President Biden’s Executive Order on Public Charge

Little boy carrying his sister.

On February 2, 2021, President Biden issued an Executive Order (EO) on various aspects of the U.S. immigration system, including public charge policies. Readers of SayAhhh! know that the Trump Administration changed longstanding public charge policies to make it harder for lawfully residing immigrants to obtain green cards by imposing a new wealth test. Though the Trump-era rule applies to only a subset of immigrants and benefits, its harmful impact has been broad – due to what’s known as the chilling effect. President Biden’s EO is just the first step of many, but it shows a commitment to undoing those harms.

Section 1 of the EO lays out a broad vision of President Biden’s immigration policy, saying in part:

“Consistent with our character as a Nation of opportunity and of welcome, it is essential to ensure that our laws and policies encourage full participation by immigrants, including refuges, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them.”

Section 4 of the EO then directs the Secretary of State, the Attorney General (AG), and the Secretary of Homeland Security to conduct an immediate review consistent with the vision laid out in section 1. The review must consist of: (1) an evaluation of the effects of current public charge policies, (2) identification of appropriate agency actions that could improve the integrity of the immigration system and public health, and (3) recommended steps the agencies could take to clearly communicate public charge policies to reduce fear and confusion among impacted communities. The AG and Secretaries must submit a report to the President on their progress within 60 days.

Certainly, the Departments have a lot of work ahead of them, and it will take time for public charge policies to change, but I think some of the answers about how to proceed are pretty clear.

With respect to step #1, the leaked, proposed, and final public charge rules, together with other anti-immigrant policies and hateful rhetoric, have resulted in individuals and families avoiding necessary benefits for which they are eligible over the past several years. This trend was alarming pre-pandemic, but is especially concerning now, given the disproportionate impact COVID-19 and the related economic crisis is having on low-income groups, communities of color, and immigrants.

Though the public charge rule only applies to some immigrant groups (it does not apply to refugees, asylees, LPRs, etc.) and some public benefits (it does not apply to children’s use of Medicaid/CHIP), research has shown that the impact of the rule has been far broader due to the chilling effect. For example, researchers at the Urban Institute have found that 1 out of 5 families reported avoiding public benefits out of fear of risking future green card applications following regulatory changes to public charge. Similarly, researchers at the Migration Policy Institute found declines in participation in public programs accelerated over the 2016-2019 period, reaching a 12% drop in Medicaid/CHIP participation among noncitizens between 2018 and 2019.

The research doesn’t stop there. Researchers at CLASP have documented the harmful effects of living in fear, including potentially irreversible harms on young children and their families. Children, even U.S. citizen children in mixed-status families, lost access to vital services like WIC, SNAP, and Medicaid/CHIP out of fear that using such services could result in them being separated from their families.

The effects of the public charge policy are clear – it has harmed large swaths of immigrant families, including U.S. citizens.

As to how the agencies can respond in step #2, the Departments of Homeland Security and State can issue new regulations that undo the unlawful wealth test imposed by the Trump Administration and replace them with policies that are in line with long-standing public charge rules as laid out in the 1999 field guidance. They can even go one step further and evaluate whether improvements could be made to the field guidance that would make it easier for families to stay together and access the services for which they qualify.

The Attorney General has a different role, but his path is just as clear. The AG can stop pursuing appeals to the various lawsuits that have been filed, including cases that the Supreme Court is in the process of deciding whether to hear, thereby allowing the circuit court injunctions blocking the rule from taking effect to go back into place. The Justice Department has already notified the courts in question that they are reviewing their position in light of the EO and planning to file a joint status report with the courts by February 19 (see for example, this notice to the Southern District of New York). If the AG drops the appeals, the injunctions blocking the rule would go back into place, and the impact of the chilling effect would be minimized while the Departments of Homeland Security and State craft new rules.

For step #3, it’s critical that the White House and all of the relevant Departments communicate clearly with families about current immigration policies and any plans to change them. Agencies could issue subregulatory guidance quickly that addresses common questions and concerns families face in order to allow families to make informed decisions about whether to participate in public programs. Research shows that families find federal, state, and local government sources to be among the most trustworthy, so it would really help if those sources offered clear and accurate information. For example, even under current law and policy:

  • Testing, treatment, and vaccines for COVID-19 will not be considered in a future public charge test;
  • Use of Medicaid/CHIP as a child will not count in a future public charge test; and
  • Family members’ benefit use does not count in an individual’s immigration applications, so a parent planning to apply for a green card down the road should not hesitate to enroll their children in Medicaid/CHIP.

Immigration, health, nutrition and housing advocates have been working hard to communicate these messages clearly over the past several years and they can serve as an important resource for the Administration as messages are drafted, interpreted into multiple languages, and communicated across the community – it is safe and smart to get the health care that you need.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.