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This issue brief contains a correction.

Despite the Republican Party controlling both houses of Congress for the last two years, the Trump administration has failed in its efforts to push through legislation that would reduce legal immigration levels. Now, it is trying to use the regulatory process to bypass Congress and accomplish the same goal. The regulations proposed by the administration would make it harder for working- and middle-class people to immigrate legally to the United States by denying them green cards and visas based on government predictions that they are “likely” to receive Medicaid coverage or other means-tested public benefits at any time in the future.

As authority for its proposal, the administration is pointing to a statutory provision first enacted in 1882 under which most immigrants who are otherwise eligible for green cards and most nonimmigrants seeking admission to the United States on a temporary basis must show that they are not “likely to become a public charge” (LPC). Over the past five years, an annual average of roughly 900,000 people seeking immigrant visas have been subject to the LPC test, as well as an annual average of approximately 176 million people seeking admission as nonimmigrants. As a result, even small changes to the test can have large effects on both immigrants and nonimmigrants.

In order to pass the current LPC test, potential immigrants and nonimmigrants must show that they are not likely in the future—after receiving a green card or other visa—to end up in a long-term care institution, such as a nursing home. They must also show that they are not likely to become “primarily dependent” on forms of “public cash assistance for income maintenance” such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or General Assistance in order to survive. Under the Trump administration’s proposal, however, government officials would ultimately be required to deny a green card and most other visas to anyone who they predict may, at any point in the future, receive supplementary forms of public assistance that have not previously been considered under the LPC test. The newly considered forms of assistance include Medicaid, Medicare Part D premium and cost-sharing subsidies, the Supplemental Nutrition Assistance Program (SNAP), and housing assistance. In addition, under the proposed test, people with incomes under 250 percent of the federal poverty level—approximately $63,000 per year for a family of four —or those with pre-existing health conditions would be effectively singled out for discriminatory and arbitrary treatment by immigration officials.

Although put forth as a regulation, the Trump administration’s proposal so fundamentally alters the existing regulatory scheme for family-, employment-, and diversity-based legal immigration that it amounts to new legislation—which should only become law if passed by Congress. The administration is effectively claiming that Congress’ inclusion of the now archaic language, “likely to become a public charge,” in the Immigration and Nationality Act gives the president the unilateral authority to undercut subsequently enacted parts of the law.

There are two common misconceptions about the president’s new proposal that, once corrected, reveal that it is far more radical than commonly reported. The first misconception is that the change would be minimal, subjecting only about 383,000 people to the test annually. However, as explained further below, the test will directly apply to roughly 900,000 immigrants and 176 million nonimmigrants each year. The second misconception is that most of the people at risk of being denied a green card or other visas under the proposed rule have received public benefits in the United States. In reality, most of the people who will be affected by the proposal will have never received public benefits in the United States.

The proposed rule change will affect millions of people annually*

Several media outlets have reported that the proposed LPC test is expected to affect some 383,000 people annually. However, this figure vastly underestimates the test’s scope.

The current LPC test applies to the vast majority of foreign nationals seeking visas as well as those seeking admission to the United States either permanently or temporarily—immigrants and nonimmigrants, respectively. As detailed below, this amounts to roughly 900,000 immigrants and 176 million nonimmigrants each year. The administration’s proposal does not change the broad applicability of the LPC test; in fact, it expands the applicability of the test to include approximately 500,000 nonimmigrants seeking an extension of stay or a change of status. This means that the total number of people who will have to meet the LPC standard each year is well above 383,000 and greater than the number of people currently subject to the test.

Table 1 details four general categories of immigrants and nonimmigrants who would be subject to the revised LPC test. It shows that each year, the rewritten test would apply to roughly 912,500 people seeking green cards; 10 million people seeking nonimmigrant visas from U.S. State Department (DOS) officials; and roughly 500,000 nonimmigrants seeking extensions of stay or changes of nonimmigrant status from U.S. Department of Homeland Security (DHS) officials. Immigrants and nonimmigrants in the first three rows of Table 1 are subject to the current public charge test, while those in the fourth row are not. Immigrants and nonimmigrants in all four rows would be subject to the revised test proposed by the administration.

There is also a fifth category of people who will be affected by the rule change, which the table does not fully show: the roughly 176 million nonimmigrants admitted annually to the United States who are mainly temporary visitors for business, tourists, students, and temporary workers and their families. The vast majority of these individuals are currently subject to the LPC test. Importantly, this 176 million figure is not an unduplicated count of individuals who are admitted; it also includes the roughly 10 million people who obtain nonimmigrant visas from State Department officials.

