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New ‘Public Charge’ Regulation Finalized By the DHS Adds Security But It’s Not Enough

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Public charge and other wealth test mechanisms in public policy are rooted in anti-Blackness and white supremacy. The existence of any form of a public charge rule keeps the possibility of harm to Black and Brown communities open.

The Trump administration changed the public charge policy in 2019, putting immigrant families’ immigration applications at risk by ruling that if lawfully-present immigrants used specific government programs for health care (Medicaid), food (the Supplemental Nutrition Assistance Program), and housing (“Section 8”), their immigration application will be ruled inadmissible under the public charge ground. This concern and fear drove away many immigrant families from using government programs and intensified racial health inequality during the pandemic.

A new “public charge” regulation finalized by the U.S. Department of Homeland Security (DHS) adds critical protections to secure immigrant families’ access to the health and social services safety net but is not enough. 

​In compliance with this regulation, DHS is no longer applying the 2019 public charge rule and has removed it from the Code of Federal Regulations. DHS has instead reverted to the 1999 interim field guidance issued by the former Immigration and Naturalization Service. This is the policy that was in effect prior to the 2019 Rule. The existence of such cruel and harmful policies including any form of a public charge rule keeps the Black and Brown communities open to harm and discriminated against.

Public charge considers if a person applying for a green card could be primarily dependent on the government for support in the future. Immigration officials review all of a person’s circumstances and may consider whether a person has been primarily dependent on two specific types of benefits in the past. If immigration officials determine a person is likely to depend on the government for subsistence in the future, they can deny that person permission to come to the U.S. or deny their green card application. 

The new regulation 

  • Confirms that eligible immigrant families can use safety net programs without immigration concerns
  • Makes it harder for future presidents to radically change public charge policy or from attacks from anti-immigrant politicians through partisan litigation, but there are solid grounds for a court to uphold the rule, and
  • Clarifies that:
    • A child’s or other family member’s use of federal safety net programs never affects the applicant’s immigration application
    • Medicaid is safe for eligible immigrant families to use for any other health care need besides long-term institutional care
    • SNAP, WIC, the Child Tax Credit, Section 8, and other “non-cash” federal programs (and state- and locally funded versions of those programs) never affect immigration applications

However, the new regulations still allow SSI, TANF and long-term Medicaid care in an institution to be considered in a public charge determination. 

The new regulation will also accelerate COVID-19 recovery 

  • Experts continue to cite the Trump public charge policy’s chilling effect as a persistent threat to health and economic resilience since the pandemic began
  • And as a reason, COVID-19 widened racial inequities, with immigrants accounting for large shares of the country’s Black, Latino, and AAPI populations
  • Research released in December found that about half (46%) of immigrant families who needed help during the pandemic declined to apply because of immigration concerns
  • There are solid grounds for a court to uphold the rule if/when it is challenged.
    • The Biden administration took the proper notice and comment steps in issuing the final rule.
    • The policy is consistent with the field guidance that was in effect for 20 years.  And the field guidance itself is based on a century of policy and practice that preceded it.

The UndocuBlack Network believes that all immigrant families must be protectedSince the Trump administration proposed its public charge policy, misinformation and the potential of scammers taking advantage of our communities have been a concern.  

Call to Action: You can protect immigrant families and support COVID-19 recovery by sharing accurate baseline information below. 

The Trump public charge policy is long gone. 

Eligible immigrant families can use most healthcare and social service programs with no public charge consequences and by pushing the Biden Administration and elected officials in your community to lead the community engagement effort. 

Follow us on our socials for more information and updates via our social media handles @UndocuBlackNetwork

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