The Biden administration has taken important steps to rescind, vacate, or withdraw proposed and finalized housing regulations that were intended to harm immigrant families. While these latest actions have been essential to ensure that families have access to these critical housing programs, more must be done to counteract the significant "chilling effect" caused by the previous administration's anti-immigrant rhetoric.
To that end, we have compiled an analysis of past harmful policy. While not currently in effect, this information can serve as a guide in future efforts to protect immigrant families' access to housing and combat the "chilling effect" of these harmful policies. Scroll down to learn more.
Many of the Trump Administration's harmful housing policies have been reversed thanks to the efforts of the Biden Administration to protect immigrant families' access to housing. The Trump Administration’s prior hostility towards low-income immigrants and immigrants of color fueled its immigration policies. While many of these attacks were highly publicized, the former President attempted to covertly go around Congress and dramatically change U.S. immigration policy by creating anti-immigrant regulations through federal agencies.
No longer in effect, a prime example of this strategy was the Trump administration’s efforts to deter immigrants and their families from accessing federal housing assistance. Several agencies have proposed or finalized rules that further restrict immigrant eligibility for certain housing programs as well as threaten some immigrants with denials of green cards if they receive – or could theoretically receive – these benefits.
After months of advocacy, the Department of Defense announced a Final Public Charge Rule clarifying that several health and social services are not considered in a public charge determination, a decades-old test to deny temporary admission into the U.S. or deny requests to change one’s status to lawful permanent resident (i.e., green card holder). This rule takes effect on December 23, 2022 and restores the historical understanding of a public charge that receipt of certain non-cash benefits such as housing benefits and Medicaid will not be considered under public charge determinations. Learn more from NLIHC here.
Blaming struggling families will not fix the affordable housing crisis. The real issue is the lack of sufficient funding to ensure that every family who is eligible for federal housing assistance has access to one of the most basic human rights—a safe, accessible, and affordable place to call home.
Department of Housing & Urban Development
Public Charge and Mixed-Status Families Rule
Due to the efforts of advocates nationwide, the Biden administration took swift action beginning in January 2021 to expand access to housing for immigrant households. These actions reversed the Trump administration’s efforts to use several federal agencies, including HUD, to sow distrust among immigrant communities and prohibit low-income immigrant families from accessing safe, decent, and affordable housing. The Biden administration reversed the previous administration’s harmful changes to the “public charge” rule and withdrew the proposed changes to the “mixed status” rule.
As of March 2021, immigrant families’ access to housing benefits is no longer at risk by harms created under the Trump administration. Specifically, the “public charge” rule, which evaluates whether an individual applying for seeking admission into the U.S., applying for a green card, or an extension of their non-immigrant status is likely to rely on the government for assistance if they obtain lawful permanent residence, has been amended to clarify that housing assistance – such as assistance through public housing, Housing Choice Vouchers, and Project-Based Rental Assistance, among other programs – is not considered in an individuals’ application for permanent residency. In other words, these housing benefits are not considered in the “public charge” test.
The “public charge” test is a long-standing component of U.S. immigration policy used to determine if an individual is likely to depend on government benefits as their main source of support. If someone is deemed likely to become a “public charge,” the federal government can deny admission to the U.S. or deny an application for lawful permanent resident status (a “green card”). Permanent residents applying to become U.S. citizens are not subject to the public charge test. The current policy under the May 26, 1999, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds defined “public charge” as a noncitizen who is “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”
When making public charge determinations, immigration officials look at the use of federal, state, or tribal cash assistance, such as Temporary Assistance for Needy Families (TANF) and Supplemental Security Income (SSI), in addition to the individual’s circumstances, including age, income, education and skills, health, family size, and support from friends or family in the U.S. All these factors are considered as part of the public charge test so that positive factors can help overcome negative factors.
Decisions about applications for admission or lawful permanent resident status inside the U.S. are made by the U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security (DHS); applications for admission or green cards outside the U.S. at embassies or consular offices abroad are reviewed by the Department of State. Each agency has its own regulations, but the administration has worked to align the policies. Refugees, asylees, survivors of trafficking and other serious crimes, certain people who have been paroled into the U.S., self-petitioners under the “Violence Against Women Act (VAWA),” special immigrant juveniles, and several other categories of noncitizens are exempt from the public charge rule.
