The Public Charge Rule Must Be Rescinded Immediately | The Center for Victims of Torture

The Public Charge Rule Must Be Rescinded Immediately

Michelle Rodenburg
Tuesday, March 24, 2020

Michelle Rodenburg is the policy intern with CVT’s Washington, D.C., office and University of Minnesota Law School Class of 2020.

Despite widespread opposition, including from the Center for Victims of Torture (CVT), the Department of Homeland Security (DHS) implemented a rule in February (the “public charge rule” or the “rule”) that limits the ability of individuals to become lawful, permanent U.S. residents (green card holders) or obtain certain visas based on their use of public benefits. The rule was cruel and unnecessary, and while it formally exempted refugee and asylum seekers, it has hurt both populations in entirely foreseeable ways.

On March 10—recognizing the additional grave risks the rule poses in light of COVID-19—43 Members of Congress wrote to Vice President Pence demanding that the administration rescind it. U.S. Citizenship and Immigration Services (USCIS) responded with a half measure:

To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination.

That is an important development; nobody should be adversely affected in any way by taking the steps necessary to protect their own health, their families’ health and the health of all of us. But it isn’t enough. Since its proposal, the rule has caused a chilling effect that has reverberated through immigrant communities, members of which now have a general fear of seeking assistance from local, state and federal programs.

The confusion that we already know the public charge rule has sowed will almost surely continue in this time of widespread anxiety and uncertainty, and in the context of COVID-19, poses a significant health risk to everyone.

Some background on the public charge rule

The rule is designed to bar immigrants from obtaining permission to enter the United States or adjust their status to obtain a green card based on a determination that they are likely at any time to become a public charge. To make that determination, USCIS assesses whether the individual is likely to become primarily dependent on the government for subsistence (support) as demonstrated by either receiving public cash assistance for income maintenance or institutionalization.

The assessment involves consideration of a number of factors, including—at minimum—age, health, family status, assets, resources, financial status, and education and skills. Final decisions are made based on “the totality of the circumstances,” meaning that USCIS must weigh both the “positive” and “negative” factors when determining the likelihood that someone might become a public charge.

Importantly, public benefits that are received by one member of a family are not attributed to other family members for public charge purposes unless the cash benefits amount to the sole support of the family. Both non-cash benefits (other than institutionalization for long-term care) and special-purpose cash assistance are also generally not taken into account in public charge determinations. Some examples of the former include Children’s Health Insurance, nutrition programs, job training and education assistance. For more detailed information on which factors are considered, and which are not, in a public charge determinations, see this chart and visit the USCIS website.

Refugees and asylum seekers are exempt from the public charge rule

There are certain groups of people who are either exempt from the public charge rule or may get a waiver for public charge when applying for a green card or other benefits with USCIS. Refugees and asylum seekers are exempt, meaning that they are not covered by the rule. This exemption includes asylum seekers and refugees applying for adjustment to permanent resident status.

How the public charge rule has nevertheless affected, and will likely continue to affect, refugees and asylum seekers, CVT’s clients included

Given the current situation surrounding COVID-19, the dangers to public health created by the public charge rule have grown exponentially.

While the rule does not apply to asylum seekers or refugees, it has had—and will likely continue to have—a devastating and chilling effect on the immigrant community, which includes our clients at CVT. The rule has created a widespread fear of receiving public benefits for all immigrants, whether they are exempt from it or not. Misunderstanding of the rule’s specifics, fueled in part by the spread of misinformation, has led many individuals that the rule does not actually cover—CVT’s clients included—to dis-enroll from or not apply for important benefits that they are entitled to, like SNAP and Medicaid, out of fear that doing so would negatively impact their or a family member’s immigration status.

Kathleen O’Donnell Burrows, CVT’s Healing Hearts and St. Cloud project manager, has personally witnessed this phenomenon:

"Clients have expressed feeling confused, asking if they should close their needed food stamps and medical insurance so they don’t need to fear for their status in the country. There is a lot of fear clients have shared about where the public charge reaches, including affordable housing, free and reduced lunch, SSI, energy assistance and affordable internet. People are reluctant to sign up for programs that would benefit them and their families due to this fear. CVT clinician Amal Hassan shared that even with education about the limits of public charge, people are nervous about being deported or losing their status if they are enrolled in public benefits given the mixed messages they have heard.

"Refugees and asylum seekers have often directly experienced war, torture or other human rights abuses. These experiences have a profound impact on physical and mental health symptoms. Leaving one’s country and adapting to life in a new environment can pose additional serious threats to physical and mental health as well. We have observed that patients express feeling in limbo even while their insurance renewals are being processed, often canceling any medical appointments for themselves or family members to avoid the risk of high bills they cannot afford. Patients often stop medications with lapses in insurance coverage. Readily available and predictable medical care both for refugees and asylum seekers, and their families, is critical to help individuals stabilize while adjusting to life in the U.S."

This chilling effect has the potential to jeopardize the health and wellness of both CVT’s clients and the population at large. Widespread disenrollment from public benefits such as SNAP and Medicaid leave many vulnerable populations, such as children and pregnant women, unable to access proper nutrition and healthcare options. The inability to access these options can lead to malnourishment and physical and mental developmental issues for children, which has been shown to damage a child’s academic outcomes and chances of being economically secure as an adult.

The consequences of the chilling effect are especially grave now, while the United States is in the grips of the COVID-19 pandemic. Large scale fear of accessing public health benefits will likely result in increased reliance on emergency rooms and reluctance to seek medical attention, both of which are precisely the opposite of the sorts of actions that our government should be incentivizing right now.

As demonstrated most clearly by the COVID-19 pandemic, the public charge rule presents dangers to both the health of individuals and the public at large. Especially because the ability to stay in the U.S. can be the difference between life and death for some, fear of possible future negative impacts on immigration statuses has caused, and will continue to cause, individuals and families (even if exempt from the rule) to avoid seeking necessary public health benefits. This jeopardizes the health and wellness of the entire population.

The public charge rule never should have been implemented. It is even more dangerously irresponsible now, as we face a pandemic that continues to spread in the United States. The rule must be rescinded immediately.



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