Trump’s dramatic new plan to label immigrants a ‘public charge,’ explained

By E.A. Crunden, Amanda Michelle Gomez

Immigrants who utilize virtually all public benefits risk jeopardizing their ability to stay in the country under new rules announced by the Trump administration.

The Department of Homeland Security (DHS) will require immigration caseworkers to take into account a number of additional factors in considering applications for immigration visas (like work visas or family-based visas) or green cards (permanent residency).

Immigrants who opt to use such benefits — even for U.S. citizen children — would be compelled to stop using the programs or risk being considered a “public charge,” deeming them unqualified for legal residency. While this rule wouldn’t apply to immigrants who already have permanent residency, immigration advocates worry that many will forgo public benefits, like Section 8 housing or food assistance, out of fear of losing their status.

The new rule, which was unveiled on Saturday, is part of a larger White House effort to reduce documented immigration, which the administration has not been able to push through Congress. By penalizing immigrant families for using public services under an obscure, century-old provision, the Trump administration is circumventing Congress to effectively cut work- and family-based immigration.

Let’s take a look at what this means:

What do the new rules entail?

Under the new DHS guidelines, immigration caseworkers must weigh the use of virtually any public benefits against those applying for U.S. citizenship, permanent residency, or admission to the country. That’s a shift from the current framework, which penalizes immigrants who receive, for example, cash welfare payments, but not those who utilize a range of other benefits.

According to Mark Greenberg, a senior fellow with the Migration Policy Institute (MPI), the current rule for public charge requires immigration officials to consider “whether the individual is receiving cash assistance or is institutionalized for long term care.”  

But under the new rule, Greenberg told ThinkProgress in the spring, when news of the proposal first surfaced, the government will “count anything more than minimal receipt of any aid or services that are means-tested or intended to help meet basic living requirements like housing, food, utilities or medical care.”  

That means immigrants’ use of the Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), Medicaid, or Medicare prescription drug program could all be used against them.

Who is this going to impact?

While the new rules could impact a few undocumented immigrants covered by the Deferred Action for Childhood Arrivals (DACA) program should they choose to apply for permanent residency, documented immigrants are the clear target.

That makes sense: the Trump administration has endorsed a Republican-led effort to cut documented immigration to the United States in half and numerous other efforts — including a crackdown on H-1B work visas for highly-skilled immigrants and an ongoing attempt to end the diversity visa program — show that the goal is rapidly translating to policy. But the new DHS rules are still striking in scope. They would apply to relatives seeking reunification with family members and to immigrants on work visas.

The rule impacts immigrant families; albeit, it doesn’t directly penalize families if an immigrant parent’s U.S. citizen child uses, for example, food stamps — which previous leaked drafts suggested. 

“It would still have significant implications for the health and well-being of children because we know that their well-being is ultimately connected to that of their parents,” said Wendy Wendy Cervantes, a senior policy analyst at the Center for Law and Social Policy. “And children whose parents are sick and hungry are obviously less likely to do well now and in the future.”

Roughly one in four children (nearly 20 million) have at least one immigrant parent, and nearly nine in 10 (17.7 million) of these children are U.S. citizens, according to a recent Kaiser Family Foundation study. Over 8 million U.S. citizen children with an immigrant parent get health care through Medicaid or the Children’s Health Insurance Program, the latter of which is, as of now, not included under the proposed rule, but may be added depending on the feedback received during the 60-day comment period, before the rule becomes final. 

Greenberg of MPI noted that public charge criteria is key in admission to the United States and in determining whether or not immigrants can adjust their status (like by becoming permanent residents). It’s rarely used as a factor in deportation proceedings under the current rule. But that could be set to change.

“They’re trying to decide whether to change the standards for when public charge matters for purposes of deportation,” he said. “They still need to decide whether to maintain current standards or propose new ones. But, if they do decide to use this rule to change the standards for deportation, the implications could be enormous.”

Should immigrants drop public benefits?

