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'Public charge' rule blamed for 'chilling effect' among immigrants

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When Jane Samuelson was expecting a client for her regular appointment at the food assistance office in Albert Lea, Minn., she thought she'd be weighing the woman's baby, talking about solids and sippy cups and printing out vouchers for food and formula.

Instead, the public health nurse who runs the Women, Infants, and Children (WIC) program in Freeborn County heard the woman and her husband say they wanted to drop out for fear she'd be labeled a "public charge."

"Their opening words were, 'We want you to discontinue our WIC service. We don't think it is in our best interest to continue to participate,'" Samuelson said, adding that it was an unusual request. "They didn't want anything that would have a continued date of participation associated with them in our files."

The woman is from the Philippines. She is a lawful permanent resident with a green card and is married to a U.S. citizen. The couple has a 4-month-old baby boy.

Green card holders are exempt from the proposed "public charge" rule, which would put new federal regulations in place around who's allowed to come to the United States and who's seeking adjustment of immigration status. The WIC program is also exempt.

Still, some lawful permanent residents, like Samuelson's client, have considered canceling their public benefits for fear that their participation would hinder their ability to become citizens.

Though the term "public charge" is not new, immigration lawyers and public service providers have had to discuss it a lot since the Washington Post obtained a draft version of the rule in March that would greatly limit legal immigration. Rumors also began to spread about which government assistance programs would affect green card and citizenship applications.

The Migration Policy Institute estimates that nearly 70,000 noncitizens in Minnesota could be affected by the proposed rule. However, the estimates represent the broadest group of noncitizens who they say might suffer a "chilling effect." The number includes green card holders, who are exempt but may choose to avoid benefits out of fear or confusion.

What is a public charge?

The term "public charge" has been used since the earliest days of immigration to the United States. Colonies protected themselves against public charges by screenings, requiring mandatory reporting of ship passengers and turning away "undesirables."

According to an article published by the Center for Immigration Studies, colonies required bonds for potential public charges.

"For example, a law enacted in colonial Massachusetts in 1700 kept out the infirm who had no security against becoming public charges," according to the article, published in 2001. "The law required ship captains to post bonds for 'lame, impotent, or infirm' passengers who were 'incapable of maintaining themselves.'"

The idea was to prevent new arrivals from becoming dependent on government assistance. Without the bond, an immigrant would have to be sent back.

States continued to enforce colonial-era laws until the ratification of the U.S. Constitution, which in the early 1800s began to give Congress a role in immigration policy. States still tried to enforce their own laws, for example by imposing fines on people who brought in poor immigrants.

The first broad federal immigration legislation with a public charge provision came in 1882. In 1952, Congress passed the Immigration and Nationality Act. It provides for both the exclusion and deportation of public charges.

Then in 1996 came the Personal Responsibility and Work Opportunity Reconciliation Act, also known as welfare reform. That law included significant changes affecting immigrants and their use of public benefits.

"What happened then, there were drops in benefit participation that were much greater than those that would've been expected just based upon who was made ineligible," said Mark Greenberg, senior fellow at the Migration Policy Institute.

For example, refugees were not affected by the restrictions that were established, but participation in the food stamp program by refugees fell by 60 percent between 1994 and 1998, according to the MPI research. For the Medicaid program, refugee participation fell by 39 percent. For Temporary Assistance for Needy Families, a cash assistance program, it fell by 78 percent.

"These are examples of a set of research studies that consistently found that while the percentages vary, the basic story about drops in participation were much greater than the drops in eligibility," Greenberg said.

How are immigrants found likely to become a public charge?

The current standard affects immigrants seeking admission to the United States or those currently in the country who seek permanent residency with a green card.

For example, someone who's abroad and seeking to reunite with a family member would be tested on whether they are likely to be a public charge. The current test is narrower than what's proposed. It relies on primary dependence on cash assistance for income maintenance and Medicaid for long-term care.

The current practice also relies on an affidavit of support from a family member who would vouch for the immigrant and show proof of ability to financially assist relatives who move to the United States.

The 1996 welfare reform cut off immigrants from public benefits for the first five years of their residency in the United States. And that continues to be the practice.

"It's complicated. People don't realize it, but they go with their gut that immigrants get all these benefits, and that's why the programs cost so much, etc., and that's not accurate," said Anne Quincy, a benefits attorney at Mid-Minnesota Legal Aid. "You think you're generous and your generosity has been abused. You're not that generous."

Who is not considered under the public charge rules?

Refugees, people granted asylum or temporary protected status,  DACA recipients and those with other humanitarian-based visas (like U-visas and T-visas) are and will continue to be exempt.

What are the proposed changes?

The proposed "public charge rule" is long and complicated. It was published by the Department of Homeland Security in late September and is currently undergoing a public comment period.

The proposed rule affects immigrants seeking admission to the United States or legal residents who are applying for green cards. Examples are temporary work visas, tourist or student visas. The rule would not be retroactive. The main difference between the current standard and the proposed rule is that government officials would have more possible reasons to deny someone admission.

Immigration officials would look at a number of factors, including age (under 18 or over 62); health (a medical condition that requires ongoing treatment); family status (number of people to support); financial status (an annual gross income of more than 125 percent of the federal poverty guidelines for one individual, or $15,175), and English language proficiency.

"All of that sets up a pretty significant narrowing of what has been the main way in which people reunite families through family-based legal immigration," said John Keller, executive director of the Immigrant Law Center of Minnesota. He said the proposed rule creates a chilling effect that leads people to consider taking themselves or their children out of benefit programs for which they are eligible.

The proposed rule also adds "monetizable" along with "nonmonetizable" benefits to the list. Those include cash assistance (SSI, MFIP, GA); food stamps (SNAP); housing vouchers (Section 8), and Medicare Part D. If a person receives monetizable benefits that are valued at more than 15 percent of the federal poverty guidelines ($1,821) within a 12-month period, they would be considered a public charge under the proposed rule.

How does the proposed rule affect Minnesota immigrants?

According to MPI, in Minnesota there are 151,400 people living in a household with a noncitizen receiving a benefit. If the noncitizen loses food stamps, for example, it would have an impact on a wider number of people.

The MPI research looked at some cash assistance programs, Supplemental Security Income, food stamps and Medicaid/Children's Health Insurance Program (CHIP). It found that 4 percent of recipients are considered public charges under the current policy. With the proposed regulation, the percentage could jump to 32 percent.

What are some of the benefits that are not considered under the proposed rule?

Disability or retirement cash benefits; foster care or adoption assistance; unemployment or VA benefits; WIC; school lunch; MinnesotaCare; Medicare (except for Part D); emergency medical assistance; energy assistance; the Earned Income Tax Credit; child care assistance, and Head Start.

When is the government expected to begin enforcing the new regulations?

The proposed rule has been published in the Federal Register, and the government is seeking public comment. It has received 2,800 comments so far, including two from Minnesota, according to the Immigrant Law Center of Minnesota. The comment period will be open until Dec. 10. The earliest the new rule could take effect is February 2019.