BBA Submits Comments in Opposition to Proposed Public Charge Rule

Last week, the BBA submitted comments in opposition to the proposed “public charge” rule, which would dramatically change the way in which the Department of Homeland Security (DHS) determines whether an immigrant is likely to become a “public charge.” This determination can act as a bar to legal permanent resident (green card) status, and if adopted, to certain non-immigrant employment and student statuses.

In Spring 2018, leaked versions of a proposed rule change emerged and, deeply concerned about the sweeping impact such a rule change would have on millions of immigrant individuals and families in the U.S., lawyers, advocates, and organizations began working immediately to secure commitments to submit as many, and as varied, comments as possible. The Department of Homeland Security (DHS) published the Notice of Proposed Rulemaking on October 10 and the Public Comment period was open until December 10.

We were proud to join tens of thousands of other local and national individuals and entities in opposing this dangerous proposal. We are also proud that six of our substantive-law sections joined us by submitting their own comments. You can read our full statement here.

The Proposed Rule

Under immigration law, one who is deemed likely to become a “public charge” can be denied admission to the U.S. or be denied lawful permanent resident (“green card”) status.  These determinations most often arise when applying through a family-based petition, and certain categories of individuals are exempt from this determination, including refugees, asylees, special immigrant juveniles, and other humanitarian statuses.

Currently, the definition of “public charge” is a person who has become or is likely to become primarily dependent on the government for subsistence, and the only benefits considered are cash assistance (supplemental security income, temporary assistance for needy families) and government-funded long-term institutional care. Under the proposed regulation, the definition is dramatically expanded to include anyone who has used, or is likely to use in the future, more than a “minimal” amount of public benefits, including non-cash health benefits (non-emergency Medicaid and some Medicare assistance), federal public housing benefits, and nutrition benefits (food stamps).

A range of new positive and negative weighted factors would also be considered in determining whether a person is likely to use certain benefits in the future. For example, the proposal includes new income thresholds that give negative weight to immigrants who earn less than 125 percent of the federal poverty level. Other factors considered include age, health, family status, and education, giving negative weight to children and seniors, persons with limited English proficiency, poor credit history, limited education, or having a large family. The rule also proposes negative weight be given for seeking and receiving a fee waiver in applying for an immigration benefit.  Finally, the single heavily-weighted positive factor in the proposed rule is having an income or resources over 250% of the federal poverty level. In an illustration of just how dramatic these changes would be, roughly 5% of U.S. citizens would possibly be found to be a “public charge” under the current test while 33% would struggle to meet the new standards proposed.

BBA Comments

The BBA comments were framed by the Report and Principles on Immigration produced over the summer and adopted by the board. These were rooted in a recognition of the invaluable contributions immigrants of all income levels make to our communities and country. The principles inform our advocacy on related matters and urge for immigration policies and practices that protect fundamental rights and human dignity, vindicate immigrants’ established constitutional rights to due process and equal protection, and promote the ability of all people to meaningfully exercise their rights and access justice through the legal system. Our comments note the ways the proposed rule fail these important standards. You can read more about our concerns in the full comments or outlined briefly below.

Fee Waivers for Immigration Benefits

We expressed specific concern over the inclusion of consideration of “fee waivers for immigration benefits” as a negative factor. Over a decade ago, the BBA endorsed an American Bar Association Resolution urging that fee levels not be so burdensome as to deter applications and for clearly defined policies and procedures to ensure that fee waivers are “reasonably available. The inclusion of fee waivers as a factor in public charge determinations is misguided for several reasons:

  • A fee waiver merely evidences financial need, a factor already considered in the public charge calculus, and is thus double-counted under the proposed rule.
  • DHS claims that receipt of fee waivers demonstrate a weak financial status, but an inability to pay a specific fee, on a one-time basis, is only a small part of a person’s overall financial situation and certain fee waivers—for example, waivers to adjust status so an immigrant can be employed–would, in reality, serve as a step toward self-sufficiency and decrease the likelihood that the immigrant would become dependent on government assistance.
  • There is no detailed information provided as to the definition of “immigration benefit” in this provision. If, as it appears to, the proposed rule on fee waivers applies to administrative appeals from USCIS decisions, or efforts to obtain relief from removal or defend against removal before an immigration judge or the Board of Immigration Appeals, the rule raises significant access to justice concerns.

Widespread Chilling Effects

Beyond discouraging fee waiver applications, the proposed regulation would inhibit applications for benefits such as Medicaid, Medicare Part D prescription drug assistance, Supplemental Nutrition Assistance Program (SNAP), and housing support. As a result, millions of immigrants will likely choose not to enroll (or to disenroll) in programs that provide benefits vital to their basic needs, including housing security, food access, and healthcare. Already, there have been thousands of reports across the country, including here in Massachusetts, of immigrants dropping or choosing not to pursue benefits based exclusively on rumors or leaked versions of the regulations. The Massachusetts Budget and Policy Center, for example, found that 24 million people in the United States could be impacted by the chilling effect, and that 500,000 people in Massachusetts, including 160,000 children (the majority of whom are U.S. citizens, could forgo receiving these important benefits).  In addition, the burden of this chilling effect may be borne most by people of color, immigrants and citizens alike, as these groups have disproportionate rates of poverty and health disparities, making supplementary health, food, and nutrition benefits more necessary to their well-being and economic stability.

