After getting a preliminary green light from the U.S. Supreme Court in January, the Trump administration is set to subject immigrants to heightened scrutiny based on their perceived likelihood to rely on America's public assistance programs, what some critics call a wealth test.
Beginning Monday, U.S. Citizenship and Immigration Services (USCIS) will begin implementing the public charge rule, under which low-income immigrants can be denied legal residency, visas or admission into the United States. The rule is being challenged in federal courts, but the Supreme Court allowed it to go into effect, pending the outcome of litigation.
Which factors will be considered under the public charge rule?
Mark Greenberg, senior fellow at the Migration Policy Institute, said USCIS will be looking at a wide range of factors, including an immigrant's age, education, work history, family structure, English language skills and income.
“All trying to make a judgment if this person is likely to use public benefits at some future point in their life,” he said.
Does the rule apply to all immigrants?
The rule does not apply to U.S. residents seeking to become U.S. citizens. It also does not apply to certain U.S. visa holders, including those who are in the United States to assist in the investigation or prosecution of crimes. In addition, U.S. officials have said the public charge interpretation would not apply to people who already have green cards, to certain members of the military, refugees, asylum-seekers, pregnant women or children.
Which benefits would cause an immigrant to be regarded as a public charge?
Broadly speaking, any federal, state or local cash assistance program, including Supplemental Security Income, Temporary Assistance for Needy Families and general assistance programs for income maintenance. In addition, use of programs designed to help the poor afford food, housing and medical expenses could also trigger a public charge finding.
What formula will USCIS use to determine a public charge?
A person may be deemed a public charge if he or she has used one or more public benefits for more than 12 months within any 36-month period. Under the rule, receiving two benefits in one month counts as two months of consuming public resources.
What types of visas will fall under the rule?
According to USCIS, the rule will apply to all applicants for any type of visa and people within the United States who hold nonimmigrant visas “and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.”
Critics of the rule said they expect immigration officers to look more closely at those applying for legal U.S. residency, also known as a green card.
"The discretionary consideration of these factors under the new rule will impact green card applicants from low-income families," the Immigrant Legal Resource Center said in an online posting, adding that the rule "will likely be applied inconsistently and cause fewer legal immigrants to enter the United States.”
Under U.S. law, a legal permanent resident can qualify for federal benefits after a waiting period. In most cases, the individual must wait five years after achieving residency to apply for government assistance.
Is the public charge rule a new concept?
U.S. statutes dating to the 1800s set forth that immigrants must be self-sufficient. Greenberg said that for more than 20 years U.S. immigration officers have looked at whether someone was likely to be primarily dependent on government for cash assistance or long-term institutionalization.
"So, it was a pretty narrow test, because it's not just looking at, ‘Would you ever receive … ,’ but ‘Are you likely to be primarily dependent on the government?’ " Greenberg said, adding the new interpretation of the rule mandates scrutiny of a wider array of public benefits that would not have triggered a public charge finding in the past.
What is the administration's justification for the public charge rule?
The Trump administration contends the United States should welcome immigrants based on demonstrated merit.
“Self-sufficiency and self-reliance are key American values not to be litigiously dismissed, but to be encouraged and adopted by the next generation of immigrants," acting Homeland Security Deputy Secretary Ken Cuccinelli said in a statement.
Cuccinelli said the administration plans "to fully implement this rule" and is confident the policy will survive pending legal challenges.
Greenberg, of the Migration Policy Institute, said a common misconception is that people with green cards or visas receive public benefits.
“The reality is that the way that our benefits laws are set up … many of them are simply ineligible for public benefits," he said.