Public Charge: Curtailing the Immigrant Burden

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.

About Author


Jack, who joined FAIR’s National Board of Advisors in 2017, is a retired U.S. diplomat with consular experience. He has testified before the U.S. Congress, U.S. Civil Rights Commission, and U.S. Commission on Immigration Reform and has authored studies of immigration issues. His national and international print, TV, and talk radio experience is extensive (including in Spanish).


  1. avatar
    Barbara Griffith on

    I just wanted to add that the sponsored elderly relatives of legal immigrants are given SSI checks to live on after they are allowed to come to the U.S. A friend of mine at the job was talking to the temp employee about her grandparents that had been sponsored by her father to come to the U.S. from Russia. My friend said that what the grandparents were given was more that her mother’s SS check after her mother worked all of her life paying into it. You can see by this what is happening to the Social Security fund which is being passed out to anybody that wants it. No wonder its running out you can’t give that to the whole world and expect it to last. That needs to be stopped.

    • avatar

      We had a family member have an Emergency Service which required life savings surgery. Anyway got to talking with people a female had her mother in the ICU…learned she had her in the USA just like the father pass in the USA both got home health care service all on USA taxpayers…and womb to tomb…just for them..what did she state…oh, when they died we had to pay for their return to Honduras and it was complicated..whoopie.. A male who worked in Panama a Panamanian…had medical issues: so where do you think he flew into so he didn’t have to pay. USA workers REAL AMERICANs aka MIINORITIES as taxpayers.. are SLAVES at 6% of US pop which is now 50 illegals. MExico has 80M alone along with other nations. Our inner cities have cities within cities. l926 LUAC to LaRaza; what would refer to themselves as The RaCE..TAKEOVER WELL AHEAD…ST

    • avatar

      Agree. This is a serious and overlooked “payout” taking additional funds from an already over-burdened system. We were told SS would be there for us when we needed it, but at every turn we see it being chipped away for various other causes it was never intended to support. Time to lock up the “family jewels” and protect them for the family!

  2. avatar

    My Sanctuary City Seattle Property Taxes Went Up 36% This Year

    To pay for schools, etc….while these same public schools [i.e. Phoenix Academy] touted a 20% graduation rate, but by gosh they teach ESL [English as a Second Language]….study halls to get the graduation rate higher? Nope…no money for that. Double the staff costs today per student as 1970s’ schools to with NO results. The MSM blames it on legal citizens’ inferior intelligence….LOL

    Green River College math professors ALL complained to me that Kentlake High-school graduates measure only a 9th grade math level according to their COMPASS testing…even students getting As and Bs in math and science. Why you ask??? Grades are being cheated by copying each others’ homework and no tests….tests don’t determine grades in NWO public schools anymore….

    • avatar

      our new president will get rid of all the illegal’s and then the taxes will go down as don’t have to support them any longer and hope he gets rid of the dreamer’s also as one is on his way back as has gang ties so he is gone

      • avatar

        If you get rid of all of them it is really going to hurt farmers who need crops picked. And people that like to eat produce. I hope you have a large group of people to replace them.

        • avatar

          diane anglin, welfare recipients and prisoners should be able to replace many. There are also many others who would be more than willing to work.

        • avatar

          Yes Diane

          The MSM has been brainwashing this farmer need for immigrants all along….yet we can pay $50/hr for a legal citizen to pick lettuce….your head of lettuce will go up perhaps 5 cents.

          Most of the retail price of food is diesel oil and Safeway, Associated Grocer profits…these same farmer IAs end up replacing Americans in construction, care giving, house cleaning and gardeners. Commercial rated at $20-30/hr for legal tax payers. Its all brainwashing for rich elite Progressive tax evasion.

    • avatar

      Tony Blair has opened his big mouth again in Britain, with the same old condescending garbage that the Brits who voted to leave the EU were “misinformed” and didn’t know what they were doing. No, they knew exactly what they were doing. just like we did. Both countries got a chance to say we want borders and we want to decide who comes here. Especially Britain. There are over 60 million people on that small island.

      Of course, Blair is the same dope who supported Bush’s rush into Iraq and later official investigations showed the he knew very well the evidence, so called, was being exaggerated. The Labour Party in that country has now become the foolish equivalent of our Democrats.

      I was reading about a just released court ruling involving CNN. It involves a defamation suit by a CEO of a Florida hospital who alleges that their false reporting lost him his job. In her ruling supporting his right to sue, an Atlanta judge said, “The Court finds these allegations sufficient to establish that CNN was acting recklessly in regard to the accuracy of it’s report”, and listed all the evidence that the network ignored. Defamation suits are tough and the fact she is letting it go ahead is not good news for them.

      • avatar

        I don’t vote Democrat because I am in favor of illigal immigration. I just don’t trust the Republicans to protect Medicare and social security clean air clean water etc. And I don’t want my social security check to be used to fund huge tax cuts for the rich. Problem is that there is no one for me to vote for that would support everything I care about. So I decided retirement issues and environmental issues were more important.

        • avatar

          How about the fact that immigration is the main cause of our population growth of 25 to 30 million per decade for the last several decades. You think that’s not hurting the environment.

          • avatar

            Agree. This is a serious and overlooked “payout” taking additional funds from an already over-burdened system. We were told SS would be there for us when we needed it, but at every turn we see it being chipped away for various other causes it was never intended to support. Time to lock up the “family jewels” and protect them for the family!