These comments available as a PDF here.
Residents and Admissibility Branch
Residents and Naturalization Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
DHS, 5900 Capital Gateway Drive
Camp Springs MD 20746
Autistic Self Advocacy Network Re: Advance Notice of Proposed Rulemaking, DHS Docket No. USCIS-2021-0013, “Public Charge Ground of Inadmissibility”
The Autistic Self Advocacy Network (ASAN) appreciates the opportunity to provide information for the Department of Homeland Security (DHS)’s Advance Notice of Proposed Rulemaking (ANPRM) concerning potential amendments to its regulations concerning whether an immigrant is likely at any time to become a public charge.” ASAN shares DHS’ stated goals of ensuring that its public charge regulations are fair and do not chill immigrants’ application for the public benefits to which they are entitled.
ASAN is the nation’s largest 501(c)(3) nonprofit advocacy organization run by and for autistic people ourselves. ASAN’s mission is to advance self-determination, equal opportunity, equal access, and equal rights for all autistic people and others with intellectual and developmental disabilities (IDD) – not solely United States citizens. ASAN therefore has a vested interest in ensuring that immigrants with a range of disabilities, support needs, desires, and goals enter the United States. ASAN recognizes that regulations governing public charge have a disproportionate impact on immigrants with disabilities.
Although our comments will focus on ways to amend the public charge regulations, we wish to first express our opposition to the Immigration and Naturalization Act’s (INA’s) exclusion of people “likely . . . to become a public charge.” This ground for inadmissibility arises from a racist, ableist, eugenicist law enacted in the early 1880s. Since then, the public charge ground has been used or proposed for use as a tool to exclude low-income immigrants, immigrants of color, and immigrants with disabilities. The law assumes that a person’s need for government assistance decreases the value of that person to the United States – an assumption which ignores the legal, social, cultural, and economic contributions of countless people. The law particularly has a significant impact upon people with disabilities, who often require services that only the government pays for, such as Medicaid-funded home and community-based services (HCBS).
ASAN nevertheless recognizes that DHS intends to implement the public charge provisions of the INA until such time as it is repealed. Until such time, therefore, our comments focus on minimizing harms to people with disabilities – particularly for people with disabilities who are also Black, Indigenous People of Color (BIPOC) – that can result from the public charge rule.
How should DHS define the term ‘‘public charge’’? What data or evidence is available and relevant to how DHS should define the term “public charge”?
We reiterate that ASAN opposes the idea that an individual should be excluded from immigration or from a change in immigration status on the basis of whether or not they rely on government benefits. Nonetheless, in the interest of ensuring that the rule is applied fairly, ASAN proposes the following definition of the term “public charge”:
A person likely to become a public charge is a person who is likely to become completely and permanently reliant on the federal government to avoid destitution. Individuals who are likely to rely solely on government assistance due to disability, and individuals who, due to their disability, are likely to be required to rely on direct financial assistance from the federal government in order to maintain eligibility for programs that are direct payers of disability and/or support services, cannot be deemed inadmissible based on their likelihood of becoming a public charge.
ASAN’s proposed definition of public charge is similar to the definition proposed by other immigration groups, such as the Protecting Immigrant Families (PIF) coalition. In particular, ASAN shares PIF’s opinion that reliance on the federal government should be permanent, complete and should be for the purposes of avoiding destitution when DHS is determining whether or not an immigrant is likely to become a public charge, and agrees with the organization’s reasoning. ASAN’s additions to this definition – contained within the second sentence – reduce the inherent ableism of public charge by exempting people who receive public benefits based on disability. It additionally excludes people with disabilities who must maintain asset and income limits in order to continue receiving Medicaid, regardless of whether DHS decides to consider receipt of Medicaid or not.
ASAN proposes including this additional language because otherwise the public charge rule will invariably discriminate against low-income immigrants with disabilities with high support needs. Individuals with disabilities in the United States are often reliant on federal government benefits due to the way in which the services we need – long-term services and supports (LTSS) – have historically been administered. Prior to the passage of Olmstead v. L.C., 527 U.S. 581 (1999), most people with disabilities could only obtain LTSS via long-term institutionalization. Long-term institutionalization is itself considered complete reliance on the federal government. Basing the public charge definition on an immigrant’s likelihood of permanently relying on the government, for immigrants who need these services, would thereby inherently discriminate against them on the basis of their disabilities, even if they can now obtain the same level of care in the community.
