What is the Expected Proposed Public Charge Regulation?
As part of its continuing scapegoating and attacks on immigrants and refugees, the Trump administration is expected to propose a radical expansion of an immigration law that could deny permanent residence (“green cards”) to hundreds of thousands of immigrants.[i] Under current immigration law, applicants for permanent residence are required to prove that they are “not likely to become a public charge.” This requirement for green card applicants has been interpreted as proving that one will not rely on government cash assistance programs (such as Supplemental Security Income (SSI) or Temporary Assistance to Needy Families (TANF)) for future income. For at least two decades, the Department of Homeland Security (DHS) has explicitly excluded the past or current participation in non-cash programs such as Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), and the Supplemental Nutrition Program for Women, Infants, and Children (WIC), as part of the public charge requirement. The expected proposed regulation would reverse that long-standing interpretation of the public charge law, and begin including participation in these non-cash programs in making decisions about whether to grant an applicant a green card. The proposed regulation would also make use of the Earned Income Tax Credit (EITC) and the tax credits that make health insurance purchased through the federal and state health insurance marketplaces under the Affordable Care Act (ACA) more affordable, part of the public charge requirement that could result in the denial of permanent residence.
Who Are LGBT Immigrants?
The expected proposed public charge regulation would have significant harmful effects on lesbian, gay, bisexual, and transgender (LGBT) immigrants and their families. There are an estimated 904,000 LGBT immigrants living throughout the U.S.[ii] While there are no specific data collected or reported by the Departments of Homeland Security or State about LGBT immigrants, LGBT individuals always have, and will continue to, use family-based, employment-based, and other available categories to apply for lawful permanent residence in the U.S.[iii] For example, LGBT immigrants in same-sex marriages are recognized as spouses under U.S. immigration law after the 2013 U.S. Supreme Court decision in U.S. v. Windsor, declaring the misnamed-Defense of Marriage Act unconstitutional. LGBT individuals with higher education and skills often are able to use employment-based visas to work in multi-national and domestic corporations that welcome and support diverse employees, including LGBT employees. Since the 1990’s, LGBT refugees who are fleeing persecution based on their sexual orientation or gender identity have been able to find legal protection in the U.S., but often face many hurdles in proving their claims to persecution. Finally, there are an estimated 36,000 LGBT individuals that have received Deferred Action for Childhood Arrivals (DACA) status.[iv]
How Would the Proposed Public Charge Regulation Impact LGBT Immigrants and Their Families?
Similar to other immigrants, not all LGBT immigrants and their families have achieved economic success and financial security. Many LGBT immigrants and their families struggle economically, and use some of the government programs that would make them ineligible for permanent residence under the proposed public charge regulation. As an intersectional subset of both the immigrant and LGBT populations, it is likely that tens of thousands of LGBT immigrants and their families, including those with U.S. citizen children, are using Medicaid, CHIP, SNAP, WIC, and other government programs to assist themselves and their families with health insurance, nutrition, and other supports.
For example, an estimated 11% of LGBT adults ages 18-64 use Medicaid as their health insurance program.[v] An estimated 27% of LGBT adults ages 18-44 use SNAP, with higher utilization rates among racial and ethnic minority LGBT adults and those with children.[vi] Some subset of these LGBT adults are LGBT immigrants and their families, who will be impacted by the proposed public charge regulation.
How Does Continuing Discrimination Make LGBT Immigrants and Their Families More Economically Vulnerable?
Moreover, because of continuing discrimination based on their sexual orientation and gender identity, LGBT immigrants, similar to all LGBT individuals, face additional challenges in accessing and maintaining education, employment, housing, and health care, and may be more likely to need assistance with basic family supports such as health insurance and nutrition programs. Specifically:
- LGBT people continue to experience discrimination in education, employment, housing, health care, and access to credit, with no legal protections against such discrimination based on sexual orientation and gender identity in a majority of states;[vii] the experience of discrimination is even higher among LGBT people of color;[viii] therefore, LGBT immigrants may be more likely to use some of these government programs designed to help working families with health care, nutrition, and other basic family supports
- Transgender individuals, especially transgender women of color, are at the greatest risk of unemployment and poverty, as a direct result of discrimination and violence based on their gender identity and race;[ix] therefore, transgender immigrants may be more likely to use some of these government programs
- Lesbian-headed families, especially families of lesbians of color, are more likely to have lower incomes as a result of the combination of sex, sexual orientation, and race-based discrimination and pay inequity for women;[x] therefore, lesbian immigrants and their families may be more likely to use nutrition, health, and other government programs designed to support low-income children and families[xi]
- Prior to the implementation of the ACA, gay men and transgender individuals living with HIV/AIDS, Hepatitis C, and other medical conditions, especially young gay men of color and transgender women of color, often were prevented from accessing health insurance and health care because of their pre-existing medical condition;[xii] therefore, transgender immigrants and gay immigrants of color are more likely to now be covered by expanded Medicaid (which expanded coverage to low-income individuals who do not have children) and through ACA health insurance marketplaces, which provide tax credit subsidies to ensure affordability and access[xiii]
- Only 19 states and the District of Columbia prohibit the denial of health insurance coverage for medically necessary transgender health care;[xiv] while the ACA established the first federal protections against discrimination based on gender identity in health care, the Trump administration is actively working to undo that protection;[xv] meanwhile, these nondiscrimination policies have meant that more transgender individuals, including transgender immigrants, have been able to access medically necessary care through ACA health insurance plans
The multiple and intersectional identities of LGBT immigrants means greater risk for a lifetime of discrimination that restricts educational, employment, and other opportunities. These cumulative and compounding experiences of discrimination make transgender immigrants, especially transgender women immigrants of color, and lesbian immigrants, especially lesbian immigrants of color, particularly vulnerable. The proposed public charge regulation threatening denial of permanent residence for simply using government programs that provide low-income families with health care, nutrition, and other basic support would impose the untenable choice on LGBT immigrants and their families between dis-enrolling from these safety net programs, or jeopardizing their future immigration status.
