The Trump administration has given notice of its intent to expand a current rule denying certain immigration applications to “public charges”—that is, people who are likely to rely on the government for their support. “The primary benefit of the proposed rule would be to help ensure that aliens … are self-sufficient,” the Department of Homeland Security (DHS) writes in a leaked version of the draft regulation. This intention coheres with Cato proposals to move immigrants (and everyone else) off government support, but the rule itself has serious problems that will have a net negative effect on government budgets.
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 with the receipt of certain cash welfare programs. This new rule would redefine the term to mean receipt of any government assistance, including refundable tax credits, in any amount greater than 3 percent of the poverty line—$1 per day for a single person or 50 cents per day per person for a family of four, respectively, over the course of any year of their lives. In addition, it counts the use of public benefits by U.S. citizens—spouses, children, or parents—who depend on the immigrant. To predict future use, the rule requires adjudicators to consider a list of seven factors and at least 19 pieces of evidence.
Brief Overview of the Draft Rule’s Problems
The new rule has seven particularly serious problems.