With President Donald Trump’s executive orders on immigration law and policy issued earlier this week, many immigrants, as well as health and human service providers, are gravely concerned about renewed attacks on immigrant eligibility for public benefits. One of Trump’s executive orders includes the prioritization of enforcement activities against immigrants who “have abused any program related to receipt of public benefits.”

However, the only legal authority to either deport or deny immigration status is the federal law that excludes immigrants who are determined to be a “public charge” (section 212(a)(4)) of the Immigration and Nationality Act).  Administrative immigration courts, as well as administrative guidance from the Department of Homeland Security issued in 1999,  have interpreted this exclusion to apply only to immigrants who are receiving cash benefits from public programs as their sole or primary source of income, such as Supplemental Security Income (which usually means the individual has a long-term disability, which is also evidence of one’s inability to financially support themselves),  Temporary Assistance for Needy Families, or local government General Assistance; and to immigrants who are institutionalized in long-term care at government expense. There must be a case-by-case determination that the immigrant is not able to financially support himself or herself, with consideration of the totality of the circumstances. An immigrant can show a change in circumstances, or future sources of financial support from family members or others through affidavits of support to avoid a public charge determination.

Under these long-standing interpretations, receipt or use of health care insurance (including Medicaid, Children’s Health Insurance Program, and health insurance purchased through a health insurance marketplace, including receiving premium or cost-sharing tax credits), health care services, health clinics, prenatal care, emergency care, nutrition programs (including the Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), National School Lunch and School Breakfast Program), educational assistance (including Head State and financial aid), child care services, foster care and adoption assistance, job training programs, unemployment benefits, housing benefits, energy assistance, emergency disaster relief, and many other types of public assistance have never been considered in public charge determinations. Moreover, in practice, the public charge determination has only been used when an immigrant is first seeking admission to the U.S., applies for lawful permanent residence, or seeks to re-enter the U.S. after a long absence out of the country. It almost has never been used as a basis of detention or deportation.

So while the Trump executive order prioritizes enforcement actions based on “abuse of any program related to public benefits”, there is no basis in current immigration law for such enforcement actions. While the Department of Homeland Security could withdraw or change its 1996 administrative guidance, it would still be bound by the decades of administrative interpretation and the historical practice of applying the public charge exclusion, and could not unilaterally re-interpret the law. Of course, Congress could also amend the underlying immigration statute itself, but that would require actual legislation, not simply an executive order or executive re-interpretation of the law.

This issue brief from the National Immigration Law Center describes the public charge exclusion in detail, including the 1999 administrative guidance.

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