If you’ve been following news reports about federal immigration policy, you’ve been busy – there is a lot going on.
Some changes to immigration rules went into effect with little fanfare (see NILC’s summary of the updates to the State Department’s Foreign Affairs Manual with instructions for US embassies deciding whether to grant immigrant and nonimmigrant visas) and some changes are in effect even while under scrutiny by the Supreme Court (see the ACLU’s timeline of the Muslim ban), while some are still in the works (see the Washington Post’s story outlining a leaked draft of a proposed rule on public charge). In March I wrote about the impact of this policy quagmire – children in immigrant families and communities of color are afraid, and living with fear for a prolonged period is likely to result in toxic stress that inhibits healthy brain development.
But as we prepare for a possible regulation on immigration rules, I’d like to dig into what the term “public charge” means. Readers of SayAhhh! already steeped in immigration policy are familiar with the term, how it’s been applied in the past, and how it would change under the leaked draft. But for many of us, the term “public charge” is less familiar.
Public charge is used in immigration law to refer to a person who is likely to become dependent on the government for financial and material support. An immigrant who is deemed likely to become a public charge may be denied admission to the US or unable to adjust their status to become a lawful permanent resident (LPR). A public charge assessment is made when a person applies to enter the US or to adjust their status to obtain a “green card” to be an LPR.
The history of public charge dates back over 100 years. It was memorialized in the Immigration Act of 1882 and updated in the Immigration and Nationality Act of 1952. Further changes were made at the legislative and regulatory levels in the 1980s and 1990s, but by and large the test has remained the same.
Public charge determinations are based on a totality of the circumstances test. Various factors such as the applicant’s age, health, family status, financial status, education and skills, and affidavits of support are all taken into consideration when deciding whether the applicant is likely to be primarily dependent on the government. The applicant’s use of two types of public benefits may also be considered – cash assistance (like SSI and TANF) and institutional long-term care (like Medicaid coverage of nursing home care). None of these factors alone are dispositive, but rather all of the factors are considered together. And the test is forward-looking, meaning that the decision cannot be based only on what happened in the past.
Individuals seeking a visa to come to the US (including immigrant and nonimmigrant visas) apply at US embassies and consulates abroad. Agents reviewing the applications rely on the Foreign Affairs Manual (FAM) issued by the State Department to make the public charge determination. In January, the administration made two major changes to the FAM – (1) broadening the types of public benefits that may be considered and (2) expanding the analysis to include the applicant’s family members. While it’s too early to tell how these changes are being implemented at each office, they foreshadow changes to come for immigrants already lawfully residing in the US.
Following rumors and leaks of an executive order last year on public charge, two drafts of a notice of proposed rulemaking (NPRM) were leaked to the press earlier this year. The first version was made public in February and a second version was made public in March. Though there are some differences between the two – and the official version has not been released yet – the theme is clear and consistent with the changes to the FAM. Under both versions, a much broader array of services would be considered when making a public charge determination for lawfully residing immigrants seeking a green card. For example, agents could consider health benefits (Medicaid, CHIP, and tax credits under the ACA), nutrition programs (like SNAP and WIC), housing assistance, energy assistance, and the Earned Income Tax Credit (EITC). Agents would also be able to consider benefits received by dependents (not just the applicant), including citizen children.
These sweeping changes would put immigrant parents in a terrible bind. Lawfully residing parents that would like a green card in order to stay in the US permanently would be forced to choose between allowing their citizen children to avail themselves of the public benefits they need (and to which they are entitled) and someday getting a green card to keep their family together in the US over the long term. For some families, the benefits for their children are too critical to pass up – imagine a child with chronic asthma that needs medication to breathe properly – but jeopardizing their ability to stay together despite their mixed immigration statuses is too much to ask for in exchange.
For the time being, the rules for lawfully residing immigrants already in the US have not changed. But no doubt there is a chilling effect already. If you or a family you know are struggling with how to handle these potential changes, I’d encourage you to check out NILC’s fact sheet that outlines with greater specificity who is subject to a public charge test and whether possible changes down the road should factor into decisions families are making today.