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The Trump Administration’s New “Public Charge” Rule

boydadimmigrationrallyThere’s been no shortage of things to write about over the past two-and-a-half years, either substantively or otherwise.  The Trump Administration’s (or Stephen Miller’s) decision to change the “public charge” rule ranks up there as one of the most important things that I’ve had an opportunity to address.  Assuming no litigation to stop the change, the proposed change to the “public charge” rule will dramatically expand the number of immigrants that the Department of Homeland Security (DHS) could deem ineligible for lawful permanent residence (i.e., for Green Cards) or admission to the United States on account of income level and prior use of certain public benefits.

As often is the case in these articles, a little context is in order.

Under the Immigration and Nationality Act (INA), an individual may be denied admission into the United States or denied the ability to become a Green Card holder if he or she is “likely at any time to become a public charge.”[1]  An individual who has previously been admitted to the United States may also be subject to removal / deportation from the United States based on a separate public charge ground of deportability.  There are certain exemptions to these provisions (e.g., for refugees and asylees).

DHS and the Department of State (DOS) are the agencies that implement the INA’s public charge provisions. DHS addresses whether to make a public charge determination when an individual applies to become a Green Card holder in the United States.  DOS, on the other hand, makes its own public charge determination when its consular officers review applications for immigrant visas (the document that allows an individual to enter the United States as an LPR).

Although the INA does not itself define what the term “public charge” means, DHS guidance has defined it to mean a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.”[2]  Historically, in determining whether an individual meets the definition for public charge inadmissibility, a number of factors must have been considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.[3]  Also important in the consideration is whether the petitioner who, e.g., sponsored his or her qualifying family member, submitted a sufficient “affidavit of support”.[4]

On August 14, 2019, DHS published a final rule governing the INA’s public charge grounds of inadmissibility. It goes effect on October 15, 2019.  If not prevented from going into effect, the rule will have a chilling effect on families throughout the country who choose to forgo essential services to avoid imperiling their immigration status. (Candidly, the very announcement of the new rule has already had this chilling effect.)

The new rule dramatically changes the standard by which DHS determines whether an applicant for a Green Card or admission to the United States is “likely at any time to become a public charge.”  Under the new rule,[5]DHS removes the consideration of whether an individual is primarily dependent on public benefits, and now redefines public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.[6]  This rule will severely punish individuals for seeking basic needs and will no doubt put families at risk of separation.

As alluded to earlier, under current law, a petitioner (e.g., family member) for someone applying for a Green Card or admission as an immigrant is typically required to file an “affidavit of support”, which wasn’t always outcome-determinative as to whether an individual would likely at any time in the future become a public charge, but was very helpful in swaying that determination in favor of the applicant.  Not so any longer under the new rule.  Under the new rule, DHS adjudicators will apply a complex totality of circumstances test that weighs the individual’s age, health, family status, education and skills, and assets, resources, and financial status, all while taking into account a broad range of positive and negative factors. DHS has also indicated in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits defined by the rule.

There are many consequences to this new rule.  The new rule is far more restrictive than current policy, and no doubt will result in higher denial rates for those applying for Green Cards that are subject to public charge determinations. Moreover, the new multi-factor test will leave too much discretion to DHS adjudicators and likely will also produce inconsistent and unpredictable decisions.

As bad as all that is, and it’s bad, more importantly the announcement of the new rule, and its implementation, has created and will now exacerbate a chilling effect felt throughout immigrant communities.  According to the Urban Institute, about 14% of adults in immigrants families indicated that they or a family member opted not to participate in a non-cash public benefit program in 2018 because of their concern over jeopardizing their green card eligibility.[7]  Again, this new rule will punish individuals for seeking very basic needs.

This new rule is yet another brick in what has come to be known as Trump’s (or dare I again say Stephen Miller’s) “invisible wall”, which has been nothing more than far-reaching policies and practices restricting legal immigration to and in the United States.  Enough is enough.

[1]INA §212(a)(4); 8 U.S.C. §1182(a)(4)(A).

[2]See“Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

[3]An exception to this would be the lack of an “affidavit of support,” if one is required for an individual to become an LPR or to be admitted to the United States.

[4]Seee.g., 8 U.S.C. §1183a.

[5]8 C.F.R. §212.21(a).

[6]The new rule defines a public benefit as (1) Any federal, state, local, or tribal cash assistance for income maintenance, including: (a) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.; (b) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; (c) Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); (2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c; (3) Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f; (4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f); (5) Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and (6)

Public housing under section 9 of the U.S. Housing Act of 1937.

[7]http://www.urban.org/research/publication/adults-immigrant-families-report-avoiding-routine-activities-because-

immigration-concerns.