How Can We Respond to the Expected Proposed Public Charge Regulation?
The proposed public charge regulation is expected to be published any day now. Once it is published, there will be 60 days for the public to submit comments. Both organizational and individual comments opposing the proposal can be submitted. There is a national campaign preparing to mobilize hundreds of thousands of comments against the proposed regulation, including providing sample comments and online platforms to submit comments.[xvi] It is vital that LGBT individuals, organizations, and communities spread the word about this proposal and join in opposing it.
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[i] Protecting Immigrant Families, The Trump Administration’s “Public Charge” Attack on Immigrant Families, 2018, at: https://www.nilc.org/wp-content/uploads/2018/01/Public-Charge-Fact-Sheet-2018.pdf
[ii] Gates GJ. LGBT Adult Immigrants in the United States, The Williams Institute, 2013, at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBTImmigrants-Gates-Mar-2013.pdf
[iii] Immigration Equality at: https://www.immigrationequality.org/get-legal-help/our-legal-resources/#.Wy0mQ1Mvz6a
[iv] Conron K, Brown TNT. LGBT DREAMers and Deferred Action for Childhood Arrivals, The Williams Institute, February 2017, at https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-DREAMers-and-DACA-February-2017.pdf
[v] Conron KJ, Goldberg SK. LGBT Adults on Medicaid, The Williams Institute, 2018, at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Medicaid.pdf
[vi] Brown TNT, Romero AP, Gates GJ. Food Insecurity and SNAP Participation in the LGBT Community, The Williams Institute, 2016, at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/Food-Insecurity-and-SNAP-Participation-in-the-LGBT-Community.pdf
[vii] Movement Advancement Project, Non-Discrimination Laws, at: http://www.lgbtmap.org/equality-maps/non_discrimination_laws
[viii] Paying an Unfair Price: The Financial Penalty for LGBT People of Color in America, Center for American Progress and Movement Advancement Project, 2015, at: http://www.lgbtmap.org/file/paying-an-unfair-price-lgbt-people-of-color.pdf; Kastanis A, Wilson B. Race/Ethnicity, Gender, and Socioeconomic Wellbeing of Individuals in Same-Sex Couples, The Williams Institute, 2014, at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/Census-Compare-Feb-2014.pdf
[ix] National Center for Transgender Equality, U.S. Transgender Survey, 2016, at: https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf
[x] Kastanis A, Gates GJ. LGBT African Americans and African-American Same-Sex Couples, The Williams Institute, 2013, at: http://williamsinstitute.law.ucla.edu/wp-content/uploads/Census-AFAMER-Oct-2013.pdf; Kastanis A, Gates GJ. LGBT Latino/as and Latino/a Same-Sex Couples, Williams Institute, 2013, at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/Census-2010-Latino-Final.pdf; Kastanis A, Gates GJ. LGBT Asian Pacific Islander Individuals and Same-Sex Couples, Williams Institute, 2013,at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/Census-2010-API-Final.pdf
[xi] Badgett MVL Durso LE, Schneebaum A. New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute, 2013, at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGB-Poverty-Update-Jun-2013.pdf
[xii] Helping People with HIV Navigate the Transition from Coverage to Care, Kaiser Family Foundation, 2013, at: https://kaiserfamilyfoundation.files.wordpress.com/2013/07/8462-helping-people-with-hiv-navigate-the-transition.pdf; Kates J, Ranji U, Beamesderfer A, Salganicoff A, Dawson L. Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S., Kaiser Family Foundation, 2018, at: http://files.kff.org/attachment/Issue-Brief-Health-and-Access-to-Care-and-Coverage-for-LGBT-Individuals-in-the-US
[xiii] Baker K, Durso LE. Why repealing the Affordable Care Act is bad medicine for LGBT communities, Center for American Progress, March 22, 2017, at: https://www.americanprogress.org/issues/lgbt/news/2017/03/22/428970/repealing-affordable-care-act-bad-medicine-lgbt-communities/; Baker K, Durso LE, Cray A. Moving the needle: The impact of the Affordable Care Act on LGBT communities, Center for American Progress, November 17, 2014, at: https://www.americanprogress.org/issues/lgbt/reports/2014/11/17/101575/moving-the-needle/
[xiv] Movement Advancement Project, Healthcare Laws and Policies, at: http://www.lgbtmap.org/equality-maps/healthcare_laws_and_policies
[xv] Pear R. Trump plan would cut back health care protections for transgender people, New York Times, April 21, 2018, at: https://www.nytimes.com/2018/04/21/us/politics/trump-transgender-health-care.html
[xvi] Protecting Immigrant Families Campaign Resources, at: https://www.clasp.org/protecting-immigrant-families-campaign-resources