August 13, 2019

The Department of Homeland Security (DHS) on Monday released a final rule that will allow federal officials to consider whether immigrants are receiving or are likely to receive Medicaid or other public benefits when reviewing their residency applications.

Final rule details

The 837-page final rule will tighten regulations under the Immigration and Nationality Act, which lays out the factors immigration officials can consider when determining an applicant's inadmissibility on the grounds that he or she is likely to become a so-called "public charge." For example, under current regulations, immigration officials can consider whether a family receives Medicaid long-term-care benefits when evaluating applications for non-citizens to become permanent U.S. residents or legally enter the United States.

But the final rule, which is scheduled to take effect on Oct. 15, will broaden the criteria immigration officials can take into account when considering whether an immigrant is likely to become a public charge while reviewing his or her immigration status or application for permanent residency. Under the final rule, officials will be able to consider whether immigrants receive:

  • Housing assistance;
  • Medicaid—with a few exceptions for pregnant women, new mothers, children, and adults under age 21, as well as whether the individual is receiving Medicaid benefits to cover an "emergency medical condition" or disability services related to education;
  • Supplemental Nutrition Assistance Program benefits, which often are referred to as "food stamps"; and
  • Welfare;

However, officials did not finalize a proposal to add low-income subsidies under Medicare Part D, Medicare's prescription drug program, to the list of benefits officials are able to consider when reviewing immigration statuses. DHS in the rule said it dropped the proposal after it "determined that Medicare Part D benefits, including [the low-income subsidies], are earned by working or being credited with 40 qualifying quarters of work and establishing eligibility for Medicare."

Officials under the final rule will be able to deem an individual as a public charge if he or she receives one of the qualifying public benefits for 12 months or more in a 36-month period. Officials will calculate an individual's public benefit usage in aggregate, meaning an individual who receives two separate public benefits in one month will be counted as receiving two months' worth of benefits.

DHS under the final rule would consider current and past recipients of designated public benefits above a specific threshold as a heavily weighed negative factor when reviewing immigration applications. The final rule states that immigrants who are not citizens or legal residents and who receive or are likely to receive designated public benefits above a specific threshold generally will be ineligible for a change of their status or an extension of stay.

The final rule will apply to non-citizens and legal residents seeking to bring family into the United States, as well as to individuals with legal status under the Deferred Action for Childhood Arrivals program. The final rule will not apply to individuals granted political asylum or refugee status, or to the parents or families of children with U.S. citizenship.

Federal officials estimate that, under the final rule, the federal government could immediately review the immigration statuses of 382,000 non-citizens. Officials also estimate that the final rule will save $2.47 billion annually in government spending on public health benefits.

Comments

Ken Cuccinelli, acting director of the U.S. Citizenship and Immigration Services, said the proposed rule will promote "self-sufficiency and personal responsibility." He said, "Throughout our history, self-sufficiency has been a core tenet of the American dream. Self-reliance, industriousness, and perseverance laid the foundation of our nation and have defined generations of hardworking immigrants seeking opportunity in the United States ever since." Cuccinelli continued, "Through the enforcement of the public charge inadmissibility law, we will promote these long-standing ideals, and immigrant success."

The Heritage Foundation and other conservative groups have said the final rule will limit the number of non-citizens who enter the United States, rely on public benefits, and strain public resources.

But health care leaders and advocates have said the final rule could discourage legal immigrant families from enrolling in Medicaid and other federal assistance programs, which could have a substantial effect on their health.

Julie Linton, a doctor with the American Academy of Pediatrics, said, "The public charge rule presents immigrant families with an impossible choice. Keep one's family healthy and risk family separation, or forgo vital services, like preventive care and food assistance, so that the family can remain together in this country. Of course, this is not a choice at all."

Marielena Hincapié, executive director of the National Immigration Law Center (NILC), said the final rule "will have a dire humanitarian impact, forcing some families to forego critical life-saving health care and nutrition." She added, "The damage will be felt for decades to come."

NILC said it will take legal action to prevent the rule from taking effect.

California Gov. Gavin Newsom (D) said, "This is a reckless policy that targets the health and well-being of immigrant families and communities of color, with widespread implications for [California's] health care, housing, and affordability." Newsom said the state is "actively reviewing the details to determine next steps," and California Attorney General (AG) Xavier Becerra (D) in a statement vowed to sue the administration over the rule.

New York AG Letitia James (D) in a statement also said her office will file a lawsuit against the administration over the final rule. "Under this rule, children will go hungry; families will go without medical care. I am committed to defending all of New York's communities, which is why I intend to sue the … administration over this egregious rule," she said  (Budryk, The Hill, 8/12; Trotta/Rosenberg, Reuters, 8/12; Hesson, Politico, 8/12; Misra, Roll Call, 8/12; Kight, Axios, 8/12; Rappleye, Becker's Hospital Review, 8/12).

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