One of the Trump administration’s signature policies on legal immigration was to give teeth to the “public-charge rule,” a long-standing statutory requirement that applicants who are “likely at any time to become a public charge” cannot receive an entry visa or, if already here as a visitor, become permanent residents. (The rule does not apply to refugees.) Until Trump, DHS had been relying on informal Clinton-era guidance that narrowly defined a public charge as someone who receives cash assistance or long-term care at taxpayer expense. Applicants who were likely to receive non-cash benefits such as food stamps were still admitted because they would not be “primarily” dependent on government for basic needs.
The “primarily” qualifier is not something that appears in any public-charge statute that I am aware of. In fact, in the same year that Congress reaffirmed the public-charge rule, it declared “a compelling government interest . . . to assure that aliens be self-reliant in accordance with national immigration policy.” To be “self-reliant” seems to leave little room for any dependence on the government for basic needs, which is why the Trump administration issued a formal regulation that included receipt of Medicaid, food stamps, and housing assistance as part of the public-charge definition.
After Biden took office, DHS nixed Trump’s regulation without following the notice-and-comment procedures normally required by law. (That is a whole story in itself, and it is the subject of a Supreme Court hearing next week.) Now DHS has unveiled its proposed replacement regulation, which would essentially enshrine the pre-Trump guidance, once again defining a public charge as someone who is “primarily” dependent.
The proposed rule does little to address Congress’s stated interest in immigrants being “self-reliant.” After all, an immigrant whom DHS would not consider a public charge can still receive a wage subsidized by the EITC, shop at the grocery store with food stamps, pay for doctors’ visits through Medicaid, live in a subsidized rental unit, and heat it with energy assistance. Most people would not consider this immigrant’s life to be an example of self-reliance.
In some sense, the fight over the public-charge regulation is really a fight over the public-charge statute. Many advocates believe that people likely to become public charges should be welcomed to America, even when admitted from non-humanitarian visa categories. Congress explicitly disagrees. As long as the public-charge statute is on the books, the Biden DHS should faithfully enforce it rather than neuter it through regulation.