Trump Proposal Would Penalize Legal Immigrants for Getting Tax Credit Refunds

Under a new leaked version of the rule reportedly being considered, use of government benefits -- with few exceptions -- could hurt an immigrant's chances of becoming a permanent legal resident.
by | March 29, 2018
(AP/Mark Duncan)

Immigrants who are in the United States legally could be denied green cards if they receive refunds from income tax credits, according to a leaked draft rule obtained and published by The Washington Post on Wednesday.

The latest proposal reportedly being considered by the Department of Homeland Security (DHS) has at least several changes from the previous leaked version.

Earlier this year, Reuters and Vox were the first to leak news of the potential rule. If officially introduced and enacted, it would make it easier to label an immigrant who is in the U.S. lawfully as a “public charge,” which can be used as a reason to deny them permanent legal residence.

Aside from explicitly listing use of the federal Earned Income Tax Credit as a public charge, the nonpartisan Migration Policy Institute says the draft would also allow the federal government to look back 36 months from the time of application for any use of government benefits -- up from 24 months in the last draft. And participation in Head Start is no longer penalized, as it was under the previous proposal.

Currently, the federal government can consider someone a public charge if -- among other factors -- they receive long-term care from a government institution or use the family cash welfare program formally known as Temporary Assistance for Needy Families (TANF).

For almost 20 years, the federal government has narrowly defined a public charge as someone who is likely to become “primarily dependent” on those two categories of government assistance. But the latest proposal expands the definition to include any “person who uses or receives one or more benefits.”

The change is “a substantial departure from the traditional notion of a public charge,” says Gabrielle Lessard, a senior policy attorney at the National Immigration Law Center.

Under the latest proposal, legal immigrants could be considered a public charge if they benefit from an expanded list of government programs, including:

  • Federal Earned Income Tax Credit and "similar refundable tax credits"
  • State or local cash benefit programs
  • Medicaid
  • Government subsidies for health insurance
  • Children’s Health Insurance Program (CHIP)
  • Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps
  • Special Supplemental Nutrition Program for Women, Infants and Children (WIC)
  • Federal housing assistance, including rental vouchers
  • The Low Income Home Energy Assistance Program (LIHEAP)

More than half of states have their own state Earned Income Tax Credit, which matches a percentage of the federal credit to encourage more low-income workers to use it. Now those state incentive programs could ultimately penalize immigrant families looking to stay in the U.S.

The latest draft also warns that use of "any other public benefit" would be a heavily weighed negative factor in deciding whether to approve an immigrant's visa or green-card application, except when the draft clearly excludes a benefit from consideration. Among the exempt benefits would be unemployment insurance benefits, school meals and emergency or disaster relief. In the previous draft, foster care and subsidized child care were also excluded -- but not in the most recent one.

The rule would only apply to use of public benefits after -- and if -- the policy goes into effect.

Still, in early March, Governing reported on how the draft rule is already discouraging some immigrant families from taking advantage of health and early childhood education benefits for which they are legally eligible.

"Our biggest concern is that kids are going to go hungry and they’re going to be losing access to basic health care," Wendy Cervantes, a senior policy analyst at the Center for Law and Social Policy, told Governing earlier this month. "What I’m really afraid we’re going to see is the creation of a second class of citizen growing up in the U.S. that are going to be a quarter of our future workforce, and what that will mean for our collective future."

The proposal is largely consistent with the Trump administration’s recent calls for tighter limits on public benefits and legal immigration.

“I think the deep logic of this rule is to alter immigration flows into the United States and to be a step towards the kind of de facto merit-based legal immigration that the administration is interested in,” Michael Fix, a senior fellow at the nonpartisan Migration Policy Institute, told Governing earlier this month. "And it's another lock on the door to public benefits."

The rule is reportedly being considered for publication sometime this year. It would still need to be vetted by the Office of Management and Budget and go through a public comment period.

It affects applications for permanent legal status, but not for citizenship, which is a different process. If someone's green card application is denied, it stops the process of becoming a legal permanent resident, and in some rare circumstances, it could even lead to deportation.

*This has been updated to clarify that the previous draft proposal, not current law, would allow the federal government to look back 24 months from the time of application for any use of government benefits.