On March 15, 2021, the Biden Administration’s Department of Homeland Security formally rescinded the Trump Administration’s public charge rule, which had sought to expand the grounds upon which a person could be deemed likely to become a “public charge” and thus denied a green card or entry into the United States. DHS’s action came in the wake of successful lawsuits brought by the County of Santa Clara and others to challenge that rule. Those lawsuits yielded injunctions affirmed by several courts of appeal and a final judgment vacating the rule from a federal court in Illinois. Accordingly, the federal government’s public charge assessments are now again based on guidance the Clinton Administration issued in 1999, which is precisely what the County and others sought to achieve.
On August 23, 2021, DHS issued a notice that it planned to issue a new public charge rule, and sought information from the public about what that new rule should look like. The County of Santa Clara provided comments to DHS on October 22, 2021. On February 24, 2022, DHS proposed a new public charge rule. The County filed a comment in support of finalizing that rule on April 18, 2022.
On February 23, 2022, the Supreme Court heard argument on the issue of whether to allow several states, led by Arizona, to intervene in the Ninth Circuit to attempt to defend the now-defunct Trump-era rule. On June 15, 2022, the Supreme Court dismissed the appeal from the Arizona-led coalition, leaving in place the Ninth Circuit ruling denying intervention.
RESOURCES THAT HELP COUNTY RESIDENTS MAKE INFORMED DECISIONS
The County encourages residents to consult with legal service providers when making decisions for themselves and their families. Many immigrants are not subject to any DHS public charge assessment at all, including lawful permanent residents (green-card holders) unless they leave the country for more than 180 days; individuals applying for asylum or refugee status; and many other immigrants. And many benefits also are not implicated by the current public charge rules, because those rules consider only cash benefits and the use of Medicaid/Medi-Cal only for long-term institutionalization. No other benefits—including Medicaid/Medi-Cal (other than for long-term institutionalization), CHIP, WIC, Section 8, and CalFresh—are considered under the current rules. The County funds the following organizations that provide free or low-cost legal advice on immigration and public benefits:
- Bay Area Legal Aid: (408) 850-7066 English, Spanish
- Asian Law Alliance: (408) 287-9710 English, Vietnamese, Chinese, Tagalog, Korean, Spanish
- Law Foundation: (408) 293-4790 * English, Vietnamese, Chinese, Spanish, and more
*Law Foundation does not specialize in immigration law but encourages individuals to call with questions about using public benefits.
United States Supreme Court
Court of Appeals for the Ninth Circuit