The Trump administration has finally published its long awaited proposed regulation that expands a current rule denying applications to immigrants it deems “public charges”—that is, people who are likely to rely on the government for their support in the United States. As the Department of Homeland Security (DHS) explains in its proposed new rule.

The primary benefit of the proposed rule would be to help ensure that aliens who apply for admission to the United States, seek extension of stay or change of status, or apply for adjustment of status are self-sufficient, i.e. do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.

My colleagues at the Cato Institute have repeatedly urged proposals that would lead to this same result. Indeed, we believe that this goal should apply to all people regardless of immigration status. For decades, we have proposed to build a wall around the welfare state, not around the country. However, while this version of the rule significantly improves upon a draft version leaked to the public earlier this year – which I commented on here – it unfortunately still retains many of the same problems as the first version. These defects will seriously undermine any fiscal benefits that the rule could provide.

Background

As I’ve explained before, since 1891, federal immigration law has denied visas or status to foreigners deemed “likely to become a public charge” in the United States. The likely public charge law does not directly prevent immigrants from legally receiving welfare. Rather, it prevents them from receiving legal status in the United States if a government bureaucrat predicts that they could end up at some point in the future depending on welfare that the law allows them to receive. This draft rule would alter the procedures governing how DHS bureaucrats make these likely public charge predictions. It would apply to anyone in the United States applying to adjust or extend their status in the country or those seeking to enter the country for the first time.

DHS’s current guidance from 1999 defines public charge to mean “primarily dependent” on welfare, as demonstrated by the receipt of certain cash welfare programs. This new rule would redefine the term to mean receipt of any government assistance in any amount greater than 15 percent of the poverty line over the course of any year of their lives (or the use of certain programs for more than 1 year). To predict the likelihood of future use, the rule requires adjudicators to consider a list of seven factors and at least 19 pieces of evidence.

Problems with the Rule

First, the most important fact, which is often obfuscated in DHS’s explanation of the rule, is that the rule does not render any immigrant or group of immigrants ineligible for any public benefits. Instead, the rule will predict whether an immigrant could—in the future—use public benefits that they are legally entitled to. Not a single person will lose their eligibility for benefits under the rule. Instead, immigrants will lose their eligibility for status in the United States. In other words, rather than building a wall around welfare, the rule adopts the opposite approach: it uses the welfare state as an excuse to further wall off the country.

Second, DHS largely ignores the degree to which immigrants can support themselves. The historic understanding of public charge has always had two aspects: use of benefits and inability to support oneself apart from those benefits. The rule defines “public charge” to mean anyone who uses more than 15 percent of the poverty line in public benefits—$2.50 per person daily for a family of four. This absolute standard overlooks the extent to which the person is supporting themselves. For example, a family of four making 175 percent of the poverty line, or $43,925 annually in private income, but which received $2.50 per day per person in government aid would be receiving just 8.6 percent of their income from the government, meaning that they are 91.4 percent self-sufficient. Yet the rule would still consider a member of this family a “public charge” and ban them from the United States.

While the rule states that having an income 250 percent of the poverty line or greater will be a “heavily weighted” positive factor, even people above this line could be deemed public charges if they received $2.50 per day per person in a family of four. Thus, even immigrants who are 95 percent self-sufficient could still be considered public charges.

The current DHS standard for public charge of “primarily dependent” on government—i.e. 51 percent of a person’s income or greater—appropriately considers both aspects of public charge and protects taxpayers from losing billions in tax revenue from immigrants who are largely self-reliant.

Third, the rule fails to define what it means by “likely.” Given that the entire function of the rule is to predict the probability of future benefits use, DHS bureaucrats will have to define the threshold likelihood on a case-by-case basis, creating uncertainty for applicants and leading to denials for immigrants who should be approved. This imprecision is strange in light of the great precision with which DHS attempts to measure household income and benefits amounts. In normal parlance, “likely” implies a level of certainty greater than a coin flip. For CIA analysts, the accepted meaning of “likely” is greater than a 70 percent probability. Yet DHS’s commentary on public benefits use by noncitizens implies that predicted use rates as low as 20 percent might trigger a public charge determination.

