Denny Chan: Hi, everyone. Welcome to today’s webinar brought to you by Justice in Aging. The webinar is about the Public Charge Final Rule: What Advocates Need to Know.
So thank you so much for tuning in today, whether you’re tuning in live or watching the recording and reviewing the materials afterward. We’re really pleased to be able to spend some time today unpacking the final rule, as well as some sub-regulatory guidance that was released just last week.
To do that, we’re really pleased to partner this time with the Protecting Immigrant Families Coalition, and Elizabeth will be here to unpack the regulation and the sub-regulatory guidance with us. So thank you again for joining on this really important topic because we know there have been a number of developments.
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If you are new to us at Justice in Aging, we are a national legal advocacy organization dedicated to using the power of law to fight senior poverty. We specialize in the programs that all older adults need to age with dignity, including healthcare, economic security, and access to the courts for low-income older adults. And since our founding in 1972, we have focused a lot of our efforts on those older adults who face structural and systemic discrimination, and today, including older immigrants.
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So before I turn things over to Elizabeth for an intro on PIF and for her to introduce herself, I thought I would just give you kind of a run of the land of today’s webinar. So we’ll be reviewing the public charge regulation. Before we do that, we’ll have a little bit of information about older immigrants. We have a number of other resources that we’ve been compiling over the past couple of years and can direct you to those about older immigrants more broadly.
But Elizabeth will help us walk through what was in the rule. And then we have a section where Sahar will review the public charge with some specific issues for older adults and people with disabilities. And then there are some hypotheticals that we’ve created that Sahar and Elizabeth will walk through. And then there will be time for Q&A. And so for the Q&A portion, feel free to continue to put the questions into the chat. Any questions that we don’t get to, we will follow up with you offline.
And as you will learn about today, public charge is really confusing. There’s a lot of different things that immigration officers can now weigh. And so all of these are really going to be kind of individualized inquiries, but we’re here to give you what we know.
And so with that, I’m going to turn things over to Elizabeth for her to introduce herself, and then Sahar will take it over on older immigrants.
Elizabeth Lower-Basch: Sure. So thank you so much to all of you for being here today and to Justice in Aging for having this webinar and for the opportunity to join you all. So I’m here today representing the Protecting Immigrant Families Coalition, which we often affectionately refer to as PIF. This has over 900 member organizations, including Justice in Aging, across nearly all states. And it really is deliberately, it’s a multi-sector network trying to bring in diverse perspectives from faith-based aging, anti-hunger, healthcare, unions, folks at the state level, folks at the national level, great range of perspectives focused on ensuring that immigrants and their families have equitable access to the full range of public benefits, quality healthcare, nutrition, housing, public services, economic supports, tax credits.
My name’s Elizabeth Lower-Basch, if I didn’t say that already. I’m a consultant for PIF, and I’m returning to PIF after having been among the group that helped launch it back in 2017, when we first got to deal with public charge being weaponized against immigrants and their families. So with that, I’ll hand it back for the background information about older immigrants.
Sahar Takshi: Thank you, Elizabeth. And thank you, Denny. So before Elizabeth dives into the details about public charge, I want to take a minute to just talk about the impacted population that we’ll be covering today, older immigrants and who they are. Next slide please.
Okay. So who are older immigrants? There are an estimated over eight million immigrants who are over the age of 65 living in the United States, and this makes up a pretty significant part of our total older adult population, over 14%. It’s also important conceptually, in my mind, to understand that while some immigrants might come to the US in older age, for example, to reunite with younger family members, adult children, many of the people in this group came to the US in a younger age, and have lived in the United States for many years and have aged here, continuing to age in the United States into older immigrants.
The older immigrant community is incredibly diverse, not just in terms of culture and language and nationality, but also in the pathways that they may take to immigration. For example, some may already have lawful permanent residency or a green card. Others may be on some kind of visa. Some may have a humanitarian immigration status such as being an asylee or a refugee, and these distinctions do matter for the purposes of public charge. And Elizabeth will be talking about that in greater detail later on in this presentation.
However, many older immigrants face significant barriers in getting their basic needs met. There are many laws and policies that do explicitly bar certain groups of immigrants from accessing public benefits. Public charge is not one of those that explicitly bars, but as we’ll see today, it certainly has an impact on how people access public benefits and other services that they may need to age with dignity.
