DHS finalizes rule reshaping eligibility for federal assistance

Key Takeaways

On August 12, the U.S. Department of Homeland Security (DHS) announced its final rule reshaping how the federal government determines whether an individual qualifies as a “public charge” – a term used by federal immigration authorities to determine whether an individual seeking immigration status is likely to become primarily dependent on the federal government. Finalization of the rule follows DHS’ notice of proposed rulemaking (NPRM) in September 2018 and consideration of public comments on the proposal.

As published, the new regulation widens the scope of both programs and factors that federal immigration authorities may consider when determining if an individual qualifies as a public charge. This includes individuals already in the country seeking permanent legal residency or visa extensions, as well as those seeking entry into the country. According to the text of the final rule, determination of an individual’s likelihood of becoming a public charge would be considered a factor in whether he or she is eligible for permanent residency in the United States.

Under the existing federal policy established in 1996, an individual is deemed a public charge if they access government benefits that provide cash assistance – such as the Temporary Assistance for Needy Families (TANF) program or Supplemental Security Income (SSI) – or receive government-funded long-term institutional health care. The new regulation, which will take effect in 60 days, will expand the list of programs to include Supplemental Nutrition Assistance Program (SNAP) benefits, non-emergency Medicaid, and housing and rental assistance.

The regulation will not consider enrollment in the Children’s Health Insurance Program (CHIP) toward a public charge determination. The draft published this fall asked whether CHIP, which provides low-cost coverage to families, should be included in the list of benefits. In addition, the use of Medicaid by children, pregnant women and new mothers during the 60-day period after giving birth will not lead to being labeled a public charge. Finally, the rule also dropped a prescription drug subsidy program, known as Medicare Part D, from a list of restricted programs.

The final rule also establishes new indicators for immigration officials to consider when evaluating if an individual is likely to become a public charge at any point in the future. These include whether they are currently enrolled in public benefits, whether they are younger than 18 or older than 61 years of age and whether they have private health insurance, among multiple other factors.

As administrators of numerous federal benefits programs and as front-line providers of our residents’ health and safety, counties could be impacted by the changes to the public charge definition. Possible impacts include increased usage of local safety-net services and new administrative demands and costs for complying with federal guidelines. NACo will remain engaged with our federal partners to ensure counties have the resources to serve our local residents.

For more resources on immigration and the public charge rule, please see the following links:

• U.S. Department of Homeland Security: Inadmissibility on Public Charge Grounds
• NACo Comments on the Proposed Public Charge Rule
• NACo Regulatory Analysis of the DHS Proposed Rule on "Public Charge"
• NACo Immigration Reform Task Force Landing Page
• NACo Policy on Immigration