Any day now the Trump administration is expected to issue draft regulations that would further its attacks on immigrant families and people living in poverty. These regulations would jeopardize the status of millions of immigrants who use—or whose children use—health, housing, nutrition, and other key services and supports. It would do this by radically altering the way in which federal officials evaluate whether certain immigrants are—or are likely to become—a “public charge.” The mere threat of these rules, which have been leaked to several national news publications, has already contributed to the climate of fear and stress faced by immigrant communities today.1 Adoption of the rules by the Trump administration could make this anxiety much worse.
Advocates throughout the country have joined together to create the Protecting Immigrant Families, Advancing Our Future Campaign to fight these impending draft rules. The campaign is co-led by the National Immigration Law Center and the Center for Law and Social Policy (CLASP). The Sargent Shriver National Center on Poverty Law is an active member.
The Protecting Immigrant Families Campaign is working to oppose enactment of these rules through coordinated action on several fronts. To be successful, we need all hands on deck, and meaningful opportunities to contribute are available even for those with limited bandwidth. Here we describe public-charge provisions in current immigration law and the proposed changes, the impact they could have, and the opportunities for the advocacy community to advance this important fight.
Xenophobic Attacks and Harm to Immigrant Communities and Children
The public-charge proposal is yet one more action in a persistent attack on immigrant families. On the campaign trail and in the White House, Pres. Donald Trump has routinely expressed racist, xenophobic, and classist vitriol.2 He and his administration have backed up this rhetoric with repeated efforts to harm immigrant communities and people living in poverty. In the 15 months since he took office, President Trump has tried to ban immigrants from Muslim countries and terminate the Deferred Action for Childhood Arrivals program.3 He has ended Temporary Protected Status for hundreds of thousands of immigrants and issued an executive order to expand immigration enforcement activities throughout the United States.4 Some in Congress have joined in with other anti-immigrant efforts such as the RAISE Act, which would cut the number of green cards issued annually by 50 percent and cap the number of refugees for whom the United States offers safety from persecution.5
The cumulative effect of this rhetoric, along with these threats and actions, has created a chilling effect in immigrant communities. Families have withdrawn from their communities and avoid leaving home because of increased immigration enforcement and the fear of being taken away from their families.6 They are choosing not to enroll themselves or their U.S.-citizen children in critical programs such as Medicaid or Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) despite being eligible because they are afraid that enrollment will undermine their ability to remain in the United States.7 Immigrant parents have likewise been removing their children from child care and early education programs.8 And families who choose to remain in early childhood programs are increasingly reluctant to accept referrals to other important services such as health and developmental screenings, vision screenings, and immunization services.9
The public-charge proposal is yet one more action in a persistent attack on immigrant families.
Immigrant attacks are affecting the well-being of children in immigrant families.10 Through interviews and focus groups with more than 150 early-childhood educators and parents in six states throughout the United States, CLASP found that children as young as 3 years were worried that their parents would be taken away.11 It also found negative behavioral effects on young children manifesting in increased aggression, separation anxiety, and withdrawal.12 One preschool director described a 5-year-old child with such severe anxiety that he was biting his fingertips until they bled.13 Providers also reported increased instability in the children’s lives as parents changed jobs and housing at increasing rates.14 Immigrant families, including those with lawful status, are experiencing high levels of fear and uncertainty, and racism and discrimination, including bullying of children, have significantly increased since the 2016 election, the Kaiser Family Foundation found.15 Parents reported children having problems sleeping and eating and mental health problems such as depression and anxiety that negatively affected their performance in school and will have lifelong consequences.16
These trends will cause significant and permanent harm to children, families, and communities. Ample research establishes that family instability, stress, and anxiety have negative long-term consequences for children.17 These consequences are exacerbated by parents’ increasing reluctance to avail themselves and their children of important services that could mitigate some of these harms. The scale of this problem is vast—more than one-in-four children in the United States live in a family with at least one foreign-born member (94 percent of these children are U.S. citizens).18 Children in immigrant families do not live in isolation. They live and grow up in communities where their individual success is critical to the strength of the country’s future workforce and collective economic security. The ripple effects of our current anti-immigrant rhetoric and policies will be felt broadly and long-term.