But even when an explicit bar on accessing services doesn’t exist, older immigrants might still experience many barriers in getting help. For example, due to insufficient language access services, difficulties navigating program eligibility and enrollment processes, even misinformation about whether they’re eligible for a certain kind of service. And of course, another barrier is fear and hesitation, whether it’s fear about using a certain kind of benefit and how that might impact themselves or their family members, or it might be fear related to hostilities, detainment, especially in light of the increasing anti-immigrant rhetoric under this administration.
So that’s a very high-level overview of who older immigrants are in the US. We’ll be talking a little bit more about the unique impacts of public charge on older immigrants later on, but for now I’ll pass it back to Elizabeth to talk about the public charge rule.
Elizabeth Lower-Basch: Okay. So I’m going to start with just an overview of what is public charge and what’s the concept, and then move into what the new rule does. I’m going to try to do this with as little jargon and acronyms as possible. But if I fail and I use a term that you don’t know, please do put it in the Q&A and we’ll try to make sure that we answer it as we go along. And I know for some of you, this is stuff you know already, but we’re going to start with the beginning and get everyone onto the same page. So, appreciate your patience. Next slide please.
Public charge is a rule that when an immigrant applies for lawful permanent residency, a green card, or in some cases, when they apply for a visa to enter the United States, their application is reviewed. And for over a hundred years, there has been a public charge test to see if the immigrant is likely to depend on government support in the future, with the idea that people who they believe will depend on the government in the future can be denied entry or a green card. And it’s not part of all immigration applications, only some. So that’s going to be an important part of the messaging that not all non-citizens need to worry about the public charge test. Next slide please.
And just noting that it is not a new thing, that this is part of racial and other discriminatory animus, and has been used historically to deny Jewish people fleeing the Holocaust, people who had disabilities or illnesses, individuals that did not fit social norms, including LGBTQ+ people, single mothers, and in some cases, seniors. The idea is they really were looking to bring in people who they thought would fit in, who would be workers, who would be self-sufficient as it was understood at the time. And it’s definitely tied to this whole notion of who’s deserving and undeserving. It was enacted at around the same time as some other immigration restrictions, including the restrictions that made it almost impossible for people coming from Asia to enter and stay in the US. Next slide.
Okay. Yeah, I can go on to the next slide. Yes. So as I said, it only applies to certain immigrants, and mostly it applies for people applying for family-based green card, lawful permanent residence, or a visa to enter the US as an immigrant. It also does apply to some employment-based green cards and visas, but those folks are usually in higher-paying jobs and less likely to be found. Does not apply to US citizens. It does not apply to citizenship applications, which I think is something that people get confused by easily. It’s about getting the green card, not about naturalization.
In general, it does not apply to green card renewals. Once you have a green card, it mostly only applies if you leave the country for more than 180 days, then you can be subject to another determination when you apply to reenter the US. But there’s a whole bunch of statuses. I’m not going to read them all. But most humanitarian immigrants are not subject to a public charge determination. It doesn’t apply DACA applications, or TPS applications, or renewals. We do have a Keep Your Benefits website that one of our partners has put up. I can add the link later. And it helps people figure out, am I even in a category that has to worry about public charge? Next slide.
So basically the statute says that the following circumstances should be looked at as part of a totality of circumstances, including age, education, employment, health, skills, income or assets, whether you have an affidavit of support from a sponsor who says that they will help support you, and use of certain public benefits. And these are part of what does the totality of circumstances mean? It basically means that none of these is supposed to be like a check mark, where once it’s checked, it’s an automatic no. It’s that all the pieces need to be put together and considered as a whole. Next slide, please.
So yes, and I’m going to focus on the use of public benefits, and then Sahar will talk a little bit more about some of the other provisions under it.
So what has just changed in the new rule? Next slide. Earlier this month, or last month, the administration published a new final rule. It had previously been a notice of proposed rulemaking. Many of us submitted comments on it, opposing it, but they finalized it and it goes into effect on September 18th, so in about three weeks. This deletes almost all of the text in the previous public charge rule and doesn’t replace it. The only part that’s left is a little bit of language about public charge bonds, which can be required if they determine that someone fails the public charge test. But if they’re able to put up money as a bond to prove that they won’t use benefits, then they might be able to get the green card or visa anyway.
