Public Comment of New York Lawyers for the Public Interest  

Regarding “Public Charge” Grounds of Inadmissibility  

DHS Docket No. USCIS-2021-0013 

April 25, 2022 

New York Lawyers for the Public Interest (NYLPI) submits this comment in response to the  Department of Homeland Security’s (DHS) notice of proposed rulemaking (NPRM) published on February 24, 2022. For more than 40 years, NYLPI has been a leading civil rights and legal services advocate for New Yorkers marginalized by race, poverty, disability, and immigration status. Our work integrates the power of individual legal services, impact litigation, and comprehensive organizing and policy campaigns. Guided by the priorities of our communities,  we strive to create equal access to health care, achieve equality of opportunity and self-determination for people with disabilities, ensure immigrant opportunity, strengthen local nonprofit organizations, and secure environmental justice for low-income communities and communities of color. 

The public charge rule harms the communities NYLPI serves through our Health Justice and  Disability Justice programs. NYLPI has been at the forefront of addressing the lack of access to healthcare for immigrant populations in our community and in immigration detention. We provide immigration representation, individual advocacy for health care services and benefits,  litigate civil rights claims, and provide critical information about healthcare and other health-related matters to the communities we work with. Through our work we have documented the life-changing effect access to public benefits has on the lives of immigrants, and advocate for accessible healthcare for all people, regardless of immigration status, age, disability or employment status. In addition to our extensive work combatting discrimination against people with disabilities, we have also helped people with debilitating and life-threatening conditions, such as End Stage Renal Disease, go on to live healthier lives and achieve their personal and professional goals when they received a kidney transplant after becoming eligible for Medicaid. 

NYLPI has seen clients make the gut-wrenching decision to forgo public benefits for fear that  not doing so will destroy their hope to someday become citizens of the United States. No person should have to make the choice between the stability and protection afforded by immigration status, versus keeping oneself or one’s family fed, healthy, and sheltered. The catastrophic impact of these individual decisions, aggregated, cannot be sufficiently underscored. People are delaying or entirely giving up medical care for life-threatening health conditions because they fear losing the chance to be integrated into the fabric of our society. If this continues, the long term effects on public health, health disparities, and the economy could be devastating to the nation as a whole.

While we believe that the public charge rule is unjust, discriminatorily applied, and should not exist, if it will continue to be implemented, it should be both clearly defined and used in a way that allows individual circumstances to be better considered. Without these improvements, many people, including our clients, will face life-threatening consequences. In this comment, we outline the ways that the public charge rule, as it is currently written, has a detrimental effect on the lives of our clients, and therefore propose ways to help mitigate the harm it causes in our client communities. 

Despite DHS’s attempts to address these concerns in the proposed rule, there are three outstanding issues that must be addressed: although changes have been made since the 1999 and  2019 rules, DHS must provide greater clarity as to key terms and concepts, as well as the standard for public charge determinations; DHS should not use the statutory factors discussed below because of the significant potential for discriminatory harm; and DHS must exclude the use of cash assistance and long-term institutionalized care in their determinations. 

1. DHS Must Clarify the Standards for Determinations and How Officials Will  Employ Them within in the Rule Itself – Not in Later Guidance. 

DHS has emphasized the intent to minimize “confusion and uncertainty” in the proposed rule,  but this has not been accomplished as the clarifying guidance has yet to be published. The proposed rule uses the word “objective” when referring to the nature of the factors to be considered in the public charge determination, but they are, in fact, entirely subjective: there is no distinct standard issued for adjudicators or officers to navigate the relevant factors.  

DHS has proposed that “[t]he determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances.” “[N]one of the statutory minimum factors other than the lack of a sufficient Affidavit of Support Under  Section 213A of the INA, if required, ‘should be the sole criterion for determining if an alien is likely to become a public charge,’” but “DHS may periodically issue guidance to adjudicators to inform the totality of the circumstances assessment. Such guidance will consider how these  factors affect the likelihood that the alien will become a public charge at any time based on an  empirical analysis of the best-available data as appropriate.”

Because DHS proposes to issue guidance later as to how the totality of circumstances should be assessed, those affected still have no knowledge, clarity, or certainty as to how the factors will be weighed. The use of future guidance to determine who will become a public charge allows DHS  to change the standard without the use of the full notice and comment rulemaking process, avoiding accountability and compromising consistency. The totality of the circumstances test is an essential part of understanding how someone is found to be a public charge, but it is conspicuously vague and undefined in the rule itself. This is a concern for the affected individuals, who may find it even more difficult to have a full understanding of the rule and its implications for them. Because DHS (1) proposes that it may periodically issue guidance to adjudicators and (2) retains discretion as to the weight of each statutory factor, there is no concrete information as to the totality of the circumstances assessment – and there should be. 

