Author:Bier, David

The Trump administration has proposed a new regulation that would greatly expand an old rule banning legal residence to immigrants deemed "likely to become a public charge"--that is, someone who the government has die responsibility to care for (USCIS 2018). The rule does not, nor could it, change eligibility for welfare programs for noncitizens in the United States. Instead, it requires applicants to prove that they are not likely, in the future, to become so dependent on welfare that they become a "public charge." Therefore, the question regarding this regulation is not whether it is appropriate for noncitizens to become dependent on welfare, but whether the government will accurately predict their likelihood of doing so.

An accurate prediction would require the government to establish three things: (1) a workable definition of a public charge, (2) a threshold probability for considering someone "likely" to become one, and (3) a valid methodology for determining an applicant's individual probability. The new regulation from the Department of Homeland Security (DHS) fails on all counts. Its overbroad definition of a public charge will reject applicants who the government itself determines will primarily support themselves. In addition, it establishes no threshold probability for considering someone "likely" to become a public charge, and its methodology for determining someone's likelihood is simply nonpredictive. Due to these inadequacies, DHS entirely fails to estimate how many people the rule will deny status.

If the department corrected the regulation, however, the regulation should deny few immigrants because few immigrants are likely to become public charges. The regulation primarily affects family-sponsored immigrants who already need a U.S. relative capable of supporting them at 125 percent of the poverty line, and very few applicants trying to receive permanent status to the United States are already using welfare, which census data indicate is one of the only certain predictors of future public benefits use. But the ambiguity and uncertainty in the regulation will certainly result in many applicants wrongly charged as "likely to become a public charge." DHS should reissue its regulation to guarantee that the legal system is still a viable option for future immigrants.

DHS Defines "Public Charge" to Include Nearly Wholly Self-Sufficient Immigrants

Congress first enacted the statute on which the current public charge rule is based in the Immigration Act of 1882. (1) The theory behind it was the same as for rules--enacted in the same legislation--that prevented the immigration of thieves and criminals. If the immigrant's reason for relocating was to steal from or live off Americans, the government could protect its citizens from them. But this theory only extended to those who could not support themselves apart from public aid. If the government assisted people who would not be destitute without it, then that was the government's choice--not a duty thrust upon it by the individual receiving aid. (2)

Thus, in its original understanding, "public charge" always had two components: substantial assistance from die government and inability to support oneself without it. In the 19th century, public charges were identified as "paupers" who lived in state- or locally funded almshouses--they were "wards of the state" for whom the government had near-total responsibility (Hirota 2017). The current DHS guidance accounts for both aspects of its historic meaning, defining "public charges" as those whose primary source of cash income (i.e., more than 50 percent) will come from means-tested government welfare programs (INS 1999). (3)

DHS's new regulation disregards this twofold understanding. It states, "although a 50 percent threshold creates a bright line that may be useful for certain purposes, it is possible and likely probable that individuals below such threshold will lack self-sufficiency and be dependent on the public for support" (USCIS 2018: 51). But rather than lower the threshold to 40 percent, 30 percent, or even 20 percent of a person's income, DHS plans to impose an absolute standard that ignores entirely the degree to which immigrants will support themselves.

The new definition will consider immigrants public charges if the government claims that they will likely use more than 15 percent of the poverty line--that is, $1,821 annually or $5 per day for a single individual. DHS determined Medicaid cannot be "monetized," so it will treat enrollment for 12 months or more in any 36-month period as equal to the 15 percent figure. For example, someone who will make 150 percent of the poverty line ($18,210) and is projected to receive $1,821 ($5/day) in means-tested benefits would be deemed a "public charge," even though they are 90 percent self-sufficient. Indeed, even people who the government itself projects will be 95 percent self-sufficient could easily be deemed a public charge.

This situation is far from uncommon. According to DHS's own estimates (see Figure 1), 56 percent of the noncitizens who received at least one means-tested welfare program in 2013 had household incomes greater than 400 percent of the poverty line, and 75 percent had incomes greater than 250 percent of the poverty line, while just 14 percent had incomes below 125 percent of the poverty line (USCIS 2018: 93). The distribution was essentially the same for U.S. citizens. Someone making 400 percent of the poverty line who received $5 per day in benefits would be at least 96 percent self-sufficient.

This illustrates not only how far removed America's social safety net has become from serving people in desperate need but also why receipt of benefits alone is not sufficient evidence that recipients are unable to support themselves without the aid. Along the same lines, the Department of Health and Human Services (DHHS) has found that only 20 percent of all welfare users received benefits in excess of 50 percent of their income from food stamps, Supplemental Security Income, or Temporary Assistance to Needy Families (Crouse and Macartney 2018: 8). Even perfectly implemented, DHS's definition of public charge would keep out many immigrants who will be overwhelmingly self-sufficient.

This outcome fails to accord with the original meaning of the statute, but more importantly, it would harm the U.S. economy by excluding workers and taxpayers from legal residence in the country. In 2017, noncitizens receiving welfare paid $3.2 billion in taxes in all levels of government and had a combined income of $21.4 billion, according to the Census Bureau's Annual Social and Economic Supplement of the Current Population Survey (4) While not all noncitizen welfare users are contributing to the United States, many are, and DHS's regulation fails to consider this fact.

DHS's current guidance does not consider noncash welfare programs like Medicaid, housing, and...

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