Today, Explained - Red light, green card

Episode Date: September 25, 2018

The Trump administration wants to make it a whole lot harder to get a green card. Vox's Dara Lind explains the newest proposal to rein in legal immigration. Learn more about your ad choices. Visit podcastchoices.com/adchoices

I've been promoting the website getquip.com slash explained on this podcast for a while now, but one thing we've never discussed is how fast you can actually buy a Quip electric toothbrush at getquip.com slash explained. We're going to figure that out today. Everyone knows how President Trump feels about illegal immigration, but he's not crazy about the legal kind either. On Saturday, the Trump administration proposed new ways to limit who gets a green card in the United States. The limits are on immigrants who might become what's called a public charge,

someone who might end up dependent on the government for assistance, stuff like food stamps or Medicaid. Public charge is a term you'll find in U.S. immigration law, but the thing is, it's never really been defined by Congress. And that's where the Trump administration comes in. So the Trump administration is now proposing a statutory definition of public charge that just happens to raise the bars, raise the standards substantially for who can get into the U.S. and makes it much more likely that immigrants with lower incomes or who use public benefits will be deemed public charges and have their green cards denied. Dara Lind reports on immigration at Vox, and she's been sifting through all this public

charge business for a few days now. It's an extremely complicated calculation. The regulation was about 447 pages when it came out on Saturday night. But it ultimately comes down to a lot of discretion for the U.S. Citizenship and Immigration Services officers who are actually looking through an immigrant's application. They're supposed to take age into effect, health status, family status, education and skill level, and they're supposed to look at kind of the household assets and resources, part of which is whether an immigrant has used public benefits while in the U.S. or whether they're likely to use them in the future. Do we have any idea what might get you rejected and what might not? Like where the bar is?

Yeah, the clearest thing in terms of rejection is that if you have used public benefits substantially over the years before you apply, that is a strongly weighted negative factor. It's super unlikely that if you've hit that level, you will be able to get a green card. Whether or not you've used public benefits to that level is its own kind of calculus. And they actually have this three-way formula that you can trip that bar. It counts what they call monetizable benefits, which include food stamps, Section 8 housing, some other less common cash benefits, and non-monetizable benefits, most notably Medicaid. And so using more than a certain threshold of the monetizable benefits or non-monetizable benefits

for a certain amount of time, either of those can kind of trip the wire and get you considered likely to be a public charge in future. So this doesn't affect people who already have green cards? The short answer is yes, like with very, very few exceptions. This is a test for what's called admissibility. It's not something that counts for maintaining your status. And it's not something that you have to pass again after you've already been given a green card. So we're talking about people who are legally in the country with a visa who are trying to get a green card. Right. And also people who are living outside the U.S. and are trying to immigrate. You know, for example, a parent whose adult child is in the U.S. and is trying to bring them over.

They won't necessarily have the kind of record of using benefits, but they'll be subject to the other parts of the test, like whether they are healthy or if they're not healthy, do they have private insurance? Are they old enough that, you know, they're going to be a concern for retirement benefits, that kind of thing? Do we have any idea how many people we're talking about here? Thousands, tens of thousands, hundreds of thousands, millions, not millions? There are definitely going to be millions of immigrants who are subjected to this test in future. We don't know what the approval rate is going to be because we don't know how strictly this is going to be implemented. The Trump administration says that about a third of a million people each year will be evaluated based on this test. They're not making any predictions about how strict it's going to be. By a super, super, super strict interpretation,

one that says that if you don't have the strongly positive factor of making a certain amount of like 250 percent of the federal poverty guidelines. If no one below that threshold is being accepted, we're talking about a massive reshaping of legal immigration, specifically family-based immigration to the U.S. that would affect like two-thirds of incoming Mexican immigrants, about two-thirds of incoming Chinese immigrants. I mean, it would be huge if it were that restrictive. It's probably not going to be that restrictive. It's a question of on a spectrum from there to the standards where they are now, where is the new line going to get drawn?

Do other countries do stuff like this? Do they go like, oh, you want to be a citizen here? You want to join the team? What are you using? What do you need? Well, maybe we don't want you so much. A lot of countries do some kind of assessment of, you know, labor market fitness. Education is definitely considered in a lot of places. This is really a variation on that.

