“A billionaire, an immigrant, and a worker are sitting at a table with 1000 cookies. The billionaire takes 999 cookies, and tells the worker, ‘Watch out, the immigrant is going to take your cookie.”
This well-worn meme circulated again coincidentally (or not) right after the Department of Homeland Security published its proposed revisions to the “public charge” regulations on Saturday (September 22). It’s yet another example of the current Administration’s bias against immigrants that has consequences the government itself admits will be harmful. Again and again, it has been demonstrated that immigrants have a net positive effect on their communities, both on a local and national level. Undocumented immigrants pay billions in taxes. Undocumented immigrants keep Social Security viable. Lower crime rates are associated with immigrants than with the native born population.
The data do not back up the premise of this proposal, namely that immigrants are a drain on the country. In fact, there’s scant empirical basis for the anti-immigrant bias of our immigration laws – even as these laws existed prior to the current Administration. This Administration, however, is ratcheting up that bias and the harm it causes. The LA Times’ headline that “Trump’s anti-immigration ‘public charge’ proposal solves a problem that doesn’t exist” is too generous an assessment. The proposal “solves” nothing. It will harm communities and will almost certainly have fatal consequences.
In a nutshell, the proposal would punish immigrants for accessing public benefits that they’re entitled to by making them ineligible for permanent resident status (i.e., a “green card”) – and may even put them at risk of losing that status.
Important initial observations
There are some important items to note before going further:
1) These are a proposed changes to existing regulations. We don’t know what the final version of the regulations will be yet. So there’s time to push back.
2) Since these are proposed regulations, there has been no change in the law at this point.
3) The text of the proposed regulations states that the new penalties for using non-cash public benefits will not apply retroactively to individuals who used the non-cash benefits prior to the effective date of the regulations. AGAIN, FOR THE TIME BEING, NOTHING HAS CHANGED. And we won’t know precisely what the changes will look like once they happen.
For the time being, all individuals who are eligible for public benefits should seek them out in order to give themselves the best shot at moving forward.
What is “public charge”?
The Immigration and Nationality Act (INA) makes “inadmissible” anyone who is deemed likely to be dependent on government benefits to survive (i.e., who is a “public charge”). This “inadmissibility” means that such individuals will not be eligible for lawful permanent resident status, which is ordinarily the last step on the road to citizenship. Certain classes of immigrants who are not subject to the “public charge” inadmissibility ground when applying for permanent resident status. These include asylees, refugees, special immigrant juveniles, and U and T status holders (to name a few).
The public charge ground of inadmissibility is applicable to individuals seeking permanent resident status through family. And that appears to be the point. The current Administration has sought to reduce family migration, and this is a way to do so.
What would this proposed regulation do?
The proposal is large, weighing in at 447 pages. The following are some highlights.
As proposed, this rule would fundamentally alter the adjudication of many immigration applications by dramatically expanding the classes of people who would be considered “public charges”.
Under current policy, an individual is deemed a public charge if that person relies on government “cash assistance” for more than half their income. The programs that can currently result in public charge findings are limited to federal, state, local, or tribal cash assistance for income maintenance; Temporary Assistance for Needy Families (TANF); and Supplemental Security Income (SSI). A sufficient “affidavit of support” will overcome the public charge inadmissibility ground. The affidavit of support is a pretty routine part of the immigration process, and thus far it has not been an insurmountable barrier for any of the cases our attorneys have handled.
The newly proposed regulation would expand applicability of the public charge basis of inadmissibility to those who have received Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing.
Also, a sufficient affidavit of support would no longer be adequate to overcome a “public charge” finding. Rather, individuals applying for permanent residency would be subject to a “totality of the circumstances” test which would make use of a single government benefit a “significant negative factor”.
Officials would also have to consider certain medical conditions such as mental illness, cancer and heart disease as deciding factors because, according to the new rule, “an alien is at high risk of becoming a public charge if he or she has a medical condition and is unable to show evidence of unsubsidized health insurance.”
Under the proposed rule, applicants who don’t qualify for green cards on account of a public charge finding could be asked to pay cash bonds of at least $10,000 to avoid being rejected.
It’s clearly a system that is biased in favor of wealthy immigrants and hurts the working class, who play such an important role in the US economy as a whole – and without whom the Gulf Coast would not have been built.
Why this matters
Nearly 20 million children in immigrant families could be affected by the new rule, most of them U.S. citizens, according to a report by the Kaiser Family Foundation on an earlier draft of the rule. These changes would likely lead to decreased participation in Medicaid, CHIP, Marketplace coverage, and other programs among legal immigrants and their citizen children, even though they would remain eligible. The consequences will in many instances be fatal.
In 2016, there were 10.4 million citizen children with at least one noncitizen parent. Nearly nine in ten of these children live in a family with a full-time worker, but these workers often are in low-wage jobs, leading to lower family incomes and more limited access to health coverage. As such, over half (56%), or 5.8 million, citizen children with a noncitizen parent had Medicaid or CHIP coverage in 2016. Even today, immigrants express concern about whether their use of food stamps or CHIP will affect their eligibility for status, and we have seen immigrants refuse to apply for benefits they are entitled to, that will not hurt their immigration status, but that will help their families, because they already fear the public charge finding. There are already reports that immigrants are withdrawing applications for life-saving programs in response to the proposed rule.
If this proposal moves forward, families will be further deterred from receiving vital medical assistance. There will be worse health for pregnant women, more child malnutrition, heightened poverty, housing instability, and declines productivity. These will all, paradoxically, actually result in increased costs to communities by creating crises that could have been averted had these life-saving benefits not been targeted.
What you can do
We cannot over-emphasize that this is currently a proposal. Even as written, the punishments would not apply to benefits collected prior to the implementation of the rule.
1) First, if you’re an immigrant eligible for government benefits, you should collect them now, while monitoring the situation for changes. As currently proposed, you would not be penalized for your current use of public benefits. These are important benefits that can make you and your family healthier, stronger, and more secure. You will have time to act before the rule goes into effect.
2) Remember that immigrants will not be penalized for government benefits used by their U.S. citizen children.
3) If you are an immigrant who is eligible for or receiving government benefits, keep track of developments. If you have the means to a pro bono or low cost public benefits lawyer and immigration lawyer, consult with them and ask them to help you understand developments. If lawyers are out of reach, follow authoritative news outlets, but do so carefully because even they can be imprecise.
4) Fight back! Nationally, experts on immigration, public health, economic equality, and social justice will be lifting up the harmful effects of these policies in the comment period after publication of the proposed rule. If you are impacted, national agencies may be interested in helping you lift up your story. These include the American Immigration Council (AIC), National Immigration Law Center (NILC), Catholic Legal Immigration Network (CLINIC), and the Immigrant Legal Resource Center (ILRC). You can reach out to them by going to their respective websites.