On February 17, 2022, the Department of Homeland Security (DHS) released a proposed rule that will do away with aspects of former President Trump’s immigration policy. DHS’s proposed policy will return the agency to its long-standing method of determining if immigrants who have relied on certain public benefits can receive U.S. visas or green cards.
The proposed rule focuses on a provision in U.S. immigration law that prevents people from receiving green cards and certain visas if they are deemed a “public charge,” which is a noncitizen who is or is likely to become “primarily dependent on the government for subsistence” through either cash assistance benefits or being hospitalized for long-term care, both at the government’s expense.
For decades, both DHS and the Department of State (DOS) applied the same guidance regarding public charge decisions. The previous guidance used by the two agencies limited public charge findings to cases in which applicants would receive cash assistance for income maintenance, such as Temporary Assistance for Needy Families, or long-term care from the government, usually for senior petitioners. The newly proposed rule from DHS looks similar to this long-standing guidance and eliminates the public charge rule proposed by the Trump administration in 2019.
The Trump administration dramatically departed from the long-standing definition of a public charge, expanding the definition to include a broader range of commonly used government benefits, including, Supplemental Nutrition Assistance Program (SNAP), housing and rental assistance, and non-emergency Medicaid benefits.
Under the Trump administration’s definition of public charge, applicants who received one or more of any of the prohibited benefits for more than 12 months within any 36-month period would be denied. If a person received two benefits in one month, it counted as two months.
In March 2021, The Biden administration formally withdrew the Trump administration’s public charge , while the the Department of Justice announced it would no longer defend the 2019 rule in the courts. Since the repeal of the 2019 rule, both DHS and DOS have gone back to using the 1999 Guidance on Public Charge. The new rule DHS proposed defines the term “likely at any time to become a public charge,” and also specifies the types of public benefits that would be considered in a public charge decision.
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