ASAN’s proposal for exempting immigrants who are likely to rely on cash benefits to maintain access to Medicaid has a similar basis. Many people with disabilities can utilize only Medicaid to pay for certain critical health care or support services. According to the Kaiser Family Foundation in 2013, Medicaid paid for more than half of all long-term services and supports, and few other payers exist. Medicaid programs have income and asset limits that mandate that those who utilize it remain extremely poor – indeed, poor enough that they would be required to be dependent on the government for assistance, such as by utilizing Supplemental Security Income (SSI). While some individuals may be able to utilize Medicaid Buy-In programs to work while remaining eligible, these benefits differ in scope from state to state. In both cases, considering a person’s likelihood of needing these benefits for the purposes of a public charge determination would mean finding them inadmissible based on the government’s own policy around how to pay for LTSS. This is unfair and contradicts Congress’s intent, as evidenced in laws such as the Rehabilitation Act of 1973, to avoid discrimination against people with disabilities.
Additional changes to the definition of public charge may be appropriate. We advise DHS to consult with a range of different stakeholders to avoid disparate impact on any group, including immigrants of color, women, LGBT immigrants, refugees and asylees, and beneficiaries of other special visa programs.
How might DHS define the term “public charge,” or otherwise draft its rule, so as to minimize confusion and uncertainty that could lead otherwise-eligible individuals to forgo the receipt of public benefits?
DHS should ensure that its definition of “public charge” is disseminated to affected communities as widely as possible. In particular, ASAN proposes that the public charge definition and DHS’ reasoning be disseminated in the following formats in order to ensure the understanding of immigrants with disabilities and their families:
Printed copies of all relevant materials available at locations affected individuals are likely to visit, such as DHS-run buildings, immigration offices, and offices for the Social Security Administration (SSI) and Centers for Medicare and Medicaid Services (CMS). Additionally, printed copies in each of the fifteen translations other than English should be included. For immigrants with disabilities and other individuals with potentially limited Internet access, a paper copy may be the difference between knowing and not knowing that a rule exists.
Braille and large print copies in the most common sixteen languages in the United States. Providing printed written information in Braille and large print, for all available translations of the information, will help ensure the accessibility of the rule to blind immigrants and their family members.
Screen reader accessible content, including accessible content translated into each of the sixteen languages. Many blind individuals utilize screen readers in order to read websites and other online content. DHS should ensure that all translations of its own fact sheets and releases of the rule are screen reader accessible.
Closed-captioned, ASL, and other sign language versions in a video format. Closed captioned video formats and videos in ASL and other major sign languages provide greater accessibility for Deaf individuals and others who have limited access to hearing. Additionally, closed-captioned content should be available in each of the sixteen other spoken languages when content has been offered in English.
DHS should provide the definition of “public charge” and an explanation of the new rule in plain language. Plain language content should also be available in each of the sixteen most common languages in the United States. While the federal government was required to communicate mostly in plain language as part of the enactment of the Plain Writing Act of 2010, much of the content released by the federal government is still inaccessible to people with IDD and other cognitive disabilities. Additionally, text is often relatively small, and few visual aids exist that would help people with disabilities and guide our reading. These defects should be rectified, or alternative formats should be offered, in order to ensure the full engagement and understanding of all stakeholders. We recommend that DHS not rely excessively on words that require lengthy definitions and context, where possible, so as to reduce the chances of confusion. Where possible, DHS should be very clear about who the rule may affect, rather than making generalized statements. All translations of DHS materials should also be available in plain language.
In addition to these reasonable accommodations, we recommend that DHS release news articles, online videos, and short pamphlets about the final rule when it is implemented, and additionally translations of these materials into other languages. These steps will ensure that as many people as possible understand DHS’ rule and whether or not it applies to them.
To the extent that DHS considers a noncitizen’s past or current receipt of public benefits, for what period of time before the public charge inadmissibility determination should DHS consider the noncitizen’s receipt of public benefits? Why is that time period relevant?
ASAN recommends that DHS not consider a person’s current or past receipt of any public benefits. As we detail further in a later section, consideration of past or current receipt of public benefits necessarily results in discrimination against people with disabilities and people of color.
To the extent that DHS does decide to consider past use of public benefits, ASAN recommends that DHS limit consideration to a finite lookback period of the past two years. The 2019 Final Rule allowed for an impermissibly broad, indefinite lookback period. It stated that a person who was “likely to become a public charge” was an immigrant who was receiving one or more public benefits for 12 weeks in the aggregate out of any 36-week period. By defining “public charge” itself as referring to the receipt of public benefits, the 2019 Final Rule allowed for an indefinite lookback period to any point in an immigrant’s life, even if their reliance upon benefits had long since ended. Such overbroad language would undoubtedly chill application for benefits without necessarily providing information about an immigrant’s future needs. A shorter, two-year lookback period is more likely to bear relevance to an immigrant’s future benefit use.