For example, NYLPI has clients who have refrained from enrolling in state-funded Medicaid due to fear that the public charge rule would apply to them. One particular client later found out his fear was based on misinformation and enrolled. However, this indicates that there are many people who do not fully understand the rule or who it impacts.  

Ultimately, DHS needs to provide greater clarity within the rule itself – not in later guidance – as to the standard for determinations and how it will be employed by officials in practice. 

1. DHS Should Not Use Certain Statutory Factors Because They Have Significant  Potential for Discriminatory Harm. 

DHS’s approach to the use of statutory factors when determining whether someone is a public charge has the potential for discriminatory harm due to a person’s age, health status and disability, as well as factors that correlate to those identities and other categories, including race and gender. 

8 U.S.C. 1182(a)(4)(B) states that DHS must, at minimum, consider a list of statutory factors when evaluating an individual and assessing whether they are likely to become a public charge.  However, each of these statutory factors allows the officer to unfairly discriminate – even without any intention to do so – against a noncitizen based on health or disability status.  Inherently, the statutory factors unfairly privilege healthy, able-bodied, and neurotypical persons over persons with chronic health conditions and/or disabilities for a variety of intersectional reasons. The factors also do not take into account the reality of institutionalized racism and the significant difference between the generational resources and assets of white families in comparison to BIPOC families. In this way, the use of these discretionary factors enables the public charge rule to still do exactly what it was written to do more than a century ago: prevent certain groups from accessing permanent forms of immigration status in the United States. 

NYLPI works directly with clients who are most impacted by the use of these statutory factors under the public charge rule, including undocumented immigrant New Yorkers who are seriously ill and people with disabilities. As a result, we will focus on the health factor as well as health’s impact on the education and skills factor and the financial resources factor, based on their outsized impact on our clients and communities. 

1. Considering “Health” in the Public Charge Determination is Unfair.  

NYLPI strongly believes that a person’s health status should never be considered when evaluating whether they are likely to become a public charge because it unfairly discriminates against individuals from communities where preventative care and other services are not widely accessible, as well as against individuals who have chronic health conditions and/or disabilities. All people, regardless of health condition or disability, can contribute to their communities in the United States.  

However, if health will continue to be used as a factor in a determination under the public charge rule, it must expressly account for the social determinants of health and the full context of the individual’s circumstances. Social determinants of health refer to an intersectional understanding  of how an individual person stays healthy; while some of a person’s health profile may be based in family history or personal habits, it is equally important to consider the environments where  the person was raised and whether they could access care and other resources.5 

For example, NYLPI represents numerous clients with End Stage Renal Disease, who, because of  the severity of their condition, are no longer able to work. This is in part due to the time commitment involved in dialysis – often four hours per session and three days per week – and transportation to and from appointments. The process is also exhausting, with many clients unable to do much after their dialysis appointments. 

Racial and economic disparities permeate every aspect of kidney disease. Poor and working class Americans, along with those from racial and ethnic minorities, are more likely to have diabetes and hypertension due to a lack of access to comprehensive healthcare and healthy food,  and those conditions can then make one’s kidneys more likely to fail. As noted above, once one’s kidneys have failed, the dialysis treatments one needs to stay alive are exhausting and take up a significant amount of time during the week, making it difficult to maintain regular employment.  

This is just one example of the ways in which all aspects of one’s environment and identity contribute to health and wellbeing, not solely one’s individual choices. Individuals exposed to racism, polluted air and water, and who lack safe housing cannot be evaluated under the same set of health expectations as someone who had a more secure upbringing with greater social support. Otherwise, the individual who has already been underserved throughout their life will continue to be overlooked and disregarded.  

1. The Other Public Charge Determination Factors are Also Impacted by  Health, and Considering Such Factors is Unfair. 

People with chronic health conditions and/or disabilities, including the client communities that  NYLPI serves, face heightened healthcare costs as well as disproportionate barriers to education and employment, making them unable to show significant assets or resources, which remain statutory factors in the public charge determination.  

For example, one of our clients was unable to pursue higher education in part because he was focused on his health, waiting for a heart transplant; it was not until after he received the transplant that he was able to return to his studies. At that point, he was already over the age of 18 and limited to GED courses.  

In the U.S., disparities in education and educational barriers for people with disabilities have been ongoing for generations, resulting in lower rates of high school completion. Great disparities also exist in attaining degrees in higher education. Additionally, unemployment rates for people with disabilities in New York and throughout the country are still drastically higher than those for people without disabilities. The education and income factors are clearly impacted by one’s access to educational resources and the availability of jobs that can accommodate the needs of people with disabilities and chronic illnesses. As long as there is a  disparity in these areas, these factors should not be part of the evaluation as to whether an individual will become a public charge. 

