Public Charge: 2022 Edition

By: Susan Welber, The Legal Aid Society*

While some states are still trying to revive the Trump Administration’s harmful public charge rule, the Biden Administration is moving forward with promulgating a new rule that is consistent with prior policy. Learn about the past and present of public charge and the steps you can take to promote economic and racial justice in immigrant communities when it comes to public charge into the future. 

First, some background. As many readers know, in 2019 the Trump Administration’s Department of Homeland Security issued a final public charge rule purporting to expand the application of the public charge ground of inadmissibility in historically unprecedented ways. Among other things, the Trump rule included many new types of public benefits in determining who is or is likely to be a public charge; imposed a wealth test on intending immigrants; targeted Black and Brown immigrants from Central America and the Caribbean for exclusion; and discriminated against people with disabilities. The Trump DHS predicted that its rule would cause a massive “chilling effect” among immigrants, deterring immigrant families from using a broad range of government benefits and services that they are eligible for, in many cases, despite the fact that the affected families are not subject to a public charge determination. The data collected on the impact of the Trump public charge rule bore out the administration’s predictions. The rule deterred many immigrants from seeking benefits despite the urgent need created by the public health and economic crisis ushered in by the COVID-19 pandemic.

About a year ago, on March 9, 2021, the U.S. Supreme Court dismissed the U.S. Department of Homeland Security’s (DHS) appeal of a Second Circuit decision affirming two identical preliminary injunctions designed to prevent the Trump Administration’s 2019 DHS public charge rule from going into effect. See New York v. Dept. of Homeland Sec., 969 F.3d 42 (2d Cir. 2020). As a result of the dismissal at the Supreme Court, earlier Supreme Court stays pending appeal came to an end, and a final judgment vacating the Trump public charge rule secured in the Northern District of Illinois came into effect. Almost immediately thereafter, the Biden Administration DHS removed the Trump era rule from the Code of Federal Regulations, and reinstituted the status quo ante, the 1999 Field Guidance, which had governed public charge determinations made by DHS from 1999 until February 24, 2020, when the Trump rule was first permitted to take effect. Nonetheless, litigation concerning the Trump rule continues.

Where Are We Now?

The 1999 INS Field Guidance continues to be in effect now. But despite our victories in the courts, and the Biden Administration’s adherence to them, the Trump-era public charge rule continues to cast a shadow over us in 2022 in several significant ways.

First, a group of states led by Arizona have been seeking to intervene in the successful Ninth Circuit and Seventh Circuit cases against the Trump era rule. In the Ninth Circuit, the lower courts denied intervention, but the U.S. Supreme Court heard the appellants’ case for intervention in February 2022. If the appellant states prevail, they would be permitted to intervene in the Ninth Circuit case against the Trump-era public charge rule. The states’ arguments for intervention in the Seventh Circuit are still be being litigated. A hearing on the states’ appeal is scheduled for April 13. The Supreme Court’s decision on the Ninth Circuit intervention is expected by the end of June.  

Second, the Biden Administration’s DHS is in the process of formal rulemaking that would result in a new public charge rule. On February 24, 2022, the Biden DHS issued a new, proposed rule. Comments are due by April 25, 2022. The Biden public charge rule would largely enshrine the policies reflected in the 1999 Field Guidance. Under the proposed rule, the benefits that count for the purposes of the public charge analysis are limited to certain forms of cash assistance, Supplemental Security Income, and government-funded long-term institutional care. This reflects a rejection of the Trump rule’s extraordinarily harmful expansion of the benefits that would have counted in a public charge analysis. The Biden public charge rule also provides several important improvements, including clarifying that household members’ receipt of public benefits that count for the purposes of the rule do not count against the intending immigrant. This means that if a child receives cash assistance, but her mother is not eligible because of her immigration status, the child’s receipt of benefits will unequivocally not count against the mother when the mother seeks immigration status. 

Third, despite the Trump public charge rule no longer being in effect, the fear and confusion it caused in immigrant communities continues. While the Biden public charge rule’s clarity on household members’ use of benefits is welcome and will hopefully serve to eliminate the chilling effect caused by the Trump rule completely, there is more work to be done to get the word out in immigrant communities around the country. 

What can we do for our clients and the communities we serve?

As advocates for immigrants and immigrant communities, we all have a role to play in ensuring that in 2022, the Trump era public charge rule fully becomes a matter of history. Here are some steps you can take: 

• Join the Protecting Immigrant Families (PIF) Campaign to stay informed on changes in the legal landscape and opportunities to engage in advocacy and outreach. To get on PIF’s mailing list or to become an Active Member, visit here.
  
  

• Participate in the Rulemaking process. You can have your voice heard on the Biden DHS proposed public charge rule by signing on to comments organized by others or submitting your own, by April 25, 2022. Stay tuned for an I-ARC update in early April on opportunities to comment. 
  
  

• Engage in outreach to your immigrant clients and within immigrant communities in which you live and work to combat the chilling effect. Make sure everyone who needs government benefits and services has access to them without fear!  PIF has great materials that are translated into eight languages https://protectingimmigrantfamilies.org/know-your-rights/ and get in touch with your I-ARC contacts to get materials custom designed for your community. If you are located in New York, feel free to contact me at sewelber@legal-aid.org.

* The Legal Aid Society, the nation’s oldest and largest provider of legal services, is located in New York City.  The Society serves as co-counsel for Make the Road NY, Asian American Federation, Catholic Charities Community Services, CLINIC, and African Services Committee, plaintiffs in the New York non-profit public charge challenge to the Trump rule which was consolidated with the challenge brought by the states of New York, Connecticut, and Vermont for administrative purposes.