In just the first 20 days of President Joe Biden’s administration, he has signed an unprecedented 52 executive orders and actions. While some have received reasonable scrutiny, others have slipped beneath the radar. One of these has, in short, begun the reversal of long-standing policies which prevent immigrants from becoming a burden of the state under the “public charge” rule.
What is the “public charge” rule?
According to the United States Citizenship and Immigration Services (USCIS), “public charge” under the Trump administration was defined as “an alien who receives one or more public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”
“The public charge ground of inadmissibility has been a part of the U.S. immigration law for more than 100 years,” where “An alien who is likely at any time to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident.”
According to the USCIS, the adjudicating officer must “weigh both the positive and negative facts,” reviewing “the totality of an alien’s circumstances when deciding whether an applicant is likely at any time to become a public charge.”
They must consider factors including “age; health; family status; assets, resources, and financial status; education and skills; prospective immigration status; and expected period of admission.”
The benefits considered by the Department of Homeland Security as part of determining the likelihood of the applicant “becoming a public charge” include:
- Supplemental Security Income;
- Temporary Assistance for Needy Families;
- Supplemental Nutrition Assistance Program (formerly called food stamps);
- Public Housing
- Federally funded Medicaid
The benefits which are not considered by the Department of Homeland Security include:
- Emergency medical assistance;
- Disaster relief;
- National school lunch programs;
- The Children’s Health Insurance Program;
- Subsidies for foster care and adoption;
- Government-subsidized student and mortgage loans;
- Food pantries and homeless shelters; and
What is the history of the “public charge” rule?
The term “public charge” was first introduced in the Immigration Act of 1882, which found that immigrants who were “unable to take care of himself or herself without becoming a public charge” were unsuitable for American citizenship, with their entrance then denied.
The Immigration Act of 1891 built upon this exclusion, saying “the following classes of aliens shall be excluded from admission into the United States … All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists…”
The Immigration Act of 1903 permitted the deportation of immigrants who became a “public charge” within their first two years of residence.
In 1915, the United States Supreme Court ruled in Gegiow v. Uhl that the “public charge” restriction applied exclusively to immigrants who “by reason of poverty, insanity, disease or disability would become a charge upon the public.”
The Immigration and Nationality Act of 1952 (amended in 1965) declared that “any alien likely at any time to become a public charge” should not be admitted. In addition, any immigrant who had received public benefits within their first five years of residence could be deported.
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act required sponsors of immigrants to show greater financial capacity, and required that they reimburse the government for “means-tested public benefits” received by the immigrant.
How is the “public charge” rule used?
The Department of State is responsible for granting entry visas, while the USCIS are responsible for awarding immigration statuses, a role previously held by the Immigration and Naturalization Service (INS). Prior to 1999, the interpretation of “public charge” was broadly (and sometimes inconsistently) applied by the relevant departments or offices.
In 1999, however, the INS issued formal guidance regarding the definition of “public charge.”
“Field Guidance on Deportability and Inadmissibility on Public Charge Ground,” defined “public charge” as an immigrant who was “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.” Examples of such “government subsistence” or “assistance” included Supplemental Security Income, state or local cash assistance programs, and Temporary Assistance for Needy Families program income. Sources such as Medicaid, food stamps, unemployment insurance and housing benefits were explicitly excluded.
In 2019 under Donald Trump, the USCIS announced a new rule which restricted poorer immigrants from receiving Green Cards. Under this rule, legal immigrants who received benefits such as Supplemental Security Income, Temporary Assistance for Needy Families, Medicaid or housing assistance for “more than a total of twelve months within any 36-month period” may be categorized as a “public charge,” and would therefore be ineligible for permanent residency. Those excluded from these restrictions include refugees, asylum seekers, pregnant women, children, and family members of those serving in the Armed Forces.
What does Biden’s executive order say?
On February 2, Biden signed an “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” In Section 4 of the order, titled “Immediate Review of Agency Actions on Public Charge Inadmissibility,” the order states that “The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of other relevant agencies, as appropriate, shall review all agency actions related to implementation of the public charge ground of inadmissibility,” and that they “shall, in considering the effects and implications of public charge policies, consult with the heads of relevant agencies, including the Secretary of Agriculture, the Secretary of Health and Human Services, and the Secretary of Housing and Urban Development.”
According to the order, this review should consider and evaluate the “effects of these agency actions,” in the context of “the implications of their continued implementation in light of the policy” described in the order’s introduction:
“Over 40 million foreign-born individuals live in the United States today. Millions more Americans have immigrants in their families or ancestry. New Americans and their children fuel our economy, working in every industry, including healthcare, construction, caregiving, manufacturing, service, and agriculture. They open and successfully run businesses at high rates, creating jobs for millions, and they contribute to our arts, culture, and government, providing new traditions, customs, and viewpoints. They are essential workers helping to keep our economy afloat and providing important services to Americans during a global pandemic. They have helped the United States lead the world in science, technology, and innovation. And they are on the frontlines of research to develop coronavirus disease 2019 (COVID-19) vaccines and treatments for those afflicted with the deadly disease.
Consistent with our character as a Nation of opportunity and of welcome, it is essential to ensure that our laws and policies encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them. Our Nation is enriched socially and economically by the presence of immigrants, and we celebrate with them as they take the important step of becoming United States citizens. The Federal Government should develop welcoming strategies that promote integration, inclusion, and citizenship, and it should embrace the full participation of the newest Americans in our democracy.”
The relevant line in this introduction when it comes to Biden’s instruction to identify “appropriate agency actions” is the call for the Federal Government to eliminate “sources of fear and other barriers that prevent immigrants from accessing government services available to them.”
In other words, any interpretation of the “public charge” rule which can be described as a “source of fear” should be identified so that “relevant agencies” can “clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities.”
By definition, the “public charge” rule “prevents immigrants from accessing government services.” To eliminate such “barriers,” the entire “public charge” rule would need to be eliminated.
By working to eliminate the “public charge” rule, Biden’s executive order will likely result in immigrants facing no economic scrutiny regarding their likelihood of becoming a burden to the state, meaning that no immigrant would be disqualified from permanent residency on the basis of income or benefits received, and could immediately access all “government services,” including every relevant form of monetary welfare.
Ian Haworth is an Editor and Writer for The Daily Wire. Follow him on Twitter at @ighaworth.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.