Fourth, the rule’s complex weighting system for determining the likelihood of future use is entirely arbitrary. DHS could use data on benefits use from either Census Bureau surveys or administrative data to create a precise model for predicting an applicant’s probability of future benefits use. Instead, the rule will explicitly states that the weights will not be consistent across all applicants. Rather they would “depend on the particular facts and circumstances of each case.” This is a “points-based system” where the bureaucrats get to make up the point values as they go. This will inevitably result in wildly divergent outcomes and numerous denials for people who are not likely to become public charges. It is impossible to overstate the importance of this problem. Under this rule, no immigrant will know before they apply whether they qualify. It will sow chaos into the legal immigration system.

Fifth, DHS has still failed to estimate the most important costs of the rule—the number of immigrants who will be denied status in the United States and how much tax revenue the U.S. government will lose by reducing the number of taxpayers. This is despite the fact that the rule does estimate the number of immigrants who will supposedly cease using welfare benefits, even though the eligibility requirements for using benefits don’t change. DHS assumes that the rule will intimidate otherwise eligible aliens into not using benefits. But it makes no similar assumption about immigrants choosing not to immigrate to the United States or attempting to obtain legal status. DHS simply “acknowledges” that many aliens will be denied based on public charge determinations (p. 353), but states that it cannot estimate how many. This makes sense because its arbitrary criteria make it impossible to use the Census or administrative data to determine how many immigrants will be denied. Yet its failure to estimate these costs and its inability to do so reinforce different major problems with the rule.

In addition, DHS’s refusal to consider the net fiscal effects of the rule leads it to adopt fundamentally unsound conclusions. For example, it concludes that child migrants are more likely to use benefits while they are children, so the rule should discriminate against child immigrants. For DHS, being under the age of 18 is a “negative factor,” but according to the National Academy of Sciences, child immigrants are the most fiscally positive of all immigrants to the United States. Indeed, they are fiscally positive on average at all education levels because they have their entire working careers in front of them.

Sixth, DHS’s estimates of the fiscal benefits of the rule are not reasonable. The biggest fiscal benefit comes from its conclusion that the rule will cause 324,438 people annually to forego public benefits for which they are eligible. It arrives at this conclusion based on research showing that, following the welfare reform legislation in 1996, many eligible immigrants refused to sign up for programs. Yet that law did restrict eligibility for benefits for some immigrants, leading to the confusion. This rule doesn’t restrict eligibility at all for anyone. They are not comparable cases.

Moreover, the 324,438 people DHS predicts will not use benefits under its rule are about as numerous as the entire population of immigrants who would be subject to a public charge determination under the rule. Certainly, some of the immigrants subject to the rule might be using certain benefits now and stop, but only a small fraction of the total. The vast majority of people adjusting status in the United States are people in nonimmigrant (i.e. temporary) statuses that preclude them from eligibility for almost all federal means-tested benefits programs, so the benefits of them stopping will be very small. Yet DHS assumes that the rule will saves billions of dollars from less welfare use.

Conclusion

DHS needs to revisit its rule. Hopefully, the comments that it receives prior to its publication will cause it to reconsider this misguided approach to reforming the legal immigration system. Ultimately, the rule will wreak havoc on the system, deny many more contributors than welfare abusers, and harm the fiscal security of the United States. America needs immigrants, and the National Academy of Sciences recently produced a number of estimates of the fiscal effects of immigration. The average of those estimates indicate that a recent immigrant to the United States will contribute to all levels of government, in net present value terms, $150,000 more in taxes than they receive in benefits over their lifetime. DHS needs to narrow its rule significantly before it will pass a basic cost-benefit analysis.