So what the previous rule did was it created a lot of certainty about what benefits could and could not be considered in a public charge test under the previous rules. And while the literal regulatory language was relatively recent, it was from the Biden administration. The policy dates back to at least 1999, saying that only cash assistance and long-term institutionalization would be counted as public benefits. Now, any use of any means-tested benefit can be considered. And I haven’t looked at the Q&A, but I bet there’s a bunch of questions about, does this program count? Does this program count? Does this program count? And what they’ve done is they’ve deliberately taken away the nice list of these programs count and these programs don’t count. And it’s designed to create confusion and fear.
The other thing that the rule takes away is the clear language saying that family members’ use of benefits, people other than the non-citizen who’s applying for the visa or the green card would never be considered. Now those are not considered benefits received by the non-citizen, but they can be considered as part of the assessment of income and assets. So we, of course, are deeply concerned that this will cause people to avoid benefits that they and their families really need out of fear that it will impact a future public charge determination. Next slide, please.
So the preamble to the regulation did provide a little bit of clarity, a tiny bit of clarity, and some of this was strengthened by the guidance that USCIS just released last week. And it says that earned benefits will not be considered in the public charge determination. So that includes social security, whether for retirement or disability, Medicare, pensions, unemployment, VA benefits, paid family and medical leave in the states that have earned PMO programs. It also says that universal programs, programs that are available without regard to income. So that could be public school, a senior center, a library. In Alaska, the dividend that they get for the oil money is universal and a school that provides everyone free meals through community eligibility or through a state program, that would not be counted.
What is counted is anything that is means-tested, means that it’s based on the amount of income that you have and then it’s paid for by the government. So that includes Medicaid or state-funded health coverage, SNAP, food stamps, rental assistance, as well as cash assistance and other programs that had previously been counted. One thing to note is that they’re defining government to include basically any level of government, so federal, state, local, tribal governments. So some states provide benefits to people who are not eligible for federal programs because of their immigration status, and those programs could still be taken into consideration. Next slide, please.
So what this means for immigrants and their families, lots of confusion and what people often call a chilling effect. People are afraid to enroll, including their children or other family members who are US citizens, because they are afraid that it will harm their application, either currently or down the road, for a green card or for a visa, and people just don’t want to take the risk and they’re not quite sure what counts. So the more that we can give people accurate information, we can empower them to make informed decisions about what is best for themselves and their families. And this is going to be one of the things that’s hard is because we won’t necessarily be able to tell people it’s definitely safe to access this program, but we can talk to people about how it will be considered and give them the information they need to decide. Next slide, please.
I think this is where I’m passing it off. Thank you.
Sahar Takshi: Thank you so much, Elizabeth, for walking us through the rule and its changes. In this section, I would like to go over some of the unique considerations of the rule on older immigrants. Next slide, please.
Okay. So first you likely notice that one of the factors under the public charge statute is age, and this clearly is a unique consideration for older immigrants. It’s important to remember that the public charge determination is a totality of the circumstances test, meaning that no one factor, including age, is going to make or break a person’s case. However, it’s obvious that age is a factor that immigration officers will weigh in relation to the other factors under the public charge determination.
Under the new guidance that accompanies the rule, which Elizabeth talked about, the guidance directs immigration officers to look at age in conjunction with other factors like employment. For example, if an older immigrant is currently employed or will be employed in the future, that’s something they would consider. However, the guidance does note that if the applicant is already retired or very close to retirement, then the immigration officers will weigh also their financial security, such as whether they have access to savings, retirement savings, other resources, and give a little more weight to their financial security in conjunction with the age determination. Next slide, please.
Another factor under the statute is the applicant’s health, and that’s quite a large umbrella. Immigration officers primarily look to the medical examination that’s conducted as part of the immigration process, as part of the applicant’s pathway, but they can also review or even ask for other reports from doctors, other medical information that would be relevant to the applicant and can be submitted to the agency.
Similar to the age factor, the existence of a disability can be considered under the umbrella of health, but the sole fact that someone has a disability should not be outcome determinative in a public charge analysis because the immigration officers are supposed to look at the totality of all of the factors. And in fact, the new guidance explicitly reminds immigration officers of this. It talks about the fact that many types of disabilities do not require extensive medical treatment or institutional care, and reminds immigration officers that many people with disabilities are able to work and have secure financial situations. Next slide, please.
