Homeland Security Announces New Proposed Immigration Rule

Posted on October 9, 2018 by Jodi Boyne

The Trump Administration is considering ways to strengthen enforcement of rules that require immigrants to demonstrate that they will not take advantage of public assistance programs after entering the United States. 

The U.S. Department of Homeland Security (DHS) posted an advance copy of the Notice of Proposed Rulemaking related to the public charge ground of inadmissibility for immigrants to enter the United States. The release of the advance copy is preliminary to the publication of a proposed rule. Once the proposed rule is published in the Federal Register, the public will have 60 days to comment on it. 

The proposed rule would deny entry to individuals seeking admission to the United States or adjustment of their immigration status if there is any likelihood that an individual will become a public charge at any time in the future. Public charge under the 1999 guidance means “an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” 

The proposed rulemaking would expand the sources of aide that would be considered as disqualifying to include cash assistance for income maintenance, Medicaid (with limited exceptions for Medicaid benefits paid for an emergency medical condition, and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program, any benefit provided for institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing.  

Inadmissibility is determined by looking at the mandatory factors set forth in INA section 212(a)(4) include: Age, Health, Family Status, Assets, Resources, and Financial Status, and Education and Skills. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is likely at any time in the future to become a public charge.

This 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. Additionally, the 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 alien service members of the U.S. Armed Forces.

LeadingAge is closely following the potential impact of this policy and will solicit input on it from members once this proposed rule is formally released.