WASHINGTON—The Department of Homeland Security (DHS) will issue a Notice of Proposed Rulemaking (NPRM) that would regulate how DHS enforces the public charge ground of inadmissibility. The proposed rule would provide fair and humane treatment for non-citizens seeking admission to the United States or applying for lawful permanent residence from within the United States. DHS has published a advance copy of the proposed rule. The official version will be published in the Federal Register in the next few days. 

“The 2019 public charge rule was not consistent with our nation's values,” said Secretary Alejandro N. Mayorkas. "Under this proposed rule, we will return to the historical understanding of the term 'public charge,' and individuals will not be penalized for choosing to access health benefits and other supplemental government services available to them."

In 2019, the previous administration expanded the interpretation of the term “public charge” and the types of public benefits considered. It caused many noncitizens to fear accessing the benefits Congress intended them to have, including noncitizens who are not subject to the public charge ground of inadmissibility, such as children in mixed-status households. With the 2019 public charge rule vacant, DHS is now conducting an open and fair rulemaking process to establish a new regulation. DHS welcomes public comments.

Under the proposed rule, DHS proposes to define "likely to become a public charge at any time" as "likely to be primarily dependent on the government for livelihood." Consistent with longstanding agency practice, DHS proposes to consider the following public benefits when making a public charge inadmissibility determination:

• Supplemental Security Income (SSI);
• Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;
• State, tribal, territorial, and local cash assistance for income maintenance; and
• Long-term institutionalization at government expense.

DHS proposes not to consider non-cash benefits such as food and nutrition assistance programs including the Supplemental Nutrition Assistance Program (SNAP), the Children's Health Insurance Program, most Medicaid benefits (except institutionalization long-term at government expense), housing benefits, and transportation vouchers. DHS would also not consider disaster assistance received under the Stafford Act; pandemic assistance; benefits received through a tax credit or deduction; or Social Security, government pensions, or other benefits earned.

By law, many categories of noncitizens are exempt from the public charge ground of inadmissibility and would not be subject to the proposed rule. Some of these categories are refugees, asylees, non-citizens applying for or re-registering for Temporary Protected Status (TPS), special immigration minors, T and U nonimmigrants, and self-petitioners under the Violence Against Children Act. the Woman (VAWA). Under the proposed rule, if a noncitizen received public benefits while in an immigration category that is exempt from the public charge ground of inadmissibility, DHS would not consider the noncitizen's past receipt of those benefits as part of any future public charge determination.

The proposed rule will have a 60-day public comment period beginning on the date specified in the next Federal Register publication.