The New Public Charge Rule: A Comment on the Comments on the Comments

By Jason Richwine on August 14, 2019

Federal law bars any alien who "is likely at any time to become a public charge" from receiving a visa or becoming a permanent resident if already here. This week DHS finalized a new regulation that defines "public charge" for enforcement purposes. Under Clinton-era guidance, which never went through the formal rule-making process, only receipt of cash assistance or long-term institutional care could render someone a public charge. Under the new rule, the government may now also consider receipt of food stamps, housing assistance, and Medicaid.

The rule is common sense. Someone who relies on taxpayers for basic needs is a "public charge" by any reasonable definition of that term. It should not matter whether the assistance comes in the form of cash (as with SSI), or a voucher (food stamps), or a direct service (Medicaid). In fact, the new rule does not go far enough. Other programs that are clearly means-tested anti-poverty benefits — such as Obamacare subsidies, free school lunch, CHIP, WIC, the refundable portion of the EITC, and the ACTC — will still not count toward the public charge determination.

In separate comments submitted to DHS, Steven Camarota and I argued for incorporating those additional welfare programs. To its credit, DHS responded to us in the final rule. Here is its discussion of refundable tax credits:

Some commenters stated that non-citizens should be unable to benefit from the EITC or the Additional Child Tax Credit (ACTC). Similarly, a few commenters said the exclusion of the refundable tax credits is problematic since the refundable portion of EITC and ACTC cost over $80 billion combined in 2016. The commenters asserted that these tax credits meet the definition of a means-tested anti-poverty benefit. ...

DHS appreciates the comments regarding the EITC, ACTC, and CTC. Only public benefits as defined in 8 CFR 212.21(b) will be considered in the public charge inadmissibility determination. Although EITC and ACTC benefits provide what may be considered cash assistance, DHS did not propose to include EITC or ACTC as public benefits in the public charge inadmissibility determination. DHS is not including tax credits because many people with moderate incomes and high incomes are eligible for these tax credits, and the tax system is structured in such a way as to encourage taxpayers to claim and maximize all tax credits for which they are eligible. In addition, DHS is unable to determine how much of the taxpayer's refund is attributable to any one tax credit, as compared to other aspects of the tax return (such as non-designated credits or deductions) or to any one person, as opposed to a spouse filing jointly. Finally, these tax credits may be combined with other tax credits between spouses. One spouse may be a U.S. citizen and the tax return may be filed jointly. Therefore, DHS would not be able to determine whether the alien or the U.S. citizen received the tax credit.

We understand that DHS wants to avoid unnecessary complications. We would submit, however, that joint tax returns are not complicated, regardless of whether they involve a mixed immigrant/citizen couple. When a married couple jointly receives a refundable tax credit, both individuals receive a welfare benefit. That seems fairly simple. We also do not understand the claim that "people with moderate incomes and high incomes are eligible," since the refundable portions of tax credits are reserved for people whose income is too low to owe any tax. (Perhaps DHS was referring to non-refundable tax credits, which cannot reduce a person's tax liability below zero, but we agree those should not count as welfare.) Finally, although the tax system may be "structured in such a way as to encourage taxpayers to claim and maximize all tax credits for which they are eligible", we're not sure the welfare system is much different. Whole bureaucracies at the federal, state, and local levels are dedicated to expanding program participation.

Aside from adding to the list of welfare programs, our second major recommendation was that welfare use by the dependents of immigrants should count toward the public charge determination. For example, an immigrant mother who turns to the taxpayer to help feed her children should be counted as a public charge even if the food aid goes only to the children. Here is the response from DHS:

A commenter indicated the new regulations should include welfare use by dependents. The commenter indicated that the very idea of self-sufficiency means that people can provide for themselves and their children and spouses without assistance from taxpayers. The commenter indicated that excluding the children's benefits including Medicaid, WIC, and free school lunch, from not being considered for public charge is like having an income tax that excludes all income from second jobs, investments, and rental properties. The commenter analyzed the 2014 public-use SIPP data and indicated that in 39 percent of immigrant-headed households (legal and illegal) receiving TANF, only the children receive the payments. The commenter indicated that much of the immigrant welfare use of this program would be missed if dependents are not considered.

DHS appreciates the comments. DHS believes that the rule addresses self-sufficiency adequately without introducing consideration of a third party's receipt of public benefits, potentially to include U.S. citizen third parties such as non-custodial children. In consideration of these issues, as well as the many comments regarding the potential effects of the rule on U.S. citizen children, DHS respectfully declines to expand the rule in this manner. DHS notes that although an inadmissibility determination is made for each person individually, the alien's income is reviewed in terms of the household, and the alien's family status is considered as well, as the statute requires. The ultimate question under this rule, however, is whether the alien (rather than his or her dependents) is likely to receive public benefits in the future above the applicable threshold.

Since income and family size are among the factors to be considered, DHS is correct to note that dependents will have at least some effect on the public charge determination, though not as much as they should. In fact, without considering welfare use by dependents, very few immigrants will be penalized for past welfare use, for the simple reason that most are not eligible for welfare while on temporary visas.

Of course, we are not the only commenters to whom DHS responded. Most of the 800 pages in the new rule consist of responses to critics who believe the rule is too strict. In reading over those pages, it is striking how many commenters argued with the law rather than with the regulation. Their claims — that a large percentage of American citizens would qualify as public charges, that the minimum wage is not sufficient to rise above poverty, that we should not discriminate against low-income immigrants, and that the rule would hurt employers of low-wage labor — are all premised on the idea that people likely to become public charges should be welcomed to America. Congress has explicitly stated otherwise. This new regulation, though not structured as effectively as it could be, is a long overdue attempt to enforce the law as written.