Expected Changes to the Public Charge Test September 13, 2018
Goals of the Presentation o Gain understanding of: o Historical/current public charge analysis o Expected changes to public charge test o Federal Rule-making Process o Impact of Expected Changes o New PIF-IL coalition Information is accurate as of September 6, 2018
HISTORICAL AND CURRENT PUBLIC CHARGE ANALYSIS
Historical Background: Current Public Charge Test Public Charge doctrine is rooted in 1882 immigration law: Allows federal immigration officials to deny admission to the U.S. or deny adjustment to legal permanent resident status if the official deems a person likely to become a public charge (a person who is primarily dependent on the government for subsistence ). No rule/regulations have been issued defining the public charge test (This is the Trump Administration s opening to use their rule-making authority) Instead, the Field Guidance issued in 1999 is still used today
Background: Current Public Charge Test Public charge" means an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) "primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense Officers must consider, at a minimum, the alien's age, health, family status, assets, resources, and financial status, and education and skills. [O]fficers should assess the financial responsibility of the alien by examining the totality of the alien's circumstances at the time of his or her application
Background: Current Public Charge Test (Continued) Every denial order based on public charge must reflect consideration of each of these factors and specifically articulate the reasons for the officer's determination. Sponsor s affidavit of support generally given heavy weight
Who Is Subject to the Public Charge Test? This is encoded in statute: People who live abroad and are seeking to enter or immigrate to the United States FAM changes People who are seeking to become Legal Permanent Residents (LPRs) or obtain a green card CONTEXT: IN FY2017, about 1.1 million people received their green cards 51% of them were new arrivals and 49% were adjusting their status from a temporary visa
Which Immigrants Are NOT Subject to The Public Charge Test? Refugees and asylees Afghan and Iraqi special immigrants serving as translators with U.S. Cuban and Haitian entrants Central Americans adjusting as part of Nicaraguan Adjustment and Central American Relief Act Special immigrant juveniles LPRs applying for U.S. citizenship Aliens applying for or reregistering for TPS who receive a waiver VAWA self-petitioners American Indians born in Canada Certain Nationals of Vietnam, Cambodia and Laos Victims of human trafficking: T- Visas Victims of Criminal Activity: U-Visas Qualified aliens And others
Which Immigrants Are NOT Subject to The Public Charge Test? Example: Jenin is an approved VAWA self-petitioner. She is eligible for a number of public benefits as a VAWA selfpetitioner but is worried that her receipt of public benefits could impact her ability to get a green card later. However, if she adjusts as a VAWA self-petitioner she is exempt from the public charge ground of inadmissibility. Source: Immigrant Legal Resource Center, Overview of Public Charge (Aug. 2018)
Immigration Consequences of Being Deemed a Public Charge Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." If an individual is inadmissible, admission to the United States or adjustment of status will not be granted. Source: https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet
EXPECTED CHANGES TO THE PUBLIC CHARGE TEST
Expected Changes to Public Charge Test January 2017 a draft executive order was leaked that included a directive to revise the public charge standards December 2017 DHS announced that it was planning rulemaking to revise these standards January 2018, U.S. State Dept. published a revised version of its Foreign Affairs Manual (FAM) that included updated instructions for conducting public charge determinations for foreign nationals who apply for permanent and temporary visas at consulates abroad.
Expected Changes to Public Charge Test February 2018 and March 2018: leaked drafts of the proposed rule The proposed rule as outlined in the March 2018 leaked draft would significantly expand both the types of benefits considered and the discretion DHS would have to deny admissions to the U.S. and adjustment of status to LPR.
