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Immigration Officials Given Extremely Broad Authority Under Trump Administration’s Proposed Rule

Update, October 11: We've updated this post.

The Trump Administration officially proposed a rule today that would radically alter the U.S. immigration system, making it much harder for many immigrants lawfully in the country to remain here and for many seeking legal entry to come. The rule directs immigration officials to reject applications from individuals who seek to remain in, or enter, the country if they have received — or are judged likely to receive in the future — any of an extensive array of benefits tied to need.

The authority that the rule would confer on immigration officials is extremely broad. It risks having officials, potentially acting in some cases in response to the current political environment (or to their own biases), turn down many hard-working individuals who labor in jobs that the economy needs but that pay low or modest wages (or who would work in such jobs if admitted to the United States).

Under longstanding immigration law, an official can deny individuals the opportunity to come to the United States — or deny an adjustment to their immigration status that allows them to remain here and have a chance ultimately to become a citizen — if the official rules that they’re likely to become a “public charge.” But the proposed rule greatly expands the definition of what a “public charge” can mean. Under the new rule, an immigration official would take into account whether an individual receives — or is likely to receive in the future — basic health coverage through Medicaid, basic food assistance through SNAP (food stamps), rental assistance, or subsidies to help Medicare beneficiaries of modest means afford prescription drugs. (Immigration officials would also consider the receipt of cash assistance that falls under the current definition of public charge, such as Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI).)

Even individuals legally in the United States who have never received any assistance through these programs could be denied adjustment of status allowing them to stay here — based on an immigration official’s judgment that they are likely to receive assistance from one of these programs sometime in the future and, thus, become a “public charge.”

As noted, under the rule, there would be risk that the political views of whoever is President at the time, or immigration officials’ own biases, could influence these judgments. An immigration official may assume that any individual person of color is likelier to have low income, and thus to qualify for benefits like SNAP or Medicaid, and might deem them likely to become a public charge without fairly considering all factors.

The public charge standard that the proposed rule lays out differs sharply from the policy that’s been in place for decades under Republican and Democratic administrations alike. Currently, immigration officials consider whether an individual applying for a status adjustment or entry into the United States is, or is likely to become, reliant on the government for more than half of his or her cash income by receiving cash assistance (aid under TANF, SSI, or state or local General Assistance programs) or if the individual receives or is likely to receive long-term care benefits under Medicaid. Receipt or potential future receipt of Medicaid, SNAP, or other such non-cash programs, which serve many times the number of people that the cash assistance programs and Medicaid long-term care do, is not considered.

The programs that the proposed rule would sweep into the public charge determination process enable tens of millions of people to obtain health coverage or put food on the table, often for short periods until their prospects improve. Nearly one-third of all U.S.-born citizens participated in these programs at some point in 2015; a substantially larger share of U.S.-born citizens will receive one or more of these benefits at some point over their lifetimes. By contrast, only 5 percent of U.S.-born citizens participated in 2015 in any of the much narrower group of programs (i.e., the cash assistance or long-term care programs) that are part of the current public charge determination process.

Nor is that the full extent of the sweeping nature of the proposed rule. It also specifies how immigration officials should consider a variety of other factors — including income, age, health, education, and skills — when determining whether an individual is likely to become a public charge. In particular, an immigration official could count against an individual the fact that his or her family has income below 125 percent of the poverty line — about $31,375 for a family of four, which is more than twice what full-time, minimum-wage work pays. Many low-wage workers have earnings below this level and hence could be deemed likely to become a public charge, even if they receive no benefits. That suggests that few individuals with low or modest incomes would be granted status adjustment or lawful entry to the United States. For many people seeking to enter the United States from a country where incomes in general are much lower, that standard could simply be out of reach.

Without congressional involvement, the Administration would thus effect major changes in the nation’s immigration system, shifting it away from family-based immigration toward one restricted to people who are already relatively well-off or highly skilled when they enter the country. Doing that, however, would ignore our nation’s centuries-long experience — still true today — of immigrants coming to our shores, building a better life for themselves and future generations, and contributing thereby to our economy. It reflects a pinched, narrow view of who contributes to our communities and our society, how our economy works, and what our nation should look like.