The U.S. Senate passed a resolution, 50-47, last week to disapprove of the Biden administration’s “Public Charge Ground of Inadmissibility” final rule, which revised the government’s definition of “public charge” to expand the threshold of public benefits aliens may receive without encountering immigration-related consequences. If enacted, the measure (known as S.J.Res. 18) would invalidate the regulation under the Congressional Review Act (CRA).
The CRA gives Congress a tool to “overturn” certain agency actions it believes contradict Congress’s intent in enacting relevant authorizing statutes through the enactment of a “joint resolution of disapproval”. If a joint resolution of disapproval is enacted, the CRA states that the disapproved rule “shall not take effect (or continue)” and prohibits a federal agency from issuing that policy in “substantially the same form”.
In this case, the public charge rule is intended to implement section 212(a)(4) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). This statute makes an alien who is an applicant for a visa, admission, or adjustment of status inadmissible if he 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 explicitly defined “public charge” in statute, it did specify five factors that immigration officers must at a 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.
In addition to enacting the public charge statute as a part of IIRAIRA, Congress also 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.
Despite this, the Biden administration promulgated the 2022 public charge rule to largely codify the Clinton-era approach that was laid out in a document known as the “1999 Interim Field Guidance” (sometimes referred to as the “Pearson Memo”). Notably, the 1999 Interim Field Guidance objectively failed to accomplish the legislative aims in maintaining a public charge restriction in law.
The guidance, which was never issued by notice-and-comment rulemaking, 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” (emphasis added). Accordingly, the policy allowed substantial public benefits usage by arbitrarily excluding consideration of non-cash assistance (such as food assistance or Medicaid) and permitted substantial welfare use among aliens so long as officers determined that an alien was not “primarily dependent”.
The 1999 Interim Field Guidance was in place until 2019, when the Trump administration issued its own regulation to define “public charge” through notice-and-comment rulemaking. Incredibly few individuals were denied admission or adjustment on public charge grounds during this time. (See here, pp. 11-12.)
The 2019 Public Charge Rule
The Biden administration’s 2022 public charge final rule was issued in part to replace the Trump administration’s 2019 public charge final rule, which it refused to defend in court. The 2019 rule set up a “totality of the circumstance” approach that 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. Consistent with the 1999 interim field guidance’s approach, the 2019 public charge rule’s totality of the circumstances test meant that no one factor was determinative.
Specifically, the 2019 public charge final 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.
To mitigate abuse of taxpayer funds, the 2019 public charge final rule further 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. This particular policy consideration is becoming relevant again in a new context now that the Biden administration is erecting refugee and parole programs requiring sponsorship (e.g., Welcome Corps; Uniting for Ukraine; Family Reunification for Afghans; and the new parole programs made specifically for prospective Venezuelan, Haitian, Nicaraguan, and Cuban migrants). Recent news reports indicate that many “sponsors” of recent entrants under these programs have bailed on the aliens they promised to support, despite signing a commitment to financially support the person while they are in the United States.
The Cost of the Biden Administration’s Policy to Taxpayers
While DHS estimated that the cost of the 2022 public charge rule will be just $64,203,960 over the first 10 years, it calculated this figure by comparing the 2022 final rule to the 1999 interim field guidance, which permitted nearly identical levels of public benefits usage. By analyzing the cost in this fashion, the Biden administration is able to avoid calculating the estimated costs related to public benefits usage by noncitizen households who may have otherwise disenrolled or forgone enrollment in taxpayer-funded public benefits programs. When comparing the projected cost of the 2022 public charge final rule to the 2019 public charge final rule, however, DHS admitted that its 2022 regulation could cost taxpayers as much as $6.25 billion annually.
Because the Trump administration’s public charge rule was ultimately invalidated by a federal district court, the 2019 rule will not be revived if Congress is successful in enacting a joint disapproving resolution. Accordingly, the U.S. Department of Homeland Security (DHS) will be required to return to applying the flawed 1999 interim field guidance when making public charge determinations. What will be in place, however, is an affirmative statement from Congress indicating that the Biden administration’s near-codification of the 1999 interim guidance via the 2022 public charge final rule is inconsistent with congressional intent in enacting the public charge statute. It also leaves an opportunity for this administration, or an incoming administration, to correct course with a new rulemaking that better aligns government policy with that law. Finally, this resolution may provide additional support to litigants, such as state plaintiffs, looking to challenge the application of the 1999 interim guidance as contrary to law.