The Maryknoll Office for Global Concerns was one of more than 630 U.S. based faith and civil society organizations that signed on to a comment to the Department of Homeland Security about proposed new regulations to exclude  immigrants from access to core health, nutrition, and housing assistance programs.

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October 22, 2021
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529-2140
Submitted via

Re: DHS- Docket No. USCIS-2021-0013; Comments on Public Charge Ground of Inadmissibility

We are writing on behalf of more than 630 national, state, and local organizations and agencies in 46 states and the District of Columbia in response to the Department of Homeland Security’s (DHS) advance notice of proposed rulemaking (ANPRM) published on August 23, 2021. Our organizations represent diverse sectors, including health care providers and advocates, food security, housing, immigrant rights, civil rights, economic security, women’s, reproductive rights, children’s, education, faith-based, organized labor, academia, and philanthropy as well as state and local agencies. Note that some of our organizations are also providing more detailed comments with justifications to support these recommendations, and specific responses to the questions posed in the ANPRM.

Our organizations share the view that the nation is stronger when we welcome people who are willing to contribute to the country and recognize their potential. We recognize that our communities and economy depend on the labor of immigrants and U.S. citizens who too often receive modest pay and few benefits for their essential work, and that public benefits play a critical role in supplementing their earnings. Nationally, such core health, nutrition, and housing assistance programs help nearly half of Americans make ends meet. These supports should in no way be linked to the exclusionary “public charge” provision – they represent the country’s policy choices about how to help all workers and families succeed. Time and again, individuals with limited means make important contributions to the U.S. – caring for the most vulnerable, teaching our children, keeping us fed, and enriching the country.

Accordingly, our immigration laws should not discourage immigrants and their family members from seeking physical or mental health care, nutrition, or housing benefits for which they are eligible. We urge DHS not to exclude people from immigrating simply because conditions in their countries of origin, discrimination they may have faced in the U.S., and other circumstances have made it difficult for them to complete an education, secure professional credentials, or earn a high income.

In addition to ensuring that the exclusion is narrow and does not amount to a wealth or income test – which as noted would be completely counter to the public interest – the public charge regulations must also be clear. Clear regulations will set parameters so that immigrants, their families, and service providers can understand how a public charge assessment will be determined. This is particularly important because lack of clarity can cause the same damage as an overly broad rule. It can cause immigrant families to avoid interacting with the government and forgo critical public benefits for which they are eligible as a consequence of fear and confusion. An unclear rule can also create unintended consequences, such as a domestic violence survivor forgoing police protection or a parent becoming fearful of seeking health care for their child. Moreover, the regulation should include guardrails to prevent a public charge determination from being used as a tool to discriminate against people of color, women, people with disabilities, older adults, or anyone else.

For these reasons, we recommend the following key elements of the public charge determination.

Definition and Purpose

DHS should define someone likely to become a public charge for inadmissibility purposes as a person who is “likely to become primarily and permanently reliant on the federal government to avoid destitution.” This would be consistent with the congressional intent and historical understanding of public charge as applying to a narrow set of immigrants who are likely to become a “public charge” by virtue of being so in need of assistance that they were housed in almshouses and poorhouses for indefinite stays. It is also consistent with case law. In 2020, the Second Circuit Court of Appeals relied on the Board of Immigration Appeals’ interpretation of ‘public charge’ to mean a person who is “unable to support herself, either through work, savings, or family ties.”

This approach follows from the evidence presented above that people of limited means, including immigrants, make extraordinary contributions to American life and that full use of health, nutrition, and income support programs by immigrant and U.S. citizen members of the community is good economics and good policy. 

Under this definition, reliance on the government should not be taken into account unless:

The government provides the primary source of income. Many people receive only modest public benefits that supplement their earnings by improving their access to nutrition, health care, and other services. Using these supplemental benefits will not make a person a public charge. In addition, if an individual is relying on a benefit, but is also receiving income from a job or income from other family members in the household, the individual is not primarily reliant on the government. The Ninth Circuit Court of Appeals (Ninth Circuit) found that the concept of public charge did not “encompass” people who used benefits that “were not sufficient to provide basic sustenance.”