The Trump administration’s proposal only included estimates for categories one and four. This may be because the rule is being promulgated solely by DHS, which is only responsible for immigrants and nonimmigrants seeking admission at U.S. ports of entry. However, the statutory provision the administration is regulating—8 U.S.C. § 1182(a)(4)—is the exact same provision that the State Department must use when determining whether to grant visas to immigrants and nonimmigrants applying from outside of the United States. Furthermore, the term “likely to become a public charge,” which DHS is redefining in this statutory provision, is the same term that the State Department must use when making its determinations.

In the preamble to the proposed rule, DHS acknowledges that it is “likely that DOS will amend its [public charge] guidance to prevent the issuance of visas to inadmissible aliens.” Absent any explicit statement from the president, DHS, or DOS that the new definition will not apply to determinations by the State Department, it is reasonable to estimate its impact based on the assumption that the LPC change will apply to both DHS and DOS. In other words, when assessing the applicability of the proposed test, the public, policymakers, and the media should understand that it could apply to as many as 900,000 immigrants and 176 million nonimmigrants each year.

Historically, a modest number of potential immigrants and nonimmigrants fail the public charge test and are denied entry into the United States each year. The Trump administration has yet to formally estimate the number of people who will fail the revised test despite meeting all other legal requirements for obtaining a visa and admission, but it will certainly be much higher than it has been in the past.

The best estimate of how many potential immigrants might fail the revised test comes from a new analysis by the Migration Policy Institute (MPI). Using 2012–2016 data from the U.S. Census Bureau’s American Community Survey, MPI estimates how many recent lawful permanent residents (LPRs)—those who were subject to the current LPC test, passed it, and are now living in the United States—have one or more of the five factors that would count against them if they were subject to the proposed rule. According to the study, about 69 percent of recent LPRs have at least one factor that the proposed test would treat negatively; 43 percent have at least two negative factors; and 17 percent have at least three. MPI also notes that only 39 percent of recent LPRs who were subject to the current LPC test have incomes above 250 percent of the federal poverty line—the standard that the proposed rule treats as a heavily weighted positive factor. Notably, MPI does not include health or disability status in its analysis, which suggests that its estimates of how many recent LPRs would be excluded under the proposed test are conservative.

MPI was unable to estimate the precise number of immigrants who are likely to fail the proposed test because “the rule does not specify how many negative versus positive factors someone must have for their application to be denied.” On balance, it seems reasonable to estimate that the proposed rule could result in anywhere from roughly 17 to 61 percent of otherwise eligible immigrants failing the LPC test. The lower bound of 17 percent is the share of recent LPRs who have at least three negative factors. The upper bound of 61 percent is the share of recent LPRs who have incomes below 250 percent of the federal poverty line. That this range is so wide is further evidence of the ill-conceived nature of the DHS proposal. Moreover, as MPI notes, the proposed rule would “disproportionately affect women, children, and the elderly” and “likely result in a shift in the origins of immigrants granted green cards … away from Mexico and Central America.”

No one has made similar estimates of the number of nonimmigrants who are at risk of failing the revised test. The nonimmigrant failure rate will be much lower than the immigrant failure rate because the proposed test is stricter for people seeking permanent residence than it is for people seeking temporary, nonimmigrant status. Still, the proposed test is much stricter for nonimmigrants than the current test. Additionally, because there are so many people admitted to the United States as nonimmigrants each year, even small increases in the LPC failure rate could have large effects.

Collateral damage: U.S. citizens’ spouses and family members and U.S. employers If the president’s proposal becomes law, hundreds of thousands of U.S. citizens will be denied the opportunity to reunite with their spouses and other close family members. Indeed, the proposed LPC test threatens to separate families on a scale more massive than has been the case to date. Most of the roughly 900,000 people eligible for green cards each year have close family members who are U.S. citizens, including their husbands, wives, parents, children, and other close relatives. The revised rule would affect: Approximately 241,000 green cards issued by the State Department annually over the past five years to the spouses, children, parents, and other immediate relatives of U.S. citizens

Approximately 205,000 visas issued by the State Department annually over the past five years to other eligible family members of U.S. citizens and LPRs

265,709 people who adjusted to LPR status in 2017 and who are the spouses or other family members of U.S. citizens The proposal will also affect U.S. employers sponsoring immigrant and nonimmigrant workers. Doug Rand, who serves as the president of an online firm called Boundless Immigration that helps with immigration paperwork, explained this potential ripple effect: “I don’t think the business community has any clue how much this impacts them. … This means paying lawyers more money and having every application being a nail-biter.”

Most immigrants at risk of being denied a green card under the proposed test have not received public assistance

News stories about the proposal have commonly run headlines suggesting that immigrants will be denied green cards if they have received benefits. The truth is, however, that most of the people who would be denied green cards and other visas under the revised test have never received any public benefits in the United States.

