A draft rewrite of long-standing immigration rules being developed by the Trump administration would intentionally skirt the U.S. Congress to place sharp, new restrictions on working-class immigrants’ ability to reunite with their family members. The draft radically reinterprets an obscure 1882 provision in federal immigration law—known as the public-charge provision—in a way that departs from more than a century of precedent established by courts and the executive branch.
As a practical matter, the plan would significantly restrict family-based legal immigration from Mexico and other countries that have been the subject of the administration’s racist and discriminatory animus. Moreover, the plan would effectively deny the premium tax credit, means-tested health insurance, Pell Grants, the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), other nutrition assistance, and other public benefits to many immigrants who are lawfully residing in the United States as well as to U.S.-citizen children living in immigrant families. Immigrants seeking family-based visas would be penalized simply for being eligible for various programs.
History of the public-charge provision
To understand what’s at stake, it’s helpful to first know the historical background of the antiquated provision that the Trump administration is reinterpreting. Under long-standing law, immigrants seeking a visa to become lawful permanent residents (LPRs), also known as green card holders, on family-based and certain other grounds can have their applications denied if they are found “likely to become public charge.” In very rare cases, green card holders living in the United States may be deported if they become public charges during their first five years in the United States.
The term public charge is an archaic one. It pre-dates federal immigration law and was typically used in the 1700s and 1800s to refer to anyone, regardless of immigration or citizenship status, who was considered unable to work and had become a charge of the state. In short, an adult or child the government had taken charge of, typically in an almshouse, asylum, state hospital, or other institution.
The federal government’s power to deny entry to immigrants who were deemed likely to become public charges was first added to federal law in 1882, a few months before the adoption of the notorious Chinese Exclusion Act. Under the 1882 provision, “any convict, lunatic, idiot, or person unable to take care of himself or herself without becoming a public charge” was prohibited from entering the United States.
Federal immigration law does not define public charge. However, given the historical roots, federal agencies and courts have a long history of defining it as someone who is incapable of work, lacks family support, and is likely to become completely dependent on government or charity for shelter and subsistence.
A statement made during the Great Depression by then-President Herbert Hoover aptly captures this core historical meaning of the term. Hoover explained that “[i]n normal times an [immigrant applying] for admission, if an able-bodied worker who means to work and has sufficient funds to support himself until he gets to his destination” would not be excluded on public-charge grounds. Hoover noted: “It is obvious that relatives of residents in the country are not likely to become public charges.”
In practice, federal officials have often used the public-charge provision in unconscionable and discriminatory ways, particularly during nativist periods in the country. As immigration historian Hidetaka Hirota explained, the origins of the federal public-charge provision were in cultural and class prejudice, particularly against Irish immigrants. After the establishment of immigration quotas based on national origin in the 1920s, the provision was used to exclude European Jews seeking to escape Nazi genocide. For much of its history, the provision has often been used to exclude immigrants viewed as morally deficient, particularly unmarried mothers. Immigration officials in the first half of the 20th century viewed LGBT immigrants as “degenerates” and sometimes turned to the public charge provision to exclude them from the United States.
Disabled immigrants have been the group most consistently targeted for exclusion on public-charge grounds. As Douglas Baynton, a historian at the University of Iowa, has documented, the public-charge rule “was intended to screen out those considered ‘physically defective.’’’ Often, this judgement was “based solely on impaired appearances, by officials who thought them therefore unemployable as well as undesirable hereditary specimens.” Even today, under current policy, immigrants can be excluded on public-charge grounds if they are found likely to become primarily dependent on Supplemental Security Income (SSI), or if they are institutionalized for long-term care. In making this determination, immigration officials must consider age, health, family status, assets, resources, financial status, education, and skills.
Potential outcomes of the Trump administration’s draft plan
Consistent with historical interpretation of the term, the term public charge is currently defined to mean being “primarily dependent” on cash assistance—such as SSI and Temporary Assistance for Needy Families (TANF)—for subsistence or receiving Medicaid for long-term care. The draft executive order would radically redefine “public charge” to include the likely receipt of “any government assistance.” More specifically, under the new rule, someone would be denied a green card if an immigration officer concludes they are “likely” to receive even just one of the following types of assistance:
- Various health benefits—including Medicaid, the State Children’s Health Insurance Program (SCHIP), and the premium tax credit—but excluding Medicare
- Various forms of nutritional assistance, including WIC and SNAP
- Various forms of educational assistance, including Pell Grants and Head Start
- Various forms of homelessness, housing, transportation, and utility assistance, including Low Income Home Energy Assistance Program (LIHEAP)
As a practical matter, merely being likely to be eligible for any these programs—even if an immigrant would never use them—will be enough for immigration officials to deny them a green card on public-charge grounds.
In addition, the rule singles out disabled people for exclusion. If an immigrant has a “costly medical condition” and does not have “unsubsidized health insurance,” immigration officials must treat that condition as a “heavily weighted negative factor”—one that will effectively require them to exclude the immigrant on public-charge grounds. This gives immigration officials almost unbridled power to exclude anyone they deem unfit.
Only one factor is weighted heavily in favor of an immigrant: being a “healthy person” of employable age with financial assets, resources, and support of at least 250 percent of the federal poverty guidelines or being authorized to work and currently employed in a job that pays over that amount. For a family of four, 250 percent of the current poverty guidelines is $62,750 a year. This amount is nearly $12,000 more than the median earnings of full-time white male wage and salary workers. In short, the draft order would redefine public charge in pretty much the same way as then-Rep. Paul Ryan (R-WI) defined “takers” in 2010—a group that, for him, included about 60 percent of Americans.
While cloaked in rhetoric about “protecting American taxpayers,” the real agenda here is drastically reducing the number of immigrants from Mexico and other countries viewed by both the Trump administration and nativist groups with discriminatory and racist animus. Knowing that it lacks congressional support for restricting family-based immigration, the administration is now preparing to go nuclear.
At this point, the draft is still a draft. It is likely that it will be officially published in the Federal Register as a proposed rule in the next month or two. After that, there will be 30 days to 60 days for the public to comment on it. As currently drafted, benefits—besides SSI and TANF for subsistence and Medicaid for long-term care—received before the rule is finalized will not be considered in future public-charge determinations. Immigrant families who are currently receiving benefits that would be covered by the reinterpretation shouldn’t panic, but they should know there might be changes. It’s also important to note that refugees and certain other categories of immigrants are not subject to the public-charge test.
There is still time for the Trump administration to pull back on this vicious attack on immigrants and U.S. immigration policy. In the meantime, individual families should turn to advocacy organizations for information on how the proposal may affect them.
Shawn Fremstad is a senior fellow at the Center for American Progress.