Proposal would undo Trump’s ‘public charge’ rule

The Biden administration last week proposed changes to the public charge rule that eliminates Trump-era policies that penalized low-income immigrants seeking health benefits and other services.

The proposal from the Department of Homeland Security would roll back the types of assistance immigration officers can consider when evaluating immigrants for a green card and deciding whether they’ll become a “public charge,” or dependent on government assistance.

Public charge determinations would be limited to government cash assistance and long-term institutionalization financed by the government, under the new rule.

During the Trump administration, immigrants who used noncash public benefits — like housing vouchers, food assistance, or Medicaid— could be deemed a public charge and denied residence or citizenship status.  

The Trump rule also included provisions that made entering the U.S. or obtaining a green card harder for low-income immigrants who had not used any benefit programs at all but were expected to use noncash public benefits. 

President Biden issued an executive order a few weeks after his inauguration, directing the DHS to stop enforcing the 2019 “public charge” restrictions. If finalized, Biden’s proposed rule would formalize the public charge guidance that was in place for the two decades before the Trump administration.

“Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them,” DHS Secretary Alejandro Mayorkas said in a statement Thursday, announcing the advanced copy of the proposed rule.

Advocates called the Trump-era rule an immigrant wealth test that would prevent low-income immigrants who have not yet obtained citizenship— like green card holders —from accessing government services available to them.

Noncash benefits that will not be considered under the new public charge rule includes the Supplemental Nutrition Assistance Program(SNAP), the Children’s Health Insurance Program, most Medicaid benefits, housing benefits, and transportation vouchers. Disaster assistance, pandemic assistance, tax credits or deductions, Social Security, government pensions, or other earned benefits, will also not be included under the rule.

The nonpartisan Urban Institute research group  found that the Trump policy deterred immigrant families from seeking help with hunger, housing, or health care during the COVID-19 pandemic. Public health experts cited public charge as one of four Trump policies that increased COVID-19’s disproportionate impact on families of color.

In Nevada, the Trump-era rule even deterred immigrant families from using Pandemic Electronic Benefit Transfer (P-EBT), a popular free food program that fed kids who were unable to access free- or reduced-price meals at schools that were shutdown due to COVID-19, said administrators for Three Square Food Bank in Southern Nevada.

Immigrant families regularly declined the children’s food benefit out of fear the assistance would prevent them from gaining legal status, said Nolga Valadez, the Benefit Services Outreach Manager for Three Square Food Bank in Southern Nevada.

“All this fear was put into their brain by the prior administration,” Valadez said in an interview last month.

Undocumented immigrants are still facing disproportainate economic hardships caused by the pandemic and barriers to social safety nets, including unemployment insurance for those who lost their jobs during the pandemic, said Rico Ocampo, an immigrant justice organizer with Make the Road Nevada.

The advocacy group has seen a rise in requests for mutual aid and assistance with state government agencies when seeking resources.

“We see families not wanting to seek assistance for their U.S. citizen children because they fear what a public charge might do to their case in the future, and that’s troublesome,” Ocampo said.

The Protecting Immigrant Families coalition, which includes more than 500 nonprofits working to advance inclusive policy that improves safety net access for immigrant families, commended the new proposed rule.

“President Biden made a commitment to eliminate barriers that deny eligible people in  immigrant families access to the health and social services safety net. This DHS proposal is a significant step toward that goal, providing a fair and clear ‘public charge’ policy consistent with the law and protections against the abuses we saw under the Trump Administration,” said Adriana Cadena, director of the coalition.

However, the coalition also says the proposal falls short by failing to include language that would exclude all state and local programs from public charge determinations. 

Make the Road Nevada also criticized the lack of clarity about how DHS plans to calculate who is “likely at any time” to become a public charge under the new proposed rule.

“Our concern is how does the government use that calculation? How do they calculate whether someone is likely? Have they incorporated situations like the pandemic and other circumstances that require an exemption?” Ocampo said.

The Children’s Advocacy Alliance Nevada (CAANV), a member of the Protecting Immigrant Families coalition, said the Trump-era rule created widespread concerns about leveraging pandemic era public resources out of fear they counted under the rule, including free vaccines, testing, and food benefits.

Throughout the pandemic immigrant advocacy groups have expressed frustration with the lack of information from government agencies about what benefits might fall under the public charge rule.

“Imagine the ways in which that negatively impacted food security, health, and other areas because of those concerns,” said Tiffany Tyler-Garner, executive director of CAANV.

The Children’s Advocacy Alliance raised alarms about immigrant parents unenrolling their children from Medicaid and the Children’s Health Insurance Program out of fear it would affect their immigration status, reversing progress made to insure children.

The public charge rule has prevented many children  from accessing social safety nets and damaged public trust among immigrant families, said Tyler-Garner.

“We can’t be certain that it will increase public trust because we are living in a time where public trust, in general, is a challenge,”  Tyler-Garner said.

Tyler-Garner said Nevada should continue to fund and support the state Office of New Americans and similar programs to rebuild public trust among immigrant families.

Reforms in public policy that secure immigrant families’ access to safety net programs are necessary for Nevada to fully recover, said Tyler-Garner. 

“Policy can either help us move forward together or create pervasive social challenges,” Tyler-Garner said.

After the rule is formally published, which is expected in upcoming days, there will be a 60-day period open for the public to submit comments.