While President Trump’s attention, and the nation’s, has been on the US/Mexico border, his administration has been quietly chugging through the regulatory process with a proposal that would make it extremely difficult for many immigrants to come to the US or receive green cards if they’re deemed likely to use public benefits like food stamps or Medicaid.
But it hasn’t escaped comment — or outrage — at all.
The draft proposal, which was first unveiled by the Department of Homeland Security in late September, would overhaul how the government evaluates whether a would-be immigrant is “not likely to be a public charge” (a requirement of many visa categories and green card applications).
Monday marks the end of the 60-day period for “public comment” on the proposal, which the Department of Homeland Security is required to take into account before revising and publishing the final regulation.
Over 150,000 comments have already been mailed to US Citizenship and Immigration Services or submitted online at Regulations.gov — much more than any regulatory proposal typically gets, much less a 400-plus page regulation that proposes a complicated rubric for immigration officers.
While most of the comments haven’t yet been publicly posted online, it’s fair to say that most of the activity around the proposal has come from outraged immigrant-rights and economic-justice groups — as well as medical associations deeply concerned about the potential for families to forego necessary health services for fear of jeopardizing their immigration status.
The current “public charge” definition is so narrow that the government almost never rejects applications on those grounds. The Trump administration’s proposed new definition, on the other hand, would require a far-ranging inventory of an immigrant’s history and economic prospects. It would give enormous discretion to US Citizenship and Immigration Services (USCIS) officers to reject an immigrant’s application for admission, or for a green card, because the officer feels the immigrant doesn’t make enough money to support a large family or doesn’t have the resources to provide health care for a preexisting condition.
At the heart of the new regulation is a change in how the government looks at public benefits an immigrant has already used or is likely to use. While only cash benefits are considered right now — benefits that only 3 percent of noncitizens use — the new approach would include Medicaid, SNAP (food stamps), Section 8 and other housing benefits, and subsidies for low-income earners in Medicare Part D.
Having used those benefits wouldn’t automatically disqualify an immigrant from being able to get a green card (permanent residency in the United States and the prerequisite to US citizenship). The government says it would not count against an immigrant any benefits used before the rule went into effect — which won’t happen for several more months. And there’s a complicated formula for how much support an immigrant can receive before damaging her chances for a future green card.
The problem is that while the regulation itself is complex — and in some ways more moderate than earlier versions of the proposal leaked to Vox and the Washington Post earlier this year — the message that immigrants are likely to receive is simple: that they shouldn’t use public benefits if they want to stay in the US. Local service providers (from public assistance clinics to pediatricians) are already seeing this “chilling effect” just based on rumors of the rule and the Trump administration’s generally hawkish tone toward immigrants.
So the newly proposed regulation matters in two different arenas.
If the regulation is implemented in its current form — something that most of the people submitting public comments are hoping to prevent, and that (if the administration doesn’t revise the rule before finalizing it) advocates may sue to avoid— it has the potential, depending on how it’s interpreted on the ground, to change the face of legal immigration to America by sharply reducing family-based immigration from lower-income, less educated people in countries like China, Mexico, and Cuba.
But in the meantime — regardless of how the final regulation looks — immigrants currently in the US, many of whom won’t be affected by the proposal, will likely continue to retreat from social services use out of fear that something might happen to them.
One of the oldest reasons for the US to reject a would-be immigrant — right up there with the immigrant being Chinese — was suspicion that the immigrant was “likely to become a public charge.” That language was added to the Immigration Act of 1882 and was interpreted by the Immigration and Naturalization Service as a requirement that immigrants show on arrival that they had $25 in cash.
It was a hard test to pass. As many as 70 percent of all immigrants who got turned back between 1890 and 1920 were barred on public charge grounds. But standards got more lenient over time; public charge accounted for only 4 percent of denials in the 1940s and less than 1 percent after 1950.
Eventually, a policy emerged that “public charge” shouldn’t be a binary test, but rather a judgment based on the “totality of the circumstances.” The 1996 immigration law IIRIRA codified what circumstances should be considered: age, health, family status, financial status, and education/skills.
When some immigration officers started denying applications from any immigrant who had taken any public benefits, the Clinton administration sought to clarify the rule. In 1999, it issued “field guidance” that only cash-based income assistance — Temporary Assistance for Needy Families (TANF) and SSI — would be considered, and those benefits would have to account for over 50 percent of an immigrant’s income for her to count as dependent on public benefits.
