I am writing in response to the nationwide implementation of the new public charge rule. As of Feb. 24, 2020, the federal government has started enforcing its new public charge rule, which may make it more difficult for some immigrants, especially those that are lower income and on some type of public benefits, to obtain a green card or to be admitted to the United.
The effect of the public charge rule is not as widespread as some would have you believe. Unfortunately, fear and confusion are key parts of the anti-immigrant agenda.
It is important to reiterate that the public charge rule only applies to some types of immigrants applying for a green card or visa, primarily those applying through family-based petitions. The rule does not apply to U.S. citizens and exempts broad categories of immigrants. Those exempt from the rule include people who have a U-visa, T-visa, Special Immigrant Juvenile Status, and VAWA, along with asylees, refugees, and certain other immigrants with humanitarian parole (ie. NACARA, Lautenberg, HRIFA, etc.).
Existing legal permanent residents with green cards are also unaffected, except for those who leave the United s for six months or longer, and then return.
In addition to not being applicable to all immigrants, the consideration of public benefits use is limited to only certain programs. Even under the old rule, the rule considered the receipt of cash assistance, like TANF and SSI, along with long-term institutional care. Under the new rule, immigration authorities can now also consider the receipt of federal Supplemental Nutrition Assistance Program, federal Section 8, federal public housing, and federal Medicaid (with exceptions for emergency services, children under 21, and pregnant women/new mothers) received after Feb. 24, 2020. Other public benefits programs, such as WIC, Medicare, -funded Medicaid, CHIP, and school lunch programs, do not affect an immigrant’s public charge determination. Even then, many of the immigrants potentially subject to the new public charge rule are ineligible for the affected public benefits programs anyway.
It is also important to note that public benefits received by other household members, such as a spouse or a child, do not count against the immigrant.
The public charge rule only looks at benefits received by the immigrant directly. For example, in a mixed-status family with documented children and undocumented parents, children receiving impacted public benefits like federal SNAP or Medicaid would not impact the public charge determination of their parents, if they are subject to the rule at all. Yet, there are non-impacted families forgoing public benefits to avoid potential issues with public charge, at tremendous risk to their own health and wellbeing.
Public charge does not affect all immigrants and does not apply to all types of public benefits. Immigrants with questions about public charge should speak to an attorney familiar with both immigration law and public benefits about the potential impacts of the new public charge rule. Together, we can fight the fear and misinformation around public charge, empower immigrant communities, and counter the chilling effect impacting so many immigrant families throughout the country.
— Nghi Huynh
Staff Attorney, Asian Law Alliance