Overview of the Public Charge Final Rule

Manatt Health

On September 8, the Department of Homeland Security (DHS) issued a final rule on the “Public Charge Ground of Inadmissibility,” regarding DHS’ authority to refuse a noncitizen’s application for admission or application for visa adjustment (including receipt of a green card) on grounds that they are “likely at any time to become a public charge.” Consistent with the proposed rule, the final rule largely reinstates the approach to “public charge” determinations that DHS applied until a regulatory reform in 2019, including by excluding Medicaid and other in-kind public benefits from the public charge determination.

From 1999 until 2019, the federal government interpreted the phrase “public charge” to mean a noncitizen (subject to various exclusions) who, based on a totality of the circumstances, was likely to become “primarily dependent on government for subsistence as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” In 2019, the Trump administration finalized a rule that expanded the definitions of “public charge” and “public benefit,” which would make it easier for DHS to deny admission or change in legal status for noncitizens based on their receipt of many non-cash public benefits that were excluded from the historical public charge framework, including Medicaid. This rule was subject to intense litigation. Upon taking office, the Biden administration declined to continue defending the rule in court and announced that it would not enforce the 2019 regulatory changes while working on an updated rule.

The new final rule codifies the pre-2019 standard in regulation and includes policy clarifications that appear motivated to provide more certainty to immigrant populations and their family members about how applying for and using certain benefits would or would not impact public charge determinations. As stated in the United States Department of Health and Human Services announcement, “DHS will not penalize individuals who choose to access the vast majority of health-related benefits and other supplemental government services available to them, including most Medicaid benefits (except for long-term institutionalization—such as residing in nursing home—at government expense) and the Children’s Health Insurance Program (CHIP).” As compared to the proposed rule, the final rule clarifies the types of in-kind public benefits that will not be considered in public charge determinations, including Medicaid, the Children’s Health Insurance Program, the Supplemental Nutrition Assistance Program, housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.