By Leandra Bernstein

Immigrants who have used food stamps, housing vouchers, Medicaid or supplemental income programs will likely find it more difficult to get a green card or legal status.

The Trump administration proposed a new rule over the weekend that would allow officials to deny visas and green cards to immigrants who have received government benefits and are deemed unable to support themselves.

The rule expands on a law that has been in place since the 19th century, allowing government officials to deny visas or legal status to foreigners deemed “likely to become a public charge.” It would also consider the current and past receipt of public benefits as a “heavily weighed negative factor” in determining an individual’s eligibility for legal status.

“Under long-standing federal law, those seeking to immigrate to the United States must show they can support themselves financially,” DHS Secretary Kirstjen Nielsen said Saturday. “This proposed rule will implement a law passed by Congress intended to promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.”

The policy only applies to certain categories of immigrants. Refugees, asylum-seekers, victims of human trafficking and other protected categories will not be subject to the “public charge” test.

DHS estimated the rule could save U.S. taxpayers $2.27 billion annually by deterring immigrants who qualify for welfare programs. DHS believes immigrants will forgo certain benefits if it means they or a family member will be denied legal status. The government also anticipates the rule will lower welfare costs in the longrun by attracting immigrants who are less likely to need assistance.

ESTIMATED EFFECTS ON IMMIGRANTS

As soon as the rule is published in the federal register, advocates and opponents will have 60 days to submit comments before the policy goes into effect.

Wendy Cervantes, an immigration policy expert with the Center for Law and Social Policy (CLASP), is working with a network of roughly 200 organizations to fight the “public charge” rule.

“It represents a blow to immigrants, their families and whole communities,” Cervantes said. “It’s making families choose between providing for their kids — putting food on the table and getting access to basic health care — or risk being separating and not being able to legalize their status.”

Most immigrants are ineligible for many government benefits for the first five years they have legal status. However, some qualify for welfare programs through children born in the United States, certain health conditions like pregnancy or disability, or if they receive benefits indirectly while living with or being sponsored by relatives. Illegal immigrants are ineligible for government benefits.

The rule will have “a chilling effect” on immigrants who might otherwise be qualified for certain benefits, Cervantes said. “Immigrants are already scared to access benefits because they don’t want anything to compromise their ability to stay here,” she added. By design, the new regulation will further deter them from seeking assistance.

There are also concerns about the complexity of the 447-page regulation. Though DHS allows immigrants to receive certain necessary benefits, like treatment and prevention of communicable diseases, there are concerns that individuals will be afraid to use those services, leading to dangerous community outcomes.

DHS acknowledged the rule could result in “worse health outcomes.” The agency also advised it could result in “increased rates of poverty and housing instability” and “reduced productivity and educational attainment.”

Steven Camarota, director of research at the Center for Immigration Studies, explained the rule provides a needed clarification and “gives teeth” to existing U.S. policy.

“The whole principle of ‘public charge’ is that immigration is supposed to benefit the United States, for the most part. And in doing so, people are supposed to be self-sufficient,” he noted. “If taxpayers have to step in and pay [for various welfare programs] that doesn’t sound like a benefit. Something is wrong there.”

Under current law, immigrants or family sponsors receiving cash benefits that amount to more than half of their income can be deemed inadmissible as a public charge. The new rule will allow the government to consider non-cash programs like public housing, government-sponsored healthcare and food stamps.

Similar to current law, the proposed rule will assess various factors to determine if someone is likely to become a public charge including age, health, family status, assets, resources, financial status, and education or skills.

Those factors will be weighed in varying degrees by immigration officers who will be in charge of administering the “totality of circumstances” test to determine visa or green card eligibility. For example, immigrants earning 250 percent of the federal poverty line will be considered a “heavily weighed” positive factor. Receiving one or more public benefits is a “heavily weighed negative factor,” according to DHS.

“What it does is it transfers vast discretion to admit or not to admit to immigration officers,” said Michael Fix, a senior policy fellow and former president of the Migration Policy Institute.

In June, Fix and other MPI experts published a paper estimating the impact of the draft regulation. They estimated the number of noncitizens determined to be a public charge would increase more than 15-fold, from 3 percent under current policy to 47 percent under the draft rules.

HOW DEPENDENT ARE IMMIGRANTS ON WELFARE BENEFITS?

A number of studies in recent years have looked at the extent to which immigrant families and households rely on federal and state welfare programs. The results have been somewhat inconsistent.

A 2016 study by the National Academy of Sciences found that more than 58 percent of immigrant households with children use “any welfare,” compared to 42 percent of native U.S. households. Although first-generation immigrants typically cost state and local governments about $1,600 each, second and third-generation immigrants provided a positive contribution.

Overall, the study found a recent U.S. immigrant will contribute $150,000 more in taxes than they receive in benefits over their lifetime.

The White House has used research from the Center for Immigration Studies to support claims that more than half of immigrant family households received some form of government assistance, compared to approximately 30 percent of U.S.-born households. The White House touted the figures when it proposed the RAISE Act, legislation to establish a “merit-based” immigration system.

Other research suggests that immigrants and native-born U.S. citizens use government benefits at around the same rate, with immigrants generally receiving fewer benefits in overall dollar value.

Current law defines a public charge as someone “primarily dependent” on welfare, meaning more than 50 percent of their income is from government cash benefits. The new rule expands that definition to the receipt of any amount of a broader range of cash and non-cash government benefits, like the Supplemental Nutrition Assistance Program, Medicaid benefits and public housing.

As a result, the government will be denied legal status to immigrants who could work and contribute to the country economically, in both productivity and tax revenue, explained David Bier, an immigration policy analyst at the Cato Institute who has researched the economic benefits of immigration.

“Fiscally and economically it does not make sense to adopt a rule that’s denying status to people who are contributing to this country economically,” he said.

Camarota disagreed with the analysis, arguing if a household is poor enough to qualify for cash and non-cash benefits, they are not paying a federal income tax and likely paying very little in state taxes.

LIMITING LEGAL MIGRATION BY ANOTHER MEANS

Though the immigration rule focuses on the costs to U.S. taxpayers, experts argued it should not be mistaken for a budget initiative.

“We know the administration has been trying to cut legal immigration for a long time,” Bier said. “They failed to do it through Congress and now they’re turning to a regulatory approach.”

The regulation amounts to a “backdoor revision” of the legal immigration system, Fix argued. “I think this is less a budget bill than it is a merit-based immigration reform bill.”

Jacinta Ma, the director of policy and advocacy at the National Immigration Forum noted parts of the federal regulation sound a lot like President Donald Trump’s proposals for a merit-based immigration system.

When the Trump administration was working with Congress on the RAISE Act, the draft legislation that would prioritize immigrants with higher education, certain skills, English language proficiency and income, rather than family connections. These factors also listed among DHS’ “heavily weighed” positive and negative factors in the regulations.

“Again, we’re seeing the same kind of efforts to curb legal immigration, but the administration is doing it through the levers it has, through executive power,” Ma said.

President Donald Trump has relied on immigration issues to mobilize his base. Ahead of the November midterm elections, immigration remains a top concern for likely voters.

According to Cervantes, the regulation was “strategically timed” to catalyze anti-immigrant sentiment around the midterms. “It’s an opportunity to scapegoat immigrants once again and ramp up this nativist sentiment at a really strategic time,” she said.

As of Monday, the rule had yet to be published in the federal register. Immigration advocates are gearing up to overwhelm the Trump administration with public comment in an effort to get them to withdraw the rule or delay its implementation.