E.g., 09/28/2022
E.g., 09/28/2022
The Public-Charge Final Rule Is Far from the Last Word
Commentaries
September 2022

The Public-Charge Final Rule Is Far from the Last Word

Image of the hands of two people at a desk going over paperwork
iStock.com/Violeta Stoimenova

The ways in which the federal government determines whether certain immigrants are likely to become dependent on the government for their basic needs—otherwise known as becoming a “public charge”—have undergone head-spinning changes over the last several years. These significant policy shifts, stemming from executive actions taken by the Trump administration and later largely undone by the Biden administration as well as legal challenges, have made it difficult for noncitizens, immigration attorneys, and benefits eligibility workers to know the rules, resulting in major confusion and anxiety. This has led many immigrants and their U.S.-born children to forgo essential services, including health care, and avoid disclosing personal or household information to government officials.

The new final rule out today and taking effect December 23 mirrors and codifies much of the decades-old policy in place from 1999 to 2019. It represents a major break from how public charge was defined under President Donald Trump.

Yet even as the Biden administration has announced its long-discussed final rule and is easing the Trump-era restrictions, recent interviews by Migration Policy Institute (MPI) researchers make clear that confusion and fear over triggering negative immigration consequences are keeping—and will likely continue to keep—many immigrants and their U.S.-born relatives from accessing benefits and services for which they are eligible. Beyond changing the public-charge rule, the government and service providers will have to undertake significant additional efforts.

Confusion and Still-Chilling Effects

The Trump administration rule, first alluded to weeks after Trump took office and officially published in 2019, was in effect on and off for parts of 2020 and early 2021 due to various court injunctions. That rule broadened the definition of public charge so that certain immigrants who received Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing assistance, energy assistance, child-care subsidies, and other benefits for more than 12 months within any 36-month period could be deemed a public charge. Before that, noncitizens could be identified as a public charge only if they were primarily dependent on the government because they received cash assistance for income maintenance programs such as Temporary Assistance for Needy Families (TANF) or long-term institutional care such as in a nursing home or mental health institution at government expense.

Being labeled a public charge or a potential public charge carries high consequences: Denial of admission for certain immigrants seeking to enter the United States, or for those already in the country, the inability to become lawful permanent residents. The Department of Homeland Security (DHS) under President Joe Biden ended the use of the Trump public-charge rule in March 2021, reverting to the prior policy while developing what would become the new final rule.

More than its impact on legal immigration to the United States, the greatest consequence of the Trump rule was its chilling effect on the use of public benefits. Many noncitizens responded to the tightening rules by reducing use of benefits or services for themselves and their U.S.-born children, regardless of whether those benefits and services were included in the new criteria for public charge. Even groups exempt from public-charge assessments, such as U.S.-citizen children in mixed-status households, used fewer benefits. Moreover, MPI analysis showed that from 2016 through 2019, participation in TANF, SNAP, and Medicaid declined more rapidly for noncitizens than U.S. citizens—and the drop accelerated in 2018, amid widespread news coverage of the anticipated Trump policy change. This pattern underscores that noncitizens’ decisions about what benefits or services to seek are not just responsive to current policy, but also to deep concerns about how policies could shift in the future.

MPI researchers spoke to former unaccompanied noncitizen children in three U.S. cities over the summer, as well as more than 100 attorneys, government officials, and other service providers who work with unaccompanied children and their families. Despite the end of the 2019 rule more than a year earlier, interviewees and focus group participants reported that fear of becoming a public charge, which is likely confounded with broader fears of immigration enforcement, remains pervasive. To avoid the risk of blemishes on future immigration applications, families reported forgoing medical procedures that would require financial assistance and declining to pursue vital benefits and services.

