The Proposed “Public Charge” Rule Changes

In continuation of its unrelenting assault on migration of “different” immigrants into the United States, President Trump’s Department of Homeland Security (DHS), on September 22, 2018, announced proposed rule that would make significant changes to “public charge” policies. The rule, set to be officially published on October 10, 2018, will broaden the interpretation of that term as found in Immigration and Nationality Act, 212(a)(4) which provides that:

an alien is inadmissible if, at the time of an application for a visa, admission, or adjustment of status, he or she is likely at any time to become a public charge”

Simply, the federal government is proposing to have more latitude to deny individuals entry into the U.S. or adjustment to legal permanent resident (LPR) status (i.e., a green card) if he or she is determined likely to become a public charge. Never mind that on balance, immigrants contribute more than they take.

DHS states that the proposed rule seeks to provide clarification and guidance on defining the term “public charge”. This includes identifying the types, amount, and duration of receipt of public benefits that would be considered in public charge inadmissibility determinations. Public charge inadmissibility determination (PCID) will be used to evaluate whether an alien is likely to become inadmissible, under the new rule change. The factors to consider are: Age; Health; Family status; Assets; Resources; Financial status; Education and Skills of the intending immigrant.

DHS proposes to consider the alien’s household size as part of the family status factor, as well as the assets, resources, and financial status factor. They argue that the number of people in the alien’s household has an effect on the alien’s assets and resources, and in many cases may influence the likelihood that an alien will become a public charge.

Along with the PCID factors, DHS also provides a list of “Heavily Weighed Negative Factors” , that they note as, “particularly indicative of a likelihood that the alien would become a public charge” . The factors include: lack of employability, current receipt of one or more public benefits, receipt of public benefits within 36 months of filing application, financial means to pay for medical costs, and alien previously found inadmissible or deportable based on public charge.

Despite the above, DHS writes that, : the fact that an alien has been on welfare does not, by itself, establish that he or she is likely to become a public charge; but rather a totality of circumstances approach will be used.

DHS’s stated purpose of these changes is to ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations. In accordance with showing self-sufficiency, DHS also provides a list of “Heavily Weighed Positive Factors”. These factors include: significant income, assets, and resources, and work authorization and currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

Additionally, other key changes in the proposed rule include:

The proposed rule would broaden the programs that the federal government would consider in public charge determinations to include previously excluded health, nutrition, and housing programs.
The proposed rule would establish thresholds for use of public benefits to determine an individual to be a public charge.
The federal government would consider current or recent receipt of public benefits as a heavily weighted negative factor in an individual’s public charge determination.
Revised regulations governing the Secretary’s discretion to accept a public charge bond or similar undertaking

These changes, if enacted into law, would not affect all immigrant groups equally. For example, refugees, asylees, survivors of domestic violence, and other protected groups—are not subject to “public charge” determinations. The changes, however, would affect populations seeking any adjustment of status that do not fall into the aforementioned groups. Because of the definitions of household used to support DHS’s definition of public charge inadmissibility, immigrants who have large families or have family members on public assistance will be particularly affected.

An analysis by the Migration Policy Institute found that these proposals would have “chilling effects” on migration and immigrants. Specifically, it found that:

Based on the experience of the 1990s immigration and welfare reforms, it is reasonable to expect that the rule will discourage millions of immigrants from accessing health, nutrition, and social services.
These “chilling effects” are likely to stretch beyond immigrants themselves to affect U.S.-citizen children whose parents may disenroll them from services for fear of immigration consequences.
These impacts are likely to weigh most heavily on states with large immigrant populations and those with inclusive public-benefit policies, such as California and New York.
The draft proposed rule also could significantly reshape future legal immigration flows by giving the administration broad discretion to deny a much larger share of applications from prospective immigrants as well as those already present who are seeking a green card.

The public has 60 days-until December 10, 2018 to comment on the proposed rules before it goes into effect. The Federal Register has instructions on how to submit comment during this period. In the meantime, immigrants and their families should follow this guide to determine if and when they are eligible for any benefits.