Late on Saturday night September 22, 2018, the U.S. Department of Homeland Security (DHS) posted a draft of a proposed regulation with sweeping changes to the “public charge” test under U.S. immigration law, impacting millions of immigrant families.[1]
Overview
+ IMPORTANT: this preliminary analysis is based on the draft of the proposed public charge regulation posted by DHS (“DHS draft”); this is still not the “official” proposed regulation, which still could be edited before it is officially published in the Federal Register (which will take several days, and up to several weeks)
+ there will be a 60 day public comment period on the proposed regulation before DHS can finalize the regulation; the “clock” for the 60 day comment period does not begin until official publication in the Federal Register (so the deadline for comments will probably be last week of November 2018, or later)[2]
+ while there are significant changes in the DHS draft from the earlier drafts leaked to/obtained by the media in February and March 2018, the DHS draft is a radical and significant expansion of the public charge test that will impact millions of immigrant families
+ the DHS draft does not change, and actually codifies, the exemptions from the public charge test for refugees and asylees, victims of domestic violence/human trafficking, and certain other applicants for lawful permanent residence (“green cards”); this proposal does not apply to such applicants
+ the proposed changes do not apply to lawful permanent residents applying for citizenship (“naturalization”)
+ the proposed changes do not apply to deportation proceedings; lawful permanent residents will not be deportable for receiving public benefits (except in extremely rare circumstances; in addition,, the proposal notes that the Department of Justice may issue a parallel proposed regulation that would expand the basis for deportation)
Proposed Changes to Public Charge Test
+ while advocates have been focused on the expansion of the list of public benefits that would be considered as part of the public charge test, the DHS draft focuses on and re-defines the “totality of circumstances” factors (age, health, family status, assets, resources, financial status, education, and skills) for the public charge test; these are defined as positive or negative factors, and will be considered for EVERY applicant for lawful permanent residence/green cards, regardless of whether the applicant has received any public benefits
+ currently, only receipt of cash public benefits – Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and General Assistance (GA) – or receipt of government-paid long-term institutional care – triggers the public charge test
+ as a matter of practice, most applicants meet the public charge test with an affidavit of support from a “sponsor” (usually a family member)[3]
+ according to the DHS draft, the current receipt of any public benefit (as defined in the proposed regulation) will be a “heavily weighted negative factor” in the totality of circumstances public charge test (page 211)
+ the DHS draft adds the Supplemental Nutrition Assistance Program (SNAP) and Housing and Urban Development (HUD) Section 8 housing assistance (in addition to SSI, TANF, and GA) to the list of public benefits received that would be considered a heavily weighted negative factor under the proposed changes to the public charge test
+ in addition, another heavily weighted negative factor will be if the “monetized value” of SSI, TANF, GA, SNAP, and Section 8 housing benefits received by an applicant in the past 12 months is more than 15% Federal Poverty Guidelines (FPG)[4] for a one-person household, i.e., the applicant ($1,821 under the 2018 FPG)
+ the DHS draft also adds as a heavily weighted negative factor the receipt of “non-monetized” public benefits[5] such as Medicaid (except emergency Medicaid, Medicaid payment related to education of disabled children, and Medicaid for non-U.S. citizen children of U.S. citizen parents), Medicare Part D prescription drug plan premium and cost-sharing subsidies, and living in HUD public housing, in addition to government-paid long-term care), for more than 12 out of the past 36 months – or 9 months if any “monetized” public benefit also was received during that 36-month period[6]
+ the DHS drafts request public comment on whether the Children’s Health Insurance Program (CHIP) should be added to this list of non-monetized public benefits that receipt would be a negative factor (pages 140-141)
+another negative factor will be if the applicant’s income is below 125% FPG (for the applicant’s entire household[7])
+ on the other hand, a heavily weighted positive factor will be showing income at least 250% of the FPL for the applicant’s entire household (page 221)(but it is not clear whether this would sufficient by itself to outweigh any negative factors)
+ while children, including U.S. citizen children, will be included in an applicant’s household for the purposes of determining the 125% or 250% FPGs, only the monetized value of the public benefits received by the applicant will be considered (page 144); accordingly, benefits received by children, including U.S. citizen children, will NOT be considered; monetization of benefits received will be prorated according to the number of those eligible in the household
+ the Supplemental Nutrition Assistance Program for Women, Infants, and Children (WIC), Affordable Care Act marketplace subsidies, low-income energy assistance, the Earned Income Tax Credit (EITC) and other government programs are NOT on the list of public benefits that would be considered for public charge in the DHS draft (although they were included in the March leaked draft)
+ according to the DHS draft, other state and local programs not explicitly listed (such as state-only Medicaid?) will NOT be considered for the public charge test (pages 138-139)[8]
+ the DHS draft references the 1996 Personal Responsibility and Work Opportunity Act (PRWORA) exemption for community level programs and services, including: “medical and public health services (including treatment and prevention of diseases and injuries) and mental health, disability, or substance abuse assistance necessary to protect life or safety” (which we have always understood as including Federally Qualified Health Centers); according to the DHS draft, these community level programs and services will NOT be considered under the public charge test (pages 44-48)