Now Vacated: Trump “Public Charge” Rule
The Trump Administration proposed expanding the list of benefits considered as part of the public charge test, which would make it easier for immigration officials to deny entry or permanent resident status to low-income immigrants because they use, or might in the future use, vital health, nutrition (specifically, the Supplemental Nutrition Assistance Program, SNAP), or housing assistance programs (specifically, public housing, Housing Choice Vouchers, and Project-Based Rental Assistance (PBRA) While the Trump Administration sought to implement its rule on “Inadmissibility on Public Charge Grounds” (Public Charge Rule) in October 2018, advocates pushed back, and submitted more than 266,000 public comments during the 60-day comment period. The final rule was set to go into effect on October 15, 2019, but several courts blocked the rule from implementation until the lawsuits were settled. Additionally, state, county, and city governments joined nonprofits and individuals in suing the Trump Administration in a total of nine cases. Three courts ordered national injunctions, preventing DHS from implementing the rule until a final decision were made. These orders were eventually lifted by the Supreme Court and USCIS began implementing the rule on February 24, 2020, for a short period of time.
President Joe Biden signed three Executive Orders (EOs) on immigration reform on February 2, 2021, setting into motion changes to reverse the previous administration’s harmful public charge rule. Executive Order 14012 “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” directed agencies to develop strategies that promote integration, inclusion, and citizenship. On March 9, 2021, the Supreme Court agreed to dismiss litigation on the previous administration’s Public Charge Rule at the request of the Biden Administration. Immediately, the Department of Homeland Security announced it would no longer implement the 2019 Trump public charge rule. DHS released the final rule vacating the harmful public charge rule amendments on March 15, 2021. DHS announced in a statement that it and USCIS will follow the policy in the 1999 Interim Field Guidance, the policy that was in place before the 2019 rule. Under this policy, DHS will not consider a person’s receipt of Medicaid, public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.
Protecting Immigrant Families
Led by the National Immigration Law Center and the Center for Law and Social Policy, the Protecting Immigrant Families (PIF) Coalition organized opposition to the Public Charge Rule and has worked to ensure that immigrant communities facing attacks by the Trump administration know their rights.
Once the harmful 2019 public charge rule was removed, PIF advocated for a public charge policy that prevents abuses like those under the Trump administration and secures access to programs that help immigrant families live healthy and fulfilling lives. On April 25, 2022, NLIHC and the PIF coalition submitted a comment on the Biden administration’s public charge proposal signed by 1,070 organizations. Importantly, the comment’s signatories included a diverse set of national organizations and organizations from every state and Washington, D.C., signaling to the administration that they could count on a broad base of support in communicating the final public charge regulation to immigrant communities.
PIF consistently kept advocates updated with the latest research on the impacts of the Public Charge Rule, updates on litigation, fact sheets and “Know Your Rights!” messages for community members, and guidance and additional resources for immigration lawyers. PIF members were involved in legal battles against the Trump administration’s changes to the Public Charge Rule over the last four years and were leaders during the public comment campaign.
DHS issued a final rule on the “public charge” regulation on September 8, 2022, adding critical protections to immigrant families’ access to social safety net programs, including housing. The final rule clarifies that several health and social services are not considered in a public charge determination. The final rule took effect on December 23, 2022.
The Biden administration additionally withdrew the previous administration’s proposed changes to Section 214, also called the “mixed status” rule. “Mixed-status” families are those consisting of some members who are U.S. citizens or have green cards and other members that are undocumented. The withdrawal of the “mixed status” rule means that “mixed status” families can pursue the housing assistance they are eligible for without fear of being the family being separated or evicted.
“Mixed-status” families are allowed to live in a HUD-subsidized housing unit. These families receive prorated assistance so that the subsidy amount is decreased to only cover family members with eligible immigration status. Family members applying for assistance must have their immigration status verified; ineligible family members can choose not to contend eligibility, which allows the family to receive prorated assistance.
