The Trump administration has been making news by suggesting that enforcement of the immigration law’s public charge provision needs to be tighter enforced. The Washington Post reported on January 31, “The Trump administration is considering a plan to weed out would-be immigrants who are likely to require public assistance, as well as to deport — when possible — immigrants already living in the United States who depend on taxpayer help…”

It has long been a tenet of immigration law that would-be immigrants may not be admitted if they are likely to be a burden on the U.S. taxpayer. If immigrant visa applicants cannot demonstrate that they will be self-supporting, they are excludable. In more recent times, provisions were adopted that allowed a third party to sign an affidavit of support for the visa applicant in order to overcome the public charge assumption for someone without a job to go to and without substantial savings would become a public charge. The problem with that procedure was that it has a very generous test of what level of support is required – 25 percent above the poverty level. That is a level where many means-tested public assistance benefits are available. In addition, no means existed to hold the sponsor liable for the support that was promised.

For that reason, in 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provided that means-tested benefits were banned to immigrants for the first five years they were in the country, and it required the sponsor to execute the affidavit of support under oath so that it could be legally binding. It allowed the immigrant to sue the sponsor if the support were not provided.

If that system were working as planned there would be no issue today. The flaws that continue to exist include the absence of a mechanism for government entities such as a public hospital to either recover costs of services to indigents from the immigrant or from the sponsor. Thus, there is no record of reliance on the public service.

The other major loophole was created by the Department of Justice in 1999, when it established that “non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence.” Those benefits include:

– Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care,

– Children’s Health Insurance Program (CHIP),

– Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs,

– Housing benefits,

– Child care services,

– Energy assistance, such as the Low Income Home Energy Assistance Program,

– Emergency disaster relief,

– Foster care and adoption assistance,

– Educational assistance (e.g., public school), including benefits under the Head Start Act,

– Job training programs,

– In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

Thus an immigrant may be paying no income taxes while receiving indigent medical care or other non-cash benefits as well as TANF, CHIP, and other benefits as well as means-tested welfare programs for U.S.-born dependents without becoming deportable under the public charge provision of the law.

These major loopholes in the application of the public charge provision may be what the Trump administration wants to revisit.