Biden Orders Review of Trump Admin Public Charge Rule

President Biden announced on Tueday, February 2, an executive order directing federal agencies to review the previous administration’s immigration policies, including the public charge rule, which was initially proposed by the Trump administration in September 2018 and finalized it August of 2019.

Under the public charge rule the Department of Homeland Security (DHS) expanded what criteria it considered to be a public charge when evaluating an immigrant’s application for citizenship. Under the previous standard applicants could be denied if they were expected to be “primarily dependent on the government for subsistence. In expanding the criteria, DHS specified a list of prior usage of common government benefits to be taken into account for evaluation, including: temporary assistance for needy families (TANF), section 8 housing, federal housing subsidies, and certain Medicaid benefits. In addition, DHS would evaluate an applicant’s likelihood of need of public assistance in the future. These points of criteria include age, health, family size, and financial means.

This rule proved to be controversial since its proposal with many labeling it a “wealth test” for immigrants, and as a means to limit immigrants to the United States. The rule was challenged in court, eventually rising to the Supreme Court, which ultimately ruled in favor of allowing the regulation to be implemented. However, in August 2020 a federal court issued a temporary injunction that in-effect blocked implementation of the public charge regulation due to the COVID-19 pandemic. Under the injunction, as long as there is a public health emergency related to the pandemic, the regulation was barred from application, implementation, and enforcement. (See NAHC Report for more information.)

The public health emergency remains in effect, having been renewed most recently in January 2021.  

The National Association for Home Care and Hospice filed comments with DHS on the proposal expressing concerns that the rule could prove damaging to the home care and hospice providers that often rely on immigrants to work as caregivers, an occupation notoriously facing workforce shortages. It is estimated that about 30 percent of the home care workforce is comprised of people born outside the United States.

“This proposal will result in fewer eligible home care workers, as immigrants tend to serve as a sizable proportion of the personal care and assistance aides workforce,” writes NAHC in its comments on the proposed rule. “These workers often qualify for public assistance through programs such as Medicaid and the Supplemental Nutrition Assistance Program (SNAP). The typical annual income for these non-skilled workers falls below the guidelines for a two-member household as included in the proposed rule, and their eligibility for public assistance will also be counted as negative factors in determinations. Barring Immigrants on the basis of public assistance will only exacerbate an already prevalent workforce shortage leaving many employers unable to care for patients in need. This will cause patients to seek out more costly institutional settings for the same care they could have received in their home.”

“A reversal of this policy by the Biden Administration should help increase the home and community-based services workforce at a time when home care demand is rising,” said NAHC President Bill Dombi, in reaction to the news.

According to the best estimates, about 30 percent of the home care workforce is comprised of people born outside the United States, about evenly split between naturalized American citizens and non-citizen immigrants. “This is a strong indication that immigrants will play an important role in addressing the substantial workforce challenges home care will face in the coming years. According to the U.S. Bureau of Labor Statistics, home care workers rank in the top five fastest growing occupations. By 2026 the demand for home care workers is projected to increase by over one million.”

Due to low reimbursement rates offered by government programs like Medicaid or the Veterans Administration, compensation for home care workers is limited and a majority of them qualify for some form of public assistance. (About 30 percent qualify for SNAP and 30 percent qualify for Medicaid.)

The Biden executive order also rescinds a memorandum requiring family sponsors to repay the government if relatives receive public benefits. The order requires agencies to conduct a top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to our legal immigration system.