Local lawyers and social service agencies continue to receive calls from people concerned about the Trump administration’s additions to the list of public benefits counted against an immigrant in a public charge test that goes into effect next week. But experts say few will be affected by a proposed change and worry about the chilling effect the change has had.

Public charge has been a concept in immigration law for more than 100 years, but it only applies to immigrants seeking a visa, lawful permanent residency through a family member or for lawful permanent residents re-entering the United States after at least six months out of the country. It doesn’t apply to people who are refugees or asylum seekers, applying for green card renewals or citizenship.

Hope Nakamura, directing attorney with the Legal Aid Society of San Mateo County, met with a group of local immigration advocates to explain public charge on Oct. 2. She said the benefits that apply in the public charge test are limited, even with the new update.

“Our goal is to limit what we call ‘the chilling effect,’ which is that everybody who’s an immigrant thinks that all benefits count against them, so they get off the benefits,” Nakamura told the group. 

If the public charge rule applies, benefits are only part of the equation. Factors weighed against people include a lack of private health insurance, income below 125 percent of the federal poverty level, if they’ve used federally funded benefits in the last 12 months, nonworking age, and inability to speak English. 

The benefits that did not apply previously and will apply on Oct. 15, unless ongoing litigation prevents it, include the Supplemental Nutrition Assistance Program and federally funded Medicaid. State-funded programs are not counted against immigrants in a public charge test, Nakamura said.

Although the Trump Administration is able to interpret the definition of public charge and how the factors are weighed in the test, the federal government cannot change the statute. This means, for example, a president could not make the test reliant solely on public benefits or age. 

“They gave negative and positive guidances on how you’re supposed to look at it,” Nakamura said. “Whereas in the past, you could be 17 or 16 and that’s not an automatic negative, but now they’re saying that’s an automatic negative.”

Even if someone is considered a public charge, Nakamura and other experts, such as Protecting Immigrant Families, said very few people are deported because they were determined to be a public charge. This is because to be deported an individual must have issues including, among others, a legal debt to the government, refusal to repay the debt, and the government must have filed and won a lawsuit. Even then a person still can show they became a public charge because of something that happened after they came to the U.S., such as becoming pregnant.

On Oct. 2, the first of eight lawsuits challenging the rule was heard in Oakland. The lawsuit considers issues including whether the new definition is different from the way the rule has always been interpreted and whether the administration followed requirements to address public comments. 

Nevertheless, confusion over the change persists among immigrants. Nakamura and the Legal Aid Society have been fielding calls from people who are concerned about their benefits.

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