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Yesterday, the Trump administration announced that it would publish a final regulation that, according to the Migration Policy Institute, “gives the administration enormous discretion to deny admission to intending immigrants with incomes or financial assets below 250 percent of the poverty line (about $62,000 for a family of four),” which is more than 50 percent of recent legal immigrants.
This means that more than half of current legal immigrants could be barred from the country if they applied under the new regulation.
Under the regulation, if a U.S. citizen seeks to permanently live in the U.S. with a foreign national spouse, child or parent, that U.S. citizen and family member will need to show a high income, strong health, appropriate household size for income level, working age, good credit history, etc. Without these factors, the U.S. citizen would be denied the opportunity to live in the U.S. with his/her spouse, child, or parent. The same would apply for lawful permanent residents seeking to live in the U.S. with their spouses and children and U.S. businesses seeking a foreign national employee with certain skills. Only those with an income of at least 250% of the Federal Poverty Guidelines — which is a typical working class and even some middle class wage — would have a factor that “will weigh heavily in favor” of the immigrant. Even then, however, if the immigrant suffers from a long-term health issue or has other financial issues that could weigh against the immigrant, they may be barred.
New Wealth, Health, Age Test Could Bar More Than Half of Current Immigrants
The new regulation introduces a new complicated test of future public charge potential that is extremely subjective and will bar many working class immigrants and even some in the middle class. Under the new regulation, an immigration adjudicator must consider a long list of factors to determine in the “totality of circumstances” whether the immigrant has a likelihood of becoming “a public charge at any time in the future,” such as, but not limited to:
If the intending immigrant has a household income under 125% of the Federal Poverty Guidelines, they must show “ownership of significant assets” AND the factors described above must also weigh in favor of the immigrant. If the intending immigrant is between 125% and 250% of the Federal Poverty Guidelines, the factors must weigh in their favor. A household income of 250% or more of the Federal Poverty Guidelines “will weigh heavily in favor” of the immigrant, but even then the other factors, such as health and credit history, cannot tip the balance away from the immigrant.
More than half (56%) of those who obtained green cards or legal visas between 2014 and 2016 had an income below 250% of the Federal Poverty Guidelines, which means that if they applied under the new regulation, they would have an extremely difficult time overcoming the presumption of public charge and many would simply fail.
This complex, subjective test — with U.S. citizen family unity hanging in the balance — will be in the hands of a low-level bureaucrat for hundreds of thousands of people.
Use of Federal, State, Local Assistance Programs is a Clear Bar to Immigration
In addition to the complex, subjective test described above, the new regulation would outright bar immigrants who have used certain assistance programs. As noted by NPR,
in recent decades, the government has interpreted the “public charge” requirement to mean that immigrants are not likely to depend on cash welfare programs, which most immigrants are barred from receiving anyway. The new regulations greatly expand the definition of “public charge” to include noncash benefits as well — such as nutrition assistance, housing vouchers and subsidized medical insurance.
Public health and social service providers have raised serious concerns saying,
they have already seen a chilling effect among immigrants who are afraid to get government aid — not only for themselves but for their U.S. citizen children — for fear it could be held against them.” Indeed, according to NPR, “The Urban Institute reported recently that 13.7% — 1 in 7 — of adults in immigrant families say that they or a family member did not participate in a benefit program last year “out of fear of risking future green card status.
Already Implemented “Less Stringent” Public Charge Rule at State Department Has Dramatic Effect
According to recent State Department data obtained by Politico’s Ted Hesson, a similar regulation at the State Department already in effect provides a window into how the new DHS public charge regulation will limit legal immigration for those applying for immigration through DHS.
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.
That is more than a 1,200% increase in State Department public charge denials since 2016.
Overcoming a Public Charge Denial Out of Reach Without Very Large Bond
To overcome a public charge denial under the new regulation, a bond may be posted, in the amount that is determined by DHS, but may be no less than $8,100 and is unappealable. This bond would be on top of form and legal fees that can often stretch into thousands of dollars.
Public Charge Rule Will Further Harm Legal Immigration By Slowing Down Processing and Building Even Bigger Backlogs
This regulation is a major change in the law that is going to require major new resources and training that will exacerbate existing backlogs and processing delays. Already, the backlog exceeds 2.3 million cases and overall average case processing times have surged by 46% from FY 2016 to FY 2018 and by 91% from FY 2014 to FY 2018.
According to the regulation, “DHS estimates that the additional total cost of the rule will be approximately $35,202,698 annually” for immigrants preparing for and filling out new forms that USCIS will have to review and adjudicate. Furthermore, DHS estimates it would take 16-20 hours for a person to simply read this 837 page final rule, let alone the time it would take for government adjudicators to be properly trained to apply this extremely complex rule. According to the American Immigration Lawyers Association, the proposed rule which looks very much like the final rule could result in almost one million new forms to be adjudicated by DHS, or more than 10% of the number of forms USCIS already receives.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
This is a fundamental rewrite of our legal immigration system without a single change in the law by Congress — making more than half of the current immigrant pool potentially ineligible to immigrate to the U.S. The law, as passed by Congress long ago, ensures U.S. citizens can live in the U.S. with their spouses, children and parents, that lawful permanent residents can live in the U.S. with their children and spouses, and businesses can hire certain skilled immigrants. The public charge provision was only meant as the exception, not the rule. But now this administration has redefined the small exception by administrative action to swallow the rule of Congress.
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:
The Public Charge Rule is Trump’s attempt to reduce immigration from a core American value to a Trump Golf Club-type amenity reserved for the rich, connected and predominantly white. Aimed at excluding middle- and working class immigrants, particularly immigrants of color, Trump’s Public Charge rule is a naked attempt to cut legal immigraton without Congress changing a word of the law. It’s an outright assault on the idea of America as a ‘nation of immigrants.’ No longer will America welcome immigrants who come to our shores to build a better life for themselves and their children–unless they come flush with cash, private health insurance, and a high paying job.