By Ted Hesson, POLITICO
The number of Mexicans refused immigrant visas to the U.S. because they might become dependent on government benefits skyrocketed under President Donald Trump, according to State Department data obtained by POLITICO.
Between Oct. 1 and July 29, the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics. That’s up from just seven denials for Mexican applicants in fiscal year 2016, the last full year under former President Barack Obama.
Public charge denials have increased in recent years as the State Department has issued fewer immigrant visas overall. Immigrant visas are the first step toward permanent residence in the U.S.
Consular officers approved roughly 534,000 immigrant visas in fiscal year 2018, down from 618,000 two years earlier.
Refused visa applicants are permitted to submit additional evidence to prove their economic self-sufficiency, but the statistics show that only 1,330 Mexican immigrants who applied in previous years reversed a public charge ruling during that period.
Applicants from various other countries — including India, Pakistan, Bangladesh, Haiti and the Dominican Republic — also saw dramatic increases in denials attributed to the risk that they would consume government benefits.
The State Department statistics offer a window into how the Homeland Security Department’s forthcoming public charge regulation could reshape the legal immigration system. Under the regulation, which is expected to be finalized in the coming days, DHS will adopt a more aggressive public charge analysis to evaluate applications for green cards and visa renewals.
Under the DHS rule, consideration would be given not only to whether an applicant was so poor that they were likely to receive certain U.S. government benefits, but also to whether the applicant received these benefits already.
“It is imposing a tougher standard for working-class people,” said Charles Wheeler, a director with the pro-migrant Catholic Legal Immigration Network.
Wheeler added that the regulation mirrors Trump’s efforts to pass legislation that would reduce legal immigration and favor skilled workers over immigrants with family connections. A Trump-backedSenate bill along those lines drew few supporters in 2017.
The State Department data suggests that Mexican immigrants could be one of the groups most affected by the public charge regulation. Trump has faced Democratic criticism in recent days over his anti-immigrant and anti-Mexican rhetoric following a mass shooting in El Paso that killed 22 people, including eight Mexican citizens. Authorities have investigated whether the suspect posted a racist manifesto online that warned of a “Hispanic invasion of Texas.” The language echoed Trump’s own repeated comments about an immigrant “invasion” at the southwest border.
The State Department visa denials were based on statutory language dating to 1882 — later reaffirmed in 1952 in the Red Scare-inspired McCarren-Walter Act —that says immigrants and visitors to the United States can be turned away if they’re likely to become a public charge after admission. The phrase “public charge” isn’t defined in the relevant statutes, but guidance issued in 1999 said it applied to people who were primarily dependent — or likely to become primarily dependent — on cash assistance or long-term, institutionalized care.
The Trump administration is expected to finalize a regulation in the coming days that would expand that definition.
Based on a proposed version released in October, the new standard would consider the use of food stamps, welfare, Medicaid, prescription drug subsidies or Section 8 housing vouchers to make a public charge determination. Immigrants could be denied green cards based on the use of those benefits, or if they were deemed likely to use them in the future.
DHS calculated at the time that roughly 382,000 people seeking to become lawful permanent residents could be subjected to a public charge review each year. The nonpartisan Migration Policy Institute estimated that an additional 559,000 people annually could be scrutinized on public charge grounds when applying for immigrant visas from consulates abroad.
People with temporary visas could also be denied for possible benefit use. DHS said in its draft regulation that roughly 518,000 foreigners with non-immigrant visas seeking to extend their stay each year would be required to demonstrate that they haven’t received benefits.
Pro-migrant advocates argue the measure’s reach will be broader, partly because of a chilling effect on immigrant families.
Even while the DHS public charge regulation remained under development, the State Department forged ahead last year with related changes to its public charge standard. In January 2018, the department revised its Foreign Affairs Manual — which is known to consular officers as the “FAM” — to toughen the guidelines around what triggers a public charge determination for immigrant visa applicants overseas.
Specifically, the department reduced the weight of an affidavit of support that many U.S. sponsors must provide to demonstrate that an applicant will not become a taxpayer burden. The new guidance stated that the affidavit should be considered only one factor in a broader test to determine whether a person might use cash assistance or require long-term, institutionalized care. An affidavit of support previously would have been sufficient to override most public charge determinations, according to immigration lawyers and advocates. But the changes gave a “green light” to State Department officials with more restrictionist views, according to David Strashnoy, a former State Department consular officer.
“It basically opens the door for all sorts of egregious decision-making,” he said. Following the revision, the number of visa denials based on public charge grounds spiked. The State Department rejected 12,973 immigrant visa applications over public charge concerns in fiscal 2018, according to the latest statistics. The department turned down just 3,209 applications on those grounds in fiscal 2017 and a mere 1,033 in fiscal 2016.
The 2018 changes to the Foreign Affairs Manual also provided more detailed instructions for how consular officers should consider an applicant’s age, health, family status, financial resources, education, and skills when making a public charge determination. Immigration lawyers and advocates contend that changes increased the burden on the applicant.
In addition, the department added new language to the manual tightening standards for applicants to the diversity visa lottery program. The program — a frequent Trump target — offers 50,000 visas annually to immigrants from countries with low levels of immigration to the U.S.
The new provision said consular officers “should review the totality of the [diversity visa] applicant’s circumstances … to determine his ability to become or remain self-sufficient in the United States.”
The statistics obtained by POLITICO include per-country breakdowns of denials that previously were not available to the public. The dataset varies slightly from public charge denials posted in the State Department’s annual visa report. The discrepancy is due to a new department methodology that subtracts any immigrants who overcame a public charge determination in that fiscal year from the annual total.
The city of Baltimore filed a lawsuit in November 2018 that argued the State Department’s foreign affairs manual changes had discouraged immigrants from accessing public benefits to which they were entitled. The city claimed the change discriminated “on the basis of race, national origin, nationality, income, or receipt of public benefits, and was motivated by animus and a desire to effect such discrimination.”
Several immigration lawyers told POLITICO that they had dealt with Mexican clients — some of them long-term U.S. residents but undocumented immigrants — stranded in Mexico because they were denied immigrant visas on public charge grounds.
While Mexico saw the steepest rise in public charge rejections, the number of public charge denials also shot up for visa applications from several other countries. The State Department denied 1,254 Indian immigrant visa applications in fiscal 2018, a sharp increase over the 268 denials the year before. No Indian applicants were denied on public charge grounds in fiscal 2016, according to the data obtained by POLITICO.
The trend appeared to cool in the first 10 months of fiscal 2019, with only 129 public charge refusals to Indian applicants. Applicants from Bangladesh and Pakistan experienced a similar increase in denials.
The State Department refused 1,502 Bangladeshi immigrant visa applicants in fiscal 2018. Consular statistics show no Bangladeshi denials in fiscal 2016. The department turned away 1,246 Pakistani immigrant visa applicants that year, an increase over just two denials in fiscal 2016.
Applicants from Haiti and the Dominic Republic, countries that sit side-by-side on the Caribbean island of Hispaniola, also saw public charge rejections shoot up. The State Department turned away 1,109 Haitian immigrant visa applicants in fiscal 2018, after no denials two years earlier.
Applicants from the Dominic Republic saw 1,012 immigrant visa denials through the first 10 months of fiscal 2019, up from a single rejection in fiscal 2016. Some countries experienced little change. Only three Canadian immigrant visa applicants were refused on public charge grounds in fiscal 2018. A single applicant from that country was denied in fiscal 2016.