Last week, the US Department of Homeland Security (DHS) finalized a regulation that bans so-called “public charges” from obtaining legal status in the United States. The finalized public charge rule, the Cato Institute argues, redefines the “historic meaning” of the term “public charge,” which will likely result in the denial of immigrant and nonimmigrant applications based on “a bureaucrat’s suspicions that they could use welfare.”
The rule applies to applicants for admission, individuals applying to adjust their status to lawful permanent resident from within the US, and others who hold a nonimmigrant visa and are seeking to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification, according to the USCIS website. In a nutshell: the rule changes the criteria for determining if a person is a “Public charge” to more closely examine immigrants’ financial resources, making it more difficult for immigrants who came to the country legally to stay as permanent residents if they’ve ever used, or are seen as “likely to use” public benefits such as food stamps, Section 8 housing vouchers, and Medicaid, among others.
In October 2018, DHS issued a “Notice of Proposed Rulemaking (NPRM),” which was published in the Federal Register for a sixty-day comment period on this topic. DHS received and considered over 266,000 public comments before issuing this final rule. According to DHS and USCIS, the final rule provides summaries and responses to all significant public comments. This new “public charge” rule, set to go into effect October 15, will not only make it harder for low-income immigrants to enter the country, but it could also mean that those who are already here “have to choose between forgoing services they need and being forced to leave.”
On August 12, 2019, the Cato Institute published An Explanation of the Public Charge Rule: Frequently Asked Questions, asserting that the final rule is “fundamentally flawed and will harm taxpayers, while separating Americans from family members abroad.” The article addresses questions about what the public charge statute says, who this rule applies to, how the statue is currently being interpreted, the types of benefits considered (the most important change here is that Medicaid and food stamps use can count against an applicant), and projected effects of the new rule, among others.
Media organizations and think tanks of varied political leanings, including Boundless Immigration and Conservative Review, have raised their own concerns over this “public charge” rule and its impact on immigrants and nonimmigrants. These concerns range from worries over extended and permanent family separations to suggestions that this is only a “modest step.”
One of the effects of the rule is that fewer legal immigrants will receive approvals, the Cato Institute argues. Indeed, the DHS admits as much, although it declines to provide an estimate of the magnitude of the effect. It is expected that denials for applicants on public charge grounds will skyrocket back to the highs of the late 1990s, when thirteen percent of applicants received final immigrant visa refusals on public charge grounds. Additionally, increased denials of applications for legal status will lower legal immigration to the United States, likely by tens of thousands. DHS acknowledges this fact as well, but once again fails to estimate the number of applicants who will be impacted. And finally, there is a concern about US citizens who will be separated from their spouses and children. Spouses and minor children of US citizens constitute about 40 percent of all immigrants subject to the public charge rule. The rule could ban about half of the spouses of US citizens receiving permanent residence, the Cato Institute says.
On its website, USCIS insists that the final rule supports the basic principle of US immigration law: self-sufficiency. “Since the 1800s, Congress has put into statute that individuals are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that foreign nationals generally must be self-sufficient.” Other media outlets have noted the regulation goes against the founding values of the US, best represented by the inscription on the base of the Statue of Liberty which reads, “Give me your tired, your poor, your huddled masses yearning to breathe free.”
UPDATE SEPTEMBER 11, 2019: Judge George Daniels of the US District Court in Manhattan issued a preliminary nationwide injunction prohibiting the Trump administration from enforcing the so-called "public charge" rule before it was to take effect next week. Daniels criticized the government for not explaining why they were changing the definition of a "public charge" or why it was needed. "The Rule is simply a new agency policy of exclusion in search of a justification," he wrote in his ruling. "It is repugnant to the American dream of the opportunity for prosperity and success through hard work and upwards mobility." Ken Cucinelli, the acting director of US Citizenship and Immigration Services (USCIS), said in a statement: "An objective judiciary will see that this rule lies squarely within long-held existing law.” Javier Valdés, the co-executive director of Make the Road New York, a pro-immigrant group and one of the plaintiffs in the New York lawsuit, celebrated the decision. "Today's decision marks a major defeat for the Trump administration's unlawful tactic to impose a racist wealth test on our immigration system."