Update on the Public Charge Rule

The US Supreme Court recently allowed the Department of Homeland Security’s (DHS) “Public Charge Rule” to take effect nationwide, with the exception of Illinois due to a statewide injunction. This rule is anticipated to have a negative impact on low-income immigrants (we have started to see the effects already). Immigrants in the homelessness system might be particularly vulnerable based on factors such as income, education, and public benefits usage. This rule will go into effect February 24, 2020.

Update: On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.

What Is Public Charge?

The Rule on Inadmissibility on Public Charge Grounds, or the “Public Charge Rule,” makes it easier for DHS to classify certain immigrants as a “public charge,” which can result in them being denied admission into the country or prevent them from receiving a green card.

The public charge test is a forward-looking assessment: it makes a determination of the individual in the future. Under the rule, an individual may be deemed a public charge based on a variety of circumstances:

  • The Totality of Circumstances Test
    In this test, officials determine whether someone is currently, or is likely to become, a public charge based on several factors including income, age, health, and education level. Certain factors like having a job and good health are considered positive factors on an application. However, things like having a low income or being over the age of 60 can be considered negative. The rule counts incomes below 125% of the Federal Poverty Level ($32,187 for a family of four) as a negative factor. Providers could potentially see immigrants in the homelessness system heavily affected by the Totality of Circumstances test.
  • Public Benefits Use
    Under the rule, the use of certain federal benefits (such as Medicaid or Section 8 housing vouchers) at or above a specific threshold will be considered a “heavily-weighted negative factor” in an applicant’s totality of circumstances determination. Under the Final Rule, an individual will meet the definition of a public charge if they use 12 months of any of the considered benefits within a 36-month period, with the use of multiple benefits in one month counting as multiple months (e.g., the use of two benefits in one month would count as two months).[1] However, DHS has stated that any use of the covered benefits will be considered in the totality of circumstances test.

What does this mean for legal immigrants experiencing homelessness?

It is important to note the Public Charge Rule does not apply to all immigrants. There are several immigration categories that are exempt under the rule, such as asylees and survivors of trafficking and domestic violence. Also, the test will not apply to green card holders seeking U.S. citizenship status.

Another noteworthy mention is that many programs are not included in the public charge. Food and nutrition programs like Women, Infants, and Children (WIC) and Children’s Health Insurance Program (CHIP) are excluded.

However, advocates have been documenting the “chilling effect” since the proposed rule was published last October—where immigrants not directly affected by the rule nevertheless choose to give up or forego public benefits out of fear. Now that the rule has been finalized, and the nationwide court injunction has been lifted, it is expected that the chilling effect will continue to discourage large numbers of immigrants and their families from using critical benefits.

Legal immigrants experiencing homelessness possibly face harm under the rule from a variety of factors such as the lack of wealth and the use of the covered public benefits, which could invoke a negative rating under the totality of circumstances test, impacting their immigration status.

Even immigrants experiencing homelessness that avoid the benefits enumerated under the rule all together could still be considered a public charge due to their low incomes and education, for example, under the Totality of Circumstances Test.

Since the mechanics of the rule are quite complex, here are some things Continuums of Care (CoCs) can do to assist their clients:

  1. Work with legal services or immigration attorneys to help navigate eligibility and public benefits guidelines to meet the needs of their clients
  2. To learn more about the Public Charge Rule and advocacy, please visit the Protecting Immigrant Families campaign website. 

Lastly, advocates can use their voice and ask their members of Congress to deny federal funds to public charge efforts: telling their elected officials to co-sponsor Rep. Judy Chu’s bill (H.R. 3222 – No Federal Funds for Public Charge Act) or Sen. Mazie Hirono’s bill (S.2482 – Protect American Values Act). Let’s do all that we can to ensure that immigrants experiencing homelessness are not penalized for being homeless.