Federal Proposal Broadens “Public Charge” Definition for Immigrants: What Are the Implications for States?

The Department of Homeland Security (DHS) recently released a proposed rule to change public charge determination policies. Currently, the immigration status of individuals can be affected and individuals can be denied lawful permanent residence if they are determined to be a “public charge” based on their enrollment in cash assistance programs, such as Temporary Assistance for Needy Families or Supplemental Security Income, or if they need long-term institutional care funded by the government.

The proposed rule, which will soon be published in the federal register for a 60-day comment period, seeks to significantly broaden the public charge definition by also taking into consideration individuals’ enrollment in non-cash public benefit programs. Specifically, when making public charge determinations, DHS is proposing to also look at individuals’ use of the following programs:

  • Nonemergency Medicaid
  • Supplemental Nutrition Assistance Program (SNAP)
  • Federal Rental Assistance (such as Section 8 vouchers and other subsidized housing assistance), and
  • Low Income Subsidy for Medicare Part D Prescription Drug Coverage

Earlier drafts of the proposed rule had included the Children’s Health Insurance Program (CHIP) as one of the programs under consideration for public charge determinations. In the current version, CHIP is not included in the list of programs, but the proposed rule indicates that the administration is still considering whether to include it and is seeking public comments on whether to do so. Also, previous draft versions had included receipt of subsidies for marketplace coverage and whether other members of an individual’s household were using these public programs as factors to be considered in public charge determinations, but these are not included in the proposed rule.

The proposed rule defines thresholds for public charge determinations based on the length of time an individual receives public benefits, with different rules for cash and cash-like benefits (considered “monetizable”) and benefits such as Medicaid with an undetermined value (defined as “non-monetizable” benefits). Specifically, DHS is proposing that individuals who meet one of the following would be determined inadmissible for permanent citizenship status:

  • If an individual receives monetized benefits over 12 consecutive months and they amount to more than 15 percent of the federal poverty guidelines for a single person;
  • If an individual uses both monetizable and non-monetizable benefits for more than nine months during the 36 months prior to the public charge determination;
  • If an individual uses non-monetizable benefits for more than 12 months in the 36 months prior to the public charge determination;
    • The rule provides an example to clarify how the duration of non-monetizable benefits would be counted — if during the 36-month period an individual received Medicaid for nine months and public housing for six months, this would count as a total of 15 months of non-monetized benefits. The receipt of public benefits, regardless of which program they come from or whether they are received over an overlapping timeframe or consecutively, will be combined to determine the duration of time an individual is considered on public programs for the public charge determination.

The proposed policy changes do not apply retroactively, so individuals’ use of any of these proposed non-cash benefits before the rule is finalized would not be considered in public charge determinations. Also, the rule does not apply to refugees, individuals seeking asylum, or active duty members of the military and their families.

However, the proposed rule indicates that individuals would be considered at high risk of becoming a public charge if:

  • They lack private health insurance or the financial means to pay for care associated with physical or mental health conditions that are expected to require extensive treatment; or
  • Their medical condition/s could interfere with their ability to work, attend school, or care for themselves.

DHS is estimating that the proposed changes will affect approximately 382,000 individuals annually. There is concern among immigration advocates that there will be a much broader impact, including discouraging those who are eligible for public assistance programs and not subject to the public charge determination to forgo seeking  support. For example, immigrant parents who have children born in the United States may choose not to enroll their children in programs such as Medicaid – even if they are eligible — because of fear and confusion about these changes.

DHS notes in the rule that individuals currently enrolled and participating in public programs like Medicaid will likely dis-enroll to minimize risks to their permanent citizenship applications. As a result, there will be a reduction in federal payments for these benefits that will have a financial impact on state and local economies, large and small businesses, and individuals. DHS acknowledges, “the rule might result in reduced revenues for health care providers participating in Medicaid, pharmacies that provide prescriptions to participants in the Medicare Part D Low Income Subsidy program, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers, or landlords participating in the housing programs.”

While DHS is responsible for making public charge determinations, states will have operational challenges resulting from the proposed rule changes. Some state systems may be able to generate the new data needed to determine how many months an individual is enrolled in a public program over a 36-month period, but others will not be able to provide that information as it is new criteria not previously required when systems were designed. Will the federal government provide the resources to states needed to make the systems changes required to produce the data DHS needs?  

It is also likely that states will want, or perhaps even legally need, to disclose the potential consequences  to citizenship determinations for individuals enrolling in public programs on Medicaid (and other program) applications, websites, notices of eligibility and more. The proposed rule acknowledges this and seeks input from state officials about the cost and time needed to implement such changes so that DHS can decide when these changes should take effect. However, the proposed rule does not imply there will be additional federal funds to help offset the state costs of making the changes.

The proposed rule is expected to be officially published soon, after which the public will have 60 days to provide comments.