By Andrew Restuccia nd Louise Radnofsky
WASHINGTON—The Trump administration issued a rule that would disqualify legal immigrants from permanent residency if they use certain public-assistance programs and block prospective applicants deemed likely to need them.
The rule, issued by the Department of Homeland Security on Monday, is one of the most sweeping elements of the administration’s bid to create what officials described as a tighter, more discerning U.S. immigration system. Critics of the regulation said it could hurt poor immigrants and result in widespread confusion in migrant communities. Democratic state attorneys general are expected to challenge the rule in court.
The administration all but guaranteed fresh criticism from immigration groups by pushing ahead with the rule in the wake of a shooting in El Paso, Texas, that authorities said was motivated by anti-immigrant animus. Similar criticisms were expressed after Immigration and Customs Enforcement carried out raids on food processing plants in Mississippi last week.
The rule change tightens the definition of who is likely to become a “public charge” under immigration law, a designation that prevents an immigrant from obtaining a green card, which permits legal permanent residence. The designation also is used by the Justice and State departments to determine which noncitizens can be removed from the country or prevented from ever entering.
The use or potential use of a benefits program such as Medicaid, some types of housing assistance or food stamps could disqualify an applicant.
“Through the public charge rule, President Trump’s administration is reinforcing the ideals of self-sufficiency and personal responsibility,” Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, said at the White House.
Mr. Cuccinelli said the new rule will go into effect in mid-October and won’t apply retroactively, so previous receipt of government benefits won’t negatively affect immigrants’ status. However, the rule would apply to people who are seeking to change their immigration status.
The use of several other benefits—including school lunch programs, homeless shelters, food pantries and the Children’s Health Insurance Program—won’t disqualify applicants. Pregnant women and children who rely on Medicaid are also exempt from the rule. The rule doesn’t affect humanitarian-based programs for refugees and asylum seekers.
Immigration officials will consider the “totality of circumstances” when determining whether to deny green cards or bar prospect immigrants from entry, Mr. Cuccinelli said, adding that reliance on government benefits will be just one factor under consideration.
The 837-page rule outlines a series of considerations that officials must weigh in making a final determination, including whether an individual in question has or is likely to receive one or more public benefits for more than 12 months of a three-year period.
Asked to address criticism that the administration is barring poor immigrants from the U.S., Mr. Cuccinelli said, “I do not think, by any means, we’re ready to take anything off the Statue of Liberty,” referring to the inscription on the statue that reads in part: “Give me your tired, your poor, your huddled masses yearning to breathe free.”
Foreigners looking to come to the U.S. generally have to prove they have enough income to prevent them from becoming a “public charge.” Denials of visas on the grounds that the applicant could become a “public charge” have increased significantly during the Trump administration, from a net total of 164 in the 2016 fiscal year to 5,518 in fiscal 2018, government statistics show.
Initial determinations of ineligibility were high at other points during past administrations, including that of George W. Bush, but most if not all applicants were able to overcome the initial denials. The last time significant numbers were denied and not reversed was in fiscal 2000, which included the last year of the Clinton administration.
Backers of the effort said they are simply looking to ensure self-sufficiency from immigrants and to prevent them from becoming a drain on U.S. taxpayers.
The rule’s critics worry that it would have a chilling effect on immigrants’ use of a range of social benefits, with some immigrants potentially opting out of benefits that aren’t covered by the rule because they don’t fully understand it.
“The broad concern is overwhelmingly about chilling effects and the fact that the rule is lengthy, complex, confusing, and there’s a significant risk that families with immigrant members will be fearful of receiving public benefits,” said Mark Greenberg, a senior fellow at the Migration Policy Institute, a nonpartisan think tank.
Critics also said the Trump administration effort could cut off access to vital public benefits used by immigrants who are fully eligible for them, including those who have American citizen children in their family.
The institute said the new requirements stemming from the rule would block a majority of applicants from Mexico and Central America, Africa and Asia, while affecting fewer from Europe, Canada and Oceania.
“DHS could begin denying more than 50% of all marriage green card applicants, each year forcing nearly 200,000 married couples to either leave the United States together or live apart indefinitely,” said Doug Rand, a former Obama administration official and co-founder of Boundless Immigration, a technology firm for families navigating the immigration process.
“Some 56% of all family-based green card applicants could be denied under the public charge rule’s unprecedented income requirement,” he said.
A court challenge is likely, potentially based on whether the federal agencies that crafted the regulation followed the Administrative Procedure Act, which governs how agencies develop federal rules and allows for public input.
DHS received more than 266,000 comments during its 60-day comment period on the proposed regulation. The department declined to extend the comment period, despite requests to do so. DHS said in the final rule that “the vast majority of commenters opposed the rule.”
Democratic attorneys general from 16 states and the District of Columbia told the White House Office of Management and Budget on July 31 that they believed the administration had “entirely failed to estimate the true costs” of public-charge regulations proposed last fall, in a sign that the states will litigate to try to block the rule’s implementation.
They argue there would be “extensive injury to our states’ economies” as millions of foreign-born residents lose access to medical care and state food and cash benefits that would result in a reduction of economic output, wages and jobs in their states.
The attorneys general have banded together to challenge the Trump administration previously. They are headed by Washington state Attorney General Bob Ferguson and also include the attorneys general of California, Delaware, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island and Virginia.
The rule has been a particular priority for top White House aide Stephen Miller, who has been championing the idea since his days as an aide to Jeff Sessions, a former Alabama Republican senator who later became U.S. attorney general.
Frustration that the regulation hadn’t been finalized sooner forced the departure this year of the administration’s top official overseeing immigration programs at U.S. Citizenship and Immigration Services, L. Francis Cissna.
For more information, go to: http://www.beverlyhillsimmigrationlaw.com
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