Author: Hasna Chowdhury

Lawful permanent residents (LPRs) must wait 5 years before they can enroll in federally funded programs such as the Children’s Health Insurance Program (CHIP), Medicaid, Medicare, Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI). The five-year waiting period begins when individuals receive their qualifying immigration status and not when they first enter the US. This five-year waiting period, also known as the Five Year Bar, was part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Qualified immigrants arriving in the US on or after enactment of PRWORA on August 22, 1996 may be ineligible for federal means-tested benefits for five years. Federal agencies clarified that the “federal means-tested public benefits” are Medicaid (except for emergency services), CHIP, TANF, SNAP, and SSI. 

Who is Impacted by the Five Year Bar?

PRWORA was created to limit welfare dependency by encouraging work and the maintenance of two-parent families. In 2019, 23 out of every 100 families with children living in poverty receive cash assistance through TANF. The law placed limitations on federal funding for benefits such as health coverage of immigrant families by creating 2 categories of immigrants that entered the US on or after August 22, 1996 called “Qualified Immigrants” and “Not Qualified Immigrants.” “Qualified Immigrants” can access federally funded programs if they meet the eligibility requirements but only after the five-year bar. Qualified Immigrants are ineligible for SNAP and SSI until they become a US citizen, which requires five years of residency. States have the control to determine their eligibility for TANF, Social Services Block Grant (SSBG), and Medicaid. Qualified Immigrants include:

• Lawful permanent residents, or LPRs (people with green cards)
• Refugees or people granted asylum 
• People granted parole by the U.S. Department of Homeland Security (DHS) for a period of at least one year
• Cuban and Haitian entrants
• Certain abused immigrants, including children and parents
• Certain survivors of trafficking 
• Certain individuals residing in the U.S. pursuant to a Compact of Free Association (COFA) (for Medicaid purposes only)

“Not Qualified Immigrants”—including undocumented immigrants and other noncitizens—are unable to access most federally funded programs regardless of their time of residency. Below are the individuals who are exempt from the Five Year Bar:

• Refugees and asylees
• Veterans including their spouses and unmarried dependent children
• LPRs who have worked at least 40 qualifying quarters according to the Social Security Administration (SSA)

Brief Background on Medicaid and CHIP

Medicaid is a federal and state funded insurance program that is offered to low-income individuals. Undocumented immigrants are not eligible to enroll in Medicaid or CHIP however PRWORA allows undocumented immigrants to receive emergency Medicaid. Medicaid also establishes minimum requirements for eligibility and benefits. However, states are allowed to extend coverage beyond minimum levels so Medicaid coverage varies from state to state.

 The Children’s Health Insurance Program (CHIP) was established in 1997 and offers low-cost health coverage for children in families whose household income is higher than the standard to qualify for Medicaid. CHIP covers children under the age of 19 and a very limited number of parents above the Medicaid eligibility requirements. The 2009 Children’s Health Insurance Program Reauthorization ACT (CHIPRA) was signed by President Obama which had a provision called the Immigrant Children’s Health Improvement Act (ICHIA). This provision gives states the option to provide Medicaid and CHIP to LPR children and pregnant women without a five-year waiting period. 18 states have eliminated the Five Year Bar for LPR pregnant women and children since January 2022. Access to coverage and health care services among immigrant children has improved substantially in states that have taken the CHIPRA option, and it was not associated with reductions in private coverage. At the end of 2012, 62% of immigrant children had health coverage through Medicaid or CHIP in states that took CHIPRA, compared to 21% of immigrant children covered in states that did not take up the option. 

Justifications for the Five Year Bar

Congress emphasized the principle of self-sufficiency as a basic principle of US immigration law and policy when creating PRWORA. The law was described as a “reassertion of America’s work ethic” by the U.S. Chamber of Commerce. The policy emphasized that immigrants who are entering the US should only rely on their own capabilities and the resources of their families, sponsors, and private organizations. The policy also encouraged immigrants living in the U.S. to “not depend on public resources to meet their needs” and that the “availability of public benefits [does] not constitute an incentive for immigration to the United States.” PRWORA restrictions on immigrant access to public benefits originated from concerns that welfare programs were enticing American citizens to move to states with more generous welfare benefits. Proponents supporting PRWORA believe that welfare programs offered by the US have become a “magnet” for immigrants. Changes in the accessibility of means-tested programs post-PRWORA affected low-skilled unmarried immigrant women the most, who were more likely to settle in states that restored benefits and had the highest probability of welfare use. PRWORA laid the foundation for further exclusions as several public benefit programs and systems were created since 1996 including CHIP by imposing the Five Year Bar and the Affordable Care Act (ACA) which excludes healthcare coverage towards undocumented immigrants. 

