The Trump administration finalized rules Monday that could reshape the flow of legal immigrants who earn a place in the U.S., proposing to penalize migrants for having used welfare programs when they apply for permanent status.
The rules, a longtime goal of immigration enforcement advocates, define for the first time what it means to be a “public charge” and give officers at U.S. Citizenship and Immigration Services a new framework for evaluating immigrants who have made use of American welfare — and, in some cases, deny admission to those deemed likely to use such benefits.
“This is really an example of President Trump enforcing long-standing law that required people coming to the country or that wanted to be here long term to be self-reliant,” acting Citizenship and Immigration Services Director Ken Cuccinelli told The Washington Times. “That self-sufficiency is a core American value, and it is central to the purpose of this rule.”
If the rules survive a court challenge — New York state announced one Monday afternoon — it could reshape the demographics of legal immigration, discouraging poorer migrants, who tend to be from areas such as Latin America, in favor of wealthier arrivals such as Europeans. Some analysts predict that the overall level of legal immigration could drop.
Democrats and immigrant rights groups called the policy racist and said Mr. Trump’s strict approach to following the law on illegal immigration is carrying over to legal immigration.
“Today’s announcement of President Trump’s final public charge rule is yet another devastating, racially motivated attack on the immigrant community,” said Rep. Jesus G. “Chuy” Garcia, Illinois Democrat.
Activists saw the move as an attempt to scare legal immigrants into avoiding use of public benefits for which they or their children — often U.S. citizens — qualify.
An Urban Institute study in May found that about 1 in 7 immigrant-led households said they were likely to avoid welfare programs last year because they feared the Trump administration’s crackdown, which at the time was a draft proposal.
“Some families may go hungry or become homeless in fear of risking a future green card,” said Rep. Joaquin Castro, Texas Democrat and chairman of the Congressional Hispanic Caucus.
But Mr. Cuccinelli said Americans have a right to expect newcomers to be able to support themselves without draining government resources.
“We certainly expect people of any income to be able to stand on their own two feet, and so if people are not able to be self-sufficient then — then this negative factor is going to bear very heavily against them in a decision about whether they will be able to become a legal permanent resident,” he told reporters at the White House.
“A poor person can be prepared to be self-sufficient,” he said.
He pointed out that U.S. policy has pushed immigrants to be self-sufficient since some of the first immigration laws of the late 1800s. Mr. Cuccinelli said the administration now is following through on those laws, which were updated most recently in 1996.
The latest plan will take effect for applications filed after Oct. 15.
About 400,000 immigrants a year file applications to adjust their status to become permanently legal in the U.S., which in most instances means a green card.
Under the new rules, a USCIS officer reviewing an application will look at the person’s history of access to public programs such as food stamps, many forms of Medicaid, public housing assistance, welfare cash payments and Supplemental Security Income benefits.
Emergency medical care, the school lunch program, student loans, energy assistance, homeless shelter access and children’s health insurance will not count against an immigrant, USCIS said.
The rules don’t apply to refugee, asylum or other humanitarian programs, and military families are exempt.
Mr. Cuccinelli said taking a benefit won’t automatically disqualify an applicant but could be a “heavily weighted factor” in a decision about whether to grant a green card.
“There isn’t a formula,” he said. “It is intended to be a case-by-case determination.”
A green card denial doesn’t make an immigrant deportable; it will only retain the immigration status.
Analysts have long debated how much welfare immigrants use.
Illegal immigrants are barred by law from most public assistance, though emergency benefits are available, and children or other relatives are often entitled to benefits that help the entire family.
Legal immigrants are generally barred from most welfare programs for the first five years of permanent residency.
Still, thanks to access for children or other relatives, 63% of noncitizen households use at least one welfare program, according to the Center for Immigration Studies.
The Migration Policy Institute, studying an earlier draft of the rule, said women, children and elderly immigrants may struggle the most under the new requirements. The group also said it expects Latin American arrivals to face a tougher time meeting self-sufficiency requirements than, say, Europeans.
The previous policy was set by the Clinton administration in 1999, when it issued guidance on how to enforce a 1996 law discouraging immigrant use of welfare. That 1999 guidance drew a relatively narrow framework for what could be considered a public charge, with only a few government programs considered.
The new USCIS policy adds a number of benefit programs to the list.
The policy is prospective, meaning immigrants who have used one of the programs on the expanded list but don’t in the future will not be penalized. Use of the Clinton-era programs will, however, be penalized because that guidance has been on the books for two decades.
USCIS spent months working on the final rule. The process included reviews of 266,000 public comments — by far a record for any Department of Homeland Security proposal. Mr. Cuccinelli said the comments did lead to some changes.
“We fully expect to be sued,” he told The Times. “That doesn’t mean we’re looking forward to it, but we feel like we went through this rule and the comments in such a thorough fashion that any objective judge will see it as such. And we’re well within the law.”
The lengthy review was an effort to check all the procedural boxes to prevent the kinds of legal hiccups that have snared other Trump administration policies such as the president’s attempt to phase out the Obama-era Deferred Action for Childhood Arrivals program; to phase out Temporary Protected Status for people from El Salvador, Haiti and other troubled countries; and to add a citizenship question to the 2020 census.
Despite that professed effort by USCIS, New York Attorney General Letitia James said Monday that she will file a lawsuit. She didn’t say on what grounds.
Stiffening the requirements for self-sufficiency in immigration has been a major goal for the Trump administration.
In May, the president ordered federal agencies to demand payback to the Treasury from people who sponsored immigrants who later landed on the public dole.
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