New Public Benefits Rule Affecting Legal Immigration

03/11/2021 UPDATE:  The public charge rule discussed in this article was terminated on March 10, 2021, due to federal litigation.  Read more about this development here.

01/27/2020 UPDATE:  The U.S. Supreme Court has issued an order staying most injunctions related to the new public charge rule, except for the one previously issued by the District Court for the Northern District of Illinois.  This means that, while the litigations surrounding the public charge rule continue to be pending, the Trump administration can begin implementing the new rule in all states except Illinois.  The Supreme Court’s decision was not based on whether the public charge rule is constitutional or whether it will actually survive by the end of the litigation(s).  Instead, the Supreme Court allowed the rule to go into effect because, in its opinion, the lower courts had no authority to issue nationwide injunctions because such a practice would exceed the scope of the lawsuits before them.  The District Court for the Northern District of Illinois had only limited its injunction to the State of Illinois, instead of nationwide.  We will continue to monitor this matter closely and we will provide updates as they unfold.  For now, applicants for permanent residence should expect increased scrutiny and regarding prior use of public benefits, and additional hurdles to overcome a presumption that they will become dependent on public assistance.


10/11/2019 UPDATE: A federal judge has granted a preliminary injunction that temporarily blocks the Trump administration from implementing the new public charge rule.  In his decision, the judge found that Plaintiffs will likely be successful in showing that the proposed rule is arbitrary and capricious, that it violates the Immigration and Nationality Act, and that it is not consistent with the intent Congress had when it enacted the existing public charge law.  In addition, the judge found that the proposed rule may also violate the Rehabilitation Act because it appears to discriminate against individuals with disabilities.  Therefore, the new public charge rule is not taking effect on October 15, 2019, as it has been blocked pending additional litigation.  The injunction applies nationwide.

We will continue to monitor this issue and will provide updates as additional developments emerge.

On August 14, 2019, the Department of Homeland Security published its highly anticipated final rule defining how an immigration applicant may be deemed a public charge, and what public benefits would disqualify applicants from legally immigrating to the U.S. or from extending or changing their legal temporary immigration status.  If implemented, the final rule could penalize foreign nationals who are seeking legal status, including those who are already legally present in the U.S. or who are trying to come legally in the first place, and who obtain certain government-funded benefits that federal law otherwise expressly allows.

The new rule is scheduled to take effect on October 15, 2019.  However, as of the date of this article, there are several lawsuits that were already filed nationwide, trying to block or modify the rule.  Therefore, although the ultimate state of the new rule is uncertain, it has millions of people on edge about how it could affect them if it does go into effect.  

Pediatricians are warning that the new rule dissuades immigrants from vaccinating their children against common contagious diseases or receiving basic infant care for their newborns, for fear that using free vaccination programs or state-funded healthcare could get them deported or denied legal immigration status.  The Kaiser Family Foundation cautions that the rule would cause millions of U.S. citizens born in the U.S., primarily U.S. citizen children born to immigrants, to drop out of vital government programs.  This may ultimately lead to “more uninsured individuals and negatively affect the health and financial stability of families and the growth and healthy development of their children.”

To complicate things further, the new rule is extremely complex and difficult to streamline, which leads to countless individuals potentially taking the “better safe than sorry approach,” and opting out of benefits they are otherwise entitled to.  However, when the health of our children is at stake, this approach may be anything but safe. 

What is the public charge rule?

Under the Immigration and Nationality Act (INA), the U.S. government can deny an applicant permanent residence (i.e. green card) if the agency determines that the applicant is “likely to become a public charge.”  This portion of the INA, namely INA Section 212(a)(4), has historically been interpreted to exclude from permanent residence someone who is likely to become permanently and primarily dependent on the government for subsistence.  

Prior guidance directed that an applicant could not be disqualified on public charge grounds based on non-cash benefits or special-purpose cash benefits that are not intended for income maintenance.  The new rule deviates from the congressional intent of permanent and primary dependency, and effectively disqualifies individuals who would obtain temporary or special-purpose benefits, including certain nutrition and housing programs.  

What types of public benefits are changed from the old rule to the new rule?

The new rule will consider certain public benefits obtained for an aggregate of 12 months during the three years immediately preceding the application.  Since the rule takes effect on October 15 (unless blocked by courts), the U.S. Citizenship and Immigration Services (USCIS) will not take into consideration any public benefits that were received prior to that date and that were allowed under the old rule.  

Under the old rule (currently still in effect as of the date of this article), applicants for permanent residence could be disqualified if they accepted any of the following public benefits:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF) cash assistance (note that non-cash benefits under TANF such as subsidized child care or transit subsidies, as well as non-recurrent cash payments for crisis situations, cannot be considered as evidence of public charge under the old rule)
• State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
• Medicaid funding or other government programs supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).

Other public benefits could also be considered under a “totality of the circumstances” analysis on a case by case basis, but the ones listed above are generally the ones that may lead to a public charge finding under the old rule.  Public benefits such as food stamps, Section 8 housing, and Medicaid or health insurance that is not used for long-term institutional care, are allowed under the old rule and do not jeopardize an applicant’s ability to obtain permanent residence

Under the new rule, benefits that were expressly allowed under the old rule could lead to an individual being denied not just permanent residence, but also an extension of legal temporary status or a change from one legal temporary non-immigrant status to another.  The following benefits would disqualify applicants from immigration benefits under the new rule:

• Any federal, state, local, or tribal cash assistance for income maintenance
• Supplemental Security Income (SSI) 
• Temporary Assistance for Needy Families (TANF) 
• Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
• Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
• Section 8 Housing Assistance under the Housing Choice Voucher Program 
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
• Public Housing under section 9 the Housing Act of 1937
• Federally funded Medicaid (with certain exceptions for minors and pregnant women, among others) 

As seen from the list above, the new rule could penalize applicants for accepting temporary non-cash or special-purpose benefits, despite the fact that these types of benefits do not render the applicant permanently and primarily dependent on the government. 