Many of NYLPI’s clients are patients whose kidneys have failed, and organ transplants are some of the most expensive medical procedures in the country. The cost is one reason that low-income kidney failure patients, who are disproportionately Black or Hispanic, face tougher paths to transplants. Therefore, even though “race” is not a mandatory factor in the determination, low income minority kidney failure patients have many obstacles to face in the path to receiving a  transplant that are indirectly tied to their identity as people of color. The clients NYLPI works with are often unable to accumulate the significant assets necessary to get the life-saving treatment they need, in part because of the health expenses they face at every turn while being limited in their capacity to work full-time hours due to their dialysis schedules. This is yet another example of how the accumulation of assets and resources, which are factors in the public charge determination, is directly correlated to an individual’s health status. 

A large portion of the population continues to face heightened healthcare costs as we continue to live through the ever-evolving COVID-19 pandemic. Learning about the wide-reaching consequences of COVID-19 requires extensive resources, both human and monetary, to address critical health conditions. Thus, evaluating someone according to the statutory factors should never be done without considering the person’s full life circumstances; otherwise, the officer will continue to privilege those who already have benefited from privileged circumstances. 

1. DHS Should Use the Affidavit of Support as a Primary Factor. 

NYLPI appreciates and acknowledges the proposed rule affording greater weight to the Affidavit of Support under Section 213A, as NYLPI and other advocates had previously recommended;  however, we recommend that DHS use the Affidavit as a primary factor in the public charge determination. The Affidavit can demonstrate the nuance of a person’s circumstances and how different parts of their identity combine, making it the only factor that could accurately reflect the likelihood of an individual’s reliance on government benefits. 

For instance, there may be explanations as to why a person used cash assistance for a period of time, such as taking time off from full-time work to temporarily care for a relative. However, the current statutory factors can be assessed in varying and potentially inconsistent ways that depend on the officer conducting the evaluation, while a nuanced and individualized explanation of why a person used benefits can only be provided through the affidavit. Therefore, the affidavit is the most relevant factor for an accurate determination. 

If DHS will not specify how much weight each factor will be given, it could still make the submission of an Affidavit of Support a primary factor, so the determination will be less onerous while still establishing an accurate likelihood of an individual’s reliance on government benefits. 

III. DHS Must Better Clarify Key Terms and Concepts to Avoid Ongoing Confusion and the Chilling Effect That Will Continue to Prevent Eligible Individuals from  Receiving Benefits. 

1. DHS Should Reconsider its Proposed Text Because “Primarily Dependent” is  Not Indicative of an Individual Becoming a Public Charge. 

NYLPI recommends DHS delete the proposed regulatory text and replace it with “8 CFR §  212.21 (a) Likely at any time to become primarily dependent on the government for subsistence,  as demonstrated by either the receipt of (1) Supplemental Security Income (SSI) or (2) Cash  assistance for income maintenance under the Temporary Assistance for Needy Families (TANF),  42 U.S.C. 601 et seq.” 

For more than 100 years, the interpretation of the public charge ground of inadmissibility  remained consistent: a public charge for inadmissibility purposes is a person who “is likely to  become primarily dependent on the government for subsistence.” The only two programs that should be relevant in determining whether a person is “likely at any time to become primarily dependent on the government for subsistence” are SSI and cash assistance under TANF (other than supplemental or special purpose cash benefits). 

However, receipt of TANF or SSI programs alone should not make someone likely to become a  public charge, as proposed in 8 CFR § 212.22(a)(3). Adjudicators should consider only an applicant’s current use of TANF and SSI. Individuals who received benefits in the past and no longer receive them have experienced a change in circumstances that may make them unlikely to need benefits in the future. 

The proposed rule states that “although the term ‘public charge’ does not have a single clear  meaning, its basic thrust is clear.” However, what would be most efficient for purposes of transparency and clearing up the differing definitions over the years is to explicitly define the meaning of “Public Charge” in the 2022 proposed rule.  

Furthermore, DHS proposes to define “likely at any time to become a public charge” as “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.” It claims that this approach, rather than defining the term “public charge,” provides a closer connection between the exact language used in the statutory standard and the regulatory definition.16 Indeed, the connection may be closer, but as stated,  independently defining “public charge” would alleviate confusion by mitigating the risk of discouraging noncitizens from obtaining healthcare coverage.  

If DHS will continue to use the standard of “primarily dependent,” it must straightforwardly define “primarily,” which has yet to be given an explicit definition. DHS elaborates in its proposed rule as to the meaning of “primarily” by stating that can be “demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense,” but “long-term institutionalization” also lacks a definition. 

