SABA North America's comment on “Public Charge"
Thursday, December 20, 2018
December 5, 2018
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529-2140
Submitted via: www.regulations.gov
Re: South Asian Bar Association of North America Comments on Proposed Rule “Inadmissibility on Public Charge Grounds”
DHS Docket No. USCIS-2010-0012
Dear Sir or Madam:
The South Asian Bar Association of North America (“SABA”) submits the following comments in response to the proposed rule, “Inadmissibility on Public Charge Grounds.” Established in 2002, SABA is an affinity bar association representing over 8,000 attorneys across North America. Our members are immigrants from or the children of immigrants from the six countries that comprise South Asia: Bangladesh, Bhutan, India, Nepal, Pakistan, and Sri Lanka. SABA North America has 26 local affiliates across the United States and Canada, with 24 of these chapters in the United States. Our members include federal judges and members of the judiciary, in-house counsel at various corporations and higher education institutions, and partners at law firms throughout the United States.
SABA opposes the proposed changes in the rules regarding “public charge” as published in the Federal Register on October 10, 2018. Upending years of practice, the proposed rule vastly expands the types of benefits that are deemed relevant to a public charge determination and replaces the current bright-line process for making public charge determinations with an unwieldy and subjective set of considerations. This proposed change significantly expands the authority of Consular Officers and the USCIS and makes their determinations unreviewable. Further, the proposed rule has a disproportionate impact on South Asian immigrants to the United States, who immigrate to the U.S. based on employment opportunities, family relationships, humanitarian considerations, or for cultural reasons. The proposed rule appears to be a solution in search of a problem as it fails to identify any data or research indicating widespread use or abuse of public benefits by immigrants.
II. Upending prior policy, the proposed rule expands the list of public benefits relevant to the public charge determination without justification.
The proposed rule upends years of legacy INS and USCIS policy by vastly expanding the types of benefits that are considered relevant to a public charge determination. To determine whom is “likely to become a public charge” and primarily dependent on the government for subsistence within the meaning of Section 212(a)(4) of the Immigration and Nationality Act, INS and the USCIS have consistently stated that means-tested cash benefits and long-term care at a government-funded institution are relevant. Other benefits, such as health and nutritional benefits and child support programs, have explicitly been excluded from such consideration. This is for good reason, as such benefits are difficult to quantify and often play an important role in ensuring good health outcomes. Additionally, in many mixed families that include U.S. citizen children and immigrant parents, such state benefits are often requested for the health and wellbeing of the U.S. Citizen child. Further, Congress also explicitly barred immigrants from applying for many benefits through legislative changes it enacted in 1996. The current rule already requires a consideration of the totality of the circumstances and introduces a measure of reasonableness in the guidelines by requiring consideration of whether an individual is “primarily dependent” on the government for subsistence.
The proposed rule would penalize immigrants for ever using any of the above benefits, thereby vastly expanding the scope of the determination. Permitting consideration of whether an immigrant or intending immigrant has ever used benefits such as Section 8 housing vouchers, SNAP benefits, non-emergency Medicaid, and Medicare Part D’s low-income subsidy is also impermissibly broad and may be “ultra vires” because it exceeds Congress’s intent in enacting Section 212(a)(4) of the INA.
Furthermore, permitting consideration of these benefits is bad policy because it ignores the health and nutritional impact of many of these benefits. While the rule attempts to exclude from consideration the use of benefits by U.S. Citizen children, it has a chilling effect and discourages eligible individuals from the use of nutritional benefits that they are legally entitled to utilize. DHS has sought comment on whether it should incorporate other benefits, such as WIC benefits, in the public charge determination. SABA urges DHS not to consider these benefits because of the detrimental impact of their consideration on the health and nutrition of families and individuals in the United States. We urge DHS to withdraw the proposed rule and to continue its reliance on pre-existing agency guidance on benefits programs considered relevant to this determination.
III. The proposed rule also delegates to Consular and DHS officers an opportunity to make public charge determinations based on subjective criteria, thereby increasing the likelihood of discrimination against South Asian immigrants.
The current public charge determination process clearly defines the benefits and considerations that, immigration officers should consider when making public charge determinations. Further, the proposed rule already requires a totality of circumstances assessment of various factors, and the affidavit of support, in making a public charge determination.
The proposed rule would give immigration officers much wider discretion to grant or deny the applications before them. Criteria considered include age, where seniority and youth are both negative factors; issues with credit history; pre-existing medical conditions; and other subjective criteria. Immigration officers are not trained to make determinations based upon such criteria. An officer now has vast authority to make such a determination even if the intended immigrant can provide an affidavit of support meeting 125% of the federal poverty level, which is the current standard. The expanded standard allows consular officers to make vastly broader determinations and explicitly notes that public charge determinations are barred from agency or judicial review. It also gives immigration officers broad authority to require an intending immigrant to post a bond. It would therefore be difficult, if not impossible, to challenge those determinations as discriminatory or unfair in an administrative tribunal or court of law, effectively eliminating any meaningful due process for intended immigrants.
