As a Public Charge Rule is Finalized by DHS, Concern Over Upcoming DOJ Rule Grows

Last Fall, we wrote about a proposed regulation issued by the Department of Homeland Security that involved one of our favorite topics:  the intersection of immigration and health care law.  My colleague Christian Springer and I have been following this proposed regulation very closely, and last week, it was issued in final form.  Because it has generated enormous press attention and because it has significant implications for the Medicaid program, we thought we would use our blog to update our readers on the DHS rule, as well as an anticipated rule from the Department of Justice on a similar policy.

Background

The rule involves an interpretation of a provision of section 212 of the Immigration and Nationality Act – the law that governs America’s immigration system, and that we will call the “INA” in this post.  Section 212 of the INA specifies classes of individuals who are “inadmissible to the United States.”  Under the statute, an individual who has a communicable disease, an individual who has committed a crime involving moral turpitude within the United States or who has committed a “serious nonpolitical crime” outside of the United States, and an individual who is a threat to national security, are all inadmissible.  In addition to these categories, an individual who is “likely at any time to become a public charge” is also inadmissible.  INA § 212(a)(4).  That is the topic of the regulation issued last week and of our post.  The new regulation implements some new definitions of the term “public charge” for purposes of determining whether an alien (i.e., a non- U.S. citizen) is inadmissible to the United States.

The public charge provisions of the law have existed, in some form, since at least the 1880s, and it has not been defined or updated since the late 1990s.  At that time, the Immigration and Naturalization Service (INS, now the United States Citizenship and Immigration Services, or USCIS) essentially defined an individual who was likely to become a public charge as an individual who received cash welfare benefits or an individual who relied on Medicaid to cover their long-term institutionalization.  The new rule goes far beyond this definition.

It sets forth a series of factors that adjudicators will use to determine whether or not an individual is likely to become a public charge.  But in addition to listing these factors, the rule provides explicit directives to adjudicators as to how much weight to give these various factors; previously, adjudicators could use their own judgment in determining which factors were relevant.

Under the rule, the prior receipt of a set of specified public benefits for more than 12 months in a 36-month period is a significant factor in determining whether or not an individual is likely to become a public charge in the future.  And turning now to the topic of our blog, these specified benefits generally include the receipt of Medicaid, although the final rule exempts the receipt of Medicaid by a child under the age of 21 and by a pregnant woman (up to six months after the birth of her child).  It also exempts emergency medical services that are paid for by Medicaid and provided to an alien.  But other than these exemptions, applicants for an immigration benefit would be required to disclose past receipt of public benefits when applying for that benefit.

So who does the Department of Homeland Security’s rule apply to?

The rule applies to two classes of aliens:  those who are seeking to enter the United States (for example, by applying for a visa to come to the United States at a U.S. Embassy or Consulate overseas) and those who are already in the United States and are seeking to adjust their status (i.e., to obtain a green card).  In the case of a visa applicant, the adjudicator will be a consular officer who will use the new policy to determine if the visa applicant is likely to become a public charge.  In the case of an alien seeking to adjust status (e.g., applying for a green card after marrying a U.S. citizen), the adjudicator will be a USCIS officer who will use the new policy to make this determination.  If either the consular officer or the USCIS officer determines the applicant is likely to become a public charge based on a “totality of the circumstances”, they can deny the immigration benefit being sought (the visa or the green card).

Under the INA, the rule will not apply to some classes of aliens:  most notably, aliens who enter the U.S. as refugees or aliens who are in the United States and who apply for and receive asylum.  Additionally, DHS clarified that some visa applicants (such as victims of crime applying for a U visa) and applicants under the Violence Against Women Act (VAWA) are statutorily exempt from inadmissibility based on public charge grounds.

That said, in just the past week, we have already observed in our practice that even the announcement of the rule has had a chilling effect on non-U.S. citizens seeking public benefits to which they are clearly entitled.  For example, an alien who has been granted asylum and who is otherwise categorically eligible (such as a parent with children in the family, for example) can qualify for Medicaid, notwithstanding the five-year bar on most government benefits applicable to most aliens.  But because that asylum recipient will be eligible to apply for a green card one year after their grant of asylum, they may delay or defer enrolling in Medicaid for fear that their application will be used against them when the time comes to apply for a green card.  And this is particularly unfortunate, because such an individual is not affected by the rule at all – demonstrating the importance of making sure that non-U.S. citizens have accurate information about the law and their rights.  The Department of Homeland Security admitted that this chilling effect will also directly affect hospital revenues; individuals who seek care who do not have Medicaid will have that care treated as charity care for which the hospital will not be reimbursed.  84 Fed. Reg. at 41476 (Aug. 14, 2019).

A Department of Justice Public Charge Rule

As if all of this were not enough, according to the Office of Management and Budget’s (OMB) website, there is another public charge rule pending review, this time to be issued by the Department of Justice.  Although information about the rule is skeletal, we speculate that the purpose of this proposed rule is to conform the public charge policies that apply under the just-issued final rule to consular officers and USCIS officers to public charge policies that will apply to Immigration Judges who are governed by Justice Department, and not Department of Homeland Security, regulations.

But we have also noticed that the Justice Department has cited a different section of the INA as authority for the rule being reviewed by the OMB.  That other section of the INA, specifically section 237(a)(5), provides that a non-citizen can be deported from the United States for being a “public charge”.  Thus, the Justice Department’s rule may not only involve a reinterpretation of the “public charge” provision in the inadmissibility context, but also of a “public charge” in the deportability context. We will have to see the provisions of this rule when it is cleared for release, but if our speculation is correct, it is likely that the release of this rule will also contribute to a significant chilling effect on aliens accessing public benefits to which they are entitled.

For right now, the Department of Homeland Security public charge regulation will take effect on October 15, 2019.  The Department is clear that the new policy will only apply to applications for immigration benefits submitted on or after that date; applications currently pending will be assessed under the current, 1999 policy that we mentioned earlier.  But word travels fast in the immigrant community and there is already significant misinformation about the rule.  Hopefully, readers of today’s post can help to clarify some of the confusion.

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