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Request for Action – Public Charge

Publication date: 
Friday, October 5, 2018

On September 22, the U.S. Department of Homeland Security (DHS) released a proposed rule to revise the criteria for “public charge.” Public charge refers to guidelines employed by immigration officers to determine if an immigrant is likely to become “primarily dependent on the government for subsistence.”

As proposed by DHS, the draft “public charge” changes would allow immigration officers to deny entry into the United States or lawful permanent resident (LPR) status to an immigrant if the individual is receiving non-cash public assistance intended to help individuals and families meet basic living requirements.

The draft rule could result in immigrant families forgoing access to a wide array of entitled public benefits, including health care, food support, and housing assistance, in fear of their legal status in the country. This rule would directly affect grantmakers’ efforts in: immigrant integration, addressing food security, housing efforts, and health benefits.

Once published in The Federal Register, a sixty-day public comment period will commence to move this proposed rule toward final adoption. In addition to general comments about the proposed rule, DHS specifically requests public comment on whether to include the Children’s Health Insurance Program (CHIP) as a public benefit subject to a public charge determination.

 

RECOMMENDATION

Staff recommends that the Public Policy Committee:

Oppose the revision of public charge rules that affect the legal status immigrants who access entitled non-cash benefits such as Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing assistance such as Section 8 housing vouchers, and low-income subsidy for prescription drug costs under Medicare Part D.

Once DHS publishes the proposed rule in the Federal Register (an official, daily journal of the federal government that contains government agency rules, proposed rules, and public notices), a sixty-day public comment period will begin. If approved by the Public Policy Committee, SCG would coordinate efforts to submit a comment letter and advocate on this issue in tandem with existing work led by Grantmakers Concerned with Immigrants and Refugees (GCIR), SCG members, and Philanthropy California.

 

ALIGNMENT WITH SCG PUBLIC POLICY AGENDA

Opposing the changes to the criteria for public charge aligns with SCG’s Public Policy Agenda, as adopted by this Committee on March 1, 2018, in the following manner:

  • Child Welfare: The adoption of the changes to public charge would negatively impact the welfare of children. Over 19 million or one in four (25 percent) children live with an immigrant parent, and nearly nine in ten (86 percent) of these children are citizens. According to the Kaiser Family Foundation, the proposed rule would likely increase confusion and fear among all legal immigrant families about using public programs for themselves and their children, regardless of whether they are directly affected by the policy changes.
     
  • Immigrant Integration: The proposed changes to public charge would likely decrease the number of immigrants who could receive LPR status. Obtaining LPR status is a key step toward citizenship for immigrants seeking naturalization. Consequently, the proposed rule would negatively affect funder efforts related to immigrant integration.

    Additionally, the Department of Justice (DOJ) intends to issue its own “parallel rulemaking” on deportability that would mirror the proposed expanded DHS standards on public charge. If adopted as reported, DOJ could deport immigrants with LPR status who receive public benefits.
     
  • Protection of Social Safety Net: The Committee expressed an interest in taking positions that would protect the social safety net in recognition that government frequently looks to or expects that philanthropy would “fill the gap.” The Committee noted that philanthropy dollars should not be expected to fill in services provided by government.

 

WHAT IS PUBLIC CHARGE?

The “public charge” test seeks to identify persons who may depend on the government as their main source of support. If the government determines that a person is likely to become a “public charge,” it can deny a person admission to the United States or lawful permanent resident (LPR) status.

Under current policy, immigration officers evaluate if a foreign national is likely to become “primarily dependent on the government for subsistence,” by examining if the person has received:

  • Cash assistance (“welfare”) such as the Temporary Assistance for Needy Families (TANF);
  • Supplementary Security Income (SSI) for the disabled; or
  • Long-term government institutional care like a nursing home or mental health institution.

 

Most noncitizens already cannot obtain cash TANF and SSI under federal law.

 

PROPOSED CHANGES TO RULE

The proposed rule by DHS would expand the public charge test that would weigh against an immigrant seeking LPR status. Specifically, the proposed rule would consider the following non-cash assistance programs as constituting public charge:

  • Medicaid (non-emergency),
  • Supplemental Nutrition Assistance Program (SNAP),
  • Low income subsidy for prescription drug costs under Medicare Part D, and
  • Housing assistance such as Section 8 housing vouchers.

 

The proposed changes currently do not include the Children’s Health Insurance Program (CHIP) or subsidies for Affordable Care Act Marketplace coverage as public benefits. However, DHS specifically requests public comment on whether to include CHIP as a public benefit subject to a public charge determination.

