Immigration and Government Assistance: The Future of the “Public Charge” Rule

By Emma Davies
Emma Davies is a sophomore in the College of Arts and Sciences at the University of Pennsylvania studying Philosophy.

Immigration reform was a main platform position of President Donald Trump during his 2016 campaign and his presidential term. Over the past two years, significant policy changes in the executive branch’s agenda include a ban against individuals from predominantly Muslim countries, lowering refugee admissions, increasing US Immigration and Customs Enforcement (ICE) arrests, and terminating the Deferred Action for Childhood Arrivals (DACA) program, among others. A change in the “public charge” ruling, a provision that details who is inadmissible or not as a potential immigrant, has become a part of Trump’s docket of anti-immigrant policy initiatives [1].

Under this new interpretation, the amount of individuals ineligible to obtain immigration visas has expanded to include those who use publicly-funded services, such as Medicaid or food stamps. As the policy currently stands, immigrants seeking green cards or admission into the United States, who used cash aid (TANF, also known as “welfare”) and/or have a history of institutionalized care, have to prove that they would not need those resources as support in the future. As of now, use of publicly funded health care (ex. Medicaid, Medicare), nutrition (SNAP) or housing programs does not count negatively towards this consideration. However, notwithstanding any legal challenges, on October 15th, this policy would change [2].

The updated rule defines a person as a “public charge” if they receive public benefits for an aggregate of 12 months out of the past 36 months. Crucially, the list of benefits that would be taken into account has expanded to include healthcare programs, nutritional programs, housing programs, and more. If a participant used two services in one month, say a nutritional supplement program and a housing waiver, this would double count as two months of public support [3].

Past usage of aid is a significant predictor of one’s need for future aid, however, it is not the only one. Factors that would also be taken into consideration include income, family size and education level. Whereas using aid for more than 12 months out of the past 36 months, would count against an applicant as “highly weighted negative factor,” having a household income more than 250% of the federal poverty level, would count as “highly weighted positive factor” [4] .

The “public charge” rule dates back to the late-19th century in response to Eastern states’ fears that poor immigrants would place too great a burden on public institutions and charitable organizations. During this time, the federal government lacked an agency to oversee immigrant policies, so immigration was the responsibility of the states and of general charity organizations or public institutions. However, those fears stemmed from concerns that do not materialize in the modern day, given the existence of federal agencies to oversee the immigration process and the dedication of publicly-funded institutions to assist immigrants [5].

This policy update restricts the influx of immigrants on grounds of financial means. This practice would run counter to many American ideals enshrined by history and legal tradition. In 1949, Immigration and Naturalization Service (INS) Counsel Charles Gordon, noted that disqualifying immigrants due to their financial situation, refutes, “...the epic American story which tells of millions of immigrants—largely the poor and oppressed of other lands—who have found vast opportunities in America.” Of important consideration, “is the desire to become a productive member of the community, coupled with freedom from serious physical and mental deficiencies,”[6]. In essence, many immigrant advocates that this rule is discriminatory against low income applicants, which is counter to the ethos of America as a land of opportunity.

On the other hand, Ken Cunnicelli, Acting Director of the Citizenship and Immigration Services Department, argues that there is a rational legal basis to support this change. Specifically, it provides a long-term economic benefit for all US taxpayers. The updated “public charge” rule serves to prevent admissions of individuals who would become a “burden on the government” [7]. At the same time, this new legislation is meant to “help promote immigrant success in the United States as they seek opportunity here” by encouraging “self-reliance and self-sufficiency” [8]. That is, the public charge promotes economic welfare for all American tax-paying residents, while encouraging independence for new residents.

However, due to eligibility requirements, immigrants typically face constraints or restrictions in receiving state or federal benefits. As a result, low income immigrants use public services (such as Medicaid and SSI) at lower rates compared to their U.S-born equivalent. As a whole, they reflect only 6.5% of those participating in the Medicaid program [9]. The goal of reducing the economic burden on taxpayers therefore appears to be a periphery reason for its enactment. This new ruling primarily resolves to reduce immigration, specifically for low-income families. For immigrants in the US already, it creates fear over choosing between benefits and citizenship. Though the federal government may hold a legitimate interest in pursuing policies that promote economic liberty, this new ruling is a thinly veiled attempt to reduce immigration admissions on grounds of economic standing.

​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Pierce, Sarah, and Andrew Selee. “Immigration under Trump: A Review of Policy Shifts in the Year Since the Election.” migrationpolicy.org. Migration Policy Institute, 22 Jan. 2018. Web. 10 Oct. 2019.
[2] “Public Charge.” ILRC. Immigrant Legal Research Center, 20 Sept. 2019. Web. 10 Oct. 2019.
[3] Pierce, Sarah, and Andrew Selee. “Immigration under Trump: A Review of Policy Shifts in the Year Since the Election.” migrationpolicy.org. Migration Policy Institute, 22 Jan. 2018. Web. 10 Oct. 2019.
[4] “Public Charge.” ILRC. Immigrant Legal Research Center, 20 Sept. 2019. Web. 10 Oct. 2019.
[5] “Public Charge Provisions of Immigration Law: A Brief Historical Background.” USCIS. US Citizenship and Immigrant Services, 14 Aug. 2019. Web. 10 Oct. 2019.
[6] “Public Charge Provisions of Immigration Law: A Brief Historical Background.” USCIS. US Citizenship and Immigrant Services, 14 Aug. 2019. Web. 10 Oct. 2019.
[7] Ingber, Sasha, and Rachel Martin. “Immigration Chief: 'Give Me Your Tired, Your Poor Who Can Stand On Their Own 2 Feet'.” NPR. NPR, 13 Aug. 2019. Web. 10 Oct. 2019.
[8] “Press Briefing by USCIS Acting Director Ken Cuccinelli.” The White House. The United States Government, 12 Aug. 2019. Web. 10 Oct. 2019.
​[9] Woodward, Calvin. “AP FACT CHECK: Trump Spreads False Claims on Immigrant Aid.” AP NEWS. Associated Press, 28 Nov. 2018. Web. 10 Oct. 2019.

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LA Opinion: https://inkind.life/blog-1/2019/6/2/what-is-public-charge-and-what-does-it-mean-for-immigrants-living-in-the-united-states