+ the “totality of circumstances” test will focus on employability of those over age 18 and under age 62 (earliest retirement age for Social Security) (pages 163-167); education and limited English proficiency will be considered as part of employability; lack of employability will be a heavily weighted negative factor (page 208)
+ accordingly, just being under age 18, or age 62 and older will be a negative factor (Table 33, page 234)
+ “health” will also be a factor in the totality of circumstances test: a heavily weighted negative factor will be if the applicant “has any physical or mental condition that, although not considered a condition or disorder that would render the alien inadmissible under the health-related ground of inadmissibility, is significant enough to interfere with the person’s ability to care for him- or herself or to attend school or work, or that is likely to require extensive medical treatment or institutionalization in the future” (pages 167, 214); medical conditions will be considered for their potential cost (the applicant will have to show assets and resources to cover estimated health care costs without using government programs such as Medicaid); DHS will get evidence about health from the civil surgeon exam (with expanded questions as part of the exam) and from a new form I-944 that will be required for applicants for lawful permanent residence (page 294)(the new form will likely include questions about medical history, use of medical care, and health insurance but we haven’t seen the form/questions yet)[9]; lack of private health insurance (or financial means to pay for medical care) for applicants with medical conditions will be a heavily weighted negative factor (page 214)
+ in summary:
| Current Public Charge Test | DHS Draft Proposed Changes to Public Charge Test |
| As a matter of practice, having the required affidavit of support from a sponsor is sufficient to meet the public charge test | Affidavits of support still required but now only a positive factor (to be weighed against any negative factors) |
| However, if additional inquiry about public charge test is triggered because of receipt of cash benefits (SSI, TANF, GA) or government payment for long-term institutional care, then the applicant could overcome inadmissibility based on public charge with positive factors from totality of circumstances: age, health, family status, assets, resources, financial status, education, and skills(e.g. applicant was on TANF, but is now no longer on TANF and employed) | Apply totality of circumstances test to all applicants for lawful permanent residence, and now, mainly as negative factors
|
| Such factors were rarely used as negative factors | |
| Age: negative factor if under age 18, or age 62 and older | |
| Education: negative factor if less than high school degree or equivalent | |
| Education: college and graduate education, and professional licenses and certifications are positive factors | |
| Employability: heavily weighted negative factor if not either a full-time student or not currently employed | |
| Employability: negative factor if limited English proficient | |
| Employability: positive factor if speak languages in addition to English and improves employability | |
| Financial status: household income less than 125% Federal Poverty Guidelines (FPG) is a negative factor (“household” includes all dependents, including U.S. citizen children) | |
| Financial status: is employed and has household income more than 250% FPG is a heavily weighted positive factor (household includes all dependents, including U.S. citizen children) | |
| Assets and resources: having financial assets and resources at least 250% FPG for the applicant’s household is a heavily weighted positive factors | |
| Public benefits: receipt of “monetizable” public benefits (defined as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and General Assistance (GA), plus new additions of Supplemental Nutritional Assistance Program (SNAP) and HUD Section 8 housing assistance) at any time within past 12 months is a heavily weighted negative factor | |
| Public benefits: Receipt of more than 15% FPG ($1,821 in 2018) in monetizable public benefits within past 12 months is an additional heavily weighted negative factor | |
| Public benefits: Receipt of any “non-monetizable” public benefits (defined as non-emergency Medicaid, Medicare Part D prescription drug premium and cost-sharing subsidies, and living in public housing, in addition to government-paid long-term institutional care) for 12 months or more in past 36 months (“look-back” period) is a heavily weighted negative factor; however, receipt for 9 months or more in the past 36 months is a heavily weighted negative factor if applicant also received any monetizable public benefits | |
| Health: heavily weighted negative factor if applicant has any medical condition that might require extensive medical treatment and does not have private health insurance or financial resources to pay for reasonably foreseeable medical costs [we can call these “pre-existing conditions”] | |
| A lower/poor credit score/negative credit history is a negative factor | |
| Receiving a fee waiver for an immigration benefit is a negative factor |
Impact of Proposed Regulation
+ all the meetings that advocates and stakeholders had with the Office of Management and Budget (OMB) were effective in changing DHS’ finding that this proposed regulation would have economic impacts over $100 million, requiring the additional detailed analysis of economic and regulatory impact now provided in the DHS draft (page 276)
+ DHS estimates that 382,000 applicants for green cards would be subject to this new public charge test each year (mainly those seeking “adjustment of status” who are already living in the U.S.)(Table 40, page 300); this is a very low estimate that does not account for any chilling effects
+ DHS estimates that immigrants would lose up to $22.7 billion in federal and state benefits (over 10 years) because they dis-enroll from programs they are eligible for ($1.5 billion in federal benefits,[10] $0.76 billion in state benefits each year, Table 1, page 20); these also are low estimates
