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Protecting Immigrant Families CampaignPublic Charge 101

September 5, 2019Presented by:

Sonya Schwartz, Madson Hardee, Gabrielle Lessard, Renato Rocha, and Kat Lundie

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What is the PIF Campaign?

• Purpose: Unite to protect and defend access to health care, nutrition programs, public services and economic supports for immigrants and their families at the local, state and federal level.• Created in 2017 and co-chaired by NILC and CLASP• More than 400 Active Member Organizations in 40 states• Click here for more information on the PIF Campaign.

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Combat and document the chilling effect of Trump’s anti-immigrant agenda, and empower immigrants and their families to make informed and accurate decisions

Priority # 1Block, delay (and mitigate) the impact of public charge changes and other related harmful policies from taking effect

Priority # 2Build power and support for an affirmative vision forward

Priority # 3

PIF Priorities for 2019

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Questions we’ll address

• What is the status of the changes to public charge?• What does the previous policy look like?• What has changed already for visas and green cards

processed abroad?• What is changing under the DHS final rule?• What does deportability and public charge look like?

• How should we talk about public charge and related threats?• What can I do to help?

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Trump’s Invisible WallPUBLIC CHARGE:Visa extensions & Status changes

(DHS Rule)

SPONSOR DEEMING & LIABILITY: Potential application to more programs(White House, CMS, and FNS memos)

PUBLIC CHARGE: Green card processing inside the U.S.

(DHS Rule)

ATTEMPTS TO END DEFERRED ACTION FOR MEDICAL EMERGENCIES

(USCIS)

PUBLIC CHARGE: Grounds for deportation

(Anticipated DOJ rule)

PUBLIC HOUSING ACCESS: Closes door to mixed status families

(HUD Proposed Rule)

FEE WAIVER: Removing receipt of means-tested benefits from eligibility list

(DHS Rule)

FEE WAIVER:Low-income immigrants lose access to citizenship/ voting rights.

(DHS Rule)

CITIZENSHIP QUESTION IN CENSUS 2020: Chills civic participation and will limit funding for basic needs programs that depend on accurate count(SCOTUS decision)

PUBLIC CHARGE:Visas and green card processing outside the U.S.

(DOS - ForeignAffairs Manual (FAM)

THE INVISIBLE WALL

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Public Charge Timeline

Changes to the Foreign Affairs Manual (FAM)

DHS published a proposed rule for a 60

day comment period.

The final rule went back to OMB for

final review

There is a 60 day waiting period before

the rule is in effect

A final rule posted to the

Federal Register

The new DHS public charge changes are

scheduled to go into in effect

OCTOBER 15, 2019

60 DAYS

JULY 2019OCT - DEC 2018JANUARY

2017WEDNESDAY,

AUGUST 14JANUARY

2018

Leaked Executive Order

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Longstanding public charge test

Definition

A person who is considered “likely to become primarily dependent on the government for subsistence.”

Benefits Considered

Only two types of benefits considered:

1. Cash assistance for income maintenance2. Institutionalization for long-term care at

government expense

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A public charge inadmissibility assessment is made when a person:• Applies to enter the U.S.• Applies to adjust status to become a Lawful Permanent

Resident (LPR) - obtaining a “green card”• A green card holder leaves the U.S. for more than 180

consecutive days (6 months) and reenters

Where does public charge come up?

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Totality of Circumstances

● Age● Health● Family status● Financial status● Education and skills● Affidavit of support

The public charge assessment is

forward looking

Is the person likely to rely on cash or long-term care in the future? - No one factor (including past use of cash benefits) can alone

determine whether or not someone is a “public charge”- Positive factors can be weighed against negative factors

Current public charge test in the U.S.

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Public charge does NOT apply to everyone. Here are some examples of people public charge admissibility does NOT apply to:

• Lawful Permanent Residents (Green card holders) applying for citizenship• Refugees and Asylees• VAWA self-petitioners• Survivors of Domestic Violence, Trafficking, or other Serious Crimes

(Applicants/ recipients of U or T visa) • Special Immigrant Juveniles• Certain Parolees, and several other categories of non-citizens

Does this test apply to everyone?

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Public charge changes in the Foreign Affairs Manual

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Foreign Affairs Manual

Officials in U.S. consulates abroad use the Department of State’s Foreign Affairs Manual (FAM) to make decisions about whether to grant people permission to enter the U.S.

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Public Charge & DOS

VISAS & GREEN CARDS PROCESSED ABROAD• State Department’s Foreign Affairs Manual Changes (Jan. 2018)• Public charge definition did not change

HOWEVER...• Affidavit of support no longer sufficient in and of itself

• Looks broadly at applicant’s age, health, family status, financial resources, skills • “Totality of Circumstances” test now considers:

• Use of non-cash benefits • Benefits used by sponsors or family members

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Foreign Affairs Manual Changes● What is the impact so far?

