On July 29, a U.S. district court issued a nationwide injunction preventing the Department of Homeland Security from enforcing the “public charge” federal regulations that took effect last August. The court held that the COVID-19 pandemic has drastically increased the potential risk of harm of foregoing benefits to immigrants, justifying the injunction during the public health emergency.
Federal law authorizes the federal government to deny immigrants entry into the U.S. or adjustment to their legal permanent resident status (e.g., green card) if they are determined likely to become public charges — that is, if they cannot provide for their own food, shelter, medical care, and other necessities without receiving welfare or other public benefits. The August 2019 regulations expanded the list of benefits that the government would consider to include non-emergency Medicaid — Medi-Cal, in California — with limited exceptions. Detailed information about the August 2019 regulations is available here.
Previously, the U.S Citizenship and Naturalization Services (USCIS) issued an alert clarifying that treatment or preventive services related to COVID-19 would not negatively affect an immigrant’s future public charge determination, even if the treatment is paid for by public benefits.
In addition, the USCIS stated it would consider circumstances — such as social distancing and quarantine — that prevent an immigrant from working or attending school, resulting in the immigrant relying on public benefits for the duration of the COVID-19 outbreak and recovery phase. At this time, USCIS has withdrawn this alert and stated that it will enforce the public charge regulations that were in effect prior to August 2019. The current USCIS policy is here.
As a reminder, hospitals should not provide legal advice to patients on the impact of the public charge rule on their immigration status, as each situation is different, and the rules have been changing frequently. Instead, hospitals should refer patients to an immigration expert who can advise on the patient’s situation.
Hospitals can still explain whether someone is eligible for a health care or public benefits program, but only a qualified immigration lawyer should advise on whether a patient’s use of the program will affect their immigration status.