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Shelley Starkey

DHS Publishes Harmful Public Charge Final Rule

August 15, 2019 | Medicaid | Comments
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The Trump administration on Wednesday officially published a final rule from the Department of Homeland Security (DHS) that greatly expands the definition of “public charge” when considering immigrants’ applications to enter or become permanent residents of the United States. This rule has already had a chilling effect on lawfully present immigrants utilizing public assistance programs for which they are eligible, including Medicaid, for fear of being denied the chance to stay in the United States. The National Council stands strongly opposed to this rule, which will result in significant harm to the health and welfare of immigrant families.


Immigrants in certain situations are subject to a test when they enter the U.S. to determine if they will become a “public charge,” someone who is considered likely to become dependent on the government in the future, which weighs against their eligibility. Specifically, individuals who are applying for a visa to enter the U.S., individuals applying for a green card that would grant them permanent residency, and anyone who has received either of these permissions that left the country for over six months and is attempting to return are subject to the public charge determination. Previously, the only public assistance programs that were included in this determination were specific cash benefits like Temporary Assistance for Needy Families (TANF) and any long-term institutionalization at the government’s expense.

The finalized rule expands the definition of a public charge and the programs that are considered during this determination to include the following provisions and technical details, which will take effect on October 15, 2019:

  • Expanded definition of a “public charge”: The new definition included in the DHS rule is “a person who receives one or more public benefit for more than 12 months in the aggregate within any 36-month period.” For example, someone who is receiving assistance from two public programs, like the Supplemental Nutrition Assistance Program (SNAP, commonly known as food stamps) and health coverage through Medicaid, will meet this definition after only 6 months. A person who is receiving assistance from three programs, like SNAP, Medicaid, and housing supports, will meet this definition after only 4 months.
  • Other circumstances considered: In the new public charge determination test, income and financial status, age, education and skills, health status, and family status strongly weigh in favor of or against applicants. For example, those with incomes under 125% of the federal poverty line (about $32,000 per year for a family of four), or with medical conditions that are likely to require extensive treatment or institutionalization will have a much harder time being approved for a visa or green card.
  • Public benefit programs included: The new rule expands the public assistance programs that are used to determine whether someone will become a public charge to include SNAP, housing assistance, and Medicaid (with exceptions for emergency medical conditions, and coverage of children under age 21 and pregnant women).
  • Changes not retroactive: The finalized rule is scheduled to take effect on October 15, 2019. Public benefits received before this date will not be considered in one’s public charge determination.

It is important to note that the public charge test does not apply to all immigrants or all situations, and groups excluded from these requirements include lawful permanent residents applying for citizenship, refugees, asylees, survivors of domestic violence, trafficking, or other serious crimes, and more. The rule also does not apply to undocumented immigrants as they are ineligible to receive public benefits. Additionally, some public programs like the Women, Infants and Children (WIC) nutrition program and the Children’s Health Insurance Program (CHIP) are excluded from public charge determinations. Every situation is different and not everyone is impacted by these changes. To learn more about how this impacts you and your community specifically or what you can do to combat the harmful effects of this policy, visit the Protecting Immigrant Families website for countless resources.


The finalized rule has wide-ranging detrimental implications, all of which will negatively impact the health and well-being of immigrant families by limiting their access to critical support to which they are legally entitled. With much confusion and misinformation surrounding the public charge changes, the chilling effect has extended to programs and populations that are not directly impacted by the rule. Families with mixed immigration status may avoid applying for programs to support their basic needs for fear of impacting their or their family members’ ability to remain in the U.S. regardless if this is a reality reflected in the rule change. More families will be exposed to toxic stress, which has been shown to negatively impact individual’s long-term physical and mental health. This exposure will be especially hard on children, who are particularly vulnerable to toxic stress, and who will suffer if their families cannot access needed health care (including mental health and addiction treatment), when they do not have enough food to eat or a roof over their heads.

 Over a quarter of a million individuals and organizations, including the National Council and our members, submitted comments to DHS when the rule was originally proposed in October, 2018. Although the rule is final, the fight is not over. Santa Clara County and the city and county of San Francisco filed a federal lawsuit earlier this week against the final rule, and other groups are planning litigation. These legal challenges may have the chance to delay or overturn the rule depending on the judges’ determinations.

Stay tuned to Capitol Connector for updates on the public charge issue and ways to get involved in the coming weeks and months.