Trump Administration Issues Final Rule on Inadmissibility on Public Charge Grounds - McDermott+Consulting

Trump Administration Issues Final Rule on Inadmissibility on Public Charge Grounds

On August 12, 2019 the Trump Administration issued a final rule on the inadmissibility on public charge grounds.

On August 12, 2019, the Trump Administration issued the Inadmissibility on Public Charge Grounds final rule. This rule changes how the Department of Homeland Security (DHS) interprets and implements the public charge ground of inadmissibility into the country, thus making it harder for immigrants who rely on public benefits to receive visas or green cards. Specifically, the rule revises how DHS interprets and defines “public charge” and “public benefit.”

The rule defines “public charge” as an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). This rule defines the term “public benefit” to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. (The rule also contains a list of negative and positive factors that DHS will consider as part of this determination of admissibility, which include age, assets, and employment history/prospect.) An immigrant who meets these terms may be determined inadmissible.

The rule has exemptions for certain immigrants and public benefits. DSH does not consider the receipt of public benefits by certain aliens who, at the time of receipt, filing, or adjudication, are enlisted in the U.S. Armed Forces, serving in active duty or in the Ready Reserve, or if received by such an individual’s spouse or children. DHS also does not consider emergency Medicaid or Medicaid received for services provided under the Individuals with Disabilities Education Act (IDEA), and does not consider any school-based benefits provided to individuals who are at or below the maximum eligible age for secondary education, as determined under State law. Additionally, receiving Medicaid will not be considered a factor for noncitizens under the age of 21 and pregnant women during pregnancy and during the 60-day period after pregnancy. Receiving Medicare Part D Low Income Subsidy (LIS) will also be exempted. Children eligible for acquisition of citizenship will also be exempted. (Of note, Congress has previously exempted certain categories of immigrants, such as asylum seekers and refugees, from the public charge ground of inadmissibility. These groups continue to be exempted under the final rule.)

The administration received over 200,000 comments in response to the proposed rule and noted that most of the comments were in opposition. The rule will be effective 60 days after official publication on the federal register, but will likely garner legal challenges.

For more information, please contact Katie Waldo.