Trump Administration Plans to Enforce Public Charge Law

September 24, 2018

The Trump Administration will soon propose a federal rule to help ensure that immigrants and non-immigrants seeking entry to the United States rely on the resources of their sponsors and family members rather than public benefits. It would define the term “public charge” in regulation and to identify the types, amount, and duration of receipt of public benefits that would be considered in determining whether someone is inadmissible. Once published, the public will have 60 days to comment before the rule is finalized.

A “public charge” is a person who does not have a livelihood and relies on public assistance. If a nonimmigrant or immigrant becomes a public charge, the person can be deported. The first public charge law was enacted in 1882, but colonies started to adopt personal responsibility requirements as early as 1645.

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act and Personal Responsibility and Work Opportunity Reconciliation Act strengthened public charge law by raising the qualifications and obligations of sponsors, and enabling states to deny welfare benefits to legal immigrants and illegal aliens

But in 1999, President Bill Clinton passed a regulation that defined public charges as those who are “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” This enabled potential nonimmigrants and immigrants to utilize non-cash benefits such as Medicaid, food stamps and health insurance programs.

The proposed rule defines a public charge to be a person who receives certain public benefits above certain defined threshold amounts or for longer than certain periods of time. The public benefits include Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing. It would establish authority to:

Identify categories of aliens that are subject to the public charge inadmissibility determination;
Define how the “public charge” statute’s mandatory factors should be considered in making a public charge inadmissibility determination;
Establish a methodology for calculating available assets and income;
Deny the extension of a nonimmigrant’s stay unless the applicant demonstrates that he or she has not received public benefits and is not likely to receive them during the extended stay;
Deny eligibility for a change of status to “immigrant” unless the applicant demonstrates that he or she has not received public benefits and is not likely to receive them in the future; and
Require a surety bond.

The proposal also provides for waivers and exemptions for refugees, asylees, certain victims of domestic violence, minors who qualify for “special immigrant juvenile status,” and Temporary Protected Status applicants.