Homeland Security Finalizes Controversial Immigration Rule – Conduit Street

On September 8, the US Department of Homeland Security (DHS) passed a rule that redefines a “public charge,” a controversial concept with significant implications for state and local government services.

At its simplest level, a public fee is a rightfully Non-citizens who depend on government services for their livelihood and therefore may be denied citizenship or legal residency (a green card). The new rule codifies what DHS describes as a “historical understanding of the term” and excludes supplemental public health services as part of determining the inadmissibility of public charges. DHS Secretary Alejandro N. Mayorkas explained the intention behind the rule in a press release:

“This action ensures fair and humane treatment for legal immigrants and their family members who are US citizens,” Minister Mayorkas said. “Consistent with America’s core values, we will not penalize individuals for choosing to access the health care and other supplemental government services available to them.”

In 2019, the threshold for eligibility for a public levy shifted to almost any in-kind government benefit, such as Medicaid or nutritional assistance, and did not take into account the duration of the benefits received. According to DHS, the rule “resulted in a decrease in enrollment in such programs among individuals who are not subject to public inadmissibility charges, such as children of US citizens in mixed-status households.”

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The state of Maryland and several local governments feared that vulnerable immigrants would be excluded from essential health and human services programs and sought to sue to prevent the rule from going into effect. At the time, Maryland Attorney General Brian Frosh said the following in a press release about the then-proposed rule:

“Wealth has never been, and should not be, the most important factor in determining an immigrant’s status in America,” said Attorney General Frosh. “America has always been a beacon of hope for those seeking a better life, and immigrants built our country while we gave them sanctuary. The “public prosecution” rule is unlawful and un-American and endangers the health and well-being of children and families.”

Thirteen other states including Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, Virginia and Washington also filed suits. In 2020, the United States Supreme Court allowed the 2019 rule to go into effect. However, the Biden administration refused to enforce the rule, and the United States Supreme Court later declined to compel the government to act earlier this year.

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According to DHS’s newly adopted rule, based on the 1999 Interim Field Guidance, a public fee determination depends on:

  • The “age” of the non-citizen; health; Marital status; assets, resources and financial status; and Education and Skills” as required by the Immigration and Nationality Act (INA);
  • Filing Form I-864, Affidavit of Support Under Section 213A of the INA filed on behalf of a non-citizen, if required; and
  • The non-citizen’s previous or current receipt of Supplemental Security Income (SSI); Cash benefits to secure income within the framework of temporary assistance for needy families (TANF); State, tribal, territorial, or local cash-income support programs (often referred to as “General Assistance”); or long-term institutionalization at state expense.
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More importantly, DHS will not consider registration in the following cases:

  • Supplemental Nutrition Assistance Program (SNAP) or other nutritional programs;
  • Children’s Health Insurance Program (CHIP);
  • Medicaid (except for long-term institutionalization);
  • housing services;
  • any benefits related to vaccination or testing for communicable diseases; or
  • other supplementary or earmarked services.

The final rule is effective December 23, 2022 and was filed in the Federal Register on September 9, 2022.

Read the full DHS press release.

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