The Leaked Rule That Could Ban Immigrants Based on Income, Explained by Experts

This article was originally published on TalkPoverty.org.

In February, leaked documents revealed that the Trump administration is preparing new rules that would effectively end the United States’ family-based immigration system. If implemented, the regulation would prevent low-income and working-class immigrants from entering the country by denying legal status to immigrants considered “likely” to become a so-called “public charge.”

Currently, immigration officials can only consider the use of cash assistance, such as Temporary Assistance for Needy Families — a program that serves very few people — in determining whether someone is likely to become a “public charge.” But under Trump’s new rules, immigrants could be barred from legal status for turning to a whole range of public programs that millions of families rely on, including Head Start, the Supplemental Nutrition Assistance Program (SNAP), nutrition assistance for Women Infants and Children (WIC), housing assistance, home heating assistance — even the Children’s Health Insurance Program and subsidies under the Affordable Care Act.

To understand what this new policy will mean for immigrant families if it goes into effect, I spoke with Shawn Fremstad, a senior fellow at the Center for American Progress, and Hidetaka Hirota, professor of history at the City College of New York and author of Expelling the Poor, which examines the United States’ long history of keeping out immigrants who come from poverty.

Rebecca Vallas: What is the Trump administration considering in this moment, and what do we know about the rules they’re working on from the leaks?

Shawn Fremstad: So, as we all know, this is not a very pro-immigrant administration. Just this week they’ve taken out the “nation of immigrants” language from the actual motto of the United States Citizenship and Immigration Services (USCIS), what used to be known as the INS [Immigration and Naturalization Service]. But now we know the administration is doing a stealth campaign using this longstanding “public charge” provision in immigration law. It’s a way to undermine the family-based immigration system we have and target working-class immigrants from low-income countries, from Mexico, from countries that Trump called “shithole countries.”

I was going to say it if you didn’t.

Shawn Fremstad: At its core, it’s about keeping out poor immigrants. This is a rewriting of a longstanding rule. What it meant historically is that you’re a “public charge” if you’re basically going to become completely dependent on welfare-cash type benefits, or institutionalized for long-term care with Medicaid. So it’s really someone who is not working, not able to work, and doesn’t have anybody else supporting them and they’re primarily dependent on benefits. So it’s a very limited thing.

But what the administration is saying is that it’s no longer going to be about whether you’re primarily dependent and not working; it’s are you going to be low-income? Are you going to be below median income? What they say is they’ll weigh it heavily in your favor if you have 250 percent of the poverty line as an income, which is basically around median earnings for a white male worker in the United States.

They also have a long list of benefits that if you’re likely to access them after being admitted to the United States as a green card, as a lawful immigrant, those are the kind of things that will be held against you. This is quite radical. It includes things like the Premium Tax Credit that was part of the ACA, which goes up to 400 percent of poverty. For many families that’s a middle-class benefit. That would not be something that “makes you a public charge.” You could be working full time, making a good salary, and the only issue is you’re not getting health care from an employer, so you need to access this.

They also include things like Head Start, Pell grants — it’s an extraordinary list.

Even the Children’s Health Insurance Program.

Shawn Fremstad: Yes. It’s a long list of programs that legal immigrants are often eligible for in the United States.

Help us understand how this is actually going to look in practice.

Shawn Fremstad: This public charge test comes up in two broad scenarios. One is you’re a family member here in the United States, you want to bring over a family member and get a family-based visa for them. They are subject to this public charge test so they have to meet that before they can get the visa. So if that person looks like somebody who might get any of these benefits, then the public charge test could be used to exclude them.

The other situation is there are a lot of people in the United States — some undocumented, some under different lawful statuses — who have children in the household who are US citizens, and the child is getting Medicaid because they’re eligible as US citizens. The child is getting SNAP or WIC. Now the test can be applied to the parents simply because they got food stamps or Medicaid or other benefits for that child. So there’s a potential to keep people out who haven’t come to the United States and to penalize people who are here now. It’ll make people much less likely to turn to programs that could help their child’s healthy development, education, et. cetera.