Furthermore, according to the California Health Care Foundation, DHS seeks comments regarding how public charge determinations should be conducted for “alien children” who received public benefits while minors. With a 36-month look back period, an 18-year-old applying to change immigration status could be viewed as a public charge based on benefits received at ages 15, 16, or 17. This could mean that, if a pathway for LPR is created for recipients of the Deferred Action of Childhood Arrivals (DACA) program, and the DACA recipient has previously received non-cash public benefits, the DACA recipient would have the use of such benefits weighed against the person when seeking LPR status.

 

AFFECT ON VULNERABLE COMMUNITIES

Potential changes to public charge policies intended to reduce use of public programs by immigrant families could further increase strains on immigrant families and lead to losses in health coverage, food assistance, and housing vouchers.
This would have a disproportionate effect in California. According to the Kaiser Family Foundation, California has the most citizen children with an immigrant parent receiving Medicaid/CHIP coverage in the nation with 2 million enrollees, making up nearly a quarter of all citizen children in the country.

Furthermore, if Medicaid/CHIP disenrollment rates range from 15 percent to 35 percent, an estimated 875,000 to 2 million citizen children with a noncitizen parent could drop Medicaid/CHIP coverage despite remaining eligible. Holding other variables constant, this could mean up to 250,000 citizen children in California would lose coverage due to uncertainty and fear.

While this draft would not count benefits used by citizen children against a family member seeking to enter the country or applying for permanent immigration status, the fear and confusion sowed by this policy has led to anecdotal decreased participation. The Los Angeles Times confirmed this sentiment in reporting that local clinics have witnessed decreased enrollments in My Health LA or with existing patients not following up on medical care.


 

FEDERAL RULEMAKING PROCESS

If approved by the Public Policy Committee, SCG staff would be able to participate in the federal rulemaking process by submitting written comment.

Written comment is a process that allows individuals, organizations, agencies, and businesses to provide input on proposed decisions. After the comment period closes, the agency reviews them and conducts a comment analysis. Any final rule would include an agency response to the significant and relevant issues raised in public comments as well as a statement providing the basis and the purpose of the rule.

Significant number of public comments submitted open a pathway for advocates to potentially slow or stop the rulemaking process through the court process.

 

SUPPORT

No known SCG members currently support the proposed changes to public charge. Organizations that generally support reduction in immigration have supported the proposed rules. The Center for Immigration Studies, writing in support, notes that:

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.

Furthermore, supporters of public charge note that the proposed DHS rules would save taxpayers $1.5 billion annually due to the DHS estimated 2.5 percent of eligible immigrants who will disenroll or forgo enrollment in public benefit programs.

SCG staff notes that existing law already prohibits non-U.S. citizens from receiving forms of cash assistance. Furthermore, it is likely that the deferral of health care, lack of food security, and threats to housing due to the proposed rules (or the threat of the rules) would have an impact on the social safety net in an unquantifiable, but likely significant cost to the federal, state, and local governments.

 

OPPOSITION

On September 24, three philanthropy leaders in Southern California wrote an opinion piece in The Chronicle of Philanthropy (Attachment A). Fred Ali (Weingart Foundation), Antonia Hernández (California Community Foundation), and Dr. Robert K. Ross (The California Endowment) noted that:

Vital as these programs are to keeping communities healthy, well-nourished, and in decent housing, millions of families will stop using them. Parents will be hesitant to take a child to the doctor because of fear that it could be counted against their immigration case or that of a relative – even though the child getting the care may be a U.S. citizen. Families would face the impossible choice between obtaining essential services for their children and sustaining their chance for a permanent future in the United States.

The authors noted that:

Foundations should also consider submitting letters when the public comment period opens, since weighing in on proposed regulations is not lobbying under tax law.


Additionally, Kim Belshé, Executive Director of First 5 LA in a statement noted:

All families have a right to engage with the public systems that exist to serve their health, education, and caregiving needs without fear of judgement or reprisals. With nearly one in four children nationwide having at least one immigrant parent, this proposed rule change will hurt, instead of help, millions of kids. There is a shared responsibility, and a shared benefit from improving the health and well-being of all young children.


 

REQUEST FOR ACTION

SCG staff requests that the Public Policy Committee take action for the aforementioned reasons. If you have questions or comments, please contact me at [email protected] or (213) 680-8866 ext. 221.

 

Attachment A – Opinion, “Newest White House Proposal,” Fred Ali, Antonia Hernández, and Dr. Robert K. Ross.