Can an applicant be disqualified if a family member accepts these public benefits?

Not necessarily.  When the new rule was initially proposed, the government intended to attribute public benefits obtained by the immigrant’s family members to the immigrants as well, at least in part.  After overwhelming opposition from the public, the government revised the final version of the rule to limit the effect of family members’ public benefits on the person applying for immigration benefits.  Under the final rule, USCIS will only consider public benefits received directly by the immigration applicant for the applicant’s own benefit, or if the applicant is listed as a direct beneficiary of a family member’s benefits.  USCIS will not consider benefits that an immigration applicant receives only as a legal guardian on behalf of another (such as a parent receiving public benefits on behalf of a minor child).

Can children be denied immigration benefits under the new rule for using public benefits?

Under the new public charge rule, USCIS will not take into consideration the following benefits used by children:

• School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law
• Medicaid benefits received by a foreign national under 21 years of age

Can the new rule disqualify immigrants who get public benefits due to medical conditions?

It depends.  The new rule allows applicants to receive certain medical benefits or services, but not all.  The following are allowed under the new rule:

• Medicaid for emergency medical treatment
• Services/benefits funded under the Individuals with Disabilities Education Act
• Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy

However, the new rule will take into consideration whether the applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment or hospitalization or that will interfere with the immigrant’s ability to work, attend school, or otherwise provide for him/herself.  In these cases, the new rule requires the applicants to show that they are able to obtain private health insurance, that they are able to pay for the private insurance, or that they are otherwise able to pay for the anticipated medical care.  The new rule also disapproves of an applicant receiving subsidies or tax credits for health insurance under the Affordable Care Act, and will hold such tax credits against the immigrant when determining eligibility for immigration benefits, despite the fact that the Affordable Care Act itself allows such tax credits to eligible legal immigrants. 

These are just some of the changes incorporated into the new public charge rule.  The list of benefits summarized above is by no means exhaustive, and USCIS will make determinations on a case-by-case basis based on the totality of the circumstances.

Which immigration applicants will be affected by the new rule?

Most foreign nationals applying for permanent residence on or after October 15, 2019, will be subject to the new rule, unless the rule is blocked or modified in court through one of the existing lawsuits.  Applications filed no later than October 14, 2019, will continue to be processed under the old rule, even though they will still be pending as of October 15.

Most foreign nationals applying for a non-immigrant temporary visa abroad will also be subject to the new rule as of October 15, 2019.  For those who are already in the U.S. on a temporary visa, the public charge rule that was in effect at the time they applied for the visa or were admitted to the U.S. still controls.  However, if those individuals travel abroad and want to re-enter the U.S. after October 15, 2019, or file an application to extend their stay or to change status to a different visa classification on after October 15, then those applications will be subject to the new rule.  

Last but not least, immigrants who were already granted permanent resident status before October 15, 2019, may be subject to the new rule despite the fact they already have a green card, if they return from a trip abroad that lasted longer than 180 days.

Are there any immigration applicants who are NOT subject to the new rule?

Yes, certain types of applicants will be exempted from the new rule.  The new public charge rule will not apply to the following non-exclusive types of applicants:

• Refugees and applicants filing for asylum
• Applicants for temporary protected status (TPS)
• Victims of human trafficking seeking a T visa or permanent residence based on a valid T visa
• Victims of certain qualifying crimes seeking a U visa or permanent residence based on a valid U visa
• Victims of domestic violence or other self-petitioners seeking permanent residence under the Violence Against Women Act (VAWA)
• Special immigrant juveniles
• Applicants for diplomatic visas, or certain visas for representatives of the United Nations, NATO or other foreign government international organization

There are several other categories that fall under specific categories, such as Afghan and Iraqi interpreters or nationals employed by, or on behalf of, the U.S. government, Cubans and Haitians applying for permanent residence under INA Section 202, Cubans applying for permanent residence under the Cuban Adjustment Act, Nicaraguans or other Central Americans applying under NACARA, some Lautenberg parolees, and others.  

Applicants are strongly encouraged to consult with an experienced immigration attorney to determine whether the new rule applies to them or not, before making any major life-changing decisions that involve dropping or opting out of government benefits.  As indicated earlier, the rule is extremely complex and it does not apply to everyone the same way.  

For individuals using multiple benefits, it gets even more complicated because USCIS may count more months than what was actually used.  For instance, for an immigrant expecting mother using Medicaid or other government-funded prenatal care and food stamps for six months, USCIS would consider she took prohibited benefits for six months (food stamps count under the new rule, prenatal care does not).  But if she takes food stamps and lives in Section 8 housing for six months, USCIS would consider she took 12 months of public benefits, 6 months per each time of prohibited benefit, even though the two benefits were taken at the same time concurrently during a 6-month period.  Each of these situations will have to be determined on a case-by-case basis, to make sure immigrants are not unjustly denied immigration status for taking benefits that are allowed under the law.

We will continue to monitor any developments regarding this new rule, and we will provide update as new information becomes available.  In the meantime, if you have any questions regarding the public charge rule, or any other immigration-related matters, please contact Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.