Public Charge Under Current Law
The concept of “public charge” first appeared in U.S. immigration law in the Immigration Act of 1882, which prohibited any immigrant “unable to take care of himself or herself without becoming a public charge” from being admitted to the United States.19 Since 1903, the Immigration and Nationality Act has included public-charge considerations in two contexts: (1) whether immigrants seeking entry to the United States or seeking legal permanent residency are at risk of becoming a public charge and thus deemed inadmissible and (2) whether immigrants who have been admitted to the United States have become a public charge within five years of entry. The Act does not define “public charge,” but in each context a public-charge analysis has developed through case law and agency guidance.
Note that a number of immigrants are not subject to any public-charge analysis. This includes humanitarian immigrants such as refugees; asylees; survivors of domestic violence, trafficking, and certain other categories of crimes; certain individuals paroled into the United States; and certain other categories of noncitizens. Neither are permanent residents (i.e., green card holders) subject to a public-charge determination when they apply for citizenship.20
Current Public-Charge Grounds for Inadmissibility
Section 212 of the Immigration and Nationality Act states that “[a]ny alien who … is likely at any time to become a public charge is inadmissible.”21 This provision applies to intended immigrants seeking visas at consulates and ports of entry and to immigrants within the United States seeking to become legal permanent residents. When evaluating whether an individual is likely to become a public charge, immigration officials must consider certain factors: age; health; family status; assets, resources, and financial status; and education and skills.22 Immigration officials are authorized to consider an affidavit of support submitted on behalf of an intended immigrant, and such an affidavit is required for family-based visas and certain employment-based visas.
The U.S. Immigration and Naturalization Service proposed regulations in 1999 that would guide immigration officials considering public-charge questions.23 Although these regulations were never adopted, field guidance was issued at the same time, and that guidance continues to be used by officials today. Under this guidance, an immigrant is considered a public charge if the immigrant is likely to “become primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense [other than imprisonment for conviction of a crime].”24 The guidance specifies the benefits that may be considered when making a public-charge determination: Supplemental Security Income (SSI), Temporary Assistance for Needy Families cash assistance, state and local cash-assistance programs, and long-term institutionalized care, paid for by government programs such as Medicaid.25
The guidance clarifies that not all cash assistance—only assistance for basic income maintenance—is to be considered and that having received benefits is only one factor in a forward-looking analysis considering the “totality of circumstances” surrounding an application.26 The guidance also specifies a number of benefits—including Medicaid and other health insurance programs, nutrition programs, child care services, housing benefits, educational assistance, and energy assistance—that “may not be considered for public charge purposes.”27 According to the guidance, the limited focus on cash assistance is intended to reflect “broad public policy decisions about improving general public health and nutrition, promoting education, and assisting working-poor families in the process of becoming self-sufficient. Thus, participation in such non-cash programs is not evidence of poverty or dependence.”28 The guidance also notes that a “healthy person in the prime of life cannot ordinarily be considered likely to become a public charge.”29
Current Public-Charge Grounds for Deportability
Section 237 of the Immigration and Nationality Act states that “[a]ny alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.”30 The 1999 field guidance uses the same definition of public charge for deportability as it does for admissibility, but it applies a much stricter analysis for determining whether an admitted immigrant has become a public charge and is thus deportable. Specifically an immigrant is deportable on public-charge grounds only if (1) the immigrant receives a benefit under a program that legally obligates the administering agency to seek reimbursement; (2) the agency makes a demand for repayment; and (3) the recipient refuses to make payment.31 Moreover, the guidance states that the agency must take all available actions to collect payment, including obtaining and taking all necessary steps to enforce a final judgment in a court of law, before a public-charge determination can be made.32 Even where these circumstances are met, an immigrant still has the opportunity to demonstrate that the circumstances causing the immigrant to become a public charge arose after admission, and the guidance acknowledges that public-charge deportations are likely to be “rare.”33
Steps Toward Dramatic Changes in Public-Charge Policy
Since early last year, the Trump administration has signaled that it may seek to expand the types of benefits that can be considered in the public-charge determination. The goal behind this change is twofold: (1) to make it harder for immigrants who might use public services—such as health and nutrition programs—to come to the United States and settle here permanently and (2) to force families to choose between the food, housing, and health care they need and being with the people they love.
