Adi Talwar

Update, October 11: A federal judge on Friday issued a temporary injunction against implementation of the Trump administration’s new public-charge rule.

New York City’s seniors are already underutilizing public benefits available to them. But for non-citizen seniors, that reluctance has grown in the past year, a result of alarm from the changes to federal tests for admissibility that will go into effect on October 15, if pending lawsuits do not upend them.

Adding to the confusion, on Friday evening, separate guidelines were announced by the president who, through executive powers, declared that people applying for visas would be denied if they did not have a guarantee of health insurance upon entering the country. Those changes could go into effect on November 3rd.

The pending changes to existing public charge rules are already having a chilling effect, the city and immigration advocates say. The Mayor’s Office of Immigrant Affairs has been trying to address misinformation around the rule through a public information campaign, including flyers and town halls, it is conducting along with community-based organizations

The expansion of the federal public charge test to include, among other criteria, the use of non-cash benefits like Supplemental Nutrition Assistance Program, or (food stamps), Medicaid and housing vouchers has caused fear among some of the people most in need of those benefits, leading them to disenroll or avoid signing up in the first place.

“In a lot of ways, seniors are particularly hard hit by this,” said Carlyn Cowen, Chief Policy and Public Affairs Officer with the Chinese-American Planning Council, a social services organization serving low-income communities in NYC.

“People think they need to withdraw from benefits, or that of their families,” she says. And many believe that use of benefits by family members could impact their own status, which isn’t true. ”

“We are seeing a fear that is much more wide reaching than the number of people that actually need to take this into consideration,” she says.

City data confirms disenrollment from SNAP among non-citizens that coincides with the period in which the public charge changes were announced. The Department of Social Services and HRA released an analysis of data to immigration non-profits over the summer that strongly suggests disenrollment for SNAP benefits. In 2016, before the President Trump took office, there was a 1.1 percent increase in enrollment among non-citizens and a 1.2 percent increase among citizens. But enrollment for both citizens and non-citizens decreased in 2017 and 2018—with a far greater rate of decrease among non-citizens in 2018, down 10.9 percent, compared to 2.8 percent for citizens. Advocates at community based organizations believe that the discrepancy cannot be attributed to improvement in the economy, one of the normal reasons for disenrollment.

An HRA spokesperson told City Limits the city had not yet parsed data by age, but providers and policy experts who spoke to City Limits said confusion among immigrants is particularly felt among elders.

And Howard Shih, Director of Research and Policy at the Asian American Federation, points out that the discrepancy between immigrant and non-immigrant enrollees is largest for Asian Americans, according to the city’s data. Asian American elders are the fastest growing group of seniors and have the second highest poverty rate among the city’s older adults.

“We feel it’s likely that there are disenrolling because of what they’re hearing about the public charge benefits, and they’re afraid that it’s going to impact their ability to apply for a green card or other forms of immigration relief,” Shih said.

The discrepancy is troubling because close to half of Asian seniors interviewed for a study by the Asian American Federation in 2016 suffer from food insecurity, relying primarily on senior centers and food banks.

The proposed change and its challengers

The concept of public charge restrictions – or excluding those liable to be entirely dependent on public benefits — was enshrined in the country’s first federal immigration laws in 1882, based on a set of state and local statutes that were already pervasive. The rule rejected, “convicts, lunatics, idiots, and any person unable to take care of himself without becoming a public charge,” an edict that was interpreted very broadly for decades to exclude poor and marginalized people, according to immigration scholar Mae Ngai.

The public charge test evolved into a rubric that United States Citizenship and Immigration Services uses to make determinations about adjustments of status, the process that foreign-born people—go through to become legal permanent residents, or greencard holders. It also used for people abroad looking to gain either a work visa or visa for family reunification to enter the United States. The criteria for the test has changed, as well, and in 1996 when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA, factors of “age, health, family status, financial status, and education and skills,” were added to the test. IIRIRA also affirmed that non-cash benefits like food stamps would not be part of the admissibility test and allowed for affidavits of support, written testimony from a family member affirming financial support assuring the applicant won’t become a public charge.

The status quo, which will change October 15, is more or less unchanged since IIRIRA – for foreign-born people already in the U.S. seeking greencards, a person’s age, health, skills and education are considered, as are any federal cash benefits such as Temporary Assistance For Needy Families. For people abroad seeking work visas or family reunification, the considerations are similar, but affidavits of support are weighted strongly.

DHS’s changes to the public charge test, which were first announced in the Federal Register last October, would expand the scope of the test dramatically, advocates say. Under the new rules, non-cash benefits like SNAP, federally-funded Medicaid and housing vouchers would be weighted negatively on an application to enter the country on certain visas or adjustments of status. The criteria are forward-looking, which means only benefits used after the October 15 implementation date would count negatively on an application.

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Trump and NYC

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The final set of rules published in the federal register in August would reduce the opportunity for family petitioning, which is often used to bring elders to the U.S. to rejoin loved ones. For this reasons it may have a larger direct impact on elders seeking to enter the country than those already here. Coupled with the November 3change that would deny those without insurance, it would have a large negative impact on those elders, especially if their children can’t afford to provide them insurance.

“If we’re talking about seniors, we’re talking about a population of people whose US citizen children are seeking to apply for them,” says Julie Brandfield, an attorney with NYLAG.