+ DHS estimates costs of up to $129 million each year for immigrants and non-immigrants to complete the new paperwork and documentation requirements (page 13); for example, DHS estimates that applicants will need to pay $7.6 million/year for the now-required credit reports (Table 47, page 332)
+ there is language throughout the DHS draft of the proposed regulation that the public benefits being added to the list are programs for which applicants are eligible for, and relate to “basic necessities of life” and a “basic living need” such as nutrition, medical care, and housing (pages 97,118, 121, 134)
+ the DHS draft admits that the proposed regulation “may decrease disposable income and increase the poverty of certain families and children, including U.S. citizen children” (page 387), and lead to “worse health outcomes, including prevalence of obesity and malnutrition, especially for pregnant and breastfeeding women, infants, or children, and reduced prescription adherence; increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment; increased prevalence of communicable diseases, including among members of the U.S citizen population who are not vaccinated; increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient; increased rates of poverty and housing instability; and reduced productivity and educational attainment” (pages 370-371)
+ DHS also admits that the proposed regulation “might result in reduced revenues for healthcare providers participating in Medicaid, pharmacies that provide prescriptions to participants in Medicare Part D low-income subsidy program, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs” (pages 366-367)
Other Proposed Changes Related to the Public Charge Test
+ increases scrutiny and requirements for affidavits of support from “sponsors” of applicants for lawful permanent residence (still required in addition to all the other changes); questions will include closeness of relationship to applicant, whether living with the applicant, how many other affidavits of support have been filed by the sponsor, and calling in the sponsors for interviews and requiring responses to requests for more documentation (page 207)
+ the DHS draft includes changes to the public charge bond, which DHS may require for applicants who “fail” the public charge test (where negative factors outweigh positive factors);[11] these bonds will be a minimum of $10,000 each (bonds in higher amounts could be required); such bonds are “breached” and the entire amount of the bond is forfeited if the immigrant receives any of the expanded list of public benefits after posting the bond
+ the proposed public charge test also would be used for applications, extensions, and changes in status for “non-immigrants” (e.g. foreign students, temporary workers, etc.); however, most of these non-immigrants are either outside the U.S., or are not eligible for the listed public benefits
For more information and resources on this issue, please consult the national Protecting Immigrant Families campaign.
[1] https://www.dhs.gov/news/2018/09/22/dhs-announces-new-proposed-immigration-rule-enforce-long-standing-law-promotes-self
To highlight how complicated this all is, DHS estimates that it would take 8 to 10 hours just to read the proposed rule (page 17)
[2] However, in providing example scenarios of how the new public charge test would be used, the DHS draft uses an effective date of January 1, 2019 (page 226+), which is only about 3 months from now, shorter than 60 days for public comment + some number of days/weeks to review and respond to the public comments and prepare a final regulation + effective date 60 days after publication of final regulation; while January 1, 2019 would be too early for an effective date, it indicates that DHS intends to move to finalize this proposed regulation as soon as it can
[3] In January 2018, the Department of State made changes in its Foreign Affairs Manual (FAM) to broaden the inquiry about public charge for applicants for lawful permanent residence who are applying for their green cards from outside the U.S. (at U.S. embassies and consulates): https://www.nilc.org/wp-content/uploads/2018/02/PIF-FAM-Summary-2018.pdf
While there have been some requests for more documentation from applicants at some consulates, the full impact of these changes is still being analyzed; additional analysis also is needed on how the DHS draft aligns with the changes in the FAM
[4] https://aspe.hhs.gov/poverty-guidelines
[5] There is an exemption to this negative factor for active duty military servicemembers and their families (pages 137-138)
[6] It is not clear how this 36 month look-back period will be implemented when there is other language in the proposed regulation that the change would only be prospective, effective 60 days after the publication of a FINAL regulation (this will be very confusing)
[7] The proposed regulation creates a new definition of “household” that is different than the definitions used by the Internal Revenue, U.S. Department of Agriculture (for SNAP), and the Department of Housing and Urban Development (page 149-152); this will be unnecessarily confusing and complicated
[8] If true, this will create opportunities for state-level responses, both to oppose the proposed regulation as a cost-shift to the states, and to put in place contingency state-only programs)
[9] There will be no additional filing fee for the new form I-944 but DHS estimates that it will take four and half hours to complete (page 333) so we can expect many questions about all the totality of circumstances factors and receipt of any public benefits
[10] In extremely detailed analysis, DHS estimates that 142,000 individuals would dis-enroll from Medicaid, 129,000 from SNAP, and 26,000 from Medicare Part D subsidies each year, at an estimated dis-enrollment rate of 2.5% of those now eligible and receiving these public benefits (pages 361-336; Table 51, page 363); the methodology for these very conservative estimates needs additional analysis
[11] Curiously, DHS estimates that it will only offer 960 applicants a year the opportunity to post such public charge bonds (page 350); this very low number means that DHS intends to deny admission to most applicants who “fail” the proposed public charge test rather than offering them the opportunity to post a public charge bond
Ignatius Bau 