Politics & Government

What is public charge in immigration law?

A screen shot of a sample presentation for Public Charge information by The Immigrant Legal Resource Center (ILRC), a national nonprofit resource center that provides immigration legal trainings, technical assistance, and educational materials, and engages in advocacy and immigrant civic engagement to advance immigrant rights.
A screen shot of a sample presentation for Public Charge information by The Immigrant Legal Resource Center (ILRC), a national nonprofit resource center that provides immigration legal trainings, technical assistance, and educational materials, and engages in advocacy and immigrant civic engagement to advance immigrant rights. mortizbriones@vidaenelvalle.com

People seeking green cards have been proving proof that they will not be a burden to this county under a federal law that dates back to 1882 in order for them to seek the American dream.

However, early this month the Trump administration made changes to the public charge rule for those wanting to obtain a green card, causing confusion and worry among the immigrants and outrage among pro-immigrant groups and health advocates.

Erin Quinn, senior staff attorney with The Immigrant Legal Resource Center in San Francisco talked about what public charge is in immigration law, what the recent change would mean to immigrants in the Central Valley and the rest of the country, as well as who’s affected, who’s not affected and what this organization think of the change in this law.

Starting with the general background, what is public charge in immigration law?

Public charge is a specific issue in immigration law for those that are seeking to get their green card, like applying through adjustment of status for permanent residence or entering the country and thinking to be admitted into the United States. It’s a rule that says we will apply this test to you about whether in the future you are likely to become a public charge. And traditionally that has meant an assessment about whether that person is likely in the future to require cash assistance or long-term care - like some cash assistance for income maintenance, like to be primarily dependent.

So where are we now?

The administration, the government has issued a final rule today (Aug. 14) interpreting this provision of law and changing our current standard of how this decision is made.

Up until now, the way they made this decision is to determine whether somebody would be primarily dependent on cash assistance, like general assistance or a cash welfare program. Under the new rule, they (the government) will be looking at more public benefits as being a possible problem to a person that is immigrating under this public charge test. And also, putting in a new calculation about how much benefits you would need to use to be considered a public charge.

Instead of thinking about whether someone is primarily dependent for income, they’re shifting this test to whether somebody uses in aggregate 12 months of various public benefits within any 36 months period of time. So imagine a three-year period of time in the future, during any three years, if a person needs more than 12 months of these specific public benefits under immigration law, they could be considered a public charge.

Would this change bring confusion and worries to immigrants?

In passing this rule, putting this rule through to a final rule of the immigration agency under Department of Homeland Security, make no mistake about it, this public charge rule is just one more piece of the administration’s campaign of fear.

It is an attempt to scare immigrants, and our communities and really will cause many folks that are actually eligible for services to disenroll. We refer to this as the chilling effect. So because our laws are so complicated already and the amount of attention this administration is putting on this idea that immigrants are using all of these services, they’re setting the stage for folks to be fearful of using services that they’re eligible for and creating confusion around whether or not this rule would actually impact a specific immigrant family.

Who really is impacted?

A public charge rule is actually a very narrow rule in immigration law. This rule only affects those that are applying to get their green card or enter the United States.

That means that all different types of immigrants and immigrant families with different statuses, that aren’t seeking a green card right now aren’t actually subject to this rule at all. Most permanent residents here in the United States, U.S. citizens, for instance, U.S citizen children in immigrant families, U-Visa holders, T-Visa holders, refugees, those that are recipients of benefits under the Violence Against Women Act, special immigrant juveniles and many other categories of immigrants are not even subject to this public charge test at all.

This public charge test only applies if you’re coming forward to apply for a benefit. And those folks that are in that moment of their immigration story, where they are potentially undocumented or just now seeking their green card, are actually not eligible for most of the benefits of this new rule now imagine.

It’s penalizing immigrants with this narrative that they are using all of these public benefits when in fact some of the benefits named aren’t even available to undocumented immigrants, or many immigrant categories.

So what’s newly included in this rule?

For the first time in our modern immigration policy is that for the first time, the administration is going to include in a public charge test whether or not a person has used a Medicaid program - health insurance through Medicaid. There are some exceptions to this, but it’s a sad for our entire communities because these are safety net programs in place to keep our communities healthy and to protect the wellbeing of everyone in our community. Health is considered one of the linchpins to allow people to thrive and succeed. It’s sad that they are including it in this law. In addition to Medicaid, they will also consider a negative factor if someone has used supplemental nutrition assistance programs, SNAP, which are essentially food stamps or federally subsidized housing through section eight or section eight vouchers or public housing.

