Part of the scope of any sort of legal reform is to stay informed of developments coming down the pipeline, no matter how far away they may seem from reality. And the stakes could not be higher when considering changes coming down the pipeline in immigration reform.
We’ve recently outlined recent changes that are anticipated for obtaining legal status with Pereira v. Sessions. While obtaining legal security to remain in the United States is of foremost concerns for attorneys specializing in immigration and their clients, sometimes the day to day concerns of participating in governmental aid programs in the United States have more significant implications for immigrants and migrant communities.
The current buzz in the immigration reform community surrounds proposed change to regulations governing access to governmental aid programs, such as SNAP, CHIP, WIC, and Medicaid, to lawful permanent residents holding green cards.
The proposed regulation change affects the interpretation of public charges, who are defined as individuals anticipated to be dependent on governmental assistance. By definition, United States citizens and permanent residents and their families are eligible to access such social welfare programs as Earned Income Tax Credit (EITC), SNAP (formerly known as food stamps), CHIP, WIC, and Medicaid. Families who are supported by individuals who work low wage jobs and/or one or more wage-earner is unable to work find the accessibility of these programs critical to their survival and success. Persons eligible for these programs include dependents of undocumented immigrants so long as they qualify in all other respects. Participants of these programs cite their availability as a critical component of being able to support the basic needs and security of their families while also working productive jobs that simply do not provide enough income for their families.
The Trump administration’s proposed change imposes a potential penalty on persons trying to obtain legal status whose dependent family member utilized a public assistance program despite lawfully qualifying for the program. The inevitable effect is to dissuade families of mixed immigration statuses who previously qualified for the assistance programs outlined in the paragraph above from utilizing these programs using the fear of ineligibility for permanent resident status. This change will greatly affect many citizens and lawful permanent residents.
The scenarios of how this proposed change will affect different populations of residents are numerous both in situation and effect. For example, United States citizen or permanent resident children whose parents do not have lawful status may be eligible to receive government assistance that can in theory be utilized by the entire family, regardless of the potentially mixed statuses of the members of the family. In this scenario the actual person being granted the benefit is children. A decision maker in this household may decide to forgo public assistance, despite rightfully qualifying for the program, for fear that the benefit may disqualify them one day from gaining lawful status because under the new interpretation they would now be considered a public charge. This proposed change is most likely to affect children, elderly individuals, and disabled dependents, especially given the scope of Medicare assistance received amongst these populations.
Currently, this piece of legislation is in the commentary period of its legislative life cycle, so there is still some degree of uncertainty as to what the final version of the rule will be. In the legal community, it is widely believed that this proposed rule will be heavily dependent on the interpretation of immigration officer and judges. Given the ambiguous and often convoluted nature of the 447 page document that is the proposed rule it is expected that arbitrary decision will undoubtedly result thus undermining the immigration system. The directive is aimed at limiting the number people that become lawful permanent residents and eventually United States citizens.
What is clear at this point in is the proposed change would result in legal discrimination against primarily legal citizens or permanent residents that are dependent on an undocumented immigrant. Due to its discriminatory nature leading to an unequal access of public resources by groups entitled to their benefits, there will likely be a series of legal movements to prevent this rule from taking effect.
Who This Affects
The proposed regulation changes exposes a fair amount of hypocrisy in the Trump administration’s stance on immigration reform. The administration claims to only possess a hardline stance against illegal immigration; this proposed regulation, however, will affect United States citizens and permanent residents who are dependents of undocumented immigrants.
In terms of lawful access, this proposed rule completely disregards whether the applicant for these public benefits in fact qualifies for them or not. Even in the absence of fraud, misrepresentation, or other illegal act, the undocumented immigrant is penalized for caring and supporting a person that relies on those programs. Migrants without legal status in the United States do not even have access to the programs stated in the reform proposal, so this potential change represents an illogical and unethical indirect denial of access to these programs.
Short and Long Term Implications
The simplest explanation of the effect this proposed change would be how families would be forced to choose between a means of financial survival or avoid an inadmissibility charge when trying to get lawful status.
Government subsidy programs, notably food stamps and WIC, largely benefit families who take low-earning jobs and stretch their resources to provide for the basic needs of their families. Legal analysts cite the anticipated effects on children as secondary recipients of government aide as the greatest detriment that could stem from this reform. Without explaining the fine details, fair access to basic needs of security and comfort that is provided to children in the low socioeconomic bracket from programs like SNAP and other assistance programs, is an irrefutable fact of psychological and educational success of children. Like many aspects of legal reform, the scope of proposed changes seems narrow in focus, but in reality, has widespread implications when examined for sociocultural impact.
Even more broadly than the effect on children and future generations, this proposed change will have a direct and adverse effect on the present economy if the rule takes effect, specifically in issues surrounding equal access to healthcare and tax preferences.
Cumulatively, if passes, this regulation would significantly widen the gap of financial and resource inequality in the United States. Many of the United States citizens and permanent residents who are dependents of undocumented immigrants use government subsided health care. Despite making out of pocket contributions any help provided by either local, state or federal governments to help pay for health care or health insurance would also be seen cause to find the undocumented immigrant as a public charge. Again they faced with a choice of getting health coverage or not to preserve an ability to one day perhaps get lawful status. Forgoing healthcare coverage and medical intervention out of fear of governmental retribution screams to the authoritarian and unethical approach of this reform.
Similarly, the anticipated effects on participation in tax will dismantle years of reform aimed at social welfare in the United States, and will widen the already astronomical gap between the nation’s wealthiest and its poorest. The Trump administration’s lack of oversight and planning fails to account for the lack of participation in social welfare programs, like the Earned Income Tax Credit (EITC) and the low-income component of the Child Tax Credit, that are designed support families of low wage earners will fundamentally corrupt the tax code and lead to massive financial instability across class lines.
Perhaps the Trump administration wants a drastic reduction of people immigrating to the United States and to penalize dependents of undocumented immigrants. However, if this is the case, the administration has vastly underestimated the miscarriage of justice that will prompt legal residents of the United States to seek out expert legal advice and defend their right to remain in the country and participate in social welfare programs that allow them to thrive as legal participants of American society and culture. No matter the Trump administration’s ill-conceived efforts to exacerbate tensions in immigration reform, there seems to be paths for legal attainment of justice in this otherwise unethical denial of legal privilege and protection.