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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.
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.
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:
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:
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.
Under the DHS proposal, some public benefits would not be counted against immigrants in the public charge test. These include:
Some categories of immigrants are not subject to the public charge test.
In addition, individuals are not subject to a public charge test when they apply for US citizenship.
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.