1. Gabrielle Lessard Lessard@nilc.org
Update: Public Charge
Gabrielle Lessard

2. Who We Are National Immigration Law Center (NILC)
Our mission is to defend & advance the rights & opportunities of low- income immigrants and their family members.
We combine policy analysis and advocacy, impact litigation and strategic communications to protect immigrants’ rights and to advance their access to health care, education and economic opportunity.

3. Disclaimers Things are changing fast! There are a lot of unknowns.
We are sharing the information we have at this time.
We are providing general information, not legal advice

4. Public Charge
Have been hearing news reports about

5. Public Charge: Background
A Public Charge has historically been a person dependent on the government for financial and material support
There are two places that the Immigration and Nationality Act talks about Public Charge:
Inadmissibility: whether a person can be denied permission to come to the US or become a permanent resident (§212(a)(4))
Deportability: whether a person can be deported for having become a public charge with 5 years after entering the U.S. for reasons that existed before they came in (§237(a)(5))
Now what?
This an issue that affects lawfully present immigrants

6. Status of Regulations Inadmissibility Deportation
Rule developed by the Department of Homeland Security (DHS)
This is the one we all commented on!
Final rule published 8/14/19
Rule takes effect on 10/15/19
Applications for LPR status submitted before 10/15 will be adjudicated under the prior policy
Rule is being developed by the Department of Justice (DOJ)
The Office of Management and Budget (OMB) is currently meeting with stakeholders about the rule’s impact
If OMB agrees the rule is economically significant, DOJ will have to do more analysis before it is published as a proposed rule
We will need to comment!
Take effect if not stopped by litigation
Submitted – post marked or electronically filed
DOJ rule – need to comment

7. Remember
The likelihood that a person will become inadmissible as a public charge is assessed:
when they apply to enter the US and
when they apply to become a lawful permanent resident (LPR)
There is no public charge test when an LPR applies for citizenship
An LPR who leaves the U.S. for over 6 months will be assessed when they return

8. Who is Subject to Public Charge?
Many immigrants are exempt from Public Charge inadmissibility, including:
Refugees and asylees;
survivors of traf­ficking and other serious crimes;
self-petitioners under the Violence Against Women Act; and
special immigrant juve­niles

9. Statutory Public Charge Test
The inadmissibility test considers whether a person is likely to become a public charge in the future
Based on all of the facts relevant to their ability to support themselves
A person does not have to have used any benefits to be deemed likely to become a public charge
Immigration agents are required by statute to consider a person’s:
age
health,
financial resources,
dependents,
skills and work experience
Other relevant factors may be considered, including whether the person has a sponsor
Other factors include whether the person has a sponsor

10. The DHS Regulations
Unofficially published by DHS on Sept 21

11. Regulations
Change the definition of Public Charge to a person who uses or receives one or more specified public benefits for at least 12 months in a 36 month period
Receiving two benefits in one month counts as 2 months of benefits
Adds health, nutrition and housing programs
New standard – more likely than not to become a public charge
Provides clarification that receipt of or application for benefits on behalf of someone else does not constitute receipt of benefits
Replaces complicated monetizable and non-monetizable standards with a single test

12. Add Standards and Evidence to Statutory Factors
Age: defines working age as 18 – youngest age eligible for Social Security (62)
Health: whether diagnosed with medical condition that could affect ability to work/study or require extensive care/institutionalization in the future
Family: household size as defined in rule
Financial resources:
income at least 125% FPL (or assets equal to 5x the gap for adults, 3x for spouse/child)
Credit report and score or other evidence of liabilities
Whether applied for or received any public benefit; immigration fee waiver
Has private health insurance or resources to pay for reasonably foreseeable medical expenses
Skills and work experience – includes assessment of proficiency in English; education level (negative if not at least a high school degree or equivalent); caretaker status
Household includes people who provide at least 50% support, or to whom you provide at least 50% support, even if not residing in same household
100% FPL for active duty military
Spouse/child of USC
Fee waiver for immigration benefit to which public charge inadmissibility applies

13. Heavily Weighted Factors
Negative:
Authorized to work but not working and not a full-time student, unable to demonstrate recent employment or reasonable prospect of employment
Has received or been certified to receive a public benefit for more than12 months out of the last 36 months
Has been diagnosed with a medical condition that could interfere with work/school or person’s ability to care for themselves or that could require expensive treatment/institutionalization
Uninsured without the prospect of receiving private insurance/paying for care
Previously determined to be a public charge by Immigration Judge or Board of Immigration Appeals
disabilities

14. Heavily Weighted Positive Factors
Household has income or resources of at least 250% of FPL (>$64k for family of 4)
Currently employed in a legal industry with an annual income of at least 250% FPL
Has private health insurance for the expected period of admission that does not include ACA plans subsidized by premium tax credits T

15. Which benefits are considered?
Federal, state, local or tribal cash assistance for income maintenance, and
certain noncash medical, housing and food benefits:
Medicaid (with exceptions)
SNAP
Section 8 vouchers & project-based
Public housing
Benefits received by or attributed to the person
This Photo by Unknown Author is licensed under CC BY-NC-ND

16. Exceptions Services received for an emergency medical condition
Health benefits received by a person under 21 years of age
Health benefits received by a woman during pregnancy and for 60 days after
Benefits received by active duty or Ready Reserve members of the armed forces and their spouses and minor children
Benefits received while a person was exempt from public charge
Emergency defined by reference to emergency Medicaid but can be through full-scope

17. Excluded Benefits Everything not listed!
School-based nutrition services
Public education, including Head Start
WIC
ACA tax credits
EITC
Medicare Part D financial assistance
No retroactivity
This Photo by Unknown Author is licensed under CC BY-SA

18. Messages
While in some ways this rule is better than the prior versions, it’s still an attack on immigrant communities!
Public charge is part of a larger assault on immigrants
Puts millions of families at risk, threatens to worsen child poverty, hunger, and unmet housing and health care needs, and will ultimately harm whole communities and our nation.
Key points when speaking with individuals or media
Note who the rule DOES NOT apply to
NILC and its partner organizations plan to sue to block DHS’s final public charge rule from taking effect.
San Francisco and Santa Clara counties have already sued

19. Advocacy Asks Federal level - Engage MOCs to act
Ask your MOCs to cosponsor HR “No Federal Funds for Public Charge”
Ask your MOC to speak out in opposition to the rule.
State and Local Officials and Agencies
We will have a factsheet form our state policy subcommittee that will further outline how to mitigate the harm
Partner & Community Education
Fight fear with facts - start updating your resources and materials, and figure out how to triage issues and questions from community members and allies.
Let us know what questions you are getting from community members.

20. Resources Updated public charge resources based on the final text
AVAILABLE NOW: Communications Toolkit
AVAILABLE NOW: Digital Toolkit for Rule Finalization
If you have additional questions on the DHS finalized rule, you can submit them here:
q5LTNtSkwuHL4J5r7XLPxNdUDiRSD6gosebAn1VbuRrg/viewform
(This form is for organizational partners. We cannot give advice in individual cases.)