WASHINGTON — Legal immigrants who use public benefits - such as Medicaid, food stamps or housing assistance - could have a tougher time obtaining a green card under a policy change announced Monday that is at the center of the Trump administration's effort to reduce immigration levels.
The new criteria for "Inadmissibility on Public Charge Grounds," due to take effect Oct. 15, will set new standards for applicants seeking legal permanent residency in the United States, criteria that will skew the process in favor of the highly-skilled, high-income immigrants President Donald Trump covets. Since its first days, the Trump administration has been seeking ways to weed out immigrants the president sees as undesirable, including those who might draw on taxpayer-funded benefits.
Wealth, education, age and English-language skills will take on greater importance in the process of obtaining a green card, which is the main hurdle in the path to full U.S. citizenship. U.S. immigration law has long-standing provisions to screen out foreigners who might be a burden on society, but the rule change amounts to an expansion of the government's definition of "public charge" - and who is deemed likely to become one.
Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, said at a White House briefing that his agency is seeking to bring precision to an existing tenet of law that has lacked a clear definition.
"Through the public charge rule, President Trump's administration is reinforcing the ideals of self-sufficiency and personal responsibility, ensuring that immigrants are able to support themselves and become successful here in America," said Cuccinelli, evoking his own family's Italian ancestry to characterize previous generations of immigrants as bootstrap-pullers. "This administration is promoting our shared history and encouraging the core values needed to make the American dream a reality."
The move is part of the Trump administration's systematic effort to add new bureaucratic obstacles to the U.S. immigration system at the same time the president wants to put physical barriers along the Mexico border. The administration has slashed the number of refugees admitted to the United States, tightened access to the asylum system and expanded the power of the government to detain and deport immigrants who lack legal status.
Analysts say the public charge change could dramatically reduce family-based legal immigration to the United States, particularly from Latin America and Africa, where incomes are generally lower than the rest of the world. It also could lead to an increase in deportations as those present with some form of provisional or temporary immigration status in the United States are denied legal residency.
A USCIS official said the change will have little to no effect on those who already have permanent resident status who are seeking to become naturalized U.S. citizens. "Naturalization applicants are not subject to a new admissibility determination and therefore are not generally subject to public charge determinations," said the official, who spoke on the condition of anonymity because the official was not authorized to speak publicly.
But advocates for immigrants say the new rule could narrow the pool of people who are eligible for green cards, which are necessary to get on the path to U.S. citizenship, effectively blocking immigrants who live in poverty from having a chance at naturalization. Naturalization applications spiked during the 2016 presidential campaign, which some called the "Trump effect" because many immigrants were eager to vote.
Cuccinelli said the change would benefit U.S. taxpayers by selecting better candidates for U.S. citizenship, by ensuring "that our immigration system is bringing people to join us as American citizens, as legal permanent residents first, who can stand on their own two feet, who will not be reliant on the welfare system, especially in the age of the modern welfare state which is so expansive, and expensive, frankly."
The rule circumvents earlier, failed efforts by the administration to build support in Congress for a similar "merit-based" overhaul to the immigrant visa system, and it fulfills a longtime goal of senior Trump adviser Stephen Miller and other immigration hawks who have sought new tools to reduce immigration levels.
USCIS approved more than 638,000 green card applicants in 2018, a five-year high. The U.S. State Department issued an additional 533,000 immigration visas last year to applicants abroad, mostly to the family members of U.S. citizens and legal residents.
The policy change has been under development for more than a year, and drew a record number of public comments - more than 200,000 - during that phase of the federal rulemaking process. Miller grew impatient and blamed former USCIS director Francis Cissna for not moving faster to implement it. The White House replaced Cissna with Cuccinelli in June.
The 837-page rule, whose length Cuccinelli compared to "War and Peace," focuses on the obscure definition of what it means to be a public charge.
If U.S. officials determine an immigrant is likely to become a public charge, that already is grounds for denial of a green card. The U.S. State Department has its own screening measures to determine eligibility for those seeking U.S. visas.
Critics of the administration blasted the change as a backdoor effort to slash immigration levels.
"With one regulation, they are attempting to scratch two itches: One is penalizing immigrants for using public benefits that they are legally entitled to, and the other is cutting legal immigration in half," said Doug Rand, a former Obama administration official and an immigration consultant. "And the way you cut legal immigration in half is by kicking the doors out from the definition of 'likely to become a public charge.' "
USCIS officials said the policy will not be applied retroactively to those who have used benefits in the past; it will apply only those who receive taxpayer-funded benefits after the rule takes effect in mid-October.
The rule also will not apply to the family members of U.S. citizens who receive benefits, USCIS officials said, so a parent of a U.S. citizen would not be deemed ineligible on the basis of the child's receipt of housing assistance or subsidized food. The policy would not apply to humanitarian programs for refugees and asylum recipients.
Other types of public benefits will be excluded from consideration, USCIS officials said, including student loans, school-based programs like Head Start and Medicaid for minors and pregnant women.