The reliance is permanent. There are many scenarios where people receive government benefits for a period of time but not permanently: for example, if an individual is currently using a benefit but is about to get a raise or a new job and will no longer access it, or if someone is recovering from a temporary illness or treatment and relying on a federal government benefit to recuperate. The Ninth Circuit also found that public charge had never encompassed persons likely to make “short-term use” of benefits.

The reliance is to avoid destitution. The Board of Immigration Appeals has held that the “ordinary meaning” of the term public charge, refers to individuals “being destitute.”

Likewise, federal courts have held repeatedly in in forma pauperis cases that public charge and destitute are synonymous.

Public Benefits Considered

The definition “likely to become primarily and permanently reliant on the federal government to avoid destitution” should guide any assessment of an applicant’s benefit use. We recommend that the public charge notice of proposed rulemaking (NPRM):

Consider only two specific, federal programs that provide cash assistance for income maintenance. Receipt of health care, nutrition or housing assistance is not an indication that a person is primarily or permanently reliant on the government. The Center on Budget and Policy Priorities estimated that nearly half of U.S.-born citizens received one of the benefits included in the 2019 rule in their lifetime. The only two programs that could be relevant in determining whether someone is “likely to become primarily and permanently reliant on the federal government to avoid destitution” are cash assistance under Temporary Assistance for Needy Families (TANF) and Supplemental Security Income (SSI). However, receipt of these programs in itself does not make someone a public charge.

Do not consider Medicaid – even for institutional long term care – in a public charge determination. According to the Kaiser Family Foundation, today in the U.S., one in three people turning 65 will require nursing home care in their lives, and Medicaid is the primary payer for long-term care in the US, covering six in ten nursing home residents. We should not penalize immigrants for our national policy choices that make Medicaid the only meaningful payer for long-term care and make it difficult to get care at home and force people into institutional care. In addition, including any type of Medicaid benefit will confuse people and lead them to forgo health care.

Provide clear guidance on how to predict the likelihood of becoming a public charge based on past or current benefits use. Without such guidance, predicting who is likely to become a public charge “at any time in the future” is an act of speculation that could allow immigration officers to discriminate. The best way to ensure fairness, consistency, and predictability is to instruct adjudicators to look back at an applicant’s use of certain public benefits for a finite lookback period–such as two or three years—as a way of gauging future likelihood. In addition, the I-485 form and its instructions should make clear that applicants only need to provide information about the use of TANF and SSI during the lookback period.

Identify and update a list of the programs that do not count in order to minimize the chilling effect. The regulation should include language that says, that “benefits other than SSI or TANF shall not be considered in a public charge determination.” In the preamble, the NPRM and final rule should name as many as possible of the other types of cash, tax, food, health, housing, employment, nutrition, education, immigration fee waivers, and other benefits that are not included as factors in a public charge test and create guidance where additional/new programs can be added as a reliable resource/reference. The guidance should address COVID-related, other disaster-related benefits such as FEMA, and unemployment insurance benefits in particular; in addition to programs that provide universal basic or guaranteed income to all. The preamble should state that any omission of a program from this list should not be interpreted by adjudicators and community members to mean that it will be counted.

Exclude programs funded completely by state, local, tribal and territorial governments. Clarify that state or local government funded programs—even if they provide cash assistance—are exercises of the powers traditionally reserved to the states and are not counted as factors in a public charge test. We recommend this approach because limiting the benefits that may be considered to two federal benefits will be easier for adjudicators to administer and to explain to immigrants and their families than a patchwork of state, local and tribal programs, reducing the chilling effect. It will also be easier for state and local eligibility offices to provide information about recent receipt of TANF, rather than any number of other state or local benefits. States and localities have a compelling interest in promoting health and safety that includes providing benefits at their own expense without barriers caused by federal policies. Since these benefits vary significantly by state, specifically naming two federal programs that are relevant will make the public charge rule easier for both immigrants and DHS adjudicators to understand.

Exclude family members and sponsors’ use of benefits. Make clear that benefits used by an applicant’s family members or sponsors do not count as factors in the applicant’s public charge test. This is critical in minimizing the chilling effect of the public charge rule on access to benefits by people, including U.S. citizen children, who are not subject to a public charge determination but whose family members may seek LPR status in the future.

