Proposed Public Charge Regulations in Immigration Law: Subtle Changes and Significant Effects

Jenny Regier

 

The federal government has used the label “public charge”—understood colloquially as meaning someone “supported at public expense”[1]—to ban noncitizens from the United States because of poverty, disability, and race[2] since at least 1882 when Congress first codified the words “public charge” into federal law.[3] Under current law, if the Department of Homeland Security (DHS) finds a noncitizen “likely at any time to become a public charge,” DHS labels her “inadmissible,”[4] meaning that she can neither enter the United States if she is outside nor, in many cases, remain if she is inside.[5] On October 10, 2018, DHS released a Notice of Proposed Rulemaking.[6] DHS intends to change how it decides whether a noncitizen is “likely at any time to become a public charge.”[7] The subtle changes attempted through this rulemaking process should be carefully scrutinized, especially because they could bring about significant negative public health effects, some of which are already being observed.

I.    The current public charge doctrine as it relates to inadmissibility.

The statutory basis for the public charge doctrine has remained unchanged since 1996.[8] Codified at section 212(a)(4) of the Immigration and Nationality Act (INA), the doctrine states that a noncitizen is inadmissible if, “in the opinion of the consular officer . . . or . . . Attorney General” she “is likely at any time to become a public charge.”[9] The official making the determination has “broad discretion”[10] and their determination is “predicated on an opinion as to the likelihood of future events.”[11] The statute goes on to list six factors to be used by the official: “age; health; family status; assets, resources, and financial status; and education and skills;” as well as “any affidavit of support.”[12]

DHS is attempting to create regulations to further guide officials’ decision-making related to the doctrine through new interpretations of section 212(a)(4). Currently, officials making public charge determinations look to field guidance and a proposed rule promulgated by the former Immigration and Nationalization Services[13] in 1999.[14] These define “public charge” narrowly, as a noncitizen who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”[15] Notably, this still-current guidance considers noncash benefits—for example, food stamps and health programs—supplemental support, not primary support constituting primary dependence on the government.

II.   DHS’s new proposal.

DHS posted the new rule for public comment on October 10, 2018,[16] a year and a half after the first leaks of a draft executive order and draft rule language.[17] The public comment period ended on December 10, 2018, but not before the public submitted over 250,000 comments.[18] DHS is now in the process of reviewing these comments.[19] If DHS publishes the rule, it will be integrated into various sections of the Code of Federal Regulations.[20]

DHS states that it is engaging in rulemaking for two reasons: (1) to ensure self-sufficiency among noncitizens and (2) to correct the 1999 field guidance, which, according to DHS, failed to “sufficiently describe[]” or “explain[] how to weigh” the statutory factors and unnecessarily excluded noncash benefits to focus on “primary dependence.”[21] DHS, in large part, uses immigration policy statements from the 1996 welfare reform law (PRWORA) to justify changes to the doctrine.[22] In PRWORA, Congress stated that “self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”[23] Next, Congress stated that under national immigration policy,  noncitizens should “not depend on public resources,” and “the availability of public benefits [should] not constitute an incentive for immigration to the United States.”[24]

a.     Who does this new rule affect?

The proposed rule affects noncitizens requesting (1) “admission to the United States,” (2) “adjustment of status to that of lawful permanent resident,” and (3) “extension of stay and change of status.”[25] These three categories include people attempting to visit the United States, people applying for permission to live in the United States permanently from abroad and from United States soil, and, occasionally, people already granted permission to live in the United States permanently. Some of these noncitizens, however, are eligible for inadmissibility waivers or are statutorily exempt from being found inadmissible as likely public charges.[26] Additionally, the proposed rule does not consider public benefit use by noncitizens’ family members, at least not their minor children.[27]

Not all noncitizens are eligible for public benefits. But for some of those who are, the federal government can attempt to use legal receipt of   public benefits to justify later exclusion from the United States.[28] Noncitizens eligible for public benefits but at-risk for public charge inadmissibility under the proposed rule may include, for example, lawful permanent residents entering the country after more than six months outside and noncitizens applying for lawful permanent residence after using state-offered Medicaid.[29]

b.    A new spin on an old test.

