Nonprofits and Foundations Can Defend Housing and Health in Immigrant Communities by Fighting the Proposed “Public Charge” Rule Change

On October 10, 2018, the Department of Homeland Security (DHS) proposed a change to the “public charge” policy that, if adopted, will harm the health and well-being of immigrants, their families, and our country as a whole by deterring people from seeking access to core health care, nutrition, and housing programs.

According to the Protecting Immigrant Families coalition, co-chaired by Alliance for Justice members National Immigration Law Center and the Center for Law and Social Policy, the ripple effects of reducing access to these safety net programs as proposed in the rule change would impact 26 million people, including over 9 million children, and over 22 million U.S. citizens. The newly proposed rule would shift the responsibility of meeting these basic needs from the federal government to state and local agencies while increasing unemployment, sickness, poverty, hunger, and homelessness.

Fortunately, the rule is not final, and your input may make the difference. Public comments on the proposed rule can be submitted until 8:59 p.m. Pacific time on December 10, 2018. As this rulemaking is an administrative process by a government agency, weighing in with comments does not constitute lobbying under federal tax law. Organizations can submit comments through the Protecting Immigrant Families online portal.[1]

What’s “Public Charge”?

Under federal law, the United States government may deny entry or lawful permanent residence status (i.e. a “green card”) to an individual who is determined to be (or likely to be) a “public charge” to the United States. In rare circumstances, an immigrant residing in the United States who is considered to be a “public charge” may even face deportation.

Currently, an immigrant can be deemed a “public charge” based in part on whether they receive—or are likely to receive—certain public cash benefits, such as Temporary Assistance for Needy Families or Supplemental Security Income. With a few exceptions, federal authorities do not currently consider whether an immigrant receives noncash healthcare, housing, and nutrition benefits in “public charge” determinations (presumably recognizing the importance of these benefits to the health and well-being of individuals and families).

How the Proposed “Public Charge” Rule Change Could Impact Immigrants and Their Families

The Trump Administration proposes to expand the list of public benefits federal authorities could consider in making a “public charge” determination to include benefits like non-emergency Medicaid, housing assistance, and the Supplemental Nutrition Assistance Program, also known as food stamps. With minor exceptions, participation in these programs has not historically been considered in “public charge” determinations.

It is not clear whether other benefits, like the Children’s Health Insurance Program, will also be included. But the uncertainty alone may cause immigrants to forego health care for fear of jeopardizing their ability to adjust their immigration status.

DHS estimates that between 300,000 to almost 1 million immigrants could disenroll from or forego enrollment in public benefits programs if the rule is adopted. DHS itself acknowledges the change could lead to “worse health outcomes,” the “increased prevalence of communicable diseases,” and “increased rates of poverty and housing instability.”[2]

The Public Comment Period

Even though DHS announced its intent to make harmful changes to “public charge” determinations, the proposal still must go through a formal process and receive public comments. The purpose of the current comment period is to solicit input from the public about the likely effects of this rule and any recommended changes.

The comment period provides an opening to slow the process down because federal law requires that the government consider every unique comment before issuing a final rule. And by bringing public pressure to bear on DHS, nonprofit groups can help defeat the proposed rule and ensure immigrants can continue to receive vital health, housing, and nutritional assistance without fear or uncertainty about how it might affect their future. National Immigration Law Center also offers tips on how to discuss “public charge” and the proposed rule with immigrant communities during this comment period.

It’s Not Lobbying

Importantly, especially for private foundations and nonprofits with limited lobbying budgets, this type of public comment period is administrative, not legislative. Since the comments are directed to DHS about a matter that is under its jurisdiction, this advocacy does not constitute lobbying under IRS rules. This means that private foundations can weigh in on this question, and that public charities can do so without tracking and reporting it as lobbying on their 990s.

Organizations should be aware that if they engage in a significant amount of administrative or legislative advocacy at the federal level, they may have reporting obligations under the Federal Lobbying Disclosure Act. For more information, see our factsheet outlining thresholds for registration and reporting.

DHS’ proposal is not final. There is still time to fight this proposed rule and stand in solidarity with immigrant communities.

Want to learn more? Here are some nonprofit and foundation sites to get you started:

National Immigration Law Center and The Center for Law and Social Policy Protecting Immigrant Families

The Center for Law and Social Policy Public Charge: A New Threat to Immigrant Families (in English and Spanish)

Kaiser Family Foundation Proposed Changes to “Public Charge” Policies for Immigrants: Implications for Health Coverage

The California Endowment Statement on Public Charge Rule

Grantmakers Concerned with Immigrants and Refugees Public Charge

Foundation Leaders in the Chronicle of Philanthropy Newest White House Proposal on Immigrant Families Stands Out as Especially Cruel


[1] Commenting through the Protecting Immigrant Families portal will help the coalition track comments to fight the rule changes. Comments can also be submitted directly to the Department of Homeland Security here.

[2] https://www.dhs.gov/sites/default/files/publications/18_0921_USCIS_Proposed-Rule-Public-Charge.pdf at pgs. 368-369, 370-371.

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