The Truth about the ‘Public Charge’ Immigration Rule

M aking sure that we admit as immigrants only people who can support themselves is the first principle of American immigration law. And I don’t just mean that it’s foundational as theory, but also chronologically — Massachusetts prohibited the admission of paupers in 1645.

This principle was incorporated into the first general federal law regulating immigration, the Immigration Act of 1882. That law banned immigrants likely to become a “public charge,” that is, dependent on taxpayer funds for their support. For the entire Ellis Island period and beyond, this was the main reason people seeking to immigrate to the United States were turned away. Current law (8 U.S.C. 1182(a)(4)) says that any alien applying abroad for a visa, or wanting to upgrade to a green card from within the country, who “is likely at any time to become a public charge is inadmissible.”

Over the weekend, U.S. Citizenship and Immigration Services (USCIS), the DHS bureau that deals with green cards and citizenship, released the draft of a proposed rule spelling out in detail how the public-charge principle should be applied to those applying green cards. (It was supposed to be released yesterday, but someone on the inside, presumably a #Resistance mole, leaked it, so the agency got it out the door early.)

Since this rule, if finalized, might make it harder for someone, somewhere, to move here, the weak-borders gang reacted with its customary hyperbole:

“This is an attack on immigrant families and an attempt to make our immigration system a pay-to-play system where only the wealthy need apply,” said Jackie Vimo, a policy analyst with the National Immigration Law Center, a Washington-based group that defends low-income immigrants. “This is a radical transformation of our immigration, and does a runaround on Congress.”

Far from doing a “runaround on Congress,” the proposed regulation seeks to replace the current, Clinton-era practice, which is based on a lie about what welfare is. The proposed rule is more than 400 pages long and has lots of moving parts, but at its heart is the definition of what constitutes a welfare benefit. Under the Clinton-era guidelines (which never even went through the formal rulemaking process), the only things that may be counted as welfare are cash assistance (such as state benefits or the federal TANF or SSI programs) and institutionalization for long-term care. All other non-cash benefits for the poor were exempted.

That means someone could receive food stamps, public housing, and Medicaid, and still be considered self-sufficient through his own contributions and thus eligible for a green card. The new rule would end this fictional definition of welfare, which was clearly intended to blunt the effect of the 1996 immigration and welfare-reform laws.

And contrary to the “attack on immigrant families” malarkey, the rule is narrower than it could be. It applies only to people applying for green cards, not to people who already have green cards and apply for citizenship. It doesn’t consider benefits received on behalf of U.S.–born children, or the school-lunch program, or the Earned Income Tax Credit, or emergency medical care, or disaster assistance. It also doesn’t necessarily apply to one-time receipt of a welfare benefit, but sets dollar-amount or duration thresholds, below which the public-charge rule wouldn’t apply. And refugees and asylum recipients, among others, are exempt altogether.

It’s also important to note that the centuries-old public-charge principle is not a moral critique. A foreigner with a sixth-grade education and a family of five may be a wonderful human being, a loving husband and father, a hard worker, and a fervent Christian — but in a modern, post-industrial, knowledge-based economy, he is unlikely to be able to feed his children without help from the government. For our fellow citizens, such assistance is justified, though we can argue about the best way to go about it. But what justification can there be for admitting people from abroad who can’t pay their own way?

For all the fulmination, the immediate effects are likely to be modest. The level of immigration certainly won’t decrease, because the waiting lists are so long that anyone barred from immigrating would simply be replaced by the next person in line. The benefits would accrue over the longer term, as new cohorts of immigrants (1 million a year, every year, barring a change in law) would be somewhat less likely to be a drain on taxpayers. But given the large size of the existing immigrant population, and the fact that half of immigrant-headed households use welfare, it might be a while before this change has a measurable effect.

The most notable short-term impact, at least among people already in the U.S., might be a reduction in taxpayer-subsidized remittances sent home. That’s because a significant share of immigrants receiving welfare benefits also send money to relatives in the old country; faced with the prospect of having their green-card application rejected due to welfare use, many people will likely cut back on expenditures instead, remittances being an obvious candidate for economizing.

There are two strategies for limiting the burden on taxpayers from immigration. The first is favored by the mass-immigration Right: Admit foreigners without limit, but bar them from accessing the welfare system. This sounds good in a sophomore-year dormitory bull session, but can never work in the real world. A modern society like ours is simply not going to allow people living among us to starve because they’re not citizens. And we conducted a social experiment to test this approach in the 1996 welfare-reform law. Despite the positive results of the general provisions of that law, the immigration-specific provisions were a failure; within five years, the percentage of immigrants on welfare had returned to the pre-reform level.

The other approach is to make sure that people who can’t support themselves without transfer payments from taxpayers aren’t admitted in the first place. There are hundreds of millions of people abroad who want to move here, and however many of them we decide to accept, we should at least make sure they can pay their own bills. Immigration is a federal program, and the government violates a basic responsibility to the citizens who created it if it doesn’t take the kind of elementary steps spelled out in this proposed rule.