Since very few noncitizens even qualified for those benefits to begin with, that wasn’t a terribly difficult standard. And even if someone was initially refused because of likelihood of being a public charge, they could submit more evidence — or at least get a relative to sign an affidavit to support them financially — and ultimately get approved. Furthermore, not all immigrants have to pass a “public charge” test — refugees and asylees, for example, don’t have to pass it either to get admitted to the US to begin with or to get a green card.
The Clinton “field guidance” is still in place, but it’s never been formalized as a regulation. In fact, “public charge” has never been defined in a regulatory sense at all. The Trump administration is proposing to fix that — and lay out in regulation exactly who counts as a public charge, and how those decisions are made.
After the public comment period ends Monday, the Department of Homeland Security is obligated to go through all comments and to consider revisions based on particularly good points. (The government doesn’t actually have to make any changes, and it certainly doesn’t need to moderate a rule just because more comments oppose it than support it. But not making any changes in the face of well-argued comments might open the government up to a lawsuit for violating the intent of the Administrative Procedures Act by sabotaging the comment period.)
The final rule will probably come out in a matter of months, and will go into effect 60 days after it is published — unless put on hold by the courts first.
The Department of Homeland Security proposes to define a “public charge” as someone who “receives one or more public benefits” to cover basic needs such as health, nutrition, or housing.
But the government isn’t proposing that any use of public benefits makes someone a “public charge” — and therefore ineligible for a green card or visa. It’s set up a complicated rubric for what, exactly, counts as reliance on public benefits that would make someone a likely public charge.
For one thing, no immigrant currently using benefits would be penalized for that in the future (except for TANF and SSI, which under the Clinton field guidance are currently used to assess “public charge” anyway). The administration will only judge immigrants for use of public benefits after the regulation has been finalized, which won’t happen for months.
For another — in a change from previous leaked drafts of the regulation — the government will only look at benefits an immigrant is getting for herself, not at all benefits being received by members of her household. An immigrant who is getting food stamps for her US citizen children but not for herself, for example, isn’t officially using public benefits by the proposed new definition — and therefore isn’t an inadmissible “public charge.”
The proposal breaks down benefits into two different categories: benefits that “can be monetized” (i.e., that have a dollar value attached to them), and those that can’t.
- Benefits that “can be monetized”: TANF/SSI (status quo), SNAP, Section 8 housing benefits
- Benefits that “cannot be monetized”: Medicaid, low-income Medicare Part D assistance, other subsidized housing
There are three tests, based on these categories, to reach the threshold for reliance on public benefits in a way that could all but disqualify an immigrant from a visa or green card:
- Individual use of “monetized” benefits over 12 consecutive months that total more than 15 percent of federal poverty guidelines for a single-person household ($1,821 in 2016), or
- Individual use of “non-monetized” benefits for more than 12 months in any previous 36-month period, or
- Any individual use of “monetized” benefits plus individual use of “non-monetized” benefits for more than nine months in any previous 36-month period
Flunking one of these tests is a “strongly weighted negative factor” that will generally lead to someone getting labeled a “public charge” and denied. (And an immigrant could help her case by showing she won’t use these benefits in future — for example, by including a letter showing she un-enrolled from them before applying for a green card.) But it’s only part of the “totality of the circumstances,” which include a range of other factors and tests — some of which the administration is also seeking to make more restrictive.
Having a large family, for example, will be a “negative factor”; having a health condition and not having private health insurance would be another “negative factor,” as is being under 18 or over 65.
On the flip side, having a household income between 125 and 250 percent of the Federal Poverty Guidelines ($31.375 to $62,750 for a family of four as of 2016) would be a positive factor, and an income over 250 percent would be a “strongly weighted positive factor.”
In some cases, the government will allow someone to come to the US (or get a green card) even if it deems them a likely “public charge.” But the immigrant or a sponsor would have to put up a bond of $10,000 or more — which would be forfeited if the immigrant ended up using social services.
The irony is that most of the immigrants who are eligible for federal public benefits aren’t affected by the proposal. Most immigrants aren’t eligible for public benefits until they’ve had green cards for five years — and while there are exceptions, such as refugees and asylees, those groups are also exempt from having to pass a public charge test to get green cards.