Expected Changes to the public charge test: (according to 3/28/18 leaked draft to Washington Post) Expected ADDITIONS to the Public Charge Test: Federal/State/Local Cash assistance programs, including TANF, SSI, GA, Institutionalization for short and long term care at government expense Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps) Special Supplemental Nutrition Assistance Program for Women, Infants and Children (WIC) Medicaid (All Kids, Moms & Babies, etc.) Affordable Care Act/Obamacare/ Get Covered Illinois Marketplace plans if subsidized with the federal premium tax credits Housing assistance, such as Section 8 Vouchers, and homeless programs Means-tested energy benefits such as Low-income Home Energy Assistance Program (LIHEAP) benefits Refundable income tax credits, e.g., Earned Income Tax Credit (EITC) Any other public benefit DHS states that the above is a non-exhaustive list of public benefits to be considered
Benefits Excluded (According to the Leaked Draft) Federal Old-Age, Survivors, and Disability Insurance benefits Veteran s Benefits Government pension benefits Government employee health insurance & transportation benefits Unemployment benefits Workers compensation Medicare benefits, unless the premiums are partially or fully paid by a government agency State disability insurance certain benefits that involve payments from the person, such as loans provided by the government that require repayment; in-state college tuition and any subsidized or unsubsidized government student loans, including, but not limited to loan under the Williams D. Ford Federal Direct Loan Program, 34 CFR 685, and the Federal Perkins Loan Program, 34 CFR 674 de minimus amount : where the total annual value in any 1 year does not exceed 3 percent of the total FPG threshold based on the household size
CONTINUED: Benefits Excluded (According to the Leaked Draft) Elementary and secondary public education (Pre-K through 12th grade) as permitted under the law including benefits under the Head Start Act Certain tax credits and deductions available for the general public which are nonrefundable Disaster relief under 42 U.S.C Ch. 68. Assistance in limited situations that concern the public health or similar overriding public interest including emergency medical care, immunization, and treatment for infectious diseases. [A]ll services related that preventing the discrimination of people with disabilities The Americans with Disabilities Act The Individuals with Disabilities Education Act
Expected Changes to the public charge test (according to 3/28/18 leaked draft to Washington Post) In addition to the dramatic expansion of public benefits and programs, the new public charge test also reviews not just the applicant s use of benefits/programs but also use by the applicant s dependents, even if the dependents are U.S. citizen children (b) Dependent. For purposes of public charge determination under section 212(a)(4) of the Act, a dependent means: (i) A person listed as a dependent on the alien s most recent tax return; (ii) Any other person whom the alien is legally required to support; or (iii) Any other person who lives with the alien, and who is being cared for or provided for by the alien, and benefits from but does not contribute to the alien s income or financial resources, to the extent such person is not claimed on the alien s tax return.
Mandatory Factors Considered in the Totality of the Circumstances Factor Further Details from Leaked Draft Age Working age is considered to be between 18-61 Medical condition Family Status Assets and Resources Financial status Education & Skills [W]hether the alien has unsubsidized health insurance or the financial resources to pay for the medical costs [W]hether the alien can support him or herself and any dependents [] at the level of at least 125[%] (FPG). An alien should be able to support him or herself and any dependents with assets, resources, or annual income equal to at least at 125 [%FPL]. Other than the alien s assets and resources, such as the alien s liabilities or past reliance on public benefits, receipt of fee waivers for immigration purposes, credit reports & scores [W]hether the alien has sufficient education and skills to obtain or maintain full-time employment include[s] evidence of the alien s history of employment; the alien s high school degree or higher education; the alien s occupational skills, certifications, or licenses; and the alien s proficiency in English or another language as relevant to working full-time [& receipt of subsidized health insurance]
Mandatory Factors Considered in the Totality of the Circumstances (continued) Factor Affidavit of Support by Sponsor Highlights Required but demoted in weight
