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The Latest on the Public Charge Rule

Jim Armstrong, PHADA Policy Analyst

On January 27, the Supreme Court of the United States (SCOTUS) stayed several injunctions imposed by some federal trial court judges and upheld by some courts of appeal that had prevented the administration’s implementation of a new public charge rule affecting documented immigrants and other resident aliens. The United States Citizenship and Immigration Services (USCIS) posted an announcement that it would proceed to implement the new public charge rule on February 24, 2020.


What Has Happened So Far?

In August 2018, the Department of Homeland Security (DHS) published a proposed rule concerning its implementation of a statutory requirement that it deny admissions or applications for changes to immigration status from people considered to be potential “public charges” (that is, not self-supporting). PHADA discussed the proposed rule in the Advocate of November 14, 2018 (http://bit.ly/2H5d0Ak). The statute gives DHS broad authority to implement the requirement, and up until this time, the department considered as public charges individuals who received some forms of federal or state financial assistance. These included:

  • Temporary Assistance for Needy Families (TANF),
  • Other state or local general financial assistance,
  • Supplemental Social Income (SSI), or
  • Medicaid or other programs supporting institutionalization for long term care.

The former public charge rule did not include several common federal benefits such as:

  • Housing assistance (Section 8 and public housing)
  • Nutrition programs (SNAP and WIC)
  • Health insurance programs (Medicaid).

The proposed rule would have expanded the list of benefits considered in evaluating if an immigrant or resident alien was a public charge to include:

  • Public housing,
  • Section 8 assistance,
  • SNAP benefits, and
  • Medicaid health insurance.

DHS’s treatment of the statutory public charge requirement gave those reviewing applications for immigration or resident alien status significant discretion to consider the, “totality of circumstances,” surrounding an application for immigration status or visas. For instance, the rule provides for giving significant positive weight to an applicant’s earned income that exceeds 250 percent of poverty. DHS’s new public charge rule retains this level of discretion.

In October 2019, after receiving over 266,000 public comments in response to its proposed rule including PHADA’s comments, DHS published a final public charge rule. Immigrant rights groups and state and local governments sued the department to prevent implementation and succeeded getting several federal district courts to grant temporary injunctions preventing implementation of the rule. Some federal appeals courts stayed some of those injunctions, while others did not. In January, SCOTUS stayed almost all of these injunctions, permitting DHS to proceed to implement its new public charge rule everywhere but Illinois.


What’s Next?

Federal trial courts and appeals courts will continue to hear suits concerning this new rule, but DHS is now free to implement the rule except in Illinois. USICS has announced it will begin to do so on February 24, 2020. This implementation will affect immigrants and people holding visas who submit applications for changes in their status with the service after February 24, including:

  • People holding visas and applying for a change in their status (a different kind of visa or an extension of an existing visa),
  • People applying for permanent resident alien status (that is, applying for a green card), and
  • People submitting applications for citizenship.
Documented people who may need to change their immigration status …may find their applications denied because they are deemed public charges..

The rule does not appear to affect documented immigrants and visa holders who do not apply for a change in status, and the rule will not consider the receipt of public benefits prior to February 24, 2020. The standard the rule will impose is that people may be considered public charges if they have received any of the expanded list of public benefits in 12 of the past 36 months. In addition, each form of received assistance will count as 1 month. For example, a green card holder applying for citizenship who has lived in public housing and received SNAP benefits for 6 months will have exhausted the limit of 12 months of benefits during 36 months may be considered a public charge, and their citizenship application may be denied. The Congressional Research Service has prepared a Legal Sidebar describing details of the implementation of this rule and alternative actions available to Congress.


Impact on HAs

After February 24th, HAs may begin to encounter instances where assisted housing households who include documented immigrants or visa holders are defined as public charges whose legitimate residency in the United States may end at some point in time. It is unclear when DHS will assess these applicants’ statuses, but it may begin to identify public charges, using the example above as soon as August 2020 (6 months receiving two benefits).

The major issue HAs may face is the impact of this rule on mixed families receiving Section 8 or public housing assistance. The rule will not affect undocumented people in mixed households (they will remain at risk of deportation), but documented people who may need to change their immigration status (extend a visa, change the kind of visa they hold, apply for a green card, or apply for citizenship) may find their applications denied because they are deemed public charges. It appears that their existing status would not change (a permanent resident alien would retain a green card), but visa holders may face decisions to overstay their visas as undocumented people or to leave the country. These changes may require HAs to take some action concerning families’ housing assistance.


Judicial Reviews

Although the Supreme Court has stayed most injunctions that prevented implementation of the public charge final rule (except in Illinois), suits will continue through judicial processes at the trial court, appeals court, and possibly the Supreme Court. Although the final fate of this public charge rule remains uncertain, DHS may now implement the rule, probably creating additional anxiety and confusion in communities that include documented immigrants.