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Public Charge Final Rule

Latest Development of Pending Litigation: Federal judges in three states, New York, California and Washington, have temporarily blocked the implementation of the public charge rule on Friday October 11, 2019. On September 9, 2019, as part of the suit brought by the New York Attorney General, along with the Attorney Generals of Connecticut and Vermont, these states brought a motion to seek a preliminary injunction to stop the implementation of the rule, slated to take effect on October 15th. In the decision by Hon. George P. Daniels of the United States District Court for the Southern District of New York, the court granted a preliminary nationwide injunction that restrains the Department of Homeland Security and the United State Citizenship and Immigration Service from “enforcing applying or treating as effective the public charge rule.” Judge Daniels concluded that there was good cause to grant the motion for a preliminary injunction because the plaintiffs in the case had sufficiently demonstrated their legal claims and that plaintiffs would suffer irreparable harm if the rule went into effect. "Overnight, the Rule will expose individuals to economic insecurity, health instability, denial of their path to citizenship, and potential deportation," he wrote. He added that "[i]t is a rule that will punish individuals for their receipt of benefits provided by our government, and discourages them from lawfully receiving available assistance intended to aid them in becoming contributing members of our society." The other injunctions against putting the public charge rule into effect were granted in lawsuits brought by California along with Oregon, Pennsylvania and Washington, D.C. in the Northern District of California and in the Eastern District of Washington State brought by Washington along with Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico and Rhode Island.

A summary of news coverage of these rulings can be found by visiting Kaiser Health News for October 14, 2019.

Last Updated: October 15, 2019

The Department of Homeland Security (DHS) released its final rule interpreting the public charge ground of inadmissibility under immigration law. The rule makes changes to the circumstances under which certain immigrants may be considered a “public charge,” and possibly prevented from obtaining legal permanent resident status (a green card) or a visa if they meet the criteria specified in the rule.

The final rule expands the public benefit programs it will consider when determining whether a person might become a “public charge” in the future. The new rule will consider non-emergency Medicaid for non-pregnant adults over 21 as a public benefit. The rule does not count Child Health Plus, the Essential Plan, or Qualified Health plans as public benefits. Public charge determinations will only take into account the benefits used by the individual being considered for admission or adjustment of status. It will not consider benefits used by other family members, including children, of the individual under consideration. Public charge grounds of inadmissibility will be a prospective determination based on the “totality of the circumstances,” meaning that DHS will weigh several factors, including age, health, and financial status, among others. The rule is set to go into effect October 15, 2019.

Litigation might delay the effective date for this rule. On Monday, August 19th, New York Attorney General Letitia James, with the City of New York and the States of Connecticut and Vermont, announced a lawsuit against the Trump Administration over its Public Charge Rule.

It is important to know:
1) This rule only impacts certain people, including people seeking to enter the U.S., adjust to legal permanent resident (LPR) status (i.e., obtain a “green card”), or current green card holders a) if they leave the country for more than 6 months or b) with certain criminal convictions.

There is no public charge test when applying for citizenship.

The rule does not affect refugees, asylees, U or T visa holders, VAWA self-petitioners, Special Immigrant Juveniles, and those with certain other statuses are generally not subject to the "public charge" test, or can apply for a waiver from the test. The final rule does not affect public charge deportability grounds.

2) The rule does not change eligibility requirements for public benefits.

3) The rule does not go into effect until October 15, 2019. Litigation may delay the effective date.

Immigrant New Yorkers who are concerned about how the Trump administration's changes to the "public charge" rule could impact them or their loved ones can get help making the best decisions for themselves and their families. You can get informed by:
• Learning whether the "public charge" rule change has an impact on you before choosing to withdraw from a benefit that you or your family member are lawfully entitled to.
• Getting answers to questions about how receiving public benefits may affect your immigration status.