The absence of a definition for “long-term institutionalization” and the perplexing reactions it will cause are discussed to a greater extent in Subsection IV below. Regardless, the definition in the 2022 NPRM leaves individuals wondering what the true meaning of “primarily” is. For the determination to be applied consistently when administering the public charge ground of inadmissibility, the proposed rule must shy away from the former practice of “broad discretion” and specify a threshold associated with the standard. Absent clarity as to how “public charge” is currently defined and a standard as to what makes a person “primarily dependent” or “likely to become primarily dependent,” there will continue to be ongoing fear and confusion in the immigrant community. 

1. DHS Should Not Include Cash Assistance in the Public Charge  

Determination. 

DHS proposes that public cash assistance for income maintenance would mean: (1)  Supplemental Security Income (SSI), (2) Cash assistance for income maintenance under  Temporary Assistance for Needy Families (TANF), or (3) State, Tribal, territorial, or local cash benefit programs for income maintenance. Cash assistance should not be included in determinations for public charge because it is not indicative of an individual being “primarily dependent” on government benefits. However, if DHS will continue to consider the use of cash assistance in their determinations, they should only consider SSI and TANF, as those are clearly defined programs and would eliminate confusion as to what cash benefit programs are included. 

Programs funded by state and local government —including any cash assistance that they choose to provide—are an exercise of the powers traditionally reserved to the states. Limiting consideration to federal benefits would result in a single, uniform, federal standard. NYLPI  strongly recommends excluding all state and local benefits from consideration in a public charge determination. 

The section of the proposed rule regarding cash assistance is yet again an area that will cause significant miscommunication in how the rule is applied in practice, as well as how affected individuals interpret it. The chilling effect will persist, as even if the person knows about the  

limitation on cash assistance, it may not be clear where the line is drawn as to what is included and what is not. 

1. DHS Should Not Continue to Include Long-Term Institutionalized Care in its  Determinations, But If it Does, Long-Term Institutionalized Care Must Be Clearly  Defined. 

NYLPI opposes the inclusion of long-term institutionalized care as a factor because it impacts our clients and deters them from accessing necessary care. DHS should not continue to include the use of long-term institutionalized care in their determinations because of the disparate impacts it has on communities where preventative care is not easily accessible, but if it is to continue, “long-term institutionalization” must be clearly defined. 

For example, NYLPI has clients who have withheld enrollment in public benefits because they were unaware that state Medicaid does not necessarily mean long-term care, and thus would be inapplicable to the public charge rule. Conversations NYLPI has had with such clients establish that the ambiguous language used regarding long-term institutionalized care confuses and misinforms the public. 

In the proposed rule, “long-term institutionalization” is characterized by uninterrupted, extended periods of stay in an institution, such as a nursing home or a mental health institution, but that definition remains vague and ambiguous. Those in fear will fail to understand the rule because it does not define “long-term institutionalization,” nor the time period required for it to be considered long-term, and it provides a mere two institutional examples of what would qualify. 

This is yet another place for individual officers to make determinations that vary widely from one another; perhaps to one person six months seems like an extended period, and to another, six years seems more appropriate. Inclusion of guidelines in later guidance is not adequate; basic definitions should be included in the rule itself. 

For example, NYLPI has also spoken to community members who need services through the Office for People with Developmental Disabilities, but they are unclear as to what services  would fall under the definition of “long-term institutionalized care.” Even if the care they need is not ultimately included under the definition, it is unclear and confusing to someone reading the rule. 

The lack of enrollment in public benefits due to ongoing fear and confusion in the immigrant community will not improve without clear definitions. 

Additionally, NYLPI has worked with clients who are living with long-haul COVID, which has left them with the need for more comprehensive health services, including temporary stays in nursing homes or the need for home health aides. An unclear definition of what counts as “long term institutionalized care” could prevent those individuals from receiving the vital healthcare they need. The same is true for the elderly clients NYLPI has worked with, who may need more regular assistance from home health aides but are unsure what the implications could be for their immigration status. 

The use of long-term institutionalization is not an indicator of one’s future dependence on the government, even according to the definition currently proposed by DHS. Accordingly, NYLPI  disagrees with DHS’s inclusion of long-term institutionalization in the determination and suggests that it not be considered. 

1. Conclusion 

The proposed rule is long, difficult to understand, leaves determinations dependent on future guidance, and re-defines words and phrases previously used with words that need their own definitions. The continuous use of discretionary factors enables the public charge rule to prevent certain groups of people from becoming, or remaining, contributing members of society in the  United States. NYLPI strongly believes that the public charge rule should not exist, and if it continues to be implemented, it should be both clearly defined and used in a way that allows individual circumstances to be better considered.  

Submitted April 25, 2022 

Hannah Ross, Pro Bono Scholar, Health Justice Program, [email protected]
Emily Hodgkins, Legal Fellow, Health Justice Program, [email protected].org

New York Lawyers for the Public Interest
151 West 30th Street, 11th Floor
New York, NY 10001
www.nylpi.org