Proposed Public Charge Rule Spreads Panic, But Would Fail at Cutting Costs

On October 10, 2018, the Department of Homeland Security (DHS) finally posted a revised “public charge” rule in the Federal Register. The rule would force immigrant families to choose between vital services, such as medical care, and legal permanent residency, by drastically altering the process and criteria for determining whether a person is “likely to become a public charge.” Under the new guidelines, anyone who uses more than 15 percent of the poverty line in specified public benefits based on their household size could be deemed a public charge. This comes out to $2.50 per person, daily, per family of four. By calculating “public charge” this way, even immigrants who are 95 percent self-sufficient could be found ineligible for permanent residence. In addition, DHS plans to measure an immigrant’s likelihood to use federal, state, or local safety net programs  “depend[ing] on the particular facts and circumstances of each case.” Some factors it will consider are: one’s age, marriage, income, and being uninsured with a medical condition requiring extensive treatment. However, what is missing from the proposed rule are practical guidelines as to how USCIS adjudicators will weigh these factors.

Beyond being complex and ill-defined, the proposed rule will not achieve its stated purpose: to cut government costs. Although DHS has estimated the benefits of the rule to the American economy, it also acknowledges that the number of people who will be denied legal status based on a public charge determination is unknown. It also fails to recognize that the majority of people adjusting status in the United States  “are people in nonimmigrant (i.e. temporary) statuses that preclude them from eligibility for almost all federal means-tested benefits programs, so the benefits of them stopping will be very small.” It seems, then, that one shouldn’t just ask if the costs of this rule outweigh its benefits, but also ask if it even offers benefits.

Over the past year, leaked versions of the proposal have sparked panic throughout immigrant communities. Attorneys have been fielding calls and emails as parents ask if they should take their U.S.-born children off Medicaid, Children’s Health Insurance Program (CHIP), or other programs, fearful they will be retroactively held accountable for new standards that didn’t exist when they accepted or used these benefits. Immigrants who are unsure how to make use of safety net systems without becoming a public charge may avoid them altogether, choosing instead to live in sub-standard conditions without aid. In this way, DHS’s proposal would threaten the well-being of parents and children throughout the country.

As an immigration attorney working with clients every day, I’ve seen first-hand the concerns this proposed policy has raised. A new mother, who has an immigrant visa application pending, asked me if she should start working outside of the home to appear as though she is doing more to contribute to the economy, even though she would like to stay home with her young infant and her spouse can more than adequately support them both. Meanwhile, asylum applicants are rejecting legal aid from nonprofit services out of fear their application will be denied for accepting assistance. Fear and confusion are rife, as the proposed rule is complicated and undefined.

If finalized as drafted, this vague new rule will only continue to bring pain and fear to immigrant families, while harming public health and failing to benefit the U.S. economy. Americans and immigrants alike should tell the administration why this rule is bad for our country. Public comments will be accepted until December 10, 2018.

AILA has made a template comment that members can readily customize and submit to the government. Voice your objection to this harmful proposal!

by Ruby Powers