As part of a sweeping effort to reshape US immigration policy, the Trump administration has proposed a major expansion of an existing regulation that would exclude immigrants whom officials deem likely to rely on public assistance.

A draft of a revised “public charge” rule, released last month by the US Department of Homeland Security, would change how immigration officials assess applications for permanent residency or temporary visas. (When the rule goes into effect remains uncertain. A 60-day comment period will follow its official release, although the rule doesn’t have to be approved by Congress.)

In terms of immigration policy, the rule’s largest direct impact would be on family-based green card applicants who are relatives of US citizens and legal permanent residents. These applicants make up about two-thirds of the 1 million people who apply for green cards each year.

But broader impacts will ripple across families and communities, where people will likely avoid using critical public supports for fear of consequences for their future immigration prospects.

The rule would require officials to forecast an applicant’s future reliance on public benefits, which they can use as grounds for establishing a lack of “self-sufficiency” and inadmissibility to the US. And departing from past practice where only dependence on cash benefits or long-term medical institutionalization were considered in public charge determinations, officials would consider an applicant’s use of both cash and noncash benefits as “negative factors.”  

Though narrower in scope than a previously leaked draft, the new version of the public charge rule is a significant departure from how the regulation is currently applied and will add more uncertainty to immigration admissions, exclude low-income people and keep families separated, and discourage eligible families—many of which include US citizens—from receiving public benefits that support their health and safety.

This proposal is consistent with the administration’s aggressive immigration policy agenda and constitutes one more building block in its effort to decrease immigration the administration deems undesirable. In fact, the US Citizenship and Immigration Services revised its mission statement earlier this year to eliminate reference to the US being “nation of immigrants.” 

An uncertain process for legal immigrants and their family members

The rule expands the type of benefits to be considered in public charge determinations to include both cash benefit programs—Temporary Assistance for Needy Families, Supplemental Security Income, and General Assistance—and the following noncash programs: nonemergency Medicaid, the Supplemental Nutrition Assistance Program, Medicare Part D prescription drug subsidies, and housing support programs. The Department of Homeland Security is also weighing whether to include the use of the Children’s Health Insurance Program (CHIP).

A person’s income, age, educational and skill attainment, family status, and whether they have private health insurance would also be considered, as would any preexisting health conditions that may affect their ability to work, attend school, or care for themselves.

Anyone earning less than 125 percent of the federal poverty level would have a strongly weighted “negative factor.” This new income test may in fact have the greatest impact on immigration admissions by favoring higher-income immigrants, given that most who would undergo a public charge test would have been ineligible to receive federal assistance in the first place with existing limitations on noncitizens’ access to public benefits.

Immigrants with temporary visas are not eligible for federal benefits, and even green card holders are not eligible for the first five years of their status. Some states provide federally funded Medicaid and CHIP to children and pregnant women during the “five-year ban,” and others provide state-funded benefits during that period and for other ineligible immigrants.

The draft rule gives immigration officials broad discretion in determining who is likely to become a public charge, and it’s unclear how they would obtain necessary documentation or how long the determination process would take. These ambiguities and the additional processing time would likely exacerbate the current backlog of green card applications, which already requires years or decades of wait time for applicants from China, India, Mexico, and the Philippines, while increasing uncertainty for millions seeking to enter or remain in the US legally.

How a “chilling effect” is putting families’ well-being at risk

Noncitizens are part of families that include naturalized citizens and native-born members. Impact on their immigration status and their participation in or disenrollment from benefits programs can’t be examined in isolation from outcomes for entire families and communities.  

There is growing evidence that families and children are already suffering increased fear and negative health, well-being, and financial consequences because of the administration’s increased enforcement actions and anti-immigrant rhetoric. A recent study found that Latino parents raising adolescents are experiencing higher rates of psychological distress following recent immigration policy changes and media coverage, affecting both those with documented and undocumented status.

Compounding the effect of other immigration policy changes, the public charge effort has reportedly already led to a “chilling effect” of immigrants who are eligible for vital assistance programs dropping out of them because of fear of adverse immigration status consequences for themselves or for their family members.  

Earlier this year, several states reported large enrollment drops in nutrition assistance programs, which service providers attribute to fear over new public charge implementation. Community health care providers are also reporting that patients are missing appointments or declining to pay for health care with insurance.

The proposed rule could have significant health and economic consequences beyond the individual applicants and for family members who are still eligible for benefits, including children. The public charge rule may force parents to choose between meeting their children’s basic needs in the near term and securing their legal residency in the long term. Nearly 20 million children, or one in four, live with an immigrant parent, and nearly 90 percent of these children are citizens.

We’ve seen chilling effects before. After the 1996 welfare reform, refugees’ use of benefits declined 33 percent, even though they were exempt from the eligibility restrictions enacted for other immigrant groups in the law. Other research has shown how immigration enforcement programs can have negative “spillover” effects to legally authorized immigrants and citizens, as the broader community experiences rising fear around interaction with government authorities.

The effort to deny legal immigration channels to low-income applicants raises tremendous concerns, not just for the well-being of immigrant families and children but for the larger communities to which they belong and the local economies they support.

Low-income immigrants may need public benefits to support the safety, health, and well-being of their families, including US citizen children. Punishing them for seeking this support is short sighted, since these children will play a significant role in our future economy and society.