Newly proposed immigration “public charge” rule would harm immigrant workers and US businesses

By Amanda Bergson-Shilcock, October 12, 2018

This week, the US Department of Homeland Security proposed a rule that would make it significantly harder for many immigrants who are here legally to stay in the country. Under this new “public charge” rule, immigration officials could deny green cards or visa changes for individuals who get any of a number of public benefits or are deemed likely to receive benefits in the future.

NSC opposes this rule, which would hurt our nation’s efforts to build a skilled workforce. With record low unemployment, businesses are struggling to fill open positions, particularly for middle-skill jobs. Immigrants, who account for one in six U.S. workers, are essential to closing this skill gap. But the proposed rule would undercut immigrants’ ability to access training for middle-skill jobs.

Although the new rule does not include education and workforce programs in the list of public benefits, it’s expected to have a chilling effect as immigrants withdraw from a wide array of publicly funded programs, from community college to adult education, out of confusion and fear. In addition, immigrants in job training programs who rely on key public benefits like SNAP or Medicaid will have to choose between dropping out of benefits programs that provide crucially needed support, or staying in and potentially jeopardizing their immigration status. The new rule would also create challenges for community colleges and other adult education and workforce development providers that would have to quickly build capacity to accurately advise immigrants about this complicated new rule.

To learn more about the proposed rule, read NSC’s analysis below and register for our upcoming October 24 webinar. NSC will also provide template comments next week that organizations may use as a basis for submitting their own comments by December 10, 2018.

NSC’s analysis of this complex, 450-page proposal focuses specifically on issues relevant to skills advocates. For broader analysis, we recommend materials from the National Immigration Law Center and its partners in the Protecting Immigrant Families campaign.

What is the public charge?

Public charge is the standard by which individuals can be denied permanent resident (green card) status or otherwise forbidden from extending or changing their visas if they are determined to be dependent on the government for support, or likely to be dependent in the future. The public charge is a totality of circumstances test, in which federal officials weigh the positive and negative factors in an individual immigrant’s application and determine whether they are at risk of becoming a public charge. The current public charge policy has been in place for decades, and was most recently affirmed in 1999 policy guidance from the federal government.

Relatively few immigrants are currently eligible for cash assistance or related public benefits, in part due to the 1996 welfare-reform law. But the new proposal would also require federal officials to predict whether the immigrant might receive benefits in the future. Given that immigrants who are granted green cards are then eligible to apply for US citizenship, and that US citizens are eligible for a wide range of public benefits, the rule would have sweeping implications. Ultimately, the proposed changes would affect millions of legally authorized immigrants and prospective immigrants.

Understanding the major changes proposed by the administration

DHS is proposing to make significant changes to the existing public charge policy. Among the key changes:

1. More people would be subject to the public charge test. Right now, individuals are subject to the public charge determination when applying for lawful permanent resident (“green card”) status, or when existing green card holders are being readmitted to the US after more than six months outside the country. DHS is now proposing that people would be subject to the public charge test in those cases, and that individuals face a similar test when they apply for or extend any one of a long list of nonimmigrant visas. This also means that the same person might be subject to the public charge test on several occasions, as it is very common for individuals to extend or change their status repeatedly. For example, someone might arrive in the US on a student visa, then later change to an employment visa, and eventually become a permanent resident.

2. More kinds of benefits would be counted as negative factors in the public charge test. Under current policy, only two types of public benefits usage count against immigrants: receiving cash assistance (such as Temporary Assistance for Needy Families or Supplemental Security Insurance), or receiving long-term institutional care at public expense. DHS is proposing that this list be significantly expanded to include:

    • Medicaid (with limited exceptions for emergency Medicaid and certain school-based disability services for children)
    • Supplemental Nutrition Assistance Program (SNAP)
    • Medicare Part D financial assistance
    • Subsidized public housing (federal public housing, Section 8 housing vouchers and Section 8 project-based rental assistance)DHS is also asking for public comments about whether Children’s Health Insurance Program (CHIP) benefits should be counted as a negative factor. If included, this would consider whether the immigrant applicant had received CHIP him- or herself, not whether their children had done so.

3. The process of calculating public benefits usage would become much more complicated. DHS’s proposal divides the above list into monetizable and non-monetizable benefits – that is, those to which DHS can easily assign a monetary value and those to which it cannot. For any individual immigrant, receiving monetizable benefits that total more than 15 percent of the Federal Poverty Guidelines for a household of one (about $1800) would count as a negative factor in the public charge totality of circumstances test. (This is a substantial change from current guidance, which examines whether a person is receiving cash benefits that form 51 percent or more of their income.)

Similarly, receiving non-monetizable benefits that last for more than 12 out of the preceding 36 months would also count as a negative factor. Additional calculations would apply if an individual was receiving both monetizable and non-monetizable benefits or more than one non-monetizable benefit in a given month.

(Benefits received by family members of the immigrant applicant would not count. However, the size of an immigrant’s household – including people who may not be physically living with but are financially dependent on the immigrant – would still influence many of the calculations for the public charge test.)

