How Will The Public Charge Rule Impact Employers And Immigrants?
On September 22, 2018, the Department of Homeland Security (DHS) released a notice of proposed rulemaking that could have a dramatic impact on immigrants, temporary visa holders and U.S. employers. If fully implemented, the “public charge rule,” as it is known, could be the most far-reaching immigration policy change made during Donald Trump’s time in office.
To better understand the proposed rule and its potential impact, I interviewed Doug Rand, who served as assistant director for entrepreneurship at the White House Office of Science and Technology Policy (September 2010 to January 2017) and is president and co-founder of the technology startup Boundless.
Stuart Anderson: Under current law, what does the term public charge mean?
Doug Rand: Congress long ago established that the U.S. government can deny certain green cards and temporary visas to anyone who “is likely at any time to become a public charge” – but without defining precisely what “public charge” means. The law allows immigration officers to “at a minimum consider the alien’s age; health; family status; assets, resources and financial status; and education and skills.” They can also consider a sworn statement of financial support from a sponsoring relative and, in fact, this “affidavit of support” is required for many family-based green card applications.
Anderson: How is public charge currently applied?
Rand: There have been periods of confusion, especially after major immigration and welfare reform bills were passed by Congress in 1996. Even though the new laws did not prohibit immigrants from using public services, such as emergency rooms and school lunch programs, families read the headlines and became worried.
In 1999, to clear things up, immigration officers adopted the guiding principle that a public charge is a foreign national with “the likelihood of . . . becoming primarily dependent on the government for subsistence,” as evidenced by use of a short list of government benefits: cash assistance (“welfare”), Supplementary Security Income (SSI) for the disabled, or assistance for long-term institutional care like a nursing home or mental health institution.
Anderson: How has that affected immigrants and visa applicants so far?
Rand: Very few people have traditionally been denied a green card or temporary visa on public charge grounds for two primary reasons.
First, Congress has already barred most non-citizens from using welfare, SSI, and non-emergency Medicaid, so that’s not an issue.
Second, Congress requires most green card applicants to have a financial sponsor – typically a family member who is a U.S. citizen – who declares their willingness and ability to support their relative and prevent them from becoming dependent on government benefits. So, under current rules, you know you won’t be considered “likely to become a public charge” as long as you have a sponsor who demonstrates income greater than 125% of the federal poverty guidelines (currently $20,575 for most couples without children).
Anderson: What is different in the new DHS proposed rule?
Rand: DHS wants to turn more than a century of precedent on its head. Instead of keeping the current definition of a “public charge” as someone “primarily dependent on the government for subsistence,” DHS would start denying green cards and temporary visas to anyone who is deemed likely at any time in the future to receive any government benefit from a specified list.
Anderson: What would that mean in practice?
Rand: 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.
Any of the following factors could become a “negative factor” that convinces DHS you are likely to become a public charge:
- Prior or current use of certain public benefits.
- Being older than 61.
- Being younger than 18.
- Having any medical condition that could interfere with school or work.
- Not having sufficient resources to cover such a medical condition.
- Not having private health insurance.
- Having several children or other dependents.
- Having financial liabilities.
- Having “bad credit” or a low credit score.
- Having no employment history.
- Not having a high school diploma or higher education.
- Not having “adequate education and skills” to hold a job.
- Not speaking English.
- Receiving an application fee waiver from DHS.
- Having a sworn financial sponsor whom DHS feels is “unlikely” to follow.
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.
Anderson: How does this rule affect the practices of the Department of State and the Department of Justice?
Rand: For the most part, DHS only decides who gets to stay in the United States, by deciding whether to approve or deny applications for extensions and change of status (i.e., international student to H-1B), or applications for green cards from people who are already here. But it’s clear in this latest rule proposal that DHS wants these heightened public charge standards to also be adopted by the State Department, which decides who gets to come to the United States from abroad. (The State Department has already instructed its consular officers to apply a stricter set of public charge standards since January 2018, but the DHS rule is even more demanding and the ultimate plan is for the two agencies to be in lockstep.)
Then there’s the Department of Justice, which largely decides which permanent residents could be deported on public charge grounds. Historically, if you had a green card, this wasn’t something you had to worry about. But the Trump administration just quietly revealed that the Department of Justice intends to issue its own “parallel rulemaking” on deportability that would mirror the new and expanded DHS standards.
Anderson: How could the rule affect a U.S. employer or a temporary visa holder?
