Less tangible rules, more clouded discretion
Trump’s “wealth test” — a nickname given to the recent changes in “Public Charge” — makes it difficult for families with low incomes from getting Green Cards or a visa to the US. And unfortunately, the recent shift in rules is based more on discretion and interpretation, rather than actual tangible rules or assessments.
This affects peoples’ lives in a major way. It’s got the potential to rip international families apart and, ironically, send other immigrant families further into poverty even though it’s meant to prevent economic burden to the US.
What is “Public charge”?
If you’re not familiar: “Public Charge”, immigration INA law 214(a)(4), says that the US won’t grant any visas or Green Cards if the immigrant is “more likely than not” to rely on public benefits in the future. Meaning if you’re likely to use SNAP, TANF, some housing, cash assistance, or other means-tested benefits in the future, you won’t get US residency.
Since the late 1800’s, this law has barred immigrants from US residency unless they showed proof of self-sufficiency or financial support. Originally meant to prevent “paupers” from becoming a burden on society, only those who were able to care for themselves were granted entry or residency (source USCIS).
Over the years, this rule has changed, been modified, and has sometimes been the center of debate. Today, it’s still one of the most influential immigration laws in the US where all incoming immigrants are put to a financial “test” — one which Trump sought to make harder to pass.
Before the big change of February 2020
Prior to February 2020, “Public Charge” was mostly based on numbers and a bit on discretion. Immigration officers would review your tax statements, compare your income, and make a decision on your eligibility for entry into the US.
They were also allowed to consider factors such as age, health, work history, etc. of the applicant aside from the income. However, officers generally relied on income as the basis for approval. Here’s how this was accomplished.
The US would deny poor immigrants who didn’t have adequate sponsorship. According to guidelines, a person is in “poverty” if they’re below a certain yearly income. In 2020, for instance, guidelines say a household of two people earning below $17,240 USD is living in poverty (source HHS).
The Department of Homeland Security, which oversees the immigration (USCIS), adds another 25% on top of this number for immigrants. In other words, they say an immigrant — be it a spouse, child, parent, sibling, even a fiance — must have a US sponsor whose above 125% the Federal Poverty Guidelines (FPG) in income.
If your friend, Sam, petitions his elderly mother to emigrate to the US from the UK, he needs to support a household of 2 people at a minimum (125% X $17,240 = $21,550 USD). And if Sam happens to have a family, these members also count toward his obligation. Sam’s wife and 2 young children, for instance, add to his “household size” for a total of five people, making the minimum income $38,350 USD for sponsorship.
This hard number was what, generally in the past, officers would consider from tax returns, income, and assets to evaluate whether a sponsor had “enough” to sponsor his mother. They typically didn’t delve into the immigrant mother’s work history, education, credentials, etc. to figure out if she was employable or not.
And frankly, this was a good, simple process. You either could or could not sponsor someone based on your income. But now, that’s no longer the case; the minimum income is now just the starting point. The US now requires immigration officers to also assess the case with non-numerical factors. This is where the issue about discretionary power comes into play.
Effects of Trump’s “Final Rule”
In early 2020, Trump’s “Final Rule” implemented the strict regulation on Public Charge, fundamentally changing the way it’s assessed so much so that it’s referred to as a “wealth test”.
You’ll see from our discussion below that these changes permit only middle to high income families to enter the US or get Green Cards. In effect, only those with sufficient income, education, assets, or more can emigrate.
Oddly enough, however, due to the subjective nature of the rules, it’s nearly impossible to determine whether any immigrant qualifies for a Green Card. It turns out that most of the decision-making responsibility is given to an immigration officers through soft evaluations.
Let’s look in detail why this is a challenge.
How Green Cards or Visa applications are evaluated now
In the past, an immigration officer was encouraged to consider factors such as age, health, work history, etc. of the immigrant while making a decision on public charge aside from income. Now, this assessment has become mandatory.
Under the new Public Charge’s “Final Rule”, the USCIS manual instructs officers to dig deep, ask the family questions, and understand the “totality of circumstances” (source USCIS Policy Manual). Only then, for example, can they conclude whether Sam’s elderly immigrant mother should be granted a US visa or Permanent Residency.
Officers must assess the applicant through the following guidelines:
- Age — How old is the immigrant? It’s generally good to be within working age, between 18–62. If outside this range, an officer must consider if age is going to be a factor in the immigrant’s ability to work and earn a living.
- Health — Does the immigrant have any ailments that prevent normal functioning in life, work, or school? Is treatment for such medical conditions expensive? Does he or she have health insurance?
- Family status — Does this applicant have several family members to support? elderly? children? How is the applicant’s family status going to affect his or her future ability to earn a living?
- Assets, resources, financial status — Does the applicant have assets, income, resources (such as family), good credit scores / history, etc. to show he or she will not land on public benefits? Any problematic debts? Mortgages, Loans?
- Education and skills — How “employable” is this applicant? Does he or she have an education, work history, language skills, or skills to help get employment? (Source USCIS — Public Charge Fact Sheet)
Clearly, there’s a lot more discretionary authority bestowed upon the immigration officer. It’s not a clear “yes” or “no” answer based on one single factor, it’s a conclusion based on many different variables.
The focus of Public Charge has broadened; Aside from being sponsored by a US national, you must also show you’re self-sufficient and able to care for yourself.
