10 Things Texans Need to Know on New Federal “Public Charge” Regulation

1) What is the new Public Charge rule?

It’s a new U.S. Department of Homeland Security rule that will make it harder for people to go through the lawful immigration process and get a green card (also known as Lawful Permanent Resident status or LPR). The rule governs under what conditions immigration authorities can turn down a person’s application for lawful immigration status. Specifically, the rule allows denial of a person’s application if they would rely too much on government support, what historically was known as being a “public charge.” 

Released as a proposed rule for comment on October 2018, the new final version was published August 14 and will take effect on Oct. 15, 2019, unless it is stopped by the courts. Opponents have filed six major legal challenges as of September 10.)

2) What does the new rule change?

Since the 1990s, only total reliance on government cash assistance, or total reliance on government institutional care (such as a nursing home) would bar a prospective immigrant.

The new rule is much more restrictive. After it takes effect, the “public charge test” will also consider whether the applicant is likely to use benefits in the future, including Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps); public housing or Section 8 housing assistance; or Medicaid. It’s important to note that Medicaid use for emergency services, for pregnant women and new mothers, or for children under age 21 will not count against immigration applicants.

The rule would give xenophobic preference to wealthier, more-educated immigrants and penalize lower-income, less-educated immigrants. Applicants would have a harder time getting through the lawful immigration process if they have a family income below 250 percent of the federal poverty income, which in 2019 is less than $65,000 a year (pre-tax) of income for a family of four. This means immigrants would need to have twice as much annual income as the current requirement, which has been in place for the last 20 years. Other factors immigration officials will consider include the applicant’s age, health, family status, education, and job skills. 

3) The new rule does NOT look at whether a family member has used public benefits, only the individual applicant. 

Early drafts of the proposed rule did propose holding the use of public benefits by a U.S. citizen child against a parent’s green card application, so this is a very important change. This means that there is NO benefit to an applicant in having their family members drop their own SNAP or Medicaid benefits.

Fear of using benefits is widespread, however, even for U.S. citizen family members. It is critical that Texans spread the word that immigrants’ family members should continue using their important public benefits. Many families have already been scared into dropping important benefits. Both Children’s Medicaid and SNAP (food stamps) have seen significant enrollment drops.

4) Who is affected? 

Narrowly, the rule applies to any immigrant trying to get a green card (Lawful Permanent Resident status), or any person seeking a visa to enter the U.S. from another country on or after October 15, 2019. Applications for green cards submitted before that date will be subject to the “old” rule.

5) Many Types of Immigrants are NOT Affected.  

The new Public Charge rule does NOT apply to:

  • Lawful Permanent Resident status (green card holders) applying for citizenship

  • Refugees and asylum seekers

  • Several humanitarian categories, including Violence Against Women Act (VAWA) petitioners, domestic violence and human trafficking survivors (U or T visa)

  • Special Immigrant Juvenile status (used for children in foster care)

6) The new rule looks at the applicant’s likely FUTURE use of benefits.

Consideration of whether an applicant may use SNAP, Medicaid, or housing benefits will not start until after the October 15 effective date.  And, only SNAP, Medicaid, or housing benefits used by the applicant on or after that date will be taken into account.  The only exception: cash assistance or long-term care benefits, because they were already considered under the “old” rule.

Once the rule takes effect, an applicant who has used SNAP, Medicaid, or housing benefits for a combined total of 12 months out of any 36-month period will have that use considered “a heavily weighed negative factor” in deciding whether someone is likely to become a public charge. Receiving two of these programs, such as SNAP and Medicaid, in a single month, will be counted as two months.

Again, it’s important to note that Medicaid use for emergency services, for pregnant women and new mothers, or for children under age 21 will not count against immigration applicants.

7) Why the rule affects more Texans than just green card and visa applicants.

As a practical matter, the new rule will affect many more Texans. Unfortunately, many other immigrants—including Lawful Permanent Residents and others—fear that use of benefits for health care, housing, or hunger prevention by their family members who are U.S. citizens or who already have their own green card (LPR status) will hurt the applicant’s ability to get a green card, or will stop a green card holder from becoming a U.S. citizen. This is misinformation. This fear has put whole families at risk of neglecting basic needs to be healthy, successful in school, and productive at work, in order to keep the family united. 

8) How many Texans may be affected?

The numbers are sobering:

5.6 million Texans live in a family that includes at least one non-U.S. citizen (of any immigration status). Because of the fear spreading through families where any family member is not a U.S. citizen, all of these 5.6 million Texans could somehow be affected. 

  • About 1.9 million of these are kids age 17 or younger, of whom the great majority—about 1.65 million—are U.S. citizen children. That’s more than one in every four Texas children.

  • 3.9 million of those Texans have family incomes targeted by the new rule (under 250 percent of the federal poverty income, which is less than $65,000 a year pre-tax income for a family of four in 2019).

9) Texas’ immigrant legal services providers can answer questions; some applicants for legal residence or a visa will need qualified legal advice. 

Many families are exempt from the public charge rule but may need a qualified and trusted expert to advise on that. Free and low-cost help is available to understand whether the rule affects a specific person or family. Organizations across Texas can either provide legal advice to applicants who are subject to the rule or refer them to other qualified immigration attorneys. Find a statewide list of Texas immigration legal services providers here

10) The Center for Public Policy Priorities and Children’s Defense Fund–Texas are partnering to make technical assistance and support available.

Organizations, local governments, and institutions who need access to reliable information for training, and for community education can use these slides and background resources from a recent briefing for Texas reporters and can e-mail [email protected] or [email protected] for more information.