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Immigrant Eligibility for Medicaid & other Public Benefits - Public Charge Rule VACATED March 2021

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Posted: 06 Mar, 2009
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Updated: 09 Mar, 2021
by Valerie Bogart (New York Legal Assistance Group)

Updated Immigrant Eligibility for Public Benefits in NYS Chart - 

by Empire Justice Center & NY Immigration Coalition - updated to include Public Charge 

Click HERE for chart

NEWS on Public Charge -  Regulations Issued by Trump Administration VACATED 3/9/21

NEWS 3/9/2021 - Just in from The Legal Aid Society, counsel on one of the cases challenging the Trump Administration's "public charge"  regulation  that went into effect on Feb. 24, 2020, that changes the definition of who could be denied "adjustment of status"   (requests for a green card) based on likelihood to become a public charge.  

The Biden administration took actions that resulted in the dismissal of the U.S. Supreme Court appeal of the injunction issued in Make the Road NY v. Cuccinelli, and also withdrew the appeal of a final judgment in the Seventh Circuit.   These actions reinstate the preliminary injunction of the public charge rule  in the Second Circuit (New York, Vermont, and Connecticut) and vacates the Trump public charge rule nationwide.  This reinstates the prior policy -- the INS 1999 Field Guidance.  

As a practical matter, immigrant families can now be advised that there are no adverse immigration consequences tied to using health, nutritional, and housing benefits.  The Biden administration is due to deliver its review of the Trump policy and what its policy plans for public charge will be going forward on or about April 5, 2021, following the review called for in the Administration's February 2, 2021 Executive Order.  

The fear caused by the public charge rule is of real concern to  many non-citizens. Click here for the Protecting Immigrant Families campaign's compilation of research showing the devastating impact the rule's chilling effect has had during the COVID-19 pandemic.  Accordingly, we still need to be vigilant in our efforts to make sure that clients who are eligible for and need assistance understand that they are safe in accessing those benefits. 

Background on the TRUMP PUBLIC CHARGE RULE that is now VACATED

The Trump public charge regulations apply to new requests to adjust status - to obtain a green card or become a Legal Permanent Resident made after February 24, 2020.  For current information about these changes see:

  • One regulation by the Department of Homeland Security allows some immigrants, with important exceptions, to be considered a public charge if they receive Medicaid, SNAP, or other government benefits -- which can result in denial of Lawful Permanent Resident status (green card).  The  original nationwide injunction, later lifted by the Supreme Court, was granted by a court order in New York, reported  in  the New York Times, in a case challenging this regulation brought by New York City, the States of  New York, Connecticut and Vermont, as well as in a related suit brought by many non-profit organizations.    This rule was but is no longer in effect as of 3/9/21  -  Make the Road NY et al.  v. Cuccinelli, 19-civ-07993 and State of New York v. U.S. Dep’t of Homeland Security, 19-civ-7777 (GBD).  See article in The Hill when lawsuit filed August 20, 2019 and Legal Aid Society public charge page.

  • A similar regulation by the Department of State allows for denial of an extension of a non-immigrant visa,  denial of a change  of non-immigrant status (e.g., from a student visa to an employment visa), or denial of  admission to the U.S.  This rule is NOT in effect under an injunction in Make the Road NY vs. Pompeo. See here

 For a status of all of the litigation and links to the briefs and orders click here, including   lawsuits filed by State of California and National Immigrant Law Center, National Health Law Program & other advocacy groups on August 16, 2020.   See this article  and this one

On February 2, 2021, President Biden issued an Executive Order that included a directive to review the public charge rules.    Read about it on this webpage

Fact sheets and Web sites of State, Local and National organizations on Public Charge


A few take aways - but see more in the fact sheets and websites above: 

  • Certain immigrants --such as refugees, asylees, survivors of domestic violence, Temporary Protected Status (TPS), and other protected groups --are not subject to public charge determinations and are not  affected by this proposed rule.  Public charge is also not a consideration when lawful permanent residents (green card holders) apply to become U.S. citizens.   See  NYS DOH Letter.

  • Before, only receipt of cash assistance (public assistance and SSI) and Medicaid for nursing home care were considered in determining who is likely to become a "public charge."   The  rule will now also include these new benefits, but only when received after the day the changes go into effect

    • Supplemental Nutrition Assistance Program (SNAP);

    • Housing assistance, such as public housing or Section 8 

    • Medicaid (federally funded Medicaid only is considered for public charge, not State-funded Medicaid).

