Illegals skate on ‘public charge’ rule in ‘Gang of 8’ bill

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The “Gang of Eight” immigration bill would initially exempt undocumented immigrants from an existing law that prohibits legal entry or status adjustments to any immigrant who is at risk of becoming a public charge, or primarily reliant on government benefits for survival.

“Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible,” reads section 212(a)(4) of the Immigration and Nationality Act, commonly known as the public charge statute.

However, the immigration bill crafted over several months by a bipartisan group of eight senators and unveiled last week explicitly prevents this section from applying to undocumented immigrants initially seeking provisional legal status.

Section 245B(b)(3) of the new immigration bill reads:

(A) IN GENERAL.—Except as provided in subparagraph (B), an alien is

ineligible for registered provisional immigrant status if the

Secretary determines that the alien—

”(i) has a conviction for—

”(III) 3 or more misdemeanor offenses (other than minor traffic

offenses or State or local offenses for which an essential element was

the alien’s immigration status or a violation of this Act) if the

alien was convicted on different dates for each of the 3 offenses;

”(ii) is admissible under section 212(a), except that in determining

an alien’s admissibility—

”(I) paragraphs (4), (5), (7), and (9)(B) of section 212(a) shall not apply;

Paragraph (4) is the public charge provision.

This does not mean the bill would put out a welcome mat for undocumented immigrants to go on welfare. Immigrants granted provisional legal status are ineligible for public benefits under this legislation, and public charge evaluations do apply later on their path to legal permanent status.

Nevertheless, with the potential cost of legalizing 11 million undocumented immigrants a concern among opponents of the immigration reform legislation, the elimination of the public charge statute at the beginning of the process is a red flag to some critics.

“America has a generous social safety net that cannot possibly support everyone in the world who might want or need to rely on it. Once someone enters the country — legally or illegally — there are myriad ways they can end up becoming dependent upon public assistance (even if they’re not eligible for it),” a Senate Budget Committee aide warned in an email to The Daily Caller. “Therefore, federal law is supposed to prevent the admission of anyone who is likely to end up in such a situation.”

This aide continued: “By removing this pre-screening standard for illegal immigrants, the Gang’s proposal will expose taxpayers to extraordinary risks. Amnestied illegal immigrants will have immediate access to state and local benefits and access to federal benefits most likely through their family members (with no requirement to earn a living necessary to support their families without federal help). Illegal immigrants’ personal access to federal benefits is delayed only temporarily, and for some illegal immigrants (of any age) citizenship will be granted in as little as five years. Those on this expedited path will also be able to legally bring relatives that could draw a variety of public benefits. Low-skill chain migration costs could be astronomical — everything from public education benefits to subsidized health care.”

A Senate GOP aide working on immigration reform, however, explained that the reforms are practical.

“To require them to provide work history prior to receiving temporary status means that they would have to point to an employer that hired them illegally, which raises obvious legal and practical problems,” the aide explained in an email to TheDC. “Therefore, the requirement for proof is when they renew their temporary status (100% of poverty level) and when they apply for green cards (125% of poverty level).”

“This provides the check at various steps to ensure that  they cannot move forward in the process towards citizenship if they do not meet the public charge requirements. And, obviously, they cannot receive Federal benefits while they are in temporary status,” the aide added.

While the public charge statute will not apply when undocumented immigrants initially seek their provisional legal status, as the Senate GOP aide noted, undocumented immigrants granted provisional legal status must re-register and extend their provision status after 6 years.

During that process, provisional immigrants must go through the public charge determination or “demonstrate average income or resources that are not less than 100 percent of the Federal poverty level throughout the period of admission as a registered provisional immigrant,” the legislation reads. They also must offer proof of regular employment.

Further, when registered provisional immigrants apply for permanent legal status they must again be determined to be “not likely to become a public charge” or be able to “demonstrate average income or resources that are not less than 125 percent of the Federal poverty level throughout the period of admission as a registered provisional immigrant,” as well as satisfy an employment requirement.

To be sure, the public charge finding — which four GOP Senators decried last year in letters to the State Department and the Department of Homeland Security — does not take into account potential use of the vast majority of welfare programs in America and largely relies on potential use of Temporary Assistance for Needy Families (TANF) and Supplemental Security Income (SSI).

“[U]nder your interpretation, an able-bodied immigrant of working age could receive the bulk of his or her income in the form of federal welfare and still not be deemed a ‘public charge,'” the senators wrote to DHS and the State Department last August.

As TheDC has reported, the enforcement of the public charge rule has been lax in recent years, leaving questions about future enforcement of the statute, especially as it pertains to the currently undocumented immigrants residing in the country already.

“[G]iven DHS’ record on public charge enforcement, it also defies the limits of credulity to believe those granted legal status, or those here illegally who don’t even bother to apply for it, will be removed if they become public charges,” the Senate budget aide added. “Plus, there are all sorts of structural flaws in the way the legislation is structured that will result in a large net cost to taxpayers – for instance, an illegal immigrant earning around the poverty line with a large number of dependents (including elderly dependents) will become eligible for a significant amount of federal assistance for their household even if they are steadily employed.”

Still one Republican Gang of Eight member, Florida Sen. Marco Rubio, has been adamant that undocumented immigrants will not be eligible for benefits and that the requirements will be stringent. Indeed, the legislation prohibits benefit use during newly legalized immigrants’ period of provisional legal status.

Among the top critics of the potential for immigration reform to be a strain on the welfare system has been Heritage Foundation president Jim DeMint.

“Some may say we can solve this fiscal problem by granting amnesty without any government benefits. We all know that will never happen. As soon as any of the nearly 11 million unauthorized immigrants are given legal status, the political fight will turn to speeding their transition to citizenship and promises of a full array of federal benefits,” DeMint wrote in an op-ed last week co-authored with Heritage’s vice president of domestic policy Derrick Morgan.

“Delaying eligibility for federal benefits to newly legalized immigrants merely puts off the day of reckoning. The truly enormous costs come when unauthorized immigrants start collecting retirement benefits. Social Security, Medicare, food stamps and other entitlement programs already impose huge, unfunded liabilities on taxpayers; adding more recipients only makes the fiscal hole we find ourselves in much deeper,” DeMint and Morgan added.

Heritage’s senior fellow Robert Rector is in the midst of calculating a report on the cost of mass legalization. The report is expected to be an updated version of his 2007 report on the cost of low-skill immigration which impacted the debate on immigration reform that year. In recent weeks pro-immigration reform advocates have attacked Rector’s methodology, and called on Heritage to use dynamic rather than static scoring.

Rubio last week penned a letter to David Addington, the Heritage Foundation’s vice president of research, encouraging dynamic scoring and stressing that immigration reform will be beneficial to the economy.

“As I consider the potential impact of immigration reform, I am keenly aware that there will be budgetary impacts when illegal immigrants begin to access citizenship beginning 13 years after immigration reform is enacted,” Rubio wrote in his letter Thursday.

“However, I also believe that immigration reform that shifts the mix of legal immigration away from family-based toward highly-skilled/merit-based combined with a (sic) bringing millions of undocumented aliens out of the underground economy will improve the labor market, increase entrepreneurship and create jobs, leading to a net increase in economic growth and reducing the deficit.”

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