Biden’s New Public Charge Regulation Goes into Effect

DHS doesn’t seem to know who exactly they work for

By Elizabeth Jacobs on December 27, 2022

The Biden administration’s public charge rule went into effect on December 23, 2022, reverting the government’s definition of “public charge” to the flawed Clinton-era model. While this regulation (hereafter referred to as the “2022 public charge rule”) codifies USCIS’s long-standing practice of barely executing the public charge inadmissibility statute, the rule puzzlingly appears to be a brazen attempt to ignore congressional mandates and maximize welfare use among noncitizens in the United States, representing a significant departure from the policies that were put in place under the Trump administration’s 2019 public charge rule.

Background. Self-sufficiency has been a basic principle of United States immigration policy since this country's earliest immigration statutes, and public charge restrictions have been included in U.S. immigration law since at least 1882. It continues to be the immigration policy of the United States that immigrants must not depend on taxpayer-funded public benefits to meet their needs. Indeed, as recently as 1996, Congress clearly declared in a policy statement included in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) that self-sufficiency is a basic principle of the United States immigration law and should continue to be a governing principle in the United States.

Specifically, the Immigration and Nationality Act (INA) at section 212(a)(4) makes an alien who is an applicant for a visa, admission, or adjustment of status inadmissible if she or she is likely at any time to become a public charge. The public charge ground of inadmissibility, therefore, applies to aliens applying for a visa to come to the United States temporarily or permanently for admission or to adjust status to that of a lawful permanent resident, with limited exceptions.

While Congress never defined explicitly defined “public charge” in statute, it did specify five factors that immigration officers must at minimum consider when making a public charge determination. Those statutory factors are an alien’s (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.

Additionally, the INA at section 212(a)(4) also allows government officers to consider an affidavit of support submitted on the applicant’s behalf when determining whether the applicant may become a public charge. Submission of an affidavit of support is generally mandatory for aliens seeking family-based immigrant visas and adjustment of status or for aliens seeking admission or adjustment of status for certain employment-based visas.

The 1999 Interim Field Guidance. In 1999, the then Immigration and Naturalization Service (INS) issued interim field guidance (sometimes referred to as the Pearson Memo) and a proposed rule to define the term “public charge” in response to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and PRWORA, which restricted the availability of public benefits to aliens in the United States. The guidance defined a public charge as an alien “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense”.

INS never finalized its proposed rule, but the 1999 interim field guidance remained operative until DHS promulgated its public charge regulation in 2019. DHS resumed following the 1999 interim field guidance in March 2021 after the Biden administration refused to defend the 2019 public charge rule against challenges in court.

The 1999 interim field guidance, however, has objectively failed to accomplish the legislative aims in maintaining the public charge statute. Under this policy, DHS arbitrarily excluded consideration of non-cash assistance and, as a result, permitted substantial welfare use among immigrants to the United States so long as officers determined that an alien was not “primarily dependent”. Incredibly, few individuals were denied admission or adjustment on public charge grounds during the time this policy was in place.

Data illustrates just how ineffective this approach was. According to a study conducted by CIS in 2018 (about a year before the Trump-era rule was issued), almost two-thirds of immigrant-led households used at least one welfare program. Specifically, CIS found that 63 percent of non-citizen households accessed welfare programs, compared to 35 percent of native households. While it is important to note that statistics include data from immigrants in the United States both legally and illegally, it is clear that 1999 interim field guidance accomplished little in identifying which aliens subject to the public charge statute are likely to be self-sufficient in the United States.

The 2019 Public Charge Rule. The now-discarded 2019 public charge rule set up a “totality of the circumstance” approach that notably abandoned the 1999 interim field guidance’s distinction between dependency and “partial dependency”. The rule also required officers to take into account a larger set of taxpayer-funded benefits when making a public charge determination. Specifically, the 2019 public charge rule defined public charge to mean “an alien who receives one or more public benefits, as defined in [the rule], for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)” in order to establish a proper nexus between public charge and receipt of public benefits.

In addition to traditional cash welfare benefits, the 2019 public charge rule required officers to consider an alien’s receipt of Supplemental Nutrition Assistance Program (SNAP) benefits (formerly known as food stamps), Medicaid, Section 8 housing assistance, Section 8 rental assistance, and most other forms of housing assistance. Consistent with the 1999 interim field guidance, the 2019 public charge rule’s totality of the circumstances test meant that no one factor was determinative.

The 2019 rule also provided officers (and the general public) with much-needed guidance on how to evaluate the statutorily mandated factors (age; health; family status; assets, resources, and financial status; and education and skills) and added definitions to demystify the public’s understanding of what U.S. immigration law requires. To mitigate abuse of taxpayer funds, the 2019 regulation also added the requirement that officers assess the likelihood that a sponsor who submits an affidavit of support for an alien subject to a public charge determination would actually provide the statutorily required amount of financial support to the alien.

