Public Charge Test Final Rule Expands Hurdles

Regulation | August 20, 2019 | by

On August 14, the Department of Homeland Security issued a final rule entitled “Inadmissibility on Public Charge Grounds” which goes into effect October 15, 2019. 

This rule applies prospectively to determine the eligibility of persons wishing to immigrate to the US, obtain a green card to authorize employment or to obtain certain visas. Note that this rule will not be applied to immigrants currently in the country unless or until they seek to change or extend their immigration status. Immigrants legally in the country now who apply for these benefits before October 15 should not have their current status adversely affected, but they will be subject to the new rules if they wish to extend or change their legal status. In addition, the determination of whether one is a “public charge” or likely to become one and therefore inadmissible applies only to the individual, not to other members of the individual’s family or household (e.g., a child on Medicaid, an older person receiving SNAP benefits).

According to the final rule, and despite LeadingAge comments last December urging the contrary, the term ‘‘public benefit’’ has been expanded from its traditional meaning of cash benefits for income maintenance and long term care institutionalization to now include state or local cash assistance programs, Supplemental Nutrition Assistance Program (SNAP) benefits, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. The Section 202 PRAC program will continue to be excluded. More than 260,000 comments were filed on the proposed rule. The vast majority of these were in opposition to the proposed rule.

In addition to expanding what qualifies as a “public benefit,” the threshold for determining whether an applicant for admission to the country will be considered a public charge has been changed from being “primarily dependent on cash benefits” to whether the individual has received “one or more public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two public benefits in one month counts as two months).” This standard no longer includes a future-looking projection but will consider current certifications for current benefits and a look-back not to exceed 36 months.

The rule sets out factors that immigration officers will use to assess whether an applicant for admission should be denied based on the likelihood of becoming a public charge. The rule states that admission should be based on “totality of circumstances,” although it is not clear how each of these factors is to be measured. The factors include:

  • Receipt of public benefits for 12 months over the past 36 months, as noted above (heavily weighted against admission).
  • Language: English-speaking (weighted favorably); non-English speaking (weighted negatively).
  • Medical conditions (weighted negatively) (the determination that eligibility for long-term care institutionalization renders an applicant a public charge has not changed).
  • Access to private health insurance (weighted positively).
  • Ability to earn a living (older ages weighted negatively).
  • Sufficiency of income, assets, and resources.
  • Sufficiency of sponsorship (the ability of the applicant to rely on family, friends, non-government support).

 

Despite HUD’s recent proposed rule that would end housing assistance to mixed-status families, this final rule provides somewhat conflicting or confusing guidance, as DHS states that it “will not consider a person who lives in any one of the listed housing programs as receiving public benefits unless the public benefit granting agency actually designated the benefit for the applicant as a beneficiary, such as in a contract, lease, or other documentation.” This will likely need to be further explored and clarified.

Housing programs not listed in the rule, such as Section 202 Supportive Housing for the Elderly (202/PRAC), Section 811 Supporting Housing for Person with Disabilities (811/PRAC); Housing Opportunities for Persons With AIDS (HOPWA), USDA Multi-Family Housing Rentals, LIHTC (tax credit) housing, Section 515 rural housing, and Section 514/516 farm labor housing and home loan and grant programs, will not be considered in the public charge inadmissibility determination.

Under this new rule, it will be difficult for workers in long-term care to extend their status as an authorized worker with a green card because of their wage history and current receipt of nutrition supports (SNAP) or housing assistance in the form of public housing, vouchers or project-based Section 8. Where the worker is not already earning a living wage sufficient to pay for basic living needs (i.e., food and nutrition, housing, and healthcare), receipt of any of these benefits in excess of the total amount allowed could threaten their continued presence or their admission to the country. DHS declined to create carve-outs for identified necessary workforce categories as it does not believe it is appropriate to specify just one form of employment as a heavily weighted positive factor.

While special provisions are made for consideration of persons who will be family caregivers for children or older adults, and DHS has included a new definition of ‘‘primary caregiver’’ to account for a new consideration in the totality of the circumstances for non-citizens who may not be currently employed or have employment history but are nonetheless contributing to their households by caring for others, DHS still asserts Congressional immigration policies continue to be that, ‘‘aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.’’

This rule will also impact the ability of older persons to immigrate to the United States and for immigrant workers to bring family members with them, especially older persons since age, health, and income are heavily weighted against prospective immigrants.

At least two lawsuits have been filed challenging the rule, including a suit by 13 state attorneys general. Legislation has also been introduced in the House to block funding of the rule’s implementation. These efforts could delay the rule’s implementation.

LeadingAge is continuing to review the rule to ascertain other impacts on workers and on residents in our communities and will publish an additional, in-depth analysis.