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February 25, 2020
The Trump administration’s efforts to redefine the statutory meaning of “public charge” as it relates to immigration went into effect yesterday, as the Supreme Court lifted an injunction against implementation last week despite ongoing court challenges. Public charge is a phrase that has been in immigration law since the late 19th century, initially introduced to block the entrance of anyone likely to be institutionalized. In the language of the 1882 Immigration and Naturalization Act, this included any “convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Though the phrase has stuck in the law, its actual meaning has been contentious, generating more confusion and fear than clarity. Trump’s new revised standards continue this trend. But first we have to go back a few years to understand what Trump is up to (we did this in more detail back in August when the rule was announced here).
The Clinton era welfare “reform” law of 1996 created a hierarchy of “qualified” and “non-qualified” immigrants and then defined which public assistance “qualified” immigrants could access. The short answer is almost none during their first five years in the U.S., but there are exceptions and certain classes of “qualified” immigrants, such as refugees, who do not have to wait the full five-year period for most assistance.
Though these welfare reform measures stood apart from any “public charge” rule, there was widespread fear that accessing public assistance could lead to someone being denied legal permanent residency because they had become a “public charge.” The National Immigrant Law Center explains:
In deciding whether an immigrant is likely to become a public charge, immigration or consular officials review the “totality of the circumstances,” including an immigrant’s health, age, income, education and skills, employment, family circumstances, and, most importantly, the affidavits of support.
The misapplication of this public charge ground of inadmissibility immediately after the welfare law passed contributed significantly to a chilling effect on immigrants’ access to services. The law on public charge did not change in 1996, and people’s use of programs such as Medicaid or SNAP had never weighed heavily in determining whether they were inadmissible under the public charge ground.
Confusion and fear about these rules, however, became widespread. Immigrants’ rights advocates, health care providers, and state and local governments organized to persuade federal agencies to clarify the limits of the rules. In 1999, the Immigration and Naturalization Service (INS, whose functions were later assumed by the Department of Homeland Security) issued helpful guidance and a proposed regulation on the public charge doctrine. The guidance clarifies that receipt of health care and other noncash benefits will not jeopardize the immigration status of recipients or their family members by putting them at risk of being considered a public charge. [emphasis added].
The highlighted section above is what has been changed by Trump – accessing benefits, or likely to access benefits, has become a basis for disqualification. However, the benefits disallowed are basically the same as the 1996 law for “qualified” immigrants. Which means, most of the people who would be subject to this new test today would not qualify for these benefits to begin with.
So, the “public charge” rule is not really about reducing immigrant access to “welfare” - most are already denied or severely limited in their access! It is about the appearance of this impact, while taking other measures (English proficiency, income thresholds and so on) to exclude people. From the National Immigrant Law Center’s press release yesterday,
The new public charge test reviews numerous factors in determining whether an applicant is likely to use an expanded list of public benefits at any time in the future. Few people who are subject to the public charge test qualify for the programs covered by the regulations, but the regulations’ criteria — including new thresholds for income, age, health conditions, and English language proficiency to be weighed in the test — will dramatically reduce the diversity of immigrants to the U.S. As illustrated in a new NILC report released today, fear and confusion over the regulations have already harmed the health and well-being of immigrant families — overwhelmingly families of color — all over the country.
NILC’s new report, based on “interviews with 24 service providers — including benefits enrollers, health care professionals, and attorneys — in 11 states, demonstrates that fear of the public charge rule’s potential consequences has dissuaded people from seeking health, nutrition, and other safety-net programs even before its implementation. Service providers’ accounts yielded the following findings:
People not subject to the new DHS rule’s public charge test are going without services
In many cases, “chilled” populations are not themselves targets of the rule, demonstrating the widespread, spillover harm fear about public charge creates for immigrant communities and members of immigrant families, including those who are already lawful permanent residents or U.S. citizens, as well as for survivors of domestic violence, trafficking, or other serious crimes who are applying for U or T status.
The health and well-being of immigrants and their families are at stake
Providers identified troubling implications for their clients’ and patients’ health and well-being that they associated with fear of being deemed a public charge and other restrictions targeting immigrant communities.
People are making choices, sometimes unnecessary or counterproductive ones, based on fear rather than on an accurate understanding of the rule
Individuals’ concerns about public charge intertwine with other fears of restrictive immigration policies, particularly increased immigration enforcement and the potential for deportation and family separation. Accounts by service providers indicate that many noncitizens don’t want to place at risk any future opportunities they might have to obtain permanent lawful status, especially in a political climate where immigration-related restrictions are multiplying and becoming more unpredictable.
Fear of “public charge” is creating burdens for providers who work with immigrant communities
Service providers are on the front lines of addressing misinformation and answering questions related to public charge and benefits eligibility. They dispense advice to clients and patients, often encouraging continued access to services and benefits for which the latter are eligible — sometimes successfully, but sometimes not. This work creates additional time burdens for human services and health care professionals who are often already overextended in their work, as well as emotional burdens for those who struggle when they see their clients unable to meet their basic needs because of these policy impacts.
You can download and read the full report here.
So, yet again Trump’s team is effectively utilizing a rhetorical bait and switch to convince supporters they are fixing a problem that never existed, while generating fear and confusion within immigrant communities in the process. All to do the one thing they are actually committed to doing: reduce avenues for authorized immigration.