The Trump Administration’s “Public Charge” Attack on Immigrant Families INFORMATION ABOUT AN UPCOMING PROPOSED RULE
(La Isla Magazine, May 2018) ~ HHI, SC. INFORMATION ABOUT AN UPCOMING PROPOSED RULE. By National Immigration Law Center. Since President Trump’s inauguration in January 2017, his administration’s actions with respect to immigration have caused tremendous fear in immigrant communities, undermining trust in government programs and chilling access to health care, food, and other critical benefits and services.
In early January 2018, the U.S. State Department revised its Foreign Affairs Manual (FAM, or “State Department instructions”) on “public charge.” The U.S. Department of Homeland Security has informed the Office of Management and Budget (OMB) that it plans to propose regulations that discard longstanding policy about the meaning and application of the “public charge” provisions of immigration law. These revised State Department instructions underscore the administration’s interest in restricting family immigration and deterring families from securing critical services. The U.S. Citizenship and Immigration Services (USCIS) is also drafting a Notice of Proposed Rulemaking (NPRM), proposing changes to the federal government’s longstanding public charge policy.
How soon could the regulation be issued? The U.S. Department of Homeland Security notice to OMB indicates that the NPRM will be published in July 2018. However, the NPRM could be published in the Federal Register much sooner than the originally planned release date. The draft rule was sent to OMB on March 29, 2018, and is still under review at the time this is being written. We anticipate that the NPRM could be posted in the Federal Register for comment in the very near future.
What would the proposed rule do? Adoption of the draft proposed regulations would mark an unprecedented departure from the current, longstanding interpretation of the public charge rules. If the draft proposal were adopted, immigration officials could consider whether individuals or any of their dependent family members, including U.S. citizen children, had received or simply sought virtually any public service. Benefits that could be considered in a public charge determination would include virtually any public service, such as nonemergency Medicaid, CHIP, SNAP, WIC, Section 8 housing vouchers, the Low-Income Home Energy Assistance Program, the earned income tax credit, and financial assistance provided through the health insurance marketplaces established under the Affordable Care Act. The draft NPRM also lays out negative and positive factors to be “heavily weighted” in a public charge determination. Heavily weighted negative factors include the current receipt of benefits or the use of benefits within the past 36 months before seeking admission, an extension or change in nonimmigrant status, or LPR status. Heavily weighted positive factors include having assets, resources and support of at least 250 percent of the federal poverty line. Certain benefits would be exempt from consideration in the public charge determination, including “earned” benefits connected to work or military service, loans, and emergency and disaster assistance. In addition, the draft specifically excludes in-state tuition, government student loans and certain emergency services — including emergency Medicaid.
The draft NPRM states that noncash benefits previously excluded from the public charge determination will be considered only if those benefits are received 60 days after the final rule is published in the Federal Register. In addition, the draft provides an option for certain individuals to post a bond or cash deposit against being considered a public charge, but this option is not available to anyone receiving a public benefit and it is not clear how it would work in practice.
Immigrant families already worry that using government programs will harm their immigration status or their future opportunities. Any policy forcing millions of families to choose between the denial of status and food or health care would exacerbate serious problems such as hunger, unmet health needs, child poverty, and homelessness, with lasting consequences for families’ wellbeing and long-term success and community prosperity.
What is public charge? Public charge is a ground of inadmissibility (to the U.S.) that has existed for more than 100 years. Under current policy, certain non–U.S. citizens who are seeking to enter the U.S. or to obtain lawful permanent resident (LPR) status must show that, based on all their circumstances, they are not likely in the future to rely on the government for subsistence.
Who would be affected? The public charge policy primarily affects noncitizens who are applying for LPR status through family-based visa petitions. It is important to note that some immigrants are not subject to the public charge rules. Under federal law, which cannot be changed by issuing a regulation or administrative guidance, the following categories of noncitizens are not subject to a public charge test: refugees; asylum seekers; survivors of trafficking, domestic violence, or other serious crimes (T or U visa applicants/holders); VAWA self-petitioners; special immigrant juveniles; certain people paroled into the U.S.; and several other categories of immigrants. And LPRs are not subject to a public charge test when they apply for U.S. citizenship.These exceptions are encoded in law and cannot be changed by executive or administrative action.
Key points to keep in mind
How should we talk about this?
• Immigrants have higher rates of employment than U.S.-born citizens but often work in jobs that pay them less than their U.S.-born counterparts. Billions in taxes paid by immigrant families help support all government programs. For all people working low-wage jobs, health and nutrition assistance helps them and their families stay healthy, thrive, and contribute to society. Already, low-income children with foreign-born parents are less likely to receive SNAP or Medicaid than are children with U.S.-born parents. And one million Latino children, 95 percent of whom are U.S. citizens, are eligible for Medicaid or CHIP but not enrolled.
• Immigrants have higher rates of employment than U.S.-born citizens but often work in jobs that pay them less than their U.S.-born counterparts. Billions in taxes paid by immigrant families help support all government programs. For all people working low-wage jobs, health and nutrition assistance helps them and their families stay healthy, thrive, and contribute to society.
• Policies such as those outlined in the draft proposed rule are intended to discourage hardworking people from immigrating and to deter immigrant families, most of which include U.S. citizen children, from seeking help when they need it. Investing in nutrition, health care, and other essential needs keeps children learning, parents working, and families strong, and allows all of us to contribute fully to our communities.
• Federal and state laws that protect the privacy of people who apply for or receive health coverage, nutrition, economic support, or other public benefits remain in place. In general, Medicaid, health insurance obtained under the Affordable Care Act (ACA, or Obamacare), the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps), and other public programs may collect only the information necessary to determine eligibility for those programs. Applications for public benefits should not request information about the immigration status of non-applicants in the household. And, with limited exceptions, benefit agencies may share information with other government agencies only for purposes of administering their programs.