The Trump administration’s relentless efforts to crack down on undocumented immigrants and asylum seekers are well known—from the recent deployment of US troops to stop a “caravan” of migrants that hadn’t yet reached the border to the president’s promise to shut down the government if Congress doesn’t approve funding for a border wall. But while these stories occupy the national headlines, a proposal to radically limit legal immigration is quietly barreling through the bureaucratic process of becoming law.
On Monday, the public has its last chance to comment on a proposed change to the so-called “public charge rule” under the Immigration and Nationality Act. That rule has traditionally prevented people who depend on the government for most of their basic needs—or might someday do so—from obtaining visas and green cards. But in October, the Department of Homeland Security published a litany of possible changes to the rule that would drastically expand the definition of a public charge to include people who receive all sorts of additional government benefits, including food stamps and housing assistance. Under the new rule, DHS could also penalize applicants for having bad credit or lots of student loans. DHS says that no single factor will determine whether a person is in or out, but immigration advocates worry the rule could drastically curb legal immigration as we know it.
“You can view this as a backdoor, merit-based immigration system without Congress,” says Doug Rand, who worked on immigration issues in the Obama White House’s Office of Science and Technology Policy. He also cofounded a company called Boundless, which helps spouses of US workers apply for marriage green cards.
In a statement, DHS secretary Kirstjen Nielsen said her department “takes seriously its responsibility to be transparent in its rulemaking and is welcoming public comment on the proposed rule.”
“This proposed rule will implement a law passed by Congress intended to promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers,” Nielsen said.1
When the rough contours of the Trump administration’s public charge proposal first made news this summer, critics condemned the outsized impact the rule change could have on low-income immigrants. But Rand and others say the change would hit businesses, college-educated workers, and the spouses of high-skilled workers hard too.
On Friday, Boundless sent a letter to DHS opposing the proposed rule. It was signed by 120 business owners, including top executives from tech outfits like General Assembly, Foursquare, TechStars, and MongoDB, among others. “This policy would prevent countless people critical to growing American businesses from living and working here,” the letter reads. “As business leaders who run companies that employ thousands of workers, both American-born and Americans-in-waiting, we understand what a devastating impact this policy would have on business growth, economic vitality, and U.S. competitiveness.”
Their claims are supported by a study from the Partnership for a New American Economy, a bipartisan advocacy group focused on immigration reform. Using the Census Bureau’s Annual Social and Economic Supplement, researchers identified individuals who might be considered ineligible under the new rule, either because they’ve received government benefits DHS views unfavorably or because their income is less than 125 percent of the federal poverty guideline, another criteria under the proposed rule. Then they analyzed this group’s education and employment data.
They found that more than 91 percent of people who would be affected by the rule are employed, and more than 1.4 million of them have at least some college education. They work in nearly every sector of the economy, including the information sector, where an estimated 19,000 people could be affected, as well as professional and business services, where 515,000 workers could be affected. These findings challenged even the researchers’ assumptions about who would be most vulnerable under the new rule, says Andrew Lim, director of quantitative research at New American Economy.
“We went at it from the same preconceptions other people had, that this would affect relatively poorly educated people and they’d be concentrated in manual labor industries,” Lim says. “It’s a lot of middle-skilled people who would be caught up in this, too.”
Importantly, Lim’s study didn’t take into account all of DHS’s proposed considerations, such as whether people had debt or serious medical conditions. That means the affected population could be much larger.
There are also parts of the proposed rule that are left intentionally vague and are thus hard to measure. For example, the rule says that DHS will look favorably at applicants who have “adequate education and skills to obtain or maintain employment sufficient to avoid becoming a public charge in the US.” But it does not provide a precise definition of what constitutes an adequate education, leaving that up to interpretation. The proposal is similarly vague about the impact having a large family might have on an applicant’s chances.
Rand has done some number crunching of his own. Boundless has data on 600 couples applying for green cards. Many of those couples include one spouse who’s unemployed because he or she happens to be on a student or visitor visa. If the final rule imposes new household income qualifications, Rand estimates a third of married couples he works with would no longer qualify.
“We’ve never in our history before said that you have to already be successful and prosperous before we let you in. This is always a place where talent gets to prove itself on the merits,” Rand says. “This would be a catastrophe for the innovation economy if ever enacted.”
The rule is not yet law, but already it seems to be having an impact. Reports have surfaced of immigrants turning down public assistance for fear of losing their shot at a green card if the proposal is enacted.
As of Friday evening, the proposal received more than 150,000 public comments. Before it issues its final rule, DHS is required to digest all of those comments and at least respond to the concerns raised within them. That could take time. Even if DHS rushes through the process and the rule becomes law, Rand anticipates lots of legal suits in DHS’s future.
It’s still unclear which of DHS’s proposed criteria will make it into the final rule. In the meantime, WIRED created a checklist based on DHS’s own charts, so you can see whether you’d likely pass or fail under this proposed regime—or whether, like so many other immigrants, you would be stuck in a waiting game while the government decides your fate.
You may be rejected if ANY of the following are true:
- You’re currently unemployed and can’t demonstrate employment history or prospects.
- You’re uninsured and have a serious medical condition that might interfere with work or require hospitalization.
- You’re currently receiving public benefits including: supplemental security income (SSI), temporary assistance for needy families (TANF), food stamps (SNAP), section 8 housing or rental assistance, non-emergency Medicaid, subsidized long-term hospitalization, Medicare Part D drug subsidies, or any other federal, state, or local cash benefits.
You’ve received any of the above benefits during any 12-month period in the past three years.
These are “heavily negative” attributes under the proposed rule. DHS says that no single factor will determine your fate, but it does consider these factors “particularly indicative” that you might either be or become a public charge, and therefore would be considered “inadmissible.”
You’d likely pass if ALL of the following are true:
- You’re between 18 and 61 years old.
- You’re employed and have employment history.
- You have no serious medical conditions or disabilities.
- Your household income is least 250 percent of the federal poverty guideline. (For example, if you’re single, that’s $30,350. If you have a family of four, that’s $62,750).
- You haven’t received public benefits in the last three years.
- Your US credit score is good or excellent or, if you don’t have a US credit score, you have little to no debt.
- You have private health insurance.
- You have a high school diploma.
- You’re proficient in English.
These are all considered positive under the proposed rule. If these are all true, you’d likely sail through the process of getting a visa or green card application. That is, as long as you’re not from one of the seven predominantly Muslim countries listed in President Trump’s travel ban, which the Supreme Court upheld earlier this year.
You could be left in limbo if several of the following are true:
- You’re younger than 18 or older than 61.
- You have any medical condition that could interfere with work or study.
- Your household income is less than 125 percent of the federal poverty guidelines. (For example, for a single person, that’s $15,175. For a family of four, that’s $31,375.)
- Your US credit score is bad or fair.
- You don’t have private health insurance.
- You don’t have a high school diploma.
- You’re not proficient in English.
- You have debt.
DHS considers several of these traits to be negative. Maybe you have bad credit and a bunch of student loans or a mortgage. These answers won’t automatically disqualify you on their own, but if the negative factors outweigh the positive ones, they might. You and your employer would have to wait and see.
1Update: 6:39 am ET 12/10/18 This story has been updated to include comment from Secretary Nielsen.
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