○ Three times more refusals on public charge grounds in FY 2018 than in FY 2017■ Exponential increases from certain countries (from 7 to 5,300+ denials from Mexico)

○ Reports of denials or requests for additional evidence○ More scrutiny of affidavits of support by joint sponsors○ More questions about employment/income, family members with disabilities

● It is important to remember:○ Forms have NOT changed○ Consular officers still have discretion – practice varies ○ FAM could be revised again

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How does the public charge test change under the DHS

finalized regulation?

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Final Public Charge Rule: Definition

PREVIOUS DEFINITIONAn immigrant “likely to become

primarily dependent on the government for subsistence”

FINAL DEFINITION

A person who “receives one or more public benefit… for more than 12

months in the aggregate within any 36-month period (such that, for

instance, receipt of two benefits in one month counts as two months).”

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Age

Health

Family Status

Income and Financial Status

Education and Skills

Affidavit of Support

Changes to Totality of Circumstances Factors

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Positive Factor Negative Factor

Totality of Circumstances: Age

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Positive Factor Negative Factor

Totality of Circumstances: Health

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● The regulations include an expansive definition of household.

● The calculation of household size includes anyone who provides 50% or more of the immigrant’s support and anyone to whom they provide 50% or more support.

● Having a larger household may make it harder for immigrants to meet the income test.

Totality of Circumstances: Family

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Imposes income test on immigrant

The government can consider:• Income of people in household• Assets in cash or savings account• Application for fee waiver• Public benefits received or applied for• Credit history and credit score• Enrollment in private insurance or $ to

pay for reasonably foreseeable medical costs

Totality of Circumstances: Income

Heavily Weighed Positive Factor

NegativeFactor

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Positive Factor Negative Factor

Totality of Circumstances: Education/Skills

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PREVIOUS POLICYGovernment considers Affidavit of Support from sponsor (and joint sponsor if the sponsor doesn’t earn 125% of FPL or above); it is often the most important factor in a public charge test.

FINALIZED DHS POLICY

Affidavit of support is a positive factor, but not conclusive. Government would also consider:

• Sponsor’s financial status• Likelihood sponsor would actually

provide financial support• Relationship to applicant• Whether living together

Totality of Circumstances: Affidavit of Support

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Heavily WeighedNegative Factors

Totality of Circumstances: Heavily Weighed Factors

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Final Public Charge Rule: Benefits

*Cash Assistance for Income Maintenance

Supplemental Nutrition Assistance Program

(SNAP or Food Stamps)

** Medicaid (with exceptions)

Long Term Institutional Care at Government Expense

Federal, State, Local and Tribal Cash Assistance

Housing Assistance (Public Housing or Section 8

Housing Vouchers and Rental Assistance)

* Included under previous policy as well ** Exceptions for emergency Medicaid, & coverage of children < 21 and pregnant women.

Long-standing Policy Newly Finalized Rule

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Changes will not be retroactive

Use of the newly named benefits before October 15, 2019 - will

not be considered in public charge determinations.

Under the rule, DHS cannot consider:● Any newly named public benefits that are

received before the rule is effective on October 15, 2019

Remember* DHS previous policy considers use of cash and long-term care. That element of the policy will remain the same (Previous slide GREEN)

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Public benefits not included in the final ruleAny benefit not specifically listed in the regulation will not be considered

• Benefits received by an immigrant’s family members

• Benefits received by a person while in an exempt status

• Emergency medical assistance• Disaster relief• Entirely state, local, or tribunal

programs (other than cash assistance)• Children’s Health Insurance Program

(CHIP)• Subsidies under the ACA

• Special Supplemental Nutrition for Women Infants and Children (WIC)

• School Breakfast and Lunch• Energy Assistance (LIHEAP)• Transportation vouchers or non cash

transportation services• Non-cash TANF benefits• Federal Earned Income Tax Credit and

Child Tax Credit• Veteran specific benefits• Student Loans

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Immigrants Who Receive Services that May Count in a Public Charge Test

• All listed programs: LPRs who leave the U.S. for more than 180 days and seek to reenter

• Medicaid/SNAP: A subset of people granted parole, withholding of removal, or Cuban/Haitian entrants IF they seek a green card through a pathway (like a family based petition) where public charge applies.

• SNAP: Groups listed above and some Hmong and Laotian tribe members IF they seek a green card through a pathway (like a family-based petition) where public charge applies.

