Five Things You Should Know About the Proposed Executive Order on Public Benefits

Five Things You Should Know About the Draft Executive Order on Public Benefits

By Gabrielle Lessard, NILC senior policy attorney
FEBRUARY 16, 2017

A draft executive order titled “Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility” has appeared several times in the news media. If signed by the president, the draft order would open a new front in the administration’s campaign against immigrants—an attack on lawfully present immigrants and their families.

The draft order distorts existing law and ignores longstanding policy. It represents a back-door attempt to bypass Congress in an effort to replace family-based immigration policies with a system that uses financial resources as the primary metric for determining who can enter and settle in the U.S.

If signed, the order would:

Dramatically increase the role of income and resources in determining which immigrants are able to enter and remain in the U.S.

Before they are given permission to enter the U.S. or when they apply for lawful permanent residence, immigrants are assessed to determine whether they are likely to become financially dependent on the government. This “public charge” assessment looks at various factors that determine peoples’ ability to support themselves, including age, health, education and family status, as well as whether they have a sponsor who can help support them. Longstanding policy allows the officials conducting the assessment to consider only two kinds of public benefits, cash assistance for income maintenance and institutionalization for long-term care at government expense.

The draft executive order would expand the scope of the public charge inquiry to include all “public benefits for which eligibility or amount is determined in any way on the basis of income, resources, or financial need.” Such a sweeping expansion of the public charge test could prevent people from joining U.S.-based family members, simply because their financial resources were not sufficient to show they were unlikely to use critical family supports like Medicaid or nutrition assistance.

Frustrate the objectives of public programs intended to serve the public good and the community interest of improving general health and nutrition, promoting education, and assisting working low-income families in the process of becoming self-sufficient.

Public benefits play a vital role in ensuring that people are able to weather economic setbacks, see a doctor when they are sick, and keep their children from going hungry. The public purposes of these programs are defeated when eligible people are afraid to use them, yet deterring participation in public programs would be an effect, if not a purpose, of the draft executive order.

Concerns about the immigration consequences of using public benefits are already widespread and have been amplified by the recent surge in immigration enforcement. In addition to increasing the possibility that a person could be deemed to be a public charge, the draft order may amplify the consequences.

Under longstanding policy and legal precedent, deportation on public charge grounds is extremely rare. The draft order threatens to subject people to deportation if they used benefits during their first five years in the U.S. and were unable to show that the need for the benefits arose after they were in the country. If the order is signed, more immigrants undoubtedly will choose to go without needed benefits for which they are eligible rather than risk separation from their homes and families. Indeed, we are already hearing reports of people asking to be disenrolled from Medicaid and the Supplemental Nutrition Assistance Program (SNAP).

Reduce family-based immigration by discouraging people from becoming sponsors or cosponsors of immigrants.

When people immigrate to the U.S. to join family members, the family member who petitions for them is required to act as their sponsor and execute an affidavit of support on their behalf. When the family’s resources are insufficient to meet the requirements for the affidavit of support, another person can execute an affidavit of support as a joint sponsor.

In signing an affidavit of support, sponsors agree to reimburse the government for the costs of certain public benefits used by their sponsored immigrant: Supplemental Security Income (SSI), SNAP (formerly known as “food stamps”), Temporary Assistance for Needy Families (TANF), nonemergency Medicaid, and the Children’s Health Insurance Program (CHIP).

The executive order would expand the benefits for which a sponsor is potentially liable to include all “public benefits for which eligibility or amount is determined in any way on the basis of income, resources, or financial need.” It would further require federal agencies to refer the enforcement of sponsor liability to the U.S. attorney general or the courts. The vast expansion of sponsors’ obligations, coupled with the threat of legal action, will put families’ economic interests in conflict with their desire to unite with their relatives, deterring family members and others from acting as sponsors.

Eliminate Child Tax Credit (CTC) eligibility for many families.

The CTC is a refundable tax credit that helps to offset some costs of raising children for low income working families. The credit plays an important role in reducing poverty among families with children. Many families who receive the credit have very low incomes—over 60 percent earn less than $25,000 a year. Under current policy, the CTC is available to all households that include children and that file taxes. The executive order would limit the availability of the CTC to households in which both the children and the tax filer have Social Security numbers, with the intention of limiting its availability to immigrant parents. Any reduction in access to the CTC will harm children, the population the credit is intended to assist.

Deny workers credit for income earned and Social Security taxes paid.

Social Security taxes are withheld from the paychecks of all U.S. workers, including those who work without employment authorization. Workers must earn credit for approximately 40 quarters (10 years) to become eligible to receive Social Security benefits upon retirement. Under current policy, people who are issued a valid Social Security number and who secure employment authorization can get credit for the Social Security taxes they paid prior to obtaining work authorization. The executive order would prohibit workers from obtaining credit for taxes they paid prior to obtaining employment authorization

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THE DRAFT EXECUTIVE ORDER could be amended before being signed, or it may never become effective. If it is implemented, multiple provisions of the order would have to undergo a lengthy notice-and-comment rulemaking process before becoming effective. Whatever its fate, the draft order sends a clear message that the administration does not welcome low-income immigrant families, a message that has already had an adverse effect on the health and wellbeing of our communities.