On March 9, Department of Homeland Security Secretary Alejandro N. Mayorkas announced that the Trump administration's public charge rule will no longer be enforced.  “The 2019 public charge rule was not in keeping with our nation's values,” said Mayorkas in a statement released by the United States Citizen and Immigration Services (USCIS). This rule, he continues, “penalized those who access health benefits and other government services available to them.”  Such a change is certainly in line with President Biden's campaign promises.  As we recounted in January, these key promises included protecting Dreamers and their families, ending prolonged detention, and, of course, reversing Trump's public charge rule.   In order to understand the full weight of this announcement, we must consider two questions.  First, what exactly is the public charge rule? And second, what can we be expected going forward?  

What exactly is the public charge rule?

When applying for a green card, a noncitizen must show that they are not “likely at any time to become a public charge.” In other words, noncitizens must show that they will not be what is deemed economically burdensome on the country.  As Joseph Daval writes in the Yale Law Journal, the public charge rule aims “to stop noncitizens from entering and remaining in the country if they are likely to require some unspecified degree of public assistance.”  The term “public charge” was first used in the late nineteenth century, when the first general immigration statue was enacted in 1882.  Since then, the language of the exclusion has remained the same.  What has not remained the same, however, is the government's commitment to those within the country.  Since the 1930s, more and more federally funded public assistance has become available; by the end of the twentieth century, programs like Medicaid, Medicare, Social Security, and the Food Stamp Program became well established.  The language of public charge exclusion has been kept in place despite these developments.

In 2018, the former Trump administration expanded the grounds of the exclusion with a new rule.  This updated public charge rule, finalized in August 2019, proposed that immigration officers must consider past receipt of Medicaid, Supplemental Nutrition Assistance Program benefits, and subsidized housing, among other previously ignored benefits when noncitizens apply for a visa, green card or physical admission to the country.  Put simply, it would count against an application if a noncitizen previously had used government aid.  CBS News went so far as to claim that this 2019 rule was the “centerpiece of former President Donald Trump's efforts to restrict legal immigration.”  Unsurprisingly, it was challenged by countless immigration advocates and litigation ensued.

As it turns out, Trump's public charge rule replaced a 1999 field-guidance document published by the Clinton administration.  It was this guidance that “provided the first comprehensive account of what ‘public charge' means, how to apply it, and which benefits would ‘count' against a noncitizen or instead be ignored by immigration officers.” Previous to 2019, benefits like Medicaid, food stamps, and subsidized house did not count against a noncitizen. 

What can be expected going forward?

Going forward, USCIS will revert to the 1999 interim field guidance and only apply the public charge inadmissibility provision, which includes only those who might become “primarily dependent” on designated state and federal programs for more than half of their income or support. As the National Law Review wrote, “applicants seeking lawful permanent resident (i.e., green card) status are no longer required to submit Form I-944, Declaration of Self-Sufficiency, and the related supporting materials with their applications.”  Additionally, the Justice Department has notified courts across the country that it will no longer defend the Trump administration's public charge regulation.

DHS issued a statement saying that, under the 1999 guidance, the department will “not consider a person's receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination," the department said in a statement.” Vaccination against and medical treatment for COVID-19 will also not be considered in public charge determinations. 

This change will certainly extend support to countless immigrants.  The Trump-era policy deterred low-income noncitizens—and often their U.S.-born children—from accessing public benefit programs.  In fact, the Urban Institute issued a report in February which found that over 13% of adults in immigrant households did not participate in government aid in 2020 for fear of jeopardizing their immigration cases.  A return to the 1999 guidance is only the first step; the Biden administration must not only formally rescind the 2019 rule but also increase public awareness so that all families can seek and receive the support they need.