Although Medicaid is now clearly excluded from public-charge considerations (except for long-term institutional care), MPI found that many parents are hesitant to enroll their eligible children. According to service providers, many immigrants back out midway through benefits enrollment if asked to provide additional documentation because of concerns about exposing themselves or family members to public-charge determinations. One school administrator recounted the case of a parent who was so worried about public charge that she chose not to provide her child’s Social Security number on a Free Application for Federal Student Aid (FAFSA) application. Even when people receive accurate information about public-charge criteria, service providers said they often decide not to apply for or access benefits and services because they fear that policies could change. This sort of reticence has direct implications for public health, and not just for the individuals who decline support. For instance, in a conversation about the impacts of public charge, one official observed that children at state-run tuberculosis clinics have declined to share information about who they are living with, thereby increasing the risk of community spread and driving immigrant communities further off-grid.

Beyond the Rule: Needed Next Steps

While welcomed by many advocates, the latest rule will likely fail to significantly quell fears in immigrant communities unless it comes with a robust educational plan targeted at individuals, immigration attorneys, and others whom immigrants rely upon for advice. Doing so can help lawyers, including pro bono ones, stay current on public-charge policies and offer appropriate guidance to their clients. Immigration attorneys are often the most trusted advisors for working through decisions related to public charge. But MPI researchers heard reports of some lawyers offering legal advice at odds with the actual policies, such as one who wrongly insisted that COVID-19 stimulus payments would harm a client’s immigration case.

Such trainings should explain that the public-charge assessment does not apply to all immigrants, clearly delineate which public benefits can now be considered in a public-charge determination, and emphasize that legal advice should be tailored to the client’s specific circumstances. As a legal professional organization observed to MPI, immigration attorneys may have different blind spots concerning the public-charge assessment based on the populations they usually serve. Some focus on humanitarian cases, others on family-based ones, and others yet on high-skilled immigrants’ cases. Those working mostly on humanitarian cases, knowing the rule largely does not apply to their clients, may miss that some could be refraining from seeking benefits and services due to misinformation from friends, family, or other advisors. In contrast, attorneys who work primarily on family- or skills-based immigration cases may default to discouraging clients from seeking benefits and services even when doing so is unlikely to affect their cases.

Based on MPI fieldwork with unaccompanied children and the organizations serving them, the researchers recommend the federal government take key steps to mitigate the chilling effect. The Justice Department’s Executive Office for Immigration Review (EOIR), which oversees immigration courts, should consider providing parents and other sponsors of unaccompanied children—most of whom are 15 and older—with information on public charge during legal orientations, since many of these children apply for asylum. The Office of Refugee Resettlement (ORR), the federal agency that funds legal assistance for a small share of unaccompanied children, should consider encouraging grantees to review public-charge considerations with unaccompanied children and their parents or other sponsors. ORR should also consider supporting interdisciplinary legal service models that combine legal assistance with social, medical, and/or mental health services. When attorneys work in tandem with other types of providers, they can more effectively address issues as they arise. For instance, one pediatrician who runs a clinic with a medical-legal partnership serving immigrant children shared that if an eligible child is nervous about enrolling in SNAP, Medicaid, or other non-cash public benefits, it is helpful to bring in the relevant attorney to explain why the public-charge rule does not apply in this case.

Because not all noncitizens are able to consult an attorney, outreach should extend to other trusted messengers as well, including other types of service providers and community leaders. U.S. Citizenship and Immigration Services (USCIS), the federal agency that issued the latest final rule, should also consider engaging immigrant communities directly, including through media outlets that broadcast in priority languages. USCIS could also direct community relations officers to provide information on public charge at local informational events in partnership with community groups.

Given the pronounced chilling effects and confusion seen in recent years, these recommendations have the potential to correct misinformation and help noncitizens make informed decisions about their use of public benefits and services. Still, it is important to recognize that fears about how public charge may be defined in the future are well-founded because, as recent history demonstrates, executive actions can change relatively quickly. The best way to guard against oscillating policy changes, though unlikely to happen, would be for Congress to define public charge more clearly in law, including enumeration of which benefits and services count towards a person’s likelihood of becoming a public charge.