Ensuring immigrants can support themselves is common sense.
Ensuring immigrants can support themselves is common sense.
I t’s a long-standing principle of American immigration law that those who migrate here are expected to support themselves. Hence the “public charge” rule, codified by the Immigration and Nationality Act of 1952, which states that “any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” Officials are to “at minimum” analyze an immigrant’s age, health, family status, education, and financial resources to determine this, though the law doesn’t limit their enforcement beyond these factors.
A public charge is generally understood as someone primarily dependent on the government for long-term subsistence. There’s no better evidence for such dependence than the use of public benefits. But a Clinton-era rule codified under former President Joe Biden has hamstrung which benefits officials can count against an application. Rather than looking at the universe of means-tested public benefits available, officials could only view an applicant’s receipt of cash income support or long-term institutionalization at government expense. That means an immigrant could receive Medicaid, get food stamps, and live in public housing but still be considered self-sufficient enough to receive a green card or visa, provided they weren’t receiving state or federal cash assistance or living long-term in a government-backed care facility.
This is hardly a robust application of the law — and President Donald Trump’s administration is right to have repeatedly challenged this approach since 2018, a campaign that has continued in his second term.
On Friday, U.S. Citizenship and Immigration Services (USCIS), the bureau of the Department of Homeland Security that handles visa and green card applications, updated the public charge rule with new language allowing officials to consider an applicant’s receipt of all means-tested public benefits, rescinding the 2022 measure that limited the process to only a few specific programs.
“The 2022 Final Rule was not the best implementation of the statute,” the DHS wrote in a summary of the rule. “It was inconsistent with congressional intent, unduly restrictive, and hampered DHS’s ability to make accurate, precise, and reliable determinations of whether certain aliens are likely at any time to become a public charge. Rescission restores broader discretion for DHS officers to evaluate all pertinent facts and aligns with long-standing policy that aliens in the United States should be self-reliant and government benefits should not incentivize immigration.”
This makes sense. Whether an immigrant is deemed a public charge should largely depend on whether the government spends money on him, not on which specific welfare programs are tapped.
But since nobody can so much as breathe in the direction of immigration and welfare reform without a legal response, 22 states and the District of Columbia, as well as six local governments, are suing. They allege that the new rule is “catastrophic” in the scale of its “weaponization against immigrant families.”
Though the DHS estimates 950,000 immigrants might voluntarily forgo their use of public benefits, the rule is still generous on the whole and maintains careful carveouts for refugees, people seeking asylum, Afghan nationals employed by the U.S. government, and trafficking victims. Immigrants who have already received green cards are exempt from retroactive scrutiny.
Despite what the lawsuit claims, it’s a falsehood that U.S. citizen family members receiving benefits they are entitled to (such as a citizen child’s use of state-provided health insurance) will see those benefits count against a noncitizen’s application. The rule explicitly states that it “will not attribute U.S. citizen children’s receipt of public benefits to their parents.” The same goes for the use of public benefits available to everybody, such as free or reduced-price school lunch programs at certified schools.
What these states and localities probably find more catastrophic is that this could take about $13 billion in federal and state transfer payments out of circulation on an annual basis. This could have been avoided had the law been better enforced over time.
The legal heft of the lawsuit argues that the new rule fundamentally changes the “long-settled” definition of a public charge, which the plaintiffs assert is specifically outlined in the limited Biden formulation. “In departing from that settled meaning without express authorization from Congress,” the lawsuit alleges, “defendants have exceeded their statutory authority.” But there has never been a single “settled” definition of the term, and certainly not one that definitively includes the consideration of some public benefits but not others. The law is intentionally written with ambiguity, as described by the Senate Judiciary Committee discussing the law in 1950: “Since the elements constituting likelihood of becoming a public charge are varied, there should be no attempt to define the term in the law, but rather to establish the specific qualification that the determination . . . rests within the discretion of the consular officers.” The only way to consider the totality of an applicant’s circumstances is to allow for the full discretion the law asks for, which requires there not be a settled definition of a public charge.
Millions of people around the world want to come here. Those granted citizenship must be able to survive without relying on taxpayer funds. The public charge law’s fundamental point recognizes that our resources are finite and that we have to prioritize the needs of citizens before the needs of those who want to move here. Prioritizing those immigrants who help that cause is the responsibility of our federal immigration system. Kudos to the administration for enforcing that principle.