DHS Announces New Proposed Immigration Rule

Posted on October 23, 2018 by Jodi Boyne

The U.S. Department of Homeland Security (DHS) officially published proposed changes to the public charge rule. The changes would deny entry to individuals seeking admission to the United States or adjusting their immigration status to become a permanent resident if there is any likelihood that the individual will become a public charge at any time in the future. Public comments are due by Dec. 10. 

A public charge is defined as “an alien who receives one or more public benefits.” Factors considered to make the determination for entry and/or adjustment of status are: age; health; family status; assets, resources, and financial status; and education and skills.

The proposed rule adopts new income thresholds for households seeking to overcome a public charge test by weighing as heavily positive a household income of 250 percent of the Federal Poverty Level. To reach that threshold, a family of four would need to earn nearly $63,000 annually.

Under the current policy, the only benefits considered in determining who is likely to become a public charge are:

• Cash assistance such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) and comparable state or local programs.
• Government-funded long-term institutional care.

The new proposed rule expands the types of benefits that could be considered to include:

• Medicaid (with limited exceptions including Medicaid coverage of an "emergency medical condition," and certain disability services related to education);
• Supplemental Nutrition Assistance Program (SNAP);
• Medicare Part D Low Income Subsidy (assistance in purchasing medicine); and
• Federal Public Housing, Section 8 housing vouchers and Section 8 Project Based rental assistance.

This rule is not retroactive, meaning that benefits other than cash or long-term care at government expense that are used before the rule is final and effective will not be considered in the public charge determination.

The rule would not impact groups of foreign-born people that Congress specifically exempted from the public charge ground of inadmissibility, such as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles. The rule also rule excludes consideration of benefits received by U.S. citizen children of immigrants who will acquire citizenship under either section 320 or 322 of the INA, and by immigrant service members of the U.S. Armed Forces.

LeadingAge will submit comments on behalf of our members. Send your comments, including the potential impact of this policy on your operations, to eabbasi@leadingAge.org by Nov. 20.