What are the effects of this rule?

It’s really an attack on the American dream and an attack on people’s attempts to get the basic essentials that their family needs in order for them to work and thrive. The chilling effect of this, is most likely greater than the actual legal effect because this legal rule only applies to a very narrow group of immigrants coming forward to get their green card. But because it is getting so much broad attention as an attack on immigrants, many families are fearful that use of benefits, even those benefits that a family member is entitled to or are eligible for, now is raising concerns that it would cause them problems with immigration. We’re saddened that this will impact the health of our communities and cause immigrant families to be fearful of accessing services that they’re entitled to you.

The people that are actually legally impacted are those that somehow have legal eligibility for some of these benefits and are on the pathway to get their green card, perhaps through a family members sponsorship in the immigration process.

Unfortunately, the chilling effect of this rule doesn’t affect just those folks that are now legally speaking their green card. But as well, mixed immigrant status families that are feeling fearful of the consequences of any family member using services.

What would be some examples of this?

In reality, under this new rule, children or dependents of immigrants using services won’t impact the primary applicant for an immigration benefit. An example of this is, if a parent is now coming forward to apply to get their green card, if they have U.S citizen children that are eligible, for instance, here for medical, or undocumented children, even eligible for Medical here in California, they will not be penalized for the use of those legally procured benefits of their child. So this rule is narrower than that - that the use of services by your dependent won’t count against you.

In addition, there are really important exceptions. Under Medicaid, which for us here in California is Medical, there is an exception for children under 21 as well as pregnant women. So the use of a Medical program by children in California or during pregnancy and just after birth won’t count against an immigrant in this public charge test.

In California, we do have special provisions to provide full scope Medical to children. But the exception, that if you were in any state that allows Medicaid to children under 21, under this new public rule, the use of Medicaid, will not count against someone’s application to become a green card holder. I should also say emergency Medicaid is also an exception. So those that use emergency Medical, the emergency Medical is not one of the benefits considered. And none of this new rule takes effect until October 15.

What are some of the worries in the community?

We are worried about the chilling effect of folks being fearful to come forward and use programs because they’re afraid it will have a negative consequence. And also because this really, muddies, the decision-making process about how the immigration officer is going to decide whether or not you’re eligible to get your green card. We are worried that people will choose not to apply for their green card because they’re afraid this law applies to them and they’re worried that it will mean that their application will get denied. So we’re worried about both effects, both that it will deter people from filing their applications to become permanent residents and that it’ll deter families from getting the services they need to keep their families healthy and well.

When you apply for a green card, you’ll be interviewed by one officer that is front line officer making the initial decision in a case. So we are very concerned that this new rule, increases the discretion of each individual officer in making their decision about whether someone is eligible for a green card. And it really encourages arbitrary decisions.

We imagine under this really confusing rule - about how these officers are supposed to make this decision - that we will see decisions that vary widely, officer to officer, and case by case. In other words, it’s very hard to definitively know how your case will be handled because the standard is so confusing and requires an officer to get out their crystal ball and speculate about what services you might need in the future.

The actual test, that it asks the officers to apply, is to decide whether the person is likely in the future to need one of these named public benefits for more than 12 months in aggregate, in some 36-month period in their future. That seems like it calls for a lot of speculation and imagination on a part of a deciding officer in an immigration case.

When does this new rule takes effect?

Importantly, under this rule, it doesn’t take effect until October 15th. Those that already have pending applications for permanent residence will not have this new rule applied to them. Their applications will be decided based on our old rules.

In addition, anyone who’s ready to file that can file their application before October 15, their case will be decided under our current rules, not this new rule.

Additionally, lawsuits have already been filed challenging this rule because it is so harmful to our communities. So there a possibility that implementation of this rule will delayed further because of this litigation. I would like to make sure everyone knows, particularly as families are getting ready to go back to school, is that many government funded programs and services are still safe to use, no matter what your immigration situation is. They do not cause harm on the immigration side. So it’s important for families to know that school centered programs like free and reduced lunch, emergency medical, head start programs, disaster relief, all of these types of programs are still safe to use and are not affected by the public charge rule.

María G. Ortiz-Briones: 559-441-6782, @TuValleTuSalud

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