September 24, 2018

BREAKING NEWS: Public Charge Rule Moves Forward

Yesterday evening, the US Department of Homeland Security (DHS) released its long-rumored proposed regulation related to the public charge test. The proposed rule significantly expands the public charge test to punish immigrants for accessing a wide range of federal programs, including SNAP and Medicaid. However, WIC is not listed in the proposed rule. The proposed regulation is therefore narrower than the leaked drafts that were published in news outlets this past spring. While NWA staff continue to analyze the proposed rule, here are some key insights:

• The changes are not immediately effective. The proposed regulation would not become legally effective until 60 days after a final rule is issued. A final rule cannot be issued until after a 60-day comment period, which is likely to last until after Thanksgiving. Therefore, we are not expecting this rule to be finalized until at least December 2018 or even into 2019.
• WIC participation will not impact an immigrant’s legal status. Despite leaked drafts in the spring, the proposed regulation does not include any provision that would penalize an immigrant for accessing WIC benefits – either in a personal capacity or on behalf of a dependent child.
• DHS is still considering whether additional programs should be included in public charge. Even though WIC is not included in the proposed regulation, DHS is actively soliciting public comment on whether other programs should be considered in public charge determinations. The WIC community must continue to make the argument that WIC should not be included in public charge.
• SNAP, Medicaid, and housing subsidies are included in the proposal. Although WIC is not included in the proposed regulation, many programs that WIC families access are implicated. The public charge rule will continue to have a significant negative impact on the health and food security of WIC families.
• The rule does not apply to all immigrants, consistent with prior drafts. The public charge rule does not apply to certain groups of immigrants, namely: those applying for citizens in a naturalization proceeding; undocumented individuals; and certain groups of humanitarian immigrants (refugees, asylees, Violence Against Women Act self-petitioners, Temporary Protected Status, etc.).
• The rule is not retroactive. Immigration officials will not consider use of benefits that predates the rule’s applicable date. Therefore, those who are accessing affected programs now are not likely to be penalized in a public charge determination for their current use.

We know that clinics will be fielding renewed concerns from participants as the comment period opens. Clinics may wish to adapt this template press release to inform members of their community about the proposed rule and reassure participants that WIC continues to welcome all. NWA’s FAQs – last updated in May – also provide helpful context that may be useful to participants, but it is important to note that there are important distinctions to be made between the leaked drafts and the now-proposed regulation. NWA will be updating the FAQ document shortly and providing additional resources over the coming weeks to assist clinics. All materials will be made available on our Immigration Resources webpage.

The comment period is open until late November, and it will be imperative that WIC clinics speak out to reaffirm that WIC should not be considered in public charge determinations. DHS specifically asks for public comment on whether additional programs should be considered, and it is up to the WIC community to highlight the impact that this debate has already had on our clinics. Remember: Regulatory commenting is not lobbying. In the coming weeks, NWA will be providing template comments and op-eds on the Immigration Resources webpage to assist all interested in speaking out on behalf of affected WIC families.

NWA will continue to update members on the public charge rule as we enter the comment period. Thank you for your continued commitment to this program and all of the families that we serve.