Principle 4 of the aforementioned BBA Immigration Principles focusing on access to justice states: “Similarly, immigrants are deterred from asserting their civil rights with respect to housing, healthcare, labor and employment, education, and public benefits when they fear that doing so may lead to immigration enforcement against them or their families or may negatively affect their future ability to pursue U.S. citizenship.” The new public charge standards would do just that – deter millions of individuals, many of whom are already among our most marginalized, from accessing benefits to which they are, in fact, entitled. As a result of these significant equal treatment and access to justice concerns, the proposed regulation is simply not sound policy.

Anticipated Health and Economic Consequences

The comments further discuss the adverse effects of the proposed rule on the well-being of individuals and families and the widespread public health and economic costs for our communities, including:

  • Many families with an immigrant member may face separation. Nearly one-quarter of U.S. citizen children have an immigrant parent, many of whom would be at risk of failing the public charge test. Immigrant parents should not forced to choose between providing housing, food, and healthcare for their families and obtaining certain immigrant statuses, often necessary to remain with their families.
  • Negative health outcomes will also abound, some of which were specifically mentioned by DHS as potential consequences in the proposed rule. This will include increased prevalence of obesity, malnutrition, and communicable diseases, delayed negative shock to maternal and childhood health, and reduced care for serious psychiatric illnesses.
  • The healthcare-related costs of these outcomes will be a significant burden for local and national economies. For example, disenrollment from public insurance and benefits will increase uncompensated care costs to hospital and increase use of emergency care, decreased participation in nutrition assistance will increase health care expenditures per person, the disenrollment from preventative services will lead to major costs, and localities will experience lost earnings from loss of productive and loss of workers and talents.

Overall, this proposed policy goes against the overwhelming evidence that shows the essential role that immigrants, including and especially working-class immigrants, play in building thriving cities and economies. It also goes against the government’s own classification of the newly-included non-cash benefits. In 1999, the government issued public charge guidance that overtly explained that the housing, healthcare, and nutrition benefits now included were not to be a part of a public charge determination because they demonstratively helped immigrants achieve economic stability. Those guidelines specifically noted that these types of benefits “are often provided to low-income working families to sustain and improve their ability to remain self-sufficient.” According to DHS, the stated purpose of the rule is to better ensure that “aliens subject to the public charge inadmissibility grounds are self-sufficient,” yet they fail to adequately explain why suddenly the receipt, or likely receipt, of such benefits is no longer a step toward self-sufficiency but instead a signal that one is not or will soon not be self-sufficient.

In the BBA statement on the comments, Shiva Karimi of McLane Middleton, Immigration Law Section Co-Chair and member of the BBA Immigration Working Group stated:”

The proposal runs counter to the reality of the invaluable contributions immigrants, of all income levels, make to our communities and economies. Such a dramatic expansion seems based not on sound policy meant to actually evaluate the likelihood of future government dependency, but instead on a desire to change the current nature of our immigration system and create significant barriers for certain low-income populations.

Inadequate cost-benefit analysis

While DHS does spend time addressing some of the cost and benefits of the rule, it fails to adequately calculate and explain many of the costs outlined in brief above. For example, DHS estimates that roughly 350,000 people will be impacted by the rule; however, many studies conducted since the proposed rule’s release, including the aforementioned Massachusetts Budget and Policy Center report, have estimate that the figure is closer to 25 million people.  DHS also fails to provide adequate estimates of the costs that will be incurred due to eventual public health implications of the rule and the loss of workers and talent. Any proposed regulatory changes that will likely have such sweeping nationwide impacts must be fully understood and explained, and we urge DHS to provide the public with a detailed explanation of these burdens before enacting any of the proposed changes.

Unclear Guidance and Application

Finally, our comments expressed concern about the lack of clarity provided as to how the rule should be applied and the likelihood this will result in unequal and inconsistent application of public charge determinations. The proposed regulation provides no guidance as to how much weight is to be given to the newly enumerated negative and positive factors in the totality of circumstances test, beyond those weighted “heavily.” As a result, the assessment will be highly subjective, and there will likely be significant differences in how the test is applied depending on the government agent reviewing each set of circumstances. Such inconsistencies across the system could lead to bias-based decision making and unequal applications of the test.

On this point, BBA President Jon Albano, partner at Morgan Lewis, said

As attorneys, we appreciate that without standards that are fair, clear, and consistent, we cannot provide equal access to justice for all, an essential element in maintaining faith in our public institutions.

Section Comments

We are proud to report that a number of BBA Sections have joined us in this effort and submitted their own comments. A big thanks goes out to the volunteers and leaders who made this happen!

These comments address points and concerns unique to the specific expertise and practice area of those sections. For example, the Family Law Section comments focus on the well-being of families and the best interest of children, the Health Law Section comments hone in on the specific public health consequences and costs, and the Real Estate Section highlights what the rule would mean for housing insecurity and affordable housing providers.

Read the comments submitted by the Health Law SectionReal Estate SectionDelivery of Legal Services SectionCivil Rights and Civil Liberties SectionImmigration Law Section, and Family Law Section.

Next Steps

Over 200,000 people submitted comments on the proposed public charge rule, more than doubling the initial nationwide goal set by the Protecting Immigrant Families Campaign. Locally, Massachusetts’ goal of 2,000 was also greatly exceeded with at least 5,000 comments submitted online, and perhaps even more by mail. We were lucky to have the leadership of the Massachusetts Immigrant and Refugee Advocacy Coalition, the Massachusetts Law Reform Institute, Health Law Advocates, and Health Care for All. These comments matter because at the end of the rulemaking process, the agency must base its conclusion that the proposed final rule or regulation will accomplish the goal presented on the full rulemaking record, including the public comments submitted.

We’ll keep you posted on any next steps DHS takes in relation to this proposal. And thanks to those of you who joined us by submitting comments of your own!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association