Last week the US Supreme Court granted the president’s request to immediately begin enforcing the Department of Homeland Security’s new “public charge” rule which overhauls how DHS makes decisions about granting legal permanent resident applications. The final rules block legal immigrants from extending their temporary visas or gaining permanent residency if DHS decides the applicant is “likely to rely on designated public benefits in the future”.

The implementation of the new public charge” final rule now has the green light while it’s under judicial review in the lower courts. The SCOTUS issued this Order (which is different from a full on opinion). The Order stayed the temporary injunction issued by the district court.  If DHS gets the result they want in the lower courts, then the Plaintiffs (NY etc.) will appeal to the supreme court.  As is often the case these days, it was a 5-4 decision with the usual cast of characters on each side of the issue.

DHS will now begin considering whether applicants for legal permanent status have received Medicaid (AHCCCS), the Supplemental Nutrition Assistance Program (food stamps), or Section 8 Housing assistance in the past.  The definition of a “public charge” in the new Rule is: “an individual who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period”. 

Medicaid limits eligibility (for immigrants) to qualified legal immigrants with refugee status, veterans, and people lawfully present in the US for 5 years or more. State Medicaid programs can elect to provide coverage to legally present immigrants before the 5-year waiting period ends (Arizona does not). 

States get matching funds from CMS when they choose to provide Medicaid coverage to legally present immigrants who are children or pregnant before the end of the 5-year waiting period.  33 states have elected to cover lawfully residing immigrant children and 25 states cover legally present pregnant women – Arizona does not.

Fortunately, the new Rule doesn’t consider whether benefits were used by an applicant’s kids. So, lawfully present kids that are receiving benefits (e.g. Medicaid) won’t have that used against them if the child later applies for legal permanent residency (a “green card”).  The public charge rule will use a “totality of the circumstances” test for applicants, which means that DHS will use the statutory factors and now the new factors laid out in the final rule.

Here are some things to remember about this new Rule

  • This is an issue of legal immigration- unauthorized migrants are largely ineligible for public assistance;

  • This doesn’t directly impact current legal permanent residents (current green card holders). The public charge test won’t be applied to legal current residents (green card holders) applying for citizenship;

  • The new rule isn’t retroactive – meaning public benefits received before 10/15/19 won’t be counted as a public charge; and

  • The new rules don’t apply to refugees. Existing statute prevents DHS from using these criteria for refugees and a couple of smaller exempt groups.

However, this issue is still not resolved. A group of states are still challenging the new DHS regulations arguing that the new rules are inconsistent with the law passed by congress a couple of decades ago (on which the new rules rest).  The district court ruling from a few months ago agreed with the challengers that they were likely to win, and temporarily blocked DHS from implementing the new regulations.

Public health note: 

Even though the final Rule excludes benefits received by children, this policy will still have a significant impact on children’s health as well as the health of their families and our communities.

We know from both national reports and from assistors and community organizations working in Arizona, that families are afraid and withdrawing from or reluctant to participate in benefits for which they or their children are legally eligible. Nationally, nearly one in four children have an immigrant parent, and almost 90% of them are US citizens.  Missing out on safety net programs for which folks are entitled can result in bad health outcomes because of social determinants that won’t be addressed and missed doctor’s appointments which could result in missed developmental screenings and interventions.

The fate of the new regulations are in the hands of the Judicial branch and to some extent in the hands of the voters this fall.

What we can do is to get the word out to families in this category that signing up their kids for safety net benefits to which they’re entitled won’t count against them when they apply for legal permanent status- nor will it count against their kids if they eventually apply for a green card. We can minimize the public health impact of this decision if the public health system is effective in ensuring that families know this important information!