Okay. The new guidance adds another factor on top of the two statutory ones that I just added, along with the other statutory ones that Elizabeth had gone over. One of these factors that the guidance talks about is willingness and ability to work. It posits that an immigrant who is incapable of earning a livelihood is more likely to become a public charge, and it provides some examples for immigration officers to consider. And these examples I think are especially relevant when we’re thinking about older immigrants.
For example, one is that older immigrants who are unable to work and have limited financial resources, people in this group would be considered more likely to be a public charge under the new guidance. Another example is that immigrants who have a disability or another medical condition that requires extensive care or treatment, the individual’s unable to work and has limited financial resources. Again, the guidance notes that people in this category would be considered more likely to become a public charge.
Again, though, even the guidance itself reiterates to the folks reading this, to the immigration officers that should be referring to it, that public charge determinations do take the totality of the circumstances approach, meaning that the officer should be considering multiple factors and any one factor, including inability to work should not be outcome determinative. That fact alone should not make someone a public charge. Next slide please.
Okay. And lastly, the guidance adds another relevant factor for immigrants who are the primary caregiver to another person, such as a child, or a person with disability, or an older adult in their lives. This factor is a little bit more nuanced with the guidance noting that the informal caregiving responsibilities, it sort of posits that caregiving responsibilities can impact a person’s ability to work in the formal economy. And so if someone is a caregiver, they might have a different employment history or their future employment might look a little different.
And the guidance talks about how caregiving responsibilities like this can be weighed more favorably for the applicant if the immigration officer believes the person’s caregiving responsibilities outweigh their lack of employment or employment history and other skills. But it also notes that caregiving responsibilities can weigh against the applicant if the immigration officer believes that the financial cost of the caregiving is high compared to what the responsibility is. For example, one of the examples in the guidance is that if the caregiver doesn’t live with the person they’re providing care to, but rather pays for their room and board at a facility, a situation like that might be weighed negatively in a public charge determination.
The guidance also asks immigration officers to look at some sub-factors related to caregiving when considering it. For example, whether the person receiving care is in the same household as the applicant, whether they actually live together, whether another person claims to be a primary caregiver, if this is a shared responsibility. And also, the age and medical condition of the person receiving the care is another factor that it instructs immigration officers to look to.
So these are a few ways that immigration officers might be thinking specifically about the factors that relate very directly to age. And I’ve seen a lot of questions coming in during the chat, and I look forward to answering them hopefully very soon. But I think we can move on to the next section.
Denny Chan: Hey, Sahar, thank you for walking through the pieces on the sub-regulatory guidance. So I think right now, we have… And thank you all for typing in all your questions. We have 55 questions. We have some community messages and some hypos to walk through. But I know that before we do that, first I think I forgot to introduce myself at the very top of the hour. So I’m Denny Chan. I work at Justice in Aging. I am our managing director for equity advocacy. Thank you for joining us. He/him/his pronouns.
There were two threshold questions that I think, Elizabeth, you wanted to take before we went into the hypos. So why don’t we just stop now and you all continue… There’s 1,800 of you on. So continue to put in the questions, but we’ll take these sort of two threshold questions that are really worth revisiting before we go into the messages and then we’ll go back to the questions.
So the first question that I think you wanted to pull up was confirming that the new policy still does not apply to those listed on an earlier slide that the old policy did not apply to. So basically to whom does public charge apply question.
Elizabeth Lower-Basch: Correct. The person who asked the question is correct. The exceptions of who it does and does not apply to from before are not changed. They pulled it out of the regulations, they moved it into this sub-regulatory guidance. But we looked through the list, and I have not seen any category that they missed in the sub-regulatory guidance. So who it applies to is not changed. So, thank you for that. I should have made that more clear. Appreciate the opportunity to lift that up.
Denny Chan: Yeah. So second one before we pass it back on community messaging is, for adjustment of status applications filed prior to September 18th when this new rule takes effect, do the new regulations apply?
Elizabeth Lower-Basch: They do not. The applications are subject to the rules that were in effect when they were filed. So until September 18th, the old rules apply. I would not be surprised that there’s been a rush of movement to get applications in while the old rules are still in effect. The other thing to name is that benefits received before September 18th other than the ones that were countable under the old rules. So other than cash assistance and institutionalization for long-time care, those benefits received prior to September 18th, should not be considered according to their own guidance. So if someone received Medicaid last year and are not receiving it now, it should not be counted against them.
I think one of the challenges right now is that’s resulting in lots of questions about, should I be dis-enrolling right now? And those are really hard questions to answer. So I guess that’s a good lead in to the community messaging.
