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More Than Just Rhetoric: Trump Administration’s Radical “Public Charge” Policy Shuts the Door on Hard Working Immigrant Families

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Earlier this week, Politico’s Ted Hesson described the effects of a radical and unprecedented interpretation of immigration law at the State Department, and soon-to-be implemented regulation at DHS, that “could reshape the legal immigration system” by depriving U.S. citizens the opportunity to legally live in the United States with foreign-born spouses, children and parents. This is an example of how Trump policies embody Trump’s extreme rhetoric on immigration.

Between Oct. 1 and July 29, the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants…risked becoming a “public charge,” according to the statistics. That’s up from just seven denials for Mexican applicants in fiscal year 2016, the last full year under former President Barack Obama.

The number of public charge denials for applicants from all nations also rose during the past year. Preliminary data obtained by POLITICO shows 12,179 visa rejections on public charge grounds through July 29 — which puts the department on pace to surpass last year’s total. The State Department disqualified only 1,033 people on public charge grounds in fiscal 2016.

The State Department statistics offer a window into how the Homeland Security Department’s forthcoming public charge regulation could reshape the legal immigration system. Under the regulation, which is expected to be finalized in the coming days, DHS will adopt a more aggressive public charge analysis to evaluate applications for green cards and visa renewals.”

Working and Middle Class Priced Out of the U.S. Immigration System

A review of the proposed DHS regulation suggests the working and middle class will be priced out of the U.S. immigration system, an unprecedented move by any modern administration.

As Doug Rand, former assistant director for entrepreneurship at the White House Office of Science and Technology Policy, stated in an interview with Forbes:

Most press coverage so far has focused on the expanded list of government benefits that would be off-limits for the first time. Basically, you can’t touch food stamps, federal housing and rental assistance, non-emergency Medicaid benefits, or Medicare Part D healthcare subsidies – even if you’re eligible for these programs – without taking on the risk that DHS denies your green card or visa application down the road.

But that’s just the beginning. Remember, immigration officers have to determine whether someone is “likely to become a public charge” at any point in the future, and actual use of government programs is only one of some 15 factors that DHS wants to start scrutinizing.

The only way to sail above this thicket of new criteria would be to demonstrate a household income above 250% of the federal poverty guidelines. That’s currently $41,150 for a couple with no children and $73,550 for a family of five.

According to the analysis conducted by Rand and described in an opinion editorial in the Houston Chronicle:

31 percent of foreign-born spouses [of U.S. citizens] are unemployed when they apply for a marriage-based green card. Again, because student visas, visitor visas and other common visas generally do not authorize employment in the United States, these spouses would be in an impossible situation — prevented from legally working yet required by DHS to earn an income.

Rand described the situation of a couple his current company assisted:

Imagine a couple like Dave and Sarah (actual couple, names changed). Dave is a U.S. citizen, born in Massachusetts. Sarah was born in South Korea and came to the United States to study medicine. They met in college, fell in love and got married. At this early stage in their careers, they don’t make much money. In fact, under the terms of Sarah’s student visa, she’s not allowed to work at all. Dave can sponsor Sarah for a spousal green card as long as he can demonstrate sufficient financial resources to support her — defined by Congress as 125 percent of the Federal Poverty Guidelines (currently $20,575 for most couples without children). That’s an objective standard most couples can meet.

Under the new public charge rule, however, Dave’s income alone won’t be enough to satisfy DHS. For the first time, green card applicants like Sarah will be subject to an entirely new and higher household-income test: as much as 250 percent of the poverty line (currently $41,150 for most couples without children). Remember, Sarah isn’t allowed to work under her student visa. The only way she can achieve a middle-class income is by getting a green card, but the only way she can get a green card is by having a middle-class income.

Overcoming the Public Charge Bar Only For the Wealthy

Hesson notes that although there is a process to overcome a public charge denial by the State Department, so few have been successful:

Refused visa applicants are permitted to submit additional evidence to prove their economic self-sufficiency, but the statistics show that only 1,330 Mexican immigrants who applied in previous years reversed a public charge ruling during that period.

Indeed, the Miami Herald recently described the application of the State Department’s radical public charge policy in one case involving a “man, who holds a master’s degree from the University of Florida” and “applied to bring his parents, who work as engineers in Uzbekistan, to the United States to help support him and his wife with the rearing of their two young children.” The application included a co-sponsor who earns $150,000 annually. According to an email from the U.S. Embassy in Tashkent, Uzbekistan, this man was denied:

After conducting the interview and evaluating the totality of the applicant’s circumstances, the consular officer is not convinced the applicant will not be a public charge in the United States…If the petitioner would like to request a reconsideration of this decision, the evidence of $1,000,000 will be required.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:

The President’s language on immigrants and immigration is not just rhetoric. Trump administration policies clearly reflect his language and it is having real and significant effects. The public charge rule already in place at the State Department, coupled with the DHS regulation likely to be finalized and published soon, are quintessential examples. Without a single change in the law by Congress, the Trump public charge rules mean many more U.S. citizens are being and will be denied the opportunity to live together in the U.S. with their spouses, children, and parents. Many more U.S. companies will be denied the workers they need to grow their businesses.  These are not just small changes; they are big changes with enormous consequences for U.S. citizens and U.S. businesses attempting to use the legal immigration system that the Trump administration has been attacking piece by piece for two and half years.

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:

The Trump administration’s so-called ‘public charge rule’ is a flimsy pretext to close America’s door to middle and working class immigrants. It’s well documented that immigrants use welfare and public benefits at a far lower rate that do native born Americans. Simply put, there’s no problem to be fixed. This is yet another insidious attempt by the Trump administration to pull an end around Congress and restrict lawful immigration without changing a word of the law. Trump’s so-called “public charge rule” is a shameful abuse of executive authority designed to keep hard working families separated — a consistent theme of the Trump administration.  It violates the spirit of the immigration law and insults core American values.