Dec. 6, 2018 / 1:45 PM GMT

By Chris Fuchs

Unfair. Un-American. A weeding out process for immigrants.

That is how some Asian Americans and Pacific Islanders are characterizing a proposed federal regulation that could stop some from receiving green cards or adjusting their visa status if they receive certain forms of public assistance.

Monday marks the end of a 60-day public comment period for the Department of Homeland Security’s proposed rule, which would expand the definition of who is considered a “public charge,” a term meaning someone primarily dependent on the government for subsistence.

Under current policy, immigration officers can deny green cards if, among other things, an applicant has used cash aid like Temporary Assistance for Needy Families, also known as welfare, or Supplemental Security Income, which helps the elderly, blind and disabled who have little or no income.

But the Trump administration’s proposed rule change to decide who qualifies as a public charge goes even further — it wants to include past or current use of Medicaid, food stamps, Section 8 housing assistance, and a Medicare low-income subsidy for prescription drugs.

“The public charge, simply put, is a way to prevent immigrants from becoming legal permanent residents based on whether or not they use public support, even if temporarily,” said Dr. Tung Nguyen, a professor of medicine at the University of California, San Francisco and the former chair of the President’s Advisory Commission on Asian Americans and Pacific Islanders during the Obama administration.

Although the rule has not gone into effect, advocates say they’ve been fielding reports of immigrants with free or low-cost health coverage not visiting health care clinics, possibly a collateral consequence of rumors that using such tax-supported services could affect their chances of staying in the U.S.

“One way to measure how it’s affecting the community is what people are doing in anticipation of it, whether rightly or wrongly, because there is a lot of information out there, some of it is misinformation, a lot of it’s just fear,” Nguyen said.

To be sure, applicants will not be penalized for use of the newly included programs like Medicaid, housing assistance and food stamps before the final rule is published. They will also have 60 days after publication to drop programs they believe will affect their immigration case, according to the Immigrant Legal Resource Center, a national nonprofit legal advocacy group.

Sherry Hirota, CEO of California-based Asian Health Services, called the proposed regulation both “unfair” and “un-American.”

“This country is built on immigrants, and that to deny immigrants — legal immigrants, tax-paying immigrants — the ability to access services when they need it, even in a small amount, is really something that will be detrimental to our country,” Hirota said.

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Asked for comment on criticism about the regulation change, a spokesperson for U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security, referenced previous statements.

“This proposed rule will implement a law passed by Congress intended to promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers,” Department of Homeland Security Secretary Kirstjen Nielsen said in a statement.

USCIS said self-sufficiency has long been a principle of U.S. immigration law.

“As such, it is incumbent upon the U.S. government to evaluate applications in a manner consistent with federal law, and I believe the public charge regulation is a necessary step to achieving that goal,” said USCIS director Francis Cissna in a statement.

Nguyen, however, rejected the self-sufficiency argument.

“You don’t get yourself over here without being self-sufficient,” he said. “And so in general, immigrants are trying to do their best. We’re not saying that somehow it’s okay to go on public assistance as soon as you come into this country and stay on it forever. There are some people like that. But most immigrants come here not to go on public assistance — they come here to make a better life.”

The rule change could have a major impact on the Asian American and Pacific Islander community.

The nonprofit Migration Policy Institute estimated in June that roughly 3.8 million Asian Americans and Pacific Islanders who are naturalized citizens or non-citizens are in families receiving any of the four major public benefits.

Moreover, an MPI analysis of recent green card recipients showed that 41 percent of immigrants from Asian countries had two or more negative factors in the government’s proposed expanded test to determine who is a public charge.

Currently this test determines how likely an immigrant is to use certain public benefits in the future by looking at a “totality of the circumstances.” The factors, at a minimum, include age; health; family status; assets, resources and financial status; and education and skills, according to USCIS.

But the Trump administration’s expanded version — in addition to including a wider array of public benefits that also covers any state or local cash assistance programs — will consider more factors. A lack of English proficiency and past use of immigration fee waivers, for instance, would both weigh negatively on an applicant’s green card or visa petition.

The administration also wants to create an income test as part of the rule for those looking to become legal residents or legally enter the U.S.

That test would generally give high marks to people with household incomes of more than 250 percent of poverty, about $41,150 for two people and $62,750 for a family of four.

MPI said currently most prospective immigrants rarely fail the test, though their analysis found that the “proposed rule is vague on the relative importance immigration officers should give to different negative and positive factors.”

An American flag billows in the wind as immigrants stand and take the oath of allegiance to the United States during a naturalization ceremony at Liberty State Park, Sept. 15, 2017 in Jersey City, New Jersey.Drew Angerer / Getty Images file

Government assistance received by family members of an immigrant would not be considered in the public charge determination, according to the Immigrant Legal Resource Center. Moreover, certain groups like refugees and those who are seeking asylum, as well as most green-card holders, would be exempt.

But Asian Services In Action, a nonprofit in Ohio, said they’ve spoken to many clients who are reluctant to apply for assistance or are trying to stop receiving benefits as a result of the proposed regulation.

Scott Piepho, the group’s interim co-CEO, said in an email that they’ve also found it challenging to dispense easily understandable advice.

“Partly that’s because the rules are very complicated — a particular problem when the people negatively affected are English language learners,” Piepho said. “For example, we have to consider whether to describe monetized versus non-monetized benefits and the different rules for each, knowing that the client will only be more confused.”

Advocacy groups have launched a campaign that features information about the proposed rule change and encourages public comment submissions before the Dec. 10 deadline.

“We think that at least that will slow down this process by making sure that they have to take the time to answer these comments before they can implement it,” Nguyen said.

Advocates say they’re ready to take action if and when the regulation goes through. That includes creating a commission to monitor and make more transparent the effects of the rule, as well as trying to put a stop to it on political, legislative and legal fronts, according to Hirota.

“We’re not going to take this sitting down,” Nguyen said.

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