E.g., 02/24/2017
E.g., 02/24/2017

Leaked Draft of Possible Trump Executive Order on Public Benefits Would Spell Chilling Effects for Legal Immigrants

Commentary
February 2017

Leaked Draft of Possible Trump Executive Order on Public Benefits Would Spell Chilling Effects for Legal Immigrants

A draft executive order apparently under consideration by the Trump administration could have widespread chilling effects for legal immigrants—both those already in the United States as well as prospective ones who seek to reunify with relatives here. A leaked draft that has circulated widely in recent days includes language asserting that immigrants are a drain on U.S. taxpayers, and proposes restricting the grant of green cards for low-skilled, low-income immigrants. Beyond limiting future arrivals, the order would also make legal permanent residents already in the United States more vulnerable to deportation if they use federal means-tested public benefits, and would activate dormant policies requiring immigrants’ sponsors to repay benefits received—a policy that has proved largely unworkable in the past.

In limiting the use of cash, nutrition, and health benefits, the proposed action would have deep effects on legal immigrants and their children—most of whom are U.S. citizens—by slowing their social and economic integration and perhaps raising public health issues. One has to go back to 1996, when the U.S. welfare reform system was substantially overhauled, to find a policy with such potentially far- reaching effects on immigrant households.

Further, the animating premise of the draft executive order—“that households headed by aliens are much more likely than those headed by citizens to use federal means-tested public benefits”—does not hold up under closer scrutiny. The National Academies of Science, in a seminal 2016 study on the fiscal impacts of immigration, found that immigrants of all ages except for the elderly use fewer public benefits than the U.S. born.

It is important to note two caveats: One, the leaked draft could be amended or discarded, and two, unlike a flurry of other executive actions signed by President Trump during his first two weeks in office, this one would require a lengthy public comment and rule-making period before it could take effect, and thus could be substantially changed in its final implementation.

A Brief History of Immigrants and Public Benefits

Until 1996, legal permanent residents (LPRs) were eligible on the same terms as U.S. citizens for health, nutritional, and other public benefits. (Unauthorized immigrants were ineligible both before and after passage, and remain ineligible today.) Changes in the 1996 welfare reform law enacted under President Bill Clinton (the Personal Responsibility and Work Opportunity Reconciliation Act) barred LPRs (also known as green-card holders) residing in the United States for less than five years from means-tested public benefit programs, including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid/Children’s Health Insurance Program (CHIP), and food stamps (the Supplemental Nutrition Assistance Program, or SNAP).

Animated by politicians’ abiding concern that ill, poor, or unemployable newcomers would drain public coffers, the 1996 law reflected provisions that have been part of the U.S. immigration code for decades, labeling newcomers who may become unable to provide for themselves “public charges,” making them inadmissible, or barring their ability to get a green card. The immigration code allows for the deportation of green-card holders within five years of arrival if they become public charges, but prior administrations have limited the public charge definition in this context to immigrants who use cash welfare programs or long-term institutional care funded by the government.  As a result, very few people have been deported on these grounds. This could change if a regulation mirroring language in the draft order leads to much wider grounds for deportation based on benefits receipt. Finally, the law requires the sponsors of new legal immigrants to that attest to their ability to provide financially for the newcomers, and allows federal, state, or local governments to compel reimbursement for benefits from sponsors.

Legal immigrants’ eligibility for public benefits has expanded somewhat since the 1996 welfare law was enacted: Congress restored  food stamps to recently arrived LPR children as well as Medicaid/CHIP to recently arrived LPR children in willing states. The Affordable Care Act (ACA) makes immigrants who are lawfully present—including green-card holders and temporary visitors—eligible for subsidies to purchase private health coverage. Several states, among them California and New York, fund public benefit programs for legal immigrants who cannot access federal assistance under the 1996 welfare law.

While policies authorizing the federal government to compel sponsor reimbursement for benefits have been on the books for years, they have rarely been invoked. The few states that have attempted to do so failed because implementation was costly.

Major Changes Ahead?