Exclude any use of benefits by survivors of domestic violence and other serious crimes and by anyone during public emergencies. Benefits used by survivors of domestic violence or other serious crimes, or used by anyone during natural disasters or other extraordinary circumstances, such as the COVID-19 pandemic or in the aftermath of hurricanes and wildfires, should not be included as factors in a public charge determination. Use of these benefits is due entirely to external events and does not provide any information on the recipient’s likelihood of becoming primarily and permanently reliant on government assistance at a future date. 

Specify that use of benefits as a child or when in an exempt status will not be included in a public charge determination, nor will benefits used when applying for an exempt status, regardless of a person’s pathway to legal status. DHS should propose that benefits received by children—whose long-term economic contributions are generally bolstered by childhood receipt of benefits—be excluded from consideration. In addition, benefits received when in an exempt status, such as cash assistance provided to a refugee, should be excluded regardless of a refugee’s pathway to legal status. Finally, benefits should be excluded if an individual is applying for an exempt status, for example, if an individual has applied for asylum.

Statutory Factors

DHS should not repeat the mistakes of the 2019 public charge rule by defining the statutory actors in a manner that disproportionately burdens people of color, women and people with disabilities or that creates the opportunity for conscious or implicit bias to affect an individual adjudicators’ determinations. For example, the 2019 public charge rule, counted income under 125 percent of the federal poverty level as a “heavily weighted negative factor,” which likely would have resulted in an immigration policy that favors white immigrants from Europe rather than Latino, Black, and Asian immigrants from Mexico and Central America, South America, the Caribbean, Asia, or Africa. The Biden administration’s January 20, 2021 Executive Order on racial equity requires federal government agencies, including DHS, to promote equitable delivery of government benefits and equitable opportunities for all. DHS should craft an NPRM that requires adjudicators to:

Consider the affidavit of support, when it is required, as creating a presumption that the applicant overcomes the public charge ground of inadmissibility. DHS should propose that a properly filed affidavit of support satisfies the INA 212(a)(4) requirements and creates a presumption that the applicant overcomes the public charge ground of inadmissibility. This would be consistent with the USCIS adjudicator’s field manual in effect under the 1999 field guidance, which indicated that the affidavit of support’s purpose “is to overcome the public charge ground of inadmissibility.” The current Foreign Affairs Manual instructions also clarify that a properly filed affidavit of support should “normally be considered sufficient” to satisfy the public charge requirement. In addition, the affidavit of support’s legislative history indicates that it is intended to allow the immigrant to be admitted when there would otherwise be a public charge concern. DHS should prohibit immigration officials from questioning the credibility or motives of a sponsor who signs an affidavit of support, looking only to its legal validity. Finally, relying on the affidavit of support to provide a favorable presumption is easier to administer, providing an effective way to apply a fair and transparent decisionmaking tool, and avoiding potential discrimination.

If adjudicators identify a circumstance that might make someone likely to meet the definition of a public charge, look to the totality of circumstances to see if there is evidence to overcome the circumstance. DHS should propose that adjudicators look at all the factors together to see if they would make an applicant likely to become a public charge. If adjudicators identify a circumstance that would serve on its own as a predictor that a person is “likely to become primarily and permanently reliant on the federal government to avoid destitution,” then they should look to the totality of circumstances to see if there is also evidence to overcome the circumstance. The judicial and administrative decisions that were used to inform adding the five “totality of circumstances” factors to the statute in 1996 overwhelmingly found immigrants not excludable based on one or more of the factors when considering the totality of circumstances. In other words, the five statutory factors and totality of circumstances test were ways to demonstrate that an applicant would not be excludable as a public charge and were never intended to be a list of negative and positive factors to be weighed individually in every case. For example, if “financial status” is a concern because the applicant is not working while also in nursing school, but “education and skills” are positive because the applicant is training to become a nurse, on balance the person is not “likely to become primarily and permanently reliant on the federal government to avoid destitution.” DHS should also provide reasonable opportunities for applicants to address or cure any concerns about the statutory factors, and propose that a properly filed affidavit of support be sufficient to overcome or outweigh any negative factors identified when looking at the factors together.

We urge DHS to move as expeditiously as possible to issue a NPRM and a Final Rule on this topic. The constantly changing public charge policies have led to confusion among many immigrants and their families, contributing to the chilling effect. Publishing a fair and reasonable final rule, as we have recommended here, is the best way to limit this harm.

Signatories are listed in the PDF version