Free Legal Services and Additional Information are available:
If you need immigration assistance, you can call the Office for New Americans at 1-800-566-7636 to be connected to free or low-cost, high-quality legal representation and counseling services. New York City residents can call The Legal Aid Society at 1-844-955-3425.
You can call the City-funded ActionNYC hotline at 800-354-0365 and say "public charge" from 9:00 am to 6:00 pm, Monday to Friday, to learn more and get answers to your questions.
• You can schedule an appointment to consult with a City-funded, free, trusted immigration legal services provider.
• The hotline is free and anonymous.
• Help is available in over 200 languages.

You can read the final rule here.

A summary and analysis by the Kaiser Family Foundation is also available.

Last Updated: September 13, 2019

NYC Rejects Title X Funding

On June 28, 2019, Mayor de Blasio announced that the city’s public health system (NYC Health + Hospitals) will not accept Title X funding as long as that funding is tied to the “gag rule,” which restricts providers ability to counsel patients on abortion. NYC Health + Hospitals will reject $1.3 million in funding under Title X, and NYC will make up for the loss of federal funds.

On March 4, 2019, the U.S. Department of Health and Human Services published finalized changes to the Title X program. Referred to as the “gag rule,” the rule’s most significant changes include eliminating requirements for nondirective pregnancy counseling, prohibiting abortion referrals, and requiring financial and physical separation of Title-X funded projects and programs from locations providing abortion as a method of family planning. The rule also mandates additional reporting requirements, including documentation of efforts to encourage minors to involve their families in their decision to seek family planning.

In a public statement, Dr. Mitchell Katz, President and CEO of NYC H + H, asserted that the public health system would compensate for the loss of funding to continue providing care for all.

This announcement came days after the U.S. Court of Appeals for the Ninth Circuit announced that the “gag rule” could go into effect immediately. This means that recipients of Title X funding are no longer able to refer patients for abortions. Requirements to physically separate Title X funded services from abortion services will go into effect on March 4, 2020 and have a devastating impact on Planned Parenthood in particular.

Last Updated: August 1, 2019

Proposed Rule Expanding the Definition of Public Charge

On October 10, 2018, the Department of Homeland Security proposed a rule expanding the definition of “public charge,” which would impact certain immigrants seeking lawful permanent resident (LPR) status (or, a “green card) or a visa.

Under existing rules, federal officials can deny green cards and visas if they think an immigrant is likely to become a public charge. A “public charge” refers to a person who depends primarily on government assistance. Under the current public charge test, federal officials consider immigrants’ use of Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), cash assistance for income maintenance, and institutionalization for long-term care at government expense.

Under the proposed rule, the government would consider additional public benefits as part of the public charge determination, including:

Additional non-cash benefits, including non-emergency Medicaid (with some exceptions),
Supplemental Nutrition Assistance Program (SNAP),
Medicare Part D Low Income Subsidy, and
Housing assistance (such as public housing or Section 8 housing vouchers and rental assistance).

The proposed rule has not been finalized. Eligibility requirements for public benefits and programs have not changed. To learn more about the proposed rule, you can visit the website of the Mayor’s Office of Immigrant Affairs.

The federal government requested comments during a 60-day comment period. You can read the comments challenging this proposed rule submitted by the New York City.

For more information about public charge, call the New Americans Hotline, operated by Catholic Charities, at 1-800-566-7636 from 9 am to 8 pm, Monday to Friday.

To make an appointment with an immigration legal services provider, call ActionNYC at 1-800-354-0365 from 9 am to 6 pm, Monday to Friday.
If you are sponsoring a family member abroad for a visa, some "public charge" changes at U.S. consulates abroad may apply to you. If you have questions, please call 311 and say "Public Charge" to connect to help.

New York State’s Open Enrollment Period extends through January 31, 2019. You can enroll in public and private health insurance coverage at nystateofhealth.ny.gov. If you need help to enroll, call 311 to find a health insurance assistor near you.

Last Updated: January 11, 2019

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