Denny Chan: All right. Yeah, so those are some questions we want to take right now, but we’re going to go back to community messaging and then we’ll go back to Q&A. So keep the questions coming. And again, if we don’t answer everything live, we’re going to follow up with you over email. So, appreciate everyone being super engaged today. All right, let’s-
Elizabeth Lower-Basch: Next slide. Yeah. So, key messages. Most immigrants do not have to worry about public charge at all, because either they are in a category that is not subject to the public charge rule, or realistically, they do not have a path to get applying for a green card and so it does not affect them directly. Benefits are just one part of the public charge test.
Again, this is the totality of circumstances test, so you really need to look at the big picture. So if receiving medical treatment is going to cure a disease that would otherwise have lasting effects and require lean to long-term work limitations, it’s likely that getting the treatment that you need is not just personally the right thing for you, but also will help you in the public charge context. But that’s going to be a very individualized decision.
We do encourage people to talk to a lawyer if this is a situation that affects them, precisely because it is so individualized and complicated. And I am not a lawyer, so nothing I am saying today is legal advice. Advocates are working very hard to fight this rule. As many of you know, the Trump administration put out also a very punitive, bad public charge rule in 2019, and we succeeded in both delaying it implementation through litigation, and then that litigation made it possible for the Biden administration to repeal the rule really quickly when they came into power and put the better rule into effect. So we are continuing to work to fight this rule.
And then that last message about really everyone is going to have to do what makes sense for them based on their individual circumstances. And our job as advocates or providers is not to give them the answer, but to give them the information they need to be empowered to make good decisions for themselves. Next slide.
Okay, we’re going to do some practice scenarios. I don’t think these quite cover all the questions that people have, but hopefully they’ll give sort of a sense of what the pattern is.
Sahar Takshi: Okay. So Elizabeth, in this scenario, we have Kareena. Kareena has been living in the US as a green card holder or lawful permanent resident for the last 12 years. She is 72 years old and recently retired from her job as a cashier. She receives Medicare and Medicaid. Kareena’s sister recently became ill and she wants to travel back to India for a few months. Kareena’s worried that if she leaves, she won’t be able to come back to the United States and be with her son and her grandchildren. What would you tell Kareena in this scenario?
Elizabeth Lower-Basch: I don’t know if folks want to think about it for a moment and then we can go to the slide. We can go ahead. I know there’s a lot of questions to get to. As long as Kareena is inside the US, she already has her green card. She’s not subject to a public charge test if she wants to naturalize.
The question is if she leaves the United States, will she be subject to a public charge test when she returns? So the test there is 180 days. If it’s really just three months that she’s going away, she should not be subject to a public charge test when she returns. But if she’s going to spend more than 180 days outside of the US, she may be subject to one when she returns, and we recommend that she speak with a lawyer.
Of the benefits piece that she receives, Medicare is an earned benefit. It is not counted. Her use of Medicaid could be counted and would be weighed alongside other factors, including her age, her income, health, whether she’s providing care for her grandchildren. We know lots of people do that. So all of that would be part of the totality of circumstances.
This also notes that there may be other barriers that this administration comes up with, like travel bans. The 75 country, totally arbitrary ban, which was in fact timed to public charge, was just rejected by the courts. This is required to be an individualized determination. They can’t just say that everyone from a country is at a higher risk of being a public charge, but this administration has done all sorts of things that the courts would not otherwise allow. So, things to keep in mind. Sahar, anything you want to add on this one?
Sahar Takshi: No, I think that was a very thorough analysis. Thank you, Elizabeth. Okay, let’s go on to our next scenario. A little bit of an easier, shorter one. Here we have Maya. Maya is a 58-year-old lawful permanent resident or green card holder and she’s ready to naturalize. But she’s a little worried because she uses SNAP benefits. What can we tell Maya in this scenario?
Elizabeth Lower-Basch: We can go on. Again, there is not a public charge test to naturalize and apply to become a citizen. And again, naturalization has its own set of challenges and issues, and we always encourage people to talk to lawyers about that process.
Sahar Takshi: Thank you. Okay. Our next scenario is with Juan. Juan is an 85-year-old Mexican immigrant who came to the United States a couple years ago. He has always wanted to get his green card, but he knows that this process can take a very long time, even over 10 years for certain people. Juan loves going to his local senior center, but it’s becoming more and more difficult for him to complete his daily tasks at home. And he recently heard about a state-funded program that provides home-based care for low-income older adults, and he wants to know, can he apply for this program?
