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  • Washington Highlights

    Public Charge Proposed Rule Issued


    Ivy Baer, Senior Director and Regulatory Counsel

    The Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM or proposed rule) for Public Charge Ground of Inadmissibility on Feb. 24. The proposed rule establishes the criteria by which the DHS will determine whether a noncitizen can be admitted to the United States and whether a noncitizen who is legally in the country should be able to change their immigration status to become a permanent resident.

    Unlike the rule finalized by the previous administration, the NPRM proposes a narrow view of the criteria to be considered when determining noncitizens who are considered likely to become a public charge. Public comments on the proposed rule are due by April 25. 

    The rule finalized by the previous administration required the consideration of use of public benefits to which certain noncitizens were legally entitled, such as health care and food stamps, to determine if an individual is considered likely to become a public charge. It had a chilling effect on members of immigrant communities who no longer sought the services to which they or family members were legally entitled for fear of being deported. The AAMC submitted a comment letter in October 2021 in response to the rule proposed by the DHS that urged the department to not consider in the definition of “public charge” any past or current lawful use of public benefits [refer to Washington Highlights, Oct. 22, 2021]. The U.S. Citizenship and Immigration Service announced in March 2021 that it would no longer apply the rule.

    The current NPRM is consistent with long-standing agency policy. It proposes that the following public benefits would be considered:

    • Supplemental Security Income.
    • Cash assistance for maintenance under the Temporary Assistance for Needy Families program.
    • State, tribal, territorial, and local cash assistance for income maintenance.
    • Long-term institutionalization at government expense.

    The NPRM proposes that among the noncash benefits that would not be considered are food and nutrition assistance programs, including the Supplemental Nutrition Assistance Program, the Children’s Health Insurance Program, most other Medicaid benefits, housing benefits, and transportation vouchers.