In the Trump administration’s avalanche of immigration animosity, it can be hard to miss some of the more technical changes to immigration policy, buried as they are in the broader news of masked agents shooting people and mass medical negligence in detention.
One such shift deserves more attention: the expansion of the so-called public charge rule, a concept dating back to the colonial era intended to restrict the arrival of immigrants deemed likely to become dependent on the state. Though public charge exists in federal law, it is not specifically defined, meaning that the executive branch has the leeway to define it. Many presidents including Bill Clinton have tried to redefine the rule, though none nearly as aggressively as Trump. The new regulation, which technically went into effect this month, allows adjudicators with the U.S. Citizenship and Immigration Services, or USCIS, to deny applications for green cards based on “receipt of any means-tested public benefit” while striking specific definitions for terms like “receipt (of public benefits),” instead giving its bureaucrats more latitude to interpret the terms as they see fit.
An assortment of states and cities have already sued to block the regulations. Litigation managed to stop a similar effort during Trump’s first term, in 2019, before the Supreme Court allowed it to go into effect in late January 2020, not ruling on its merits but instead against the use of a nationwide injunction by a district court to block it. This proved brief, as a lower judge blocked the rule again as the country went into Covid lockdowns in March, making it only effective for some two months. The Biden administration fully rescinded the rule in 2022. Yet the fact of its limited application did not make it a loss for Trump and Stephen Miller, credited with designing the rule along with the majority of the administration’s anti-immigrant framework. It was a significant victory in the narrative war and had long-lasting effects on immigrants’ trust in public benefits and services. The administration’s current effort to shape the public charge rule seeks to build on these previous machinations.
While this policy has been described as a revamp or a reinstatement of that 2019-20 public charge expansion, its main distinction is that it is far vaguer and more discretionary than the first iteration, which at least mostly made clear what its expanded parameters were (though it did purport to evaluate applicants’ potential future use of benefits, an absurd standard). The new rule gives USCIS personnel—whom the administration has worked to make more like their enforcement counterparts in ICE and CBP, and who are generally not lawyers—enormous flexibility to interpret the law, potentially considering everything from local noncash benefits to children’s usage as negative factors in their parents’ adjudications.
“In in this moment, I think even the service providers are evaluating whether their own existing long-term services would fall under this new rule, and having to field questions about it that are a bit unknowable at the moment,” said Karina Albistegui Adler, director of health justice at New York Lawyers for the Public Interest.
The Trump administration’s own analysis in the updated rule shows that zero applicants were ultimately denied as a direct result of the earlier expansion during the rule’s “effective period” of October 15, 2019 to March 21, 2021, and only 90 were denied on public charge grounds at all. This is unsurprising based on the simple fact that public charge denials have long been extremely rare and that the population of people that both qualified for most public benefits—that is, those that had some form of non-humanitarian status eligible for benefits but also did not yet have permanent residence, as public charge does not apply for naturalization—was fairly small. An analysis by the Migration Policy Institute estimated that a population of roughly 167,000 people might be affected, a relatively tiny fraction of the millions of noncitizens in the country.
Making a similar assessment this time around is far more difficult given the vagueness of the rule, but there’s no world in which this rule by itself forecloses access to residency for large numbers of people. That said, it does not need to do so to be effective by Miller’s standards. What it will certainly do—and is doing—is pushing people to overcorrect, to not take even the minimal chance that they might be targeted as a result of receiving some kind of public benefit to which they are otherwise entitled.
One oft-cited UCLA Center for Health Policy Research brief found that, in 2019, “1 out of 4 low-income immigrant adults in California reported avoiding public programs like Medicaid or nutrition assistance programs out of fear that participating would negatively impact their own immigration status or that of a family member.” While many immigrants have long been skeptical of benefits usage, the public charge rule and the acute concern around it seems to have supercharged the effect, which is likely to happen again.
“They said in the preamble to the new rule, basically, ‘we think a lot of people are going to drop off of public benefits, even some people who might not be affected by this rule,’ and yet they made the choice not to provide any clarity,” said Julia Gelatt, associate director of the U.S. Immigration Policy Program at MPI. As an example, she pointed out that the rule does not make clear if an applicant has a U.S. citizen child and that child qualifies for SNAP benefits, “do I get double dinged if they receive that SNAP and less punished if they don’t, or is it just the low income is enough and the actual receipt doesn’t make any difference? I don’t think we actually know that right now, and all of that vagueness is going to amplify the chilling effect.”
Just because someone gets a denial based on public charge does not mean that that decision is final. While no applicants were in the end prevented from reaching status during the last go-around, the same analysis notes that three denials were issued before the cases were reopened and approved. People who are denied residency are able to petition for reconsideration or just reapply. In rare cases, they might even be able to file suit over a denial. Often, USCIS does not deny cases outright, but issues a so-called notice of intent to deny, which then allows an applicant to find and submit additional evidence supporting their case, which in this case would likely entail additional financial sponsors.
This is, however, all a hassle that not everyone is going to be willing or able to navigate. The already-substantial paperwork burdens that all people seeking to obtain legal status through the immigration system are only getting more overwhelming, low-income immigrants using public benefits are already less likely to have access to sponsors, and every additional legal step means more money for attorneys, more application fees, and more uncertainty. It is a weaponized time tax to fulfill the administration’s objectives of reducing immigration and making the remaining immigrant population into a permanent underclass via their own fear and administrative hurdles that are technically but not necessarily functionally surmountable.
The states’ and cities’ legal argument is that this will fall on them to contend with their residents stepping back from receiving federal housing aid or health insurance, for example, and as a result losing their homes or moving away from preventative health practices in a way that the community as a whole will end up having to pay for, both monetarily and socially. Analysts and community organizations are already seeing impacts, though it’s hard to tell what is as a result of this rule versus the administration’s general animosity towards social services. Meanwhile, state providers are reticent to attribute fluctuations in service usage to any particular cause.
In what seems like a representative response, the Illinois Department of Human Services—which manages federally-funded programs like SNAP and Medicaid—said that it “cannot speculate on the impact of the public charge rule change on program participation, given the overlapping changes affecting non-citizen eligibility for public benefits and broader changes in immigration policy during this same period.” Nonetheless, it is preparing for a concrete impact and working with community organizations given that “many immigrants are not subject to the public charge test, but the rule change will likely create confusion and fear, particularly for mixed-status households. Lack of clarity in the rule change makes it difficult to guide customers and clients.”
“It’s all been impacted by HR1 [Trump’s “Big Beautiful Bill] as well, and so I think it’s just really difficult to disentangle in this moment,” said NYLPI’s Albistegui Adler. “What I fear is, call me back in six months, and we’ll have some pretty terrible numbers.”