More Changes to the Public Charge Analysis According to the Leaked Draft: Heavily Weighed Factors Negative: these factors are particularly indicative of a likelihood that the alien would become a public charge. Lack of Employability Receipt or Use of One of More Public Benefits within last 36 months since date of application Medical Condition(s) without Non-Subsidized Health Insurance Alien Previously Found Inadmissible or Deportable Based on Public Charge (vi) Other factors as warranted, in the discretion of DHS, in individual circumstances. (p. 209 of leaked draft)
More Changes to the Public Charge Analysis According to the Leaked Draft: Heavily Weighed Factors (2) Heavily weighed positive factors. The following factors will generally weigh heavily in favor of a finding that an alien is not likely to become a public charge: (i) The alien has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines; (ii) The alien is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines; or (iii) Other factors as warranted, in the discretion of DHS, in individual circumstances
2018 FPL Guidelines for the 48 Continental U.S. Household/Family Size 250% 1 $30,350 2 $41,150 3 $51,950 4 $62,750
Consideration of Expanded List of Public Benefits: Clock Starts After the Effective Date of the Rule DHS is proposing to consider those public benefits only if the alien or alien s dependent child or household member received or used such benefits on or after the effective date of the final rule. Previously excluded public benefits will not being counted until 60 days after publication of the final rule: (e) Previously excluded benefits. The determination does not entail consideration of an alien s use or receipt of public benefits that would not have resulted in an inadmissibility based on public charge under the public charge guidance published in the Federal Register at 64 FR 28689 (May 26, 1999), unless such benefits are used or received on or after [INSERT DATE 60 DAYS FROM DATE OF PUBLICATION OF THE FINAL RULE]. (p.209-210 of leaked draft)
Retroactivity in the Leaked Draft The Effective date of the Final Rule triggers the start of time period that can reviewed for 36 month lookback period. Immigration officials will be allowed to consider use of public benefits during that time period
Immigration Consequences for Being Deemed a Public Charge Denial of green card Deportability: PART 237 -- DEPORTABLE ALIENS [FOR DISCUSSION WITH DOJ]. 10. The authority citation for part 237 is newly added to read as follows: Authority: xxxx. 11. Part 237 is amended by: a. Adding a new part heading to read as shown above; b. Adding a new subpart A and heading; c. Adding and reserving sections 237.1 through 237.4; and d. Adding a new section 237.5 and its section heading. The additions read and follows: SUBPART A -- CLASSES OF DEPORTABLE ALIENS * * * * * 237.5 Public Charge Deportability (a) Definitions. Terms used in this section have the following meanings: (1) Public charge has the same meaning as defined in 8 CFR 212.21(a); (2) Public benefit has the same meaning as defined in 8 CFR 212.21(c), including benefits listed in 8 CFR 212.23, and excluding benefits listed in 212.24. (b) Public charge deportability criteria. [TO BE INSERTED]
Summary of Expected Changes to the Public Charge Test Public Charge Test since 1999 Totality of the Circumstances Test Yes Yes Public Health Coverage considered Only Medicaid long term care in institution Public nutrition programs considered No Yes Public housing assistance considered No Yes Cash Assistance considered Yes SSI, GA, TANF Yes Dependents of Applicant considered No Yes Energy assistance considered No Yes Refundable income tax credits No Yes State and local programs included in analysis No Expected Expanded Public Charge Test Yes all non-emergency Medicaid, ACA subsidies Affidavit of Sponsor Given great weight Demoted in weight Yes NOTE: The draft rule shifts the standard from considering an individual a public charge If they are primarily dependent on public benefits to if they make any use of them.
Guidance Now, Before the Proposed Rule is Filed: If you are working with individuals who would be covered by a proposed rule and who are currently receiving benefits you might consider the following when you talk to them: Is the applicant in an immigration category exempt from the application of the test? Nothing has changed yet for those currently residing within the U.S. who are seeking to adjust or change status. But there will likely be changes during this year. The changes will likely not be able to look back to time before the rule is final & there will likely be a 60 day period after final rule published before new benefits can be reviewed. Sign up to get up-to-date information about changes from a trusted source. For individuals currently receiving public assistance, there may be no advantage to terminating benefits at this time. That may change if and when the rule goes into effect.
RULE MAKING
Steps for Rule Making Additional resource: https://www.regulations.gov/docs/factsheet_regulatory_timeline.pdf https://www.reginfo.gov/public/do/eagendaviewrule?pubid=201710&rin=1615-aa22
Action Required During Comment Period Microsites will be available!
