Proposed Rule Changes Redefine "Public Charge"

Late last month, the Trump Administration announced proposed changes to what is known as “the Public Charge rule,” changes that “are unnecessarily strict and hard-hearted rules aimed at solving a problem that social scientists say doesn’t exist,” according to a Los Angeles Times editorial. 

The government has tried for decades to ensure that immigrants are not likely to become “a public charge”—people largely reliant on the government for subsistence. The question has historically been how to decide who is a public charge. In 1999, immigration officers took into account whether green card or visa applicants had used such forms as government assistance as welfare, Supplementary Security Income, or assistance paying for such facilities as nursing homes or mental health institution. Those measures were not particularly onerous or disqualifying because Congress had already barred non-citizens from using welfare or SSI and non-emergency Medicaid. Also, most green card applicants are already required to have financial sponsors for exactly this reason, and the sponsor needs to earn more than 125 percent of the federal poverty guidelines. 

The proposed change is an effort to make a major change through rules rather than legislation, and it would affect immigrants who simply use but don’t rely on forms of assistance that are legally available to them. Under the proposal, the Department of Homeland Security could consider a number of factors to decide on whether or not someone applying for a visa or green card might become a “public charge.” Applicants who made use of Medicaid, the Medicare Part D Low-Income Subsidy Program, the Supplemental Nutrition Assistance Program (SNAP) and a number of housing programs might be denied, even if the use was brief and driven by an emergency. “Now … the administration wants to consider a legal immigrant a ‘public charge’ if he or she receives government benefits exceeding $1,821 (15 percent of the federal poverty guidelines) over 12 months,” The Los Angeles Times wrote.

Other factors that could weigh against candidates include
Prior or current use of certain public benefits.
Being older than 61.
Being younger than 18.
Having any medical condition that could interfere with school or work.
Not having sufficient resources to cover such a medical condition.
Not having private health insurance.
Having several children or other dependents.
Having financial liabilities.
Having “bad credit” or a low credit score.
Having no employment history.
Not having a high school diploma or higher education.
Not having “adequate education and skills” to hold a job.
Not speaking English.
Receiving an application fee waiver from DHS.
Having a sworn financial sponsor whom DHS feels is “unlikely” to follow through. 

Some of these factors are already considered by DHS agents when evaluating visa applications, but the new assistance-related considerations redefine “public charge” in a non-intuitive way. The phrase “public charge” sounds like someone who relies on the government for basic subsistence—something that many Americans would understand. The proposed rules would mark many immigrants as public charges even when they are largely self-supporting. 

Many concerns arise from this proposed change. Working class immigrants with jobs may forego needed health care or financial assistance in the case of emergencies for fear of jeopardizing their applications. Legal immigrants would also remain subject to deportation not because they committed unlawful acts but because they faced temporary need. The change would in effect criminalize financial emergencies. 

Doug Rand served as assistant director for entrepreneurship at the White House Office of Science and Technology Policy from 2010 to 2017, and he sees this change as one that adversely affect American employers as well. “A US employer is going to find it more difficult and much less predictable to extend the status of a highly skilled worker on an H-1B visa or to help switch a key recruit from a student visa to an H-1B,” he said. “Unless the employer is paying the worker more than that newly made-up threshold–250 percent of the poverty line–they might not be able to renew their work visa and stay in the United States.” 

The proposal marks an important and disturbing change as it turns the Trump Administration’s target from undocumented immigrants to ones who entered the country legally including on tourist visas. It has to go through a six-month review period before going into effect, and at that point, a court challenge is probable. Because of that, the new rules are not likely to be immediate concerns, but with the current make-up of the Supreme Court and the addition of Brett Kavanaugh, it’s hard to imagine that the final arbiters of the rule—once implemented—would strike it down.

In the meantime though, immigrants and visa applicants who face circumstances that may require governmental assistance should consult with an experienced immigration attorney to see how choices might affect their status. 

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