Trump Administration Issues Rule Making Legal Immigration Harder for the Poor

The Trump administration is making it harder for poor legal immigrants to enter and stay in the U.S.

The administration released a new, 837-page regulation this week that could dramatically cut the number of legal immigrants in the country.

So what exactly does the regulation say?

The regulation takes an existing law, the “public charge” rule, and expands the definition. The existing rule prevents any immigrant who is “likely at any time to become a public charge” from entering the U.S., renewing a visa, or obtaining a green card.

When the rule was implemented at the end of the 19th century, the definition of a “public charge” was not explicitly defined. In 1999, the Clinton administration issued a guidance, stipulating that it is someone likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” Recipients of non-cash benefits, such as Medicaid and food stamps were not included.

The Trump administration now plans to include these non-cash benefits into the public charge determination. A range of social services, including Supplemental Security Income, Temporary Assistance for Needy Families, Supplemental Nutrition Assistance Program (SNAP), Medicaid, and housing assistance are now included in the definition of benefits that would render an individual a “public charge.”

The new rule states that anyone who has been “approved to receive one or more public benefits for more than 12 months within any 36-month period” will have that weighted negatively against them. If someone uses two benefits, that will count as two months. Yet non-citizen immigrants constitute a small proportion of those receiving public benefits, as they are often not eligible for several years: they represent just 6.5% of those participating in Medicaid and 8.8% of those receiving food assistance, for example. Therefore the administration has also included those who they deem “likely” to one day become a public charge in this category.

The new rule provides for a number of exceptions: active duty members of the military, children under the age of 21, refugees, and asylum seekers will not be penalized for receiving such benefits. There are also exceptions in the case of emergency medical care, as well as for pregnant women receiving Medicaid.

On the other hand, there are a number of factors that will be positively weighted—potentially making one’s application more likely to be approved—such as having private health insurance, speaking English, and being able to show formal letters of support.

Perhaps the most contentious positive factor, however, is demonstration of wealth. Those earning 250% of the official poverty line—just north of $30,000 for an individual or around $64,000 for a family of four—are unlikely to be considered public charges. Yet there are around 4 million foreign-born workers in the U.S. who earn an average of $27,820 per annum, working in positions not filled by American citizens, according to The Wall Street Journal. Anyone earning less will be forced to prove that they will not require public benefits in the future.

Those who wish to apply for a green card will be required to submit three years of federal tax returns and their employment history. More broadly, an individual’s age, health, family status, assets, resources, financial status, and education will be considered in their application. Yet no single factor is “outcome determinative,” according to the rule. It states that immigration officers will weigh the “totality of the alien’s circumstances” when determining whether to approve the individual’s application—but negative factors, such as being in receipt of public benefits will be held against him or her.

Those who are considered likely to become a public charge have the option to post a minimum bond amount of $8,100, adjusted annually for inflation, to get an “adjustment of status.” The bond would be returned upon naturalization or departure from the country.

What will this mean in practice?

The administration estimates that the rule will impact an estimated 382,000 people seeking to come to or remain in the U.S. Immigration advocates put the estimated number much higher, suggesting it could affect millions. Those who already hold green cards will reportedly not be affected.

Acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli claimed that the new rule will encourage “self-reliance and self-sufficiency for those seeking to come to or stay in the United States,” but critics argue that it will simply cut legal immigration, disproportionately impacting those with limited financial resources.

What happens next?

The rule is scheduled to go into effect on Oct. 15, but a number of bodies have already threatened to sue the administration over the policy change, including the National Immigration Law Centre and the state attorneys general of California and New York. The city of San Francisco and nearby Santa Clara county have filed a suit to block the administration from implementing the rule.

Even though the new rule has yet to be implemented, the Trump administration has already radically increased the number of visas it has denied on “public charge” grounds, from 164 in 2016, to 5,518 in 2018.