The regulation may also affect situations in which immigration officials are deciding, for example, whether people who have U.S. work visas can become legal permanent residents of the United States, or whether legal permanent residents can become U.S. citizens. In some cases, rulings may determine whether people have been legal residents of the United States can continue to stay in the country.

Federal immigration laws already declare that a noncitizen who is likely to become a public charge is inadmissible.

Officials have been using rough guidelines that have been in place since 1999 to decide who’s likely to become a public charge.

The new regulations, in general

In the new regulations, and the introduction to the regulations, USCIS officials provide lists of negative factors and positive factors that officials are supposed to use when considering whether a noncitizen is likely to become a public charge.

Officials have decided, for example, to leave benefits for refugees, use of Head Start preschool programs and use of the Social Security Disability Insurance (SSDI) benefits out of the public charge determination process.

SSDI, for example, was left out because USCIS officials see the SSDI program as something workers pay for out of their own earnings.

The list of negative factors includes use of specified “public benefits” programs for more than 12 months within any 36 months. The term “public benefits” includes federal, state and local cash assistance programs; the Supplemental Nutrition Assistance Program; and Medicaid benefits, except when Medicaid is used for certain emergency medical conditions.

The list of positive factors includes evidence that a noncitizen will earn a good living, or can depend on financial support from relatives.

The health insurance provisions

The regulation lists having private health insurance as a “heavily weighted positive factor,” in part because USCIS has found that only 6 percent of noncitizens covered by private health insurance end up depending on public benefits programs.

About 30 percent of noncitizens without private health insurance end up depending on public benefits programs, officials say.

USCIS officials say they decided to leave use of Affordable Care Act premium tax credits to pay for health coverage through a public exchange plan off the list of negative factors.

USCIS left ACA premium tax credits off the list of negative factors “due to the complexity of assessing the value of the benefit and the higher income eligibility thresholds associated with the benefit, as compared to the eligibility thresholds for other benefits,” officials say in the regulation introduction.

But officials also left coverage purchased with ACA premium tax credits off the list of positive factors.

“Although individuals receiving such benefits have significantly lower odds of concurrently receiving the public benefits designated in this rule, they receive government subsidies to fulfill a basic living need, and qualify on a means-tested basis,” officials say.

USCIS officials do “not believe it is appropriate to include a heavily weighted positive factor for this type of health insurance, although this type of health insurance would generally be considered positively as part of the consideration of the totality of the alien’s circumstances,” officials say.

“Private health insurance purchased through an ACA Marketplace without such credits will count for purposes of this heavily weighted positive factor,” officials say.

The provisions mean that clients who look like healthy good earners may be able to use ACA premium tax credits for a few months without hurting their ability to become permanent residents or become citizens. But noncitizen who already have “negative factors” in their record may want to scrape up the money to buy private health insurance, without using ACA premium tax credits, to get a “heavily weighted positive factor” in their record.

Timing

The final rule is set to appear in the Federal Register Wednesday. USCIS officials say that the rule will take effect 60 days after the official publication date, but that they will not apply the new factor weighting framework retroactively.

USCIS officials say immigration officials will use the old weighting rules to assess past use of benefits. Up till now, for example, officials have often left use of ordinary Medicaid health benefits out of public charge determinations, but they have often used use of Medicaid to pay for nursing home care as evidence that a noncitizen is a public charge, or likely to become a public charge.

Sources of friction

Many public and private organizations, including public officials in California and New York state oppose the regulations. California Attorney General Xavier Becerra has already put out a statement vowing to fight the new regulations.

“This vile rule is the Trump administration’s latest attack on families and lower income communities of color,” Becerra said in his statement. “We will not stand idly by while this administration targets programs that children and families across our state rely upon. We are ready to take legal action to protect the rights of all Californians.”

Court challenges could push back the regulation implementation date, lead to changes in the regulations, or stop implementation of the regulations.

Resources

A copy of the new USCIS public charge regulation packet is available here.

Read more: 

• Leave health insurers out of immigrant eligibility, AHIP says
• Fewer taxpayers claim ACA subsidy, but those who do claimed more
• Caregivers (and patients) on the losing end of Trump immigration policy