Rand: First, there are the direct effects. A U.S. employer is going to find it more difficult and much less predictable to extend the status of a highly skilled worker on an H-1B visa or to help switch a key recruit from a student visa to an H-1B. Unless the employer is paying the worker more than that newly made-up threshold – 250% of the poverty line – they might not be able to renew their work visa and stay in the United States. Assuming $73,550 for a family of five, that’s potentially going to be some portion of H-1B professionals.
Then there’s the bureaucratic cost. By DHS’s own estimate, its new public charge rule would affect over 500,000 temporary visa applications each year and compliance costs could top $1.3 billion over the next decade. And that’s a huge underestimate if the State Department starts applying the same standards to millions of applicants abroad.
It’s probably going to take longer for employers to get applications approved because a number of applicants may be required to submit an entirely new form (the I-944, or “Declaration of Self-Sufficiency”) and accompanying evidence. USCIS adjudicators and consular officers will have to sift through these new forms to make complex and subjective public charge determinations, which could create delays even for those not subject to the new requirements.
Anderson: Will adjudicators look only at benefits used after the date the final regulation is published?
Rand: Yes, the proposed rule is clear that nobody should be penalized for using public benefits until DHS implements a final regulation and officially puts these benefits off-limits, which won’t happen until next year at the earliest. That’s a really important point for people to understand, that nothing has changed yet.
Anderson: Is there a way for an applicant to know ahead of time if their application is likely to be approved?
Rand: There’s always some uncertainty involved in any application, since immigration officers exercise a fair amount of case-by-case discretion. But the DHS public charge plan would turbo-charge that uncertainty by introducing so many new factors for officers to scrutinize. DHS is demanding that its officers go beyond the usual determination of eligibility for a given green card or visa category and engage in fortune-telling: Is this applicant likely to be financially vulnerable at any point in their natural lives? If so, then deny the application.
Anderson: If a U.S. citizen or lawful permanent resident petitions for their spouse, how could their spouse be denied under the rule and what would be the consequences of that denial?
Rand: We asked ourselves this question at Boundless, since we assist married couples who apply for spousal green cards. We evaluated our own customers as a reasonably representative sample of the marriage green cards issued each year and estimated how many of them would fall below the new income threshold that the public charge rule would impose. Remember, that’s 250% of the federal poverty guidelines, currently over $41,000 for most couples without children.
We found that if this new requirement were strictly enforced by both DHS and the State Department, then the administration could begin denying more than half of all marriage green card applicants each year. That could force nearly 200,000 couples annually to either leave the United States together or live apart indefinitely.
Anderson: How would a parent, adult child or sibling be denied under the rule?
Rand: It’s possible even more parents of U.S. citizens would be denied than spouses. If you look at the list of new criteria DHS wants to impose, a great many parents could be denied on the basis of age, income, medical condition or English proficiency. The Migration Policy Institute used Census data to estimate the impact of the 250% income threshold and found that some 56% of all family-based green card applicants could be denied.
Anderson: What is the role of sponsors under the rule?
Rand: Ironically, the DHS proposal doesn’t directly change the role of a sponsor – whether that’s a U.S. citizen or permanent resident sponsoring a family member, or a U.S. employer sponsoring a worker. However, by heaping new scrutiny on the health, financial condition and other aspects of the applicant, DHS would effectively minimize the role of the sponsor in assuring that the applicant has a high chance of getting their visa or green card approved.
Anderson: Do you expect there will be legal challenges to the rule? When do you expect the rule could take effect?
Rand: Given that just about every other immigration policy executed by this administration has been challenged in court, it would be odd if the public charge rule were an exception. But that won’t happen immediately.
First, after DHS officially publishes this proposed rule, it will be open for public comments for 60 days. After that, DHS has to read through all of the public comments, prepare a response to each substantive concern, and potentially make major changes to its regulatory plan and economic impact analysis. This process usually takes a long time – six months would be light speed, and well over a year isn’t uncommon for a complex regulation like this. Only then would DHS publish the “final rule” and, if it’s not blocked by a federal judge, then it would take effect.
Anderson: What do you think is the biggest problem with the rule?
Rand: When it comes to the public charge standards, the status quo policy has served us well. Congress already decided who’s eligible for public benefits and who isn’t, and established a clear income threshold for sponsors.
The proposed rule is designed to impede and reduce legal immigration. Never in our nation’s history have we said that you have to be comfortably middle class to become an American. We didn’t say that to Alexander Hamilton, or Andrew Carnegie, or the founders of Google and WhatsApp, or countless other immigrants who came here with next to nothing, worked hard and made this country great.