The Trump administration this week finalized a rule that will expand the definition of a person who could become dependent on the government for support, known as a public charge, allowing immigration officials to decide who is admitted into the United States or is allowed to adjust his or her status to that of lawful permanent resident (LPR) based on the likelihood of becoming a public burden.
Using the public charge inadmissibility determination method, officers from the U.S. Citizenship and Immigration Services (USCIS) — an agency of the U.S. Department of Homeland Security (DHS) that administers the country’s naturalization and immigration system — will look at the totality of a person’s circumstances, including age, health, assets, education and financial status.
What is the new policy?
According to government officials, public benefits are defined as federal, state and local, or tribal cash assistance for income maintenance and non-cash benefits.
Under the new rule, the financial security of immigrants who are in the United States legally on temporary visas or who are eligible for adjustment of status, will be examined more closely when they seek LPR status — which allows them to live and work in the U.S. and eventually file for American citizenship. They receive a photo ID known as a “green card.”
A person may be deemed a public charge if he or she has used one or more public benefits for more than 12 months in the aggregate within any 36-month period. For example, the receipt of two benefits in one month counts as two months.
Immigration officials will be given broader discretion to determine whether an immigrant is likely to be a user of public benefits, to deny him or her a green card, or to order that person removed from the country. The latter can eventually lead to deportation but applicants can appeal the decisions.
What is the administration’s reasoning for the change?
Even though officials said the program would not apply to people who already have green cards, to certain members of the military, to refugees and asylum-seekers, or to pregnant women and children, the Trump administration strongly defends the idea the United States should welcome immigrants based only on the “merit” they demonstrate.
Ken Cuccinelli, USCIS acting director, said it would allow the government to insist that immigrants who come to the country were self-sufficient and would not be a drain on society.
At a White House news conference, Cuccinelli said the rule would apply only to applications and petitions received starting on Oct. 15. After that, USCIS career immigration services officers are expected to consider an applicant’s current and past receipt of public benefits as negative factors while in the United States.
“However, receipt of certain non-cash benefits received before Oct. 15 will not be considered as a negative factor,” he said.
Supporters of the new interpretation of the public charge definition proposal have said the rule “ensures that we allow in only those who will be able to pay their own bills.”
Most of the 800 pages in the new public charge rule consist of responses to critics who believe the rule is too strict, based on the idea that people likely to become public charges should be welcomed to America. Congress has explicitly stated otherwise. https://t.co/MBjjJwx5uy
— Mark Krikorian (@MarkSKrikorian) August 14, 2019
According to immigration law, a legal permanent resident qualifies for limited federal benefits. But in most cases, the LPR must wait five years after receiving residence to apply for government assistance.
What are critics and immigration advocates saying about it?
A Migration Policy Institute analysis showed that within the expanded rule there would be “a disproportionate effect on women, children and the elderly. It also could shift legal immigration away from Latin America and towards Europe in particular.”
Immigrant advocates described it as a “cruel” policy, which they said was already leading immigrants to quit housing and medical benefits out of concern that it could impact their immigration status or that of a family member. The National Immigration Law Center filed litigation on Friday to stop the public charge expansion. The organization and co-litigators asked the court to “strike it down,” calling the new interpretation of the rule a “violation of equal protection under the Fifth Amendment of the U.S. Constitution.”
BREAKING: We just filed our lawsuit to stop Trump’s #PublicCharge regulation, which threatens millions of immigrant families. We will not stand for it. We’re fighting back against this racist policy and we’re going to win the fight to protect immigrant families. #ProtectFamiliespic.twitter.com/B7gpX76k9o
— National Immigration Law Center (@NILC) August 16, 2019
“One line of attack is that the agency has gone too far in trying to make these changes by regulation, and that only Congress has authority to make such substantial changes,” Stephen Yale-Loehr, an immigration law professor at Cornell University’s law school, told VOA.
(1/8) Today the final #PublicCharge rule was issued. In the next few tweets, we will explain how it will harm immigrant families’ ability to access nutrition support and health care. https://t.co/zyNJHfkEd0
— Amer Acad Pediatrics (@AmerAcadPeds) August 12, 2019
Kristen Torres, director of child welfare and immigration at First Focus on Children, said the effect was visible in the Supplemental Nutrition Assistance Program (SNAP), commonly known as food stamps. Torres said advocates have seen a 10% decline in participation during the first half of 2018 by eligible families.
“Children are considered negative factors both for themselves and for the consideration of their parents in the totality of circumstances. The rule specifically says it will consider an age of less than 18 as a negative factor, as under 18 they are unable to be meaningfully employed,” Torres added.
Under the administration’s proposed cut, 61% of those who would lose access to SNAP are living with children or are children themselves. Protect children and families today: https://t.co/r5Jh97YTIY#HandsOffSNAPpic.twitter.com/Wo0HzUiF1y
— First Focus on Children (@First_Focus) August 14, 2019
What does the data say?
A 2018 Migration Policy Institute analysis showed that among recent green card holders, more than 69% had at least one negative factor. The five factors used in the study were being neither employed nor enrolled in school, not speaking English well or at all, having an income below 125% of the federal poverty level, not having a high school diploma and being under 18 or over 61.
A heavily positive factor is if a person makes 250% of the federal poverty guideline, about $64K a year, or if a person has “private health insurance” that doesn’t come with an Affordable Care Act subsidy.
The findings showed most green card applicants would fall into a gray area with some positive and some negative factors. Also, with its emphasis on employment, the rule has the potential to make it more difficult to get green cards for women who stay at home rearing children.
Department of Homeland Security officials estimated about 382,000 immigrants seek adjustments to their immigration status annually and would be subject to the public charge review.
An Associated Press analysis of census data showed that low-income immigrants who are not citizens use Medicaid, food aid or any sort of cash assistance at a lower rate than comparable low-income U.S.-born adults. Non-citizen immigrants represent 6.5% of those participating in Medicaid, while more than 87% of participants are native-born; and, 8.8% of those receiving food assistance are non-citizen immigrants while more than 85% of participants are native-born.
Immigration attorneys who spoke with VOA said that although the damage done by the expansion of the public charge rule would take longer to play out, green card denials would spike.
And people who are denied turn to the massive immigration court backlog.