The Trump Administration is drafting a proposed rule that will penalize legal immigrants for using housing assistance and other safety net programs. The proposal would expand the list of supportive programs that can be considered when determining if an immigrant is a “public charge,” meaning that they are dependent on the government to meet their basic needs. Millions of immigrants seeking entry to the U.S. or lawful permanent resident status could have their applications rejected, or in rare cases, be deported.
The draft Department of Homeland Security proposal was first obtained by The Washington Post, and can be read here. The Department of Homeland Security (DHS) did not respond to Affordable Housing Online’s request for comment.
Immigration officials currently use a number of factors when deciding whether an applicant is a public charge or likely to become one. They look at age, health, family status, assets, resources, financial status, education, skills and sponsorship. Generally, only immigrants who receive more than 50% of their income from public cash assistance (TANF), or are institutionalized for long-term care at government expense are currently classified as public charges.
The Trump Administration believes that immigrants can be public charges if they receive any kind of government assistance, even if that assistance is less than 50% of their income.
Under the proposed rule, the definition of public charge would be changed to, “a person who uses or receives one or more public benefits as defined in this rule.” It then defines a public benefit as, “any government assistance in the form of cash, checks or other forms of money transfers, or instruments and non-cash government assistance in the form of aid, services or other relief, that is means-tested or intended to help the individual meet basic living requirements such as housing, food, utilities or medical care.”
Receiving public benefits will be a “heavily weighted” negative factor when making a public charge determination. Benefits that would give applicants a negative score include, but are not limited to:
- Supplemental Security Income (SSI)
- Temporary Assistance to Needy Families (TANF)
- State or local cash benefits for income maintenance
- Any other Federal public benefits for maintaining the applicant’s income
- Non-emergency benefits under Medicaid
- Government-subsidized health insurance
- Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps)
- Special Supplemental Nutrition Program for Women, Infants and Children (WIC)
- State Children’s Health Insurance Program (CHIP)
- Housing Assistance under the McKinney-Vento Homeless Assistance Act, Housing Choice Voucher Program (Section 8) and Family Self-Sufficiency Program (FSS)
- Means-tested energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP)
- Institutionalization for both long-term and short-term care at government expense
- Refundable income tax credits such as the Earned Income Tax Credit when the credit exceeds the tax liability.
Benefits that would not be considered include:
- Federal old-age, survivors and disability insurance benefits
- Veterans benefits
- Government pension benefits
- Government employee health insurance
- Government employee transportation benefits
- Unemployment benefits
- Worker’s compensation
- Medicare benefits, unless the premiums are paid in part or in full by a government agency
- State disability insurance
- Public education (Pre-K through grade 12), including Head Start
- Disaster and public health benefits such as emergency medical care, immunization and treatment for infectious disease.
Receiving cash benefits from TANF and Medicaid long-term care will continue to be considered when determining if an applicant is considered a public charge, but only if they are used within 36 months prior to the date the final rule is adopted. Receiving cash benefits from programs that were previously not considered for public charge will be considered only if they are received after the final rule is adopted. Non-cash benefits will only be considered if they are sought 60 days after publication of the final rule.
You can find out what affordable rental programs are currently available to immigrants by reading Affordable Housing Online’s Housing Resources for Immigrants Guide.
It is not clear what other affordable housing programs would be affected by the proposed rule. Some programs provide subsidies that reduce tenant contributions to rent. Public Housing, Section 8 Project-Based Rental Assistance and USDA’s Section 521 Rural Rental Assistance provide the kinds of subsidies that may determine that the immigrant is a public charge. Others, like the Low Income Housing Tax Credit (LIHTC) program, do not provide subsidies directly to the renters. Instead, the tax credits go to developers who agree to offer affordable rents. If the units do not have other subsidies attached to them, they may still be available for immigrant renters with no public charge penalty.
What happens if an immigrant is designated a public charge under the new rules? They can be denied admission to the U.S. or Lawful Permanent Resident status; and in rare cases, they can be deported. The proposed rule states that similar criteria will also be applied to those people trying to extend or change their temporary non-immigrant status.
Immigrants who are not subject to the new public charge rule include asylees, refugees and women representing themselves under the Violence Against Women Act (VAWA). However, the Trump Administration has taken actions to reduce the number of refugees allowed into the country and made it more difficult to make asylum claims based on gang violence or fear of rape.
President Trump has made headlines trying to block the entry of unauthorized immigrants and those seeking asylum. Now the Administration is also trying to limit legal immigration through rule changes rather than immigration reform legislation. Trump advisor Stephen Miller has pushed for the changes to the public charge rule as part of the Administration’s overall efforts to restrict immigration. Miller was also behind the Muslim travel bans and zero-tolerance policies on the Mexico border that separated thousands of children from their parents.
This proposal is not likely to take effect any time soon. It is currently being reviewed by the Office of Management and Budget (OMB), and has not yet been published in the Federal Register. Once it is published in the Federal Register, there will be a public comment period for 60 days. People can voice their concerns directly to the Department of Homeland Security through the comment process. The public comment period is also a good time to call members of Congress with concerns about the rule. Lawsuits to block the rule can only be filed after the Trump Administration implements it.
Even though the proposal has not yet been published, it has many immigrants concerned. They worry that if they used any benefits in the past they could lose their bid for citizenship. Affordable Housing Online heard from an immigrant reader in the Boston area. He requested we not use his real name, so we’ll call him Arjun. Having come to work in the U.S. from India as a skilled worker more than 10 years ago, Arjun is now a lawful permanent resident. Even thougweather.coormh he makes a good living and has never used public benefits, he has had a hard time finding an affordable home in the high-priced Boston area. He says that while some foreign tech workers receive subsidized housing from the firms and research institutes that sponsor their visas, most have trouble finding housing they can afford. He worries that many of these workers will be penalized because they used affordable housing in these high-priced cities.
Arjun believes that if the rule is implemented, it should very clearly spell out what affordable housing programs will count towards a public charge determination. He also feels there should be a grace period and local housing agencies should be given clear guidance so that prospective immigrant tenants know their options.
As was the case with the travel bans and family separations at the Mexico border, there are many organizations that will likely file lawsuits to keep it from being implemented. The American Civil Liberties Union (ACLU) and National Immigration Law Center (NILC) are two organizations that have taken the lead on similar issues. You can see NILC’s position on the rule here. Some state governments will also challenge it, with the Governor of New York promising to sue if the rule is enacted.
Even though the proposed rule has not been published yet, people can still share their opinions about it with their members of Congress. When Senators and Representatives hear concerns from constituents, they can put pressure on the Administration to delay, revise or drop a proposed rule. If you feel strongly about the Administration’s efforts to restrict benefits to legal immigrants, you can take a minute to contact your members of Congress through our easy to use form here.
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