The federal government is proposing a new set of “public charge” rules that will discriminate against immigrants with disabilities and discourage use of important programs.
Being labeled a “public charge” means a person is inadmissible to the United States because they are likely to depend on government benefits to meet their needs. If the draft “public charge” proposal is adopted, immigration officials could consider whether individuals or any of their dependent family members have received or sought public services such as food and housing services, or Medicaid, which is the only source for critical services that help people with disabilities live and participate in their communities.
Ultimately, use of these basic supports could be used in immigration decisions, including the denial of green cards and even deportation.
Services that won’t be affected include Early Supports for Infants and Toddlers and special education services.
It is important to know the proposed changes are not yet current, and the rule will not be retroactive. Immigrants who are concerned about the impact of using public benefits on their immigration case should get advice from an immigration attorney or accredited representative.
What is a “public charge”?The “public charge” test has been part of federal immigration law for more than 100 years. It was created to identify people who may depend on government benefits as their main source of income. If the U.S. government determines someone is likely to become a “public charge,” they can deny admission to the U.S. or refuse an application for lawful permanent residency. The Department of Homeland Security is currently proposing changes to the current “public charge” policy.
Who does the public charge policy apply to?This policy does not apply to all immigrant families. The current policy applies to:
- Immigrants in the U.S. applying for family-based visa or legal permanent residence (green card)
- Immigrants seeking to legally enter the U.S.
- Legal permanent residents applying for U.S. citizenship
- Many immigrants with legal status including refugees, asylum seekers, survivors of domestic violence, T or U Visa applicants and holders, and children seeking Special Immigrant Juvenile Status
What could change?Benefits considered under the current policy are:
- Cash assistance such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF)
- Government-funded long-term institutional care
- Non-emergency Medicaid, including preventive and primary care offered through Apple Health and long-term supports for developmental disabilities offered through the state’s home- and community-based waivers (Individual and Family Services, Basic Plus, Core, Community Protection, Children’s Intensive In-home Behavior Support) or Community First Choice. These include a broad array services including attendant and respite care, employment and residential support, assistive technologies and community navigation. They are not available through private insurance
- The Children’s Health Insurance Plan (CHIP), which people access through Apple Health
- Supplemental Nutrition Assistance Program (SNAP)
- Medicare Part D Low Income Subsidy
- Housing assistance, such as public housing or Section 8 housing vouchers and rental assistance
- Additionally, the proposed rule includes a new income threshold that may impact low-income households.
- Early Supports for Infants and Toddlers is exempt from both the current rule and the proposed changed, even if they are reimbursed by Medicaid
- Special education services
You can submit public comment:The proposed rule was posted to the Federal Register on October 10, 2018. Individuals and organizations can submit public comments and share stories about how the proposed rules would affect them and the communities they serve through December 10, 2018. To view the proposed rule or submit your own comment, click here: www.regulations.gov, then enter: 1615-AA22 in the search bar
• Response from Governor Inslee
Important information for families to know:The proposed rule is not current law. The rule has not been finalized, which can take months. If the rule is finalized, it may not take effect until several weeks or months after the final version is published.
The rule will not be retroactive. This means that benefits - other than cash or long-term institutional care at government expense - that are used before the rule is final and effective will not be considered in the public charge determination.
The public charge test considers both positive and negative factors. Even if the law changes, receiving a public benefit does not automatically mean a denial of an immigration application. Immigration officials must look at all factors in determining whether you are likely to become a public charge in the future. This includes your age, health, income, assets, resources, education/skills, family to support, and family who will support you.
Birth to Three/Early Supports for Infants and Toddlers (ESIT) and special education services are not considered in a public charge test. Even if the proposed rule is finalized, services provided under the Individual with Disabilities Education Act, including ESIT services, will not be considered as part of a public charge test, including those that are billed to Medicaid.
Get help deciding what’s best for your family. If you can, consult with an immigration attorney about your situation. To find organizations in your area that offer low-cost immigration legal services, visit: https://www.immigrationadvocates.org/nonprofit/legaldirectory/. A trusted service provider may also be able to access this list of local resources, if you need assistance.
This information was compiled from resources shared by the State of Washington, the Center for Public Representation, and The Arc of the United States