Brandfield says that for years, affidavits of support from adult children have been enough for USCIS to approve family unification visas, but that is now in question. While the criteria for the public charge test, including health, age, and ability to earn income, skew against the elderly and disabled by nature, the weight given to affidavits from family members, who affirm that they can provide support for their loved one, has historically superseded this.

The new rules hinge on the outcome of six separate lawsuits across the nation, including two filed in the Southern District of New York. One, filed in August by New York Attorney General Letitia James, was joined by the states of Connecticut and Vermont. James’ lawsuit asks for the rules to be thrown out on the grounds that, historically, non-cash benefits have never been factored into the public charge test, and that doing so would go against the accepted definition.

While the use of cash benefits are currently factored in the public charge test, attempts to include non-cash benefits like SNAP or housing assistance into the test have historically been rejected by courts or elected officials before becoming law, according to the lawsuit filed by James’ office.

A separate lawsuit was filed by non-profit and community providers, including the Asian American Federation, Make The Road New York, Catholic Charities, the African Services Committee and others. The lawsuit makes a similar argument, and also argues that the rules would interrupt immigrant family units, stating it will “undermine decades of immigration law promoting and protecting family stability, unity, and well-being through the process of granting lawful permanent residence.”

Right-sizing the fears

At the Korean Community Services Flushing Neighborhood Senior Center on 166th Street, Queens, seniors have been reluctant to sign up for public benefits, according to staff. The senior center, which serves Flushing’s Korean community, sits in the basement of the Hyo Shin Bible Presbyterian Church, off Northern Boulevard. On a Thursday morning, at least 100 elders were seated in the basement center, packed together on rows of foldaway tables. They were reading Korean language newspapers, staring seriously at their phones, playing board games, chatting and drinking coffee. A few were engaged in a vigorous game of ping pong at two tables set up near the steps leading from the church.

A loudspeaker announcement in Korean mentioned SNAP and Medicaid before ending in a prayer, the only portion of the announcement in English. The crowd hushed and some closed their eyes and bowed their heads as a staff member prayed, asking to “help our elders always to be healthy and happy.”

“We have been having a lot of difficulty,” said Junghee Park, the assistant director of the senior center. “Some are hesitating to apply for food stamps because of the current atmosphere, but we cannot push them.”

Park says some of the seniors have been asking if they should disenroll from food stamps. But she says there isn’t always someone to provide legal advice – though Korean Services Society has a few immigration lawyers based at one of their other offices.

“We all are concerned and we are trying to figure out how we can best assist our seniors in this moment,” Park says.

The public benefits that non-citizens legally can access have changed over the years. In 1996, for instance, the Welfare Reform Act established that only greencard holders, refugees, and others from a small list of “qualified aliens” could get most federal and state benefits, and then only after five years of residence. For this reason, the benefits included in the new public charge rules are already off-limits to most non-citizens except in a small set of circumstances, according to the Migration Policy Institute.

The October rule change applies to immigrants applying for greencard status, for tourist visas, student visas, for visa extensions or changes of status. It doesn’t apply to current greencard holders, asylees or refugees, those applying for special immigrant juvenile status, or to active-duty military or their families. For those whom the new rules impact, federally-funded Medicaid, SNAP, SSI, Section 8 and public housing are now all factored into public charge determination, and could lead to denials of their applications. Cash benefits, like TANF, or Safety Net Assistance, were already factors in the public charge test and will remain so.

The city has been making an effort to connect non-citizens to resources and information through town halls, but it’s unclear how many people are being reached. A September 5 Town Hall held at St. John the Divine Church on the Upper West Side brought out only a few dozen people, many of whom were service providers asked to fill out empty seats in the first few rows. Catered sandwiches and potato chips went mostly unclaimed.

Advocates from the Legal Aid Society, African Services Committee and the New York Immigration Coalition fielded questions from an audience mainly populated with other service providers. Providers suggested that anyone who needs to petition a family member or file an adjustment of status do so as soon as possible, before the rules go into effect in October. And people unsure about who need to do so after October 15 should consult legal services providers, as the over 200 pages of new rules are difficult to parse.

Broader impacts and deeper worries

Immigrant seniors and other non-citizens aren’t the only ones who’ll be affected by the larger impact of the rule change. Christian González-Rivera, Director of Strategic Policy Initiatives at Hunter College’s Center for Healthy Aging, says people disenrolling from SNAP negatively impact the city’s economy, as SNAP benefits are put directly back into neighborhood businesses.

Gonzalez-Rivera suggests expanding other options for food insecure seniors who may be reluctant to sign up for public benefits, for fear or other reasons. He also suggests having a SNAP supplement at the city level that would boost the overall amount that seniors qualify for—some elders qualify for only a few dollars a month, making the hassle of signing up and dealing with red tape not worth it.

Carlyn Cowen, with the Chinese-American Planning Council, says that many elders are more comfortable with community based organizations and senior centers than city agencies..

“They interact with us on a daily basis, it’s in the language they speak, they feel trust, it feels comfortable to them,” she says.

Historically, restrictions of cash benefits such as the Welfare Reform Act and the public charge rule itself are based on the unsubstantiated theory that such benefits drive immigration. A House Budget Committee Report after the 1996 Welfare Reform Act said “welfare reform strategy ended the role of welfare as an immigration magnet.”

Ironically, enrollment among elder immigrants who are eligible for the programs targeted by the new public charge rule has long lagged. In August, Council Member Margaret Chin, who chairs the Committee on Aging, introduced a bill that would require HRA and DFTA to develop a plan to enroll more seniors on SNAP.