NJ Part of Multi-State Lawsuit Seeking Injunction to Proposed Rule and Subsequent Protection of Low-Income Immigrant Households
The Department of Homeland Security (DHS) has officially published the final version of their “Public Charge Rule” that will also have a negative impact on low-income immigrants. Unfortunately, we have already begun to see this negative impact.
This rule change has the potential to harm immigrants seeking homelessness assistance based on factors such as income and public benefits usage. If not blocked in court, the rule will go into effect beginning October 15, 2019.
The Rule on Inadmissibility on Public Charge Grounds, or the “Public Charge Rule,” makes it easier for DHS to classify certain immigrants as a “public charge.” Classifying certain immigrants as “public charges” may result in them being denied admission into the United States or prevent them from receiving a green card.
The public charge test is a forward-looking assessment: it makes a determination of the individual in the future. Below are two circumstances where an individual can be deemed a public charge:
The Totality of Circumstances Test in which government officials determine whether someone is currently, or is likely to become, a public charge based on several factors including income, age, health, and education level. Having a job and good health are considered positive factors on an application. However, things like having a low income or being over the age of 60 can be considered negative.
The proposed rule counts incomes below 125% of the Federal Poverty Level ($32,187 for a family of four) as a negative factor. Immigrants seeking homelessness assistance in New Jersey could be greatly affected by the Totality of Circumstances test.
Another circumstance is Public Benefits Use. Under the rule, the use of certain federal benefits such as Medicaid, SNAP, Housing Choice (Section 8) vouchers at or above a specific threshold will be considered a “heavily-weighted negative factor” in an applicant’s totality of circumstances determination.
Under the Final Rule, an individual will meet the definition of a public charge if they use 12 months of any of the considered benefits within a 36-month period, with the use of multiple benefits in one month counting as multiple months for example, the use of two benefits in one month would count as two months. DHS says that any use of the covered benefits will be considered in the totality of circumstances test.
The Public Charge Rule does not apply to all immigrants. Several immigration categories are exempt under the rule, and the test will not apply to green card holders seeking to become U.S. citizens.
However, advocates have been documenting the “chilling effect” since the proposed rule was published last October. The “chilling effect” is when immigrants not directly affected by the rule still choose to give up or forego public benefits out of fear of potential deportation or other retribution by the U.S. government. With the “Public Charge” rule finalized, it is expected that the chilling effect will continue to discourage large numbers of immigrants and their families from using critical public benefits.
New Jersey is party to a multi-state lawsuit against the proposed “Public Charge” rule that is being led by the State of Washington. The lawsuit seeks a stay or preliminary injunction against the proposed “Public Charge” rule.
Oral arguments in the lawsuit are scheduled for Thursday, October 3, 2019 in Washington. Over the next few months, we will learn more about the status of the injunction. Other states and public parties have also brought lawsuits against the proposed Public Charge rule. The proposed Public Charge rule was originally larger in scope and has been scaled back.
If the Public Charge rule stands, it has potentially catastrophic effects on the usage of public benefits in New Jersey. For example, 20,000 eligible women and children in New Jersey currently receiving NJ FamilyCare health benefits through the Medicaid and CHIP programs could be impacted by the rule. And 50,000 New Jerseyans receiving food assistance through the SNAP program, formerly known as food stamp, could also be impacted by the rule.
If the Public Charge rule stands, it will increase food insecurity and take away health insurance from low-income New Jerseyans. And low-income households are unable to afford food and health care, many may be forced to choose between paying for housing and other expenses. This could increase homelessness, food insecurity and homelessness in New Jersey. Homeless shelters, food pantries, soup kitchens and other community-based resource agencies may see an increased demand for assistance.
Legal immigrants experiencing homelessness possibly face harm under the rule from a variety of factors such as the lack of wealth and the use of the covered public benefits, which could invoke a negative rating under the totality of circumstances test, impacting their immigration status.
Low-income immigrants, whether they are documented or not, may stop turning to federally qualified health centers for services such as vaccines or public housing authorities for housing assistance and this may cause a larger public health problem or increase the state’s housing crisis. We can imagine the additional outreach efforts and associated expenses that would be necessary to assure immigrants that accessing public benefits and services is still safe?
Even immigrants experiencing homelessness that avoid the benefits that full under the proposed rule all together could still be considered a public charge due to their low incomes.
Continuums of Care (CoCs) can work with legal services or immigration attorneys to help navigate this complex rule and eligibility and public benefits guidelines to meet the needs of their clients.
The Public Charge rule is set to go into effect on October 15, 2019, but further litigation could prevent the rule from going into effect.