearly every measure. On the other hand, opponents condemned the 2019 Rule as a race-based “wealth test” that targets poor immigrants. Indeed, the implementation of the 2019 Rule caused immigrants to face devastating consequences. 

Despite the fact that the Public Charge Rule only applies to some programs and some immigrant applicants, there was still a visible chilling effect on access to public benefits across the nation. Eligible immigrant families—including those not actually subject to the rule—avoided enrolling in public benefit programs for fear of jeopardizing their immigration standing. The 2019 Well-Being and Basic Needs Survey (WBNS) found that more than one in seven adults in immigrant families reported that they or a family member avoided a noncash government benefit program from this fear. The same study also found that more than one in four adults in low-income immigrant families experienced this chilling effect. The Coronavirus pandemic only exasperated this disturbing phenomenon. Immigrants felt discouraged from lawfully accessing medical care and public benefits, “hindering nationwide efforts to contain the highly contagious virus.” The damage already set in even after a temporary injunction blocked the use of the new Public Charge Rule due to the pandemic. Immigrant families were already disproportionately at risk of economic hardships from the pandemic, and their hesitation to access public resources only worsened their risk of medical hardships. 

The eradication of Trump-era immigration policies was a central aspect of President Biden’s campaign platform. An Illinois District Court officially deemed the 2019 Rule unlawful and vacated the Rule in March of 2021. The Biden administration declared that it would no longer defend the regulation in court. The Biden administration has instead reverted back to the 1999 Field Guidance Rule. This means that government officials will no longer consider a person’s receipt of Medicaid (except for long-term institutionalization), public housing, or SNAP benefits as part of the public charge inadmissibility test. However, the Supreme Court recently agreed to hear a lawsuit brought by over a dozen states challenging the Biden administration’s vacating the policy. Led by Arizona Attorney General Mark Brnovich, the lawsuit is spurred by the belief that the public charge rule is a “commonsense immigration policy that ensures people seeking green cards or American citizenship are able to work and financially support themselves.” While the court will solely be focusing on the procedural question of whether states may even bring the challenge in the first place, an affirmative decision by the court can spell even more trouble for immigrants as well as further stain the Biden administration’s immigration policy.

A modern reinterpretation of the term “public charge” may help alleviate these issues. The Department of Homeland Security (DHS) recently sought public input through an Advance Notice of Proposed Rulemaking (ANPRM) as to how the DHS should define the term “public charge,” pinpoint which public benefits are applicable, and how to determine the mandatory statutory factors in assessing whether a noncitizen is likely to become a public charge. In some ways, the Biden administration has its hands tied when it comes to eliminating the Public Charge Rule- there is a delineated requirement that DHS consider certain factors when determining whether a noncitizen would be a public charge. As previously mentioned, however, there is no specific definition of a public charge in the law, and there is no mention of public benefits within the law itself. The Rule needs to be revamped so it no longer renders immigrants fearful of accessing the resources they are legally entitled to use. 

While the absence of a set definition is the source of the current turmoil, it also provides some leeway for the Biden administration to redefine the Rule. Courts have historically deferred to Congress in their determination of immigration issues, citing Congress’s plenary and sovereign power to set limits as to who may be admitted to the country. Similarly, Congress adopted a “hands-off” position  by allowing the executive branch to dictate immigration policies. The Biden administration still has the power to alleviate immigrants’ concerns by drawing a clear line in the sand. The revamped Public Charge Rule, so to speak, ought to exclude from consideration any public benefits that immigrants would have already been eligible for regardless of their immigration status. Such a change would end the confusion and concern faced by immigrant communities that have needlessly risked their health , especially in light of the disproportionate impact of the pandemic on immigrants. This way, the Public Charge Rule may still serve its intended purpose without furthering the harm already done. While the Biden administration has many battles ahead, this is one hill worth dying on- not only for the improvement of an already convoluted immigration process, but for the improvement of the nation’s post-pandemic public health as well.

Suggested Citation: Nicole Belenitsky, Free From Charge: Revamping the Public Charge Rule, Cornell J.L.& Pub. Pol’y, The Issue Spotter (December 7, 2021), http://jlpp.org/blogzine/?p=3841.