IV. Impact on South Asian community in the U.S.
The new rule affects “all aliens seeking an extension of stay or change of status” or who are otherwise seeking admission, which includes not only those seeking green cards, but also those who are applying to extend the length of a temporary visa or to change a status in the United States and permanent residents returning to the United States after a lengthy absence. This rule will have a disproportionate impact on South Asians as they are one of the top countries of origin for legal non-citizens, with more than 550,000 South Asians currently residing in the U.S., according to the Migration Policy Institute, which used immigration data collected from the years 2014 to 2016.
This would have a dramatic effect on anybody seeking non-immigrant status, such as an H-1B extension, a change of status, from F-1 to H-1B, R1, etc. South Asians would again be disproportionately affected as Indian citizens are among the primary holders of H-1B status in the United States. An individual applicant for admission may not be able to address these financial requirements through sponsorship, and would have to establish new and higher household income threshold at 250% of the poverty guidelines: an annual household income of $41,150 (for a couple with no children) and up to $73,550 (for a family of five). This threshold could have a large impact on the eligibility of many intending immigrants, and would make it very difficult for students, entry-level workers, and other individuals to seek admission to the U.S. As such, the application of this rule would tip the scales to disfavor the admission of immigrants seeking to establish a life for themselves in the United States and sends a message that only those immigrants with significant financial resources are welcome here. Study after study has shown that immigrants are job-creators and provide a net benefit to the United States rather than constituting a drain on the country. New barriers to the admission of South Asian immigrants in various statuses to the United States would undermine the American economy, harm our higher education institutions and American businesses, and undermine the next set of entrepreneurs seeking to enter the United States and create jobs.
The new rule would also have a detrimental impact because it adds another bureaucratic hurdle to the process of seeking immigration benefits in the United States. Requiring applicants for an extension or a change of status completing the form I-129 or I-539 to complete an additional form I-944 places an additional burden on a strained immigration system that is already characterized by delays. Rather than making the immigration process more efficient, the proposed rule adds more bureaucracy to the process without a predicate factual justification.
The new rule would also have a significant impact on South Asian cultural institutions that sponsor religious workers for visas. These religious worker visas are essential to the cultural fabric of the United States, and allow Americans of South Asian descent to pursue their First Amendment rights by engaging in the free exercise of religion. Religious institutions catering to the Hindu, Sikh, Muslim, and Jain communities (among others) all frequently sponsor priests/ imams/similar religious workers for temporary status in the United States on R1 visas. The new rule would deem almost all of them potential public charges and inadmissible to the U.S. For example, Hindu temples often petition for ministers from India to lead their congregation since there are very few trained ministers in the U.S. In the petition, the temple might state that it would provide free housing, all meals, and health insurance to the priest as part of the employment package. The temple might also provide a small stipend to the priest to cover incidental expenses. This described compensation is in lieu of a salary and represents a generous compensation offer from these institutions, which are often nonprofit in nature and financially supported through volunteer contributions. Nevertheless, a consular officer considering the age of the applicant and his or her limited English proficiency and/or formal education might conclude that the employment offer and its mix of monetary and non-monetary compensation is insufficient to overcome the public charge grounds based on the totality of the circumstances, resulting in denial of a visa application. This would severely harm the South Asian community and the United States as a whole by reducing the richness of our cultural fabric.
The H-1B visa applies to highly skilled workers at U.S. companies who are neither citizens nor green card holders. A large majority of these visas are held by South Asians, so a change in how they are adjudicated would have a direct impact on our community. U.S. employers will find it more difficult and less predictable to extend the status of a highly skilled worker on an H-1B visa or to recruit students concerned about their ability to subsequently obtain a visa to work in the United States based on a job offer.
Unless the employer is paying the worker more than the newly created 250% threshold, they might not be able to renew their work visa and stay in the United States. USCIS adjudicators and consular officers will be tasked under these new guidelines to make complex and subjective public charge determinations, creating extensive delays and resulting in many improper denials.
SABA opposes this rule as it is bringing unneeded and unwelcome change to a portion of the system that currently works. Changing the framework and vastly expanding the types of benefits considered relevant to the determination of “public charge” greatly expands the power of Consular Officers and USCIS, while making their determinations unreviewable. This leaves immigrants no recourse if their cases are handled unfairly. Additionally, including benefits that improve health and nutrition, damages the communities in which immigrants live by decreasing their chances of success. We can see no benefits to the proposed rule change, and indeed a myriad of negative consequences if it is implemented.
SABA North America