Immigration and Public Benefits: Facts, Fiction, and Current Proposals

Immigration LawA leaked draft executive order dramatically changes policies and practices long held by the Department of Homeland Security and the Department of State relating to admission of immigrants into the United States, grants of lawful permanent resident status to foreign nationals, and removal of out-of-status immigrants and persons in the country unlawfully. The draft order permits officers to scrutinize more closely any taxpayer-funded public benefits received by an intending immigrant—as well as those received by the immigrant’s U.S.-citizen children—when determining eligibility for immigration benefits or deciding whether to initiate removal proceedings.

Undocumented immigrants have never been eligible for public benefits. However, until 1996, lawful permanent residents were eligible for public benefits on the same terms as U.S. citizens. In 1996, the Clinton administration barred lawful permanent residents who have been in the U.S. fewer than five years from means-tested benefit programs, including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid/Children’s Health Insurance Program (CHIP), and food stamps (the Supplemental Nutrition Assistance Program, or SNAP). The 1996 law also created the “public charge” ground as a basis to deny admission to the U.S. or lawful permanent resident status for those considered to be primarily dependent on the government for subsistence.

The Immigration and Nationality Act (INA) also contains a provision allowing for removal of any lawful permanent resident who becomes a public charge within the first five years of obtaining permanent resident status. Under the INA, a “public charge” is limited to those who receive cash welfare benefits or long-term, government-funded institutional care. The INA further requires each person petitioning for permanent resident status to have a sponsor sign an Affidavit of Support. The Affidavit serves as proof of the sponsor’s ability to financially support the petitioner so that he or she will not use public benefits. If the immigrant ever does receive public benefits, the government may seek reimbursement from the sponsor; however, actually obtaining reimbursement from the sponsor is rare due to the cost of enforcement.

The current guidelines regarding public charges specifically bar officers from taking into consideration an intending immigrant’s receipt of non-cash benefits when determining whether to admit an immigrant to the U.S., grant lawful permanent resident status, or initiate removal proceedings. The draft executive order reflects a huge departure by allowing officers to look at an immigrant’s receipt of any public benefit, including benefits received by the immigrant’s children, such as government-funded Head Start. The draft order also limits intending immigrants’ ability to file for child tax credits, even if the immigrant has a valid social security number and pays taxes. Though only in draft form now, the order has scared many intending immigrants, and advocates predict that many will take their children out of school programs and health and nutritional programs, thereby creating public health risks.

The Department of State has already revised its instructions to allow officials abroad to consider non-cash benefits received by an intending immigrant, his or her family members, or even his or her sponsor, when determining whether or not to admit the immigrant into the U.S.

It is important to note that under federal law, certain immigrants are not subject to the public charge determination, and this cannot be changed by regulation or executive order. Those not subject include immigrants granted asylum; those granted protection as victims of trafficking, domestic violence, or other crimes perpetrated in the United States; and those granted Special Immigrant Juvenile Status (SIJS). Also, lawful permanent residents applying to become U.S. citizens cannot be denied citizenship based on public-charge grounds.

There may be hope for certain immigrants subject to the public charge determination. The intending immigrant may use positive factors to tip the decision in his or her favor and prove that he or she will not use public benefits in the future. Factors that may be considered are current income, age, health, family members’ incomes, education, and employment opportunities.