Value of Unique and Numerous Comment Submission in Federal Register During Comment Period Adds to administrative record Evidence for APA challenges Support for repeal of rule in 2021 Brings national attention to the issue Motivate states and localities to act Engages communities and stakeholders
POTENTIAL IMPACT OF EXPECTED CHANGES TO THE PUBLIC CHARGE TEST
Potential Magnitude of Draft Leaked Rule: Migration Policy Institute Data More than 10 million noncitizens reside in benefits-receiving families. The share of noncitizens who could face a public-charge determination based on benefits use would increase more than 15-fold from 3% under current policy to 47% under the terms of the draft rule. Will discourage millions of immigrants from accessing health, nutrition, and social services These chilling effects are likely to stretch beyond immigrants themselves to affect U.S.-citizen children whose parents may dis-enroll them from services for fear of immigration consequences
Providers: Health System Impact Sicker patients overall due to delayed disease detection, increased # of patients with unmanaged chronic conditions Potential tension among provider and patients Increased: uncompensated care costs need for private community referrals (e.g., food pantries, donated health care) # persons experiencing homelessness demand for mental health treatment from toxic stress Decreased Medicaid reimbursement from increased disenrollment Agencies: Increased churn Increase in call volume need to modify all consumer facing communication Kaiser data: 75% of those disenrolling from Medicaid would become uninsured
Economic Impact Decrease retail and commercial grocery and food sales (due to SNAP/WIC disenrollment/forgo benefits) Increased uncompensated care Decreased reimbursement for providers Increase in energy shutoff costs Increase in emergency shelter costs Forging federal Pell grant: decrease in higher education enrollment/participation Decrease in workforce development/readiness Increase in educational debt Due to forging filing for refundable tax credits such as the EITC: slower economic growth and spending
Impact on Public & Private Safety Net Increase use of and need for emergency food programs Increase child welfare complaints, investigations and placements Increase burden on foster care system Increased use of and need for emergency health care services due to forgone primary care and weatherrelated illness Increased unemployment claims Increase use of and burden on safety net providers and to respond to public health emergencies
Estimated Number of Immigrants Impacted in Illinois: Illinois is home to 1.76 million immigrants Illinois is home to the fifth largest number of immigrants in benefits-receiving families in the U.S.. (only California, New York, Texas and Florida are home to more) Data source: Migration Policy Institute (June 2018) 2014-2016 data; immigrants refers to people who did not hold U.S. citizenship at birth
Illinois: Immigrants & Benefits-Use Noncitizens Total Illinois Population Naturalized citizens U.S. born All individuals 885,900 881,000 10,778,200 Individuals in families receiving any of the 4 major public benefits As a % of all individuals 423,700 285,900 3,389,500 47.8 32.5 31.4 Data source: Migration Policy Institute (June 2018) 2014-2016 data; Non-citizens are defined as immigrants who are not U.S. citizens at the time of the ACS and includes LPRs, refugees, asylees, persons on certain temporary visas, and the undocumented
Estimated Number Impacted in Illinois: Individuals in families receiving the following public benefits: TANF/GA (public cash assistance or welfare) Noncitizens Naturalized Citizens U.S. Born 23,000 27,300 329,200 SSI 20,200 51,700 554,300 SNAP 185,700 118,000 1,821,500 MEDICAID/CHIP 388,000 244,700 2,951,700 Potentially eligible for ACA subsidies 43,100 57,300 638,800 Data source: Migration Policy Institute (June 2018) 2014-2016 data; Non-citizens are defined as immigrants who are not U.S. citizens at the time of the ACS and includes LPRs, refugees, asylees, persons on certain temporary visas, and the undocumented
Impact of Expected New Rule on Children 1 in 4 children in Illinois have an immigrant parent Increased public health risk Increased levels of child poverty Increased financial instability due to coverage loss and/or other benefit loss Reduce the well-documented positive impacts of prenatal care, nutrition assistance, early childhood education, and timely medical care, on the health, development and psychological outcomes of immigrant and U.S. born children 40
Estimated Number of Children Impacted in Illinois: Illinois Citizen Children with a Non-citizen Parent: 442,000 Medicaid/CHIP coverage 224,000 Have Household Income < 250% FPL 251,000 Household use of EITC 194,000 SNAP 94,000 Data source: http://files.kff.org/attachment/issue-brief-potential-effects-of-public-charge-changes-on-health- Coverage-for-Citizen-Children
PIF-ILLINOIS
Steps Your Organization Can Take Now, Before The Proposed Rule is Filed: o Join the Protecting Immigrant Families-Illinois coalition! pifillinois@povertylaw.org o Updates, alerts, instructions on how to submit comments o Gear up to prepare and submit comments: o We can help! o Share the news with your networks now to prepare everyone to mobilize once the rule is published! o Help us gather stories o Think about how your program will respond to increased need for outreach, training, education and legal representation if the rule is finalized.
PIF-IL Ways to Resist After Proposed Rule Filed Adapt PIF-IL Template Comment for your sector Continue outreach and driving comments throughout the comment period Submit as many unique comments as possible After Final Rule is Published: Ongoing education, state-and local advocacy initiatives, etc.
Join the Protecting Immigrant Families-Illinois Campaign! Email us at: pifillinois@povertylaw.org Questions?