Statement Opposing Proposed Changes to Broaden “Public Charge” Rule

“Public charge” has long been a feature of U.S. immigration law as a ground of inadmissibility that applies to non-citizen visa holders entering the U.S. and applicants for adjustment to lawful permanent resident (“LPR”) status, primarily those who are seeking admission or adjustment based on their relationship to a family member already in the U.S.  Public charge has been defined narrowly to mean only those applicants for admission or adjustment who were assessed to be “primarily dependent” on government cash assistance or long-term institutional care for subsistence.^[3] “In-kind” benefits such as Medicaid and Supplemental Nutritional Assistance Program (“SNAP”, or “Food Stamps”) have not counted towards the public charge assessment, and having a financially sound financial sponsor has been enough to overcome an applicant’s low income. Under this current definition, relatively few non-citizens have been denied admission or prevented from adjusting to LPR status on “public charge” grounds.^[4]

The new rule would shift the focus of the public charge determination away from the ability of the sponsor to provide financially for the applicant^[5] to focus almost exclusively on the applicant for admission or adjustment. For the first time, use of in-kind health and nutrition benefits would count against the applicant. DHS’s examination proposes to focus on factors such as: limited English proficiency, family size, having physical or mental health conditions that could affect ability to work, or simply being too young or too old to work and credit score. Having a financially-eligible sponsor willing to complete a binding affidavit of support would merely be one of many factors, instead of being practically determinative as it properly is today.

One of the only heavily-weighted positive factors a non-citizen applying for admission or adjustment could demonstrate under the proposed new rules is having an income or resources ample enough to not only cover his or her own expenses but his or her entire family (regardless of their immigration status) at a level over 250 percent of the federal poverty level,^[6] or nearly $63,000 per year for a family of four. Even meeting this standard would not be determinative under the proposed rules, however. Regardless of the income of the applicant for admission or adjustment, his or her receipt of SNAP, Medicaid, federal housing assistance and Medicare Part D subsidies could still be negative factors which may result in denial of the application for admission or lawful permanent residence.^[7]

The proposed regulation would bring public charge assessments to a much darker past, when it was asserted as a tool of racial and ethnic discrimination.  In the 1800s, not becoming a public charge was a condition imposed on African-Americans seeking freedom from slavery.^[8] Public charge was later used as a justification for federal and state agencies to deny admission to low-income Irish immigrants,^[9] and to Jews fleeing Nazi persecution.^[10] Under DHS’s proposed rule, low-income non-citizens would again face a barrier to entry and lawful permanent resident status, one based largely on economic status and rooted in discriminatory bias.

The final proposed rule will not go into effect while the notice and comment period is still underway — a process that will not be completed for several months. However, the rule is already causing even those non-citizens who are exempt from public charge consideration, such as refugees and asylees, to fear applying for or continuing to receive benefits that they are eligible for, including health and nutrition benefits.^[11] Medical experts warn that these changes to the public charge rule will result in decreases in Medicaid enrollment, increased emergency room medical care, and increased patient costs incurred by both patients and hospitals.^[12]

Expansion of the public charge rule will have a devastating impact on children, families and communities. If concerns about any receipt of public benefits in the household, even for U.S. citizen children to whom the rule changes do not apply, cause households to forego access to nutrition supports under SNAP, the entire family will suffer from increased food insecurity. Similarly, loss of health care will not only make the entire household more susceptible to increased illness, but will also undermine overall public health and safety for all individuals in the United States, regardless of immigration status. Children, people with disabilities and the elderly will be particularly affected. This rule may further erode non-citizens’ trust in public institutions, even those that are not implicated by the proposed rule change.

Ultimately, one of the worst impacts will be the way in which this rule could tear families apart. Many of the persons seeking admission or adjustment to lawful permanent resident status are doing so through immediate family members: U.S. citizen spouses, parents, and children. One recent report estimates that this rule could result in the separation of at least 200,000 married couples annually as applications for lawful permanent residence by immediate family members are denied.^[13]

New York City has over 3.3 million foreign-born residents.^[14] The proposed changes to the public charge regulation would not only prioritize wealthy, able-bodied, English-speaking immigrants above other immigrants, including those with sound financial sponsors, but will also force immigrant families to choose between receiving government assistance and improved immigration status. No family members should have to choose between life-sustaining benefits and possible family separation. The diversity of our immigrant community members is a strength of our City and an abiding strength of our nation.  For these reasons, the City Bar staunchly opposes this rule and urges its swift reconsideration.

Immigration and Nationality Law Committee
Victoria F. Neilson, Chair

Social Welfare Law Committee
Susan E. Welber, Chair

Bioethical Issues Committee*
Alan J. Brudner, Chair

Children & the Law*
Sara L. Hiltzik, Chair

Civil Right to Counsel Task Force*
Alison McKinnell King and Andrew A. Scherer, Co-Chairs

Civil Rights Committee*
Phil Desgranges, Chair

Council on Children*
Lauren A. Shapiro, Chair

Disability Law Committee*
John W. Egan, Chair

Domestic Violence Committee*
Amanda M. Beltz, Chair

Enhance Diversity in the Profession Committee*
Kathy Chin, Co-Chair

European Affairs Committee*
Victor P. Muskin, Chair

Family Court & Family Law Committee*
Glenn Metsch-Ampel, Chair

Federal Courts Committee*
Laura G. Birger, Chair

Health Law Committee*
Brian McGovern, Chair

Housing Court Committee*
Justin R. La Mort, Chair

Housing & Urban Development Committee*
Daniel M. Bernstein, Co-Chair

International Human Rights Committee*
Lauren  Melkus, Chair

Labor & Employment Law Committee*
Katherine A. Greenberg, Chair

Legal Problems of the Aging Committee*
Britt Burner, Chair

Lesbian, Gay, Bisexual & Transgender Rights Committee*
Noah E. Lewis, Chair

Mental Health Law Committee*
Naomi Weinstein, Chair

Pro Bono & Legal Services Committee*
Amy P. Barasch and Jennifer K. Brown, Co-Chairs

Sex & Law Committee*
Mirah Curzer and Melissa Lee, Co-Chairs

United Nations Committee*
Simon O’Connor, Chair

October 2018

*Indicates a committee that signed on in support after the initial issuance of this statement. Updated as of Jan. 11, 2019.