Exclusive: Trump’s draft plan to punish legal immigrants for sending US-born kids to Head Start

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The Trump administration is working on new rules that would allow the government to keep immigrants from settling in the US, or even keep them from extending their stays, if their families had used a broad swath of local, state, or federal social services to which they’re legally entitled — even enrolling their US-born children in Head Start or the Children’s Health Insurance Program (CHIP).

A draft of the new regulation, posted first by Vox, can be found at the bottom of this article or on DocumentCloud. (If the DocumentCloud link does not work for you, here is a direct link to the PDF.) Reuters originally reported on the existence of the draft regulation Thursday.

The rule wouldn’t make it illegal for immigrants to use public services that are open to everyone regardless of immigration status, or that are available to their US-born children. But it would make it possible for the government to deny their applications for a new type of visa, or a green card, if they’d used those services. In other words, it could force them to choose between taking advantage of available social services, and their family’s future ability to stay in the United States permanently.

If approved and finalized, the regulation would vastly expand the federal government’s power to bar an immigrant from entering the United States, obtaining a new visa, or becoming a lawful permanent resident (green-card holder) by labeling the immigrant a likely “public charge.”

Right now, the government can only consider use of cash benefits, like Temporary Assistance for Needy Families, in “public charge” determinations. The Trump administration wants to give officials the power to look at use of other benefits as well, including:

Using any of these for more than six months in the last two years (before applying for a different visa or a green card) would be considered a “heavily weighted” strike against the immigrant. (That strike could be canceled out if an immigrant was making more than 250 percent of the federal poverty level when applying for the new visa or green card — which, for a family of 4 in 2017, was $60,750.)

Immigrants wouldn’t be punished for anything they have already done as of this moment. They’d only be at risk for any services used after the regulation officially goes into effect — which would take several more months (and include a chance for the public to comment on the proposal).

Government officials already have a lot of discretion in who gets labeled a public charge, and use of public services is supposed to be only one factor among many. But the Trump administration’s desire to expand it so radically indicates that they do, in fact, plan to reject visa or green card applications based on use of non-cash services and health insurance subsidies.

Immigrants can get out of being considered a “public charge” if they have someone willing to sign an “affidavit of support” promising to support them at 125 percent of the federal poverty level. But the government doesn’t have to agree to admit someone, or give them a green card, based on that affidavit.

The draft would allow an immigrant one other way to get out of a “public charge” bar: paying at least $10,000 in bond. But the Department of Homeland Security would have the power to decide whether to allow an immigrant to post bond. And if the immigrant used any public benefits in the five years after posting the bond, they’d forfeit the whole $10,000.

Not every immigrant has to pass the “public charge” test — refugees and asylees, for example, are exempt both when they come to the US and if they apply for green cards after that. But most immigrants who get green cards do have to pass. According to calculations from Reuters, nearly 383,000 of the immigrants who got green cards in 2016 were subject to the test.

The version Vox obtained, dated February 6, was circulated to Department of Homeland Security employees. The document as obtained by Vox includes pages 1-2 of the document, and the regulatory text (starting at page 228); it does not include the 225-page preamble originally included with the draft.

It has not yet been approved by L. Francis Cissna, the director of US Citizenship and Immigration Services (which regulates legal immigration to the United States). Sources believe that the regulation is being drafted quickly and could be sent to the Office of Management and Budget for validation as soon as March.

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