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�Public Charge

Gabrielle Lessard, Lessard@nilc.org

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National Immigration Law Center (NILC)

Our mission: to defend & advance the rights and opportunities of low-income immigrants and their family members.

Strategies: Policy analysis and advocacy, impact litigation, strategic communications

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Public Health Emergency (PHE)

There is a risk that many people will lose Medicaid when the current public health emergency (PHE) ends

Background:

The Public Health Service Act gives the Secretary of Health and Human Services (HHS) the authority to declare PHE a when a severe disease or disorder has become, or threatens to become, a significant threat to citizens.

The existence of a PHE unlocks resources and flexibility for HHS

Secretary Azar declared a public health emergency related to COVID-19 on January 31, 2020

The PHE has been extended multiple times

HHS has committed to giving states 60 days notice before it ends the PHE

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PHE: Effect on Medicaid

The Families First Corona Virus Relief Act (March 2020) gave states a temporary increase in their Medicaid Federal Medical Assistance Percentage (FMAP) of 6.2 percentage points for the duration of the PHE
To qualify for the additional FMAP, states had to maintain individuals’ enrollment in Medicaid until the end of the PHE

This “maintenance of effort” requirement applied even if the person was no longer eligible

When the PHE ends, states have 12 months to begin, and 14 months to complete, eligibility redeterminations for their Medicaid caseloads
People who don’t complete the redetermination will lose coverage
Your help is needed to inform patients – especially people who moved during the pandemic!

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Public charge

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Public Charge: Background

A Public Charge is a person dependent on the government for financial and material support
The likelihood that a person will become a public charge is assessed:

when they apply to enter the US (get a visa) and
when they apply to become a lawful permanent resident (LPR/green card)

There is no public charge test when a LPR applies to become a naturalized citizen

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Public Charge: Exemptions

Public charge primarily effects family-based immigrants
Many categories of immigrants are exempt from public charge, including:

Refugees
Persons granted asylum
Certain survivors of serious crimes, including human trafficking and domestic violence
People applying or registering for Temporary Protected Status
Cuban/Haitian entrants applying for adjustment of status under the Cuban Adjustment Act or the Haitian Refugee Immigration Fairness Act
People granted Special Immigrant Juvenile Status

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Brief History

Public charge has been part of federal immigration law since 1882.
In 1999, the Immigration and Naturalization Service (INS) published ‘Interim Field Guidance’ on public charge in response to a chilling effect caused by changes to public benefits and immigration laws in 1996.

The 1999 Guidance is the current public charge policy

In 2018, The Department of Homeland Security (DHS) published proposed regulations that expanded the meaning and application of public charge.
The regulations were finalized in 2019 and numerous legal challenges followed.
DHS withdrew the 2019 regulations effective March 9, 2021

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Current status: DHS regulations

DHS Published an Advance Notice of Rulemaking in August 2021 and a

Notice of Proposed Rulemaking (NPRM) on February 24^th

The Administrative Procedure Act (APA) required DHS to accept comments on the proposed rule

The comment period ended April 25^th.Only 223 comments were received.
The APA requires DHS to review and respond to the comments. The responses will be published as a preamble to the final rule.

Once the final rule is published, its implementation may be delayed by litigation.
The 1999 Guidance will remain in effect until the final rule is implemented.

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1999 Field Guidance

Definition: primarily dependent on the government for subsistence, as demonstrated by either:

(i) the receipt of public cash assistance for income maintenance or

(ii) institutionalization for long-term care at government expense

Not included:

Cash assistance provided for a specific purpose like eviction relief
Institutionalization for short periods for rehabilitation
Non-cash benefits other than long term care (food, housing, most medical care)

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2022 NPRM

Definition: likely at any time to become primarily dependent on the government for subsistence as demonstrated by either the receipt of:

public cash assistance for income maintenance, or
long-term institutionalization at government expense

Cash assistance for income maintenance: Includes SSI, TANF, state/local programs

Does not include special purpose cash and earned assistance like unemployment

Long-term institutionalization: includes nursing home or mental health institution

Does not include short-term institutionalization for rehabilitation purposes, HCBS

Other benefits are not included: Food, housing, most medical

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2022 NPRM - Exemptions

Categories of immigrants exempt from public charge

Refugees, people granted asylum, VAWA self-petitioners, many more

Benefits received while in an exempt category are not considered
Benefits received while eligible for refugee resettlement assistance are not considered
Only benefits for which the immigrant is the beneficiary count

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2022 NPRM – Totality of Circumstances

At minimum, DHS will consider:

Age
Health
Family status
Assets, resources and financial status
Education and skills

Where an Affidavit of Support is required, DHS will consider it favorably

Any denial on public charge grounds must be in writing and address the adjudicator’s reasoning
A finding that a person has a disability is not, on its own, a reason to consider them likely to become a public charge

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Resources

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