As noted above, the current test requires immigration and consular officials to predict whether a potential immigrant or nonimmigrant is likely to become primarily dependent on SSI or other public cash assistance at any time in the United States before their death, including after they become U.S. citizens. The potential future receipt of supplemental in-kind benefits—benefits that one cannot subsist on in the absence of other income, including Medicaid, SNAP, and rental housing assistance—does not make someone a public charge under long-standing policy and practice. When making LPC predictions, immigration and consular officials may consider a potential immigrant’s or nonimmigrant’s past receipt of public cash assistance, but they may not consider past receipt of supplemental benefits.

Under the Trump administration’s proposal, however, immigration and consular officials would be required to deny admission to a potential immigrant or nonimmigrant deemed likely to receive even a modest amount of Medicaid, Medicare Part D premium and cost-sharing subsidies, SNAP, or rental housing assistance. And in making an LPC prediction, officials would consider whether the person has ever applied for, received, or been approved to receive these types of public supplemental benefits.

The Trump administration’s proposal does not enumerate how many potential immigrants and nonimmigrants subject to the proposed LPC test have received or are currently receiving cash or the supplemental benefits, but it is almost certainly a modest share of the total number of people seeking admission to the United States or adjusting their status each year. This is because relatively few people are eligible to receive such benefits before they obtain a green card. Therefore, the revised LPC test would primarily deny green cards and other visas to people who have never received Medicaid, SNAP, other supplementary assistance, or public cash assistance.

However, there are some important exceptions. Under a federal law passed by Congress in 2009, pregnant women and children who are lawfully residing in the United States are eligible for Medicaid in most states even if they do not have green cards—as long as they meet the same eligibility requirements that apply to citizens. These groups will be particularly at risk under the revised LPC proposal. If adopted, the proposal would force pregnant women and children who are lawfully residing in the United States without green cards to choose between health care and a future green card. Yet it is hard to imagine that Congress would have extended Medicaid coverage to lawfully residing pregnant women and children if it believed that accepting such coverage would make these individuals ineligible for future green cards as public charges. Another important exception involves lawful permanent residents who travel abroad for more than six months. Upon their return, they would again be considered as “seeking admission” and therefore subject to the LPC test.

The fact that relatively few immigrants and nonimmigrants subject to the proposed LPC test are currently receiving or have received any of the benefits targeted by the rule does not make the proposal any less harmful or ill-conceived. Instead of basing their LPC predictions on past or current receipt of benefits, officials will base their predictions on factors such as current income and health, which are inherently variable over time and only minimally predictive of whether someone will sign up for Medicaid or other benefits at any point in the future. Given that many people who are eligible for voluntary benefits do not necessarily sign up for them, it is hard to imagine that officials will not end up denying green cards to otherwise eligible immigrants based on false predictions.

Moreover, the proposal, if adopted as a final rule, will increase fear, confusion, and stigma about health, nutrition, and other public services among people in immigrant families—including U.S. citizens and LPRs. As a result, many people who Congress has specifically designated as eligible for these public services—such as the many lawfully residing immigrants who are exempt from the LPC test—will not sign up for them. As DHS acknowledges in the preamble to the rule, “reductions in federal and state transfers under federal benefit programs may have downstream and upstream impacts on state and local economies, large and small businesses, and individuals.” These effects will likely be amplified by the current hostile environment for immigrants in the United States. In a recent national survey conducted by the Pew Research Center, 55 percent of all Latinos in United States said “they are worried that they, a family member or close friend could be deported.”

Conclusion

Trump’s proposed change to the LPC rule is more radical and far-reaching in scope than commonly reported. The revised LPC test will directly apply to roughly 900,000 potential immigrants and another 176 million potential nonimmigrants each year. Furthermore, the Trump administration has made no attempt to estimate how many people will fail the test each year. It is not unreasonable to think that somewhere between 17 and 61 percent of otherwise eligible immigrants seeking green cards could fail the proposed test. The proposed rule’s effect on potential nonimmigrants is less clear, but because so many people are admitted as nonimmigrants each year, even a small increase in the percentage of those denied visas and admission on public charge grounds could end up being very large. What’s more, relatively few of these denials will be based on the past or current receipt of benefits; instead, most of the LPC predictions will be based on people having working-class incomes or disabilities.

The Trump administration’s proposal is an ill-conceived attempt to unilaterally restrict legal immigration, and it should be withdrawn before irreversible harm is done. If the public charge rule is not withdrawn, Congress should pass legislation blocking the use of federal funds to implement the proposal.

Shawn Fremstad is a senior fellow at the Center for American Progress.

*Correction, November 27, 2018: A heading in this brief has been updated to reflect the accurate number of people who will be affected by the proposed rule change.

Endnotes