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E.g., 09/19/2018

Through the Back Door: Remaking the Immigration System via the Expected “Public-Charge” Rule

Commentary
August 2018

Through the Back Door: Remaking the Immigration System via the Expected “Public-Charge” Rule

Lance Cheung/U.S. Department of Agriculture

From its earliest days, the Trump administration has been working to reduce family-based immigration to the United States and limit legal immigrants’ use of public benefits. The administration may be on the cusp of issuing a proposed rule that could do both at once, by dramatically expanding the list of public benefits that could lead to an immigrant being considered a “public charge.” The proposed policy could disqualify immigrants from obtaining legal permanent residence (aka getting a green card) or seeking or renewing a temporary visa if they or their legal dependents, including U.S. citizens, received one or more of a broad range of public benefits.

Expanding the Benefits Considered in a Public-Charge Determination

Programs that would count in the public-charge determination under the expansions contemplated by the Trump administration would include the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), food stamps, Medicaid and the Children’s Health Insurance Program (CHIP), refundable tax credits, and health insurance subsidies.

The proposal would also, for the first time, count benefits use not only by immigrants but by their legal dependents, including U.S.-citizen children.

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MPI researchers responded to questions about how these potential changes may affect future legal immigration. For their answers, check out this Q&A.

The Migration Policy Institute (MPI) analyzed a March leaked draft of the proposed rule, finding that nearly half of the U.S. noncitizen population could be at risk of a public-charge determination—up from the current 3 percent. Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges.

The experience of welfare reform in the mid-1990s strongly suggests that the new policy would likely lead to a sharp decline in use of public benefits for which many legally present immigrants and their dependents are eligible.

At the same time, powerful, less-noticed provisions of the potential rule would effectively create the potential for a major back-door overhaul of the legal immigration system by imposing new standards that would fall most heavily on would-be immigrants from Asia, Latin America, and Africa. Family-based immigration, which has been in the administration’s crosshairs, would be most affected, with significant regional, national, and racial effects on future flows. 

Reordering the Immigration System by Executive Fiat

Under the March leaked draft, a public-charge determination would be based on the totality of circumstances, but certain factors would be heavily weighted favorably or unfavorably during the application review.  So, for example, receipt of public benefits in the past three years would be a heavily weighted negative factor. Demonstrating income or financial assets over 250 percent of the federal poverty line (about $62,000 for a family of four) would be a heavily weighted positive factor—though not a guarantee. The administration would have enormous discretion to deny admission or green cards to those with incomes or financial assets below 250 percent of the poverty line.

While there are no available data about the income levels of individuals seeking admission or green cards, data exist on the incomes of immigrants admitted legally in the past five years. Our analysis of U.S. Census Bureau data makes clear that a large share of this proxy population would fall short of the 250 percent threshold. We estimate that 2.3 million of the 4 million legally present noncitizens who arrived during the past five years (56 percent) do not have incomes sufficient to meet the 250 percent standard. In fact, 40 percent of U.S.-born persons would be unable to meet that threshold.

The introduction of this 250 percent standard would have pronounced regional, national-origin and—by extension—racial effects on flows. Our analysis finds that among recently arrived legally present noncitizens 71 percent of Mexicans and Central Americans, 69 percent of Africans, and 52 percent of Asian immigrants would fail to meet the threshold (see Figure 1).

Figure 1. Share of Recently Arrived, Legally Present Noncitizens in Families with Annual Incomes below 250 Percent of the Federal Poverty Line, by Region of Birth, 2014-16

Notes: Recently arrived legally present noncitizens are persons with green cards or legal nonimmigrant visas who came to the United States in the five years prior to the survey. While data about the income levels of individuals seeking green cards or visa renewals are not available, recently arrived legally present noncitizens represent a reasonable proxy for prospective immigrants likely to apply in the near future. To carry out this analysis, the Migration Policy Institute (MPI) used its unique methodology to assign legal status to the foreign-born population surveyed by the U.S. Census Bureau’s American Community Survey (ACS), drawing upon characteristics of the 2008 Survey of Income and Program Participation (SIPP). For more on this methodology, see Jeanne Batalova, Sarah Hooker, Randy Capps, and James D. Bachmeier, DACA at the Two-Year Mark: A National and State Profile of Youth Eligible and Applying for Deferred Action (Washington, DC: MPI, 2014), www.migrationpolicy.org/research/daca-two-year-mark-national-and-state-profile-youth-eligible-and-applying-deferred-action.
Source: MPI analysis of pooled 2014-16 data from the U.S. Census Bureau’s ACS and 2008 SIPP.

Because the share of all U.S. immigrants coming from Asia has risen in recent years, Asians would end up being the most disadvantaged group numerically under the expected Trump proposal, with more than 1 million recent legal noncitizens living in families with incomes under 250 percent of poverty (see Table 1). By contrast, 64 percent of recent Canadian and European legal noncitizens had incomes over the 250 percent threshold. The only two Asian countries whose nationals outperformed Europeans in this regard are India and Japan, with 75 percent of Indians and 69 percent of Japanese having family incomes at or above 250 percent poverty.

Table 1. Number and Share of Recently Arrived, Legally Present Noncitizens in Families with Annual Incomes below 250 Percent of the Federal Poverty Line (FPL), by Region of Birth and Top 15 Countries of Birth (2014-16) and Share of Total Green Cards Obtained in Fiscal Year (FY) 2016 via Family Sponsorship

Note: Recently arrived legally present noncitizens are persons with green cards or legal nonimmigrant visas who came to the United States in the five years prior to the survey.
Source: Data in the first three columns are from MPI analysis of pooled 2014-16 data from the U.S. Census Bureau’s ACS and 2008 SIPP with MPI legal-status assignments; data on the share of green cards in FY 2016 received based on family relations are from the Department of Homeland Security (DHS) Office of Immigration Statistics, Yearbook of Immigration Statistics 2016, Table 10, www.dhs.gov/immigration-statistics/yearbook/2016.

Thus, the impact of the new standard would fall most heavily upon Asian, Latin American, and African immigrants, making the proposal something of a modern-day version of the National Origins Quota Act of 1924. That since-repudiated law sought to tilt immigration to Western Europe.

As Table 1 also shows, the majority of immigrants, regardless of their region of birth, who obtain green cards do so via family sponsorship: 68 percent of all new green card holders; 80-90 percent of those from Mexico and the Philippines; and more than 90 percent of those from Dominican Republic, Vietnam, and Haiti. While it is not possible to know in advance how the Trump administration would exercise its discretion, it is clear that the approach taken in the draft rule would provide extraordinary latitude that could readily be used both to sharply alter legal immigration flows and to tilt the criteria for admissions and green cards away from family-based admissions and individuals unable to meet the 250 percent threshold.

Making such sweeping changes to the character of future legal immigration to the United States administratively—without input by Congress—would be unprecedented.