Revocation of the “Public Charge” Rule

Readers of our blog know that Haider, Alex and I have a longstanding interest in the intersection of health care law and immigration law.  That’s important for our blog, especially because of the needs of the immigrant community to be able to access critical healthcare services through the Medicaid program.  Over the past couple of years, we’ve written extensively about a regulation published by the Department of Homeland Security (DHS) in 2019 that’s known as the “public charge” rule.  Last week, after a series of announcements by the Biden Administration, the rule has, in effect, been revoked.

As a refresher, US immigration law has long barred admission to the United States by foreign nationals who are “likely at any time to become a public charge.”[1]  This public charge prohibition applies both to individuals seeking a visa at a U.S. Consulate overseas to visit the United States, and to foreign nationals in the United States seeking to “adjust status” – in other words, to obtain a green card.  Although this policy has been in effect for over 100 years, US immigration officials have never particularly defined in great detail what the term means.  That changed in August of 2019, when the Trump Administration finalized a rule that would have set forth clear criteria to exclude foreign nationals from admission to the United States or from obtaining a green card based on their receipt of public benefits.  Because one of those public benefits was the Medicaid program, we discussed it here on our blog.

As we described in a subsequent blog post, the regulation was challenged in – and enjoined by – multiple federal courts.  In February of last year, the United States Supreme Court dissolved those injunctions and DHS began implementing the rule.  But shortly after, three federal courts of appeal issued new injunctions blocking the rule from taking effect, and the United States District Court for the Northern District of Illinois vacated the rule.  It has not been in effect since then, and DHS, under the Trump Administration, asked the Supreme Court to review the lower court decisions.

A lot happened last week.  Following an Executive Order in early February from the newly electing Biden Administration directing DHS to “review the public charge rule and related policies,”  the Biden Administration’s Justice Department informed the Supreme Court that it would no longer defend the rule, and that all parties to the litigation now agreed that it should be dismissed.  Within hours of that submission, the Supreme Court dismissed the litigation.  Then, the next day, DHS filed a notice with the Federal Register announcing that it would remove from the Code of Federal Regulations the text of the Trump Administration’s rule.  As a result of these actions, the rule has been revoked and the litigation challenging it has been dissolved.

It’s important to note that the underlying concept of the public charge bar on admission to the United States has not been repealed and remains in effect.  Consular officers overseas and immigration officials in the US can still, in the exercise of their discretion, bar someone from admission to the United States or deny a green card on public charge grounds.  What has changed is that the receipt of public benefits like Medicaid by a foreign national will no longer be a “heavily weighted negative factor” (in the words of the now-revoked regulation) in determining whether or not a foreign national is likely to become a public charge.

Here at the Medicaid and the Law Blog, Haider, Alex and I have all advised some of our clients on the effects of the rule.  We continue to believe that it’s important for immigration attorneys to have a basic understanding of the American health care system in order to properly advise clients of their options, their rights, and the implications of accessing public health programs like Medicaid.  That job has gotten a bit easier in light of last week’s actions by DHS and the Department of Justice.

[1] Immigration and Nationality Act § 212(a)(4).

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