ON March 9, 2021, DHS Sec. Alejandro Mayorkas announced that the U.S. government will no longer defend the Trump administration’s 2019 public charge rule, as doing so “is neither in the public interest nor an efficient use of limited government resources.” The Biden administration believes that the 2019 public charge rule was not in keeping with our nation’s values. “It penalizes those who access health benefits and other governmental services available to them.” As a result, DHS will go back to following the 1999 field guidance on public charge, which was the guidance in place before Trump’s stricter 2019 public charge rule.
Under the 1999 public charge guidance, DHS will not consider a person’s receipt of Medicaid or Medi-Cal (except for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination. Also, medical treatment or preventative services for COVID-19, including vaccines, will not be considered for public charge purposes. In addition, Form I-944 (Declaration of Self-Sufficiency) should no longer be submitted with adjustment applications. If you already submitted it, USCIS will not consider the information on that form.
By way of background, in 2019, the Trump administration attempted to implement new guidance in connection with evaluating whether a person was likely to become a “public charge,” or rely on public assistance. The focus was to have a person demonstrate that, if given a green card, they would be self-sufficient or rely on their family for support, and would not apply for or receive public assistance.
There were several court challenges to these 2019 public charge proposals, and injunctions were issued. The Trump administration then appealed. But the Biden administration has announced it is dropping all of those appeals and will go back to relying on the 1999 public charge analysis.
Under the 1999 field guidance, “public charge” means an alien who has become or who is likely to become “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. (Institutionalization for short periods of rehabilitation would not constitute such primary dependence.)
Under the 1999 field guidance, the benefits that may be considered for public charge purposes include:
1. Supplemental Security Income (SSI)
2. Temporary Assistance for Needy Families (TANF)
3. State and local cash assistance programs that provide benefits for income maintenance
4. Programs (including Medicaid and Medi-Cal) supporting aliens who are institutionalized for long-term care.
However, past or current receipt of such cash benefits does not necessarily lead to a determination that the person will be a public charge.
Several benefits would not be considered for public charge purposes, such as:
1. Non-cash benefits
2. Medicaid or Medi-Cal, other than for long term institutional care
3. Children’s Health Insurance Program (CHIP)
4. Nutrition programs, including food stamps
5. Housing benefits
6. Childcare services
7. Emergency disaster relief.
It is great news the Biden administration is going back to the 1999 public charge standards, as it will help remove some of the fear and uncertainty we were all experiencing with Trump’s proposed 2019 guidance.
We will continue to keep you informed on other immigration news and developments which we hope you, or someone you know, may find helpful to your case. If you have concerns over whether you may have public charge issues with your case, I advise you to consult with an attorney for advice and guidance.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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