Professor Hirota, effectively barring entry to immigrants who come from poor or low- income backgrounds is something that you’ve called “poverty-based immigration control.” Tell us about the history of this public charge provision that Shawn’s been describing and how it fits into the country’s broader history of keeping out immigrants for economic reasons.

Hidetaka Hirota: The public charge clause has a really long history in the United States, with origins in the colonial period. British settlers essentially brought their mother country’s poor law, which banished the “transient beggar” — that is, the poor people who did not belong to the community beyond the boundary of the community. This kind of poor law was eventually inherited by states after the American Revolution, and when a large number of impoverished Irish immigrants arrived in the US over the first half of the 19th century, these laws eventually developed into immigration laws. So America’s first immigration law really originated from poor law, and the primary purpose of the law was the deportation back to Europe of the destitute Irish immigrants already in the US.

In the late 19th century these poor laws developed into the nation’s first national immigration law — the Immigration Act of 1882. This law, along with the Chinese exclusion law of 1882, laid the foundation for subsequent national immigration law. And the anti-poverty clause, or likely to become “public charge” laws, remained in national immigration laws. So anti-poverty sentiment was really deeply integrated into the American system of selecting immigrants and this has a longer history than we think.

In the 1930s refugees from Nazi Germany became targeted.

Shawn Fremstad: In different nativist periods this has been interpreted in different ways to target different communities. So in the 1930s refugees from Nazi Germany became targeted. In some periods it’s been so-called “degenerates,” denying people based on sexual orientation. Nobody says public charge in real language today. It’s an archaic, ancient term and it gets filled with whatever the animus is today.

Hidetaka Hirota: I would add that a central feature of this “likely to become public charge” law is massive discretionary power of the inspecting officer. They have tremendous power to determine who could be enter and who should be expelled thanks to this vague clause.

In the mid 19th century, when there were Anglo-American officers, Irish people suffered disproportionately because of this clause compared to other immigrant groups like Germans. And in the early 20th century, Asian immigrants like Japanese and South Asians were targeted for this clause. There were middle class Japanese immigrants with some cash, and they did not appear likely to become a “public charge” from an economic point of view. But the officers excluded them as potential paupers on the grounds that in America, racism was too strong, so these immigrants wouldn’t gain employment. Despite the possession of potential cash and middle-class appearance, they were deemed likely to become public charge.

The whole clause can operate with very strong racist dimensions, and this also applies to the Trump administration’s proposed new rule. The new rule would not apply to immigrants equally. The officers could have very strong discretionary power in deciding whose visas can be renewable by simply manipulating this “likely to become public charge” rule.

Shawn, how do we expect this to move forward in the weeks ahead and how should folks get involved if they want to try to stop this from becoming the policy of the land?

Shawn Fremstad: Right now it’s still in a draft form but we think it will get published in what’s called the Federal Register as a proposed rule probably in the next 30 to 60 days. And this will be an opportunity to formerly comment and an important point to really lift this up and focus. I think it’s been very under the radar so far because it isn’t out there officially and there’s so much else going on right now.

And we’re seeing chilling effects playing out in communities across this country with immigrant families, actually going into social services office and saying stop my food stamps, stop my kid’s Headstart, because I’m afraid this is exposing my family to danger and perhaps the risk of being split up.

Shawn Fremstad: I think at this point people should not panic, one important thing to know is that the draft version of the rule says it will be prospective so it’s looking forward; if you had received these benefits in the past we’re not going to count that. So making sure you’re in touch with immigrant advocacy organizations who can tell you more about this is important.

As the National Immigration Law Center has put it, and I think these are probably the right words to end on with a heavy and truly demoralizing topic: if this policy goes into effect, “no longer would we be the country that serves as a beacon for the world’s dreamers and strivers. Instead America’s doors would be open only the highest bidder.”

This interview was conducted for Off-Kilter and aired as part of a complete episode on February 23. It was edited for length and clarity.