How can DHS address the potential for perceived or actual unfairness or discrimination in public charge inadmissibility adjudications, whether due to cognitive, racial, or other biases; arbitrariness; variations in outcomes across cases with similar facts; or other reasons?
It is impossible to totally eliminate bias in application of public charge admissibility because the standard itself is inherently racist, ableist, and eugenicist. Nevertheless, to reduce the harm caused by the standard, ASAN recommends that DHS reduce the importance of the “age” and “health” mandatory factors. ASAN recommends that DHS not include any additional “heavily weighted” factors, such as those present in the Trump administration’s 2019 Final Rule, nor “heavily weigh” any of the five mandatory factors. For example, the 2019 Final Rule included, as a “heavily weighted factor,” the presence of a “medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work.” The inclusion of this new “heavily weighted factor” required adjudicators to discriminate against immigrants with disabilities.
Instead, the mandatory factors should primarily be weighed in terms of whether they reduce the likelihood that an immigrant is likely to become a public charge. For example, the existence of community supports may be considered as a factor that reduces a person’s likelihood of becoming a public charge in the future, but DHS should not presume that the absence of such supports, by itself, makes someone likely to become a public charge. ASAN additionally recommends that the Affidavit of Support, as described in Section 4(B)(ii) of 8 U.S.C. § 1182 (which codifies the INA), function as a presumption that the immigrant has satisfied the public charge ground of inadmissibility.
How should an applicant’s age be considered as part of the public charge inadmissibility determination?
To the extent possible, ASAN recommends that the “age” factor be minimized in importance. ASAN is particularly concerned with implications of viewing “age” negatively where it concerns older people, who are common targets of age discrimination. Forty percent of all older people in the United States have a disability, compared to 26 percent of younger people. Elderly BIPOC people are also more likely to have a disability than white elderly people. Use of age as a negative factor will invariably impact these populations. Additionally, immense social, cultural, and even economic contributions are provided by elderly people – who are exiting the workforce at later ages in recent years and who also play other important roles in their communities. We recommend that DHS instead consider age (independent of family status, such as minor/underage status in a family) as a positive factor where it reduces the likelihood of being deemed a public charge (such as a recognition that someone who currently has a limited income is early in their career when determining whether or not they are likely to be able to support themselves in the future).
How should DHS define health for the purposes of a public charge inadmissibility determination? Should DHS consider disabilities and/or chronic health conditions as part of the health factor? If yes, how should DHS consider these conditions and why? How should the Rehabilitation Act of 1973’s prohibition of discrimination on the basis of disability be considered in DHS’s analysis of the health factor?
To the extent possible, DHS should minimize the importance of the “health” factor and should narrow its consideration only to the specific types of communicable diseases that are separate grounds for inadmissibility under 8 U.S.C. Section 1182(a)(1)(A) (such as, for example, COVID-19). ASAN particularly recommends that all disabilities and chronic health conditions be excluded from DHS’ definition of “health.” Disability does not necessarily impact a person’s overall health and does not necessarily, in and of itself, make it more likely that a person will become a public charge. People with disabilities and chronic health conditions, indeed, often possess the ability to support themselves or receive that support from family members.
Moreover, if disability and chronic health conditions are considered as part of the “health” factor this will likely result in unfair exclusion. Many people have biased perceptions of disability and chronic health conditions and their impact on health, quality of life, and ability to live independently. Discriminatory consideration of disability would likely violate the Rehabilitation Act of 1973. Indeed, the Seventh Circuit already found that the 2019 Final Rule, by considering disability extensively, violated the Rehabilitation Act’s prohibition against discrimination by federal executive branch agencies. Given these concerns, ASAN recommends that DHS minimize the importance of the health factor.
Should DHS account for social determinants of health to avoid unintended disparate impacts on historically disadvantaged groups? If yes, how should DHS consider this limited access and why?
DHS should consider the impact of social determinants of health during evaluations under the “health” prong to avoid disparate impact on people of color and people with disabilities. For example, BIPOC individuals in the United States tend to have higher rates of chronic health conditions due to historical inequities in health care and housing, as well as higher rates of homelessness and poverty – all of which are social determinants of health. Similar racism-related health inequities may occur in other countries. If “health” is measured without accounting for social determinants of health, the result may therefore be to disproportionately exclude BIPOC immigrants.
Therefore, ASAN proposes that DHS consider adverse social determinants of health, such as a person’s history of trauma or experience with persecution or discrimination, as a mitigating factor that offsets negative health factors in the person’s life. This may help adjudicators reduce any disparate impact of the “health” factor on immigrants of color.