In the proposed rule, DHS explains that the test for determining whether a noncitizen is likely to become a public charge is a totality of the circumstances test, where DHS employs a nonexhaustive list of six statutory factors.[30] Although this test is not new, DHS now assigns an automatic positive or negative valence to certain characteristics related to each statutory factor. For example, under the “age” statutory factor, “DHS would consider a person’s age between 18 and 61 as a positive factor . . . [and] a person’s age under 18 or over 61 to be a negative factor.”[31] Additionally, under the “assets” statutory factor, DHS proposes the following five heavily-weighted negative subfactors: (1) “Lack of Employability,” (2) “Current Receipt of One or More Public Benefits,” (3) “Receipt of Public Benefits Within 36 Months of Filing Application,” (4) “Financial Means to Pay for Medical Costs,” and (5) “[Noncitizen] Previously Found Inadmissible or Deportable Based on Public Charge.”[32] DHS proposes only one heavily-weighted positive subfactor: total assets at or over 250% of the Federal Poverty Guidelines.[33]

Acceptance of public benefits and currently being a public charge, nested as two of five negative subfactors within one of six statutory factors, seem to be given little weight in the totality of the circumstances test. DHS itself states that “no single factor . . . would determine the outcome of a public charge inadmissibility determination.”[34] However, looking beneath the surface of the text, it appears that acceptance of public benefits would be nearly dispositive.[35]

c.     Old words, new meanings.

In addition to modifying the traditional totality of the circumstances test, DHS also proposes to change several definitions. Most concerningly, DHS proposes to change the meaning of “likely at any time to become a public charge” by modifying the meaning of “public charge.”[36] DHS proposes to define “public charge” as a noncitizen “who receives one or more public benefits.”[37] “Public benefits,” DHS explains, are “a specific list of cash aid and noncash medical care, housing, and food benefit programs.”[38] Confusingly, that the government would label someone a “public charge” for using public benefits under the proposed rule does not mean the government would necessarily label her “inadmissible.”[39] Instead, being a public charge and receiving public benefits would be heavily-weighted negative subfactors under the “assets” statutory factor.[40] Officers use this and the other five statutory factors to determine whether someone is likely to become a public charge.[41]

d.    Beneath the textual surface of the proposed rule.

With these new definitions, DHS moves away from a doctrine that requires primary dependence on the government[42] to a doctrine broad enough to encompass simple “receipt of financial support.”[43] Additionally, in conflict with its assurances that it will continue to use the totality of the circumstances test, DHS seems to implicitly suggest that receipt of public benefits would be nearly dispositive.[44]

The 1996 PRWORA policy statements suggest that Congress believes that noncitizens should not depend on public benefits. However, DHS is attempting to change the word “dependency” to mean “receipt of [any, cash or non-cash] financial support from the general public”[45] as opposed to an already established and intuitive definition of dependency. In 1999, DHS defined dependency as receiving over 50% “income and support” from public benefits,[46] and DHS continues to use this over 50% standard to determine members of a “household.”[47] Moreover, DHS concedes that both the Internal Revenue Service (IRS) and Health and Human Services (HHS) define “dependency” as more than 50% dependency.[48]

Further, despite paying lip service to six statutory factors at INA section 212(a)(4),[49] DHS is attempting to make the determination primarily about minimal use of public benefits. This is done in two steps. First, DHS proposes to change “likely at any time to become a public charge,” the first line of section 212(a)(4), to mean “likely at any time in the future to receive one or more public benefits.”[50] Next, DHS proposes to make current use of public benefits nearly dispositive to the totality of the circumstances test. DHS states that “consideration of cash and noncash benefit receipt represents an appropriately comprehensive and also readily administrable application of the public charge ground of inadmissibility.”[51]

Such radical change from traditional interpretation of an existing statute should be reviewed with extreme caution, especially given the possible negative effects of the proposed rule, discussed below.

III.    A brief overview of some of the possible effects of the proposed rule.

82.6 million people living in the United States received public benefits from 2014 to 2016.[52] Naturalized citizens and noncitizens comprised 14% of those receiving public benefits, approximately their percentage of the general population.[53] Overall, 28% of naturalized citizens and noncitizens used public benefits from 2014 to 2016,[54] and 47% of noncitizens and 36% of naturalized citizens lived in families where at least one person used public benefits.[55] Even though this rule may never be published, even though family members’ receipt of benefits should not matter, and even though many noncitizens will never be subjected to a public charge determination, at least a certain number of people will chose to forgo—or ask their family members to forgo—public benefits out of fear of possible immigration consequences. For example, after the 1996 changes to the doctrine, benefit programs experienced declines in participation of 20% to 60% in immigrant communities.[56] These declines occurred in part because of newly limited access but also because a fear of possible consequences caused people to voluntarily disenroll.[57]

The health and food security of noncitizen communities will likely be affected by this proposed rule. Although the majority of lawfully present noncitizens have at least one full-time worker in their families, just like United States citizens, their families are more likely to be low-income with jobs that do not offer health insurance.[58] This means many families rely on Medicaid or other health programs.[59] The proposed rule will likely lead to declines in participation in Medicaid and other health programs even “among a broader group of individuals than those directly impacted” because of fear of immigration consequences.[60] Less health coverage means that people will use pre- and post-natal care and preventative care less, affecting morbidity and mortality among adults and children.[61] These effects on health care are already being seen. According to Politico, agencies in over 18 states reported recent declines in Women, Infants, and Children (WIC)[62] enrollment of up to 20%,[63] even though WIC is not even contemplated by the proposed rule. The proposed rule has been called a “stealth regulation . . . being applied subliminally.”[64] Furthermore, loss of food assistance programs and increased poverty will result in increased food insecurity and amplification of the effects of loss of health coverage.[65]

The current and possible future effects of this proposed rule are severe. The proposed rule demands our attention and our advocacy both to combat the fear and misinformation already spreading in noncitizen communities and to challenge the new regulations should DHS publish the proposed rule in its current form.

