FederalImmigration & BorderIssuesTrump Administration Issues Rule Affecting Green Card and Residence Eligibility for Legal Immigrants

Announced by Ken Cuccinelli, acting director of the United States Citizenship and Immigration Services (USCIS), at a White House press briefing, the new rule was first proposed in October 2018 and is scheduled to take effect in mid-October of this year nearly 60 days after its official release on Wednesday.

The rule will mostly affect immigrants already residing in the U.S. who depend on taxpayer-funded welfare programs.

Regarding the new rule, Cuccinelli described the policy as a reinforcement of “the ideals of self-sufficiency and personal responsibility” by “ensuring that immigrants are able to support themselves and become successful here in America.” 

First defined in the Immigration Act of 1882, “public charge” was used to classify an individual who was “unable to take care of himself or herself without becoming a “public charge” and has become a fundamental component of immigration legislation since its inception. 

The term gained attention in 1996 when then-President Bill Clinton enacted a welfare reform law known as the Personal Responsibility and Work Opportunity Reconciliation Act,  providing for green card holders to be deported within 5 years of their arrival if they are deemed a “public charge.”

In addition, this act barred green card holders, also known as legal permanent residents (LPRs), from using “means-tested public benefit programs,” such as the Supplemental Nutrition Assistance Program (aka food stamps), Medicaid/Children’s Health Insurance Program (CHIP), Social Security, and Temporary Assistance for Needy Families (TANF), for five years after their arrival in the United States.

However, previous administrations restricted their interpretation of public charge meaning that few immigrants have actually been deported as a result of this 1996 statute. Specifically, the Obama administration narrowed the public charge guidelines to immigrants in need of long-term care and those dependent on Supplemental Security Income (SSI) payments.

The Trump administration’s new rule effectively restores some of the guidelines outlined in the welfare reform law by reinterpreting the meaning of “public charge” and “means-tested public benefits” to include a greater array of federal programs. 

Once the rule is implemented, the definition of “public charge” in the Immigration and Nationality Act will include those who receive food stamps, Medicaid, and housing subsidies.

Additionally, under the proposed rule, the Department of Homeland Security has the authority to deny green cards, visas, and entry to the United States if immigrants are deemed “more likely than not” to become “public charges” and require government assistance for more than 12 months within a 36-month period. 

The new policy targets legal immigrants by requiring individuals seeking green cards and legal status to prove they will not become public charges by weighing factors such as education, income, and health. 

Individuals will now be required to submit federal tax returns and employment histories as part of the process.

According to the Migration Policy Institute, the Trump administration’s new rule could keep individuals from becoming permanent residents and lead to a decline in federal program usage, as happened in 1996 with the enactment of the welfare reform bill. 

Even when eligible, immigrants may be less likely to apply for federal welfare programs for fear that the government will use it as grounds to deny them legal permanent residence. Some critics believe this could lead to poorer health and poverty among low-income individuals. 

Critics, such as the National Immigration Law Center, also argue that the new rule could make it harder for individuals with family members legally residing in the U.S. to join their families if the individuals in question are more likely to be deemed as “public charges” under the new definition.

However, exceptions to the proposed rule do exist. 

For example, the new policy does not apply to immigrants who currently possess green-cards and therefore are already classified as permanent residents. 

Other exempted groups also include refugees, asylees, and military veterans. 

Medicaid recipients under the age of 21 as well as pregnant women up to 60 days post-pregnancy will also be classified as exceptions. 

The White House further clarified in a statement via Twitter by saying, “The public charge rule has no impact on America’s humanitarian-based immigration programs. It also clarifies exemptions for victims of human trafficking and domestic violence.”

In December 2018, following the initial release of the proposed rule in October, 24 state attorneys general expressed their opposition to the rule through the submission of public comments.

On Monday, the National Immigration Law Center announced their intent to challenge the rule in court. 

Cuccinelli rejected criticism of the policy by reiterating the idea of “self-sufficiency.” 

“We certainly expect anyone of any income to stand on their own two feet,” Cuccinelli said to the press. 

He further reiterated this idea by saying in an official USCIS video regarding the new policy, “Through faithful execution of our nation’s laws, we will better ensure that immigrants are able to successfully support themselves as they seek opportunity here.”

The new policy is the latest in the Trump administration’s attempts at curbing abuse of U.S. immigration laws through both agency rulemaking and diplomatic means.