How should DHS consider an applicant’s education and skills in making a public charge inadmissibility determination? What education and skills should DHS consider in making a public charge inadmissibility determination? Should DHS consider the varied access to educational opportunities afforded to applicants to avoid disparate impacts? If yes, how should DHS consider this limited access and why?
ASAN agrees with the comments on this mandatory factor provided by the Consortium for Citizens with Disabilities (CCD). CCD proposed that the “education and skills” factor be used exclusively as a positive factor weighing towards an immigrant being deemed admissible. Additionally, they proposed that DHS positively consider a wide range of skills and types of education, rather than merely the presence or absence of a four-year college degree or master’s degree.
How should DHS consider a sufficient Affidavit of Support Under Section 213A of the INA in the public charge inadmissibility determination?
ASAN proposes that DHS treat a complete and comprehensive Affidavit of Support as a presumption that the applicant is not ineligible on the basis that they are “likely to become a public charge.” Since the purpose of the public charge determination was historically to exclude immigrants who could not provide for themselves, there is nothing in such a presumption that violates or conflicts with current law. Such a presumption will also prevent needless paperwork and adjudication where an immigrant has already attested to a consistent means of support.
Should DHS consider the receipt of public benefits (past and/or current) in the public charge inadmissibility determination? If yes, how should DHS consider the receipt of public benefits and why?
ASAN recommends that DHS not consider past or current receipt of public benefits within its determination of “public charge,” and that it instead rely on the statutory factors to determine whether or not a person is “likely to become a public charge.” ASAN additionally recommends that DHS develop internal guidelines that clearly define each factor, clearly determine how DHS will weigh the influence of each factor upon the public charge determination, determine how the social determinants of health will impact the determination, and prohibit the consideration of public benefits and disability. Adjudicators should be required to undergo mandatory retraining if they are shown to have discriminated on the basis of race or disability.
As noted by our earlier reasoning concerning the definition of “public charge,” Medicaid benefits such as LTSS are necessary for many people with disabilities in order to obtain services necessary for living. Because consideration of such benefits necessarily singles out people with disabilities for exclusion, ASAN proposes that past, current, and potential future receipt of these benefits not be considered.
In addition, considering a person’s past or current use of other benefits would also result in the disproportionate exclusion of immigrants with disabilities. This is because many people with disabilities are also eligible for benefits through other programs, based on criteria other than disability. Indeed, because applying for disability benefits is complex and time-consuming, it is common for people with disabilities to receive benefits solely from non-disability-based programs despite their hypothetical eligibility for disability-based benefits such as SSI or SSDI.
Considering the receipt of public benefits will have a disparate impact on low-income immigrants of color. Although people of color in the United States are sometimes less likely to receive and/or maintain access to specific types of cash assistance and other benefits than similarly-situated white individuals due to racist policies embedded into these programs, they are more likely to be low-income and therefore reliant on public benefits. This means that any policy which negatively weighs the receipt of public benefits would disproportionately harm people of color.
Negatively considering public benefits is also likely to chill immigrant likelihood of applying for those benefits they are entitled to. A chilling effect already has occurred in this context before. In 2018 and 2019, in anticipation of the release of the then-active 2019 Final Rule, usage of TANF, SNAP, and Medicaid benefits declined more rapidly for noncitizens than for citizens. This chilling effect actually harms immigrants’ long-term ability to support themselves. People who cannot access health coverage or nutrition assistance have worse long-term health outcomes.
ASAN realizes that consideration of only the required statutory factors may lead to public charge determinations which are comparatively less predictable. It is to this end that ASAN recommends that no heavily weighted factors exist and that factors that weigh positively be considered to reduce the impact of any negative factors in an individual’s public charge determination.
If DHS decides to consider any public benefits, ASAN recommends that DHS consider only long-term institutionalization, and only in situations where it has been found that the person had the option of receiving home and community-based services or other LTSS instead. Additionally, only the person’s own affirmative choice – rather than the choice of their family member or guardian – should be considered relevant to such a determination. This will minimize the number of people that the determination could impact and avoids running afoul of the Rehabilitation Act.
ASAN again thanks DHS for the opportunity to provide information for this ANPRM. Although ASAN will continue to oppose outdated, ableist, racist, and eugenicist concepts like “public charge,” we hope that DHS considers all recommendations submitted in a manner that reduces the disparate impact of the public charge rule and promotes fairness in immigration-related determinations. For more information on ASAN’s past and present positions with respect to public charge, please contact Sam Crane, our Legal and Public Policy Director, at firstname.lastname@example.org.