[1] Public charge, Merriam-Webster (2019).

[2] In the early 1900s, exclusions were more often based on disability, race, or both than poverty alone, perhaps influenced by the contemporaneous popularity of the eugenics movement. See Marc C. Weber, Opening the Golden Door: Disability and the Law of Immigration, 8 J. Gender Race & Just. 153, 156–57, 159–61 (2004).

[3] See Immigration Act of 1882, ch. 376, 22 Stat. 214, 214 (stating that “any person unable to take care of himself or herself without becoming a public charge . . . shall not be permitted to land”).

[4] Immigration and Nationality Act § 212(a)(4), 8 U.S.C. §1182(a)(4) (2018).

[5] USCIS, Inadmissibility and Waivers 2, https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Electronic%20Reading%20Room/Applicant%20Service%20Reference%20Guide/Inadmissibillity_and_Waivers.pdf (last visited Nov. 25, 2018).

[6] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018) (to be codified at 8 C.F.R. §§ 103, 212–14, 245, 248).

[7] Id. at 51,114.

[8] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009-546, 3009-674.

[9] INA § 212(a)(4)(A).

[10] T. Alexander Aleinikoff, David A. Martin, Hiroshi Motomura, Maryellen Fullerton, & Juliet P. Stumpf, Immigration and Citizenship 577 (8th ed. 2016).

[11] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,174.

[12] INA § 212(a)(4)(B).

[13] Immigration and Naturalization Services “was abolished in 2003. Its functions are now performed by three agencies of the Department of Homeland Security: U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.” U.S. Citizenship and Immigration Servs., Glossary, https://www.uscis.gov/tools/glossary?topic_id=i#alpha-listing (last visited Nov. 17, 2018).

[14] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (proposed May 26, 1999); Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (proposed May 26, 1999).

[15] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. at 28,689.

[16] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,114.

[17] The Washington Post published a leaked draft executive order on January 31, 2017. Abigail Hauslohner & Janell Ross, Trump Administration Circulates More Draft Immigration Restrictions, Focusing on Protecting U.S. Jobs, Wash. Post, Jan. 31, 2017. On January 12, 2018, a DHS public charge proposed rule appeared in the Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions – Fall 2017.  Federal Register, Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2017 (Fall 2017), https://www.federalregister.gov/documents/2018/01/12/2017-28207/introduction-to-the-unified-agenda-of-federal-regulatory-and-deregulatory-actions-fall-2017. And in January and March of 2018, draft proposed rules were leaked by the Washington Post and VOX. Read the Trump administration’s draft proposal penalizing immigrants who accept almost any public benefit, Wash. Post, http://apps.washingtonpost.com/g/documents/world/read-the-trump-administrations-draft-proposal-penalizing-immigrants-who-accept-almost-any-public-benefit/2841/ (last visited Feb. 7, 2019); Dara Lind, Exclusive: Trump’s draft plan to punish legal immigrants for sending US-born kids to Head Start, Vox, https://www.vox.com/2018/2/8/16993172/trump-regulation-immigrants-benefits-public-charge (last updated Feb. 8, 2018). DHS officially announced the new proposed rule on September 22, 2018. Dept. of Homeland Sec., DHS Announces New Proposed Immigration Rule to Enforce Long-Standing Law that Promotes Self-Sufficiency and Protects American Taxpayers (Sept. 22, 2018), https://www.dhs.gov/news/2018/09/22/dhs-announces-new-proposed-immigration-rule-enforce-long-standing-law-promotes-self.

[18] Regulations.gov, Inadmissibility on Public Charge Grounds, https://www.regulations.gov/document?D=USCIS-2010-0012-0001 (last visited Feb. 25, 2019).

[19] The notice and comment process is described in 5 U.S.C. § 553(c).

[20] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,116–17.

[21] Id. at 51,122–23.

[22] Id.

[23] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 400, 110 Stat. 2105, 2260.

[24] Id.

[25] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,134–35.

