United States: Legislative Update: Section 212(a)(4)(A) Of The Immigration And Nationality Act

Department of Homeland Security's (DHS) new regulation proposes that legal immigrants utilizing public assistance programs may be deemed a "public charge" under INA section 212(a)(4), and thereby, inadmissible to enter the U.S. or forfeit legal permanent resident (LPR) status. After reviewing public comments, DHS will publish a final rule on the Federal Register, along with the date it will go into effect.

"Public charge" has been a concept in immigration law since the Immigration Act of 1882. For the last twenty years, the definition of a public charge is someone "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for longterm care at government expense," which means that more than 50% of the annual income comes from cash benefits. DHS's proposal would redefine the meaning of "public charge" and broaden the scope of inadmissibility.

Who would be subject to a public charge test? Individuals applying for admission to the U.S. or seeking a green card (a stepping stone to apply for citizenship). Certain groups of people may either get a waiver when applying for admission to the U.S. or other benefits with the U.S. Citizenship and Immigration Services (USCIS), or they may be exempt from public charge such as refugees, asylum applicants, and victims of crimes that have secured U and T Visas.

The likelihood of becoming a public charge is determined by a "totality of the circumstances" test and a number of factors including the receipt of public benefits, age, medical conditions, financial resources and liabilities, health insurance, number of dependents, credit score, employment history, education, English literacy, receiving an application fee waiver, and having a financial sponsor that DHS does not deem responsible. The use of the following programs would flag an individual as a public charge: Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF), also called CalWORKs in California; state and local cash assistance programs; Section 8 housing; Medicaid; and possibly Children's Health Insurance Program (CHIP) and Women, Infants and Children (WIC) (DHS requested comment as to whether these programs should also be included).

The confusion surrounding which programs apply in the proposed rule has caused many women to disenroll in WIC because they believe it could jeopardize their ability to become LPRs or citizens. The National WIC Association reports that on February 2018, a mother with two children walked into a WIC clinic in California and pleaded to have a WIC benefits stopped. She was instructed by her lawyer to cancel her participation in government programs, including WIC and Medicaid. Another mother walked into a WIC clinic in California to return her food checks after learning about public charge through a Korean newspaper. She stated that her husband is applying for a green card and she does not want her WIC benefits to affect him.

The proposal would have a disproportionate impact on women because it expands "public charge" to include Section 8 housing benefits. According to a study conducted by Re:Gender (formerly known as the National Council for Research on Women), 75% of those living in affordable Section 8 housing are women. (https:// https://www.icrw.org/wp-content/uploads/2016/11/gender_lens_on_affordable_housing_by_regender_final-1.pdf ). The proposal would also have a devastating effect on women of color. The Migration Policy Institute estimates that under the new proposal, 10.3 million Hispanic immigrants and 3.8 million Asian American and Pacific Islander immigrants would be adversely affected.

Most individuals seeking to adjust to LPR status or to immigrate to the U.S. are immediate relatives of U.S. citizens or have a family-based sponsor. A foreign national that is applying for a green card for their non-citizen spouse must meet a new set of financial guidelines which demand that the annual household income as high as 250% of the Federal Poverty Guidelines (FPG), as opposed to the previous income requirement of 125% of the FPG. Employers will face more difficulty extending the status of highly skilled workers with H-1B visas or switching a new employee from a student visa to an H-1B visa due to new income requirements. The new financial requirements could also mean that half of all marriage green card applications would be denied each year. This would force nearly 200,000 couples to either live apart indefinitely or leave the United States.

DHS acknowledges the consequences of this new proposal: a lack of adequate nutrition for pregnant and breastfeeding women, infants, and children; increased use of emergency rooms; increased costs to medical service providers for treatment or services; reduced productivity and educational attainment; and increased incidence of communicable disease, including in U.S. citizens who are not vaccinated. Even though the proposed rule has not been finalized, Women, Infants and Children (WIC) has already seen a 20% decline, and Kaiser estimates 2.1-4.9 million will disenroll from Children's Health Insurance Program (CHIP) and Medicaid if this proposal is enacted.

The proposal negatively affects women and children by forcing them to choose between a rock and a hard place—choosing between their health or keeping a roof over their heads and the American dream. On December 10, 2018, Lawyers Club submitted a formal comment to DHS urging the agency to reconsider the proposed changes to the public charge due to the disproportionate impact it will have on women and children.

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