Melania, Stephen Miller, and Immigrant “Haves vs. Have Nots”

dreamstime_xs_62076674-copyOn the one hand, we have a President who is married to a naturalized citizen of the United States.  To my understanding, Melania Trump was originally an O-1 nonimmigrant in the United States (a temporary visa status reserved for, in her case, a fashion model of extraordinary ability in business) who later used a comparable immigrant category to obtain lawful permanent residence.  She then, eventually, applied for naturalization and became a citizen of the United States.

Fast forward, in what can only be described as a case of chain migration (something the President has professed to being opposed to), the President’s wife then petitioned for her own parents to come to the United States as immigrants, as she has the legal right to do under the law. Fast forward one more time, Mrs. Trump’s parents do come to the United States and, after a period of time, they apply for naturalization themselves, something they also have the right to do under the law.  These naturalization applications, according to recent news reports, were granted.  I work with clients every single day under similar fact patterns.

Juxtapose this with the fact that the President, himself individually and through his minion, Stephen Miller, is actively pursuing a policy to make it harder to become a lawful permanent resident (i.e., a Green Card holder), or for some lawful permanent residents to obtain citizenship.  This is on top of all the other ridiculousness we’ve witnessed thus far over the summer, including the forced (and in many instances continued) family separations, actively opposing the continuation of Deferred Action for Childhood Arrivals (“DACA”), among other acts of stupidity and egregiousness.

How is this so?  How can a man who’s own wife (indeed even his own ex-wife too) and who’s own in-laws are immigrants to this country be so callous and cold-hearted to literally an entire class of human beings (i.e., anyone who was not born in the United States but yet wants to permanently reside in the United States)?  Can someone explain this to me?  Is the President’s family better than all the other aliens who want to become permanent residents of the United States?  Or do they simply have more means?

And what about Mr. Miller?  It seems that his family too were immigrants to the United States, arriving through Ellis Island from what is now Belarus.  It seems that Mr. Miller’s relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century.  According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket.  He peddled street corners and worked in sweatshops.  And by all news accounts, he worked hard and become very successful.  That’s a great story.

With that as backdrop, the President, through Mr. Miller, is now pushing to enact a policy that could penalize legal immigrants whose families receive a wide array of public benefits and make it more difficult for them to obtain citizenship.  At its core, the President’s proposal would penalize lawful permanent residents if they or their family members (including their U.S. citizen family members) have ever used government benefits (e.g., health care subsidies under the Affordable Care Act, some forms of Medicaid, the Children’s Health Insurance Program, food stamps and the Earned Income Tax Credit).  If I was a permanent resident, because one of my sons receives services from the county, I could actually be impacted under this law.

Up until 1996, lawful permanent residents were eligible to receive public benefits on the same terms as U.S. citizens.  In 1996, however, Congress passed a welfare reform law that barred permanent residents who resided in the United States for less than five years from participating in any means-tested public benefit programs (e.g., Temporary Assistance for Needy Families, Supplemental Security Income, Medicaid/Children’s Health Insurance Program, and food stamps).  The 1996 law labeled newly arriving immigrants who might not be able to provide for themselves as “public charges,” making them inadmissible unless they could demonstrate that they were not subject to that provision of the law.

The law still allows for the removal of lawful permanent residents who, within five years of their arrival to the United States, become public charges.  That said, administrations prior to the current one have limited the public charge definition in this context to immigrants who use cash welfare programs or long-term institutional care funded by the government.  Consequently, very few people have been removed from the United States.  All this could change, however, if Mr. Miller gets his way.  How so?

The law would redefine the terms “public charge” and “means-tested public benefits” to include a much wider variety of federal programs. Second, the government could remove legal permanent residents for using benefits. Under the President’s proposed policy, lawful permanent residents could be removed for using a wide variety of public benefits, potentially including food and nutrition assistance, federally subsidized health insurance through Medicaid or the Affordable Care Act, and even education benefits.  Third, although the law currently allows immigration officials to refuse to admit prospective immigrants to the United States who could become public charges, the new policy, as currently written, could be interpreted to make a high-school degree or better a prerequisite for admission to the United States, or for someone to have a certain amount of assets. (This would obviously not impact the President’s in-laws, but could severely impact low-income or less well-educated immigrants from coming to be with their families).  And finally, although also on the books now, the new policy would instruct federal agencies to request reimbursement for benefits used by legal immigrants. (This rarely happens now.)

So, where does that leave us?  The haves and have nots?  It sure sounds like it.  It sure sounds like the President and Mr. Miller are attempting to portray legal immigrants as a drain on our system, somehow taking advantage of people like you and me.  This is simply not the case.   According to the CATO Institute, “[o]verall, immigrants are less likely to consume welfare benefits and, when they do, they generally consume a lower dollar value of benefits than native-born Americans.”

Mr. Miller’s family is an example of how immigrants can come to the United States, work hard, and become successful.  But not everyone’s experience in America will be perfect, and sometimes individuals need to lean on our government for some help.  No one should be forced to make a decision between ensuring their legal status in the United States is preserved against making sure their family is healthy and can eat.  No one should ever have to make that decision.

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