Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

Final Public Charge Rule Greatly Improves Protections for Immigrant Families

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Last week, the Department of Homeland Security (DHS) issued a final public charge immigration rule that greatly improves protections for immigrant families. We thank the Biden Administration for confirming in the final rule that eligible immigrant families can enroll in Medicaid and other nutrition, and housing programs without fear of negative public charge consequences. According to DHS the final rule will be effective on December 23, 2022. This 2022 final rule replaces the harmful and discriminatory 2019 rule that was finalized under the Trump Administration on August 14, 2019. The 2019 final rule is no longer in effect.

The Center for Medicare Advocacy has joined with other advocacy organizations to push back against the harmful 2019 rule for years, including by commenting on the proposal and joining in filing amicus briefs in several lawsuits challenging the 2019 rule. The 2019 rule represented a drastic change in how applicants for lawful permanent residency (green cards) were evaluated; it was particularly troubling because of the impact on older immigrants, including those who are dually eligible for Medicare and Medicaid. Under the 2019 rule, the definition of “public charge” was expanded so that use of programs that are often vital to the livelihood of older adults, such as Medicaid, SNAP (food stamps), or housing benefits, could jeopardize the pathway to a green card.

As The Center wrote in a previous statement, “The [2019] public charge rule was essentially a wealth test on lawful immigration that ran contrary to decades of settled law and the immigration priorities of the United States. It discouraged family unification and forced families to choose between health care, food, housing, and a future in the United States. Older adults and people with disabilities were particularly disadvantaged because factors such as age, health, income and employability were used to evaluate and deny green card applications under the rule.”

The DHS press release for the 2022 final rule includes the below summary:

Under this rule, as under the 1999 Interim Field Guidance that was in place for most of the past two decades, a noncitizen would be considered likely to become a public charge if DHS determines that they are likely to become primarily dependent on the government for subsistence. This determination will be based on:

  • The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the Immigration and Nationality Act (INA);
  • The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and
  • The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

DHS will not consider in public charge determinations benefits received by family members other than the applicant. DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible. These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

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