That means it’s unlikely that a lot of immigrants will end up getting visas or green cards denied because of benefits use itself. It’s more likely they’ll be barred because of other factors like income or education.
In the proposal, DHS estimates that 382,600 green card applications a year would be subject to the new public charge test (and an additional 517,500 applications for other types of visas could be subjected to a version of the test at the discretion of USCIS officials). But it doesn’t hazard a guess as to how many of them would pass. That’s because the proposal is essentially a rubric for USCIS officers to follow and apply at their discretion, which is difficult to forecast.
Immigration and social services advocates are particularly concerned about the proposal’s treatment of household income — labeling it a “wealth test” that could exclude anyone making less than $62,750 a year (the threshold for a “strongly positive” finding). If that happens, it would totally change the face of legal immigration to the US. A Migration Policy Institute analysis this summer found that 56 percent of recently arrived noncitizens had incomes below that threshold.
But the way the regulation is laid out, as long as an immigrant not reliant on social services, not making enough money doesn’t in itself count against an immigrant — she just doesn’t get points in her favor. Until the rule is actually in effect, we won’t know whether immigrants who fail to meet the 125 percent “positive” threshold, much less the 250 percent “strongly positive” one, will generally end up getting denied or approved.
In general, advocates assume that the biggest effect won’t be on immigrants who are already here. It will be on immigrants seeking to get green cards so they can immigrate to be with their families — a group that accounted for more than 40 percent of all green cards (for new immigrants and immigrants already in the US) in 2016. These immigrants are more likely than employment-based immigrants to be low-income, less educated, older, and other things that might make them potential “public charges.”
Some family-based immigrants are more at risk than others — less than a quarter of recent Indian immigrants had incomes below the 250 percent threshold, while nearly two-thirds of recent Chinese immigrants and more than two-thirds of recent Mexican immigrants did. So the composition of legal immigration to the US could be in the balance.
The most certain effect of the proposal — whether or not the regulation is finalized — is one that isn’t in theory a purpose of the regulation itself. The proposal will almost certainly lead thousands of immigrants who aren’t covered by the rule to forgo public benefits that they and their families, including US citizen children, are eligible for.
The overwhelming majority of immigrants in the US — or even social workers, immigration lawyers, or other professionals who could offer guidance — won’t understand the details of this complicated administration proposal.
Instead, what they will take away from the announcement and news coverage of it is the message that immigrants can be punished for using public benefits — and so they should play it safe and un-enroll, or not enroll at all.
DHS, in the proposal, estimates that the newly included benefits will lose about 2.5 percent of their enrollees — or about a third of the noncitizens who are currently enrolled in them. That estimate is almost certainly conservative.
The last time immigrants’ access to public benefits was broadly restricted, in the 1996 welfare reform law, the chilling effect was enormous. Food stamp use by noncitizen families dropped by 43 percent between 1994 and 1998, and TANF use fell 44 percent over that same time period. And those drops were even steeper among refugees — even though refugees were still eligible for benefits under the new law. Refugee use of food stamps fell 60 percent by 1998; use of Medicaid dropped 39 percent; use of TANF dropped 78 percent.
The chilling effect hit US citizen children, too. Even though US citizen kids were still eligible for SNAP benefits, use of SNAP by citizen kids in families with at least one noncitizen parent fell by 53 percent between 1994 and 1998. In other words, more than half of all kids with at least one noncitizen parent fell off the SNAP rolls after a law that was supposed to allow them to stay on.
The existence of the Trump administration is itself a chilling effect for immigrant families. And service providers have already seen immigrants asking to get taken off the benefit rolls based on rumors of the forthcoming regulation. One New York provider found unusual spikes in WIC (food support for women, infants, and children) un-enrollment tied to rumors about the plan. On a press call Sunday, Colleen Kraft of the American Association of Pediatricians relayed reports from members about expectant mothers forgoing prenatal care because they were worried about losing their immigration status and being separated from their children.
It’s extremely hard to design a policy that protects the well-being of US citizen children while tightening the screws on their parents. Chilling effects, by definition, end up hurting people whom the laws aren’t designed to hurt. But the Trump administration has decided that it’s important to encourage immigrants to be wholly “self-sufficient” — to refrain from using any public benefits on a regular basis — and it’s willing to accept the costs.
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