Efforts to Repeal the Biden Administration’s Public Charge Rule Harm Children and Families Living in the United States

In September 2022, the Biden Administration issued a final rule that defines who is, and is not, considered a “public charge” in certain immigration proceedings.

Some in Congress are seeking to overturn the Biden Administration’s Department of Homeland Security (DHS) regulation through the Congressional Review Act process. Despite misleading statements made by those opposed to the regulation, the new rule does not allow people coming to the U.S. at the southern border to gain access to public benefits, and it does not create or change the eligibility rules of any public benefit.

Nonetheless, this rhetoric was part of a broader messaging strategy used to secure passage of a Senate resolution to repeal the rule, and given that the House will soon vote on the resolution, it’s important to set the record straight:

• Public charge is part of the application process for many people seeking a visa or lawful permanent resident status either at consulates abroad or within the United States. It is not used to determine eligibility for government benefit programs. “Public charge” was created in federal law over 100 years ago, and it is aimed at determining whether people seeking to gain an immigration status are likely to become dependent on the government. For decades, this was defined in sub-regulatory guidance as a person who is or is likely to become, ‘‘primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.’’
• Other long-standing federal laws ban people without a documented immigration status from accessing federal means-tested public benefit programs; they also prohibit many people with a lawful immigration status from accessing benefits during their first five years living in the U.S. The Biden Administration’s public charge rule does nothing to change these bars on eligibility.
• The Biden Administration’s public charge rule largely codifies sub-regulatory public charge policy that was implemented by both Republican and Democratic administrations, before the Trump Administration created a rule that radically redefined public charge and effectively created a wealth test that would have blocked many people without substantial means from passing a public charge assessment.
• The Trump Administration’s public charge policy was opaque and created fear and confusion that resulted in many people forgoing public benefits for which they were eligible. Due to the confusion, many groups such as people with refugee status or children born in the U.S. — who will never be required to undergo a public charge assessment — went without important benefits such as food assistance and health coverage, out of fear that if they received assistance they were eligible for and needed, they or someone in their family would be denied lawful permanent resident status.
• The Trump Administration’s rule was struck down by several courts and withdrawn from the federal register in March 2021 by the Biden Administration.
• The Biden Administration’s public charge rule, now facing the Congressional Review Act process, has been an important step in addressing the fear and uncertainty created by the Trump Administration’s rule. In addition to solidifying policy that had been in place for decades, the rule clarified policies that help immigration officials apply the rules more consistently and help to address uncertainty for immigration applicants. The Biden Administration has also indicated that the Departments of Justice and State will issue rules to align with the DHS rule that would similarly add clarity to the process for all.
• Ending the Biden Administration’s public charge rule would cause confusion and rekindle fear among people who are immigrants and their families, leading people to forgo help they are eligible for and need. It would also make future regulatory action very challenging in this area.

While President Biden has indicated he would veto the resolution, even the attempt to repeal the Biden Administration’s public charge rule could reignite fear and uncertainty and lead people to forgo public benefits. Many people with fears related to public charge have hopes that they or their family member will eventually have a chance to change their status from a temporary one, such as having a student visa, to having a lawful permanent resident status (a green card). They may also be hopeful that one day — often after long waiting periods — their family member living abroad will be able to lawfully immigrate to the U.S.

The ability of families to stay together, reunite with loved ones, and make the U.S. their home often hinges on carefully following a complex set of rules and requirements including public charge. If Congress sends a signal to families that public charge rules will fluctuate based on politics, people will become scared. If they fall on hard times, they may resist using benefits for which they are eligible out of fear that a new Congress or new President may change the rules again in ways that could cause profound harm to their families.