Biden Administration to Reverse Trump-Era ‘Public Charge’ Rule for Immigrants

  • In 2019, the Trump administration announced a new hardline “public charge” rule for immigrants.
  • The rule denied legal status to all immigrants who used or might use social welfare programs, such as food stamps.
  • The Biden administration is proposing to revise the rule to its pre-Trump era form.

The Biden administration is throwing out the Trump administration’s “public charge” rule, which denied permanent residency to immigrants who used public assistance programs or were suspected of using them in the future.

Department of Homeland Security Secretary Alejandro Mayorkas on Thursday said in a statement the 2019 rule “was not consistent with our nation’s values.”

The news comes nearly a year after the administration said it would no longer defend the Trump-era rule in court, where plaintiffs had argued that it illegally discriminated against low-income immigrants. In November 2020, a federal judge agreed, though a coalition of conservative state attorneys general has challenged the Biden administration in court to potentially push the case to the Supreme Court.

Previous administrations have denied permanent residency to immigrants who are deemed a potential financial burden — for example, more than half of their income is provided by the government. But the Trump administration took that a step further, seeking to deny legal status to anyone likely to use any public assistance program, from food stamps to Medicaid, for more than 12 months over a three-year period — or if it used two such programs at the same time in a single month.

The Trump rule was seen as the brainchild of former White House senior adviser Stephen Miller, who pushed to fast-track the regulation. Miller, an immigration hardliner, frequently cited white nationalist websites to justify anti-immigration policies, according to leaked emails published by the Southern Poverty Law Center.

The new rule

The exclusion of immigrants based on the fear they would be dependent on government assistance dates back to 1882, the same year Congress passed The Chinese Exclusion Act — providing federal authorities further legal justification for denying residency to non-European immigrants. The modern conception of “public charge” dates back to the Clinton administration, which defined it as someone likely to become primarily dependent on cash assistance or long-term institutional care provided by the government.

The proposed rule unveiled by the Biden administration would revert back to the pre-Trump definition of “public charge,” Mayorkas said, “and individuals will not be penalized for choosing to access the health benefits and other supplemental services available to them.” In accordance with federal law, the new rule will not take effect immediately, with public comments to be accepted for the next 60 days and a final regulation proposed months later.

But even so — and despite the fact the previous rule is no longer enforced — word of the proposed rule alone might well have an effect on immigrants’ willingness to use social programs for which they are eligible.

One in seven adult members of immigrant families did not seek assistance from a noncash benefit program, such as food stamps, for fear it would jeopardize their ability to obtain permanent residency, according to a 2019 study by the Urban Institute, which was conducted months after the Trump administration signaled it would change the “public charge” rule.

The Biden administration’s rule would still deny to legal status of those deemed “likely to become primarily dependent on the government for subsistence,” defined as on cash assistance programs or requiring long-term institutionalization. But the rule would not apply to refugees, asylum-seekers, and other particularly vulnerable immigrants.

“This is not opening the floodgates or anything like that,” Laurence Benenson, vice president of policy and advocacy at the National Immigration Forum, told Insider. “It’s just returning to a better balance.”

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