Biden Rule Could Help Prevent Revival of Key Trump Immigration Policy

Betty Q. Hixson

WASHINGTON — The Biden administration said on Thursday it would propose a regulation that some say would make it harder for future administrations to restore the Trump-era “public charge” policy that allowed officials to deny permanent residency to immigrants who received or were most likely to need public benefits.

Immigration advocates, who have been critical of the progress President Biden has made over the past year in reversing his predecessor’s immigration policies, welcomed the announcement. Even though former President Donald J. Trump’s rule was halted last year, immigrants hoping for green cards have continued to be wary of doing anything that they feared could jeopardize their chances of getting them, including going to the hospital or getting a Covid-19 vaccine.

Lingering fears about the Trump rule have made it “much more difficult to address the harms of the pandemic” for immigrants lacking permanent legal status, said Tanya Broder, a lawyer with the National Immigration Law Center. The Trump administration’s rule went into effect in February 2020, just weeks before the reach of the coronavirus in the United States became clear.

While the Trump policy has not been in effect for nearly a year, the Biden administration’s new rule would be more resilient to potential legal challenges and harder to reverse by a new administration than the one it issued last March, policy experts said.

In U.S. immigration law, the idea of public charges has historically applied to those deemed likely to primarily depend on the federal government for survival, such as through public cash assistance or institutionalized long-term care. Mr. Trump’s rule expanded the definition, changing what had been common practice for 20 years, and was seen by many as a way to keep out poor immigrants.

The Trump administration, however, expanded the list of benefits that could make a new immigrant ineligible for permanent residency, adding Medicaid, food stamps and subsidized housing, for example. Researchers have said the policy prompted many families to drop off the benefit rolls, even if they had children who were U.S. citizens and could use such programs with no effect on their immigration applications.

In November 2020, a federal district court ordered the Trump administration to stop enforcing the policy.

Last March, the definition reverted back to what it had been before; the new proposal would continue to use the old language.

“The 2019 public charge rule was not consistent with our nation’s values,” Alejandro N. Mayorkas, the homeland security secretary, said in a statement on Thursday. “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”

The new proposed regulation, which will be open to public comments for 60 days once it is published in the Federal Register, is “more legally defensible,” because it is going through the government’s rule-making process, said Julia Gelatt, a senior policy analyst at the nonpartisan Migration Policy Institute. It also adds specificity to some of the terms and clauses in an initial 1999 guidance, so less will be left to interpretation, she said.

The Trump rule spurred so much fear in immigrant communities that some people who were not subject to the public charge regulation started to avoid public benefits all together.

Advocates said they hoped the new proposed rule would make immigrants more comfortable applying for public benefits for which they are eligible, which can vary by state.

“The forthcoming public charge rule is particularly significant given the enduring chilling effect we have seen among immigrant communities fearful of accessing benefits to which they are entitled,” said Krish O’Mara Vignarajah, the chief executive of Lutheran Immigration and Refugee Service. “Equally important is the outreach the administration will extend to educate impacted communities.”

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