Elizabeth Lower-Basch: Okay, let’s go there. Juan is thinking about getting his green card. So applying for the green card is one of the times when public charge does apply. We are not told here how he entered the US, what his current status is. I’m assuming based on that, it’s probably family-based. It’s not quite clear in this how he came in. So we haven’t seen anything that suggests that he’s exempt from the public charge determination. Universal benefits like senior centers are not considered. But means-tested benefits, including state-funded ones, could be considered to undo this public charge determination.
So this is one where he’s going to need to make the decision about his circumstances. And again, if the home-based care means that he doesn’t need to be institutionalized, that might be a plus rather than more expensive care, but it’s complicated, and just naming that this is a brand new policy and we don’t really know what it’s going to look like in practice.
I did see there were some questions in the chat about who are the officials who are going to make the decision, how are they trained? And those are really good questions that we don’t have good answers to at this stage. And again, because applications filed before September 18th are subject to the old rules, it may be a while before we start to actually see data on what the new public charge determinations look like. So there may be question marks for quite a while. If he’s talking to a lawyer right now, it’s possible the lawyer will tell him to get that application submitted in the next two weeks so that he can be processed under the old rules, but I don’t know.
Sahar Takshi: Yeah. Great points. Thank you, Elizabeth. And I think we have one more. Okay. Our last… Oh no, our second to last practice scenario today. Here we have Yunnan. Yunnan is a 65-year-old person and is a caregiver for his baby granddaughter, Sophia, and claims her as a dependent. Yunnan was granted asylum and Sophia is a US citizen. Sophia has SNAP and Medicaid, but Yunnan is considering dis-enrolling because it could hurt his chances of getting a green card. And what can we tell Yunnan in this situation?
Elizabeth Lower-Basch: Next one. Here we get to be a little happier because there is not a public charge test for people who have asylum when they’re applying for green card via their asylum status. There is that little footnote that if you apply through a different pathway, if you get married and then you’re applying based on family status, that couldn’t affect. So that is noted. Sophia’s a citizen. She’s not subject to a public charge determination, so he’s probably in good shape, but should consult with an attorney. That’s going to be bottom line. We’re always going to say talk to an attorney before you do something in the immigration space because it’s complicated.
Sahar Takshi: Absolutely. Yeah, so many individual factors. Okay. And our last scenario is with Felix and the family. Felix is an older adult who has moved in with his son Josef and their daughter-in-law, Priya, both of whom are lawful permanent residents, meaning they have their green card. Josef sponsored Felix’s visa so he could move in with them, and Josef could help Felix in his older age. As a bonus, Felix gets to spend a lot more time with his grandchildren and sometimes babysits for them. Josef, Priya, and their children receive SNAP benefits, and they’re just not really sure what this new public charge rule would mean for their family. So what are some basics that we can tell them to guide them?
Elizabeth Lower-Basch: Okay. So Josef and Priya are already green card holders. They are LPRs, so they are not subject to public charge unless they leave the country for 180 days again. If Felix someday applies for a family-based green card, he will be subject to a public charge test. And because Josef and Priya are adults, Felix has no legal responsibility to support them, so their public charge use should not affect his test.
If Josef is sponsoring Felix’s green card application and is providing an application of support, one of the things the rule says is that they’re going to look at sponsors more closely to see if they actually have the income to support the people they’re sponsoring and also whether they’re really connected to them. So like a son and a father-in-law, that would probably be considered strongly. But there are some people, particularly if you have secondary sponsors, so it might be someone just from the community who doesn’t have as much of a connection and they might be more skeptical about this.
Again, this is very lots of mights in the sentence because we just don’t know how it’s going to look. And honestly, it may look different from officer to officer, and that’s one of the things that’s super frustrating about this. The guidance has 14 or 15 examples of scenarios like this and says how USCIS, how DHS thinks totality of circumstances would apply to those families. But then there’s this language saying immigration officer can still look at similar facts and come to a different conclusion and that’s allowed, which I don’t even know what to say about that, but there we go.
I think that’s our last scenario. So we have lots of questions. Oh yeah, no, PIF. I will say PIF has lots of resources. We are working to get them all updated as of September 18th with new versions and all the translations. I know Justice in Aging is going to send resources from this, and PIF and NILC also have an FAQ document that we can make sure gets shared with you as well.