● Public Housing or Section 8: A subset of people granted parole or withholding of removal IF they seek a green card through, e.g. a family-based visa petition, where public charge applies. “COFA” migrants from Micronesia, the Marshall Islands or Palau if they leave the U.S. and attempt to reenter, or if they seek a green card through a family-based visa petition or another pathway where public charge applies.

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Keep in Mind

● The current public charge test is still in place until new rules become effective on October 15, 2019.

● However, this issue is already being litigated in the courts, with several lawsuits (6 thus far!) challenging this rule change.

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Direct and indirect impacts

• Directly affected individuals• Broader population of people in immigrant and

mixed-status families are at risk of “chilling effect”• States and localities• Providers and communities• All of us

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Threats have already deterred immigrants and their family members from seeking basic needs programs, because of:

• Confusion over which benefits are covered

• Complexity of policy changes• Discretionary application of the public

charge rule

After 1996 eligibility changes, there was a 25% decrease in use of Medicaid by children of foreign-born residents, the majority of these children were still eligible.1

In a 2018 survey at public health clinics in CA:2

• Two-thirds of health providers reported an increase in parents’ fear about enrolling kids in Medicaid, WIC

• Nearly half of providers reported an increase in no shows at public health clinics.

1 Neeraj Kaushal and Robert Kaestner, “Welfare Reform and health insurance of Immigrants,” Health Services Research, 40(3), (June 2005), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1361164/pdf/hesr_00381.pdf. 2 The Children’s Partnership, California Children in Immigrant Families: The Health Provider Perspective,” https://www.childrenspartnership.org/wp-content/uploads/2018/03/Provider-Survey-Inforgraphic-.pd

The Chilling Effect

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The Chilling Effect: The Big Picture

As many as 26 million people in families with immigrants might be chilled from participating in programs that make

their families healthier and stronger.1

1 in 4 children have an immigrant parent2

2 Samantha Artiga and Anthony Damico“Nearly 20 Million Children Live in Immigrant Families that Could Be Affected by Evolving Immigration Policies” Kaiser Family Foundation, 20181“Public Charge Proposed Rule: Implications for Non-Citizens and Citizen Family Members Data Dashboard,” Manatt Health, October 2018

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Impacts by Race and Ethnicity:• 18.3 million LATINOS

> 33.4% of all LATINOS• 3.2 million ASIAN

> 17.4% of all ASIAN• 1.8 million BLACK & AFRICAN

> 4% of all BLACK & AFRICAN• 2.5 million WHITES

> 1% of all WHITES

Source: “Public Charge Proposed Rule: Implications for Non-Citizens and Citizen Family Members Data Dashboard,” Manatt Health, October 2018

The Chilling Effect: The Big Picture

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Additional Research and ResourcesResources on chilling effect already happening in 2018:• One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018

(Urban Institute)• Safety Net Access in the Context of the Public Charge Rule (Urban Institute)

Resources on costs to states and localities:• Economic and Fiscal Calculations for All 50 States (Fiscal Policy Institute)• State Policymakers Oppose Public Charge (PIF)• Mayors Oppose Public Charge (PIF)• The Impact of Public Charge on Select States and Localities (PIF)

Resources on costs to providers and localities: • America’s Leading Health Plans Oppose Public Charge (PIF)• Public Health Groups Oppose Public Charge (PIF)

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Public Charge & Deportation: Current Policy & Potential

Changes

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Possible Department of Justice (DOJ) Proposed Rule

DOJ reviews comments and begins

final process

Comment Period

NPRM Published

July 3, 2019: DOJ Rule goes to

OMB for review and clearance

DOJ Drafts NPRM

Stakeholders meet with OMB with goal of rule returning to DOJ for additional analysis

An NPRM will be published in the Federal Register

A 60-day comment period is likely, but we

will not know until NPRM is published

Hopefully they will have many comments

to review

NOTE: DHS rule litigation could affect the DOJ rule depending on the timing.

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The Public Charge Ground of Deportability rarely has been applied.

Under current policy, an immigrant must:

Public Charge Ground of Deportability: Current Policy

1. Have received cash welfare or long-term institutional care during the first 5 years after entering the U.S., and

2. The need for this assistance must be based on circumstances that existed before entering the U.S., and

3. The use of the cash welfare or long-term care must have created a legal debt for the immigrant or sponsor, and

4. The immigrant or sponsor must have received a demand to repay the debt, failed to repay, and

5. The government filed a lawsuit and won in court.

Applies only to immigrants who have been inspected and admitted to the U.S. and who meet all 5

parts of this test.

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DOJ Proposed Rule

We don’t know the details yet, but here is what DOJ could propose:● DOJ might try to broaden the list of benefits to match those in the DHS final rule.

