New Public Charge Policy Raises Concerns Among Immigrant Advocates

-Editorial 

A new Trump administration public charge policy is set to take effect Sept. 18, changing how federal immigration officials evaluate whether certain immigrants seeking permanent residency could become dependent on government assistance.

Immigration advocates and attorneys say the changes could have broader consequences for immigrant and mixed-status families, particularly those who participate in health care, nutrition, housing and other public assistance programs. They also caution that the public charge test does not apply to all immigrants or immigration applications.

During a media briefing hosted by American Community Media ahead of the policy’s implementation, Adriana Cadena, executive director of the Protecting Immigrant Families Coalition, said uncertainty surrounding the changes is already affecting immigrant communities.

“It’s extremely important to be clear about who this impacts,” Cadena said, adding that families also need information about how they can obtain assistance.

Public charge has been part of U.S. immigration law since the Immigration Act of 1882. The provision is used in certain immigration cases to determine whether an applicant is likely to become primarily dependent on the government.

Cadena said the way the provision has been interpreted and enforced has changed considerably over its history.

“For over a century, there was no clear guidance on how to apply public charge,” she said.

Federal guidance issued during the Clinton administration generally limited consideration to two categories of assistance: cash assistance for income maintenance, including Temporary Assistance for Needy Families and Supplemental Security Income, and government-funded long-term institutional care.

The first Trump administration significantly broadened the public charge framework in 2019, allowing immigration officials to consider participation in additional programs, including Medicaid, Supplemental Nutrition Assistance Program benefits, and certain federal housing assistance.

Cadena criticized that expansion, arguing that many of those programs are routinely used by working families.

“Accessing these programs is critical for basic survival in today’s economic system,” Cadena said. “It’s not a dependency.”

The 2019 rule generated widespread opposition from immigrant advocacy organizations, health care groups and several state governments and became the subject of litigation across the country.

The Biden administration later adopted a regulation in 2022 that narrowed the public charge determination. Under that framework, federal officials generally did not consider participation in programs such as SNAP and most Medicaid benefits when determining whether someone was likely to become a public charge.

The regulation also established protections involving benefits received by an applicant’s children or other family members.

Cadena said those provisions were particularly significant for mixed-status households, where some family members may be U.S. citizens while others are pursuing changes to their immigration status.

“Child or family members’ use of benefits would not be considered in a public charge evaluation,” Cadena said of the 2022 framework.

She said the incoming policy removes those protections and gives Department of Homeland Security officers greater discretion when reviewing individual cases.

According to Cadena, the changes could allow immigration officers to consider a wider range of safety-net programs and circumstances when assessing applicants.

She said benefits received by U.S. citizen children, including participation in the Children’s Health Insurance Program or Head Start, could potentially become part of the broader assessment of a household’s financial circumstances.

Cadena argued that the greatest effect may extend beyond immigrants whose applications are ultimately denied.

“The real threat that we see is an effect to deter immigrant families from accessing these benefits,” she said.

Advocacy organizations refer to that phenomenon as a “chilling effect,” in which immigrants or their relatives avoid programs because they fear participation could have immigration consequences, even when they remain legally eligible for those services.

Cadena said similar concerns emerged following implementation of the first Trump administration’s public charge policy.

“This new public charge policy is intended to force families to choose between applying for a green card, either now or in the future, or accessing basic needs that they need,” she said.

Ariel Brown, an attorney with the Immigrant Legal Resource Center, said the latest approach differs significantly from the detailed framework adopted during Trump’s first term.

“Last time during the first Trump administration, they added many more sort of details, weighted factors, other considerations to make a really high bar,” Brown said.

The new approach, she said, moves in the opposite direction by removing some of the specific parameters governing public charge determinations.

“They’re sort of taking away all the constraints and parameters,” Brown said, arguing that the resulting test could become “highly subjective, discretionary and prone to bias.”

Brown said greater discretion could also make it more difficult for immigration attorneys and accredited representatives to advise clients about whether participation in certain programs could affect future applications.

“It makes it really difficult to advise people and give them clear information on whether they’ll have their green card denied based on public charge, because it is so open-ended,” Brown said.

At the same time, Brown cautioned against assuming that the changes affect every immigrant receiving government assistance.

“We really want to emphasize public charge doesn’t apply to all immigrants, and it doesn’t apply to all immigration applications,” Brown said.

She said refugees, people granted asylum, certain T and U visa holders, and several other categories are generally not subject to the public charge test. Green card holders applying to renew their permanent resident cards or seeking U.S. citizenship also generally are not undergoing a new public charge determination as part of those applications.

Someone without an immediate immigration pathway who is not preparing to submit an immigration application would also not automatically face a public charge review simply because the person receives an eligible benefit, Brown said.

She stressed another distinction that she said has become blurred amid public discussion of the policy.

“The public charge rule does not change eligibility for public benefits programs,” Brown said. “That’s separate.”

Whether someone qualifies for Medicaid, nutrition assistance or another program is one question, Brown said, while whether participation could have consequences for a particular immigration application is a separate legal issue.

For that reason, Brown urged families not to make decisions about abandoning benefits based solely on general information or fears about the policy.

People who rely on public assistance and are considering an immigration application should speak with a trusted immigration attorney or accredited representative who can review their individual circumstances, she said.

Legal challenges are also expected as the Sept. 18 implementation date approaches.

Brown said the first Trump administration’s public charge rule triggered “a whole wave of lawsuits” filed by states, organizations and other plaintiffs across the country.

Among the legal arguments raised at the time were claims that the government had departed from longstanding policy without adequately explaining its reasoning or considering the potential consequences.

Other challenges alleged that the government failed to properly account for the costs and harms associated with the changes and violated requirements of the Administrative Procedure Act.

“Some lawsuits also brought equal protection claims based on the expected disproportionate impact on non-white immigrants from Africa and Latin America,” Brown said.

Brown said some of the legal arguments raised against the previous rule could emerge again, although the judicial environment has changed since the first Trump administration.

One major difference involves nationwide injunctions, which historically allowed individual federal judges in some cases to block a federal policy throughout the country while litigation proceeded.

Brown pointed to the U.S. Supreme Court’s decision in Trump v. CASA, which limited federal district courts’ use of nationwide injunctions.

That development could potentially result in different rules being enforced in different parts of the country while challenges to the public charge policy proceed through federal courts.

“We’ll have like a patchwork of injunctions blocking the rule from going into place in certain states and certain parts of the country, and not in others,” Brown said of one possible outcome. “We’ll have to see if that will happen again with the legal challenges.”

Cadena said immigrant advocacy organizations are also looking to Congress and state governments for possible action.

She said more than 50 members of Congress, including members of California’s congressional delegation and U.S. senators, have supported legislation aimed at preventing implementation of the policy.

Cadena also pointed to the response to the 2019 public charge rule, when a coalition of state attorneys general challenged the federal government in court.

“In 2019, a coalition of more than 20 attorneys general sued to block that first Trump public charge policy,” Cadena said, adding that advocates hope state officials will consider legal action again.

With the new policy scheduled to take effect Sept. 18, Brown emphasized that families should distinguish between eligibility for government programs and whether the public charge provision applies to their particular immigration circumstances.

For immigrants who are uncertain about the potential consequences, she said individualized legal advice will be particularly important because immigration status, the type of application being pursued and the benefits involved can affect whether the public charge provision applies.

“Immigrant families are essential to the strength,” Cadena said, “and the character of our nation and our communities.”

Cadena said the broader debate will continue beyond the implementation date as Congress, state governments, advocacy organizations and federal courts consider possible responses to the administration’s policy.