The Department of Homeland Security (DHS) has finalized a rule defining the criteria it uses when determining whether a person can be denied a visa and/or legal residency because they are likely to become a “public charge.” The final rule comes on the heels of the proposed rule, published February 24, 2022, and is the latest chapter in a long series of regulatory and legal actions surrounding the public charge policy. It includes several provisions that directly affect older immigrants and immigrants with disabilities, their families and caregivers.
For more information and background on the history of the public charge policy, see ACL’s March 2022 blog post on the Notice of Proposed Rulemaking and the July 2021 blog post on the history of public charge rulemaking as well as resources from the Department of Homeland Security.
What’s most important for older immigrants and immigrants with disabilities to know?
Someone may be considered a “public charge” if they are likely to become primarily dependent on the government for subsistence. This is evaluated by looking at prior and current use of certain public benefits as well as other factors such as age, health, and financial resources.
Participation in most public benefits, including ACL’s programs, will not adversely impact a citizenship or residency determination under the new rule. The ONLY public benefits considered in a public charge determination are:
- Long-term institutionalization funded by the government (for example, Medicaid-financed care in a nursing facility). Receiving Medicaid Home and Community-Based Services (HCBS) 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).
This is a codification of DHS’ 1999 Field Guidance (the policy that is currently in place). It solidifies DHS’ long-standing position on which public benefits will be considered in a public charge determination and which will not.
What are the major provisions of the final rule?
DHS received 233 comments on the proposed rule, including many from the aging and disability community. The final rule provides responses to many of those comments, explaining why policy changed or remained the same. The final rule closely mirrors the proposed rule with a few exceptions. The major provisions include:
- Receiving Medicaid Home and Community Based Services (HCBS) will not factor into any public charge determination. Medicaid HCBS, as well as acute care benefits, will not be considered.
- Long-term institutionalization at government expense will be factored into a public charge determination and while “long-term” is not explicitly defined, the rule includes guardrails. While the rule did not define what constituted “long-term” institutionalization with a hard threshold or day limit, it did specify that short-term residential care for rehabilitation or mental health treatment would not be considered. Long-term institutionalization also does not include imprisonment for conviction of a crime. DHS will collaborate with the Department of Health and Human Services to develop sub-regulatory guidance to help guide DHS agents’ evaluation of past or current institutional stays.
- Evidence may be presented to show unjustified institutionalization in violation of federal law. DHS recognizes that some people are forced to live in institutions due to the unavailability of HCBS and in violation of their rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (as interpreted by the Supreme Court in Olmstead v. L.C.). As a result, an applicant for admission to the United States or an immigration status change may present evidence to show their institutionalization was in violation of federal law, thus mitigating negative weight that may be put on that period of institutionalization during a public charge determination.
- No single factor alone is determinative of whether someone may be deemed a “public charge.” DHS will perform a “totality of the circumstances test” considering both past and current use of publicly funded institutional care and cash assistance. The test also includes an evaluation of five statutory factors: health, age, family status, assets/resources/financial status, education/skills to determine likelihood of primary dependence on the government for support. No single factor is determinative, however. Thus, past or current institutionalization, receipt of cash benefits, poor health or advanced age alone is not sufficient to render someone a public charge.
- Disability alone is not sufficient for a determination that individual is likely to become a public charge. 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.
- DHS will consider the medical evaluation performed by a physician when evaluating a non-citizens health: In the proposed rule, DHS did not specify evidence it would consider as a part of the statutory minimum factor evaluation. In the final rule, DHS clarifies it will accept information submitted via forms it is already gathering as a part of the admission, citizenship, or naturalization process. The standard medical report and vaccination record will be considered as evidence for the health factor. This report captures information on a non-citizens chronic health conditions and/or disabilities and will be used by DHS agents in the “totality of the circumstances” analysis. DHS will work with HHS on guidance to agents to ensure disability competency when evaluating medical conditions or disabilities that appear on the medical report.
What does this mean for immigrant communities moving forward?
Non-citizens should apply for and use the public benefits to which they are entitled, with the understanding that:
- Long-term institutionalization paid for by Medicaid (or another public source) or cash benefits like SSI or TANF may, but will not necessarily, adversely affect immigration decisions under the public charge rule.
- Using other services – such as Medicaid HCBS, services provided through ACL’s programs, or the Supplemental Nutrition Assistance Program (SNAP) – will not affect immigration decisions under the public charge rule.
The final rule will be effective on December 23, 2022, and will be published in the Federal Register on September 9, 2022.
Release from the U.S. Department of Health and Human Services: New Rule Makes Clear that Noncitizens Who Receive Health or Other Benefits to which they are Entitled Will Not Suffer Harmful Immigration