UCCIS FAQ on the Public Charge Exclusion and Some Background

October 29, 2009

The U.S. Citizenship and Immigration Services recently issued a Fact Sheet for the public charge exclusion. Download Public_charge_fact_sheet[1]

The exclusion is interesting because it exudes class-based discrimination, something generally not exhibited so brazenly in American law. For much of its history, despite the stated ideal that it openly embraces the “huddled masses” from the world over, the U.S. government has not been particularly open to poor and working people seeking to migrate to the United States.

Buried in the American psyche is the deep and enduring fear that, unless strong defensive measures are put into place and aggressively enforced, poor immigrants will come in droves to the United States, overwhelm the poorhouses, and excessively consume scarce public benefits that many believe should be reserved for U.S. citizens. Responding to that fear, U.S. immigration law has long provided that “[a]ny alien . . . likely at any time to become a public charge”—even one otherwise eligible for an immigrant or nonimmigrant (temporary) visa—cannot be admitted into the United States. See Immigration & Nationality Act (INA) § 212(a)(4)(A), 8 U.S.C. § 1182(a)(4)(A). The INA further provides that the receipt of public benefits within five years of entry also may result in the deportation of an immigrant. See INA § 237(a)(5), 8 U.S.C. § 1227(a)(5). Over time, Congress has significantly tightened the public-charge exclusion and, since major reforms in 1996, it has been most vigorously enforced.

As amended, the Immigration & Nationality Act currently requires the State Department consular officers to consider the following factors in applying the public-charge exclusion to each and every noncitizen seeking entry into the United States: the noncitizen’s age, health, family status, assets, resources and financial status, and education and skills. INA § 212(a)(4)(B), 8 U.S.C. § 1182(a)(4)(B). Put differently, a prospective entrant must establish that he or she is and will continue to be a member of a particular socioeconomic class—most definitely not poor or likely to ever become poor—to lawfully migrate to the United States. In this way, the U.S. immigration laws enforce a kind of caste system restricting access to the proverbial “land of opportunity,” with certain socioeconomic classes barred from entry.

To this dubious end, the law requires that each prospective immigrant secure a well-heeled sponsor in this country willing to “agree[ ] to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line . . . .” INA § 213A(a)(1), 8 U.S.C. § 1183a(a)(1). Sponsors, with the resources necessary to make this substantial income commitment, must submit legally enforceable “affidavits of support,” which obligate the sponsor to reimburse the government if an immigrant somehow accesses public benefits. INA § 213A, 8 U.S.C. § 1183a.

The U.S. government routinely invokes the public-charge exclusion as grounds to deny immigrant and nonimmigrant (temporary) visas to the United States to noncitizens from the developing world. For well over a century, the exclusion in one form or another has made it especially difficult for poor and working people from Asia, Africa, and Latin America to lawfully enter the United States.

In 1996, Congress toughened the public-charge exclusion by significantly tightening the affidavit-of-support provisions to expressly make the affidavits legally enforceable in courts of law. The unmistakable intent was to make it more difficult for noncitizens of modest means to migrate to the United States. The very same year, Congress stripped lawful immigrants, even those who had paid taxes, of eligibility for several major federal public-benefit programs. Generally speaking, immigrants – both legal and undocumented — remain ineligible for most major federal benefits programs.

As the existence of the public-charge exclusion suggests, the fear that immigrants might overconsume scarce public benefits if the nation is not exceedingly careful remains prevalent. Consider California’s watershed Proposition 187, a law passed overwhelmingly by the Golden State’s voters in 1994, which would have denied almost all public benefits, including an elementary- and secondary-school education, to undocumented immigrants. Concern with the socioeconomic class of today’s immigrants bolstered by deep-seated anti-Mexican animus, combined with legitimate concerns about immigration control, contributed to a landslide (2-1) vote in support of the measure. Proposition 187 served as a model followed by many other states and localities that passed laws directed at regulating immigration and immigrants.

Although judicial intervention prevented the bulk of the initiative from ever going into effect, the passage of Proposition 187 unquestionably signaled to Congress the widespread public discomfort with immigration, specifically with undocumented immigration, and public benefit receipt by immigrants. Not long after, Congress in 1996 passed a welfare-reform bill that achieved the bulk of its fiscal savings by denying legal immigrants access to many federal-benefit programs (undocumented immigrants had previously been ineligible for those programs) and increased funding for greatly heightened enforcement measures along the U.S.–Mexico border.