DHS ‘New Interpretation’ Immigration Rule Worries LTC Advocate

A new Dept. of Homeland Security (DHS) final rule focused on “aliens” living in this country and whether they receive public assistance “leaves many foreign-born persons and their family members with having to forego public benefits to maintain their immigration status,” according to a blog post by Clarette Yen, vice president, legal affairs, LeadingAge.

The issue is called the Public Charge Ground of Inadmissibility.

The new stance in the final rule, which takes effect on Sept. 18, provides immigration officials with broad discretion to deny legal status to a foreign-born person based on expected or actual utilization of government assistance.

“As a result, this rule would harm both the aging services workforce and foreign-born older adults by creating fear, limiting access to safety net programs, and making it harder for immigrant caregivers to get legal status,” Yen said.

According to the final rule, DHS said it is “rescinding the 2022 public charge ground of inadmissibility regulations. The 2022 Final Rule was not the best implementation of the statute. It was inconsistent with congressional intent, unduly restrictive, and hampered DHS’s ability to make accurate, precise, and reliable determinations of whether certain aliens are likely at any time to become a public charge.”

“Rescission restores broader discretion for DHS officers to evaluate all pertinent facts and aligns with long-standing policy that aliens in the United States should be self-reliant and government benefits should not incentivize immigration. This rule also revises the breach and cancellation of public charge bonds regulations,” DHS said.

The final rule is slated for publication in the Federal Register on July 20.

Not Good for Workers

Yen said the rule implements Section 212(a)(4) of the Immigration and Nationality Act (INA), which provides that any alien who applies for a visa, admission, or adjustment of status is inadmissible if they are likely at any time to become a public charge.

“In interpreting this provision, DHS is no longer limiting its determination of an alien’s likelihood of becoming a public charge based on the seven factors set forth in DHS’s 2022 final rule. Rather, by removing those provisions, DHS seeks to implement policy and interpretive tools for making public charge inadmissibility determinations based on a totality of the alien’s circumstances, which would include consideration of the alien’s receipt of means-tested public benefits and other data relevant to an alien’s self-sufficiency,” she said.

Concerns Arise

Despite significant opposition to the proposed rule, DHS is adopting the rule as proposed, Yen added.

“LeadingAge raised a number of concerns in its comments to the proposed rule, highlighting that the rule leaves foreign-born older adults and the workforce who serve them with having to make the impossible choice between obtaining the necessary food, housing, or healthcare and maintaining their immigration status,” she said.

In its response to comments, Yen said DHS acknowledged a number of the negative effects of the rule raised by commenters, including: reduced revenues for healthcare providers, such as hospitals and nonprofits, participating in Medicaid; financial strain, such as increased tenant turnover and higher administrative costs, for landlords participating in federally funded housing programs; and disenrollment in public benefits from individuals who are not subject to the public charge ground of inadmissibility, including U.S. citizens and children, due to concerns their receipt of benefits might affect a family or household member’s immigration status.

With respect to the latter, she said the final rule noted that USCIS will be issuing sub-regulatory guidance on USCIS adjudications of adjustment of status applications, which will go into effect on the same date as the final rule. This will provide more information on whose benefits will and will not be considered in an alien’s public charge inadmissibility determination.

Mixed Households

In the final rule, DHS recognized that individuals in mixed-status households, as well as aliens and U.S. citizens who are not subject to the final rule, may face increased poverty and housing instability due to their decisions to disenroll from or forgo receiving federal housing benefits for which they are eligible to avoid immigration consequences.

“Nevertheless, DHS concluded that the rule’s overriding consideration—the government’s interest in promoting the self-sufficiency of aliens within the United States and disincentivizing immigration due to the availability of public benefits—was a sufficient basis to move forward with finalizing the rule as proposed,” Yen said.

Questions or comments on the article? Contact Patrick Connole at pconnole@parkplacelive.com.