Two Reasons to Amend the Public Charge Ground of Inadmissibility

Protecting the taxpayers and the disadvantaged

By Andrew R. Arthur on May 7, 2018

The Department of Homeland Security (DHS) has announced that it will "propose regulatory provisions guiding the inadmissibility determination on whether an alien is likely at any time to become a public charge under section 212(a)(4) of the Immigration and Nationality Act (INA)." Properly amended, the regulations governing the inadmissibility of aliens who are likely to become public charges would benefit not only taxpayers, but also disadvantaged workers in the United States.

A purported proposed draft of those regulatory changes was obtained by the Washington Post, which reported on them on March 28, 2018. As the paper explained:

Current rules penalize immigrants who receive cash welfare payments, considering them a "public charge." But the proposed changes from the Department of Homeland Security would broaden the government's definition of benefits to include the widely used earned-income tax credit as well as health insurance subsidies and other "non-cash public benefits."

The changes would apply to those seeking immigration visas or legal permanent residency, such as a foreigner with an expiring work visa. While they would make little difference to those living here illegally, it could affect immigrants protected by the Deferred Action for Childhood Arrivals program — whose termination has been blocked by federal courts — if they attempt to file for full legal residency.

The "public charge" ground of inadmissibility, found at section 212(a)(4) of the INA, is fairly straightforward. Subparagraph (A) therein states:

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

"Public charge" is one of the oldest, and generally least controversial, grounds of inadmissibility. The Congressional Research Service (CRS) explains the history of this provision:

Congress has long sought to ensure that aliens immigrating to the United States are able to support themselves. The country's first general immigration law, enacted in 1882, excluded aliens who were deemed "likely to become a public charge" after they came to the United States. A little over 20 years later, in 1903, Congress made aliens who had migrated to the United States deportable if they became public charges within two years after entry (subsequently increased to five years). Both provisions have been modified somewhat over the years, but remain part of the Immigration and Nationality Act (INA).

This history clarifies the rationale behind the public charge rule: The United States has always been a country both of opportunity and of immigrants, but there is an expectation that foreign nationals who come to this country "pull their own weight", that is, be able to support themselves as well as any family members they bring.

There are strong reasons supporting this rule. Gallup released a poll in 2012 that revealed that 150 million adults around the world, nearly one in 30 of the planet's inhabitants, would immigrate to the United States if they had the chance. The reasons are obvious, but worth stating: the United States has a dependable system of justice, a comparatively good education system (with notable exceptions), the best health care in the world, and a robust attachment to the rule of law (again, with notable exceptions).

The largest proportions of individuals who would immigrate to this country, however, come from some of the poorest countries in the world.

For example, Gallup reports that 37 percent of all Liberians would like to move to the United States. The Central Intelligence Agency (CIA) World Factbook states: "Liberia is a low-income country that relies heavily on foreign assistance and remittances from the diaspora."

Some 30 percent of nationals of Sierra Leone would also like to come to the United States, according to Gallup. According to the CIA: "Sierra Leone is extremely poor and nearly half of the working-age population engages in subsistence agriculture."

Third on Gallup's list is the Dominican Republic, 26 percent of whose nationals would like to come to the United States. As the CIA explains:

The country suffers from marked income inequality; the poorest half of the population receives less than one-fifth of GDP, while the richest 10% enjoys nearly 40% of GDP. High unemployment, a large informal sector, and underemployment remain important long-term challenges.

While undoubtedly there are many rich Dominicans who would welcome the opportunity to immigrate to the United States, it is reasonable to believe that the vast majority of those who want to move to this country from the Dominican Republic are in "the poorest half the population".

Given the large number of individuals interested in immigrating to the United States, and this country's long history of expecting self-sufficiency from its immigrants, the United States can, and should, choose those potential immigrants who are unlikely to be a burden on their (future) fellow citizens.

Despite the consensus on this commonsense rule, the applicability of the "public charge" ground of inadmissibility has traditionally been somewhat unsettled. As CRS explains:

[W]hile the INA provides that an alien may be inadmissible or deportable on public charge grounds, it does not define what it means for an alien to be a public charge. Such determinations were historically made using certain tests developed by the case law, discussed below. Then, in 1996, Congress amended the INA provisions regarding the public charge ground of inadmissibility to require that consular and immigration officers take certain factors "into account" when determining whether aliens are inadmissible or ineligible for adjustment of status on public charge grounds. These factors include, "at a minimum," the alien's age; health; family status; assets, resources, and financial status; and education and skills. In addition, the 1996 amendments also authorize consular and immigration officers to consider any affidavit of support furnished on behalf of an alien and provide that certain family-sponsored and employment-based immigrants are inadmissible if they do not have the requisite affidavit of support.

Notwithstanding the reasons for the rule, and the guidance provided by Congress in 1996, it is notable that, as U.S. Citizenship and Immigration Services (USCIS) describes the rule on its website, "receiving public benefits does not automatically make an individual a public charge." The agency notes, however:

In determining inadmissibility, USCIS defines "public charge" as an individual who is likely to become "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense."


USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called "general assistance" programs. Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. ... Each determination is made on a case-by-case basis in the context of the totality of the circumstances.

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care — such as a nursing home or mental health institution — may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration. [Emphasis added.]

Respectfully, it is difficult to conceive what the phrase "public charge" means if it did not include all aliens who receive "cash assistance" from the government. If the taxpayers are paying for any part of your subsistence, you would logically be a "public charge".

How many immigrants receive such benefits? The Washington Post reports:

Out of the 41.5 million immigrants living in the United States, 3.7 percent received cash benefits in 2013, and 22.7 percent accepted noncash benefits including Medicaid, housing subsidies or home heating assistance, according to statistics compiled by U.S. Citizenship and Immigration Services.

The most interesting aspect of this issue, however, is not the "public charge" rule or even any of the proposed amendments thereto. Instead, it is a particular response to that leaked, alleged, draft rule from the National Immigration Law Center (NILC). NILC issued a fact sheet on that proposed rule, which was last updated on April 12, 2018. That organization's take on the proposed rule is apparent from the first line therein:

The Trump administration is opening a new front in its assault on family-based immigration by making it harder for immigrants who might use essential public services to come to the United States and settle here permanently.

The most interesting statistic from that fact sheet is buried on the third of four pages: "Immigrants have higher rates of employment than U.S.-born citizens but often work in jobs that pay them less than their U.S.-born counterparts." Put another way, immigrants are often in direct competition with U.S. citizens (and other immigrants) at the lower end of the pay scale.

The receipt of public benefits for oneself or one's dependents is a logical marker for limited employment opportunities. Although not a hard and fast rule, most Americans would prefer to support themselves and their families instead of relying on the government to do so. Logically, therefore, those American workers with whom immigrants receiving public benefits would be in competition are the least advantaged in our society, generally those who have received fewer educational and/or employment opportunities than society as a whole.

Barbara Jordan, the civil-rights leader and African-American congresswoman from Texas who was appointed by President Bill Clinton to head the U.S. Commission on Immigration Reform, said the following in a speech a few months before her death:

The Commission finds no national interest in continuing to import lesser-skilled and unskilled workers to compete in the most vulnerable parts of our labor force. Many American workers do not have adequate job prospects. We should make their task easier to find employment, not harder.

Not only would a "public charge" rule that bars the admission of aliens receiving public benefits protect the public fisc, it would also make it more likely that American workers who "do not have adequate job prospects" would be able to find employment.

The proposed rule has not yet been released, so the exact parameters of it are unclear. If DHS wants to protect both American workers and their pocketbooks, however, the department would be wise to include a robust "public charge" ground of inadmissibility.

Topics: Welfare