Senate passes resolution disapproving of Biden admin’s public charge rule on immigrants, welfare

The Senate on Wednesday passed a resolution, with bipartisan support, disapproving of the Biden administration’s “public charge” rule on which forms of welfare legal immigrants can receive without being ineligible for a green card, despite a White House threat to veto.

Sen. Roger Marshall, R-Kansas, forced a vote on a resolution of disapproval under the Congressional Review Act — which allows lawmakers to object to rules being put forward by the administration.

The resolution passed the chamber 50-47, picking up the support of not only Republicans, but also two Democrats: Sens. Jon Tester, D-Mont., and Joe Manchin, D-W.Va. Three senators did not vote.

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“The Senate just passed my Resolution to overturn the Biden Admin’s Public Charge Rule,” Marshall tweeted. “We must ensure our immigration system promotes self-sufficiency and protects American taxpayers.”

The resolution would nullify the Department of Homeland Security’s rule, introduced last year, that codifies guidance put in place during the Clinton administration and that departs from a now-reversed Trump-era rule issued in 2019 that expanded the forms of welfare that would consider an immigrant as a “public charge.” There is a separate effort in the House to nullify the rule led by Rep. Troy Nehls, R-Texas.

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The “public charge” designation is a long-standing concept in immigration law and refers to someone deemed likely to rely on government assistance — and can be used to deny someone permanent residence.

The Biden rule would mean that green card applicants would only be considered a public charge “if they are likely at any time to become primarily dependent on the government” for help. Officials would still consider reliance on Supplemental Security Income (SSI), cash assistance under Temporary Assistance for Needy Families (TANF) and state, tribal and local cash assistance for income maintenance.

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The 2019 Trump-era rule had attempted to also make officials consider benefits including food stamps, housing vouchers and Medicaid benefits. That rule considered anyone a public charge if they received one or more designated benefits for more than 12 months within a 36-month period.

Neither rule would affect illegal immigrants, and applies primarily to immigrants who have arrived in the U.S. legally and are on some form of temporary visa and are applying for permanent residency in the U.S. Public charge assessments are not made of asylum seekers, refugees and Temporary Protected Status (TPS) recipients.

The administration has said the rule ensures fair and humane treatment of legal immigrants and their families.

“Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them,” DHS Secretary Alejandro Mayorkas said last year.

The White House has said that President Biden would veto the resolution if it makes it to his desk. 

“[The rule] is an important step towards undoing the damage that resulted from the chilling effect of the 2019 public charge rule and provides a clear, comprehensive, and fair standard for assessing whether a noncitizen is likely to become a public charge,” the White House said in a statement ahead of the Senate vote. “If Congress were to pass this joint resolution, the President would veto it.”