An applicant for U.S. citizenship holds an American flag during a naturalization ceremony at the Evo A. DeConcini U.S. Courthouse in Tucson, Arizona, U.S., on Friday, Sept. 16, 2016. From October 2015 through June 2016, 718,000 legal permanent residents applied for citizenship, up 8 percent compared to the same period leading up to the 2012 presidential election, according to federal data. Photographer: David Paul Morris/Bloomberg An applicant for citizenship waves a flag at a naturalization ceremony in September 2016. (Photo: David Paul Morris/BB)

President Donald Trump’s administration is keeping quiet about how it thinks immigration officials should classify moderate-income legal immigrants who use Affordable Care Act (ACA) premium tax credits to pay for health coverage.

The U.S. Department of Homeland Security has left any discussion of ACA premium tax credit subsidies out of a major new batch of draft regulations that could affect legal visa holders who use government benefits. The department posted the draft “Inadmissibility on Public Charge Grounds” regulations on its website Friday.

Related: How the CMS will save the ACA market

How the department ends up treating ACA premium tax credits could affect agents or brokers who help non-citizen clients get health coverage. If the immigration rules change, and producers give non-citizen clients advice about health coverage without understanding the changes, the clients could make choices that will increase the odds that they will have to leave the United States.

Poorly thought out choices could also keep some legal visa holders from becoming lawful permanent residents, or lead to lawful permanent residents losing their ability to become citizens, through the naturalization process.

What is a ‘public charge’?

People who come to the United States legally, using common types of visas, are supposed to show that they will either support themselves while in the United States, or get help from friends, relatives, nonprofit organizations or other sponsors, not from the government.

Federal immigration laws use the term “public charge” to refer to visitors and immigrants who do end up using government help.

Why is giving a good definition of ‘public charge’ hard?

In the introduction to the new draft regulations, the Homeland Security Department’s U.S. Citizenship and Immigration Services (USCIS) division says the government has been using the term “public charge” without having a clear statutory definition of the term.

In “interim final guidance,” or semiformal advice, issued in 1999, federal immigration officials said “public charge” refers to an individual who depends on long-term cash assistance from the government, or an individual who uses government-provided long-term care services.

Now, the USCIS wants to change the definition to refer to anyone who seems to be depending on, or likely to depend on, cash or non-cash public benefits.

The USCIS also wants to create a decision-making process, based both on an individual’s past behavior and a look at what might happen in the future, that immigration officials can use to decide whether an alien now in the United States legally should be classified as inadmissible, either because the alien is already a public charge or seems to be likely to become a public charge.

The process would affect holders of many types of visas, and, in at least some cases, people who have been lawful permanent residents for five or fewer years.

What the new draft says

The preliminary draft talks that the USCIS could classify use of some types of benefits as “heavily weighted negative factors” for purposes of admissibility decisions.

Benefits on the heavily weighted negative factors list could include ordinary Medicaid benefits and state Children’s Health Insurance Program (CHIP) benefits.

USCIS has proposed exempting some other types of government health benefits from its list of benefits that could cause public charge problems for an immigrant.

The USCIS says, for example, that, for immigration decision purposes, it would exempt medical assistance for emergency medical conditions, short-term disaster relief, and vaccinations against communicable diseases from the “public benefits” definition.

In March, the Washington Post posted what it said was an early draft of the public charge proposal. That version, which is available here, shows that the authors of that draft explicitly included use of ACA premium tax credit subsidies and ACA cost-sharing reduction subsidies. That version also included other types of subsidies not described in the current draft, such as Low Income Home Energy Assistance Program (LIHEAP) subsidies.

In the new draft, USCIS does not list ACA premium tax credit subsidies, ACA cost-sharing reduction subsidies or LIHEAP subsidies as public benefits for public charge determinations.

But USCIS does not discuss its reasons for leaving those types of benefits off the public benefits list for public charges.

The USCIS does not say whether or not it’s planning to address the other forms of benefits in another rulemaking process, or whether it could put those other benefits back into the list of heavily weighted negative factor benefits in the current draft.

Comments

The draft regulations have not yet appeared in the Federal Register.

Comments on the draft will be due 60 days after the official Federal Register publication date.

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