Unpacking The White House’s Most Recent Attempt To Limit Legal Immigration

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Earlier today, Monday August 12, the Trump administration announced a new rule which would significantly curb legal immigration. This comes only 10 days after a terrorist gunned down 22 people in an El Paso Wal-Mart in response to what he considered an “invasion” of his country and less than a week after Immigration and Customs Enforcement conducted a devastating raid on Mississippi poultry plants, taking into custody 680 undocumented individuals, leaving their children stranded and alone.

While experts acknowledge that this rule change has been a long time in the making (the administration tried to push it through Congress via the RAISE Act in 2017, and preliminary documents for the rule change leaked last October), the timing is nonetheless brutal.

Since he first announced his candidacy for president in 2015, Donald Trump has had an almost singular focus on immigration and has painted it in a negative light, to say the least — with a clear focus on poor people of color. He started his campaign by calling Mexican immigrants “rapists” and has promised to build a wall and make Mexico pay for it; he has also called undocumented individuals and asylum seekers at the southern border an “invasion.” And though he has spent most of his time harping on undocumented workers at the southern border in an August 2016 speech, he did also promise to hit legal immigration as well — telling an audience in Phoenix, “We will reform legal immigration to serve the best interests of America and its workers, the forgotten people. Workers. We’re going to take care of our workers.”

So what exactly is the Trump administration trying to do to legal immigration? We break it down.

What is the Trump administration proposing?

Acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli announced this morning that USCIS (which is part of the Department of Homeland Security) is releasing a rule defining what a “public charge” is in the Immigration and Nationality Act (INA) — the chief immigration law of the land. The phrase, in general, means anyone who relies on public resources. So Trump, by broadening this definition, is able to shape who we accept as immigrants in a significant way.

There are exemptions, including for asylum seekers and refugees. Per the order, “The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility (such as asylees, refugees, or other vulnerable populations listed as exempt in this final rule).”

The order will also allow the DHS to “consider the receipt of public benefits, as defined in this rule, by certain members of the U.S. Armed Forces and their families; certain international adoptees; and receipt of Medicaid in certain contexts, especially by aliens under the age of 21, pregnant women (and women for up to 60 days after giving birth), and for certain services funded by Medicaid under the Individuals with Disabilities Education Act (IDEA) or in a school setting.” In other words: special attention (and possibly, exemptions) will be granted to vulnerable individuals and service members and their families.

That said, paired with the Trump administration’s recent executive order which “reject[s] any asylum seekers who had passed through a third country (trying to prevent Central Americans coming up through Mexico from applying for asylum)” the outlook for the most vulnerable people trying to come to the U.S. is looking bleak, and according to the DHS, the rule is expected to impact at least 383,000 people.

What’s the big deal? Aren’t they just changing one small definition in a pre-existing rule?

The big deal is this: The INA already includes language stating that visa and green card applicants may not move to the U.S. solely in order to benefit from government assistance. The language in the new rule is much harsher. According to the proposed Trump rule, any applicant deemed at risk for needing any government assistance can be denied. And while assistance formerly meant cash benefits, such as food stamps, the new rule deems that officials can take into account a visa or green card applicant’s family status and financial resources.

According to Cuccinelli’s announcement, a public charge will be “defined as an individual who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period. For instance, receipt of two different benefits in one month counts as two months.”

Per CNN, “The rule means many green card and visa applicants could be turned down if they have low incomes or little education, and have used benefits such as most forms of Medicaid, food stamps, and housing vouchers, because they’d be deemed more likely to need government assistance in the future.”

In short, this will make it easier for the Trump administration to discriminate against applicants from poor countries. Fewer immigrants will be allowed to come to the U.S. legally, and fewer visa-holders will be granted permanent residency. The ones who are granted legal status will be wealthy. In other words: this small language change is targeting low-income people in a big way.

According to Alvaro Huerta, a staff attorney for the National Immigration Law Center who specializes in civil rights for immigrants, “It’s very clear that this rule is going to have a disproportionate effect on Latinos and other people of color.”

The Trump administration is well aware of this fact. The order itself states, “DHS also acknowledges that the regulation may result in fewer numbers of nonimmigrants and immigrants being admitted to the United States or granted adjustment of status to that of a lawful permanent resident.”

How would this affect visa and green card holders currently in the country?

Huerta says that current green card holders wouldn’t be affected by the rule, unless they left the country for more than 180 days. However, visa holders — either those with non-immigrant visas trying to change to immigrant visas or those trying to adjust their status to permanent residency (a.k.a. green card holders) — will be affected by this rule.

When would the order go into effect?

The order is set to go into effect 60 days from today’s announcement, which means that, if it holds up, the rule will officially be in place by October 12.

Does this have a chance of standing up in court?

Huerta says that the rule does not hold water. The administration, he says, has “gone beyond their legal authority. They’re going around Congress. The president was trying to get similar changes legislatively through the RAISE Act earlier, and he was unable to do so, and he was trying to make an end-run around Congress.”

This is a big no-no because Congress is in charge of immigration law in this country, as outlined by the Constitution. The INA is the primary immigration law, with other, smaller statutes in place, and by trying to change the language in the INA, the Trump administration is overreaching.

“Congress is the one that can change the rules for how a person can be admitted into the country,” Huerta says. And they rejected the very rule that the Trump administration announced today. Which means that there will “definitely be a court case” from NILC and others. Huerta is confident that a judge will find the Trump administration in the wrong.

That said, in a way, the rule is already having its intended effect: it’s already causing panic among immigrant visa holders who are planning on applying for permanent residency. (It also comes on the heels of a fresh new spate of Facebook ads for the Trump campaign which use racist language about undocumented individuals to create panic about a supposed border crisis.)

“People are dropping their public benefits program,” Huerta says. “They don’t want to take the risk. There’s a lot of confusion, and that’s part of what the administration is trying to do. They achieve quite a lot just by putting this proposed rule out.”

So if it doesn’t hold up in court, what’s the goal of the new rule?

“They want to change the face of our family immigration system,” Huerta says. “They want to exclude low-income people of color.”