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Nov 8, 2021

President Biden Receives Proposals for ‘Public Charge’ Rule

Stephen Antwine

As of late October 2021, the Biden administration, unveiled plans to revamp the definition of the infamous public charge rule. DHS has received nearly 200 comments prior to its October 22 deadline for public feedback on the administration’s plan to replace the rule announced under the Trump administration. 

Comments submitted to DHS came from a wide range of groups including AILA (American Immigration Lawyers Association) and the National IMmigration Law Center, who together submitted a joint comment imploring DHS to define and apply the rule as to someone “likely to become primarily and permanently reliant on the federal government to avoid destitution.” The definition urged by AILA would be a drastic change from the rule announced under the Trump administration which defined a public charge as any immigrant who “received one or more public benefits.” The broad Trump-era definition essentially made the public charge rule a de facto wealth test. However, groups advocating for more limited immigration to the U.S. have argued that the rule did not disadvantage poorer immigrants, but rather acted as a “self-sufficiency analysis.” 

Prior to the Trump-era rule, the public charge was not applied only to foreign citizens who received non-cash benefits such as SNAP (Supplemental Nutrition ASsistance Program) or Medicaid. Those critical of the Trump-era rule have long feared that immigrants who need the assistance of benefits would be deterred by the “chilling-effect” created by the Trump-era rule. Discouraging the most vulnerable from seeking assistance for fear of losing status. Many immigration advocacy groups have long decried the Trump-era definition as too broad, as “[m[any people receive only modest public benefits that supplement their earnings by improving access to nutrition, health care and other services…[u]sing these supplemental benefits will not make a person a public charge.” 

DHS sought input and public comment ahead of the planned adjustment to public charge, in an attempt to develop and implement a rule that would have disproportionately negative impacts on certain groups, such as those with disabilities or groups with certain ethnic backgrounds. Immigration advocates have offered, among their concerns, that weighting certain factors like income, and education too heavily could negatively impact immigrants hailing from places with generally low wages and poor education systems. In an effort to deter, or at least mitigate such negative impacts, advocates have argued that the agency should put forth a public charge rule should consider a totality of an individual’s circumstances when determining whether they’re likely to become a public charge. 

If you have any questions about this policy, the public charge analysis generally, or your specific case please feel free to contact Green & Spiegel at or call the Philadelphia Office directly at (215) 395-8959.

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Stephen Antwine

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