Arguments Against the Five Year Bar

Many argue that the Five Year Bar is a barrier to immigrant healthcare access. For example, the Five Year Bar impacts older immigrants who do not have access to health insurance through employment and may not be able to qualify for specific benefits such as SSI and Medicare. PRWORA, which expired in 2002, has caused a “chilling effect” in immigrant communities due to its eligibility restrictions. Many qualified immigrants, who are eligible to access public benefits since they do not have to wait 5 years, do not access the healthcare they need. For example, foreign born immigrants who are 65 and older reported more chronic diseases, reduced Activities of Daily Living, and poor mental health compared to US born older adults. Some states are eliminating the Five Year Bar. For example, Illinois is using state funds to cover Medicaid for low-income undocumented seniors. In addition, some states are considering lifting the Five Year Bar in hopes of better health outcomes, especially among pregnant women and children who are LPRs. Advocates of lifting the Five Year Bar in Georgia believe that doing so would provide health insurance to more children and increase access to prenatal care. 

Immigrants subject to the Five Year Bar have few options for health insurance. In 2020, among the nonelderly population ages 0-64, 26% of LPRs and 42% undocumented immigrants were uninsured compared to fewer than 1 in 10 citizens. Immigrant women in the US also continue to face challenges when obtaining affordable health coverage and care including sexual and reproductive health services. Immigrant women are likely to obtain limited available services such as from publicly funded family planning centers where 7 of 10 immigrant women reported a safety-net site as their usual source of medical care. 41% of immigrant women who obtained contraceptive care in the years 2006-2010 did so at safety-net family planning centers, compared to 25% of their U.S.-born counterparts. 

Another argument against the Five Year Bar is that it makes it difficult for immigrants to access healthcare due to the varying state-by-state policies. Differing state policies may result in varying population growth among states due to differences in health insurance coverage. States that offer more generous health insurance coverage may have an influx of immigrants they were not prepared for leading to a lack of resources. Many believe there should be national legislation on immigrant access to care rather than leaving the decision to states.

Should there be Reforms?

There are currently two proposed acts to address the Five Year Bar.

1. The Health Equity and Access under the Law for Immigrant Families Act of 2021 (HEAL Act) allows immigrants to participate in health care programs. The Bill would remove the Five Year Bar and ensure all individuals, including LPRs and the Deferred Action for Childhood Arrival (DACA) recipients, are eligible for federally funded healthcare programs. The legislation also mandates that DACA recipients are able to obtain premium-tax and cost sharing reductions in order to purchase care through the ACA.
2. The Lifting Immigrant Families Through Benefits Access Restoration Act of 2021 (LIFT the BAR Act), introduced by Representative Pramila Jayapal and Tony Cardenas, would restore access to public benefits such as SSI, TANF, SNAP, and Medicaid for LPRs, DACA recipients, individuals granted Special Immigrant Juvenile Status (SIJS), and other federally authorized non-citizens residing in the US. The Bill would also remove the Five Year Bar. Lastly, the Bill would consider all LPRs “qualified” immigrants for the purpose of federally funded benefit program eligibility.

“Public Charge” is defined as a ground of inadmissibility, or a reason why an individual may be denied a green card, visa, or entry to the US. A public charge is someone who lacks the resources or ability to take care of themselves. An individual who is likely to become a public charge is ineligible to become a legal permanent resident (LPR) which is also known as a green card holder. The rule only applies to individuals who are seeking to become an LPR. LPRs may be targeted to take a Public Charge test if they leave the country for more than 180 consecutive days. In rare cases, an immigrant, even if they are an LPR, may be subject to deportation if they become a public charge within 5 years after entering the US. The Public Charge Rule does not apply to every immigrant and has  the following exceptions: refugees, asylees, certain T and U nonimmigrant visa applicants including human trafficking, self-petitioners under the Violence Against Women Act

