The public charge rule, slated to go into effect on October 15, 2019, is anticipated to have resounding effects for immigrants and their families across the United States. According to a Center for Law and Social Policy factsheet using American Community Survey data, the rule, as originally proposed, could impact 26 million US residents including students and the student affairs professionals who support them.
What is Public Charge?
The Immigration and Nationality Act of 1952 introduced “public charge” as a way to lower the perceived risk of immigrants developing a dependency on the United States government for support. If considered a public charge, an immigrant can be denied entry to the country or barred from acquiring lawful permanent residency if the threat of such a dependency is determined to be likely. An immigration officer uses a kind of public charge test, considering the entirety of an individual’s circumstances, to decide on the grounds of public charge. Up until the release of the new rule this week, however, the only public benefits included in this process have been federal, state, or local cash assistance, like that of Temporary Assistance for Needy Families, or long-term subsidized care.
Informal Rulemaking and Public Charge
As discussed in Beyond Schoolhouse Rock!: How a Rule Becomes Final, legislation is often operationalized through rulemaking by an administrative agency. In October 2018, the Department of Homeland Security United States Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) in the federal register titled “Inadmissibility on Public Charge Grounds” which proposed expanding eligibility for inadmissibility under public charge by including additional public benefit programs and creating an income-based rubric for individuals to be weighed against. On August 14, 2019, USCIS released a final rule to the federal register. The final rule does not include federal student loans or education-related financial assistance under the public benefits listed. However, the rule does include food and housing benefits like the Supplemental Nutrition Assistance Program (SNAP) and Section 8.
Public Charge and Student Food and Housing Insecurity
Changes to public charge have made it significantly more difficult for immigrants who access food and housing assistance to qualify for permanent legal status, dis-incentivizing those individuals from accessing the public benefits for which they are eligible. The release of the final rule comes on the heels of the announcement of food and housing insecurity measures specifically directed to address the needs of college and university students, which may create mixed messages for students affected by public charge and lead them not to take advantage of programs or benefits offered by their institutions.
Several lawmakers have recently introduced legislation that would increase the availability of federal food assistance programs, including SNAP benefits, to college students. The Closing the College Hunger Gap Act (H.R. 3718/S. 2110), introduced by Representative Jahana Hayes and Senator Christopher Murphy in mid-July. If passed, the bill would require the Department of Education to notify lower-income students about potential eligibility and the application process for SNAP benefits and require a federal study of student food and housing insecurity. The College Student Hunger Act (H.R. 3809/S. 2143), introduced in the latter half of July by Senator Elizabeth Warren and Representative Alfred Lawson, and supported by NASPA along with other higher education groups in a letter to Congress from the American Council on Education, would expand SNAP eligibility, and increase notification and outreach initiatives to enhance SNAP accessibility.
The Basic Assistance for Students in College (BASIC) Act (S 2225), as announced by Senator Kamala Harris when the bill was introduced in July and supported by NASPA, would increase affordability options for students attending a community college or minority-serving institutions. The measure proposes doing so through a $500 million competitive grant program allotted to qualifying institutions dedicated to improving the basic needs of their students, as well as by requiring the Department of Education to coordinate efforts with other federal agencies in identifying public aid eligibility for students. “This proposed bill would address a critical issue facing low-income students who are enrolled in college,” NASPA President Kevin Kruger said, however, the release of the USCIS public charge rule puts the promise of the benefits proposed by these measures at risk for immigrant students and their families planning to apply for permanent residency at some point in the future.
As predicted by immigration advocates upon the release of the USCIS NPRM, the chilling effects of the rule have already resulted in fewer documented and undocumented immigrant families applying for federal food and housing aid. According to Politico, at least 18 states have seen substantial decreases in the number of immigrants enrolling to receive public benefits, with some states reporting drops in enrollment as high as 20 percent over the last year. The State Department has also been more active in denying visa applicants on the grounds of inadmissibility by public charge. Politico reports that in comparison with just seven denials for Mexican applicants in FY2016, the State Department has denied 5,343 applicants in FY2019. A notice from the Office of Management and Budget. dated in early July shows another public charge rule is underway from the Department of Justice and is currently pending review. While the Department of Justice (DOJ) may use public charge as the law currently stands as grounds for deportation, this policy is rarely enforced. A new rule from DOJ may increase deportation under public charge, raising fear of the consequences for recent immigrants who may need food or housing assistance as they establish themselves in the United States even further.
On August 12, the National Immigration Law Center announced its intent to file a lawsuit to challenge the new rule which has been given an implementation window of the minimum requirement of 60 days. Public benefit enrollment numbers are likely to continue to drop regardless of whether a lawsuit delays the implementation process. Therefore, while expanding and increasing transparency around SNAP eligibility offers much-needed support to many low-income students, immigrant students are largely excluded from the benefits of such measures. Legislation like the BASIC Act that allows the institution to best address the needs of their students with allotted grant funding might be best suited to reach those most vulnerable, and unable, at this time to apply for food and housing assistance.
If you are interested in submitting comments on the proposed public charge rule from DOJ upon its release to the federal register, check out NASPA’s Q&A on submitting public comments. If you are interested in participating in advocacy efforts regarding any of this proposed legislation, check out the “When to Engage in Advocacy” section of Filling in What Schoolhouse Rock! Missed: How a Bill Become a Law. If you are looking for additional resources or have questions or feedback, please reach out with your policy-related concerns to Teri Lyn Hinds or Diana Ali.