Immigrants Who Use Government Assistance May Be Denied Visas

Allen Smith, J.D. By Allen Smith, J.D. September 24, 2018
Immigrants Who Use Government Assistance May Be Denied Visas

​The federal government may deny visas and green cards for people who need government assistance, according to a Sept. 22 proposed rule issued by the U.S. Department of Homeland Security (DHS).

Dependency on public benefits has been grounds for refusing admission at U.S. ports of entry as far back as the late 19th and early 20th century, the department noted in a release accompanying the proposed rule.

"Under long-standing federal law, those seeking to immigrate to the United States must show they can support themselves financially," said DHS Secretary Kirstjen Nielsen.

However, Jackie Vimo, a policy analyst with the National Immigration Law Center in Washington, D.C., said that the proposal makes the immigration system "a pay-to-play system where only the wealthy need apply," according to The New York Times.

"The proposed rule adds another consideration, and perhaps extra time, to the employment-based green card process and some applications for temporary work visas. While gainful employment, education and skills are positive factors in the public charge analysis, there could be times where employers and their employees will be called upon to provide additional evidence and make statements under the penalty of perjury that they have not used public benefits and are unlikely to do so in the future," said Justin Storch, Society for Human Resource Management's director, regulatory and judicial affairs counsel for immigration and employee benefits policy. "Time will tell how zealously adjudicators will use the discretion this rule gives to them, and that will be the real test of how burdensome this rule is for employers."

We've rounded up the latest news on the DHS proposal. Here are SHRM Online resources and news articles from other trusted media outlets.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Expansion of Benefits that May Result in Denials

Current law already considers blocking someone from immigrating if he or she receives federal, state, local or tribal cash assistance for income maintenance, according to the DHS. The proposed rule also would consider whether the person receives Medicaid, Medicare prescription drug subsidies, Supplemental Nutrition Assistance Program assistance (food stamps), institutionalization for long-term care at government expense, Section 8 housing choice voucher program assistance, and Section 8 project-based rental assistance and public housing. Immigrant advocates are concerned that the proposed rule would mean that families would not seek help because they feared putting their immigration status at risk.

(Washington Post)

Some Benefits Not Included

The proposed rule would not target recipients of Affordable Care Act benefits or benefits under the Children's Health Insurance Program, despite indications that it might do so in earlier drafts. The proposed rule states that an immigrant could be denied a green card if he or she receives government benefits such as cash assistance exceeding 15 percent of the federal poverty level. With harder-to-monetize benefits, such as public housing, someone could be denied a green card for receiving benefits for more than 12 months over the previous 36 months.


Proposed Rule's Scope

The proposed rule would affect about 382,000 people a year, according to the Trump administration, but does not apply to refugees or legal immigrants who serve in the military. It is not intended to affect those who already have green cards. Immigrant parents in low-wage jobs may choose to remove their children from government programs because of the proposal. The technicalities surrounding the new rule are difficult to understand, so more immigrants might withdraw from the programs than are targeted by it, according to Charles Wheeler, a legal expert at the Catholic Legal Immigration Network.

(The New York Times)

Effect of Proposed Rule

The proposed rule is intended to "ensure that those seeking to enter and remain in the United States either temporarily or permanently can support themselves financially and will not be reliant on public benefits," the DHS said in a statement. Rep. Luis Gutiérrez, D-Ill., criticized the proposal, saying the administration is maintaining that immigrants "weaken the U.S. economy when exactly the opposite is true."

(The Hill)

Concerns with Lawsuits

The proposed rule has been in development for months and has been under review by the White House since March. It was delayed due to concerns over potential lawsuits and the proposal has undergone many revisions. Once it is published in the Federal Register, it will undergo a 60-day public comment period. Legal challenges are still expected once the rule is finalized.



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