WASHINGTON, D.C. (February 5, 2021)—President Biden announced on Tuesday, Feb. 2, an executive order directing federal agencies to review the previous administration’s immigration policies, including the public charge rule, which was initially proposed by the Trump administration in September 2018 and finalized it August 2019.

The executive order also rescinds a memorandum requiring family sponsors to repay the government if relatives receive public benefits. The order requires agencies to conduct a top-to-bottom review of recent regulations, policies and guidance that have set up barriers to legal immigration system.

“A reversal of this policy by the Biden Administration should help increase the home and community-based services workforce at a time when homecare demand is rising,” said Bill Dombi, president of the National Association of Home Care & Hospice (NAHC) in reaction to the news.

The National Association for Home Care & Hospice (NAHC) filed comments with the Department of Homeland Security (DHS) on the initial proposal in 2018, expressing concerns that the rule could prove damaging to the homecare and hospice providers that often rely on immigrants to work as caregivers, an occupation notoriously facing workforce shortages. It is estimated that about 30% of the homecare workforce is comprised of people born outside the United States.

“This proposal will result in fewer eligible homecare workers, as immigrants tend to serve as a sizable proportion of the personal care and assistance aides workforce,” wrote NAHC in its comments on the proposed rule. “These workers often qualify for public assistance through programs such as Medicaid and the Supplemental Nutrition Assistance Program (SNAP). The typical annual income for these nonskilled workers falls below the guidelines for a two-member household as included in the proposed rule, and their eligibility for public assistance will also be counted as negative factors in determinations. Barring immigrants on the basis of public assistance will only exacerbate an already prevalent workforce shortage leaving many employers unable to care for patients in need. This will cause patients to seek out more costly institutional settings for the same care they could have received in their home.”

According to the best estimates, about 30% of the homecare workforce is comprised of people born outside the United States, about evenly split between naturalized American citizens and non-citizen immigrants. “This is a strong indication that immigrants will play an important role in addressing the substantial workforce challenges homecare will face in the coming years. According to the U.S. Bureau of Labor Statistics, homecare workers rank in the top 5% growing occupations. By 2026 the demand for homecare workers is projected to increase by over 1 million,” read NAHC’s letter.

Due to low reimbursement rates offered by government programs like Medicaid or the Veterans Administration, compensation for homecare workers is limited and a majority of them qualify for some form of public assistance. (About 30% qualify for SNAP and 30% qualify for Medicaid.)

Under the public charge rule DHS expanded what criteria it considered to be a public charge when evaluating an immigrant’s application for citizenship. Under the previous standard applicants could be denied if they were expected to be “primarily dependent on the government for subsistence.” In expanding the criteria, DHS specified a list of prior usage of common government benefits to be taken into account for evaluation, including: 

  • temporary assistance for needy families (TANF), 
  • section 8 housing, federal housing subsidies, and 
  • certain Medicaid benefits. 

In addition, DHS will evaluate an applicant’s likelihood of need of public assistance in the future. These points of criteria include age, health, family size and financial means.

This rule proved to be controversial since its proposal with many labeling it a “wealth test” for immigrants, and as a means to limit immigrants to the United States. The rule was challenged in court, eventually rising to the Supreme Court, which ultimately ruled in favor of allowing the regulation to be implemented. However, in August 2020 a federal court issued a temporary injunction that in-effect blocked implementation of the public charge regulation due to the COVID-19 pandemic. Under the injunction, as long as there is a public health emergency related to the pandemic, the regulation was barred from application, implementation, and enforcement.

The public health emergency remains in effect, having been renewed most recently in January 2021.