Anticipated new “Public Charge” rules would undercut skills policies

By Amanda Bergson-Shilcock, June 01, 2018

* This blog post is based on an earlier, leaked draft of the proposed regulations from March 2018, and does NOT contain details of the actual proposal.


New regulations that are expected to be proposed by the Trump administration shortly would have serious consequences for millions of legally authorized immigrants and their US citizen family members, and would be likely to undercut key adult education and workforce policy goals.

Once the proposed regulations are released, National Skills Coalition will be urging skills advocates to submit public comments opposing the proposed changes. Below, we describe anticipated elements of the administration’s proposal — based on a leaked version of the draft regulations published by the Washington Post — and the potential consequences for adult education and workforce issues.

Understanding the public charge test

The Notice of Proposed Rulemaking (NPRM) expected to be published by the Department of Homeland Security would significantly change how the federal government assesses whether an individual is likely to become a “public charge.”

Traditionally, immigrants have been defined as a public charge (that is, dependent on the government for support) only if they require institutionalized care or are receiving cash welfare benefits. People who are found to be a public charge can be denied the opportunity to enter or stay in the United States, or denied permanent resident status, commonly known as a green card.

The public charge assessment is a “totality of circumstances” test, in which an immigration official weighs both positive and negative factors when deciding whether the applicant is at risk of becoming a public charge.

Expected changes would dramatically alter the rules for immigrants

The forthcoming new rules are expected to propose sweeping changes. Most notably, assuming that the proposed rules match the earlier draft leaked to the press, a far greater list of local, state, tribal, and federal benefits would count as negative factors in the public charge test. For example, using a Pell Grant (or other means-tested financial aid in the form of a grant) could be a negative factor.

Participating in English language, job training or workforce programs that are means-tested, such as those funded by SNAP or TANF funds, could be a negative factor. Drawing on supportive services such as childcare, transportation, home heating, or food assistance could also be considered a negative factor, if those services are means-tested and publicly funded.

Additional proposed negative factors are expected to include the use of non-emergency Medicaid benefits, Children’s Health Insurance Program (CHIP) benefits, or health insurance subsidized by public dollars, such as under the Affordable Care Act.

Other anticipated changes:

  • More categories of people would be subject to the public charge test.
  • More individuals would be repeatedly subject to the public charge test – for example, once when applying for an initial visa, once when extending their visa, and again when applying for a green card
  • Simply applying for a means-tested benefit (even if the person never received the benefit) would also count as a negative factor
  • Benefits used by other members of the immigrant’s household – including their US citizen children – would be counted as a negative factor if the household member is financially dependent on the immigrant.

Skills would count as “positive factors,” but there’s a catch

Assuming that the published version of the proposed regulations tracks with the leaked draft, a person’s English skills, educational attainment, and history of employment would count as positive factors in the public charge assessment. However, as detailed above, many of the supportive services that enable people succeed in education and training opportunities would be viewed as negative factors.

Thus, immigrants would need to weigh the potential risks of – for example – drawing on SNAP benefits in order to complete their community college studies. Such calculations would be difficult to assess, both for individual immigrants and for the education and training providers who serve them. Because the public charge assessment is ultimately a subjective decision by an immigration official, it is difficult to predict whether the positive factor of obtaining a college degree would outweigh the negative factor of relying on SNAP benefits.

Potential for chilling effect

Given the difficulty in predicting how immigration officials will weigh the various factors, if the anticipated regulations are actually enacted it is expected that many immigrant students and workers will err on the side of caution in withdrawing from public benefits programs. (Media reports indicate this has already started to occur.)

In addition, while some categories of immigrants are exempt from the public charge test – such as refugees and people who have been granted asylum – it is anticipated that a significant number of these exempt individuals will nevertheless withdraw from public benefits programs out of confusion or fear.

The bottom line: How will this affect adult education and workforce programs?

If the anticipated regulations take effect, there would be significant effects across a wide range of skills policies and programs. Below are some of the potential ramifications:

  • Decrease in enrollment, retention, and success rates in adult education and workforce programs. Immigrants may shy away from participation due to fear of losing their immigration status or facing deportation for accessing means-tested publicly funded services, even if those services are not part of the public charge test
  • Unwillingness by students to access federal Pell Grants or similar state-funded financial aid due to fear of immigration consequences; greater likelihood of student financial instability and increased dropout rates
  • Confusion on the part of community college financial aid advisors, adult education instructors, case managers, navigators, and others about how best to advise immigrant adult learners and workers
  • Need for substantial re-training of frontline staff to ensure accurate advice and information given to education and workforce program participants
  • Need for providers to reassess braided funding strategies in cases where means-tested funding (such as SNAP) is combined with non means-tested funding (such as WIOA Title II), so as not to put immigrant students in unnecessary jeopardy
  • Time-sensitive need to engage in complex process of amending paper forms and online applications for state and local public benefits to adequately warn applicants that receipt of such benefits may expose them to immigration consequences
  • Increase in requests from existing students and workers to dis-enroll themselves or their family members from publicly funded education and workforce programs
  • Requests from current or former program participants for official documentation verifying that they have not received public benefits during a specified time frame

How you can take action

When the anticipated regulations are formally published in the Federal Register, NSC will provide a quick-turnaround analysis focusing on issues of concern to skills advocates. There is expected to be a public comment period of between 30 and 60 days. NSC will also be releasing sample comments that advocates may use as a framework for developing their own comments.