[26] Em Puhl, Erin Quinn, & Sally Kinoshita, Immigrant Legal Resource Center, An Overview of Public Charge 2 (2018). Noncitizens who are exempt or eligible for waivers include refugees and asylees, T- and U-visa holders, special immigrant juveniles, VAWA self-petitioners, Temporary Protected Status applicants, and individuals applying to renew DACA. Id.

[27] Protecting Immigrant Families, Proposed Changes to Public Charge: Quick Analysis 7 (Sept. 28, 2018); Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,175.

[28] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,133 (“In other words, although a [noncitizen] may obtain benefits for which he or she is eligible, the receipt of those benefits may be considered for future public charge inadmissibility determination purposes.”).

[29] Protecting Immigrant Families, supra note 27, at 4.

[30] INA § 212(a)(4)(B).

[31] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,180.

[32] Id. at 51,198–201, 51,211–12 (listing the five subfactors with the “asset” factor under the “weight of factor” column in the “Totality of Circumstances Framework for Public Charge Determinations” table).

[33] Id. at 51,204.

[34] Id. at 51,178.

[35] See infra Part d.

[36] Id. at 51,174.

[37] Id. at 51,157.

[38] Id. at 51,158. Under the proposed rule, a program is a public benefit if (1) the cumulative value of monetizable benefits exceeds 15% of the Federal Poverty Guidelines for twelve consecutive months, or if (2) the noncitizen receives nonmonetizable benefits for more than twelve out of thirty-six months, in the aggregate. Id. Monetizable benefits under the proposed rule include Supplemental Security Income, Temporary Assistance for Needy Families, “general assistance” by any name, Supplemental Nutrition Assistance Program, Section 8 public housing, and Section 8 rental assistance. Id. at 51.159. Nonmonetizable benefits under the proposed rule include Medicaid (except for emergency medical conditions, benefits provided under the Individuals with Disabilities Education Act, and benefits for children of U.S. citizen parents), Medicare Part D Premium and Cost Sharing subsidies (for prescription medications), institutionalization, and Housing Act of 1937 subsidized housing. Id.

[39] Id. at 51,174–75.

[40] Id. at 51,198–201, 51,211–12.

[41] INA § 212(a)(4).

[42] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (proposed May 26, 1999); Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,677 (proposed May 26, 1999).

[43] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,158 (emphasis added).

[44] See id. at 51,163.

[45] Id. at 51,158.

[46] Id. at 51,163.

[47] Id. at 51,175.

[48] Id. at 51,164. HHS defines “welfare dependency” as receiving “more than half of [] total family income in one year” from public benefits, while the IRS defines a “qualifying dependent relative” as someone who receives “more than half of his or her total support” from another person. Id. HHS has said it is “unable to conceive of a situation where an individual . . . could support himself or his family solely on non-cash benefits so as to be primarily dependent on the government.” Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,686 (proposed May 26, 1999) (Letter to INS Commissioner Doris Meissner from HHS Deputy Secretary Kevin Thurm, dated March 25, 1999).

[49] Although beyond the scope of this article, this author believes the six statutory factors are antiquated, inherently discriminatory, and themselves deserving of repeal.

[50] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,174.

[51] Id. at 51,163.

[52] Jeanne Batalova, Michael Fix, & Mark Greenberg, Migration Policy Institute, Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefit Use 18 (2018). Public benefits here include cash assistance (including Temporary Assistance for Needy Families and general assistance), Supplemental Security Income, Supplemental Nutrition Assistance Program, or Medicaid and Children’s Health Insurance Program. Id.

[53] Id.

[54] Id. at 19.

[55] Id. at 22.

[56] Id. at 23.

[57] Id. at 14, 23.

[58] Henry J Kaiser Family Foundation, Proposed Changes to “Public Charge” Policies for Immigrants: Implications for Health Coverage 4 (Sept. 2018).

[59] Id.

[60] Id.

[61] Krista M. Perreira, Hirokazu Yoshikawa & Jonathan Oberlander, A New Threat to Immigrants’ Heath – The Public-Charge Rule, 10 New Eng. J. Med. 901, 903 (2018).

[62] “The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) provides Federal grants to States for supplemental foods, health care referrals, and nutrition education for low-income pregnant, breastfeeding, and non-breastfeeding postpartum women, and to infants and children up to age five who are found to be at nutritional risk.” U.S. Dept. Agric., Women, Infants, and Children (WIC), https://www.fns.usda.gov/wic/women-infants-and-children-wic (last updated Oct. 17, 2018).

[63] Helena Bottemiller Evich, Immigrants, Fearing Trump Crackdown, Drop Out of Nutrition Programs, Politico, Sept. 3, 2018, https://www.politico.com/story/2018/09/03/immigrants-nutrition-food-trump-crackdown-806292.

[64] Id.

[65] Perreira, supra note 61, at 902–03.