Seniors at Greater Risk Under Trump Proposal to Restrict Immigration on Public Charge Grounds

On October 10, the U.S. Department of Homeland Security issued proposed changes to the “public charge” immigration rule that, according to advocates, will disproportionately affect older adults if enacted into law. Aimed at keeping more low-income immigrants from entering the country, the changes are predicted by public interest groups such as Justice in Aging and the Center for Law and Social Policy (CLASP) to have damaging repercussions for seniors, people living with disabilities and serious illness, children, and millions of others living in the U.S. Even at this early stage in the process, some advocacy groups are seeing individuals eschew benefits to protect the immigration status of family members.

What Is the “Public Charge” Rule?  

The “public charge” test is part of U.S. immigration law used for decades to determine who is likely to rely on government benefits for their primary support. When someone applies to enter the U.S., applies to become a Lawful Permanent Resident (LPR or Green Card holder), or re-enters the U.S. as an LPR after 180 consecutive days away, U.S. immigration officials look at the “totality of circumstances” to determine who is likely to be a public charge and may deny admission or permanent residency on that basis.   

Under current rules, immigration officials consider whether the person will require cash assistance in the form of Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), state general cash assistance programs, and/or Medicaid long-term care.  The other circumstances officials then consider are the person’s age, health, family status, financial status, education and skills, and whether she has an affidavit of support. Typically, a sponsor’s affidavit of support will overcome a finding of public charge.

Proposed Changes

The proposed changes to the immigration rules redefine what it means to be a public charge. They lower the standard to bar those individuals who might become a public charge at any time and expand the list of public benefits considered to include those that many seniors rely on to meet their basic needs.  Added to the list are Medicaid, including HCBS; Medicare savings programs; the Supplemental Nutrition Assistance Program (SNAP or food stamps); Medicare Part D Low Income Subsidy (Extra Help); and housing assistance (public housing and Section 8).  Also new are negative and positive factors that are heavily weighted in the Totality of Circumstances analysis, factors that clearly handicap older people.

Negative factors under the the Totality of Circumstances analysis are:

  • Too old: aged 62 or older; or too young, 17 or younger
  • Limited English proficiency
  • Health condition without private insurance or ability to pay for care
  • Receipt of public benefits including Medicaid and Medicare Extra Help

Positive factors are:

  • Individual or household income at or above 250 percent of the federal poverty limit
  • Age 18 to 60
  • Perfect health

Of additional concern is the expansive chilling effect the rule will have. Citing the Fiscal Policy Institute, the Massachusetts Budget and Policy Center (MassBudget) estimates that more than 23 million people nationwide might be discouraged from participating in basic needs programs by this proposed rule. In its recent webinar on the proposed rules, Justice in Aging cited confusion over the rule’s complexity and its discretionary nature as deterring even legal immigrants and citizens from seeking public benefits for which they are eligible. 

Statistics provided by Justice in Aging demonstrate why seniors will be disproportionately affected by the proposed rule. The number of immigrant adults aged 65 and over living in the U.S. continues to grow, with more than 1.1 million noncitizens aged 62 and over living in low-income households. If the new rule is enacted as proposed, Justice in Aging believes it would be “nearly impossible” for those aged 62 and older to pass the public charge test. Moreover, many seniors living in immigrant families may be afraid to seek the services they need and people with disabilities “will face insurmountable barriers.” The ripple effect may also threaten the well-being of an estimated one million immigrants who provide care to the elderly and people with disabilities.

What Can Advocates Do?  

The comment period for the new rule ends on December 10, 2018.  Justice in Aging, CLASP, and other organizations are urging organizations and individuals to submit comments opposing the proposed rule. To find out more about submitting comments, follow the links below or contact Justice in Aging.

To see the proposed rule, click on the following link:

To see Justice in Aging’s fact sheet on the proposed rule change, click here.

For Justice in Aging’s template for comments, click here.

To get help submitting a comment in opposition to the U.S. Department of Homeland Security’s proposed changes, click here and here.

To find out more about Justice in Aging, click here.

To find out more about CLASP, click here.