An Overhaul of Legal Immigration, Through the Back-Door

Originally posted on October 23, 2018

Last month, the Trump Administration announced a dramatic change to long-standing definitions of what constitutes a “public charge” for legal immigration purposes.  Bishop Vasquez, Chairman of the US Conference of Catholic Bishops’ migration committee said that the changes, if enacted, would “undercut decades of administrative policies and guidelines on how immigrants are treated…it is likely to prevent families from accessing important medical and social services vital to public health and welfare.”

In late September, the Department of Homeland Security (DHS) announced a proposed change in how it will evaluate the admissibility of immigrants based on their likelihood of becoming dependent upon the state. Although the “likely to be a public charge” provision has been part of federal immigration law since the 19th century, the new regulations would constitute a dramatic departure from existing practice. If implemented, this proposal could undermine the well-being of hundreds of thousands of immigrants and their families already in the country, and dramatically alter the nature of future legal immigration to the United States.

Gráinne McEvoy is an independent scholar based in South Bend, Indiana, and is currently writing a book on American Catholic social thought and immigration policy in the 20th century.

Under the new regulations, the U.S. Citizenship and Immigration Service (USCIS) would use a complex set of rules for assessing all applicants for visas or legal permanent residency (green cards), whether new applicants from outside the country or those already living in the U.S. who are legally applying to adjust their status. Immigration inspectors would have significant leeway, including the ability to deny admission or legal residency if an individual has utilized certain taxpayer-funded programs that support access to food aid, public housing, and Medicaid. The regulations comprise a complex set of tests that weigh “negative factors” in an individual’s background such as using welfare programs like Medicaid and food stamps, being in ill-health without insurance, or having a large family. In contrast, a household income significantly above the federal poverty line would be considered a “strongly positive” factor.

The new regulations would be a significant departure from existing application of the “likely to be a public charge” rule. In particular, while the definition of what constitutes a public charge has historically been understood as being dependent upon the state for the majority of one’s subsistence, the new proposal lowers that bar considerably. The current guidelines, in place since 1999, define a public charge as being primarily dependent upon the federal government, typically through direct cash assistance or long-term support. At present, immigration inspectors are explicitly barred from penalizing for use of non-cash benefits, such as food stamps or Section 8 housing vouchers. In contrast, this proposal would expand the definition of public charge, in such a way as to include those who benefit from programs designed not to provide a livelihood, but to improve conditions for those living at or near the poverty level. 

Analysts have identified two potential outcomes from this broadening of the public charge definition. The first, affecting immigrants already legally resident in the U.S., would be the retreat of non-citizens from various forms of public welfare assistance, to which they are entitled, because they are afraid of being denied a green card and losing their immigration status. When an initial proposal was leaked to the press in March, it included an expansive cradle to grave list of welfare programs such as home heating aid, Head Start and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Although the latest draft is less draconian, news of the original proposal generated sufficient fear and confusion to provoke withdrawals from health, nutrition and social services. The Migration Policy Institute and the DHS itself predicted this “chilling effect,” and, in recent months, public health agencies have reported anecdotal observations of this reaction. According to the American Association of Pediatricians, pregnant women are opting out of vital prenatal care, while agencies in 18 states are blaming fears around the changing regulations for declines of up to 20 per cent in enrollment in WIC, which provides low-income parents with assistance in buying infant formula and healthy food for young children.

The second potential outcome affects those applying for immigrant visas from abroad, and could constitute an overhaul of the very nature of legal immigration to the U.S. The fullest application of the new regulation would fall heaviest on those who are lower-income, less educated, older, and immigrating to join family members already in the U.S, a type of immigration that typically originates in Asia, Latin America, and Africa. This change therefore has the capacity to dramatically alter the character of legal immigration in the future. Analysts have found that 56% of noncitizens who arrived within the last 5 years would fail to meet the “strongly positive” threshold of an income that is 250% of the poverty line, this includes 71 per cent of Mexicans and Central Americans, 69 per cent of Africans and 52 per cent of Asians. It is worth noting that 40 per cent of U.S-born people would also fall below this line.

The proposed administrative change has significant ramifications from the perspective of Catholic social thought and its application to immigration policy. Secretary of Homeland Security Kirstjen Nielsen has insisted that the rule will “promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.” A Catholic understanding of U.S. immigration law does not disagree with this goal. Catholic observers of immigration policy have historically supported the principle that the state has a right and responsibility to reasonably control immigration in the interests of both citizens and immigrants. This has included arguments in favor of regulating admissions in ways that protect a living wage for all, such as Monsignor John Ryan’s support for literacy testing of immigrants in the 1910s, or the National Catholic Rural Life Conference’s concern about the importation and exploitation of low-skilled agricultural laborers from Mexico in the 1950s and 1960s.    

While Catholic social thought supports the DHS’s expressed end, it contains significant challenges to the proposed means. Any process that undermines the health and well-being of the nation’s children, parents, and the elderly, whether citizens or immigrants, runs counter to the Catholic principle that the integrity of the family unit is the vital heart of a stable society. As regards immigrants, Catholic social thought holds that adaptation is undermined by inadequate nutrition, housing, and healthcare, and by the existence of a horrific threat of deportation should a person fall into ill-health or unemployment, despite paying-taxes and following the complex, demanding rules of immigration law. Evidence also suggests that the argument that low-income immigrants constitute an excessive drain on the federal purse is a strawman. Studies have found that immigrants utilize both healthcare and welfare programs at significantly lower rates than U.S. citizens, and may even subsidize citizen healthcare to the point that loss of this contribution could raise costs in the future. According to Catholic social thought, the proposed public charge rule is therefore not a reasonable exercise of the state’s right and responsibility to control immigration.

A Catholic response also opposes any immigration policy change that may be a racially-motivated mechanism for reducing immigration from certain parts of the world. Critics of the proposed regulation view its potential effect on legal immigration from poorer nations as a back-door attempt to reverse the reforms of the Immigration and Nationality Act of 1965. This law enshrined family-reunification in immigration law and removed existing race and nationality-based restrictions on immigration that were introduced in the 1920s as a deliberate means of skewing admissions toward immigrants from Western Europe. Catholic voices were consistent critics of the national origins quota system from its inception to its dismantling, and embraced the principle of racial equality in immigration law more fully by the 1960s.

One of the most striking aspects of this potentially dramatic overhaul of our legal immigration system is that, as an administrative adjustment, this change can go into effect without the approval of Congress. American residents should insist that such a proposal be considered by Congress, and they have an avenue for doing so. Members of the public have until December 10 to submit comments on the proposal now published in the Federal Register. The DHS must then consider and address these views before adopting a final version of the regulation in several months.

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