Section 212(a) (4) of the Immigration and Nationality Act (INA) renders noncitizens inadmissible if they are “likely at any time to become a public charge.”

The public charge rule applies to noncitizens requesting admission to the U.S. or applying for lawful permanent residence from within the U.S. Under INA, a noncitizen, likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long term care at government expense can be denied admission or lawful permanent residence.

The 2019  public charge rule, which was ultimately vacated and no longer if effect,  had a harmful effect of discouraging individuals from seeking benefits like Children’s Health Insurance Program (CHIP), Supplemental Nutrition Assistance Program (SNAP),  and other government services for which they, their children, or their families were eligible, out of fear of jeopardizing their immigration status.

DHS will no longer 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. Instead DHS will limit such considerations to public cash assistance for income maintenance and long term institutionalization at government expense based on the totality of the circumstances of a public charge inadmissibility determination under section 212(a)(4)(A) and (B) of the INA. The publication of this rule in the federal register avoids confusion by formally codifying the historical understanding of ‘public charge’ that had been in effect for decades.

While the final rule will be effective on December 23, 2022, does not expand eligibility for Medicaid, CHIP, or other benefits to more people but provide clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility.

By: Staff Attorney