Skilled immigrant workers and their employers aren’t beyond the reach of a new Homeland Security Department proposal to block people from getting visas if they use public assistance, such as food stamps or Medicaid.
The proposal, which hasn’t yet been published in the Federal Register, would greatly expand the definition of who’s a “public charge” and thus not entitled to a visa. It would add various types of aid to the list of public assistance that would disqualify an applicant from getting a visa. But the draft goes even further, proposing to factor in things like credit scores and financial liabilities that would affect immigrants who never used and likely never will use government benefits.
“The potential impact is gigantic,” Doug Rand, co-founder and president of Seattle immigration services company Boundless Immigration Inc., told Bloomberg Law. “It’s not just green card applicants, it’s any visa applicant more or less,” including those changing or extending their temporary work visas, he said. An employer that wants to hire international students “better be looking at this,” he said Sept. 24.
Potentially negative factors that could prevent someone from obtaining a visa could be a low credit score, financial liabilities like a mortgage, medical conditions that are or could be expensive, a large number of dependents, and not being fluent in English, said Rand, who served as assistant director for entrepreneurship in the Obama White House.
A “heavily weighted positive factor,” according to the proposal, is having a household income of at least 250 percent above the poverty line, which would be $73,000 a year for a family of five, Rand said. About one quarter of H-1B skilled guestworkers make that amount or less, he said.
Employers will have to “lawyer up” to ensure that they understand all elements of the proposed rule and the ways it could affect their employees’ and prospective employees’ visa eligibility, Rand said.
But the Federation for American Immigration Reform, which supports lower immigration levels, views the proposed rule as a way of ensuring the immigration system is based on merit rather than family ties.
DHS: Rule Focused on Public Benefits
DHS spokeswoman Katie Waldman, when reached for comment, said only that the rule “affects public benefits.”
“As Director, it is one of my top priorities to ensure we are administering our immigration laws as Congress intended,” U.S. Citizenship and Immigration Services Director L. Francis Cissna said in a Sept. 24 letter to agency employees that was provided to Bloomberg Law. “It cannot be, especially in light of Congress codifying the principle of self-sufficiency in the immigration laws,” that Congress intended this concept “to be a meaningless provision or one of limited utility,” he said.
“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,” DHS Secretary Kirstjen Nielsen said in a statement Sept. 22, the day the proposal was released.
“Under long-standing federal law, those seeking to immigrate to the United States must show they can support themselves financially,” she said. The proposal is subject to a 60-day comment period once it is officially published in the Federal Register.
“It’s always sort of been out there” that an immigrant has to prove the existence of finances to support himself or herself, Greg Siskind of Siskind Susser in Memphis, Tenn., told Bloomberg Law.
But the “radical change” is that new types of government benefits now could count against someone seeking a visa, he said.
Under current rules, only receipt of cash benefits from the government that would be viewed in the negative, Susan Cohen of Mintz Levin in Boston told Bloomberg Law. The proposal would add non-cash benefits such as Medicaid and government-subsidized housing.
“A lot of people get Section 8 housing,” said Cohen, who heads her firm’s immigration practice.
“The prohibition against becoming a public charge has existed in U.S. immigration laws, in one form or another, for more than a hundred years,” Ira Mehlman, a spokesman for FAIR, told Bloomberg Law Sept. 24. “We allow people to come to the United States to pursue life, liberty, and happiness, and in return we expect that they will abide by our laws and be self-sufficient. If they are not self-sufficient, the onus is supposed to fall on their sponsors who have pledged to provide for them. That has not been happening,” he said.
“No system is perfect, and no one can predict when extenuating circumstances might arise, but a merit-based system would dramatically decrease the likelihood of immigrants becoming public charges,” Mehlman said.
Not the Last Word
“The government will be inundated with comments,” and so the rule isn’t likely to become final any time soon, Cohen said.
And the “retroactive aspect” of the proposal—blocking someone from getting a visa for having used public benefits in the past—"will be one of the major aspects which will be attacked in litigation,” she said.
“There’s nothing you could do about it if it’s in the past,” she said. “A lot of people have dropped out of programs in anticipation of this,” but “there’s no way to solve your problem,” she said.
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