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Trump proposal would penalize immigrants who use tax credits and other benefits

The Washington Post logoThe Washington Post 3/28/2018 Nick Miroff
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Immigrants who accept almost any form of welfare or public benefit, even popular tax deductions, could be denied legal U.S. residency under a proposal awaiting approval by the Trump administration, which is seeking to reduce the number of foreigners living in the United States.

According to a draft of the proposal obtained by The Washington Post, immigration caseworkers would be required to consider a much broader range of factors when determining whether immigrants or their U.S.-citizen children are using public benefits or may be likely to do so.

Current rules penalize immigrants who receive cash welfare payments, considering them a “public charge.” But the proposed changes from the Department of Homeland Security would widen the government’s definition of benefits to include the widely used Earned Income Tax Credit as well as health insurance subsidies and other “non-cash public benefits.”

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The changes would apply to those seeking immigration visas, or legal permanent residency, such as a foreigner with an expiring work visa. While it would make little difference to those living illegally in the shadows, it could affect immigrants protected by the Deferred Action for Childhood Arrivals (DACA) program — whose termination has been blocked by federal courts — if they attempt to file for full legal residency.

Immigrants and their families facing a short-term crisis could potentially have to forgo help to avoid jeopardizing their U.S. residency status. The proposal would also require more immigrants to post cash bonds if they have a higher probability of needing or accepting public benefits. The minimum bond amount would be $10,000, according to the DHS proposal, but the amount could be set higher if an applicant is deemed at greater risk of neediness. 

DHS officials say the proposal is not finalized. But the overhaul is part of the Trump administration’s broader effort to curb legal immigration to the United States, and groups favoring a more restrictive approach have long insisted that immigrants are a drag on federal budgets and a siphon on American prosperity.

“The administration is committed to enforcing existing immigration law, which is clearly intended to protect the American taxpayer by ensuring that foreign nationals seeking to enter or remain in the U.S. are self-sufficient,” DHS spokeswoman Katie Waldman said in a statement.

“Any proposed changes would ensure that the government takes the responsibility of being good stewards of taxpayer funds seriously and adjudicates immigration benefit requests in accordance with the law,” she added.

DHS officials say the agency is preparing to publish the proposed rule changes in the Federal Register and invite public comment, but they have not set a date.

Reuters  reported on the proposed changes in early February, and Vox has published excerpts of a draft. But a more recent, 223-page version obtained by The Post shows the proposal is more extensive than previously reported. 

“It’s striking that after strong public criticism of a leaked draft rule, the administration seems to be considering a version that goes even further, and they’re actively considering whether to use this rule to create new grounds for deporting legal immigrants,” said Mark Greenberg, a senior fellow at the Migration Policy Institute, which has been critical of Trump policies. 

One notable aspect of the proposal indicates that native-born Americans use public benefits at roughly the same rate as the foreign-born population.

Out of the 41.5 million immigrants living in the United States, 3.7 percent received cash benefits in 2013, and 22.7 percent accepted noncash benefits including Medicaid, housing subsidies or home heating assistance, according to statistics compiled by U.S. Citizenship and Immigration Services (USCIS). 

Those figures were nearly identical to the percentage of native-born Americans who get the same forms of assistance. Of the 270 million nonimmigrants, 3.4 percent received cash welfare that year, USCIS research found, and 22.1 percent received noncash benefits.

U.S. authorities have long had the ability to deny residency and other benefits to noncitizens who are dependent on public assistance. Concerns about such dependency were partly the basis for the family-based immigration model in place for the past half-century, requiring sponsors to assume financial responsibility for relatives they wish to bring into the country. Trump blames that model for facilitating what he calls “horrible chain migration.”

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One of the most radical changes outlined in the proposal would consider refundable tax income credits, including the Earned Income Tax Credit created to help working families with low and moderate incomes. According to recent estimates, it is used by nearly one-fifth of American taxpayers, particularly those who work in relatively low-paid service industries.

Under the proposed changes, immigration caseworkers would not consider benefits derived from service in the armed forces or some other government job, as well as disability, workers’ compensation and Medicare, unless the premiums are fully paid by the public. It would also exclude elementary and secondary public education and early childhood development programs offered under the Head Start Act.

But children would be considered a negative factor for caseworkers evaluating whether an immigrant is likely to use some form of public assistance or benefit. 

“An applicant’s family status is a factor that must be considered when an immigration officer is making a public charge determination,” the proposal states. “DHS will consider whether the alien being a dependent or having dependents . . . makes it more or less likely that the alien will become a public charge.”

The proposal notes that “the receipt of noncash benefits tended to increase as family size increased in 2013.”

Jonathan Withington, a USCIS spokesman, said the proposed changes will be published during the 2018 calendar year, but he said he was unable to discuss the contents and that no final decision has been made. 

“While DHS reviews the proposed change, any draft documents circulating internally are considered pre-decisional and have not been approved for submission to the Office of Management and Budget,” Withington said. 

A person with knowledge of the deliberations said the draft proposal is essentially complete and awaiting final approval by Homeland Security Secretary Kirstjen Nielsen.

The proposed rule appears to have generated consternation among some USCIS employees. At a recent town-hall-style staff meeting, USCIS Director L. Francis Cissna was challenged by one employee, according to a recording of the encounter shared with The Post.

“On a personal level, I think I can say with confidence that my destitute and illiterate great-grandparents would not have been welcomed in this country under something like the very ill-conceived public charge rule that is currently in the process of development,” the staffer said. He told Cissna that such changes were hurting employee morale.

“Given that neither the headquarters nor the policy environment seem likely to change in the next three years, what will you do to maintain and retain, I should say, a motivated and engaged headquarters workforce?” he asked Cissna.

“Administrations change. Policies change,” Cissna replied, according to the recording. “I’ve had to implement all sorts of things . . . that I didn’t like. But we do our job.”

“I think that we all have to remember we are civil servants and we all serve the president,” Cissna told his staff. “We’re going to follow his directives.” 

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