The Department of Homeland Security (DHS) finalized a regulation this week that bans “public charges” from receiving legal status in the United States. The public charge rule redefines the historic meaning of this term, which will result in far more immigrants not receiving status in the United States based on a bureaucrat’s suspicions that they could use welfare. The rule is fundamentally flawed and will harm taxpayers, while separating Americans from family members abroad.

What does the public charge statute say?

Section 212(a)(4)(A) of the Immigration and Nationality Act (8 U.S.C. 1182) states, “Any alien who, in the opinion of the consular [or immigration] officer…. is likely at any time to become a public charge is inadmissible.” Someone who is inadmissible cannot receive a visa to travel to the country, be granted admission to it, or receive status in it. This law—which has existed largely in its current form since 1891—does not define “public charge.” Rather, it requires officers to consider at a minimum the person’s age, health, family status, finances, and education or skills.

In addition, the law mandates that family- and employer-sponsored immigrants receive “affidavits of support” from their sponsors in the United States. Affidavits of support are legally enforceable contracts between the U.S. government and the sponsor in which the sponsor agrees to support (and demonstrates support) for the applicant at an income not less than 125 percent of the federal poverty line (in 2019, $32,176 for a family of four) until the immigrant naturalizes to become a U.S. citizen or if the alien has worked 10 years. If the immigrant does receive welfare, the government can sue the sponsor for breach of contract (for at least 10 years) or otherwise seek to collect.

Does the rule or statute ban immigrants from using welfare?

No. The rule (and statute) bans immigrants from receiving legal status in the United States based on a bureaucrat’s projection that they might become dependent on the government in the future. This may discourage some immigrants from applying for welfare indirectly, but it does not prevent them from doing so. Even if an immigrant has never used welfare at any point in their life, a bureaucrat could still determine that they are likely to become dependent on the government at some time in their life in the future.

Who does the public charge statute apply to?

The public charge statute primarily applies to noncitizens applying for many types of visas or status in the United States. While technically this includes most types of tourists, guest workers, students, and other temporary visitors, these categories will likely not receive the scrutiny of new permanent residents, as permanent residence grants access to far more benefits than temporary status. In 2017, family-sponsored immigrants made up about 80 percent of the new permanent residents who the public charge statute applies to. They are exclusively parents, spouses, and children of U.S. citizens and legal permanent residents (and their spouses and minor children). The law also covers employer-sponsored immigrants and their spouses and children (15 percent), as well as diversity lottery winners (5 percent). Refugees, asylees, and other immigrants admitted for humanitarian reasons are exempt.

How is the statute currently being interpreted?

In order to clarify the meaning of public charge in the wake of welfare reform, the now-defunct Immigration and Naturalization Service (INS) published a proposed rule in 1999 (and field guidance that immediately implemented it) defining a public charge as someone 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.” Cash benefits include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and any state or local equivalents. Non-cash benefits—such as food stamps or Medicaid—are not be considered. Even cash benefits receipt would not automatically result in a public charge denial.

How have prior administration enforced the statute?

In the early 1990s, the State Department had adopted a practice of denying a high percentage of immigrant visa applicants on public charge grounds. In 1998, 18 percent of all immigrant visa applicants received an initial public charge denial (13 percent received a final denial after having a chance to overcome it). But the INS definition in 1999 caused the rate to decline to 1 percent or less (from 2002, it reversed many denials in the 1999 to 2001 period). Last year, the State Department updated its guidance requiring that consular officers begin to consider whether receipt of non-cash benefits might predict future cash benefits use. As a result, the initial denial rate spiked to 3 percent of all applicants for the first time in a decade.

What will the Trump administration’s public charge rule change?

1. The definition of public charge will change to use of any means-tested public benefits for more than 12 months in any 36-month period. This definition replaces the “primarily dependent” standard (51 percent of someone’s income) in favor of an absolute amount, disregarding the degree of dependency.
2. The type of benefits considered will now include the likelihood to use both cash and non-cash benefits—federal, state, or local. The most important change here is that Medicaid and food stamps use will count against an applicant. These programs are by far the largest federal means-tested benefits programs. By including them, it increases the likelihood of becoming a public charge nearly tenfold.
3. A new process of estimating someone’s likelihood of being a public charge will be created. The law and current guidance only require that adjudicators consider five factors— age, health, family status, finances, and education or skills. The public charge rule will define these factors more granularly (e.g., English speaking ability counts as a skill) and weight them positively or negatively. The rule would also create heavily weighted negative factors that would generally trigger a denial: 1) no reasonable prospect of future employment, 2) public benefits receipt in the prior 3‑year period, and 3) no health insurance and a medical need. The only heavily weighted positive factor to counteract these is an income of 250 percent of the poverty line.

Why has the public charge rule been criticized?

1. Immigrants are not “likely” to use public benefits. According to DHS’s analysis in the rule itself, “The data shows that the rate of receipt for either cash or non-cash public benefits was approximately 20 percent among the native-born and foreign-born, including noncitizens” in 2013. In other words, 80 percent of immigrants are not receiving public benefits. No matter how DHS slices the data, it could not find any population of immigrants with a propensity greater than 50 percent. DHS defines “likely” in the final rule to mean more than 50% probability to use benefits.
2. The public charge rule ignores immigrant contributions. The rule would exclude people based on a projection that they are likely to use benefits in any future 12 months in any 36-month period. This means that people who make 200 percent of the poverty line could still be deemed a “public charge”/ward of the state, even though they are 95 percent self-sufficient. According to DHS’s analysis, only 14 percent of benefits recipients made an income of less than 125 percent of the poverty line, meaning that this rule will target thousands of applicants who will largely support themselves and contribute economically.
3. The process to identify someone’s likelihood to use benefits is skewed to create denials. DHS’s proposed weighting scheme is scientifically invalid. It proposes a check mark system of positive and negative factors and then will compare the results. Yet it is empirically inaccurate to say that someone who doesn’t speak English and who lacks a high school degree is twice as likely to use benefits as someone who just doesn’t speak English. In fact, English language ability adds nothing at all once education and income is known. Finally, because the rule doesn’t define what it means by “likely” to become a public charge with any statistical exactness (or at all), every adjudicator will determine their own thresholds, resulting in denials when approvals would be appropriate.

What effects will the rule have?

1. Fewer legal immigrants will receive approvals. DHS admits that the rule will have this effect—indeed, it is the purpose of the rule—but it declines to estimate it. The most modest reading of the rule implies that denials for public charge grounds will skyrocket back to the highs of the late 1990s when 13 percent of applicants received final immigrant visa refusals for public charge grounds. In 2018, this would have amounted to about 115,000 legal immigrants.
2. Fewer legal immigrants will come legally to the United States. Banning some immigrants in certain backlogged categories will not necessarily reduce legal immigration because other immigrants will just take their slots. But 58 percent of the immigrants that this rule will affect—spouses, parents, and minor children of adult U.S. citizens—are in categories that have no cap. Greater denials will lower legal immigration to the United States, likely by tens of thousands. DHS acknowledges this fact as well, but fails to estimate it.
3. U.S. citizens will be separated from their spouses and children. Nearly 370,000 immigrants who received permanent residence in the United States in 2017 were spouses or minor children of U.S. citizens. They constitute about 40 percent of all immigrants subject to the public charge rule. When the rule is implemented, they will be at risk of being denied and separated from their U.S. citizen spouses and children. The rule could ban about half of the spouses of U.S. citizens receiving permanent residence, according to an analysis of data on the employment status and incomes of spouses of U.S. citizens by the organization Boundless.