Biden administration rolls back Trump rule that penalized immigrants on welfare programs

The Biden administration has finalized a rule reversing a Trump-era policy that penalized people who had used certain federal welfare programs as a “public charge” in their immigration and visa applications.

The Department of Homeland Security said Thursday that it would no longer hold against applicants their use of several public health programs, including Medicaid benefits and the Children’s Health Insurance Program, as well as other programs such as the Supplemental Nutrition Assistance Program and disaster relief.

“This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” said Homeland Security Secretary Alejandro Mayorkas. “Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

Federal immigration law directs authorities, as part of determining whether someone can enter or stay in the United States, to evaluate whether they might become dependent on the government. Refugees, Cubans and Haitians applying for legal status under the Cuban Adjustment Act and the Haitian Refugee Immigration Fairness Act — and asylum seekers, among others — are excluded from being considered public charges for admissibility purposes.

Under the Trump administration, DHS issued a new definition of “public charge” in 2019. It was redefined as an immigrant who accumulates more than a year of public benefits, such as food stamps, Medicaid, and some kinds of housing assistance, within three years. As an example of how it worked, the rule explained that getting two benefits in the same month would qualify as two months.

The Trump rule expanded the umbrella of programs considered as public charge to non-cash benefits, like food stamps, when determining if someone should be allowed to enter or stay in the United States.

Church World Service Immigration Legal Services Director Maureen Porras said the 2019 rule caused clients, even those exempt from being considered public charges under federal law, to fear accessing public benefits and services.

“A lot of our clients that were exempt were afraid to seek the necessary help and benefits they were eligible for because they didn’t understand the rule,” she said, adding that her organization did educational outreach to help people understand how the Trump-era policy worked. “We did see a significant number of people that were eligible for our programs not join our programs because of fear the public charge rule would apply to them.”

In the new rule, Homeland Security acknowledged that the 2019 policy had “caused fear and confusion among U.S. citizens and noncitizens and had a significant chilling effect on the use of public benefits among noncitizens,” including people who were exempt.

The agency said it was “aware of evidence that the 2019 Final Rule, and the rulemaking process that preceded it, resulted in significant disenrollment effects among noncitizens and U.S. citizens in immigrant families.”

The new rule, which takes effect on Dec. 23, reverts to the 1999 guidance used to determine who is deemed a public charge and scales back which public benefits are considered under the term.

“DHS would determine that a noncitizen is likely at any time to become a public charge if the noncitizen is likely at any time to become primarily dependent on the government for subsistence,” reads the rule.

The agency said that to determine whether an immigrant is a public charge, it would assess past or current enrollment in Supplemental Security Income, cash benefits and assistance for income maintenance, government-funded long-term institutionalization, as well as factors mandated by federal immigration law such as age, health, and financial status and resources.

“People who qualify for Medicaid, CHIP, and other health programs should receive the care they need without fear of jeopardizing their immigration status,” said Health and Human Services Secretary Xavier Becerra. “As we have experienced with COVID, it’s in the interest of all Americans when we utilize the healthcare and other services at our disposal to improve public health for everyone.”

DHS also no longer requires the “Declaration of Self-Sufficiency Form,” or Form I-994, which asked extensive questions about an immigrant’s financial situation, including tax filing history, credit card debt, car loans, credit score and more.

“It truly made the process harder,” said Miami-based immigration lawyer John de La Vega, “I think we are seeing a much more reasonable, more human rule.”

You can read the new rule here.

This story was originally published September 8, 2022 at 4:29 PM.