States’ Attempt to Defend the 2019 Public Charge Rule in Litigation. As mentioned above, DHS stopped complying with the 2019 public charge rule on March 9, 2021, a full six months prior to finalizing the 2022 public charge rule, after the Biden administration refused to defend it in litigation. Immediately following this announcement, 13 states, led by Arizona, filed a motion to defend the 2019 public charge rule in the Ninth Circuit as intervenors. (Third parties are sometimes allowed to intervene in litigation when their rights or duties are at stake.) While the U.S. Supreme Court dismissed that bid on June 15, 2022, Chief Justice John Roberts referred to DHS’s tactics as “rulemaking-by-collective-acquiescence” in a concurring opinion joined by Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

A similar challenge originating in the Seventh Circuit, led by Texas, is currently in progress. Here, the states likewise asserted that DHS used unlawful and “unprecedented tactics” to evade notice-and-comment rulemaking, which is generally required under the Administrative Procedures Act to amend regulations. In September, Texas petitioned the Supreme Court to review its request to intervene in the public charge litigation, and the parties most recently briefed the Court in November. The Supreme Court has not yet decided whether it will revive the case, but the petition has been distributed for the Court’s conference on January 6, 2023.

The 2022 Public Charge Rule. DHS published the 2022 public charge rule on September 9, 2022, after soliciting two rounds of comments from the public. (CIS’s comment can be found here.) Here, DHS again adopted the INS concept of “primary dependence” into its definition to find that an alien would be likely to become a public charge if “they are likely at any time to become primarily dependent on the government for subsistence as demonstrated by either receipt of cash assistance for income maintenance or long-term institutionalization at the government expense.”

Under this framework, immigration officers may consider only prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); state, tribal, territorial, or local cash benefit programs for income maintenance (often called “general assistance”); or long-term institutionalization at government expense. The new rule also excludes consideration of an alien’s receipt of the Earned Income Tax Credit and Child Tax Credit programs, even though they are means-tested transfer payments for which recipients must individually qualify. Notably, officers may not consider benefits received by an alien’s family members, including dependent children.

All other forms of welfare usage are excluded from a public charge analysis. That means, when an officer is tasked with determining whether an alien is likely at any time to be a public charge, they are prohibited from considering the alien’s past or current receipt of any non-cash benefit, such as medical care, housing assistance, or benefits provided to dependent family members. As a result, the 2022 regulation drastically raises the threshold of permissible welfare usage for the purpose of public charge inadmissibility determinations.

The 2022 public charge rule also removed nearly all clarifying language in 8 C.F.R. § 212.22 (governing public charge inadmissibility determinations) that was inserted by the 2019 public charge rule to provide guidance to officers on how the INA’s mandatory factors (age; health; family status; assets, resources, and financial status; and education and skills) should be evaluated for the purpose of making a public charge determination. The regulation also failed to require officers to weigh any factor more heavily than another, despite data demonstrating that certain factors, such as an alien’s education and income levels, are the most reliable predictors of whether an alien is likely to become a public charge. Finally, the 2022 public charge rule repealed all requirements that officers assess the likelihood that the sponsor will actually provide financial support to the alien if such alien were to fall on hard times and become a public charge.

The 2022 Public Charge Rule Is Premised on Misguided Motives. DHS stressed that one of its primary objectives in promulgating the 2022 public charge rule was to eliminate the “chilling effect” the 2019 regulation put upon aliens who may be otherwise eligible by law to receive public benefits in the United States. The general premise of this argument is flawed, however, and provides yet another example of leadership at DHS forgetting who they work for. It is not DHS’s responsibility to encourage aliens to maximize the use of taxpayer-funded benefits they are potentially eligible for, nor should it be prioritized over enforcing the nation’s immigration laws. There is also no conflict between the availability of public benefits to some aliens as set forth in PRWORA and Congress's intent to deny visa issuance, admission, and adjustment of status to aliens who are likely to become a public charge. Both can be true.

As explicitly stated by Congress in law at 8 U.S.C. § 1601, it “continues to be the immigration policy of the United States that aliens 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”. Congress further emphasized here that there is a “compelling government interest” to “remove the incentive for illegal immigration provided by the availability of public benefits”.

The issuance of clear guidance that identifies individuals who are not subject to the public charge rule as well as guidance regarding which public benefits are excluded from consideration in a public charge determination would go further to supporting long-standing congressional intent, taxpayers’ fiscal interests, and good-faith execution of the statute than maintaining the status quo of non-enforcement through the 2022 regulation. Fostering self-sufficiency within the United States — not welfare use — is the public charge statute’s ultimate goal.

Topics: Welfare