Will Biden Dump Trump’s Public Charge Rule?

The Immigration and Nationality Act provides that a foreign national who is likely at any time in the future to become a “public charge” is inadmissible. The public charge ground of inadmissibility has existed in some form since at least 1882.

The underlying public policy is that, generally, foreign nationals in the U.S. should rely on their own resources and those of their family and sponsors—not public resources—to meet their needs.

A Trump administration initiative to restrict immigration came in the form of an Aug. 14, 2019, Department of Homeland Security rule expanding the definition of “public charge.” Now, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who is likely at any time in the future to receive public benefits for more than an aggregate of 12 months over any 36-month period of time. (If a person were to receive two different benefits in one month–such as Medicaid and Food Stamps–that would count as two months’ benefits.)

The Trump administration promoted the new rule as a way to limit immigrants to those who can “stand on their own two feet.” But immigration advocacy groups expressed dismay. They were concerned that the rule could discourage immigrants from seeking necessary assistance. And they were alarmed that the rule gives immigration officials wide discretion to bar all but wealthy immigrants based on mere suspicion that applicants may require public assistance at some indefinite point in the future.

On Feb. 2, 2021, President Biden issued an executive order on “Restoring Faith in our Legal Immigration Systems.” The order calls for a report to the President within 60 days reviewing current policies related to public charge and recommending changes that may improve the immigration system and public health.

The executive order was not exactly revolutionary. That’s because the Biden administration is boxed in by the Trump regulation that cannot be reversed without either a court ruling that the Trump regulation is illegal or a new regulation that goes through the lengthy “notice and comment” process. So justice, if it comes, may come slowly.

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