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CMS Report Proposed Public Charge Rule Would Significantly Reduce CMS Report November 2018 Proposed Public Charge Rule Would Significantly Reduce Legal Admissions and Adjustment to Lawful Permanent Resident Status of Working Class Persons Donald Kerwin, Robert Warren, and Mike Nicholson Introduction On October 10, 2018, the US Department of Homeland Security (DHS) issued its long-anticipated proposed rule on inadmissibility on public charge grounds.1 The rule seeks to “better ensure” that applicants for admission to the United States as immigrants (permanent residents) and nonimmigrants (temporary residents),2 as well as applicants for adjustment to lawful permanent resident (LPR) status within the United States, will be “self-sufficient” and “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.”3 Under the proposed rule, US Citizenship and Immigration Services (USCIS) officers would consider receipt of cash benefits and, in a break from the past, non-cash medical, housing, and food benefits in making public charge determinations. The proposed DHS rule details the factors — positive and negative — to be weighed in these decisions. Many commentators have sharply criticized the proposed rule, arguing that it would: • Deny admission and adjustment to large numbers of low-income persons who contribute substantially to the US economy, have US citizen and LPR family members, and present a very low risk of becoming financially dependent on the government. • Create a disincentive to the use of public benefits to meet the essential food, housing, and medical needs of US citizen, LPR, and other family members of persons who are directly affected by the rule. • Impede the legal immigration and integration of low-income, working-class immigrants and their families to the detriment of US communities and society. The authors share these concerns, but the study focuses more narrowly on the potential effect of the proposed rule on two populations, undocumented immigrants and nonimmigrants that would otherwise be eligible for LPR status based on a legally qualifying relationship to a US citizen or LPR living in their household. The Center for Migration Studies (CMS) report analyzes how these populations in 2016 would have fared under the proposed rule. 1 Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51114 (proposed October 10, 2018) (to be codified at 8 CFR Parts 103, 212, 213, 214, 245 and 248) [hereinafter “DHS Proposed Public Charge Rule”]. 2 Nonimmigrants are noncitizens admitted for a temporary period and a particular purpose, such as foreign students or temporary workers. 3 DHS Proposed Public Charge Rule § III A. CMS Report November 2018 After placing the rule in historic context, the paper profiles these two populations and examines the characteristics that would mitigate in favor of and against their inadmissibility. The study offers a snapshot of these two groups based on estimates derived from the 2016 American Community Survey (ACS). It concludes that: • 2.25 million undocumented persons and 212,000 nonimmigrants would be directly affected by the proposed rule because they live with a US citizen or LPR family member who can petition for them. • These two groups live in households with an additional 5.32 million and 456,000 persons respectively, who would be indirectly impacted by the rule. • CMS’s estimates exclude several populations — such as the millions residing abroad who are waiting for a visa to become current (available) — that would be subject to the rule. Thus, the study substantially understates the number of persons who would be directly and indirectly affected by the rule. • A large percentage of the 2.25 million undocumented persons examined would be found inadmissible under the rule, although this population overwhelmingly consists of working- class persons. • As a result, the proposed rule should be viewed as a significant barrier to legal immigration and the integration of low-income immigrants and their US families. • Far lower rates of nonimmigrants — who earn more than the undocumented and have higher levels of education — would be found inadmissible under the rule. • The numbers and percentages of persons who would be found inadmissible under the rule cannot be predicted with precision due primarily to the discretion afforded USCIS officials in making inadmissibility determinations. Historical Background and Proposed DHS Rule For nearly 140 years, noncitizens have been found inadmissible or deportable if deemed to be, or deemed likely to become, a public charge. The Immigration Act of 1882 provided for the exclusion of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”4 The Immigration Act of 1891 excluded “paupers or persons likely to become a public charge” and required the return of “any alien” who became a public charge within one year “from causes existing prior” to their arrival.5 Under current law, any noncitizen “who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General [now USCIS] at the time of application for admission or adjustment of status, is likely at any time to become a public charge” is inadmissible,6 and any noncitizen who “within five years after the date of entry; has become 4 Immigration Act of 1882, 22 Stat 214 (August 3, 1882). http://library.uwb.edu/Static/USimmigration/22%20 stat%20214.pdf. 5 Immigration Act of 1891, 26 Stat. 1084, §§ 1, 11 (March 3, 1891). http://library.uwb.edu/Static/USimmigration/26%20 stat%201084.pdf. 6 Immigration and Nationality Act (INA) § 212(a)(4)(A). 2 Public Charge Rule Would Significantly Reduce Legal Admissions and Adjustment of Status a public charge from causes not affirmatively shown to have arisen since entry” is deportable.7 However, deportation is very rare under this provision (INS 1999; Singer and Harrington 2018). The Immigration and Nationality Act (INA) minimally requires USCIS officials and US Department of State (DOS) consular officers to take into account the intending immigrant’s age; health; family status; assets, resources, and financial status; and education and skills.8 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)9 introduced new sponsorship rules that require US citizens and LPRs to file an affidavit of support (AOS) that commits them to “maintain” the intending immigrant at an annual income of at least 125 percent of the federal poverty guidelines (FPG), until he or she either naturalizes or works 40 “qualifying quarters.”10 During this period, any federal, state or local government can seek reimbursement from the sponsor (typically the petitioner) for the cost of any “means-tested public benefit” used by the intending immigrant.11 If the sponsor cannot meet the income requirements, the INA allows for co-sponsors and the use of “significant assets” to make up the difference in income.12 The term “likely to become a public charge” has never been defined by statute, leaving it to the courts and implementing agencies to clarify its meaning. To that end, in May 1999, the Immigration and Naturalization Service (INS) issued a proposed rule and field guidance that provided that the public charge grounds applied to noncitizens who had “become (for deportation purposes) or who [are] likely to become (for admission/adjustment purposes) ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense’” (INS 1999). Under the INS’s totality of the circumstances framework, INS/USCIS officers could consider the use of public benefits for “cash assistance for income maintenance and institutionalization,” including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) cash assistance, state and local cash assistance (“General Assistance” programs), and programs like Medicaid that support long-term institutionalized care. The INS guidance did not provide for the consideration of non-cash benefits in this determination. Over the last 20 years, DOS’s public charge definition rested heavily on the sufficiency of the AOS (Wheeler 2018). In early 2018, however, without notice and comment, DOS updated its Foreign Affairs Manual (FAM) to make a sufficient AOS just one “positive factor” in a totality of the circumstances framework that considers the intending immigrant’s age; health; family status; assets, resources, financial status; education; and skills.13 Moreover, the FAM diverges from the former INS guidelines in allowing consideration of receipt of any past or current public assistance, including non-cash benefits, by a visa applicant or a family member living in the same household.14 7 INA § 237(a)(5). 8 INA § 212(a)(4)(B)(i). 9 Pub. L. No. 104-208, 110 Stat. 3009 (1996). 10 INA § 213A(a)(1) and (2). A qualifying quarter is a three-month period in which the immigrant earns enough to receive credit toward Social Security retirement benefits. 11 INA § 213A(a)(1)(B). 12 INA § 213A(f)(6)(A)(ii). 13 9 FAM 302.8-2(B). 14 9 FAM 302.8-2(B)(2)(f)(1)(b)(i); Singer and Harrington (2018, 8). 3 CMS Report November 2018 In publishing its proposed rule, DHS formally withdrew the INS guidance. The DHS rule still applies to noncitizens who seek an immigrant or nonimmigrant visa, adjustment of status, or an extension of their stay in the United States or a change
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