Re-Definition of ‘Public Charge’ Could Drastically Slash Family Immigration

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The Trump administration is quietly attempting to revamp the U.S. immigration system by circumventing Congress and changing the nation’s immigration policies through new federal regulations. The administration has always favored a significant reduction in legal immigration and has pursued that goal through multiple avenues: admitting fewer refugees, cutting Temporary Protected Status for several countries, and asking Congress to reduce the number of available family visas. In August 2017, the administration supported the RAISE Act—which sought, among other goals, to drastically cut family immigration and eliminate the Diversity Visa.

Now, the administration could significantly restrict family-based admissions by adding to the circumstances under which a non-U.S. citizen is deemed a “public charge”—meaning someone who depends on government means-tested benefits or is likely to depend upon these benefits in the future. Being a public charge is grounds for inadmissibility into the country, and—depending on how far the administration wants to take this—might even become grounds for deportation as well.

The true reach of this new policy remains uncertain. The details that have been gleaned so far come from a leaked draft executive order from January 2017 and two sets of leaked draft rules from January and March 2018. These documents outline an enormous expansion in who qualifies as a public charge:

  • An immigrant would be considered a public charge if any of his or her dependents—regardless of whether the dependents are U.S. citizens—are utilizing or might utilize benefit programs.
  • Being a public charge would no longer be defined only by utilization or possible utilization of cash benefits like Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and General Assistance (GA). If the policy is implemented, an immigrant would also be considered a public charge if he or she utilized (or might have to utilize) non-cash benefits such as Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Children’s Health Insurance Program (CHIP).
  • An immigrant would be labeled a public charge if he or she had received any benefits in the past 36 months—not just currently or possibly in the future.
  • An immigrant would be a public charge for receiving benefits in any amount; not just being primarily dependent on those benefits, which is the case now.

If these measures are translated into federal regulations, the share of immigrants who would qualify as a public charge would skyrocket.

According to the Migration Policy Institute (MPI), 1.1 million immigrants would have been unable to become Lawful Permanent Residents (LPRs) in Fiscal Year (FY) 2017 under this proposed expansion. Just over half of these consisted of new arrivals to the country, while the rest were adjustments of status by immigrants who were already in the United States under a different status.

Although these new rules would apply to immigrants coming to the United States through both family- and employment-based channels, family-based immigrants would be the hardest hit in terms of public charge determinations resulting in inadmissibility into the country.

While employment-based immigrants tend to have job offers and relatively high incomes, family-based immigrants are initially far more variable in their socioeconomic standing and educational attainment—even though they are likely to experience a high rate of earnings growth over time. MPI estimates that over 80 percent of newly arrived immigrants in FY 2017 came for the purpose of reuniting with family. Among those seeking adjustment of status, almost half (48.8 percent) were family-based. An expansive new definition of “public charge” would exclude (and perhaps even result in the expulsion of) many family-based immigrants.

Changing the standards by which an immigrant is defined as a public charge would severely—and needlessly—cripple the family immigration system. And it would constitute a back-door means of significantly restructuring the U.S. immigration admissions system rather than engaging in the legislative debate such an important topic deserves.

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