The Public Charge Rule was designed to identify individuals who cannot support themselves and depend on benefits that provide cash such as Supplemental Security Income (SSI), Temporary Assistance for Needy People (TANF), state or local general relief, and long term care at a nursing home paid by the government. The Public Charge Rule does not prevent immigrants from applying for assistance as the use of benefits will not automatically make an individual a public charge. Programs not included in the public charge test include:

• Medicaid programs 
• COVID-19 testing, treatment, vaccinations
• Nutrition programs such as SNAP and WIC
• Public housing and other housing assistance

Origins

The Public Charge Rule finds its roots in poor laws which established governmental authority to provide aid to the poor. The laws became prominent during the 19th century where the US experienced an influx of immigrants from southern and eastern Europe. The poor laws established the number of years individuals must have resided in a town before they became eligible for public aid, and required local governments to provide the basic needs of residents who were unable to provide for themselves. Government officials prohibited dependent individuals, or those who were likely to become dependent, from residing in the jurisdiction they had not already established residency at the time they were impoverished. These poor laws later transformed into state immigration laws governing the admission and removal of non-citizens. Supporters were concerned with individuals who would become a burden to the community by depending on public relief so states sought to protect themselves. For example, anti-Irish sentiment led to an 1837 law in Massachusetts which authorized the exclusion of immigrants who had been, “impoverished in any other country, or who suffered from health conditions that would prevent them from supporting themselves.” 

The Immigration Act of 1882, the first act to regulate immigration at the federal level, allowed the government to prevent any individual “unable to take care of himself or herself without becoming a public charge” from entering the country. The act later legalized the deportation of any individual who was likely to become a public charge within a year. However, it did not define how a public charge should be identified, which allowed immigrant officials to determine who could enter the US and exclude those who were likely considered to become a public charge.

In 1999, the Department of Justice passed the Field Guidance on Deportability and Inadmissibility on Public Charge Grounds which clarified the definition of the public charge rule. Under this Guidance, a public charge is a person who will become dependent on the federal government for cash, income maintenance, or institutionalization for long-term care at the government expense. The guidance emphasized that immigrant officers should not place any weight on the receipt of non-cash public benefits, besides institutionalization, when determining noncitizens who want to enter the US or their LPR status.

The Trump Administration redefined the Public Charge Rule, which went into effect on February 24th, 2020, as a non-citizen who receives one or more public benefits for more than 1 year within any 3 year period. The Administration expanded the types of government benefits that could disqualify immigrants from obtaining green cards to include non-cash benefits such as Medicaid, public housing assistance, and SNAP. In addition, the Trump Administration relied on the “totality of circumstances” test to predict whether a person will become a public charge in the future based on their age, health, family status, income and resources, skills, and education. The rule also explains how the Department of Homeland Security (DHS) will interpret the minimum statutory factors for determining whether an individual is likely to become a public charge by considering a list of negative and positive factors. It directs the DHS and immigration officers to consider these factors in the totality of the individual’s circumstances. For example, a characteristic that is considered a negative factor that increases the likelihood of someone becoming a public charge is having income below 125% of the federal poverty level which is $28,787 for a family of 3 as of 2022. The DHS acknowledges that one likely outcome of this change is that some individuals who may have been eligible to immigrate under the 1999 Interim Field Guidance will now be deemed inadmissible. The 1999 Interim Field Guidance did not clarify how to evaluate statutory factors, like age and health. The totality of circumstances test provides the legal standards and factors which individuals must meet to demonstrate they are not likely in the future to become a public charge. 

The Biden Administration withdrew the 2019 Public Charge Rule in March 2021, causing the US Citizenship and Immigration and Citizenship Services (USCIS) to stop applying the rule to all pending applications and petitions. However, the Biden Administration proposed a new public charge rule which would largely codify the 1999 field guidance. The proposed rule would drop the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program (CHIP), and pandemic assistance from those programs that would affect a public charge determination. 

Support for the Public Charge Rule

Advocates for the Public Charge Rule tend to embrace two core beliefs: self-reliance is a fundamental American value, and immigration should benefit American citizens.

