Public Charge Rule Comments

December 10, 2018 • Public Comments

The Department of Homeland Security (DHS) proposes to redefine “public charge” for inadmissibility determinations. The statute (8 U.S.C. 1182(a)(4)) currently prohibits status to those “likely to become a public charge,” and the purpose of the rulemaking is to ensure that applicants subject to the rule will be self‐​sufficient during their time in the United States. While achieving this goal would benefit the United States, the proposal suffers from four main deficiencies that violate the purpose of the statute and undermine the benefits of the public charge rule:

  1. DHS’s definition of public charge rejects the historic meaning of the phrase by ignoring the extent to which applicants will be self-sufficient—labeling applicants public charges who even adjudicators find will be almost entirely self‐​sufficient in the United States.
  • DHS should keep the current “primarily dependent” standard, as it appropriately factors in both income and benefits use.
  • DHS fails to define “likely” (i.e. the threshold probability of becoming a public charge)—thus hiding what DHS considers an acceptable wrongful denial rate, leading to arbitrarily variant outcomes, and causing denials where approvals should be issued and vice versa.
    • DHS should define “likely” as a probability of 75 percent or higher.
  • DHS’s model of predicting the likelihood of becoming a public charge is nontransparent and inaccurate. This disables applicants from knowing in advance whether they are eligible and again triggers denials for applicants who should receive approvals and vice versa.
    • DHS should use administrative or survey data to create a statistically valid factor model that predicts the probability of an immigrant becoming a public charge.
  • DHS fails to estimate the most important effect of the rule—the number of applicants who will be deemed inadmissible on public charge grounds—underestimating both the costs and benefits of the rule significantly. 
    • DHS should estimate both the number of applicants whom the rule will deny or deter from applying and their fiscal net present value, using the National Academies of Sciences, Engineering, and Medicine’s 2016 report. 

    It is entirely feasible for DHS to make these improvements to the rule. DHS should amend the proposed rule to make these corrections and reissue it.

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