Input needed: DHS proposes updates to the “Public Charge” rule

March 7, 2022
Alison Barkoff, Principal Deputy Administrator

The Department of Homeland Security (DHS) is seeking comments on a proposed rule that would define the criteria used to determine whether a person likely to become a “public charge,” or primarily dependent on the government for subsistence, for purposes of determining eligibility for a visa and/or legal residency. The proposed rule contains several provisions that directly affect older adults and people with disabilities, so input from ACL’s networks is critical. Comments may be submitted until April 25, 2022.

What’s most important for older immigrants and immigrants with disabilities to know.

This issue is complex, and despite our best efforts, this blog post is on the longer side. If you don’t have time to dig in, here’s what’s most important for people to know right now:

Participating in ACL’s programs – or using most public benefits – will not “count against” anyone who is applying for a visa or residency. Under both the guidance currently in place and the proposed new rule, the ONLY public benefits considered in a public charge determination are:

  • Long-term institutionalization funded by the government. Receiving Medicaid Home and Community-Based Services or other Medicaid health care benefits will not affect a public charge determination.
  • Direct cash assistance programs, including Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF).

The 2019 rule that took into account a wider array of public benefits, including nutrition, housing and all Medicaid services, and which raised significant concern in the disability and aging communities, is no longer in effect. That means that people can use these critical benefits without fear that doing so will affect their immigration status.

Background

The “public charge” policy allows U.S. immigration officials to bar a person from getting a visa or becoming a lawful permanent resident if they are likely to become primarily dependent on the government for subsistence. Over the last 20 years, the interpretation of this policy, and the factors that are used to make this determination, have changed several times.

Currently, DHS’s 1999 Interim Field Guidance is in place. Under that guidance, the only public benefits considered in a public charge determination are those that pay for institutionalization for long-term care (including Medicaid) and direct cash assistance programs, including SSI and TANF.

A 2019 rule considered a wider range public benefits, and which raised significant concern in the disability and aging communities. However, that rule is no longer in effect.  Receiving housing assistance, participating in health care programs, and using Medicaid services (other than long-term institutionalization) will not affect immigration status.

In August 2021, DHS released an Advanced Notice of Proposed Rulemaking (ANPRM) to collect input to help them develop a new Public Charge rule. In response to questions posed by the ANPRM and in light of the 2019 rule, many commentors raised issues of disability discrimination, the chilling effect of the public charge doctrine on enrollment in all public benefits, and how institutionalization for long-term care at government expense should be defined. The proposed rule reflects much of that input.

 (Our blog from July 2021 includes more on the recent history of the public charge rule.)

Key provisions of interest to the aging and disability networks

When considering applications for visas to enter the United States or to become a permanent legal resident, DHS must determine whether the applicant is likely, at any time, to become a “public charge,” meaning that they are likely to become primarily dependent on the government for subsistence. The proposed rule defines primary dependence on the government as “long-term institutionalization at government expense” or “receipt of cash benefits for income maintenance.”

Immigration law requires DHS to l consider five factors to make that determination: age; health; family status; assets, resources, and financial status; and education and skills. Under the proposed rule, using most public benefits will not count against the individual. DHS will consider only:

  • Whether the person is living or has lived in an institution, such as a nursing home or a mental health institution, paid for by Medicaid or other government funding for an extended, uninterrupted period of time; and
  • Whether the person has received direct cash assistance benefits for income maintenance, such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF).

The proposed rule states that the following will not be considered evidence that a person is likely to become a public charge:

  • Receiving Medicaid Home and Community Based Services (HCBS): DHS is explicit that it will not consider receipt of ANY Medicaid benefits, other than long-term institutionalization at government expense, in a public charge determination. Medicaid HCBS, as well as acute care benefits will not be considered. In the rule, DHS recognizes that HCBS promote self-sufficiency, employment and help people avoid costly institutional care. DHS also clarifies that being eligible for HCBS, which may require meeting an institutional level of care in some programs, is not comparable to needing institutionalization.
  • Unjustified institutionalization, in violation of federal law: The proposed rule recognizes that some people are forced to live in institutions when they should have had -- under the Americans with Disabilities Act and the Rehabilitation Act of 1973 (and clarified by the Supreme Court decision in Olmstead v. L.C) -- the opportunity to live in the community with home and community-based services. When it can be shown that past or current institutionalization is  in violation of federal law, it similarly should not be considered.
  • Disability alone: Disability, as defined in Sec. 504 of the Rehabilitation Act of 1973, cannot be the sole basis for a determination that an that individual is in poor health, is likely to require long-term institutionalization at government expense, or is likely to become a public charge due to any other factor. This clarification was based on the extensive input of commentors to the ANPRM.

DHS also will not assume that just because someone received institutional care or cash benefits like SSI or TANF in the past or is receiving them now, they are likely to become dependent on the government in the future. Any determination will be based on the “totality of the circumstances,” rather than on one particular factor.

What input is needed

DHS particularly seeks input on the following:

  1. How to define “long-term institutionalization” in the final rule. According to the proposed rule, DHS generally considers  “long-term” to mean “uninterrupted, extended periods of stay in an institution.” Periodic stays in an institution, with separate discharges, would not count. On the other hand, DHS would consider someone to be institutionalized long term if they lived in an institution over a long period without discharge, even if during that time they took off-site trips and visits. DHS is considering whether to reference a specific length of time in the final rule’s definition of “long-term” institutionalization.” To that end, DHS seeks data on lengths of stay for long-term care in a range of institutional settings and any other information that could help in the development of an accurate and complete definition.
  2. DHS is proposing to consider evidence that a person was institutionalized in violation of federal law, and that their institutionalization should therefore not be taken into account in any determination. DHS seeks comment on what specific types of evidence it should consider for this purpose.
  3. The proposed rule discusses the chilling effect prior rulemaking had on enrollment in public benefits broadly due to fear of adverse immigration consequences. DHS welcomes more information and data on this chilling effect and how to mitigate misinformation that could decrease future enrollment in public programs.

The aging and disability network has critical insights through their work directly with older adults, people with disabilities and those with chronic conditions. Your comments on the NPRM will help ensure the final rule best reflects the needs of these populations within immigrant communities.

Related Links


Last modified on 03/15/2022


Back to Top