On October 10, 2018, the Department of Homeland Security (DHS) published a proposed rule related to public charge in the Federal Register. The proposed rule is not current law. The comment period for the proposed rule ends December 10, 2018. All interested individuals and organizations have until that date to submit comments, and can do so through a portal set up here. DHS must then review and consider all submitted comments before the rule becomes final. Even after publication in the Federal Register, legal challenges could delay implementation.
Here are a few important points regarding the public charge rule:
Currently, immigration officers decide public charge status by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Immigration officers base this decision on multiple factors specified in the INA. They may also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.
Under existing policy, immigration officers also consider whether an immigrant applying for a green card or entry into the United States has used cash aid (such as Temporary Assistance for Needy Families, TANF, or Supplemental Security Income, SSI) or long-term institutionalized care. Immigrants who have used this aid are more likely to be denied admission on public charge grounds. However, use of publicly-funded health care, nutrition, and housing programs are not considered negative factors for purposes of public charge because every U.S. administration prior to this one has recognized that these programs are vital to keeping our communities healthy and safe, and individuals productive.
Instead of assessing whether an applicant is likely to become primarily dependent on the government for support, the proposed changes seek to define a public charge as a person who merely uses any included government program. Past and current use of a broader array of benefits may therefore be considered.
The proposal expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. The proposed regulation changes policies that have been in place for decades that exempt an individual’s use of health care, nutrition and housing programs from consideration. Under the proposed rule, past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.
The proposal also considers that all use of cash aid, including not just TANF and SSI, but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.
Benefits received by family members of the immigrant would not be considered in the public charge determination. In addition, the proposal does not change long-standing policies that allow immigrants to access emergency medical care and disaster relief without public charge repercussions.
The proposal also establishes factors that will be considered “heavily weighted negative factors” and “heavily weighted positive factors.” The proposal establishes a confusing calculation standard to determine whether to count the use of a listed government benefit within the 36 months preceding the green card or visa application. Heavily weighted positive factors include having a household income of at least 250 percent of the federal poverty level. It is not clear how an officer should decide a case that has both heavily weighted negative and positive factors.
The proposal would allow immigration officers to consider English proficiency (a positive factor under the rule change), or lack of English proficiency (a negative factor). Past use of immigration fee waivers would also be a negative factor. The proposal would also require immigrants to attach a credit report along with a Declaration of Self-Sufficiency.
The proposed rule will not be retroactive if it becomes final. It will not punish past use of newly included programs, such as Medicaid, housing assistance and SNAP (Food Stamps) if they were used before the final rule goes into effect. Families will have a 60-day period after the final rule is published to dis-enroll from a program if they determine that it is necessary for their immigration case. The proposal does not provide any reason why immigrants should dis-enroll from Medicaid, SNAP, or subsidized housing programs before the final rule goes into effect.
Hawaiʻi Appleseed Center for Law & Economic Justice strongly opposes the Department of Homeland Security’s Notice of Proposed Rulemaking on inadmissibility on public charge grounds and has submitted comments urging DHS to withdraw the rule in its entirety.
Immigrants have an outsized place in Hawaiʻi’s history. In the 19th and early 20th centuries, they came from Japan, China, Puerto Rico and the Portuguese Azores to power the sugar and pineapple plantations that dominated the state’s economy until a generation ago. They are now more likely to come from the Philippines, South Korea or Vietnam, and they fill 46 percent of jobs in “tourism accommodation, arrangements and reservation services,” according to Hawaii Business.
Nearly one in five Hawaiʻi residents is an immigrant, more than one in seven is a native-born United States citizen with at least one immigrant parent, and one in five workers in Hawaiʻi is an immigrant, according to the American Immigration Council. Meanwhile, Wallet Hub ranks Hawaiʻi #2 in the nation for income generated by immigrant households and rates of homeownership and income from second-generation immigrant households.
The “chilling effect” of the above-referenced proposed rule would affect some 110,000 Hawaiʻi residents, according to calculations by the Fiscal Policy Institute (FPI). Not all will face a public charge determination, but all are likely to be nervous about applying for benefits, and some portion will in fact dis-enroll from benefit programs.
FPI’s estimate of the population who may experience a chilling effect includes anyone in a family that has received any food, health, or housing supports, and where at least one member of the family is a non-citizen. Based on past experience, there is good reason to believe that when there are changes around immigration and public benefits even people who are not directly targeted by this rule will be affected. Indeed, there is already evidence that significant numbers of immigrants are withdrawing from programs that their families need to make ends meet.
The effect is extreme: in Hawaiʻi, 35 percent of non-citizens have benefited from health care, food, housing, or cash supports. That should come as no surprise: so have 31 percent of U.S.-born Hawaiʻi residents. The fact is, a large number of Americans—whether or not they are immigrants—make use of federal food, health, and housing programs in any given year to get through hard times and to advance to a better life.
In Hawaiʻi, 40,000 children under 18 years old live in families with at least one non-citizen family member and that have received one of the benefits specified by the proposed rule. The large majority, 30,000 of these children, are United States citizens.
If federal benefits on this scale are withdrawn from Hawaiʻi’s economy, there would be predictable ripple effects to local businesses and workers. Withdrawal of SNAP funding means a reduction in spending in grocery stores and supermarkets. When families lose health insurance, hospitals and doctors lose income. And spending would be reduced in other areas as families struggle to pay food and health costs. FPI’s mid-level estimate shows a potential loss of $127 million in Hawaiʻi due to the ripple effects of this lost spending.
Helping immigrant families—especially those with children—do well is not only the right thing to do, it’s also a sound investment in our state and the country’s future. One of the clearest and most striking findings in a major study of the National Academy of Sciences is that the children of immigrants, once grown, become among the strongest contributors to the country’s economy.