Admitted but Excluded – Trump Tightens Rules for Legal Immigrants
On Monday, August 12, 2019, the Trump Administration, through the Department of Homeland Security, announced a major and highly controversial policy directive regarding immigration to the United States.
The new regulation, “Inadmissibility on Public Charge Grounds” spans 837 pages. The Immigration and Nationality Act (INA), the main American statute governing immigration to the country, renders, per ss. 212 (a)(4), inadmissible to the country people deemed likely to become a “public charge.”
As the name of the new regulation suggests, its purpose is to define and expand the ambit of the public charge category; specifically, the regulation identifies people who receive designated benefits for twelve months (aggregate) over any 36-month period as falling into the public charge category. Designated benefits include many things such as any cash benefits for income maintenance, most forms of Medicaid, and food stamps.
Foreigners seeking to extend their stay or change their status in the country will have to prove they have not fallen into the public charge category.
The rule is scheduled to take effect in mid-October; it is not retroactive, and does not affect American citizens or designated exempted groups such as refugees.
The Trump Administration has framed the law as a needed clarification which will promote and reward immigrant self-sufficiency. A press release from United States Immigration and Citizenship Services (a division of the Department of Homeland Security) heralded the new regulation as:
…clearly defin[ing] long-standing law to better ensure that aliens seeking to enter and remain in the United States—either temporarily or permanently—are self-sufficient and rely on their own capabilities and the resources of family members, sponsors, and private organizations rather than on public resources.
However, opponents of the new regulation see it as a means of deliberately discouraging and limiting legal immigration to the United States through punitive and mean-spirited measures.
Thus, Robert Greenstein, president of the Center on Budget and Policy Priorities, a progressive think tank, condemned the regulation, saying:
The rule reflects a dark vision of the United States—as an unwelcoming nation that wants to keep out people who seek to join their family, work hard, and climb the economic ladder—based on the erroneous assumption that they won’t contribute to our communities, our economy, and our nation.
Observers have noted that while much of the Trump Administration’s rhetoric and actions have been directed at illegal immigration, this new regulation targets individuals who have arrived and remain in the country legally.
It bears noting that the American immigration system, unlike many other Western systems, prioritizes family reunification over economic potential; roughly two thirds of the permanent resident visas issued in FY 2017 went to individuals in the family and immediate relatives category.
It appears that undocumented migrants present (now or in the future) in the United States who would eventually fall into this category (i.e., people on track to receive green cards or citizenship) are the targets of this rule. This conclusion aligns with the Trump administration’s desire to reduce the family reunification category and increase the economic one.
Difficult questions arise with the workability of this proposal. Will people elect to starve or be homeless rather than avail themselves of government support? Will individuals be deterred from coming to the United States in the first place? Will a public movement arise to fill the void the denial of governmental services will ostensibly create?
It is difficult to quantify how many people will be affected by this new rule but it is clearly considerable. According to a New York Times piece, DHS officials estimate over 382,000 immigrants per year seeking adjustment to their status would be affected; more than 324,000 people would be estimated to either not enroll in, or actually drop out of, public benefit programs.
Advocacy organizations, however, place the number exponentially higher, estimating 26 million legal immigrants will reconsider their use of government benefits.
The Trump Administration’s new regulation invites analysis of how Canada grapples—or doesn’t—with the issue of immigrant self-sufficiency.
In general, Canada struggles less with immigrant self-sufficiency, since its immigration system emphasizes: merit; objectivity; and quantifiable factors such as education and language ability.
Thus, in 2017, the numbers of permanent immigrants arriving to Canada under the economic category were nearly double those of individuals arriving under the family category.
Moreover, Canada also predicates family immigration on sponsorship—the individual(s) seeking to immigrate to Canada must have a relative already in Canada (the so-called sponsor) who is able and willing to sign an undertaking ensuring that the sponsor will financially take care of the individual(s) immigration.
Documentation of financial resources is required; the length of the undertaking varies on the type of relative sponsored and the location of the sponsorship (Quebec maintains different rules than the rest of Canada).
There are also financial requirements even if a person is applying under the Economic category (save for the Canadian Experience Class). Individuals must demonstrate adequate funds to support themselves and their families using a chart the government establishes or be authorized to work in Canada and have a valid Canadian job offer.
The Canadian sponsorship-undertaking system is generally considered fair and uncontroversial. It is prospective, so everyone understands what their responsibilities are before immigrating to Canada. It does not dangle the danger of deportation over immigrants who may, through no fault of their own, fall on hard times.
The American proposal, meanwhile, seems to reflect a punitive approach instead of ensuring financial stability is achieved beforehand.
In short, the Canadian system is fairer and more straightforward. It allows Canada to maintain its long-standing tradition of fostering family togetherness and immigration based on merit while ensuring adequate support is available, from some source, for immigrants in case it is needed.
This sentiment finds validation at the highest levels; a recent report of the Organization for Economic Co-Operation and Development (OECD) has praised Canada’s immigration system as a model for other countries, describing the Canadian system as “the most carefully designed and longest-standing skilled migration system in the OECD … widely perceived as a benchmark for other countries … its success is evidenced by good integration outcomes.”