Americans are likely to say that when their grandparents immigrated to the United States, the immigration system was different from today because immigrants then had to earn their own way or to have a sponsor who would guarantee their support. But in actuality, the laws today are virtually the same as they were a century ago; what has changed is their interpretation and enforcement.
Section 212(a)(4) of the Immigration and Nationality Act as amended says, “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney general at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” This provision is intended to screen out immigrants likely to become a burden on the American taxpayer.
Loopholes in the System
The burden that is borne by the American taxpayer because of welfare benefits paid to immigrants has largely arisen in the past few decades. Reasons for the change are many. Until 1996, guidance to U.S. consular officers by the State Department said that an immigrant could overcome the public charge test if the alien’s sponsor (see below) demonstrated income at least as high as the poverty level. In 1996, Congress increased that standard to 125 percent of the poverty level. Nevertheless, it is easy to understand that a sponsor so close to the poverty level cannot represent much of a safety net for a new immigrant.
An even greater problem exists with immigrants who are not screened under the public charge provision. Refugees and asylees, including the stream of Cuban illegal immigrants, are exempt — Congress makes the American taxpayer their sponsor. The same is true with illegal aliens who are allowed to convert to legal status, whether by a general amnesty such as in 1986 — covering about three million illegal aliens — or by rolling amnesties such as Section 245(i).
In May 1999, the Clinton Administration issued regulations that defined the public charge provision. This, in theory, was intended to set a standard for removing aliens who had become a burden on the American taxpayer. However, the guidance narrows the scope of what constitutes a public charge so much that few aliens are likely to be deported as a result. Aliens can argue that their indigence is due to circumstances that changed after their arrival in this country. The criteria apply only during the immigrant’s first five years in the country, and many non-cash public assistance programs remain available to aliens without constituting a public charge.
The weakest point in the regulations is that for an alien to be deported, the government agency that provided public income support benefits must try unsuccessfully to collect repayment of the benefits, including through the courts. At present, virtually no government agencies have collection programs.
Who Is Considered a Public Charge?
The 1999 standard defines public charge as, “an alien who is primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”
The new policy specifies long-term dependence on the following programs as meeting the new definition of public charge:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- General assistance / state or local
- Long term medical care, e.g., nursing home care or mental institution care
The new policy excludes the following programs from the definition of public charge:
- Medicaid and other medical insurance or health programs (e.g., immunizations, treatment of communicable diseases, rehabilitation services, emergency medical care)
- Childrens Health Insurance Program (CHIP)
- Nutrition, programs such as food stamps, WIC (Supplemental Nutrition Program for Women, Infants, and Children), and school lunch programs
- Housing benefits
- Child care services
- Energy assistance (LIHEAP)
- Emergency disaster relief
- Foster care and adoption assistance
- Educational assistance, i.e., Head Start
- Job training programs
- Community based programs (e.g., soup kitchens, crisis counseling, intervention, short-term shelter)
- Earned benefits (e.g., government pensions, veterans benefits
Sponsorship of an Immigrant
The reform measures adopted in 1996 that raised the income threshold for sponsors of new immigrants to at least 25 percent above the poverty level also specified that sponsors sign a legally binding affidavit of support (see text below).
The 125 percent of poverty level requirement (slightly over $20,000 for a family of four when adopted) may be met by the sponsor plus some other household family members or by a third party who co-signs the affidavit of support. As long as the immigrant remains in the United States, the sponsor remains responsible financially until the immigrant becomes a U.S. citizen or completes 40 quarters of work-related contributions to the Social Security system.
A study by the INS of immigrant petitions in 1994 estimated that a significant number (29%) of sponsors would have been rejected if the 125 percent test had been in effect. Of the presumed ineligible sponsors, one-quarter were U.S.-born citizens, over half (56%) were naturalized U.S. citizens, and the others were legal residents.
The study results are misleading, however, because the study collected information on individual sponsor income rather than family income and it could not take into consideration that under the new standard a second person can join the sponsorship for purposes of meeting the economic support provision.
Affadavit of Support for an Immigrant Sponsor
The following is the relevant legally binding obligation undertaken by the sponsor of a family member for an immigrant visa from Form I-864:
“I agree to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines. I understand that my obligation will continue until my death or the sponsored immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the United States permanently or die…. I acknowledge that…the Act grants the sponsored immigrant(s) and any Federal, State, local, or private agency that pays any means-tested public benefit to or on behalf of the sponsored immigrant(s) standing to sue me for failing to meet my obligations under this affidavit of support. … I acknowledge that a plaintiff may seek specific performance of my support obligation….”
State Level Provisions
A major loophole in the new requirements, in addition to the fact that they do not apply to all federal public assistance programs, is the fact that they do not relieve American taxpayers from picking up the tab for immigrant welfare benefits at the state and local government levels unless those governments act in parallel with the new federal provisions to designate what public assistance programs are off-limits to immigrants. States must adopt their own policies for holding immigrant sponsors accountable by designating their own list of means-tested welfare programs and adopting procedures for recovering payments from sponsors of covered immigrants.