On May 10, 2019, HUD released a proposed rule that would have further restricted eligibility for federal housing assistance based on immigration status by prohibiting mixed-status families from living in subsidized units subject to Section 214. The rule would have forced impacted households to choose between separating as a family to keep their subsidy or face eviction and potentially homelessness. According to HUD’s own analysis, the proposed rule would have effectively evicted 25,000 immigrant families from their homes, including 55,000 children eligible for housing assistance. In fact, two-thirds of people in mixed-status families were already U.S. citizens, the majority of them children, at the time HUD released its proposal.
The final rule was never published under the Trump administration. On April 2, 2021, the Biden administration published a notice in the Federal Register announcing its intention to withdraw the Trump administration’s proposed rule.
Department of Agriculture
Rural Housing Service Mixed-Status Families Rule
Housing programs within the U.S. Department of Agriculture’s Rural Housing Service (RHS) do not prorate assistance for mixed-status families. The agency attempted in 2004 to implement Section 214 for all residents of Sections 515 and 514/516 housing, but the proposed regulation failed to properly follow the law. The 2004 rule ignored the full list of eligible immigration statuses listed in Section 214, required all residents of Sections 515 and 514/516 units be citizens or legal permanent residents even if they were not receiving rental assistance, and did not allow for proration. After advocacy organizations threatened the agency with litigation, RHS indefinitely postponed the rule with respect to the Section 515 program but failed to widely publish this change. Given the inconsistent guidance, some owners enforce the requirements of the 2004 rule and others do not.
The Trump administration pursued a similar mixed-status families rule within USDA’s RHS. The proposed rule, “Implementation of the Multi-Family Housing U.S. Citizenship Requirements,” aimed to prohibit mixed-immigration status families from receiving housing assistance from some RHS programs covered by Section 214 of the “Housing and Community Development act of 1980.” This included the Rural Development (RD) voucher program (Section 521) and rental assistance for the Section 515 and Section 514/516 programs. The proposed RHS rule would have led to families splitting up, forgoing assistance, or being evicted from their homes. The rule was never published in the Federal Register under the Trump administration and was withdrawn by the Biden administration.
Department of Homeland Security
Public Charge Rule
On August 14, 2019, the U.S. Department of Homeland Security (DHS) officially published the final version of their “Rule on Inadmissibility on Public Charge Grounds” (Public Charge Rule). This Public Charge Rule makes it easier for DHS to declare certain immigrants to be a "public charge," which can result in someone being denied admission into the country or not receiving a green card. Under the Public Charge Rule, an individual may be deemed a public charge because they use or might use in the future vital health, nutrition, or housing assistance programs. Importantly, the Public Charge Rule makes it easier for certain immigrants to be deemed a public charge – even if they have never received federal benefits – based on factors such as income, age, health, and education level.
If not blocked in court, the Public Charge Rule will drastically change immigration policy by expanding the types of benefits that DHS considers in public charge determinations to include benefits such as Medicaid, SNAP, public housing, and Section 8 housing subsidies.
The publication of a proposed version of the rule last October led many families to drop out of critical food and nutrition programs for their children out of fear of risking future green card status. This chilling effect is poised to impact hundreds of thousands of immigrant households that depend on these programs for survival and economic success in their adopted country.
The Protecting Immigrant Families Campaign of over 1,500 organizations nationwide, including both the National Housing Law Project and the National Low Income Housing Coalition, helped organize opposition to the proposed rule and encouraged people to submit comments during the public comment period, which closed December of 2018. Over 266,000 comments were submitted during the 60-day comment period, with the vast majority opposing the proposed rule.