Denny Chan: And before we go to questions, I just wanted to share some of the resources we have from the past year or so around older immigrants, given everything that’s happening in the policy landscape. We have two webinars from last year, a part one and a part two, some resources around health, including a primer on older immigrants and Medicare, as well as understanding the impacts of H.R.1 on older immigrants’ access to health, both in the Medicare and the Medicaid context, and then a piece around immigration enforcement in settings that older adults congregate in.
So we are now going to jump to questions. And what I’m going to do since I have now had lots of time to digest what people are asking, is I would say the questions primarily fall in two buckets. One is who does public charge apply to? And the other is what benefits or programs or services can get counted? And then there are a couple of other repeat questions. But I thought for purposes of just making sure that we’re all on the same page, Elizabeth, I was going to go back to the slide, go, go, go, go, go, that had the to whom does public charge apply?
And I thought maybe if you can just spend a couple more minutes here making sure you talk through the does not, because I think people got you on the who does it apply to, but I think it’s worth spelling out the people for whom they’re not going to be subject to a public charge test, and so we should be encouraging them to continuing accessing services and programs because this is not going to come up for them.
Elizabeth Lower-Basch: Sure. So top, US citizens. There’s been some questions about people who’ve already naturalized and somehow is it going to go back and apply to them, and the answer is no. It does not apply to either US-born or naturalized citizens. It does not apply to citizenship applications. It’s not part of the naturalization process.
The only tiny note I’d say is that if they decide that you lied on your green card application, they could possibly use that as a basis to deny naturalization. So it is really important to be honest, tell the truth, don’t try to hide use of benefits because that’s what could get you in trouble. It does not apply to green card renewals. Then in terms of categories, refugees, asylees, and there’s a bunch of smaller categories that are tied to treated like refugees, special visas for Afghan and Ukrainian. So there’s some categories like that that are treated like refugees and asylums.
VAWA is for the Violence Against Women Act, so people who’ve experienced domestic or intimate partner violence under certain circumstances can get those visas. T and U visas, again, that’s related to trafficking, people who have that status know it. SIJ is Special Immigrant Juvenile. Again, these are people who came to the US while they were children who were subject, in many cases, to really horrific circumstances in their home countries.
DACA and TPS are sort of a different category. Those are not paths to green cards in general. But public charge does not apply when you get a DACA application or renewal, does not apply to TPS applications or renewal, or to Liberian Deferred Enforced Departure is I think what DED stands for.
Denny Chan: Thank you. Okay, so then the second bucket was people asking questions about very specific programs and services. And I know one of the challenges here, as you said, Elizabeth, is that they took the list away, right? So other than what’s been very clear from the beginning, we’re sort of left figuring out what goes into what bucket. And so I just wanted to ask about a couple of programs and services that came up quite a bit in the Q&A and get our best thinking on where they might fall. The first is federally-qualified health centers.
Elizabeth Lower-Basch: You had to start with the really hard one. So that’s hard because federally-qualified health centers are, in many ways, universal programs that they need to serve everyone in their area, but some of their services are on a sliding scale basis. And I think we’re all frankly struggling with how to think about that and how to report it. I’m not sure I’ve got a good answer for that. Sahar, I don’t know if you have an answer you want to.
Sahar Takshi: I don’t. Certainly something to keep an eye out as we learn more once the rule is in effect though.
Elizabeth Lower-Basch: And I’ll say the preamble to the final rule actually specifically names this tension of it being, in some ways universal, and in some ways means-tested and punts it, doesn’t give an answer. So it’s not that they didn’t know this was an issue, it’s they decided not to provide clarity. And again, I wanted to name them like they’re using confusion intentionally. This isn’t an accident.
Denny Chan: Yeah, I thought we’d start with some hard ones. So another benefit that came up quite a bit in the chat was SSI, because one of the slides sort of says social security is an earned program and so that doesn’t count. Would SSI fall into that, or would it fall into something that could be counted?
Elizabeth Lower-Basch: SSI counts. SSI counted actually under the previous rules as a cash benefit. SSDI does not count because that’s considered earned based on your previous employment history, but SSI is means-tested and counts.
