USCIS Crowdsourcing Public Charge Revision

Biden administration appears poised to weaken this ground of inadmissibility

By Robert Law on August 27, 2021

While most of the country is focused on the worsening border crisis and the disastrous execution of the Afghanistan withdrawal, the Biden administration quietly announced it is pursuing changes to the legal immigration system. Last Friday, U.S. Citizenship and Immigration Services (USCIS) unveiled an Advance Notice of Proposed Rulemaking (ANPRM) on the public charge ground of inadmissibility. The purpose of an ANPRM is to solicit input and data from the general public prior to drafting and publishing a Notice of Proposed Rulemaking (NPRM). Put another way, USCIS is yet again crowdsourcing ideas because the political team seems incapable of articulating a sound policy position on its own.

The concept of public charge, namely that aliens should be economically self-sufficient, has been a part of U.S. immigration law dating back to at least 1882. 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 1996, Congress passed two major pieces of legislation aimed at reducing welfare use and enforcing U.S. immigration law, known as the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). 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.” Tellingly, this seminal statement of alien self-sufficiency is buried in a footnote in the ANPRM.

In response to these new laws, the Clinton administration issued Interim Field Guidance and a proposed rule in 1999 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. Namely, 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.

Despite fully complying with the notice and comment rulemaking requirements under the APA, the public charge final rule was held up by district court judges and eventually the Biden administration was allowed to kill it by refusing to defend it in court. As a result, USCIS reverted to the 1999 Interim Field Guidance definition for considering whether an alien is inadmissible as a public charge. As mentioned above, this standard is incredibly generous, allowing an alien up to 50 percent usage of cash welfare as well as unlimited usage of non-cash welfare without being considered inadmissible as a public charge.

The fact that USCIS has published a public charge ANPRM tells me that the Biden administration views even the 1999 Interim Field Guidance as too onerous for prospective immigrants. Citing President Biden’s dubious Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits”, USCIS is asking the public for help. As I have repeatedly criticized, E.O. 14012 is inherently flawed because it fails to define “barriers” and instead functions as the “source of authority” for undermining immigration laws the administration dislikes.

Which means the Biden political appointees at USCIS have pre-determined that aliens should be allowed access to even more U.S. taxpayer-funded benefits without being deemed inadmissible as public charges. By issuing an ANPRM, it is clear that Team Biden lacks an articulable justification that would pass muster under the APA and is asking advocates of unlimited immigration to come up with something for them that will be plugged into a future NPRM. Supporters of the rule of law are also allowed to participate in the comment period, which runs from August 23 through 11:59 p.m. Eastern Time on October 22, 2021. Those who are interested can submit a public comment here.