This post is jointly authored by Arianna Cook-Thajudeen, Bank of American Foundation Legal Fellow at the National Housing Law Project, and Katherine Lundie, State and Local Policy Analyst at the National Immigration Law Center.
Coming on the heels of the Department of Housing and Urban Development’s (HUD’s) harmful Mixed Status Families proposed rule—which, if finalized, will effectively evict 25,000 immigrant families from federally subsidized housing—the Department of Homeland Security (DHS) officially published the final version of their “Public Charge Rule” that will also have a negative impact on low-income immigrants (which we have started to see already). This rule change has the potential to harm immigrants in the homelessness system based on factors such as income and public benefits usage. If not blocked in court, the rule will go into effect beginning October 15, 2019.
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, and the test will not apply to green card holders seeking U.S. citizenship status.[2]
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, it is expected that the chilling effect will continue to discourage large numbers of immigrants and their families from using critical benefits. [3]
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, for example, under the Totality of Circumstances Test.
Since the mechanics of the rule are quite complex we recommend that Continuums of Care (CoCs) work with legal services or immigration attorneys to help navigate eligibility and public benefits guidelines to meet the needs of their clients.
To learn more about the Public Charge Rule and advocacy, please visit https://protectingimmigrantfamilies.org/.
[1] The benefits considered under the final rule are: Public Housing, Section 8 Housing Choice Vouchers, Section 8 Project Based Rental Assistance, Supplemental Nutrition Assistance Program (SNAP), Medicaid (with exceptions for children under the age of 21, pregnant women, and new mothers up to 60 days after giving birth), as well as cash benefits (cash assistance and Supplemental Security Income (SSI)) and long-term institutionalization.
[2] For a full list of the exempted categories, see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,504-41,505 (Aug. 14, 2019) (to be codified at 8 C.F.R. § 212.23(a)).
[3] According to a December 2018 nationwide survey, about one in seven adults in immigrant families reported a chilling effect where individuals did not participate in government program for fear of risking future green card status. This number was even higher—one in five—among adults in low-income immigrant families. Bernstein, H., Gonzalez, D., Karpman, M., & Zukerman, S. (May 2019). One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018. Urban Institute. https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant_families_reported_avoiding_publi_6.pdf