Trump Administration rule punishes immigrants who use public benefits

The Trump administration has issued a new 837 page rule that will severely reduce the number of legal immigrants. The rule changes how officials determine if an immigrant is likely to depend on public benefits in the future.

Under the new regulation, poor immigrants, those with limited education and those who have received public benefits can be denied admission and legal permanent residency, or even deported. Federal affordable housing programs are among the public benefits that can count against an immigration application.

The new rule was originally proposed by the Department of Homeland Security (DHS) in August, 2018, and covered by Affordable Housing Online. More than 260,000 comments were received, which is three times more than a typical rule-making proposal.

The Federal Register notice for the final rule observed that the vast majority of commenters were opposed to changes in the public charge rule and other immigrant admissions standards. It applies to those seeking admission to the U.S. or seeking legal permanent resident status (commonly referred to as a green card). The rule will take effect 60 days from its publication on August 14, 2019.

Currently, immigrants applying for admission or permanent legal status are considered likely to be a public charge if more than half their income comes from public cash assistance. This generally means Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI).

The new rule defines a public charge as “an alien who has received or been approved to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period (such that, for instance, receipt of two public benefits in one month coutns as two months).” Under this standard, someone with a short-term emergency who receives housing assistance and Food Stamps for seven months could be ruled a public charge.

The regulation lists the public benefits that count as negative factors when legal immigrants apply to adjust their status. These include:

• Any federal, state, local or tribal cash assistance for income maintenance (other than tax credits). This includes SSI, TANF, and federal, state or local cash benefit programs (often called General Assistance in the state context).
• Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps).
• Medicaid, with some exceptions for emergency care, school-based services, under 21, and pregnant women.
• Section 8 Housing Choice Vouchers.
• Section 8 Project-Based Rental Assistance.
• HUD Public Housing.

Immigration officials will look at the use of public benefits for the 36 months prior to the application. If an immigrant received cash assistance before the new rule is in effect, that will still be considered but not weighted as heavily. All other public benefits received before the rule begins will not be considered a negative factor. Only public benefits used after the rule takes effect are supposed to be weighed.

The new public charge rule also has other requirements that make it harder for poor immigrants with limited education. It requires that applicants for admission or legal permanent residency have a minimum income of 250% of the poverty guideline, about $64,000 annually. It also includes a credit score threshold. In addition, applicants need to have private health insurance and speak English well.

Under the earlier proposal, immigrants would have been penalized for receiving the Earned Income Tax Credit (EITC) or purchasing health insurance with tax credits under the Affordable Care Act (ACA, commonly referred to as Obamacare). In the final rule, tax refunds from the EITC are not counted as a public benefit. The ACA tax credits also do not count as a public benefit. However, an immigrant using ACA tax credits to purchase health insurance cannot count that coverage toward the private health insurance requirement.

In the Federal Register notice, the Trump administration justifies the rule change by saying it is needed to make sure that new immigrants will not be a drain on public resources. Acting Director of U.S. Citizenship and Immigration Services Ken Cucinelli said that the changes are needed to select better candidates for citizenship.

Cuccinelli said the administration wants people, “who can stand on their own two feet, who will not be reliant on the welfare system — especially in the era of the modern welfare state, which is so expansive and expensive, frankly.” But this does not reflect the true situation. Very few immigrants currently use public benefits. Only 6.5% of Medicaid recipients are immigrants, and only 8.8% of those using Food Stamps are immigrants.

Immigration supporters fear the rule will have a chilling effect. The Federal Register notice points out that an average of 382,000 immigrants request an adjustment of their status each year. It estimates that about 324,000 would drop out of public benefit programs or not enroll at all for fear of endangering their immigration status. However, advocacy organizations point out that this estimate is likely very low. Many more of the 26 million legal immigrants in the country may avoid needed services even though they are entitled to them under law.

Lawsuits to block the regulation are being prepared. The City of San Francisco and the County of Santa Clara, California, have already filed suit against the new rule. The suit alleges that as legal immigrants avoid federal benefit programs they will turn to local and county resources to deal with emergencies. New York State’s Attorney General, Letitia James, also announced that the state would sue to block the regulation, saying that, “children will go hungry; families will go without medical care” under the rule. Many more states and cities will likely bring their own lawsuits in the coming weeks.