In a Nov. 17 proposed rule, the Department of Homeland Security (DHS) proposed to rescind the Biden administration’s “Public Charge Ground of Inadmissibility” final rule, which took effect on Dec. 23, 2022 [refer to Washington Highlights, Sept. 16, 2022]. In reviewing applications for admission to the United States or for adjustment of status (obtaining lawful permanent residency), immigration officers assess whether an individual is likely to become a “public charge” — that is, primarily dependent on the government for subsistence. The 2022 rule, which the AAMC supported, restricted the types of public benefits that may be considered when determining whether an individual is or is likely to become a “public charge” to cash benefits and Medicaid long-term care [refer to Washington Highlights, April 29, 2022]. In 2019, the Trump administration had finalized a rule that expanded the list of public benefits that can be considered when making public charge determinations to include: Medicaid (excluding emergency Medicaid), nutritional benefits, and housing assistance, which were previously excluded from these types of determinations [refer to Washington Highlights, Aug. 14, 2019].
While the new proposed rule does not outline an explicit new framework for evaluating whether an applicant for immigration benefits is likely to become a public charge, it noted that the DHS will be providing more guidance through “policy and interpretive tools.” Once the 2022 rule is formally rescinded through a final rule, the DHS could issue additional instructions on the new public charge definition to immigration officers through subregulatory guidance instead of formal rulemaking. The proposed rule signals an expansion of the public charge definition in key respects, including consideration of an individual’s receipt of “any means-tested public benefit,” instead of the limited categories of cash assistance and institutionalization for long-term care under Medicaid.
Comments on the proposed rule are due Dec. 19.