DHS Publishes a New Public Charge Rule

Same lax approach to welfare use as Clinton-era guidance

By Elizabeth Jacobs on September 9, 2022

The Department of Homeland Security issued a final regulation on September 9 to govern how DHS will administer the public charge ground of inadmissibility. The final regulation largely codifies the agency’s Clinton-era approach, interpreting “public charge” to mean whether an alien is “primarily dependent” on the government and excludes consideration of an alien’s receipt of non-cash benefits from the analysis.

Under section 212(a)(4) of the Immigration and Nationality Act (INA), an alien who is an applicant for a visa, admission, or adjustment of status is inadmissible if he or she is likely at any time to become a public charge. The public charge ground of inadmissibility, therefore, applies to any alien applying for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident. While the term “public charge”, is not defined in statute, the INA specifies that when determining if an alien is likely at any time to become a public charge, officers must consider at least the alien's age; health; family status; assets, resources, and financial status; and education and skills.

The Biden administration issued the September 9 regulation in large part to replace the 2019 public charge rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292 (August 14, 2019), which was issued under the Trump administration. That rule set up a “totality of the circumstance” approach that notably abandoned the distinction between dependency and “partial dependency”, and required immigration officers to take into account a larger set of taxpayer-funded benefits when making a public charge determination, among other reforms.

Critics of the 2019 regulation argued that the rule had a “chilling effect” on aliens’ usage of public benefits for which they are eligible. The criticism, however, ignores Congress’s longstanding and clearly articulated intent to discourage welfare use among aliens in the United States, that aliens be “self-reliant”, and that “the availability of public benefits not constitute an incentive for immigration to the United States”.

DHS’s new regulation adopts the approach set up by the former Immigration and Naturalization Service (INS), memorialized in a memorandum known today as the “1999 Interim Field Guidance”. (It’s important to note that although the INS never finalized regulations to implement this public charge policy, the 1999 Interim Field Guidance remained operative until DHS published its 2019 public charge regulation, and currently following the Biden administration’s refusal to defend the rule in court.) Accordingly, the 2022 rule, like the 1999 Interim Field Guidance, restricts immigration officers from considering prior or current public benefit receipts for nearly all non-cash benefits.

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. DHS will also not consider in public charge determinations benefits received by an alien’s family members, including dependent children.

The 1999 Interim Field Guidance, however, did not accomplish the legislative aims by maintaining the public charge statute. As a result, DHS has permitted substantial welfare use among immigrants to the United States so long as such dependency was not determined to be “primarily dependent”.

Data shows that a high proportion of immigrants to the United States are dependent on safety-net public benefits. According to a 2015 study conducted by the Center for Immigration Studies, over half of all immigrant-led households used at least one welfare program — compared to only 30 percent of native households. The CIS report showed that 48 percent of households headed by immigrants who have been in the country for more than two decades continue to access at least one welfare program.

A 2018 follow-up study found that there has been a slight increase in the use of safety-net benefits by non-citizen households. According to that study, 63 percent of non-citizen households accessed welfare programs, compared to 35 percent of native households. And, according to data from the Census Bureau’s Survey of Income and Program Participation (“SIPP”), by the year 2030 more than 13 million immigrants will use public benefits and 7.5 million immigrants will be enrolled in Medicaid — placing a major strain on an already ailing program.

The SIPP data indicated that approximately 50 percent of households headed by an immigrant used some form of welfare for either the head of household or another person residing in the household. The survey also indicated that approximately 90 percent are likely to remain on some form of welfare after 20 years, based on historical numbers. For Medicaid alone, the same SIPP survey suggests that nearly 80,000 new immigrants enroll in the program each year. The average annual cost-per-enrollee for Medicaid was $5,736 in FY 2014, according to the Kaiser Family Foundation.

While it is important to note that statistics include data from immigrants in the United States both legally and illegally, it is clear that the 1999 Interim Field Guidance has accomplished little in identifying which aliens subject to the public charge statute are likely to become a public charge in the United States. Accordingly, by fundamentally maintaining the 1999 Interim Final Rule’s policies, the new final rule does little to facilitate proper execution of the statute.

The final rule will be effective on December 23, 2022, and was published in the Federal Register today, September 9, 2022. DHS will continue to follow the 1999 Interim Field Guidance until it implements the new rule, on or after the effective date.