USCIS officials said the revised standards would apply to nearly 400,000 people seeking to adjust their immigration status per year, but the agency did not have an estimate of the total number of immigrants who would potentially be denied residency and other benefits.
Advocates for immigrant rights said Monday that hundreds of thousands of immigrants are likely to forgo or withdraw from a federal assistance program they are legally entitled to receive amid fears that their families could be separated because some members would be deemed ineligible to enter or remain in the country.
"There is a sense, particularly under this administration, that the rules are always changing and the rules are stacked against immigrants," said Sharon Parrott, senior vice president for federal policy and program development at the Center on Budget and Policy Priorities. "The message coming out of the federal government is you can be in immigration jeopardy if you receive benefits that Congress says you're eligible for."
For decades, immigrants have been subject to a more narrow public charge test. Officials determined whether an immigrant is relying on or likely to rely on government assistance for more than half their cash income by looking at three main sets of benefits - TANF (or traditional cash welfare), Supplemental Security Income and a Medicaid program that pays for long-term care.
The Trump administration is broadening the benefits used - or likely to be used in the future - to determine whether someone is likely to become a public charge by also including SNAP (or food stamps), federal housing assistance and the use of Medicaid beyond long-term care for adults who are not pregnant.
"They are extending the definition of 'public charge' to include programs that people often receive to supplement their low earnings," Parrott said. "It is based on a vision of immigrants not being contributors to the country. It fails to recognize that immigrants today, just like in the past, do important but low-paid jobs, and that they and their children experience upward mobility."
Mark Krikorian, executive director of the Center for Immigration Studies, a Washington think tank that seeks to reduce immigration levels, praised the new rule for restricting the potential immigrant pool to the most highly educated, who will thrive in a "modern, knowledge-based economy."
"There are hundreds of millions of people who want to move to the United States, and this rule ensures that we allow in only those who will be able to pay their own bills," Krikorian said.
An analysis by New American Economy, a bipartisan national business coalition founded by former New York mayor Michael Bloomberg, shows that more than 1.4 million people likely to be affected by the new rule have some college education, including those in the education, health services and business service industries.
The New York mayor's office and immigration analysts say the mere anticipation of the provision already has prompted a large number of legal immigrants to abstain from seeking federal financial assistance because they are afraid it will hinder their ability to become citizens or remain in the United States.
In New York City, where nearly 20 percent of the population relies on SNAP benefits to help feed their families, officials have found that twice as many "eligible noncitizen New Yorkers are either withdrawing from or not enrolling in SNAP" than eligible U.S. citizens, particularly in the past two years, according to an analysis by the New York City Department of Social Services and the Mayor's Office of Immigrant Affairs.
"While we cannot definitively prove that the public charge proposal has caused these changes to SNAP participation, we identify an important correlation that, reinforced by anecdotal and survey evidence, suggests a chilling effect: eligible immigrant families are avoiding SNAP out of fear of potential immigration consequences," city officials wrote in the June analysis.
The new rule stands to have its most dramatic impact on the numbers and demographics of those permitted to immigrate to the United States through a vast array of new criteria to assess whether an individual is "likely" to someday become a public charge.
Factors that can count against a green card applicant include having "a medical condition" that will interfere with work or school; not having enough money to cover "any reasonably foreseeable medical costs" related to such a medical condition; having "financial liabilities;" having been approved to receive a public benefit, even if the individual has not actually received the benefit; having a low credit score; the absence of private health insurance; the absence of a college degree; not having the English language skills "sufficient to enter the job market;" or having a sponsor who is "unlikely" to provide financial support.
Experts say the rule essentially turns each applicant into a balance sheet, with items in the red and the black. But they say there is no points system or clear understanding about who could be rejected or why.
"The administration has given itself very broad discretion to deny admissions based upon a wide range of factors," said Mark Greenberg, a senior fellow at the nonpartisan Migration Policy Institute. "It's not possible to tell who's going to be approved and denied under this standard. But it is possible to say who will have negative factors that will be held against them and treat that as those who will be at risk of denial."
MPI analyzed census data to examine who might be at risk of denial because they were unemployed, dropped out of high school, not fluent in English, and other factors.
About 69 percent of recent green-card holders had at least one negative factor and 43 percent had two negative factors, Greenberg said, with broad disparities by country or region of origin.
Twenty-seven percent of recent green-card holders from Europe, Canada and Oceania had two or more negative factors, he said, compared with 60 percent of people from Mexico and Central America, and 41 percent of Asians.
DHS said the rule "provides a clear framework" for examining a person's likelihood of becoming a public charge, but it acknowledged that making a final decision will be "complex."
"In making this determination, there is no bright-line test that USCIS officers will administer," the rule said, adding that USCIS will evaluate all of the "facts, circumstances, and evidence to determine whether factors in the analysis are positive or negative."
This article was written by Maria Sacchetti, Nick Miroff, Abigail Hauslohner and Tracy Jan, reporters for The Washington Post.