Trump Administration Finalizes Misguided Approach to Public Charge Rule | American Enterprise Institute
A longstanding law generally bars immigration by any person who, in the “opinion” of the government, “is likely at any time to become a public charge.” This law, commonly called the public charge rule, seeks to prevent potential immigrants from imposing undue fiscal burdens on American taxpayers. In a previous blog post, I discussed the Trump administration’s misguided proposal to change the regulations that implement the public charge rule. After receiving public comments, the administration has now finalized the proposed regulation without change, slating it to take effect on September 18.
The administration’s own analysis of the new regulation indicates that it will serve no legitimate purpose because it will rarely affect people who are subject to the public charge rule. However, confusion created by the regulation will prompt many people who are not subject to the public charge rule, including some US citizens, to forego government benefits to which they are legally entitled.
The regulation comes into play when a non-citizen who is in the US on a temporary visa applies to US Citizenship and Immigration Services (USCIS) for adjustment of status, which confers a green card that provides permanent residence and a pathway to citizenship.
The prior regulation, which was adopted by the Biden administration in 2022, defined a public charge as someone who was “primarily dependent” on the government, either through long-term institutionalization at government expense or reliance on public cash assistance for income maintenance. In determining whether an adjustment-of-status applicant was likely to receive these primary-dependence benefits in the future, USCIS ignored any government benefits, other than primary-dependence benefits, that the applicant received while on the temporary visa.
The new regulation is broader and vaguer than the prior regulation. USCIS will weigh the “totality of the circumstances” to assess whether an adjustment-of-status applicant is likely to become a public charge (a term that is no longer defined) in the future. Among other factors, USCIS will consider the applicant’s past receipt of any government benefits for which eligibility is linked to income or assets, including Medicaid, food stamps, the Children’s Health Insurance Program, the Women, Infants, and Children nutrition program, school lunch subsidies, and Head Start. However, the new standards will not apply to benefits received before September 18.
The new regulation is similar to, but ostensibly less strict than, the regulation adopted by the first Trump administration in 2019. That regulation, which was replaced by Biden’s 2022 regulation, heavily penalized applicants who had received certain government benefits, even for short intervals, while on the temporary visa. Under the new regulation, past benefit receipt will ostensibly not necessarily be disqualifying, depending on the nature of the benefit and why it was received. The administration plans to issue field guidance with more details before September 18.
As with the 2019 regulation, the new regulation’s treatment of past benefit receipt will have little effect if everyone correctly understands it. The administration acknowledges that non-citizens with temporary visas are ineligible for most government benefits and that few adjustment-of-status applicants will therefore have received any benefits for USCIS to consider. Strikingly, the administration notes that, even under the stricter 2019 regulation, not a single application was ultimately denied based on past benefit receipt. Clearly, the new regulation will play no legitimate role in implementing the public charge rule.
Unfortunately, however, the regulation will significantly harm people who misunderstand its provisions. While the 2019 regulation was in force, many people who were not subject to the public charge rule refrained from claiming government benefits to which they were legally entitled because they mistakenly feared that receiving benefits would have adverse immigration effects. Benefits were foregone by refugees and asylees (whom Congress has exempted from the public charge rule), green card holders, and US-citizen children of non-citizens.
Commentators warn, and the administration admits, that a similar chilling effect will occur under the new regulation. The administration estimates that hundreds of thousands of people (“predominantly” people not subject to the public charge rule) will forego claiming $8 billion per year of benefits. It concedes that worse health outcomes and increased poverty may result. The administration urges nonprofits to undertake public outreach to combat the confusion, but it will not fund such efforts.
Perhaps, this chilling effect is the new regulation’s actual purpose. If so, that purpose is completely illegitimate. The administration has no right to impede people who are not subject to the public charge rule from claiming benefits to which they are legally entitled. If the administration believes that the affected people should not be eligible for benefits, it should ask Congress to change the benefit eligibility laws.
The new regulation will create an improper chilling effect while serving no legitimate purpose. Reinstating the 2022 regulation would be a better way to implement the public charge rule.
