Why has the public charge rule been criticized?

1. Immigrants are not “likely” to use public benefits. According to DHS’s analysis in the rule itself, “The data shows that the rate of receipt for either cash or non-cash public benefits was approximately 20 percent among the native-born and foreign-born, including noncitizens” in 2013. In other words, 80 percent of immigrants are not receiving public benefits. No matter how DHS slices the data, it could not find any population of immigrants with a propensity greater than 50 percent. DHS defines “likely” in the final rule to mean more than 50% probability to use benefits.
2. The public charge rule ignores immigrant contributions. The rule would exclude people based on a projection that they are likely to use benefits in any future 12 months in any 36-month period. This means that people who make 200 percent of the poverty line could still be deemed a “public charge”/ward of the state, even though they are 95 percent self-sufficient. According to DHS’s analysis, only 14 percent of benefits recipients made an income of less than 125 percent of the poverty line, meaning that this rule will target thousands of applicants who will largely support themselves and contribute economically.
3. The process to identify someone’s likelihood to use benefits is skewed to create denials. DHS’s proposed weighting scheme is scientifically invalid. It proposes a check mark system of positive and negative factors and then will compare the results. Yet it is empirically inaccurate to say that someone who doesn’t speak English and who lacks a high school degree is twice as likely to use benefits as someone who just doesn’t speak English. In fact, English language ability adds nothing at all once education and income is known. Finally, because the rule doesn’t define what it means by “likely” to become a public charge with any statistical exactness (or at all), every adjudicator will determine their own thresholds, resulting in denials when approvals would be appropriate.

What effects will the rule have?

1. Fewer legal immigrants will receive approvals. DHS admits that the rule will have this effect—indeed, it is the purpose of the rule—but it declines to estimate it. The most modest reading of the rule implies that denials for public charge grounds will skyrocket back to the highs of the late 1990s when 13 percent of applicants received final immigrant visa refusals for public charge grounds. In 2018, this would have amounted to about 115,000 legal immigrants.
2. Fewer legal immigrants will come legally to the United States. Banning some immigrants in certain backlogged categories will not necessarily reduce legal immigration because other immigrants will just take their slots. But 58 percent of the immigrants that this rule will affect—spouses, parents, and minor children of adult U.S. citizens—are in categories that have no cap. Greater denials will lower legal immigration to the United States, likely by tens of thousands. DHS acknowledges this fact as well, but fails to estimate it.
3. U.S. citizens will be separated from their spouses and children. Nearly 370,000 immigrants who received permanent residence in the United States in 2017 were spouses or minor children of U.S. citizens. They constitute about 40 percent of all immigrants subject to the public charge rule. When the rule is implemented, they will be at risk of being denied and separated from their U.S. citizen spouses and children. The rule could ban about half of the spouses of U.S. citizens receiving permanent residence, according to an analysis of data on the employment status and incomes of spouses of U.S. citizens by the organization Boundless.

Read more from the CATO Institute here...