Denny Chan: All right. And so let me just flag to, since we have six minutes left, we have 91 questions. So we’re not going to get to them all. But as I said, we will be following up with folks, so make sure to get your questions in. One sort of other thread of questions that came in was around how far can they look back on benefits use? If someone received a benefit many, many years ago, is that given the same amount of weight as something that people have gotten this year or last year?
Elizabeth Lower-Basch: There’s two different questions. One is about the retroactivity of the rule. So if you got Medicaid last year and you’re not receiving it in 2027, and you’re adjudicated then under the new rules because you received it when the old rules were in effect, it wouldn’t be counted. But there’s no limit on how far back they can look under these rules in terms of time. So hopefully this rule will not be in effect 10 years from now. We will have gotten rid of it. But if it’s in effect 10 years from now, they could, in theory, look at benefits received in 2027 and an adjudication in 2036.
If you look at their examples, there is sort of a sense that if you received benefits a long time ago and the circumstances changed, that you got them because you were in a car accident and you completely recovered and now you’re fine, that shouldn’t count. Or you got it while you were in college and you got a degree, and because of that you got a great job and are making a ton of money. The fact that you got benefits in the past and the circumstances have changed in the totality of circumstances, that shouldn’t matter. If you receive benefits continuously for 10 years, they’re probably going to count that. So it’s squishy. And again, they don’t have nice clear lines saying this is safe, this isn’t.
Denny Chan: And to your point, it’s sort of intended to be squishy, right? Okay, so let me ask, since there was a question about, Sahar, you had walked over in the sub-regulatory guidance some of these factors that weren’t delineated in statutes. So they’re not required to be considered, but sort of subregulatory guidance references them, and one of them was around the primary caregiver considerations. Can you go back through, I’ll get us to that slide, but can you help us review that one more time just to make sure that folks understand what the sub-regulatory guidance says?
Sahar Takshi: Yeah, absolutely. So this is one that is a little bit significantly different from past years. In many ways, the guidance talks about caregiving for another person, whether that is a child, a person with a disability, an older adult in the applicant’s life. The guidance indicates that that is largely going to be viewed a little more positively. So for example, if a person has been a caregiver for someone and has not been working in the formal economy, the fact that they haven’t worked in the formal economy, usually that would weigh against them. But because they have caregiving responsibilities for a person, that sort of counters it, and their lack of employment history won’t be viewed so negatively.
The guidance does talk a little bit about situations where caregiving doesn’t counter a lack of an employment history. For example, if you are paying for someone’s room and board at, say, a nursing facility or an assisted care facility, that does not negate the negative factor of a lack of an employment history. So the guidance provides these four factors that… A few more than four, but these are the four main ones that immigration officers are going to look at to figure out what the situation is. And those are whether the person that the applicant is caring for is part of their household, whether they’re actually living together as opposed to the person receiving care being in a formal institutional setting or something.
It also talks a little bit about whether another person shares some of that caregiving responsibility. If the applicant is a sole caregiver, they’re given a little more positive weight in the public charge determination. But if that caregiving responsibility is shared with another person or if another person says, “No, I’m the primary caregiver,” then that would be viewed a little more negatively.
And then the guidance, I think this is a little intrusive, this whole process is really intrusive, but it asks about the age and the actual medical condition of the person being cared for, and certainly leave some room for discretion for immigration officers to decide whether this caregiving responsibility is going to be a positive or negative factor if the person is also lacking employment accompanying it.
Denny Chan: Yeah, I think that’s one of the key takeaways from this presentation is the word discretion. A lot of discretion, a lot of factors. I know we’re at the top of the hour, and so I wanted to first start by thanking you all. There were over 1,800 of you who tuned in, and a number of you will receive the post-webinar materials after the fact.
Thank you for all your questions. As I said, we didn’t get to all 97 questions in the hour, and so we’ll be following up with you. You have on this last slide our contact information, so feel free to reach out. And you also have some resources. I’ll also flag that one of the other attacks on older immigrants was changes to Medicare eligibility made under H.R.1. We have some resources including a template comment that will be going out, I believe next week. So if you’re on our listserv, you should be getting those. We’ll also circulate that through our friends at PIF.
And thank you all. Thank you, Elizabeth, for joining us and presenting, helping us walk through this really mushy stuff. Justice in Aging is a proud member of the Protecting Immigrant Families Coalition, and so always looking forward to partnering with you to lift up and make sure that immigrants are getting what they need in this time. So thank you, everyone. Thank you, Sahar.