• Self-reliance: many believe that hard work and self-reliance lay at the core of the American ethos. A common narrative in the US discusses immigrants entering the country with limited means and working their way towards financial stability. For this reason, many people (including both those who want to severely restrict immigration and those who want to increase it) support the idea that immigrants should not immediately rely on government services. Forced migrants (refugees, asylum seekers, etc.) are not included under this policy, so the impacted populations are generally those applying to enter the country to work or join family members.
• Benefitting Americans: a core dispute in immigration policy is how to balance benefits to American citizens and to immigrants. For example, the process to receive a work visa can be onerous and challenging, because there are concerns that immigrants could displace US workers and drive down wages. Some believe that immigration policies should prioritize adding value for current citizens, by supplying a specific, needed skill set or by investing in US firms. Those who want to prioritize benefits to US citizens tend to support the Public Charge Rule, and believe that potential immigrants should receive social services in their home countries, rather than use resources funded by US taxpayers.

Critiques of the Public Charge Rule

One argument in opposition to the Public Charge Rule is its “chilling effects” in reducing immigrants’ use of safety programs and public benefits especially during the Trump administration in 2019. Though the rule did not go into effect until February 2020, many immigrant families avoided programs specified in the rule as well as other public programs before the rule was implemented. For example in 2019, 1 in 4 low-income immigrant adults in California  reported that they avoided public programs like Medicaid or nutrition assistance programs due to the belief that participating in such programs would harm their immigration status or that of a family member. The researchers also found that 37% of the immigrants who reported avoiding public programs in the past year were uninsured, and 54% of those who avoided public programs in the past year were food insecure. 

Reduced participation in nutrition programs such as SNAP could lead to worse health outcomes if families experiencing food insecurity do not use food assistance. According to the 2019 California Health Interview Survey (CHIS), the percentage of immigrants who reported delays in medical care, delays in getting prescription medication, and not receiving needed mental health treatment was twice as high among those who had avoided public programs in the past year as among those who had not. The Public Charge Rule has the potential to influence the health of millions of immigrants and their dependents by decreasing the use of health services and worsening health disparities. Lower rates of insurance coverage would reduce the use of prenatal and postnatal care and cause higher rates of low birth weight, infant mortality, and maternal morbidity. The effect of losses in insurance coverage on morbidity and mortality among both children and adults would also increase the poverty rate among households headed by noncitizen immigrants due to reductions in the use of tax credits and housing energy assistance.  

Many immigrant families, who are not subject to the rule, also avoided medical care for fear of being deemed a public charge despite formal clarification by the United States Citizenship and Immigration Services announcing that COVID-19 testing and treatment are not applicable to the rule. For instance, immigrant-serving organizations reported that 37% of families avoided public programs like the Pandemic EBT, a COVID-19 relief program designed to feed children who were receiving free or reduced priced meals at school. The Public Charge Rule has been critiqued to create misinformation and confusion:

•  23% of adults in immigrant families know that the rule does not apply to citizenship applications.
• 19% of adults knew children’s enrollment in Medicaid will not be considered in their parents’ public charge determinations.

Immigrants are afraid to access COVID-19 treatment even if they fall ill due to public charge concerns. Among undocumented individuals in Massachusetts households, 18% of survey respondents reported fear of being labeled a public charge, and 13% fear that their information would be shared with immigration agents. Thus, many argue that there should be more resources and outreach programs to address the misinformation that the rule has created among immigrant communities.

Moving Forward

Multiple states have started to implement education and outreach programs to clarify any misinformation of the Public Charge Rule. Colorado, Kentucky, and Washington have information available on their website about changes to the Public Charge Rule to reassure individuals that public benefits are safe. Oregon and DC have included public charge FAQs in multiple languages on their websites. Having clear information on the Public Charge Rule available and accessible on states’ websites could ensure that eligible immigrants are receiving necessary public benefits.

As of June 2022, the Supreme Court dismissed Arizona and other states case claiming states have the right to defend the Trump-era public charge rule after the Biden Administration refused to revive the policy. The states argued that the federal government violated the Administrative Procedure Act by dropping the rule without consenting to public hearings. Supporters of the Trump-era public charge rule, such as Arizona Attorney General Mark Brnovich, have vowed to continue to push against the Biden Administration’s decisions regarding the Public Charge Rule. However, the Supreme Court dismissed the case which left the states no legal ability to defend the Trump-era public charge rule.