○ In addition to cash assistance, DOJ could include non-emergency Medicaid, SNAP, Public Housing, Section 8

○ Keep in mind that most immigrants are ineligible for these benefits during their first 5 years in the U.S.

● DOJ could try to eliminate parts 3 - 5 of the test● For information please read our DOJ Deportability FAQ

** But people could still show that their need for benefits arose after entry. This provision is written into law, and can’t be changed by regulation. Example: lost job or housing, had accident, became ill, pregnant, etc.

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How can you talk to immigrant families about public charge?

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• Fight fear with facts - KNOW YOUR RIGHTS.• The public charge rule was designed to be confusing, complicated, and scary on purpose. You have

rights in this country no matter where you were born.

• It’s not over - we still have a chance to stop the rule.• Advocates are using every tool at their disposal to stop this rule from taking effect - including in the

courtroom.

• This public charge test does not apply to every immigrant.• There are a lot of exempt categories of immigrants• Benefits received when people are in one of these statuses will not be counted against them. • And lawful permanent residents (green card–holders) are not subject to a public charge test when they apply

for U.S. citizenship.

Community-Facing Talking Points

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• Use of public benefits does not automatically make you public charge.• The public charge test does not consider benefits used by family members.

• Benefits used by eligible family members are not counted unless the family members are also applying for a green card.

• The rule does not consider benefits used before October 15, 2019.• Your personal information is protected.• Very few people who are subject to a public charge test are eligible for a

benefit that is counted in that test.Health care, nutrition, and housing programs can help you and your children remain strong, productive, and stable.

Community-Facing Talking Points

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Conversations with ImmigrantsDo you or your family members already have green cards?The DHS public charge test does not apply to you. However, if you plan to leave the country for more than 6 months, it is a good idea to talk with an immigration attorney. *The public charge test is not part of a US Citizenship application.

● U.S. Citizenship● Green card renewal● DACA renewal● TPS

Do you have or have applied for one of the following statuses?● U or T Visa● Asylum or Refugee status● Special Immigrant Juvenile Status

The public charge inadmissibility test does not apply to the categories listed here. If you already have or are applying for one of these immigration statuses, the public charge test will not apply to you.

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Conversations with ImmigrantsDoes your family plan to apply for a green card or visa from inside the United States?If you aren’t sure whether or not this policy applies to you, we recommend that you seek advice from an attorney who understands the new changes. If you are not subject to the public charge test, we recommend that you continue to get the assistance that you and your family needs.

Does your family plan to apply for a green card or visa from outside the United States?U.S. consular offices abroad use different rules in making this decision You should talk with an expert for advice on your case before making any decisions.

For free or low-cost options near you, go to: www.immigrationadvocates.org/nonprofit/legaldirectory

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EMPOWERMENT THROUGH COMMUNITY EDUCATIONThe more we know about our rights - the harder it is for Trump to intimidate us

Educate communities on the following:• Accessing services and assistance

• Feel safe going to the doctor’s office and sensitive locations• Enrolling in benefits programs

• Figure out what you are eligible for • Privacy protections of personal information• Children’s eligibility for programs• State-funded programs

Fight Fear with Facts: Know Your Rights

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• Let’s Talk About Public Charge Spanish, Arabic, Hindi, Chinese

• Getting the Care You Need Spanish, Arabic, Hindi, Chinese

• You Have Rights: Protect Your Health Spanish, Arabic, Chinese, French, Hindi, Korean, Vietnamese

• TEMPLATES AVAILABLE FOR ORGANIZATIONS• Customize for YOUR community. Add YOUR branding.• Add contact information and more details on other programs your state/city offers immigrant

families.• Email co-chairs@protectingingimmigrantfamilies.org to request a template. Please be patient as

they fulfill your request.

Tools and Resources for Communities

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What can I do to get involved?

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How to Get Involved

Advocate to Stop These Policies

Ask your MOC to Co-Sponsor the “No Federal Funds for Public Charge Act” (HR 3222- Chu).

A Senate version is coming soon!

Educate Your Network

Fight Fear with Facts. Go to our Know Your Rights page for more resources.

Updated resources for communities and providers are available in Spanish, Arabic, Hindi, Chinese, and more.

Dig Deeper

Delve into our new deeper-dive Analysis and FAQ about the DHS Public Charge Final Rule and more on our Research & Analysis Page.

Share a Story

Email Holly Straut-Eppsteiner, NILC’s Mellon/ ACLS Public Fellow at straut@nilc.org who is working on a project to document the harm of the public charge changes.

Stay Informed

Sign up for our email list, become an active member, join a working group on our Get Involvedpage.