The US Department of Homeland Security has published a policy document detailing how it’s going to look at certain applications for immigrant status. This has the Indian media up in arms as it’s seen as an attack on people from that country who might wish to avail themselves of immigrant status. Effectively the new insistence is that long standing law will be applied – but applied in a possibly more restrictive manner. This is likely to make a significant difference to a number of people – including those from India – who wish to transition their visa status.
One possible way to read this story is that it’s the Trump Administration limiting immigration without actually having to ask Congress to limit immigration. To read it that way might possibly be unfair – and then again it might not be, your call.
Here’s how the Indian press is running with it:
The Trump administration may deny green cards to immigrants who have availed or may avail government benefits including food and cash assistance under new rules which could negatively affect hundreds of thousands of Indians living in the US.
The proposed rule signed by the Homeland Security Secretary on September 21 and posted on the website of the Department of Homeland Security (DHS) was slammed by the Silicon Valley-based tech industry and political leaders.
It’s not actually a proposed rule, it’s more of an insistence upon applying an extant one. The effect is much the same of course.
We could start with a certain puzzler – if people are just applying for visas then how can they have been getting US welfare payments? That being not quite what is being talked about of course. Sure, it is US welfare payments that are being talked about. No one is saying that if you’ve been getting welfare at home then you cannot come to the US. Rather, you can’t come to the US if you have been getting US welfare, are, or will do. Which is still confusing, admittedly.
According to the rule, foreign immigrants who “seek adjustment of status or a visa, or who are applicants for admission, must establish that they are not likely at any time to become a public charge” unless determined by Congress. Public charge means receiving government benefits.
And that helps to explain it. Not all of these paths are equally likely, some might not even be possible. But there are routes to a Green Card – that penultimate stage before citizenship – which run through other classes of working or other visa. For example, a student visa might lead to post-graduate work and so on to residency. Or an H1-B visa, allowing work for a specific employer for a period of time, might lead to that again, being able to progress further along the route.
What is now being said is that if public assistance has been granted during these earlier periods, or if it looks like they might be, then that progression through the visa types might not be allowed:
The DHS proposes to require all immigrants seeking an extension of stay or change of status to demonstrate that they have not received, are not currently receiving, nor are likely to receive public benefits as defined in the proposed rule.
“Under long-standing federal law, those seeking to immigrate to the United States must show they can support themselves financially,” said Homeland Security Secretary Kirstjen Nielsen.
“The department takes seriously its responsibility to be transparent in its rule-making 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,” she said.
It is already, as they say, the law that this be so. There are certain forms of assistance that don’t count – Medicaid paid treatment in an emergency for example. Going to hospital to get that sliced jugular fixed after being thrown or falling through a plate glass window does not jeopardise future immigration status. Having claimed food stamps might well do so.
It’s the enforcement which is to be changed, or at least mooted to be so. The announcement is here:
Inadmissibility based on the public charge ground is determined by looking at the mandatory factors set forth in section 212(a)(4) of the Immigration and Nationality Act and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future. The proposed regulation defines a public charge to be a person who receives certain public benefits above certain defined threshold amounts or for longer than certain periods of time. Importantly, by law, the public charge inadmissibility determination is a prospective determination based on the totality of the circumstances, which includes statutorily required factors such as age, health, family status, assets, resources, financial status, education and skills.
In making this determination, DHS is proposing to consider current and past receipt of designated public benefits above certain thresholds as a heavily weighed negative factor. The rule would also make nonimmigrants who receive or are likely to receive designated public benefits above the designated threshold generally ineligible for change of status and extension of stay.
The item that has the Indians up in arms is the “change in status” one. For it is a path oft availed of to take one of the limited classes of working visa (say, H 4 or H1 -B) an then, in the fullness of time, switch over to the Green Card and citizenship track.
As to whether this should be done, well, everywhere has some sort of limits on who may immigrate. And it’s common enough that those who would be a charge upon the state aren’t allowed to. There are regularly stories in the British press of British retirees who are thrown out of Australia or New Zealand because their age means they will be a call upon pension or medical systems. Whether systems should be this way is up to you, a moral point that I can’t adjudicate upon for you. But it’s not uncommon at all.
It might also be the Trump Administration playing to its base – and democratically elected governments are rather supposed to do that – in appearing to tighten immigration allowances. How much difference it makes, well, anyone got the statistics on the number of would be Green Card holders who do or are likely to gain public assistance? If that’s a trivial number then the number affected here is likely to be trivial, isn’t it?