For the time being, no.

Advocates fear immigrants will learn of the new DHS proposed rule and drop their benefits. But experts say they shouldn’t — at least not yet.     

The proposed rule is not immediately taking effect, and it will take months to finalize as it makes its way through the rules process.

“[I]t’s not wise right now or advised to withdraw from any programs,” Cervantes told ThinkProgress. “It’s not supposed to apply to any benefits that have been previously used before the rule is published.”

This is critical to understand. The first year of Trump’s presidency has already prompted some immigrant families to end their enrollment in SNAP and the Supplemental Nutrition Program for Women, Infants and Children (WIC).

“All of those [withdrawals] were just based on fears related to rumors,” Cervantes said. “A family takes it very seriously when they are getting a green card. It’s a very big deal for a family. It’s the key to long-term stability. And so we are basically forcing families to choose between long-term stability or to be able to put food on the table.”

The racially-loaded, anti-immigrant history of public charge

“Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes,” the proposed rule states. But the history of public charge is rooted in xenophobia and racism.  

The idea of public charge was first introduced in 1882, months before the Chinese Exclusion Act was codified into law. “We were basically using it as a way to get rid of people and making up excuses,” Lisa Sun-Hee Park, a University of California at Santa Barbara professor who has studied and written about public charge, told ThinkProgress.

At the time, Congress barred “idiots, lunatics, convicts, and persons likely to become a public charge” from entering the United States. There was a strict interpretation and enforcement of public charge during the early 1930s, and immigration was at the lowest level of the 20th century. But the use of public charge dwindled after World War II.

“It was used in ways that were quite frankly really uncomfortable in terms of the eugenics,” Park explained, linking public charge to broader ideology discriminating on the basis of race and ethnicity.

In 1996, public charge again unintentionally resurfaced, as part of a Clinton-era approach to welfare reform, which restricted Medicaid access for many immigrants, requiring that they wait at least five years before qualifying for care. That policy eventually led to a significant drop in Medicaid use by immigrants, something sparked by a misunderstanding that immigrant caseworkers were considering Medicaid use in granting visas. In 1999, federal guidelines clarified that public health insurance was not considered relevant to public charge.

Saturday’s changes are arguably just a continuation of this history, according to Park.

“This is a way to target documented, legal immigrants in the United States and its effects are probably the most powerful because basically it will force people — basically — to leave on their own, seemingly,” Park said. “I would say is duplicitous because it’s not on their own. They would not otherwise but [the Trump administration is] making life so much more difficult.” 

Taking a lesson from California

The new rule has stark implications for immigrants and it’s unclear what the long-term ramifications could be. But for an indicator of how things could go, experts point to the Golden State.

“California was a really important test case in the 90s about how far we could push these kind of anti-immigration legislations that currently existed on the books,” said Park.

In 1994, California residents voted in favor of Proposition 187, or “Save Our State,” a ballot initiative denying public services like emergency health care and public education to undocumented immigrants. Like the Trump administration’s proposed rule, California’s initiative was rooted in nativism, said Park.

But its passage sparked an unintended consequence. Despite widespread support from conservatives, Latinx and civil rights groups united against the initiative, challenging its constitutionality.

“It triggered activism, political engagement, you know, in a way that was to the detriment of those who envisioned that this would just drive everybody out,” said Park. “And instead of driving everybody out these kinds of legislations actually invigorated people and engaged people and young people and they fought back and they reasserted, you know, what it means to be a member of the United States that’s beyond the citizenry.”

Local efforts to provide immigrants with a safety net worked to counter the state and Proposition 187 officially came to an end five years later. Modern-day California, home to the largest population of immigrants in the United States, is now a majority-Latinx state, one that has sued the Trump administration numerous times over immigration issues.

That’s not to say the new DHS guidelines will take the United States in the same direction. But the president’s immigration endeavors have met with repeated court challenges, and it’s unlikely this latest effort will go over without a fight.

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