Disability Rights Groups Challenge New “Public Charge” Immigration Rules

New federal rules are likely to make it significantly harder for people with disabilities to obtain green cards, a change disability advocates fear is an attempt to reinstate exclusionary policies in federal immigration law.

So-called “green cards” are permits that allow people from other countries to live and work permanently in the U.S.  As recently as 1990, the federal Immigration Code permitted the government to deny green cards to “aliens who are mentally retarded” or who are “afflicted with . . .  a mental defect.” Although the rules are less blatantly exclusionary now, federal officials have retained the right to deny green cards to people on the basis that they are “likely to be a public charge.” New regulations from the Department of Homeland Security (DHS), set to go into effect October 15, 2019, significantly expand what DHS can take into consideration when determining whether a person meets the "public charge" definition.

Federal guidance issued in 1999 defined a “public charge” as a person “primarily dependent on the government assistance.” As such, the federal government could consider if a person needed Supplemental Security Income or long-term institutional care, but not most other programs.

Under the new regulations, a “public charge” is defined as “an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period.” Accordingly, DHS will be able to take into consideration a person’s receipt of apparently any public benefit, including previously expressly exempted programs such as Medicaid, SNAP (food stamps), and Section 8 and other housing programs.

In anticipation of these changes, first proposed in 2018, state officials have reported a significant drop-off in people seeking public benefits, particularly Medicaid benefits. Health care providers in California report a 42 percent increase in skipped medical appointments, according to Disability Scoop.

These "public charge” rules do not apply to already lawful permanent residents applying for citizenship, only to non-residents seeking to become lawful permanent residents, or green-card holders. Children are excluded and subsidies provided through Affordable Care Act marketplaces are not considered. Finally, these rules do not apply to asylum seekers, refugees, or others allowed into the country on humanitarian grounds.

Almost immediately after the rules were published, 13 states filed a federal lawsuit against the Trump administration, seeking to block the rules from taking effect on the basis that they violate Congressional intent and numerous immigration and civil rights laws. In an amicus brief supporting the lawsuit, a coalition of disability rights groups elaborated on the use of the long history of “public charge” requirements as a way to exclude people with disabilities.

“In the early twentieth century, the ‘principal object’ of immigration law was ‘the exclusion from this country of the morally, mentally and physically deficient,’ the amicus brief states. “Citing the ‘public charge’ requirement as authority, Ellis Island immigration inspectors would pick people out of line who appeared to be ‘disabled’ or ‘diseased,’ and deny them entry into the United States.

“While this treatment was often rationalized at the time as a matter of simple economics, contemporaneous documents reveal that these policies were rooted in eugenic considerations and the flawed notion that people with disabilities are somehow ‘deficient.’”

Read the full final rule.