Proposed Immigration Rules and the Safety Net

The Issue:

Current law prevents people who are deemed likely to become a "public charge," that is, dependent upon government support, from becoming legal permanent residents of the United States. The Department of Homeland Security is reportedly proposing to expand the definition and determination of who is a public charge in a way that would make requirements for permanent legal immigration to the United States more stringent, according to a draft proposal, released by the Washington Post on March 28, 2018. As drafted, the proposal changes current law to go beyond the receipt of public cash assistance and consider someone as a public charge if he or she has participated in non-cash programs like government-subsidized health insurance and food assistance. The proposal also changes the law by emphasizing the consideration of factors that may make someone likely to use such services in the future, rather than relying mainly on the person’s history. Furthermore, it allows legal non-citizens to be considered a public charge if their dependents use benefits, and this includes many of the 11.5 million U.S.-citizen children in “mixed-citizenship” households (that is, households that include at least one citizen and at least one non-citizen).

The proposed changes could have important adverse impacts on the lives of legal immigrants and the many U.S. citizens who are part of their families.

The Facts:

• The proposed change in rules is potentially relevant for about 14 percent of the United States population, including 23 million non-citizens living in the United States and another 21 million citizens who live in mixed-citizenship households. The proposed rule most directly applies to the roughly 12 million non-citizens legally living in the United States. Another 21 million citizens live in households with at least one non-citizen, including 11.5 million citizen children.
• The consideration of non-cash benefits for determination of whether someone is a “public charge” would change the approach of the Immigration and Naturalization Service (INS) that has been in place for almost two decades. In 1999, the INS clarified that it would not consider receipt of Medicaid, Food Stamps, or other non-cash benefits as part of a public charge determination. The agency at that time argued that use of these non-cash programs did not constitute dependency on the government in the sense meant by “public charge”, and noted that, in many cases, these programs enabled self-sufficiency. Because of this, currently a non-citizen is determined a public charge if they have become, or are likely to become, primarily dependent on the government for subsistence as demonstrated by either the receipt of public cash assistance or institutionalization for long-term care at government expense. By contrast, the leaked document reflects a shift whereby the use of any means-tested government benefit within the past three years would be a heavily weighted determinant of whether a legal non-citizen is considered at risk of being a “public charge.” Non-cash benefits such as food assistance (SNAP), Medicaid, and Obamacare health insurance subsidies would be newly considered for determination of permanent residency. Receipt of the Earned Income Tax Credit and requests for fee waivers for immigration processing would also be considered, as would any means-tested support from state or local governments.
• Non-cash benefits are much more commonly accessed than cash benefits by citizens and non-citizens alike. The increased emphasis on work and diversion away from cash benefits under welfare reform has been accompanied by growth in non-cash assistance programs to help low-income people meet basic needs. Consequently, the cash-based safety net has weakened since 1996, while non-cash programs such as food assistance and public health insurance have been expanded. My analysis of data from the March 2017 Current Population Survey suggests that, among non-citizens, 2 percent live in a household that receives cash welfare from TANF (Temporary Assistance for Needy Families), whereas 20 percent are enrolled in Medicaid and 15 percent live in a household that receives SNAP (Supplemental Nutrition Assistance program, formerly known as the Food Stamp Program).
• Low-income citizens have substantially higher participation rates in the safety net than low-income non-citizens. For example, the participation among poor citizens versus poor non-citizens in TANF is 7 percent versus 5 percent, for Medicaid is 52 percent versus 32 percent, and for SNAP is 48 percent versus 36 percent. The lower rates of safety net use among poor non-citizens are not surprising given that many non-citizens are ineligible for these programs because they are undocumented or have arrived within the past five years (newly admitted permanent residents are barred from receiving federally-funded safety net benefits for five years). Citizens have slightly lower rates of safety net participation overall, largely because their incomes tend to be higher than those of non-citizens.
• The proposed rule allows for a determination that immigrants are public charges if their dependents participate in non-cash assistance programs, even if the dependents are U.S. citizens. Roughly one in six children who are a U.S. citizen live in a mixed-citizenship household (i.e., a household with at least one citizen and one non-citizen).  The most significant group of children to be affected by the proposed rule change would be children who are citizens whose parents are legal non-citizens. A significant fraction of children in mixed citizenship households receive non-cash safety net benefits (see figure). For example, 49 percent of citizen children in mixed citizenship households and 35 percent of non-citizen children in such households use Medicaid for health insurance, compared to 32 percent of citizen children in all-citizen households. For SNAP, 25 percent of citizen children and 23 percent of non-citizen children in mixed-citizenship households reside in households that participate, compared to 18 percent of children in all-citizen households. (Children who are not citizens and live in households without any citizens are less than 2 percent of the total child population in the U.S., and are less likely than other children to participate in safety net programs.)
• The proposed rule’s emphasis on prospective determination means that certain categories of immigrants are particularly likely to be deemed at risk of becoming a public charge, even if they have never used safety net benefits. Though existing guidance considers the public charge determination to be a prospective one, the new draft rule highlights specific factors separate from benefit use that may constitute a higher risk of being a public charge in the future. These include the presence of dependents, presence of medical conditions that could limit work or require future reliance on subsidized health insurance, request of a fee waiver for immigration processing, credit score, education, and English proficiency, among others.
• The new rule would likely cause lower participation in public health insurance by immigrants. This conjecture is consistent with the experience after the 1996 welfare reform that reiterated a long-standing (but rarely used) “public charge” doctrine that allowed the government to consider the receipt of benefits in determining admissibility and adjustments to status. The 1996 reform also subjected new legal immigrants to a five-year waiting period before receiving federally-funded benefits. Participation in the Medicaid (public health insurance) program fell substantially following the law. In part this was due to a contemporaneous change in enforcement activity, discouraging undocumented immigrants from enrolling their citizen children. But it was also due to some legal non-citizens becoming fearful that enrolling themselves or their children in public health insurance could jeopardize their pathway to citizenship. Given the expanded reach of government in the health care system with Obamacare health insurance subsidies and an expanded Medicaid program, the draft rule could generate more pronounced chilling effects on health insurance than the 1996 episode.