This is a questionable criteria and difficult to apply to every case. For instance, One of the legal cases cited in the USCIS manual was the Matter of Harutunian (Source Justice.Gov), where an elderly Turkish woman was at risk of deportation because she had used “old age assistance” and didn’t have anyone in the US willing to financially care for her. The court reached the following final verdict:
“It is our conclusion that an older alien, who lacks means of supporting herself; who has no one responsible for her support and who expects to be dependent for support on old age assistance is… likely to become a public charge, even though the state from which she will receive old age assistance may not permit reimbursement.”
Here, the US took a hard stand and decided to deport an elderly, unsupported woman. Officers are given references like these to guide them while making a determination. So with the backdrop of draconian cases like these to guide officers, how strictly will the new “Final Rule” be implemented?
What will happen to Sam’s elderly mother?
If Sam’s elderly mother needs expensive medical care, an officer may refuse the visa on account of Public Charge even if Sam made more than the 125% required. The officer may question, “is she going to be a burden on the public system? Will she need expensive medical treatment? Can they afford health insurance on their own?”
Surprisingly, for this scenario, Trump’s “Final Rule” allows immigration officers to ask that the sponsor show up to 250% of income levels. Suddenly, Sam may find himself unable to show $30,680 x 250% = $76,700 of annual income or assets — and unable to sponsor his mother if the officer demands it.
Now — to be fair, it’s uncommon for immigration officers to demand you meet the 250% “heavily weighted positive factor”, but it’s possible.
Secondly, and more worrisome, officers are supposed to consider the future “likelihood” of the applicant using public benefits. If an officer wanted, he or she could wonder: “what’s the prognosis of Sam’s mother’s health? Will she need Federally-funded health insurance? Can this family afford medical bills?”
Based on doubt, questioning, or analysis alone, officers can deny visas or Green Cards.
So the question becomes: How will officers use their discretionary powers? Will they truly look at an applicant’s past loans, mortgages, debts, bankruptcies, even child support arrangements and count it against them? Or will they revert to their pre-Trump public charge tendencies and and choose the less strict way?
A bubble of confusion surrounds their decision
To make things worse, there’s a lot more confusion in different parts of the “Final Rule”. The example of Sam and his eldery mother illustrates just one of the difficulties in figuring out the outcome of an immigration case. But realize that everything else has also become muddy. There’s no way to predict, even with a high income, whether or not you’re able to petition a family member to the US. Think about it: if most things are based on an officer’s opinion, for example:
- How much income is actually enough despite what the Federal Poverty Guidelines say? And if it’s all based on an officer’s discretion anyway, then why have guidelines in the first place?
- What if the applicant is considered “not employable” by a USCIS officer but the applicant has the potential to learn and grow? How can we assess the future correctly?
- What if the applicant cannot prove, through lack of documentation or history, that he or she is qualified with the complex criteria now introduced?
Although there are several exceptions, rules, and guidelines officers follow, the language in the “final rule” is broad and uncommitting. It leaves room for interpretation, assumptions, and mistakes from both the applicant or the interviewing officer.
“Here, take this and follow my example”
In response to this dilemma, the USCIS has updated their policy manual for officers. It’s a 20-chapter-long explanation of what makes up the complex Public Charge topic. It’s a shocking 20 chapters worth of complex guidelines, theories, examples, and more… just to help officers make a decision that makes only one PART of their overall decision to approve or deny a Green Card or Visa application. There are dozens of other chapters devoted to other equally complex criteria.
Oddly enough, although there are 20 chapters of explanations, criteria and examples, reading through the entire volume leaves the reader more uncertain than ever.
How the USCIS policy Manual Chapter 4 begins
If officers are confused with the new guidelines in the “Final Rule”, how are average American families supposed to comply?
Still Not Good Enough
So, how do these new complicated evaluation methods affect real families?
To sum it up, there’s a lot less certainty in family immigration both for visa applications and Green Cards. How do we know we have “enough” for approval? How does anyone know they qualify while maneuvering through a maze of requirements?
The potential doubling of income requirements is just one possibility that Trump made in the “Final Rule” to allow more opportunities for the USCIS to deny immigrants. The vagueness of Public Charge is further muddied by the presence of difficult requirements and huge discretionary burden on immigration officers.
There’s certainly more stress for families who may be at the borderline limits. Imagine how unsettling it is for Sam not to know if he’ll be able to care for his elderly mother in her final years. Imagine how unnerving it is for him to hear that the final decision depends on an officer’s understanding (misunderstanding?) of complicated issues.
This easily forces families, like Sam’s, to take desperate, perhaps unnecessary, steps in an effort to comply with confusing requirements. One such recent example is how many families are paying expensive international “traveler’s insurance” as a way to comply with health insurance requirements because there’s no other alternative. Without a clear directive from the USCIS, families are not sure whether to spend thousands of dollars on something which may not even matter.
Families, like Sam’s, may face unnecessary separation. What if Sam’s mother has no one else to care for her other than Sam? And what if instead of Sam’s elderly mother being petitioned, it was actually his wife and two children who lived overseas in the UK? What if he wasn’t allowed to have them emigrate simply because an officer didn’t think he would have enough health insurance for the young children?
This is just one hypothetical story and question; there are several more twists and turns that the “wealth test” introduces. We need to eliminate this “wealth test” because it does not serve the purpose of preventing people from falling on public benefits. Actually, the consequences are that it’s tearing families apart and throwing others further into debt.
The criteria in “Final Rule” are complex, contradictive, and based on “gut feelings” by officers who are inundated with dozens and dozens of complex criteria to evaluate. This is a dangerous situation which needs urgent fixing.