4. Factors to be considered in the totality of circumstances assessment would be further codified. While the general list of factors to be considered in the totality of circumstances test is already codified in statute, DHS is proposing to flesh out these factors with substantially more detailed considerations, including a brand-new proposal to consider an immigrant’s credit history and credit score. The proposed considerations would include but not be limited to:

    • Age (between 18 and 61 would be a positive factor; below age 18 or age 62 and over would be a negative factor)
    • Health (a negative factor would be having a health condition that is likely to interfere with the person’s ability to care for him- or herself, to attend school or work or that is likely to require extensive medical treatment or institutionalization in the future)
    • Family status (i.e., household size)
    • Assets, resources, and financial status (having income below 125 percent of Federal Poverty Guidelines is a negative factor; income above 250 percent of FPG is a heavily weighted positive factor; other considerations include the immigrant applicant’s credit history and credit score; whether they have applied for or received a public benefit; received a fee waiver when applying for an immigration document, and more)
    • Education and skills (considerations include recent history of employment; credential attainment at HS diploma or higher level, occupational licensure, English skills, other language skills)
    • Affidavit of support from a person who is sponsoring the immigrant (if required to be filed)

5. The ripple effect of the new rules would be felt far beyond the immigrants who are personally subject to the public charge test. For example, an individual already living in the US who is applying for a green card may have a US citizen spouse; if federal officials deny the green card application because the applicant is at risk of becoming a public charge, the couple may be faced with a difficult decision about whether they can continue their lives together in the United States, or must move abroad or be separated.

6. A new “public charge bond” process would be implemented to allow individuals to override their negative public charge determination. DHS is proposing a complex new process to allow individuals who are at risk of becoming a public charge to purchase a bond that will enable them to be admitted to the United States. The minimum cost of the bond would be $10,000 plus fees; the intent would be to provide a mechanism for the US government to be reimbursed if the immigrant goes on to use public benefits in the future. Much remains unknown about the bond process, but its existence would add an additional layer of potential financial pressure for immigrant applicants.

Benefits that would NOT count against immigrants

Under the DHS proposal, some public benefits would not be counted against immigrants in the public charge test. These include:

  • Social Security retirement benefits
  • General Medicare benefits (as opposed to the Part D subsidies described above)
  • Worker’s compensation
  • Non-cash benefits that provide education, child development, and employment and job training
  • Education-related benefits
  • Any exclusively local, state, or tribal public benefit that is not cash assistance for income maintenance, institutionalization for long-term care at government expense, or another public benefit program not specifically listed in the regulation
  • Benefits used by persons other than the applicant, including benefits used by their children

Individuals exempt from the public charge test

Some categories of immigrants are not subject to the public charge test.

  • Active duty and reserve US military service members and their families
  • Refugees, people who have been granted asylum, individuals receiving U visas for crime victims or T visas for trafficking victims
  • Select other categories of vulnerable individuals
  • Family members of the immigrant applicant (unless and until they make their own applications for green-card status, visa extensions, or changes of status)

In addition, individuals are not subject to a public charge test when they apply for US citizenship.

Implications for skills advocates

  1. The biggest concern: A chilling effect far beyond the scope of the rule itself. The new proposal is expected to have a significant chilling effect on immigrant participation in publicly funded adult education and workforce programs. Even though the public charge proposal does not apply to some categories of immigrants (such as refugees), and even though the proposal does not include education and workforce programs, people are nevertheless expected to withdraw from a wide array of publicly programs out of fear and confusion. There is strong evidence that this chilling effect is already occurring. Given the complexity of the new proposal, skills advocates may find it difficult to give a blanket reassurance to worried adult learners and jobseekers, and may see dips in enrollment, participation, and completion.
  2. New rule will create difficult choices for adult learners and jobseekers. While education and training programs themselves are not included in the list of public benefits that would count against immigrant applicants, many participants in training programs depend on other benefits that would be counted against them — such as SNAP or Medicaid — to be able to persist and complete their education. As a result, adult learners and jobseekers will be faced with the difficult decision of whether to dis-enroll from health and nutrition programs and jeopardize their ability to complete their training, or to stay enrolled in the programs and potentially jeopardize their immigration status.
  3. End of “bright line” standard will greatly increase demands on service providers. The new proposal would remove a clear, bright-line standard for when an immigrant may be considered a public charge, and replace it with a highly complex, multi-faceted and subjective test. This increased complexity will make it difficult for education and workforce providers to provide straightforward guidance to frontline staff about how to advise participants on whether using a public benefit may jeopardize their immigration status. Higher education institutions, nonprofit organizations, and state and local agencies will also face the challenge of updating enrollment forms, software programs, and other documentation that currently provides blanket reassurance to participants that enrolling in publicly funded programs will not jeopardize their immigration status, and substituting a much more nuanced and complicated disclaimer.
  4. Increased confusion about braided funding for workforce and education programs. The public charge test pertains to benefits received by individuals. Funds that are received by institutions – such as community colleges that blend TANF or SNAP dollars with other funds to support an educational program – would not be counted against immigrant participants in those programs. However, the uncertainty created by the new regulations may affect education and workforce program administrators and managers as they seek to clarify the implications of the proposal for their institutions and participants.

National Skills Coalition is extremely concerned about the ripple effects of these proposed changes on education and workforce goals. We urge skills advocates to submit public comments to DHS in advance of the December 10 deadline. Template comments from NSC will be available early next week.