Biden rescinds ‘public charge’ immigration rule

PRESIDENT BIDEN last week took the final step to rescind a controversial rule promulgated by former president Donald Trump that made it harder for aspiring immigrants to prove they would not become reliant on government assistance.

There is virtually no hard data on what impact the “public charge” rule had during the year it was in place, but advocates say, anecdotally, that it had a chilling effect, preventing many immigrants from obtaining financial and even medical assistance that they were entitled to out of fear it would hurt their chances of getting a green card.

Eva Millona, president of the Massachusetts Immigrant and Refugee Advocacy Coalition, said many immigrants became reluctant to use any safety net programs, including those related to COVID-19 testing or getting medical care for their children. “The fear of being removed from the US really played a role in families accessing those services,” Millona said, adding that a “wealth test” also made it harder for immigrants to bring family members into the US.

Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights, said immigrants can breathe a sigh of relief, but he said it will take time to address the fear that has built up over four years of Trump’s presidency. “Clarity from federal government is critical, but it’s going to take time to change perception on the ground,” he said.

A long-standing provision in US immigration law requires immigrants to show they are “not likely to become a public charge” in order to enter the country or, if they are already here, to get permanent resident status. Trump made it harder for immigrants to satisfy the requirement.

A 1999 memo promulgated under former president Bill Clinton said someone would be likely to become a “public charge” if they received cash assistance or government-funded institutional long-term care, such as at a nursing home. Trump’s public charge rule, which went into effect in February 2020, expanded the order to include anyone who uses the Supplemental Nutrition Assistance Program (food stamps), federal Medicaid, or public or subsidized housing.

The 1999 memo required an immigrant or their sponsor to have an income or assets of 125 percent of the federal poverty level, or $32,750 for a family of four in 2020, in order to pass the public charge threshold. Trump’s rule established a higher income threshold – 250 percent of the federal poverty level – which meant people with incomes below $65,500 for a family of four would face a higher risk of not getting their application approved.

Immigrant advocates challenged Trump’s policy, and a case was working its way through the court system when Biden took office, and his Department of Justice announced it was dropping its defense of the Trump-era policy. The court case was dropped, and on March 9 the rule was vacated. Last Thursday, the Department of Homeland Security formally filed a notice with the Federal Register removing Trump’s 2019 policy from the books, which means the 1999 Clinton-era guidance is now law.

Before the Trump rule went into effect, there were several estimates of how it would affect Massachusetts residents. A report by the Boston Foundation estimated that up to 510,000 people in Massachusetts could be affected.

Attorney General Maura Healey, who joined a lawsuit opposing the change, estimated that between 39,600 to 92,400 MassHealth members would drop coverage along with up to 60,000 people in state-subsidized “ConnectorCare” health plans. The Blue Cross Blue Shield Foundation estimated that 55,000 to 129,000 people would disenroll in MassHealth, while 27,000 to 63,000 would forgo food assistance.

Healey’s office, The Boston Foundation, and the Blue Cross Blue Shield Foundation all said they had not updated their numbers since the law went into effect.

Generally, there has been a large increase in the use of public benefits in the last year due to the pandemic. Mario Paredes, staff attorney at the Massachusetts Law Reform Institute, said he anticipates studies will be done on the impact of the public charge rule, but none have come out yet. “In some ways, it’s difficult to measure because a lot of it is anecdotal,” Paredes said. Government agencies don’t generally track who is eligible for benefits but not getting them.

A national survey done by the Urban Institute found that in 2020, 27.7 percent of adults in immigrant households where at least one member was not a permanent resident reported that they or a family member avoided using a non-cash benefit, like Medicaid, food or housing assistance, because they feared it would affect their future green card application.

In Massachusetts, Health Care for All runs a help line for people seeking health insurance, and the organization reported that between March 15, 2020, and March 15, 2021, the help line received 495 calls that mentioned the public charge rule. Maria Gonzalez, a spokesperson for Health Care for All, said the organization has heard from families who went without health insurance or unenrolled from coverage after the rule went into effect.

Espinoza-Madrigal said he heard from families as the COVID-19 pandemic raged who were scared to get tested for COVID, to go the hospital for treatment, or more recently to get the COVID vaccine because they mistakenly thought those actions would trigger the public charge rule.

Advocates say part of the problem was that a leaked earlier version of the policy was more expansive than what actually became law – for example, the earlier version covered asylum-seekers and refugees; the final policy did not. So there was confusion about the policy, and a general fear that went beyond what was actually covered.

One national report  released in March 2020 by the Migration Policy Institute estimated that while just 1 percent of non-citizens are likely to be denied a green card based on benefit use, a sizeable number (the Urban Institute estimated 14 percent) may voluntarily disenroll from benefits due to fear of the rule.

“The impact of this rule went far beyond the narrow confines of the actual public charge policy that was put into place,” said Andrew Cohen, supervising attorney at Health Law Advocates. He said many individuals reached out for legal advice and were told they were legally entitled to the benefits they needed. “Yet these same people don’t go ahead and get benefits,” he said. “They were scared it will affect their possibility of getting a green card in the future.”