Legal Updates


January 15, 2019

Over the past several years, students and parents of non-citizen families have turned to schools and school officials for assistance with understanding the often confusing federal immigration system.  The reasons for this are varied, but suffice it to say school personnel are often asked to serve as an advisor to students and/or parents regarding federal immigration laws.  Concern about one’s family and legal status can detract from a student’s academic performance, and therefore, school personnel frequently endeavor to assist those families, both as genuine humanitarians and as a means of helping affected students achieve their full academic potential.

While not the primary focus of this article, it is worth noting that school officials should avoid providing advice on federal immigration laws or policies, and should instead develop relationships with community-based organizations that can assist those individuals.

It is important to avoid providing advice for several reasons, not the least of which is that providing incorrect information could have devastating and permanent impacts on an individual and/or family.  That said, schools are being placed directly in the mix with respect to certain initiatives of the current federal immigration bureaucracy.  Knowledge of the initiatives affecting schools is important.  One such example of this phenomenon relates to a recent Notice of Proposed Rulemaking (NPRM) issued in October 2018 by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS).

NPRM Seeks to Broaden Public Charge Requirements

Federal law has long included express barriers to the acquisition of permanent residence status in the United States for those who may otherwise be eligible.  These grounds, often referred to as grounds of inadmissibility, include certain criminal history, including illegal drug and weapons convictions, the presence of communicable diseases, evidence of ties to terrorist or subversive groups, and numerous other grounds.  One such ground of inadmissibility relates to whether an individual is likely to become a public charge once admitted into the United States.  Any person deemed likely to become a public charge may not be eligible for or able to obtain permanent residence in the U.S.

Applicants, historically, overcame this ground by illustrating employment history, assets, and the availability of other financial resources.  In 1997, it became mandatory that all applicants for permanent residence based on family relationships (i.e., certain spouses, parents, children, and siblings of U.S. Citizens and permanent residents) have a sponsor, or in some case multiple sponsors, who submitted an affidavit pledging to provide financial support to the immigrant and the resources to provide such support.  For the most part, submitting an affidavit of support that met the requirements was sufficient to overcome this ground of inadmissibility.

The NPRM seeks to change the analysis significantly.  Rather than reliance on the affidavit of support, the NPRM proposes a more holistic approach to determining whether one has overcome the public charge ground of inadmissibility.  The NPRM identifies specific programs the receipt of which disqualify a person from eligibility (SSI Benefits, TANF, SNAP, certain Medicaid programs, etc.), and it also states that the analysis is based on whether the “totality of the circumstances” makes it likely that an individual will become a public charge at some point in the future.  The NPRM identifies a host of factors that will be considered, including employment history, age, medical condition/disability, use of public benefits in the past or receipt of specific programs after the rule takes effect, property, education level, etc.  USCIS officials have stated that the intent of these changes is to assure that the immigration system’s expectation of immigrant self-reliance is adequately evaluated to prevent immigration to the U.S. from being a means to obtain public benefits available in the U.S.

Why this Matters to School Districts?

The federal government and state government provide funding resources for a number of programs that are allocated (at least in part) based on the financial circumstances of the recipient students’ family.  As a result, concern exists as to whether access to these programs will be used against an individual in a future immigration process, or whether fear of this will cause otherwise eligible students to go without services.  The school-based services addressed are of two varieties.

The first group includes certain school-based services provided for under the IDEA, which may be billed to Medicaid for eligible students.  These programs and receipt of the value of the benefits are exempted from the type of benefits that can produce a negative public charge finding, even though receipt of Medicaid otherwise would constitute grounds for an exclusion from eligibility.  The NPRM expressly provides that receipt of these programs will not receive adverse consideration if received by children under the maximum age for public secondary education attendance as determined by state law.

The second group are discussed in the preamble to the proposed regulatory provisions, as well as on the federal immigration services website, but not expressly in the rules.  These programs involve a child’s receipt of free or reduced lunch benefits under the National School Lunch Program and/or attendance at Head Start programs.  Both the preamble and the USCIS website describing the NPRM state that these programs will not adversely affect the public charge analysis.  These programs are not expressly addressed in the body of the proposed regulatory provisions, but the public representation has been thus far that these programs will not be considered when evaluating this issue.

The expanded analysis of the public charge ground of inadmissibility has created a significant amount of concern within certain immigrant populations.  For the time being, it is important for school officials to be aware of this issue as it may cause parents to avoid accessing benefits their children should receive.  Also, it is important to be aware that none of these changes are yet in place and that even if the regulations are adopted in current form, they are set to phase in over a 60 day period.  Finally, it is important to know that the NPRM expressly excludes certain school-based programs funded in part through Medicaid reimbursements and the agency has taken the position that the public charge analysis excludes consideration of other critical school-based programs, including the school lunch program and head start programs.

For questions regarding this article, please contact the author, Attorney Geoffrey A. Lacy (email:; telephone: 844.833.0824 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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