Newly Proposed 'Public Charge' Rule Could Be Devastating to HIV-Positive Immigrants

Lisa Thompson
Amanda Lugg
African Services Committee

Just when you thought it couldn't get much worse for immigrants, it could get much worse for immigrants.

In late 2017, the Trump administration announced its intention to impose harsher rules for determining when immigrants are considered a "public charge" -- a legal determination that can block an individual's path to permanent residency (i.e., obtaining a green card).

Under U.S. immigration law, a person seeking a green card through a family relationship must show that they "are not likely to become a public charge," which under current law is someone who is unable to support themselves and thus likely to depend on government benefits for income. Historically, the Department of Homeland Security (DHS) has only excluded applicants based on continuous receipt of cash benefits or long-term institutionalization at government expense, so as not to "inhibit access to non-cash benefits that serve important public interests."

The public charge test does not apply to humanitarian cases, such refugees, persons seeking asylum, Violence Against Women Act (VAWA) applicants, etc.

On March 29, the Washington Post received a leaked draft of proposed changes to the law showing that the DHS is now seeking to redefine "public charge" to include mere "use" of any public subsidy rather than "dependency."

The new rules, if approved, would impose severe consequences on lawfully residing immigrants and their families. Otherwise eligible applicants could be denied legal U.S. residency and would be unable to adjust their status to lawful permanent resident (i.e., green card holder) if they, or their U.S. citizen family members, access any subsidies from a range of government programs and benefits, including the Supplemental Nutrition Assistance Program (SNAP); the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); housing and shelter benefits; and non-cash Temporary Assistance for Needy Families (TANF) benefits.

Related: Rates of HIV Are Rising Among Latinx Gay Men in the U.S. Are Anti-Immigration Policies to Blame?

I Heard a Rumor ...

Though advocates have only had access to the leaked draft proposal and much remains uncertain, to date absolutely nothing has changed on the ground. However, conversations are being had in the community and questions are being asked, fueling very real fears, in particular among HIV-positive immigrant recipients of the AIDS Drug Assistance Program (ADAP). ADAP, as readers know, is a state and territory-administered program authorized under Ryan White Part B that provides U.S. Food and Drug Administration-approved medications to low-income people living with HIV who have limited or no health coverage from private insurance, Medicaid, or Medicare.

At African Services Committee this month, one recently diagnosed individual confided with their case manager that they were considering waiting to begin antiretroviral therapy with medication obtained through ADAP until they "felt sick enough," and two others have requested to be taken off a New York City-based program that provides housing assistance to qualifying immigrants living with HIV/AIDS, all because they want to be sure that their green card application will be approved, thus making them eligible to file for family-based immigration visas so their children can join them here in the U.S.

This comes at a time when advocates and public health officials in New York state continue implementing Governor Cuomo's Ending the Epidemic Initiative -- a three-point plan to move New York state closer to ending the AIDS epidemic by 2020 and to achieve the state's first-ever decrease in HIV prevalence. This comes during the current restructuring of the state's health care delivery system, with the primary goal of reducing avoidable hospital use by 25%. The public health implications of the proposed DHS rule threaten to scupper most, if not all, metrics of success.

To be clear, this proposed rule would not prevent immigrants from having access to these benefits, but rather, the immigrant mother whose 13-year-old U.S.-born citizen daughter is enrolled in a means-tested school meals program -- a benefit that she is statutorily entitled to -- would have to consider whether to pull her daughter out of her daily breakfast and lunch program to avoid triggering a "public charge" determination on the mother's eventual green card application, so she can "permanently reside" in the U.S. and keep her family together.

Proposed Public Charge Ruling a De Facto HIV Immigration Ban

Currently flying just below the radar is the reality that this rule would essentially operate as a de facto ban on HIV-positive individuals seeking permanent residence in the U.S. Immigrants with disabilities or pre-existing medical conditions such as HIV/AIDS would be required to show proof of unsubsidized health insurance -- i.e., no Medicaid, ADAP, or Obamacare, thus creating a back door to a reinstatement of the HIV immigration ban.

In effect, these regulations would slash family-based legal immigration, infringe on the state's right to control public health and general welfare, and re-enact the HIV immigration ban -- all without any congressional authorization.

Last month, the proposed rules were sent to the Office of Management and Budget (OMB), and advocates are monitoring the Federal Register daily for the rules' release for public comment. It is expected that the new rules will be released by July 2018, and the public will then have anywhere from 30 to 90 days to submit comments.

OMB will need to hear from us. OMB will need to hear from hundreds of thousands of us.

Amanda Lugg is the director of advocacy at African Services Committee. Amanda works at the intersection of health care and immigration by advocating for sound and effective public policy that ensures affordable and quality health care for immigrant and asylum-seeking populations, in particular for those individuals and families impacted by HIV/AIDS and other chronic health and human rights challenges.