The Trump administration has made no secret of wanting to drastically cut immediate family immigration to the U.S. In 2017, President Trump threw his support behind the RAISE Act, despite the fact that had such a law then been in place, his own mother, grandfather, and wife’s parents would not have been able to immigrate to the U.S. Later, he refused to support a bipartisan proposal creating a path to permanent residency for DACA holders in part because it did not cut immediate family immigration. The administration maintains that family-based immigrants are less capable of contributing to the U.S. economy than employment-based immigrants, despite centuries of contrary evidence .
Now, the Administration is on the cusp of bypassing Congress and deploying a change in regulations as its vehicle to cut immediate family immigration.
A draft proposed rule expected imminently would dramatically change how the “public charge” ground of inadmissibility is applied, with the result that immediate family immigrants who are not middle class or wealthy are likely to be denied residency. This will harm U.S. citizens and permanent residents (LPR) who petition for their immediate relatives’ residency. It will also strike a blow at our communities and our economy, which increasingly needs immigrants to help shore up our shrinking labor force. (The rule change would also apply to nonimmigrants applying to extend or change their temporary visas, but the practical impact there is likely to be minimal).
- What is the “public charge” ground of inadmissibility and how has it been applied to date?
With exceptions for refugees and some other particularly vulnerable classes of people, intending immigrants to the U.S. must prove that they are unlikely to become a “public charge” after obtaining residency. This is one of the nation’s oldest immigration laws, dating to the late 1800’s.
In assessing whether a person is likely to become a public charge, the government has historically looked at whether the person appears to be healthy, already has a history of working and/or seems willing to work in the future, and can consider the person’s age, education, skills, family supports, as well as her/his assets or other financial resources. In 1996, Congress added a requirement for family-based immigrants that became the determinant factor – an “affidavit of support” from the petitioning U.S. citizen or LPR immediate family member showing the petitioner’s ability to support the new immigrant with an income of at least 125% of the federal poverty level for the household size. Typically, as long as a family-based immigrant has the required affidavit of support, s/he is approved for residency.
- What would the proposed rule change do?
The draft proposed rule would make the family affidavit of support a mere threshold, triggering close and harsh scrutiny of the intending immigrant. The administration estimates that annually, 257,610 immediate family immigrants already in the U.S. when applying for LPR status will be subject to the rule change.
In the 200 page preamble to the 20 page draft proposed rule change, the administration discusses factors that will weigh heavily against any prospective LPR, despite her/his petitioning U.S. citizen or LPR immediate family member’s affidavit of support. Applicants may be denied residency if they:
– have accompanying children under age 18, or if they themselves are under 18 or over 61;
– do not already speak English at least “very well,” or do not have higher education;
– are not currently working (even if they have preschool age children and are stay-at-home parents, and have a prior work history);
– have a health condition and do not have “nonsubsidized” health insurance;
– do not have at least a “fair” credit score or can’t prove a history of paying bills on time;
– have lived in a household where they or their U.S. citizen family member(s), for example their children or their petitioning spouse, have received any public benefits. Under current law, only cash benefits are considered. Under the draft proposed rule, the government would also include income supports such as the Child Tax Credit and the Earned Income Tax Credit (widely considered as highly effective anti-poverty measures for low-income working families), ACA health insurance subsidies, heating assistance (LIHEAP), and Food Stamps (SNAP), among many others.
The only factor that will be weighed heavily in an intending immigrant’s favor is if s/he has income that exceeds 250% of the annual federal poverty guidelines (in 2018, that would be an income of at least $62,750 for a family of four). The Migration Policy Institute reports that 2.3 million, or 56%, of immediate family members who immigrated in the past 5 years live in families whose incomes would not meet that threshold.
- What would the impact of this rule change be?
In the proposed rule’s preamble, the government acknowledges the damage this rule is likely to cause, stating that:
the proposed regulatory action, if finalized, may increase the number of aliens found inadmissible….
Applicants for residency who are inadmissible are denied residency and in most cases then become deportable from the U.S., causing immeasurable harm to the affected family.
The government also notes that
the action has the potential to erode family stability and decrease disposable income of families and children because the action provides a strong disincentive for the receipt or use of public benefits by aliens, as well as their household members, including U.S. children. (Emphasis added).
In the preamble, the government notes that the harm the rule change will cause is worth it, because it alleges immigrants cost the country too much by their benefits use. However, multiple studies have found that immigrants contribute more than they cost in public benefits, studies that the government ignores, as a commentary by the Cato Institute recently noted.
To be clear – since 1996, new immigrants have been barred from receiving federal non-emergency public benefits for their first five years as LPRs. It is U.S. citizen children and their petitioning parent in “working poor” families whom this rule change will harm.
For example, in FY 2018, a U.S. citizen with three U.S. citizen children who is working full-time at $15.35 per hour has a low enough income to qualify for federal food stamps (SNAP). However, when the immigrant spouse applies for residency, under the proposed draft rule, the government could deny the residency application if the children receive SNAP benefits. This is despite the fact that as an LPR, the new immigrant would become eligible to work and to substantially increase the family’s income, decreasing or eliminating the family’s need for assistance. (Often the immigrating spouse is undocumented and legally unable to work until obtaining residency).
Already, having heard rumors of the proposed rule, U.S. citizens reportedly are foregoing income supports that would help keep them and their children healthy because of fears that their immigrating relative will be denied residency. And were the draft proposed rule to take effect, even in households that receive no public benefits, stay-at-home immigrant parents who provide childcare and are not working, or who speak limited English, or who have not gone to college, will likely be denied residency.
At a time when the U.S. economy is strong and unemployment is low, we need new immigrants at all skill and education levels keep our communities vibrant and to power our economy. This draft proposed rule’s clear intention to dramatically reduce immediate family immigration to the U.S. will penalize lower income individuals by depriving them of the family unity that our immigration system and our nation have long valued and prioritized. It will also make U.S. citizen and LPRs afraid to access programs that help keep their families healthy and safe. And it will harm our economy by depressing immigration levels and reducing the income and consumption potential made possible when an immediate family can be together and be comprised of new wage-earning LPRs.
As this Bloomberg editorial notes, this draft proposed rule is bad for families and bad for the economy. Once published, the government must accept public comment on the rule. Contact MeBIC if you are a Maine business and would like to submit comments opposing the rule change.