Here are two complicated parts of immigration law which impose, in different ways, constraints on what federal public assistance programs that certain non-citizen foreign-born persons have access to. In all my readings on these standards, it became evident to me that while these standards are necessary, they are based on a core fiction: that to live in the United States, at the lowest quarter of household income, one can survive without at some time using public assistance programs.

Many U.S. households use public assistance programs proscribed for certain foreign-born persons intermittently during financial emergencies. Even more damning is the estimate by the Manhattan institute that the average resident’s lifetime impact on the federal budget is a negative $250,000.  Any legal standards on access to public assistance floats in the ether of unreality, albeit necessary some standard might be.

Let’s start with the public charge determination.  The public charge determination affects immigrants seeking green cards by evaluating their likelihood of becoming primarily dependent on government assistance. The Immigration and Nationality Act Section 212(a)(4) establishes the public charge ground of inadmissibility to green card status if an applicant who is likely to become a public charge.  I have described how the rule works here and here and addressed the Trump administration’s change to the rule, which the Biden administration rolled back.

The public benefit rule sets rules for accessing federal public assistance programs for foreigners residing here – all foreign-born persons who are not citizens, and thus even persons in their first five years with a green card are affected. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) established restrictions on noncitizen eligibility for federal public benefits.  These rules are extremely complicated, applying differently according to the person’s immigration status.

The Migration Policy Institute issued a primer on the public benefit rule. It writes, “The policy decisions made over the years leave a confusing patchwork of eligibility policies that make many groups of noncitizens eligible for some benefits but not others, while others are excluded completely.”  The arbitrariness of the rule (inevitable given its reach) affects persons whether or not they are legally eligible to work and make a living.  States have their own public assistance standards – California and Illinois are noteworthy cases.

 

The Migration Policy Institute’s primer does not describe how affected persons do actually get medical care and other necessary benefits – that would require a close inspection of what is happening to millions of people on a daily basis. For instance, federally-funded community health centers routinely offer free medical care to persons regardless of legal status.