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New ‘public charge’ rule could affect millions of immigrants

The DHS rule gives officers new authority to deny citizenship, or other status based on past or future use of public benefits

The "public charge" rule was originally issued last August by the U.S. Citizenship and Immigration Services under Ken Cuccinelli, the agency's acting director. (Photo By Bill Clark/CQ Roll Call)
The "public charge" rule was originally issued last August by the U.S. Citizenship and Immigration Services under Ken Cuccinelli, the agency's acting director. (Photo By Bill Clark/CQ Roll Call)

A new Department of Homeland Security rule unveiled Monday seeks to do what pro-immigration advocates have long dreaded by giving U.S. immigration officers broad authority to deny applicants citizenship, green cards, visa extensions and changes in immigration status based on past or potential future use of public benefits.

The change covers people who may have used a wide range of benefits in the past such as food stamps, Medicaid and housing assistance, even if they were eligible for them. Furthermore, the government under the new rule can reject people if immigration officers deem it likely they could become reliant on such public assistance in the future.

[Trump’s new hard-line immigration rule at odds with independent voters’ views]

“Throughout our history, self-sufficiency has been a core tenet of the American dream. Self-reliance, industriousness, and perseverance laid the foundation of our nation and have defined generations of hardworking immigrants seeking opportunity in the United States ever since,” U.S. Citizenship and Immigration Services acting Director Ken Cuccinelli said in a statement announcing the new rule. “Through the enforcement of the public charge inadmissibility law, we will promote these long-standing ideals, and immigrant success.”

The U.S. government has long examined public benefits usage in considering the eligibility of a person for a change in immigration status, but to a limited extent.

Visa and green card applicants already have to demonstrate they will not become public charges, and use of cash assistance is considered during adjudication. But the new rule, set to be published in the Federal Register on Wednesday and due to take effect 60 days later, would significantly expand the types of benefits that could potentially disqualify an applicant to include prior use of Medicaid, Supplemental Nutrition Assistance Program (SNAP) or food stamps, and housing assistance like Section 8 housing vouchers, for example.

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It would ask immigration officers to take into account a broad range of factors, such as poverty, lack of a high school degree, and not being able to speak English to determine whether a person “is more likely than not at any time in the future” to become a “public charge” — or rely on one or more of the listed public benefits. (Research by the Bipartisan Policy Center shows individual immigrants are likely to use public benefits at lower rates than native-born Americans, but that households headed by immigrants but with U.S. children use them at higher rates.)

“This rule prioritizes money over family and tells immigrants that if they want to achieve the American dream, they’d better do it before they get here,” Philip E. Wolgin, managing director of immigration policy at the left-leaning Center for American Progress, said in a statement.

Impact on legal immigration

The new public charge rule would have a sweeping impact on legal immigration, advocates and experts say.

“This is a run around Congress — a way to restrict immigration at the discretion of the administration,” said Randy Capps, director of research for U.S. programs, at the non-partisan Migration Policy Institute. He adds the rule’s impact effectively achieves the administration’s narrow idea of “merit-based immigration” — favoring higher-income, European immigrants to ones from poorer countries.

In November, when MPI researchers in a study applied the then-proposed public charge test to immigrants who had received green cards in the past five years, they found 69 percent had at least one factor that could negatively impact their immigration prospects. The public charge rule, the researchers found, could have a “disproportionate effect on women, children and the elderly” and “shift legal immigration away from Latin America and towards Europe in particular.”

Most noncitizens do not qualify for public benefits. Green card holders and some categories of vulnerable immigrants such as asylum grantees, refugees and victims of crime or trafficking, can qualify for public benefits under certain conditions. And some states have allowed some immigrants to receive state-funded assistance.

Language in the new rule explicitly states it “does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from the public charge ground of inadmissibility.”

And yet, that is exactly what critics fear it will do. Because of misinformation and fear, the rule could cause mass withdrawal from public benefits by immigrants eligible for them, and even by some U.S. citizens — causing widespread hardship among immigrant communities as a whole.

According to MPI, the public charge rule could cause a “chilling effect” in around 47 percent of individuals — citizens and noncitizens — who are members of families where one or more members receive public benefits. The total number of people in immigrant communities — including naturalized citizens — who could be spooked by the rule is around 27 million, MPI estimates.

One study published recently in the Journal of the American Medical Association Pediatrics estimated 8.3 million children who are currently enrolled in Medicaid, Child Health Insurance Program (CHIP), and SNAP are at risk of forgoing benefits. The study said the initial proposed rule would likely cause parents to disenroll between 800,000 and 1.9 million children with specific medical needs from public health and nutrition benefits. The withdrawal from benefits for some children, if left untreated, may contribute to child deaths and future disability, the study said.

Even just the announcement of the proposed rule last year caused immigrant adults to draw back from civic life and from seeking government help they may be eligible for, researchers at the Urban Institute have noted. “Beyond avoiding participation in public programs, many immigrant families may be changing how they go about their daily lives,” they write. “Reports show immigrant families increasingly avoiding routine activities, such as interacting with teachers or school officials, health care providers, and the police, which poses risks for their well-being and the communities in which they live.”

Rule already causing headaches

The National Immigration Law Center, an immigrants’ rights group, is already preparing legal challenges to the rule. “This news is a cruel new step toward weaponizing programs that are intended to help people by making them, instead, a means of separating families and sending immigrants and communities of color one message: you are not welcome here,” Marielena Hincapié, executive director of NILC, said in a statement. “It will have a dire humanitarian impact, forcing some families to forgo critical life-saving health care and nutrition. The damage will be felt for decades to come.”

In the initial proposed rule DHS posted in the Federal Register in October 2018, DHS itself noted that several foreseen negative impacts could result from the implementation of the public charge rule: Worse health outcomes; more communicable diseases; higher emergency room usage; deeper poverty and housing instability; reduced educational attainment. The agency wrote the rule could cause “downstream and upstream impacts on state and local economies, large and small businesses, and individuals.”

The New American Economy, a bipartisan think tank that advocates for comprehensive immigration reform, estimated the public charge rule could cost the U.S. economy around $164.4 billion in lost immigrant workers and decreased incomes.

The new public charge rule is also causing headaches for congressional appropriators. The House, in its fiscal 2020 Homeland Security appropriations bill, which passed the committee, would block the public charge rule from going into effect. But the Congressional Budget Office says that would add $3 billion to the cost of the bill, because the Trump administration expected the rule would reduce federal welfare spending.

The initial proposed rule earned 266,000-plus comments during the rulemaking process. The final rule narrows the application of the “public charge” determination in certain ways — by excluding pregnant women, new mothers and children under 21 who receive Medicaid, for example. On the other hand, it now says that being a primary caregiver may positively impact a person’s application. By and large, the changes in the final version may only modestly change the rule’s scope from the initial proposed version, Capps said.

Advocates and historians of immigration and race have previously pointed to the dark origins of the “public charge” rule in antebellum America. Back then, it was used as a factor when state and local governments considered whether to emancipate enslaved individuals in specific cases, or, to allow poor or infirm immigrants to settle in their jurisdictions. With the release of the new rule Monday, many say that similar prejudices underlie it.

On a press call, Jonathan Jayes-Green, co-founder and national director of the UndocuBlack Network, a group that advocates on behalf of people of color seeking to become citizens, said he and other advocates think the public charge rule was designed to “whiten America.”

“We are clear that this rule is immoral, and it is racist and classist — and we are determined to fight this to the end,” he said.

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