The draft executive order would dramatically reorder longstanding policy regarding admissions, adjustment of status, deportation, and sponsor reimbursement. Among the key changes contemplated:

  • Redefining “public charge” and “means-tested public benefits” to span a much wider variety of federal programs. The draft order refers to all “public benefits for which eligibility or amount is determined in any way on the basis of income, resources or financial aid.” Though rulemaking might narrow its scope, this definition could include a wide variety of federal programs such as school lunches, college financial aid, home heating assistance, and public health services that are not included in the welfare law’s means-tested definition.
  • Deporting legal permanent residents for using benefits. Under current interpretation, green-card holders may become deportable as public charges only if they use cash welfare or are institutionalized in long-term care funded by the government. (Under the welfare law, they can only be deported as public charges within their first five years of U.S. residency.) If implemented as written in the leaked executive order, legal immigrants could be ordered deported for using a wide variety of benefits, potentially including food and nutrition assistance, federally subsidized health insurance through Medicaid or the ACA, and education benefits.
  • Refusing to admit prospective immigrants who could become public charges. The executive order could also exclude large numbers of people who are otherwise eligible from being admitted as LPRs. As written, the order could be interpreted to make a high-school degree or better a prerequisite for admission or adjustment to a green card, for instance, or having a certain level of assets. The result could be restrictions on low-income or less well-educated immigrants from entering via some family reunification channels. And some people who are already in the United States—for instance nonimmigrants married to a U.S. citizen—would be unable to adjust to LPR status.
  • Seeking repayment of benefits from sponsors. The draft order also instructs federal agencies to request reimbursement for benefits used by legal immigrants. (The welfare law currently allows agencies to collect benefits used by LPRs who have not become citizens or who have not worked for at least ten years.) The government would need to determine the cost of benefits used by each immigrant, locate his or her sponsor, send a notice requesting payment, and ultimately pursue the sponsor legally or hire a collection agency.

Beyond rewriting the rules governing legal immigrants’ access to benefits, the draft order proposes limiting eligibility for the child tax credit to immigrants with valid social security numbers. The result: Unauthorized households with children (more than three-quarters of whom are U.S. citizens) would be ineligible for benefits, even as they pay taxes and have income thresholds low enough to otherwise qualify.

Opening the Door to Greater Immigrant Selection Based on Income and Education?

Changes to admissibility criteria could move the United States toward a selection system that favors those with more education and higher skills over family relationships. This shift could effectively accomplish a dramatic change in the legal immigration system through the back door—via regulation, not legislation. In the long term, such changes would be more likely to exclude immigrants from Latin America and Southeast Asia, who tend to have relatively low socioeconomic status, as well as elderly immigrants who might have more difficulty meeting the public charge criteria.

Monitoring benefits use across multiple agencies and running collection procedures could be a difficult and expensive task, reducing the direct fiscal benefits of implementing these policies. At the same time, the threat of deportation or enforcement of legal liability for sponsors could chill immigrants’ participation in public benefit programs even when they are eligible. The effects, particularly in the health-care setting, could be damaging. By making immigrants and their children reluctant to visit doctors and clinics, as happened in the wake of the 1996 welfare law, they as well as the broader public could face public health risks.

Implicit in the draft executive order, as with others implemented in recent days that touch upon immigration, is an effort to focus public attention on the costs, but not the benefits, of immigrants to U.S. society. The draft would mandate the issuance of annual reports on noncitizens’ use of benefits, without also including their economic contributions. Immigrants will fill critical future labor market needs, and many of the public benefits accessed by immigrants are by those who work full time. Scholars have found that immigrants’ use of benefits, which is largely short-term, promotes their longer term economic and social integration—and thus helps maximize their contributions to the broader society.

The draft executive order severely misreads the process of immigrant integration and how immigration on balance has served the nation. And by creating new exclusions on legal immigration and new grounds for deportation of legal immigrants, it would make systemic changes in the U.S. immigration system. In our view, these are decisions that should more properly be reserved for Congress.

Michael Fix is President of the Migration Policy Institute and Randy Capps is Director of Research for U.S. Programs.