In a Win for NAHB, Public Charge Rule is Officially Rescinded

The Biden Administration has withdrawn a problematic immigration rule that hindered lawful immigration and complicated matters for affordable housing providers.

Following invalidation in the courts, the Department of Homeland Security published notice in the Federal Register on March 15 that officially rescinded the “Inadmissibility on Public Charge Grounds” regulation, known as the “Public Charge Rule,” and restored the previous regulatory definition of “public charge” first set in 1999.

Finalized in 2019, the rule expanded the definition of who is considered a “public charge” to include immigrants receiving government assistance through a variety of programs, including housing assistance and food stamps. The rule’s provisions applied to foreign nationals seeking permanent residence in the U.S. and to nonimmigrant workers seeking to extend their stay or to change their visa status.

NAHB filed comments when the rule was proposed on the grounds that limiting legal immigration would adversely impact the home building industry’s workforce. NAHB also expressed concern that the proposed public charge rule implicated Section 8 housing programs and the NAHB members who work within these programs, by including housing assistance as a factor in determining public charge status.

Soon after the Public Charge Rule was enacted, a number of entities filed suit challenging its legality. In November 2020, the U.S. District Court for the Northern District of Illinois held that the Public Charge Rule violated the Administrative Procedure Act. The court’s ruling echoed comments NAHB filed on the rule when it was first proposed in 2018. Under the restored definition, the number of government assistance programs is reduced, and housing assistance is no longer a factor in the determination.

The rescission of the Public Charge Rule removes significant paperwork burdens from employers and lifts uncertainty surrounding the use of housing assistance benefits by otherwise eligible permanent residents and their families. Because the Public Charge Rule was held unlawful, DHS’ reversion back to the prior definition does not require notice and comment rulemaking.