The Trump Administration’s Department of Homeland Security (DHS) released a Notice of Proposed Rulemaking (NPRM) this week on the Public Charge Ground of Inadmissibility (2025 NPRM). “Public charge” is a term used in U.S. immigration law to refer to a person who is likely to become dependent on the government in the future. An immigrant who is deemed likely to become a public charge may be denied admission to the U.S. or unable to adjust their status to become a lawful permanent resident (LPR) or green card holder.
While the concept has been a part of U.S. immigration policy for over a hundred years, the statutory factors that must be applied in a public charge test first came about in 1996. Under 8 USC 1182(a)(4), immigration officials must consider 5 factors: age; health; family status; assets, resources, and financial status; and education and skills when making a public charge determination. Immigration officials may also consider an affidavit of support, if applicable, by statute. Shortly after the statutory factors were added, the Immigration and Naturalization Service (INS) issued Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, known as the 1999 Field Guidance.
The 1999 Field Guidance provided needed clarity to simplify the process for making public charge determinations and ensure they are made more uniformly, providing greater predictability to the public. Importantly, under the 1999 Field Guidance, a person may be found ineligible on public charge grounds if they are primarily dependent on the government for subsistence, as evidenced by receipt of cash assistance for income maintenance and institutionalization for long-term care at government expense.
The 1999 Field Guidance governed public charge determinations for about 20 years, until the first Trump Administration issued a new, final rule on public charge in 2019 (84 FR 41292, as amended by 84 FR 52357). The 2019 rule marked a significant departure from the 1999 Field Guidance and longstanding practice, and ultimately was held up in court before briefly taking effect in 2020-2021. You can read more about the 2019 rule here.
In September 2022, the Biden Administration issued a new, final rule on public charge (87 FR 55472). The 2022 final rule was the product of a thorough administrative process that began with an advance notice of proposed rulemaking (ANPRM) in August 2021 (86 FR 47025) and an NPRM in February 2022 (87 FR 10570), both of which allowed for 60-day public comment periods. The 2022 final rule adhered more closely to the 1999 Field Guidance and provided families with clear definitions to terms like “public charge” and “public benefit.” It also outlined a clear “totality of the circumstances” test so that people could anticipate how something like benefit use could impact a future public charge determination. You can read more about the 2022 rule here.
All of this historical context is important because the 2025 NPRM issued this week simply rescinds the 2022 rule without offering a replacement policy. It includes a 30-day comment period. And in the preamble, it hints at dramatic changes to public charge policy that may be issued in the form of subregulatory guidance without a chance for the public to comment at all. The foreshadowed subregulatory guidance will be the subject of a future post, but before trying to read the tea leaves, there are two aspects of the 2025 NPRM that are very clear – (1) it will create fear and confusion and (2) it will harm children, including US citizen children.
In the cost-benefit analysis of the 2025 NPRM, DHS writes:
“…the elimination of certain definitions may lead to public confusion or misunderstanding of the proposed rule, which could result in decreased participation in public benefit programs by individuals who are not subject to the public charge ground of inadmissibility…” (90 FR 52207, emphasis added).
The analysis goes on to cite research from KFF, the Urban Institute, George Washington University and others, that documented the fear and confusion prompted by the 2019 final rule. While plainly acknowledging that the 2025 NPRM will add to this fear and confusion, DHS is undeterred, leaving inquiring minds to wonder what is the point of rulemaking?
The Administrative Procedures Act of 1946 defines a rule as “the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” (5 USC § 551(4), emphasis added). Rescinding a rule, without offering an alternative and while acknowledging so doing will cause confusion and misunderstanding, certainly falls short of this standard.
The cost-benefit analysis also estimates that the 2025 NPRM, if finalized, would reduce state and federal “transfer payments” by about $9 billion annually. The estimated reduction in Medicaid/CHIP spending represents about 65% of the total reduction in federal funds to states, or $5.76 billion dollars annually. Setting aside whether this is an underestimate, as the text itself suggests, it is worth considering the coverage losses behind these numbers. It would be easy to assume that a rule about immigration policy would primarily impact immigrants. However, as we have written extensively given the recent misinformation campaigns about immigrants enrolling in Medicaid, very few immigrants are eligible for Medicaid. Even fewer are eligible for Medicaid and subject to a public charge test.
Table VI.10 shows an estimated rate of disenrollment or forgone enrollment of 10.3% (the midpoint in the provided range of 3.3% to 17.3%) resulting in Medicaid and CHIP coverage losses of 422,748 people. All of the coverage losses attributable to CHIP (58,747) represent either children or pregnant women and a large share of those attributable to Medicaid likely do too, based on Medicaid and CHIP eligibility rules and current enrollment. Though the analysis does not provide a clear total number of children and pregnant women estimated to lose coverage as a result of this rule, it does say this:
“Additionally, reduced access to public benefit programs by eligible individuals, including aliens and U.S. citizens in mixed-status households, may lead to downstream effects on public health, community stability, and resilience, to include: Worse health outcomes, such as increased prevalence of obesity and malnutrition (especially among pregnant or breastfeeding women, infants and children), reduced prescription adherence, and increased use of emergency rooms for primary care due to delayed treatment.” (90 FR 52218, emphasis added).
As we continue to digest the rule and its implications, we’ll be back with more analyses. In the meantime, the National Immigration Law Center posted a helpful FAQ. Importantly, the 2022 final rule remains in effect until another final rule is issued. The government will be accepting comments until December 19, 2025.