After crowdsourcing ideas from the public last summer on how to define the “public charge” ground of inadmissibility, U.S. Citizenship and Immigration Services (USCIS) has published a notice of proposed rulemaking (NPRM). Curiously, despite receiving suggestions, including from the Center, the Biden administration is just planning to adopt the Clinton-era policy definition as a regulation. If the current political team is so keen on the Clinton-era definition, it begs the question of why they bothered to have career staff put in the time and effort to draft the advance NPRM.
Under section 212(a)(4) of the Immigration and Nationality Act (INA), an alien seeking admission or adjustment of status is inadmissible if he or she is “likely at any time to become a public charge”. While the statute does not define “public charge”, Congress did provide several mandatory factors that must be taken into account when assessing whether or not an alien is a public charge. Specifically, the consular officer or USCIS adjudicator must consider the alien’s (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. The government may also consider any affidavit of support when making the public charge determination.
In 1999, the Clinton administration issued Interim Field Guidance and a proposed rule defining public charge. The guidance, sometimes referred to as the “Pearson Memo” since the regulation was never finalized, defined a public charge as an alien “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”
The 1999 Interim Field Guidance remained the standard for public charge until the Trump administration determined that its formula was inconsistent with the general principles of self-sufficiency that underlie U.S. immigration law.
While today’s advocates of unlimited immigration suggest otherwise, the concept that aliens should be economically self-sufficient has been a part of U.S. immigration law dating back to at least 1882. Additionally, in drafting its own rule, the Trump administration pointed to the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, a law passed three years before the Pearson Memo was issued. In PRWORA, Congress made abundantly clear its view of immigration and welfare use, declaring “it continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and the availability of public benefits not constitute an incentive for immigration to the United States.”
The Trump administration’s rulemaking exposed two glaring flaws with the Pearson Memo: the guidance permitted substantial welfare use as long as the alien was not primarily dependent (i.e., more than 50 percent) and excluded non-cash welfare assistance, which skyrocketed after the 1996 reforms. To remedy this, the Trump administration redefined public charge through the rulemaking process required under the Administrative Procedure Act (APA). Specifically, this final rule defined public charge to mean “an alien who receives one or more public benefits, as defined in [the rule], for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months.” In addition to traditional cash welfare benefits, the final rule included SNAP (formerly known as food stamps), Medicaid, Section 8 housing assistance, Section 8 rental assistance, and most other forms of housing assistance. Consistent with the Pearson memo, the final rule operated under a totality of the circumstances test, so no one factor was determinative.
While it is an administration’s prerogative to change policies, the Biden administration has created a side-door to circumvent the requirements of the APA by having friendly judges discard a previous administration’s work. Having already axed the Trump regulation this way, the Biden administration is clearly trying to convert the Pearson standard from policy to regulation to make it harder for the next Republican administration to redefine “public charge”.
The Biden administration’s NPRM can be viewed here and the public will have 60 days to submit comments once the document officially publishes in the Federal Register.