Senate Passes Measure to Restore Trump-Era ‘Public Charge’ Rule

Senators voted 50-47 to overturn the rule, with two Democrats joining all of the chamber's Republicans.

The Senate passed a measure Wednesday to cancel a Biden administration immigration rule that scaled back the number of benefits that would be counted against immigrants when applying for permanent residency in the United States. 

According to the current rule, immigration officers would look at “the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense” in an effort to evaluate if a person would become a “public charge” who is ineligible to become a permanent resident.

The public charge ground of inadmissibility has existed for decades (INA §212(a)(4) and INA §237(a)(5)) but the regulation have now codified the rules for determining if someone is a public charge this May 2023 at 8 CFR §212.23. The Trump administration began enforcing it more aggressively and released a policy memorandum describing the rule that immigration officers should apply to determine if an applicant for permanent residency would be a public charge. This was a big deal back in 2020 and you probably saw a lot of news covering the issue. It had gone up SCOTUS at one point and Federal Courts had put injunctions in place to temporarily block it prior to that. The reason for codifying the rule for determining public charge was in an effort to keep it mort consistent so the next administration would not drastically change the policy again. 

The Trump-Era rule strictly prohibited the collecting of any government assistance.  The Biden administration released a more relaxed rule that took effect in December 2022, which made the collecting of government benefits only one factor that would be considered and not automatically disqualifying. 

More guidance on this can be found in the at 9 FAM 302.8 .

9 FAM 302.8-2(B)(1)  (U) Definition of Public Charge

(CT:VISA-1593;   07-29-2022)

a. (U) In General: 

(1)  (U) When determining ineligibility under INA 212(a)(4), the term "public charge" means that an individual, after admission into the United States, is likely to become primarily dependent on the U.S. Government for subsistence. This means either:

(a)  (U) Receipt of public cash assistance for income maintenance (see paragraph b below); or

(b)  (U) Institutionalization for long-term care at U.S. Government expense (see paragraph d below).  Short-term confinement in a medical institution for rehabilitation does not constitute primary dependence on the U.S. Government for subsistence.

(2)  (U) When considering the likelihood of an applicant becoming a “public charge,” you look at the totality of the applicant's circumstances at the time of visa application.  See 9 FAM 302.8-2(B)(3) below.

(3)  (U) In determining ineligibility under INA 212(a)(4) many factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of a qualifying affidavit of support, in accordance with INA 213A, if required, will determine whether an individual is a public charge.

b. (U) Defining Public Cash Assistance:  In the "public charge" context, "public cash assistance” for income maintenance includes:

(1)  (U) Supplemental security income (SSI);

(2)  (U) Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and

(3)  (U) State and local cash assistance programs that provide for income maintenance (often called state general assistance).

(4)  (U) These types of assistance are sometimes also referred to as “means tested benefits.” 

Senate's New Measure

Republicans in the Senate (and two Democrats) are pushing to return to the Trump-Era rule, which will more strictly enforce this policy. Specifically pushing for the receipt of government benefits to be a bar to obtaining legal residence  in the U.S.

Current Rule

The current Biden rule that is in effect now (and took effect in December 2022) can be found here on the USCIS website. See the Press Release detailing the entire rule here. 

When making a public charge inadmissibility determination under this final rule, DHS will consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills;” a sufficient Affidavit of Support Under Section 213A of the INA (when one is required); and prior or current receipt of: supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

DHS will not consider receipt of noncash benefits (for example, Supplemental Nutrition Assistance Program, public housing, school lunch programs, etc.) other than long-term institutionalization at government expense.

 published a Policy Manual update providing guidance to USCIS officers on how to implement this regulation fairly and consistently and informing the public about how the rule will be implemented. USCIS will begin applying the policy guidance (PDF, 714.16 KB) on Dec. 23, 2022, to applications filed (or electronically submitted, if applicable) on or after that date.