The Proposed “Public Charge” Rule

Copyright 2022, by Farhad Sethna, Attorney, and Paul O’Brien, Law Clerk, the Law Offices of Farhad Sethna

On April 12, 2021, the U.S. Citizenship and Immigration Services announced that the 2019 “Public Charge Final Rule”, which was enacted under the Trump administration, would no longer be in effect.  Given the anti-immigrant tenor of the Trump Administration, the Rule severely restricted immigration on the likelihood of an alien becoming a “public charge” (needing government assistance for food, housing, medical care, etc.)  The Trump-era regulation was enjoined (stopped) by a court, and then after the elections, and a change in administration, the Department of Homeland Security prepared and published a new rule.  The DHS has solicited feedback on preparing this new regulation.  In the interim, the DHS continued to apply the 1999 interim field guidance.

Why is this important?  Because if an immigrant is deemed to be a “public charge”, the immigrant will NOT be permitted to immigrate to the USA.  Potentially, the immigrant could also face removal if he or she becomes a public charge after admission to the USA.

The major changes between the 2019 Public Charge Final Rule and the proposed regulation arise from a change in what degree of dependence on the government is required to render a person inadmissible due to likelihood of becoming a public charge.  The 2019 rule expanded reliance on government support to include assistance with certain needs such as food, healthcare, housing, and disaster relief.  The proposed new regulation would reverse the inclusion of those benefits and would base the public charge determination on whether a person received cash assistance for income maintenance or long-term institutionalization at government expense.

So – which government benefits will trigger a “public charge” determination, and which are “safe” to apply for and receive?

Using these benefits would subject an immigrant to a “public charge” inadmissibility:

  • Supplemental Security Income (SSI)
  • Cash Assistance under Temporary Assistance for Needy Families (TANF)
  • State and local cash assistance for income maintenance
  • Long-term institutionalization funded by the government

Using these benefits (under the proposed rule, which has NOT yet become final) would NOT subject the immigrant to the “public charge” inadmissibility:

  • The Children’s Health Insurance Program
  • Nutrition programs (such as SNAP and WIC)
  • Housing benefits
  • Childcare services
  • Emergency disaster relief
  • Educational assistance benefits
  • Pandemic assistance
  • Benefits received via a tax credit or deduction.

Please note – eligibility for many of these benefits, is determined by the individual states, NOT the federal government.  The proposed DHS “public charge” rule ONLY pertains to which benefits are considered as indicia of an immigrant becoming a public charge, and which benefits are not.  The “Public Charge” rule is NOT a basis for claiming eligibility for government benefits.

 

Please stay tuned to this Blog for further updates on this very important topic!

 

For a list of all the proposed changes, or to read the proposed rule, the proposed rule can be found at: https://www.dhs.gov/sites/default/files/2022-02/22_0217_nprm-public-charge_0.pdf

 

© Farhad Sethna, Attorney, 2022

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

Paul O’Brien is a second year law student at the University of Akron, where during his studies he developed a strong interest in immigration law.  In addition to his studies and working as a law clerk for Attorney Farhad Sethna, he volunteers for both The Cleveland Legal Aid Society and the University of Akron re-entry clinic.