According to what has been publicly reported about the Gang of Eight’s forthcoming immigration bill, there appears to be a major flaw that could allow millions of illegal immigrants to access federal welfare benefits and poverty programs. Specifically, there is nothing in the framework to apply federal public charge law to those in the country illegally before they are granted legal status. What this means is that the bill would create an end-run around federal law: individuals in the country illegally could receive legal status without having to demonstrate financial self-sufficiency.

Section 212 of the Immigration and Nationality Act (INA) states: "An alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” It appears that—by virtue of entering the country illegally—individuals will be able to obtain a form of legal status without going through the screening process created for legal immigrants as required by statute.

Senators in the group have suggested that cost will not be an issue because amnestied illegal immigrants will not be eligible for certain public aid and welfare programs during a temporary period of probationary legal status (although even this is in growing doubt given the outcome of the relevant vote during the recent consideration of the Senate budget). But, crucially, once this status ends and they become eligible for green cards, those who illegally immigrated will have access to a wide array of public assistance programs. Green card holders are currently eligible for Medicaid, TANF, Supplemental Security Income, child care assistance, food stamps, and a variety of other welfare benefits and public aid programs. The Budget Committee Republican staff estimates that costs could be upwards of $40 billion in 2022 alone, just for Medicaid and Obamacare. The long-term unfunded liability for Obamacare would grow another $2 trillion. The net costs would be enormous and only increase once citizenship is granted (and would extend to our nation’s retirement programs as well). Additionally, during their probationary status, there are still a number of ways previously illegal immigrants could draw means-tested public aid for their households—which is the reason why federal law deems all immigrants likely to be a public charge inadmissible to the country regardless of whether they are applying for temporary, permanent, or any other form of legal status.

Finally, this flaw will not be rectified merely by relying on existing law when illegal immigrants apply for green cards. An investigation conducted by the Ranking Members of four Senate committees has revealed that the Obama Administration does not adhere to the statutory requirement that they determine whether applicants for admission to the country will be a public charge. Moreover, it is estimated that 1 in 3 immigrant-headed households currently participate in at least one major welfare program. To be effective, any immigration reform must therefore ensure that a reliable public charge standard is being applied for all immigrants, legal and illegal, and that any incentive to immigrate illegally in order to receive public benefits is removed. This is a fundamental protection for taxpayers and a core legal and economic principle of immigration common to virtually all nations.

-U.S.S.B.C. Ranking Member, Jeff Sessions