There are also different levels of how open the welfare state is to immigrants. And frankly, this isn't the first time we've developed something like this either. The concept of public charge is there in the immigration law. And as I was saying, we already do restrict benefits use to some people. So it's the kind of question of how open is your country versus your welfare state is a question that a lot of countries that have safety nets have had to deal with. It's much more that this is turning something that's kind of become just like it's vestigial in the immigration law right now. It's just extremely unlikely for it to actually get used into something that would really be a central consideration in a green card application.

Might there be any unintended consequences of sort of resurfacing this vestigial rule? I don't know if you can call them unintended consequences if the administration is already aware that they exist and acknowledges them. Part of the 447 pages of this regulation are the administration trying to calculate what we call the chilling effect, the impact on people who aren't covered by the rule or who are looking at their U.S. citizen children

who are supposed to be eligible for all of these benefits because they're U.S. citizens and are going, well, I know that there's going to be some problem if I use public services, so I'm not going to use public services. There's already evidence of a drop off in food stamps and income assistance use from immigrant families, including green card holders who wouldn't be subject to the rule and unauthorized immigrants who are worried about getting benefits for their citizen children. It's really hard to communicate to an affected community who's already really worried about the Trump administration, often worried about getting deported, the exact details of if you're in this subgroup of this other group, it's OK for you to use public benefits.

It's also hard to communicate, no, just because this rule has been proposed, even if it is covering you, it wouldn't be a problem until it goes into effect. There's no penalty for people using benefits before the date of the final rule is effective. So there would be no reason for people to drop off the rules now. But that's exactly what some service providers are seeing. And it's really hard to get over that fear. Coming up, the Trump administration might be the first to really try and nail down what exactly a public charge is, but it's not the first to try and use the concept to keep immigrants out of the United States. This is Today Explained.

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Dara, you mentioned that this public charge concept goes back a ways. How far back? It goes back to 1882, which for immigration law is super far back. All the way back. Yeah, that's the period where, you know, you could get excluded from the U.S. if you were Chinese. So in addition to being Chinese or being a lunatic or a bunch of other terms that really it's – there are questions about how they would have been defined. The idea that the U.S. You're going to have to find your own way home or we'll just keep you on, you know, at the hospital on Ellis Island for a while. Right. A different era.

Yeah. So what, how was it defined back then, the idea of public charge? It was, it was not defined in the law. So it ended up kind of the interpretation that at the time, Immigration and Naturalization Service officers used was you had to have $25 cash money on you when you entered the country. If you didn't have $25, they would not be confident that you could find a place to stay, you know, find transportation to wherever you were hoping to get a job or start a farmstead or whatever. I don't know what that looks like for inflation, but $25 is for people who are often coming from relatively impoverished countries,

not insubstantial amount of money at the time. Sure. And that meant that a lot of people who were getting rejected were getting rejected on those grounds. Between 1890 and 1920, you had a majority of people who were getting turned away, were getting turned away on the likelihood that they would be public charges. So when does that start to change? So it starts to change around the middle of the 20th century,

when a lot of attitudes toward immigration kind of start to relax. And then in the second half of the 20th century, you have decisions within the immigration bureaucracy that it's kind of unfair to put somebody on a certain threshold of like, if you can't meet this bar, then we're going to call you a public charge. It should be a totality of the circumstances test. And that's kind of the origins of where you now have this very complicated multi-factor test the administration has proposed. It's supposed to be the weighing of an individual's situation, looking at their earning potential or their history, trying to predict whether they're going to be using benefits in future. Those got codified

in 1996 in the law that's called IRA-IRA, which did a lot to kind of restrict immigration and immigrants' privileges in the United States. This administration has taken a strong stand to stiffen the protection of our borders. And so that codified that the factors should be age, family status, education, financial status, and health status. Were there any immediate attempts right after that then to use this sort of idea of the public charge as a way to limit legal immigration? Yeah. In the wake of the 1996 law, there started being reports that anyone who had used public benefits of any kind was getting their application denied for that reason, which is kind of the opposite of what you're trying to do with this five-factor test, right? Yeah. So as a response to that, the Clinton administration put out, you know, this interim memo, basically,

to the officers that were looking through applications saying, when you're looking at whether someone is dependent on public benefits, it should be, are they getting cash benefits? And are those half or more of their income? Like, that's the bar for whether you're dependent is it literally has to be a majority of the money coming in. That never got finalized as a regulation.

