Nearly a year after the Trump administration first proposed a rule change that would severely penalize legal immigrants for accessing public benefits like food stamps and Medicaid, the Department of Homeland Security on Monday announced that the so-called “public charge” proposal is set to go into effect in 60 days.
In a massive 837-page filing in the Federal Register that acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli said “make[s] War and Peace look relatively short,” immigration authorities announced that they will consider past reliance on public benefits—from prescription drug subsidies and Medicaid to food stamps and housing vouchers—as a “heavily weighted negative factor” for legal immigrant residents pursuing a green card or U.S. citizenship.
“Americans and legal immigrants have pulled themselves up by their bootstraps to pursue their dreams and the opportunity of this great nation,” Cuccinelli told reporters during a White House press conference announcing the rule change’s implementation. The “public charge” designation, he continued, is intended “to ensure that our immigration system is bringing people to join us as citizens… who can stand on their own two feet, who will not be reliant on the welfare system.”
Cuccinelli, who has called for an end to U.S. birthright citizenship and once proposed a law that would allow business owners to fire employees for not speaking English, said that the rules “reinforc[e] the ideals of self-sufficiency and personal responsibility.”
Non-citizen immigrants make up only a small percentage of those participating in public benefit programs: only 6.5 percent of Medicaid recipients are non-citizens, and just 4 percent of Supplemental Nutrition Assistance Program (SNAP) beneficiaries are not U.S. citizens.
Advocates aggressively denounced the policy change, which, like many of President Donald Trump’s immigration policies, will almost certainly face legal challenges from immigrant advocacy groups, who decried the policy as “a monster of a regulation” and part of the Trump administration’s larger constellation of attacks on legal immigration.
“This rule change is cruel, unnecessary, and underscores the clear objective of the Trump administration’s white, nativist, xenophobic agenda: keep all immigrants out,” said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles, who called the policy “dastardly.”
“Trump’s public charge, if allowed to go into effect unchallenged, would make our communities and our nation sicker, hungrier, poorer,” she said.
When the proposed regulations were announced in September 2018, advocates warned that it would have a chilling effect on the use of critical benefits for vulnerable legal immigrants, particularly family-based immigrants seeking entry to the United States from more impoverished countries in Central America, South Asia, and Africa.
“It’s not a surprise that this is causing further panic among immigrant communities,” Tanya Broder, a senior staff attorney with the National Immigration Law Center, told The Daily Beast at the time. “These are very uncertain times, and that fear has a real public health and economic effect on all of us. We expect that many will avoid going in to get the services that they need—and for which their children are eligible—because of this fear and uncertainty.”
In a call with reporters following the rule change’s announcement, Marielena Hincapié, executive director of the National Immigration Law Center, said that the measure amounts to an “invisible wall” intended to keep out “anyone who isn’t white or wealthy.”
Of all the Trump administration’s bids to weaken legal immigration, Hincapié said, “this is the one that would have the deepest, widest, and longest impact on our country.”
The notice in the Federal Register notes that during the comment period following the proposal, “the vast majority of commenters opposed the rule.”
The filing defines a “public charge” as any non-citizen who receives one or more public benefit for more than 12 months within any 36-month period. Benefits used concurrently—for example, using Medicaid to pay for healthcare while living in subsidized housing—will count twice. Among the benefits that would weigh against an immigrant seeking green-card status or U.S. citizenship include Medicaid, food stamps, Section 8 rental assistance, and prescription drug vouchers.
Even those who avail themselves of the benefits below the 12-month threshold will have their use of public assistance weighed negatively in immigration and naturalization proceedings, according to the filing: “Under this final rule, adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold described above in the totality of the circumstances.”
There are exemptions to the rule change. Currently enlisted members of the U.S. Armed Forces and their families will be allowed access to public benefits without penalization, and pregnant women or mothers of newborn children will still be able to utilize the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), which provides federal grants for supplemental food, health care, and nutrition education—although the rule change notes that “DHS also did not expressly exclude WIC from consideration as a public benefit.”
Advocates warn that even those who don’t face penalization for accessing benefits to which they are entitled may hold back on accessing them—a possibility that DHS acknowledged in its initial estimate of the rule change’s consequences.
In the proposal, the Department of Homeland Security also estimated that more than 324,000 people would disenroll from benefits “due to concern about the consequences to that person receiving public benefits and being found to be likely to become a public charge,” even if they are eligible for them.
In the filing, DHS states that while it “appreciates the potential effects of confusion regarding the rule’s scope and effect,” Cuccinelli told reporters that the department will issue “clear guidance” intended to help immigrants navigate which benefits will be weighed against them in immigration proceedings, “now and forevermore.”
Asked how to square the “public charge” changes with poet Emma Lazarus’ sonnet at the base of the Statue of Liberty—which quotes the statue urging the Old World to “give me your tired, your poor, your huddled masses yearning to breathe free”—Cuccinelli said that in America, “a poor person can be prepared to be self-sufficient.”
“I’m certainly not prepared to take anything down off the Statue of Liberty.”