      •  exceptions for pregnant women  and

      • emergency Medicaid for undocumented immigrants -   The rule will not consider treatment of an emergency medical condition as constituting a public charge. 

      • Medicaid in NYS -  Because federal Medicaid has very restrictive eligibility for immigrants, many  immigrants who are not Lawful Permanent Residents but who reside in NYS with the knowledge and acquiescence of the government are considered PRUCOL and are eligible for state-funded health insurance - whether Medicaid or  the Essential Plan   See this article.   

        • The Essential Plan does not cover long-term care.   Seniors and people with disabilities who are PRUCOL and who need long-term care receive State-funded Medicaid instead.   Neither the Essential Plan or State Medicaid will count as being a Public Charge.

        • While  receipt of STATE-funded Medicaid alone will not be counted in the public charge determination, people age 60+ or who are disabled may still be denied based on the totality of their circumstances.  Under the new rules, having a serious health condition and no private insurance or means for support weighs heavily against an applicant.    See  New York State of Health Medicaid and Public Charge QAs (8/16/19).  

  • Medicaid, SNAP and other  benefits received by an immigrant's family members will not be considered (though since many people won't know that, there will be a chilling effect deterring many family members from receiving crucial health, income, housing and food assistance). 

  • The rule will not be retroactive. This means that benefits -- other than cash assistance or long-term care at government expense -- that are used before the rule was final and effective will not be considered in the public charge determination.

  • The rules are having a "chilling effect" on people - making them afraid to access medical care with Medicaid.  But there are many exceptions to the rules.  You should consult an immigration expert to see how the rules affect you and your family. 

FOR HELP: 

Monday-Friday, from 9:00 a.m. to 8:00 p.m.   Saturday-Sunday, 9:00 a.m. to 5:00 p.m.

  • Medical providers can call : NYLAG’s LegalHealth hotline: 212.659.6188

  • Legal Services NYC intake line at 917-661-4500

  • New York Immigration Coalition  state-wide list of legal resources, https://www.nyic.org/providers/

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Updated Immigrant Eligibility for Public Benefits in NYS Chart - 

by Empire Justice Center & NY Immigration Coalition - updated to include Public Charge 

 New York's Exchange Portal: A Gateway to Coverage for Immigrants, published 9/14/15, by Empire Justice Center reviews current rules on eligibility and describes how immigrants can access health care through NYSof Health portal, including for emergency care for those who are undocumented and not PRUCOL.   

Click here for an interactive Marketplace eligibility questionnaire, designed to help enrollment assistors and consumers better assess their potential eligibility for Marketplace coverage based on immigration status, age and income. This questionnaire is not an official assessment of eligibility. To receive an official determination of eligibility contact the New York State of Health Marketplace at http://www.nystateofhealth.ny.gov or 1-855-355-5777

  • This tool was created jointly by the Children's Defense Fund - New York, the Empire Justice Center, and the Community Service Society through their work in the Health Care for All New York coalition.

Note - please see 2013 updates re PRUCOL status for people applying for or granted DACA status in this article.

Attached files
item NYS Dept. of Health 10-18-19 Letter to Local Commr's re Public Charge.pdf (696 kb) Download

Also read
item Medicaid for Immigrants who are Not Permanent Residents (Do Not have "Green Cards")-- PRUCOL and Temporary Non-Immigrant Eligibility
item Emergency Medicaid in New York State - Limited Medicaid Coverage for Undocumented Immigrants
item The Language Access Resource Center - Empire Justice Center
item Temporary Protected Status (TPS) and Public Health Insurance
item Empire Justice Center Reports on Immigrant Access to Health Care in NY's Health Insurance Exchange
item Know Your Rights: NYLAG Webinars on Medicare and Medicaid -

Also listed in
folder Medicaid -> Immigrant Access

External links
http://www.wnylc.com/health/client/images/icons/article_out.svg https://protectingimmigrantfamilies.org/
http://www.wnylc.com/health/client/images/icons/article_out.svg http://www.chcanys.org/clientuploads/__2019/HCS/NYSOH_Public_Charge_Assistor_QAs_Final_081619_.pdf
http://www.wnylc.com/health/client/images/icons/article_out.svg https://www.newamericans.ny.gov/Hotline/hotline.html
http://www.wnylc.com/health/client/images/icons/article_out.svg https://www.clasp.org/publications/fact-sheet/impact-trumps-public-charge-rule-select-states
http://www.wnylc.com/health/client/images/icons/article_out.svg https://www.legalaidnyc.org/notice/public-charge/

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