You may have heard something in the news about the federal government’s plans to expand the definition of which immigrants are considered a “public charge” and the fear this is causing. In order to put the threat in perspective, and better understand how we can respond, it’s important to clarify what is meant by a “public charge,” how it’s used, and the limits on how the federal administration can use it.
Public charge is a concept that’s been around for over a century, and is used to determine whether someone applying for admission to the U.S. or for a green card will become a burden on U.S. taxpayers. Those who are deemed to be a burden, or a public charge, are typically denied entry or a green card, and in very rare circumstances, can face deportation. Currently, someone who accepts cash benefits, such as Temporary Assistance for Needy Families (or CalWorks in California), or long-term institutional care, could be considered a public charge.
Note that accepting one of these benefits does not automatically define someone as a public charge, because under the law, federal authorities also have to take other factors into account, such as any special skills the person has, whether the person has a sponsor, and their health and age.
It’s also important to note that public charge determinations are not used to decide who becomes a U.S. citizen, and are not applied to refugees or survivors of trafficking, domestic violence, or other serious crimes. The federal administration can’t change any of this, as it requires an act of Congress, and the odds of Congress being able to muster the votes to pass a law to change these criteria are practically zero.
So what can the federal administration do on its own? It can change regulations, but not laws. Since regulations are the rules agencies follow to implement laws, changing regulations can make a significant difference, but it has its limits, and can be undone by the next president’s administration. Leaked memos reveal that the current administration plans to use the rule-making process to expand the types of qualifications that the Department of Homeland Security can use to make a determination whether someone is deemed a public charge.
In particular, the federal administration is planning to propose that DHS consider expanding the list of public benefits that trigger a public charge determination. Such benefits could include: Medicaid, the Children’s Health Insurance Program (CHIP), food stamps, WIC nutrition benefits, Obamacare tax credits that help pay for health insurance, housing assistance, energy assistance, transportation services, and the Earned Income Tax Credit. Many of these programs provide assistance and support to families that sometimes fall under difficult times and help meet basic needs to keep families healthy and stable. The rules would also count benefits received by dependents, including U.S. citizen children, toward the public charge determination of someone applying for a green card. It is estimated that this could affect 20 million children in the U.S.
For example, an immigration official may determine that a mom whose citizen child is receiving health care under Medi-Cal or the CHIP program might become a public charge, and deny her application for a green card. Immigrant families have the same dreams as all of us and they work hard to take care of their children.
This all sounds awful, and it is, but it’s not reality yet. Nothing has changed. The federal administration has to propose a new rule, which is open for public comment for 60 days, then take all of the comments into account and develop a final rule. There are strict laws governing this process, so any attempts to take shortcuts will likely be met with vigorous legal challenges.
Sadly, the fear created by talk about new public charge rules has led many people to withdraw themselves and their children from important programs that keep them and their families healthy and able to meet their basic needs.
At this point, no one should be withdrawing from programs or benefits that currently aren’t used to determine public charge. If or when the regulations change, they cannot apply retroactively. Families should continue to participate in Medi-Cal, CHIP, WIC and other housing, energy and transportation programs.
This latest attempt to attack immigrants is a reminder to not let fear drive our decisions, especially when those decisions could be detrimental to our health and the health of our families. Remember that we are not alone. Nor are we weak. We have power in our voices, our communities, on our streets, in our state’s institutions, among advocacy organizations that are taking action, and in the hundreds of lawyers fighting on our behalf in the courts. We’ve seen these forces slow down the Muslim ban, block the federal government’s actions against sanctuary cities, and reopen the DACA renewal process. Let’s speak up and continue to rise up as one.