The American Dream: New Public Charge Regulation Information

By: Brianne Donovan, Staff Editor.

 

Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless,

tempest-tost to me,

I lift my lamp beside the golden door.[1]

 

Since 1903, this poem by Emma Lazarus has been engraved in the interior of Lady Liberty’s pedestal.[2]In the subsequent century her words have been applied to many immigration debates.[3]During the summer of 2019, they were repurposed by Ken Cuccinelli, the U.S. Citizenship and Immigration Services (“USCIS”) director.[4]While discussing a new USCIS regulation, entitled “Inadmissibility on Public Charge Grounds,” Mr. Cuccinelli improvised, “Give me your tired and your poor who can stand on their own two feet and not become a public charge.”[5]

 

Though present in previous immigration laws, the term “public charge” was never formally defined until USCIS revised it in a final rule issued on August 14, 2019.[6]Effective October fifteenth of this year, “public charge” will mean “an alien who receives one or more designated public benefit 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).”[7]

 

The new public charge ruling will affect noncitizens who are applying to enter the country or are applying for an adjustment of status (e.g., applying for permanent residency or citizenship).[8]It is important to note that refugees, immigrants, and certain humanitarian-based visa holders will be exempt from this rule.[9]Additionally, active military members and immediate families, as well as pregnant woman (up to 60 days post-partum) will be exempt in certain cases.[10]

 

Under the new rule, USCIS will weigh positive and negative factors to determine if a noncitizen is likely to become a public charge, with certain factors being weighed more heavily than others.[11]Positive factors are those which make an individual less likely to become a public charge and negative factors are the inverse.[12]USCIS officers will use a totality of the circumstances to determine public charge potential. The factors that officers will use are as follows: (1) age, (2) health, (3) family status, (4) assets, (5) resources, (6) financial status, (7) education, and (7) skills.[13]

 

Previously when assessing public charge, public benefits did not include benefits addressing health, nutrition or housing.[14]Public benefits are now interpreted to include cash programs (e.g. Temporary Assistance for needy families), healthcare benefits (e.g. Medicaid, Medicare), nutrition and school programs (e.g. SNAP, WIC, Free and Reduced School Lunch, Head Start); and housing benefits (e.g. Section 8).[15]

 

While the rule is not retroactive and does not go into effect until October, it is already generating many discussions. Fear and confusion in immigrant communities have been reported.[16]Many noncitizens are unenrolling in government programs, even if they are exempt under the new rule.[17]

 

The Kaiser Family Foundation, an American non-profit organization that focuses on national health issues and policy, predicts that the new rule will decrease Medicaid and CHIP enrollment.[18]Decreased enrollment will likely reduce access to insured care and contribute to worse health outcomes.[19]The organization writes that 13.5 million Medicaid/CHIP enrollees, 7.6 million of which are children, live in a household with noncitizens or are noncitizens.[20]

 

Indirectly, these changes may affect American citizens. When less people sign up for public benefits, less money from the federal government is provided to the programs.[21]  Additionally, less payments will be made to local grocery stores and doctors, which could result in loss of jobs or reduced hiring.[22]According to a report from the nonpartisan Fiscal Policy Institute, “the economy could lose as much as $33.8 billion and 230,000 jobs if 35% of immigrants who use public assistance such as Medicaid and food stamps leave those programs.”[23]

 

In response to the new regulations, a few states have filed lawsuits.[24]California’s complaint states that the “rule’s design fails to promote self-sufficiency because its income threshold is prohibitive even to low- and moderate-wage workers who do not use public benefits, and instead stifles a noncitizen’s ability to attain upward mobility by creating barriers to medical coverage and lawful employment. Nor is self-sufficiency served by a rule that discourages the use of non-cash healthcare, housing, and nutrition assistance.”[25]

 

The true effects of the new regulation will be revealed in mid-October.

 

 

 

 

 

 

[1]Emma Lazarus, The New Colossus poem; published 1883

[2]Austin Allen, Emma Lazarus: “The New Colossus”, Poetry Foundation(Nov. 22, 2017), https://www.poetryfoundation.org/articles/144956/emma-lazarus-the-new-colossus.

[3] Id.

[4]Sara Ingber & Rachel Martin, Immigration Chief: ‘Give Me Your Tired, Your Poor Who Can Stand On Their Own 2 Feet’, National Public Radio(Aug. 13, 2019), https://www.npr.org/2019/08/13/750726795/immigration-chief-give-me-your-tired-your-poor-who-can-stand-on-their-own-2-feet.

[5] Id.

[6]8 C.F.R. § 103, 212, 213, 214, 245, 248 (2019). See also USCIS Final Rule on Inadmissibility, American Immigration Lawyers Association (Sept. 3, 2019), https://www.aila.org/advo-media/issues/all/public-charge-changes-at-uscis-doj-and-dos.

[7] Id.

[8] Id.

[9] Id. See also Featured Issue: Public Charge Changes at USCSIS, DOJ, and DOS, American Immigration Lawyers Association (Sept. 3, 2019), https://www.aila.org/advo-media/issues/all/public-charge-changes-at-uscis-doj-and-dos

[10]8 C.F.R. § 103, 212, 213, 214, 245, 248 (2019). See also Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/.

[11] Id.

[12] Id.

[13] Id.

[14]Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/.

[15]8 C.F.R. § 103, 212, 213, 214, 245, 248 (2019). See also Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/.

[16]See Erica Hellerstein, A Looming Change in Immigration Policy is Spooking Bay Area Families, Mercury News (Sept. 22, 2019) https://www.mercurynews.com/2019/09/22/a-looming-immigration-policy-is-spooking-bay-area-families/; Sunny Kim, States Push Courts to Block Trump ‘public charge’ Immigrant Rule as Groups Warn it Could Harm the US Economy, CNBC (Aug. 28, 2019), https://www.cnbc.com/2019/08/28/states-push-courts-to-block-trumps-public-charge-immigrant-rule.html.

[17]SeeChanges to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/; Erica Hellerstein, A Looming Change in Immigration Policy is Spooking Bay Area Families, Mercury News (Sept. 22, 2019) https://www.mercurynews.com/2019/09/22/a-looming-immigration-policy-is-spooking-bay-area-families/; Sunny Kim, States Push Courts to Block Trump ‘public charge’ Immigrant Rule as Groups Warn it Could Harm the US Economy, CNBC (Aug. 28, 2019), https://www.cnbc.com/2019/08/28/states-push-courts-to-block-trumps-public-charge-immigrant-rule.html.

[18]Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/.

[19] Id.

[20]Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/.

[21]Sunny Kim, States Push Courts to Block Trump ‘public charge’ Immigrant Rule as Groups Warn it Could Harm the US Economy, CNBC (Aug. 28, 2019), https://www.cnbc.com/2019/08/28/states-push-courts-to-block-trumps-public-charge-immigrant-rule.html.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

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