They kind of fainted toward doing that, but they never really followed up. And then through the Bush and Obama administrations, they just kept relying on that field guidance to set the bar for policy, which created the opportunity for Trump when they came in and said, well, we think this is entirely too lenient to immigrants. There are lots of public benefits that they could be using that aren't getting counted here. They had the opportunity to codify something that hadn't been codified before and to change policy that way. So how does that fit into the larger picture of how the Trump administration is sort of limiting legal immigration right now? The Trump administration has stated pretty clearly that they don't particularly feel the need to be letting in a lot of family-based immigrants, a lot of people who are, you know, relatively lower skilled or lower educated and who are going to be coming in permanently.

You think that a lot of that is legislative, and it is. You know, the Congress has a lot more power to set legal immigration levels than it does, say, authority over the enforcement of unauthorized immigration. But there are still procedural things that the Trump administration can do, and it's been doing a lot of those through U.S. citizenship and immigration services. They have instituted new policies of if your application is rejected and that means that you're in the U.S. without status, they will like automatically refer your case to ICE, meaning you could be arrested and deported. They have restricted the use of kind of follow up requests for, saying we'll just deny it instead.

Between the kind of slowing down some of the process, which has also resulted in a total bottleneck for refugee applications, a lot of the reason that the Trump administration resettled about half of the refugees that it said it was going to resettle last year is because there's this massive security bottleneck with all of the extra vetting that they've proposed. The line between where is there a slowdown in the process and where are you just trying to reduce overall numbers is not super clear. And a lot of advocates and lawyers are worried that they're using slowdowns as a way to kind of just get fewer people coming in. Is there a lot of support in the country for just limiting people who might need to come in here who immediately will need benefits, who immediately will rely on the government for support? There are definitely a lot of people who are concerned about, you know, immigrants using welfare, but I don't see a lot of people say, we understand that people can't use public benefits for five years after they get a green card. And we understand that unauthorized immigrants can't get benefits at all. But we still think

that it's important to adjudicate based on this, right? A lot of it tends to be based in the idea that people are coming here for the purpose of getting welfare, which if – I'm not saying that it's implausible that people could do that, but they'd have to be playing a long game where they weren't getting any public support for five years. And they're like any number of other countries you could go to and sooner get benefits. Right. And it's also – I mean the U.S. doesn't just have a like write your application essay and tell us why you want to come to the U.S. doesn't just have a like, you know, write your application essay and tell us why you want to come to the U.S. These are people who are coming to live with their families or, you know, in some cases seeking asylum or refugee status through an acknowledged international process. Although those aren't people who would be affected by this rule. But, you know, when you're looking at the non-citizens who actually use public benefits, it's people who are, you know, coming for other purposes and who may not have perfect fits with the labor market. But, you know, the U.S. immigration system isn't just set up to deal with the U.S. as a labor market. It's set up to deal with the U.S. as a society that values things like family ties and humanitarian obligations. And, you know, the result of that is going to be that not everyone is going to generate tons and tons of income and never need to go on public assistance. Other other sort of vestigial immigration rules, policies that the Trump administration might try to, you know, resurface, bring back to life in the next few months, years? Man, I know a lot about this, and I have not seen some of this stuff coming.

But this particular regulation has kind of been in their sights for a while. This was something that was actually initially teased in a draft executive order that just never got signed. Oh, wow. In terms of stuff that's this big, it's not necessarily clear that anything this big is coming down the pipeline, but there really are so many small ways that they can kind of tighten the system that it's hard to know exactly what could be coming next.

Dara Lind is one of the hosts of the Weeds podcast at Vox. I'm Sean Ramos from This Is Today Explained. While it remains to be seen whether or not you can buy a Quip electric toothbrush at getquip.com slash explained in a minute, you can certainly do it in more than a minute and many before you have. Quip starts at just $25. And if you go to getquip.com slash explained right now, you'll get your first refill pack free with your Quip electric toothbrush. Again, that's G-E-T-Q-U-I-P.com slash explained.