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A New Trump Administration Rule on Public Benefits Could Discriminate Against Immigrant Families

An immigration law expert explains why a proposed "public charge" rule is fostering an environment of fear.
Harlem residents pack free groceries at the Food Bank For New York City on December 11th, 2013, in New York City.

Under longstanding immigration law, an immigrant seeking permanent status or entry to the United States must prove she is not a "public charge," or dependent on the government. Now, the Trump administration has proposed a new rule that would expand this test to include programs such as the Supplemental Nutrition Assistance Program and housing subsidies, making it more difficult for those seeking a green card to get food or financial help.

Although the rule was just announced on Friday, immigrants living in the U.S. have been feeling its effects for months—avoiding seeking aid out of fear, even if the changes will not apply to them. An early draft leaked to the media sparked a sharp drop in use of public aid programs such as Special Supplemental Nutrition Program for Women, Infants and Children (WIC), which is not included in the current proposal. After President Donald Trump's election, a Guardian investigation in 2017 found some undocumented immigrants were returning their vouchers and begging WIC's offices to erase their names from records. In the year since, even more families have chosen to go without these benefits, resulting in a 20 percent decrease in enrollment in at least 18 states, Politico reports.

The National WIC Association confirmed last year that caseloads "have rapidly declined where immigrant populations seem significant," citing the administration's recent immigration crackdown. For people seeking permanent status, these fears are not unfounded; the regulation could still change, according to Gabrielle Lessard, senior policy attorney at the National Immigration Law Center. The rule, which the WIC Association predicts will go into effect in early 2019, could reshape immigration policy by allowing only those who can already support themselves to live and work in the U.S.

Pacific Standard spoke to Lessard, who specializes in laws affecting immigrants' access to health care, about the proposed rule's effects.


Agencies report that immigrants, both documented and undocumented, are dropping out or seeking removal from programs like WIC at higher rates. Why is that?

One [reason] is that there has been a pretty dramatic increase in immigration enforcement activity, particularly against people who didn't have prior convictions. For undocumented people or people who have an undocumented family member, [they] are literally afraid to leave their houses. The idea that they're participating in a program where the government has their information is really frightening, so that has driven a lot of people to withdraw from WIC and other really essential health and nutrition programs.

The second thing that's going on is related to an immigration principle called public charge. Public charge affects people who are applying to become permanent residents in the U.S. It's not a question of legalizing their status; it's a question of going from some kind of more temporary or tenuous status to one that's permanent.

How would this change be applied?

Public charge rules have actually existed in U.S. immigration law since the 1800s, but under policy that's been in effect since the late 1990s, only two public benefits could be considered in looking at whether someone was likely to be a public charge: cash assistance for income maintenance (Supplemental Security Income, Temporary Assistance for Needy Families, some kind of cash that people are actually living off of) and institutionalization for long-term care that's being paid for by the government—typically, a person in a nursing home that's being paid for by [Medicaid].

We've seen a draft [now, an official proposal] of those regulations that would greatly expand the list of benefits that could be considered as a negative factor in the public charge test. So people are essentially choosing to go without things they need because they're afraid that they won't be able to become permanent residents, or out of fear that they won't be able to bring their family members to this country.

What kind of effect will this have on people seeking public benefits?

The important thing to note is people are acting out of fear and will continue to act out of fear, so you can't just look at how many people actually become residents every year, and which ones of them are not exempt from public charge. ... There's what we call a chilling effect, where even if the rule doesn't apply to people, they think, "At some point in the future there's a chance I'll get a chance to become a permanent resident," or "I should be careful because the rules changed in this way, and maybe they could change in another way." Many more people are going to go without benefits that they need than would actually be affected by the rule.

What would this mean for benefit-seekers' immigration or citizenship status?

For most kinds of public benefits, people already have to provide verification that they have an eligible immigration status. ... The public charge determination looks at a whole constellation of factors. Just getting a benefit is not necessarily fatal, but it makes logical sense that getting help from the government might cause the government to treat you less positively down the road.

So could this result in a kind of discrimination, where the government is looking at immigrants who require more health-care benefits or have more kids, and thus more negative factors?

Without a doubt. A lot of the discrimination will happen at consular offices abroad, where people are applying for permission to come the U.S., because those officers have a lot of discretion and in the past could only really look at whether an immigrant had an affidavit of support. Now they're looking at whether the immigrant has the means to support themselves and their family members, as well as whether the sponsor has the means to support the immigrant, and whether the relationship is such that the sponsor is actually going to feel obligated to support the immigrant. That introduces a lot of subjective decision-making into the process and that really promotes discrimination.

The people who are most affected by public charge are the people coming on family-based visas. It's not a coincidence that family-based immigration is something this administration has been trying to curtail. By essentially making it a ground of inadmissibility that you might need some support at some point along the way, it really does tilt the balance of who's able to come to this country in favor of the more affluent.

This interview has been edited for length and clarity.