A draft executive order leaked in January 2017 was the first signal of this threat. While the draft order was never signed or released, it (combined with other hostile immigration policies and rhetoric) led to many immigrants choosing not to enroll themselves or their citizen children in critical programs despite their being eligible. Then, this past winter, the threat became even more urgent. In December 2017 the Unified Regulatory Agenda included a notice that a public-charge Notice of Proposed Rulemaking was in the works. In January 2018 the U.S. Department of State revised its instructions to consular officials on public charge; it added that the use of any public benefit by a person seeking a visa to enter the country—or the use of benefits by the applicant’s family or sponsor—could be part of the public-charge consideration. What effect these changes will have is too early yet to tell, but the changes will be felt primarily by immigrants seeking to reunite with their immediate family members in the United States.
In February and again in March 2018 media outlets published a leaked draft Notice of Proposed Rulemaking on public charge. The draft indicated that the administration would now attempt to alter public-charge policy through the formal rulemaking process.
Proposed Radical Expansion of Who Is Considered a Public Charge
Several versions of the Trump administration’s damaging new approach to public charge have leaked since last year, stoking fear among immigrant communities. The latest and most comprehensive version was reported by the Washington Post on March 28, 2018.34 The Post also made the leaked draft available online.35 The next day, the Department of Homeland Security officially submitted for review proposed changes in public-charge rules to the Office of Information and Regulatory Affairs of the Office of Management and Budget.36 Submission to the Office of Information and Regulatory Affairs is a routine rulemaking step that precedes formal publication of draft rules in the Federal Register. Although review by the Office of Information and Regulatory Affairs does not have a fixed time limit, this submission suggests that publication of the draft rules, and the public comment period that will follow, are imminent. The text of the proposed rules submitted to the Office of Information and Regulatory Affairs is not publicly available yet, and how closely the submitted new rules mirror what was in the leaked version reported by the Washington Post is unknown. Given the timing, however, advocates would be reasonable to assume significant similarities.
As leaked, the draft rules would radically alter the public-charge determination in a number of important and harmful ways. The rules would expansively redefine what being a “public charge” means. Whereas current guidance focuses on whether an intended immigrant is likely to become primarily dependent on benefits for subsistence, the leaked rules would define a public charge to be a person “who is likely at any time to use or receive one or more public benefits.”37
The rules would expansively redefine what being a “public charge” means.
The leaked rules would also greatly expand the benefits considered when making a public-charge determination. As noted earlier, programs currently considered for admissibility purposes are few—subsistence-oriented cash assistance programs, SSI, and long-term institutionalization. The leaked rules would consider
any government assistance in the form of cash, checks or other forms of money transfers, or instrument and non-cash 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.38
This would include federal, state, and local benefits. The leaked rules, while noting that the list is not exclusive, specify a number of programs to be considered for public-charge purposes. The listed programs include Medicaid and any “subsidized health insurance,” including premium tax credits in the health insurance marketplace; Supplemental Nutrition Assistance Program (SNAP); WIC; State Children’s Health Insurance Program (CHIP); housing assistance; means-tested energy benefits such as the Low Income Home Energy Assistance Program; and the earned income tax credit.39 With such an expansive definition of public charge, benefits considered could include virtually any program not specifically exempted that is means-tested or helps participants meet basic needs. Note, however, that, as leaked, the rules would not apply retroactively in the case of benefits not previously considered for public-charge purposes.40 With these two drastic changes—redefining public charge to include any use of public benefits and greatly expanding the programs considered for public-charge purposes—the Trump administration would abandon the important and well-documented policy consideration that access to benefits is good for the long-term health and self-sufficiency of families and good for the overall well-being of our society.
With such an expansive definition of public charge, benefits considered could include virtually any program not specifically exempted that is means-tested or helps participants meet basic needs.
