This article has been updated.
The Trump Administration is expanding a longstanding immigration policy that will make it more difficult for undocumented immigrants to become legal residents if they’re likely to need government assistance.
Current law already requires those seeking green cards or other changes to their immigration status, to prove they will not be a burden — or "public charge" — and allows immigration officials to deny applicants that are deemed "likely" to depend on public support for their income. It has been applied narrowly to immigrants who have received cash-based welfare.
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The draft proposal, which was first unveiled by the Department of Homeland Security in September, expands the range of government programs that could disqualify an immigrant from being granted a path to citizenship to include SNAP, Medicare, Section 8 housing benefits, among other forms of public assistance. The new policy would also deem current and past receipt of certain public benefits "a heavily weighed negative factor" in considering granting someone legal status.
According to two immigration attorneys in Southern California, the administration has been enforcing the proposed policy change despite the fact that DHS has not approved the final "public charge" rule or issued an effective date.
One San Diego family told NBC 7 Investigates the policy’s enforcement led to them being separated, forcing a mother and father to live on separate sides of the U.S.-Mexico border.
“They miss him so much. My husband, he is the head of the house. He was in charge. He worked, made the kids dinner, and took them to their sports practices,” said Ana Sanchez, a San Diego resident whose husband is currently living in Tijuana after immigration officials denied his application for a green card.
Leo Sanchez and Ana came to the U.S. illegally 17 years ago. Since arriving, they both have had steady jobs and have never applied for any form of government assistance. Leo has never been arrested or charged with any crime, in the U.S. or in Mexico.
Three years ago, Ana Sanchez became a U.S. citizen. Last year, Leo applied for his green card and the couple hired a San Diego attorney to help them with the process.
“We had all the necessary documents that [immigration officials] wanted,” said the couple’s attorney, Marci Ancel. “We had everything we checked all the boxes of everything so that he should have just gone in for his interview and been approved.”
Ancel tells NBC 7 that Leo Sanchez had a sponsor, the equivalent to a co-signer for a loan, who put up their own money to ensure that Sanchez would not apply for any government assistance.
In May 2018, Leo was told he would need to return to Mexico in order to obtain his green card from the U.S. consulate in Juarez.
But despite having all the documentation, as well as a co-sponsor willing to vouch for him financially, immigration officials rejected his application under the “public charge” provision.
Ana was forced to fly back to San Diego alone. Leo, on the other hand, traveled from Juarez to Tijuana in order to stay close to his wife and three children.
Leo is now living and working in Tijuana, telling NBC 7 he earns just enough to survive. That has left Ana struggling to support her family on the income she earns cleaning houses.
“I'm struggling right now,” said Ana. “I mean it's very hard. It's hard because you know I had to pay the rent. Sometimes I need to pay some bills. Sometimes I call the company and say I can’t make a payment today.”
Ana refuses to seek any help from the government over fears that by doing so, she could further hamper Leo’s chances of obtaining a green card, and eventually his citizenship.
"It's been very hard. I don't want to ask for food stamps because I don't want to become a 'public charge,'" Ana said.
But the family has felt the separation from Leo in other ways as well.
Ana said her 10-year-old son is having problems in school and calls her frequently to make sure immigration authorities have not taken her away, this despite the fact that she is a naturalized citizen.
“He tells me that he doesn’t want to have to live in a shelter or go to another family,” Ana said.
Attorney Ancel said she has filed a new application and hopes it will be expedited.
“I’ve been doing this for over 30 years,” Ancel said. “This is something new. They're basically trying to find reasons to deny people and I've never seen them do that before. And, unfortunately, it’s a policy that I don’t think they will be reversing any time soon.”
Rick Sterger also practices immigration law in San Diego. He, too, has seen a dramatic shift in the U.S.’ approach to legal immigration.
“I don’t like the idea of enticing people to seek a visa legally and then change the criteria while they are already outside of the country,” Sterger told NBC 7. “These people have already received the waiver for entering this country illegally and then subject them to what is a subjective process of the 'public charge' designation is, frankly, problematic.”
Despite Leo Sanchez's case, as well as a similar incident that one of Sterger’s clients experienced, a spokesperson for DHS denied that the policy has been formally adopted but said it is needed to ensure qualified applicants entering the U.S. The agency added that a version of the "public charge" policy has been in place since the 1800s.
“Under long-standing federal law, those seeking to immigrate to the United States must show they can support themselves financially,” reads a statement from Department of Homeland Secretary Kirstjen Nielsen. “The Department takes seriously its responsibility to be transparent in its rulemaking and is welcoming public comment on the proposed rule. This proposed rule will implement a law passed by Congress intended to promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.”