New Proposed Rules on Public Charge under the Biden Administration

Have you heard about a “public charge”? You can’t be a public charge or be in danger of becoming a public charge if you want a green card. 

The Biden administration has proposed changes to the “public charge” ground for inadmissibility, overturning the Trump administration’s public charge rule, which was deemed by many people as a “wealth test” and dramatically shifted from the long-standing definition of public charge.

What are the Proposed Rules for Public Charge?

Proposed Rule # 1: Defining the Term “likely at any time to become a public charge” 

The Department of Homeland Security (DHS) has proposed to define it as: “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”  

Proposed Rule # 2: Adopting the Same List of Public Benefits Under the 1999 Interim Field Guidance

The term “public benefits” refers to public cash assistance for income maintenance and long-term institutionalization at government expense (including when funded by Medicaid). 

Focusing on these TWO will allow DHS to focus on people who could become primarily dependent on the government for subsistence without jeopardizing other benefit programs that serve significant public interests.

DHS believes this approach is consistent with the natural interpretation of the term “public charge” and easier to administer, in contrast to Trump’s  2019 Rules. 

Now let’s look into…

What is “Public Cash Assistance for Income Maintenance”?

The DHS recommended the following in defining Public Cash Assistance for Income Maintenance:

1. Supplemental Security Income (SSI). It is a monthly income distribution program designed to guarantee that elderly, blind, or handicapped people with minimal income and resources have a basic income level.
2. Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF). It provides cash assistance to those needy families with children when the responsible individuals, such as parents, are unable to meet the family’s basic necessities.
3. State, Tribal, territorial, or local cash benefit programs for income maintenance (generally called as “General Assistance” but may vary). These programs assist those who do not qualify for unemployment insurance or whose benefits are inadequate or exhausted. Such programs may provide cash or in-kind, groceries, and rent.

NOT ALL cash assistance will be considered for public charge purposes. If it does not constitute primary dependence it won’t be considered. This will be discussed later on in the video.

Also, earned cash benefits such as Social Security benefits, pension benefits, veterans benefits, or unemployment benefits, are also not considered.

What is long-term institutionalization at government expense?

The DHS proposes to replace “institutionalization for long-term care at government expense” with “long-term institutionalization at government expense.” It doesn’t sound much different, does it?  They are talking about admission to a nursing home or mental health facility.  If you rely on the government’s aid, you are a public charge. 

REMEMBER that this is the only type of Medicaid-funded service that is taken into account in public charge inadmissibility determinations. This means that Medicaid-funded home and community-based services (HCBS) will be excluded.

In addition, the DHS excluded from the definition those who were imprisoned owing to a criminal conviction or short periods of institutionalization for rehabilitation purposes.

Proposed Rule # 3: Exclusion of noncash benefits from public charge determination

The primary goal of noncash benefits was to provide supplemental help to low-income families.

The DHS proposed that noncash benefits will no longer be part of the public charge inadmissibility determination. Unlike Trump’s 2019 Rule, the following non-cash benefits will not be considered in public charge determination:

• Food stamps (SNAP)
• Children’s Health Insurance Program (CHIP) and their related State programs
• Women, Infants, and Children (WIC) Food and Nutrition Service
• Medicaid (with the exception of long-term institutionalization at government expense)
• Housing benefits 
• Transportation vouchers

Proposed Rule # 4: Defining the term “receipt (of public benefits)”

The DHS has stated that the term “receipt (of public benefits)” should be defined separately from “likely at any time to become a public charge.

They define “Receipt of Public benefits” as a non-citizen as a listed beneficiary of a public benefit.  The following acts do not meet that definition: 

• The act of Applying for a public benefit (irrespective if it’s for the non-citizen or someone else).
• Approval to receive a public benefit in the future (irrespective if it’s for the non-citizen or someone else).
• A non-citizen who gets public benefits entirely on behalf of another individual (For example, an Immigrant parent getting a benefit on behalf of their U.S. citizen child).

Proposed Rule # 5: Public Charge Inadmissibility Determinations.

In the 2019 Final Rule, some statutory minimum factors were weighted as negative or positive. DHS now deems that ineffective since it would result in too much information to be collected and then have to be evaluated by the agency.   

Public Charge Inadmissibility Determinations should only consider:

• Minimum statutory factors such as age, health, family circumstances, assets, resources, financial status, education, or skills.
• A sufficient Affidavit of Support Under Section 213A of the INA is referred to as form I-864.
• Whether the alien: (1) is currently receiving public benefits, (2) has received public benefits in the past, or (3) both.

The officer must weigh the totality of the applicant’s circumstances, not focusing on one factor only, in deciding whether an applicant may become a public charge.

For example, being disabled alone is not a sufficient basis to determine whether an applicant may become a public charge.

The DHS hopes that by making these changes the public charge will become easier for individuals to apply and for the agency to review and evaluate.   

Do Your Circumstances Merit a Public Charge? Ask a New Jersey Immigration Attorney!

If you are unsure whether your circumstances merit you as a public charge, schedule a consultation with our New Jersey immigration attorneys at Andres Mejer Law and we will be happy to assess your case with you.