The leaked rules would also direct immigration officials to consider whether an applicant’s dependents have “sought, received, or used, or [sic] any public benefit.”41 Currently officials consider only whether the applicant has used specified benefits. The leaked rules define “dependent” very broadly to include not only dependents as listed on a tax return and other persons whom the applicant is legally required to support but also “[a]ny other Person who lives with the alien, and who is being cared for or provided for by the alien, and benefits from but does not contribute to the alien’s income or financial resources, to the extent such person is not claimed on the alien’s tax return.”42
As noted earlier, millions of U.S.-citizen children live in households with a foreign-born parent. Including benefits that these children might seek or receive in the public-charge determination would force parents to decide between keeping their families together and ensuring that their children have access to critical services such as health care, nutrition, immunization, behavioral health assistance, and so on. The leaked rules’ expansive definition of dependents would further undermine family and community by putting immigrants at risk should they care for their elderly parents, a niece or nephew, the children of friends who may be in crisis, and others who may seek or use any one of a host of federal, state, and local benefits programs.
The leaked rules would also set forth standards for immigration officials to consider when evaluating statutorily required criteria such as age, health, and education. The rules essentially direct that each factor should be considered solely for its bearing on whether the intended immigrant is immediately able to work.43 The rules would negatively consider applicants who are limited in English, on the ground that this is a barrier to employment.44
The rules would negatively consider applicants who are limited in English, on the ground that this is a barrier to employment.
The leaked rules identify specific factors that are to be “heavily weighed” in a public-charge determination. Heavily weighed negative factors—factors that “will generally weigh heavily in favor of a finding that an alien is likely to become a public charge”—include whether the applicant is currently using or has “used or received one or more public benefits within the last 36 months.”45 Another heavily weighed negative factor is whether the applicant “has a medical condition and is unable to show evidence of unsubsidized health insurance.”46 The only heavily weighed positive factor is whether the applicant can demonstrate income, assets, and resources that put the applicant at 250 percent or more of the federal poverty level.47 In essence, the leaked rule creates a new income standard for family-based immigration at 250 percent of the federal poverty level, or $62,750 for a family of four in 2018.
A very significant unknown at this time is how the proposed rules that are ultimately published will handle public charge in the deportability context. As noted above, pursuant to Section 237 of the Immigration and Nationality Act, an immigrant is deportable within five years of admission if the immigrant becomes a public charge for reasons that existed at the time of admission. Given the significant hardship of deportation, current guidance takes a very narrow approach to this question—the person in question must have received a benefit that requires repayment under law; the agency administering the benefit must have received a final judgment compelling repayment and exhausted collection options; and the person must still refuse repayment. The leaked rules include placeholder language for Section 237 evaluations under the heading “Deportable Aliens [FOR DISCUSSION WITH DOJ]” and a subheading that reads, “Public charge deportability criteria. [TO BE INSERTED].” Of concern, however, is that the leaked draft states that the expansive definitions of “public charge” and “public benefit” discussed above would also apply in the deportability context.48
Effects of the Leaked Public-Charge Rules
The Trump administration’s changes in public-charge policy could have severe consequences. Before considering their impact, we must reiterate a few considerations, particularly given the stress and fear that the threat of these rules has created among clients and community members.
First, the rules governing public-charge determinations in the United States have not yet changed. The notice of proposed rulemaking has not been published in the Federal Register. Once it is published, the public will have an opportunity to comment, and the Department of Homeland Security must respond to comments before finalizing any new regulations. The application for adjustment to lawful permanent residence in the United States already asks about any public benefits applicants have received. Thus disenrolling from programs at this time may offer little or no advantage.
Second, under the statute, which cannot be changed by regulation, public charge applies only in certain specific immigration contexts. Many immigrants are not subject to a public-charge evaluation.
Third, as leaked, the draft rules would expand the public-charge doctrine prospectively. Use of benefits newly considered for public-charge purposes prior to adoption of the rule would not count against an applicant.49 Even if the rules change, applicants will still be able to show why they are not likely to become a public charge in the future.
Public-charge rules along the lines of those that have leaked would severely harm families and communities in the United States.
