The Department of Homeland Security (DHS) announced Thursday that it would propose a regulation on how it will apply the “public charge” ground of inadmissibility. The agency posted a prepublication version today and will publish the official version in the coming days. The agency said it will “return to the historical understanding of the term ‘public charge.’”

Key Points:

  • The proposed rule is expected to formalize longstanding guidance that is being applied today and was in place from 1999 until the Trump administration’s 2019 regulation. This guidance requires adjudicators to consider only certain cash benefits in determining if an individual is subject to public charge inadmissibility.
  • The proposed rule is expected to continue to exclude noncash benefits from the public charge inadmissibility determination, such as food and nutrition assistance (SNAP), the Children’s Health Insurance Program (CHIP), most Medicaid benefits, housing benefits and transportation vouchers, pandemic assistance, tax credits and deductions and other earned benefits.
  • The advance copy indicates that the agency will not seek to apply the public charge determination to applications to change or extend nonimmigrant status, as the Trump administration did.
  • After the proposed regulation is officially published, DHS will accept comments from the public for a 60-day period.

Background: The Trump administration significantly expanded the scope of “public charge” inadmissibility in a 2019 regulation that faced multiple lawsuits and was vacated in court. The Biden administration did not enforce that rule and stopped defending it in legal challenges, withdrawing appeals that were pending in the U.S. Supreme Court and other appellate courts.

The Supreme Court is scheduled to hear arguments on Feb. 23 regarding whether a group of states led by Arizona may intervene to defend the Trump administration’s regulation despite the federal government’s withdrawal of its defense of the rule. The government submitted a letter today notifying the Court of the forthcoming proposal.

BAL Analysis: U.S. Citizenship and Immigration Services (USCIS) is currently applying the longstanding public charge framework that was in place before the Trump administration rule. The agency has provided guidance on its website to prevent confusion among applicants, particularly around seeking medical care during the COVID-19 pandemic.

The Biden administration’s intent to maintain the historical reading of the “public charge” ground of inadmissibility is welcome, though additional litigation is expected. BAL will follow regulatory and judicial developments and will provide updates as information becomes available.

This alert has been provided by BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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