Update on Public Charge: Limiting Construction on the “Invisible Wall”

For many families and advocates, including us here at the League, today has gone from what was originally a solemn day to one of celebration. Oct. 15, 2019 had been the effective date of the Trump Administration’s final rule on “public charge,”  meaning that changes laid out in the rule would begin to apply to immigrants seeking lawful permanent resident status (“green card” status) starting today. Instead, I am able to reflect on exciting news about the status of the rule and congratulate us all on successful efforts to rebut a significant and harmful change that would fundamentally alter the immigration system in this country.

As of October 14, courts in New York, Washington, and Maryland have issued five preliminary injunctions, including multiple nationwide injunctions. These decisions have stopped the final rule from going into effect across the country. The rule would have expanded the benefits considered in the public charge determination to include adult non-emergency Medicaid (except pregnant women, including 60 days post-partum), Supplemental Nutrition Assistance Program (SNAP) and housing assistance. In addition, the rule would have applied a “totality of circumstances” test that incorporated a new weighting system, heavily favoring higher-income adults and further considering family status, proficiency in English, and education and occupational skills.

These injunctions, the first of which were issued last Friday, came just in time to prevent the current definition of public charge (dating back to 1999) from changing. Still, it is important to note that the legal fight against this rule is far from over and the U.S Department of State is currently navigating the implementation of companion policies that would affect the processing of green card applications at consular offices in an immigrant’s home country. Despite these ongoing battles, these rulings are collectively a big win that stands up against ideals and policies that the U.S. federal judge in New York called “repugnant to the American Dream.”

These rulings are also the culmination of advocacy efforts and pressure for over two years, much of which has been through the regulatory process. Although we at the League try to make this process easy to understand and engaging to follow, it won’t always be as glamourous as delivering heartfelt and passionate testimony to Congress. Often, the regulatory process is a waiting game until the next piece of information is released. And with the public charge rule, we have been waiting for years: initial executive intent was leaked in early 2017, an early draft of the rule was leaked in the spring of 2018, an official proposed rule was released in October of 2018 and the final rule with today’s effective date was released on August 14 of this year. Phew.

At each stage of this process—even before the proposed rule was released—immigrants, advocates and allies have pushed back. These efforts led to changes such as removing language or specific benefits listed in each iteration of the rule. For example, at various points prior to the rule’s final release, the following benefits that would have counted against an immigrant’s green card application were removed: public benefits used by dependent family members, Children’s Health Insurance Program (CHIP) coverage, Special Supplemental Nutrition for Women, Infants and Children (WIC) and retroactive benefits (benefits used before the effective date). Limiting the rule’s scope over the regulatory process successfully removed bricks from the “invisible wall” that the Trump Administration continues to build to target legal immigration in this country.

Pushing back involved educating the health care community, legal community, direct service providers and immigrants and their families on the potential impact. Pushing back also involved joining statewide and national campaigns to submit public comments on the rule; the Department of Homeland Security received over 260,000 comments, the vast majority of which were in opposition to the rule. These comments became part of the legal arguments against the rule and helped make clear to the courts just how detrimental this rule would be.

Unfortunately, we did not need to wait until this deliberate and dangerous rule went into effect to see its intended impacts: generating fear among the immigrant community and kicking immigrants off of public benefits. While we waited for a final rule, the Urban Institute found that one in seven adults in immigrant families reported that they or their family did not participate in a public benefit program out of fear and confusion.

These rulings mean that immigrants and their families can and should continue to access lifesaving public benefits, including noncash benefits, without fear of jeopardizing future green card status. While we celebrate today, we must remain vigilant in our support for immigrants and their families. These rulings serve as a reminder that our voices matter and have power when advocating against harmful policies in our communities and country.