Still, public-charge rules along the lines of those that have leaked would severely harm families and communities in the United States. The Department of Homeland Security acknowledges as much in the preamble to the leaked rules: “[T]he action has the potential to erode family stability and decrease disposable income of families and children because the action provides a strong disincentive for the receipt or use of public benefits by aliens, as well as their household members, including U.S. children.”50
As discussed earlier, the mere threat of these rules, combined with other hostile immigration policies and harmful rhetoric, has caused immigrant families to disenroll from vital health, nutritional, and other services because of fears that enrollment will harm their immigration status or their future opportunities. Low-income children with foreign-born parents are already less likely than children with U.S.-born parents to receive SNAP or Medicaid. And one million Latino children are eligible for Medicaid or CHIP but not enrolled.51 Any policy forcing millions of families to choose between the denial of immigration status and food or health care would exacerbate serious problems such as hunger, unmet health needs, child poverty, and homelessness, with lasting consequences for families’ well-being and long-term success and community prosperity.
A wealth of research supports the notion that children do better when they have access to benefits. For example, research demonstrates that children who are able to access Medicaid lead longer, healthier lives and are more likely to finish high school and college.52 Conversely, people without access to health insurance are less likely to receive a diagnosis in the early stages of a disease, more likely to die from acute conditions, and more likely to suffer from an undiagnosed chronic condition that could be controlled with appropriate care.53
A wealth of research supports the notion that children do better when they have access to benefits.
Similarly positive, long-term effects have been found with respect to other benefits programs. For example, children with access to nutritional assistance are more likely to graduate from high school and less likely to experience health problems such as diabetes and heart disease than children who are of similar economic backgrounds and do not receive nutrition benefits. Likewise, studies of economic benefits such as the Earned Income Tax Credit have found that these benefits lead to positive outcomes such as higher test scores, higher educational attainment, and higher lifetime earnings.54 These benefits have ripple effects for future generations who are more likely to grow up in economically stable households. These benefits contribute to a healthy society.
The instability and stress that result from lack of access to important services and from the current toxic anti-immigrant environment, inflict long-lasting harms on children:
Persistent and substantial exposure to fear and anxiety—sometimes called “toxic stress”—can do immense damage to children’s health. This level of stress can interfere with young children’s physical brain development, altering how they learn and their ability to manage their emotions. It can also lead to physical and mental health problems that last into adulthood.55
As noted above, citizen children with immigrant parents were already manifesting harmful stress-related behavioral changes such as difficulty eating and sleeping, psychosomatic symptoms such as headaches, and increased depression and anxiety. These effects, which are likely to worsen if public-charge rules are formally proposed and ultimately adopted, are likely to lead to poorer health outcomes, developmental limitations, and other adverse effects for children in America.56
What Advocates Can Do to Defeat This Change
To be successful, the fight against these dangerous public-charge rules will need an enormous mobilization and advocacy effort. The Department of Homeland Security has submitted its proposed public-charge rules to the Office of Management and Budget for review, and the draft rules could be formally published any day now. The leaked draft indicates that there will be a 60-day comment period for the rules, and the Protecting Immigrant Families Campaign is working to organize a massive response.
During the comment period, we need advocates to take these action steps:
- Submit comments that detail the harms that the proposed rules would impose on immigrant communities, the institutions that serve them, and our broader society. As part of this, we need local and issue-area experts to articulate the myriad, particularized ways in which the rules would harm the communities they serve.
- Reach out to diverse constituencies and voices. Educate them about the content of the proposed rules. Encourage them to join the fight, including by submitting comments of their own.
- Help us wage an effective communications strategy that ensures that these terrible rules get the attention and condemnation they deserve. We need to lift up compelling stories that humanize and describe the widespread damage that these rules will cause. We also need to demonstrate compellingly that these rules are an affront to the core values of our country.
The Protecting Immigrant Families Campaign will supply a variety of resources to help advocates engage in these activities effectively and efficiently. These resources will include analyses of the draft rules shortly after they are published, templates for crafting unique comments, and media toolkits. Resources for engaging in this fight will be crafted to meet the needs of people and organizations with varying amounts of bandwidth. If you are ready to join this fight, or just interested in learning more about it, please sign up for our listserv.57
The National Immigration Law Center, CLASP, and partner organizations have public-charge resources to share.58 If your organization would like to become more deeply involved as an active member of the Protecting Immigrant Families Campaign and participate in working groups, please sign up.59