The Public Charge Rule is set to go into effect on October 15, 2019. Partners from the Protecting Immigrant Families Campaign as well as several State Attorneys General are pursuing litigation to prevent this disastrous Public Charge Rule from going into effect. In support of these litigation efforts, the National Housing Law Project along with the Food Research & Action Center, Center for Law and Social Policy and other groups filed an amicus brief in five cases opposing the Trump Administration’s Public Charge Rule. The National Low Income Housing Coalition was one of the many groups that signed on to the amicus to show their support. The amicus brief argues that the Public Charge Rule will decrease immigrants’ participation in crucial public benefit programs that promote self-sufficiency, which will lead to greater housing instability, homelessness, hunger, and illness. The brief was drafted and filed with the assistance of the law firm of Keker, Van Nest & Peters LLP.
President Joe Biden signed the Executive Order “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” on February 2, 2021 which included directives to relevant agencies to review and take action on the Public Charge Rule.
In the EO regarding public charge, Section 4 (Immediate Review of Agency Actions on Public Charge Inadmissibility) orders the secretary of state, attorney general, secretary of Homeland Secretary, and heads of other relevant agencies to review all agency actions related to the implementation of the Public Charge rule and examine the effects of the previous administration’s harmful changes to the rule. The EO further orders that they consult with the heads of relevant agencies, including the secretary of Agriculture, secretary of Health and Human Services, and secretary of HUD in considering the effects and implications of public charge policies.
The Departments of State, Justice, and Homeland Security are ordered to submit a report to the president within 60 days identifying appropriate agency actions to address concerns about the current public charge policy’s effect on the integrity of the nation’s immigration system and public health, along with recommended steps agencies can take to communicate current public charge policies and proposed changes to reduce fear and confusion among impacted communities.
The U.S. Citizenship and Immigration Services (USCIS), a division of DHS, published the final rule, “Inadmissibility on Public Charge Grounds; Implementation of Vacatur,” to the Federal Register on March 15, 2021, removing regulatory language from the harmful 2019 Public Charge Rule from the previous administration. Along with removing the 2019 Public Charge Rule language, immigrant families applying for admission to the country, Lawful Permanent Resident, or for extension of nonimmigrant stay or change no longer need to provide information or evidence that is solely related to the 2019 Public Charge Rule. This includes information provided on Form I-944 (Declaration of Self-Sufficiency), which has also been discontinued in the final rule. The final rule was the last step in implementing the vacatur made by the Supreme Court and DHS/USCIS stopped applying the 2019 Public Charge Rule on March 9, 2021.
The Biden Administration has recently issued an Advanced Notice of Proposed Rulemaking (ANPRM) on Public Charge rule titled "Public Charge Ground of Inadmissibility". This is the first of three stages in the larger reform process that would ultimately lead us to a final rule. Keep Families Together Campaign and the Protecting Immigrant Families are encouraging advocates to submit a comment letter in response to one or more categories in the Request for Information section of the ANPRM: Purpose and Definition of Public Charge, Prospective Nature of the Public Charge Inadmissibility Determination, Statutory Factors, Affidavit of Support Under Section 213A of the INA, Other Factors to Consider, Public Benefits Considered, Previous Rulemaking Efforts, Bond and Bond Procedures, and Specific Questions for State, Territorial, Local, and Tribal Benefit Granting Agencies and Nonprofit Organizations.
We encourage organizations to sign-on to the Protecting Immigrant Families comment letter. Housing and homelessness advocates are also encourage to use the Keep Families Together's template to encourage DHS to not include housing or homelessness assistance programs in the new public charge rule. Instructions on how to submit your comments and guidance for drafting can be found in the document.
To learn more about the housing impact of the Public Charge Rule, visit NHLP’s Public Charge Resource page. To learn about the rule more generally, please visit the Protecting Immigrant Families: What Advocates Need to Know Now Fact Sheet.
Department of Justice
Public Charge Rule on Deportation
During the Trump administration, the U.S. Department of Justice (DOJ) drafted a proposed rule related to deportation on public charge grounds. This is a distinct rule from the U.S. Department of Homeland Security (DHS) public charge rule on inadmissibility that was finalized on August 14, 2019. Ultimately, the DOJ Public Charge rule was never proposed nor published in the Federal Register.
To learn more about the DOJ’s Public Charge Rule please see this fact sheet from the Protecting Immigrant Families Campaign.