July 23, 1999

Director
Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street, NW, Room 5307
Washington, DC 20536

RE: INS No. 1989-99 Inadmissibility and Deportability on Public Charge Grounds 64 Fed. Reg. 28675-88 (May 26, 1999)

Submitted in Triplicate

Dear Director:

In response to the interim rule implementing the above-mentioned provisions, following are the comments of the American Immigration Law Foundation ("AILF") and the American Immigration Lawyers Association ("AILA"). AILF is a non-profit organization that educates the public about the benefits of legal immigration through awareness programs, scholarships and services and mentors attorneys across the country on immigration law issues. AILA is a voluntary bar association of over 5,000 lawyers and law professors practicing and teaching in the field of immigration and nationality law. Its members represent the entire spectrum of those involved with our country's immigration system, and works closely with immigrants and family members who will be affected by these new regulations. We are, therefore, in a unique position to provide preliminary insight on the impact of the proposed rule from this perspective.

As an initial matter, we wish to commend the Service for its efforts in working with and considering comments, suggestions and opinions of all interested parties in drafting these regulations. The proposed rule for the first time defines "public charge" and establishes the legal requirements that must be met to find an immigrant a public charge in the context of admission, adjustment of status and deportability. We concur in the definition that the Service has enunciated.

Before the publication of this rule and the related guidance, many immigrants and their families had not been using public benefits because they were uncertain about which benefits might have public charge consequences. Frequently, this led to tragic results. Many people declined to participate in children's immunizations, emergency medical assistance, basic nutrition, and many other government programs, out of fear that use of such benefits would lead to denial of their immigration application or that of a family member. We welcome the proposed rule because it reduces fear and confusion by defining the term "public charge" and clarifying which benefits programs are relevant to a public charge determination. This helps both immigrants and those who assist them to know when benefits can safely be used without provoking an adverse determination.

Critically, the rule draws a clear and responsible line between those benefits which may and may not be used without causing public charge consequences. This will simplify the determinations that must be made by INS and State Department decisionmakers, who are not experts in public benefits. It will also make public charge determinations more uniform and predictable. Predictability is essential if immigrants and their families are to make informed choices and participate in government programs without fear.

The suffering experienced in the immigrant community due to the absence of predictability has been profound. Specific examples abound among the immigrants with whom we work. We hope that the new rule will ensure that such experiences are not repeated.

We urge the Service, in the strongest terms possible, to closely monitor implementation of the new rule and to ensure that it is properly implemented. If the rule is to succeed, immigrants, their advisors, and the INS must remain confident that it will be followed in practice. All of the possible positive outcomes of the new policy are likely to be undone if immigrants find that their actual experience differs from that promised in the rule. We therefore encourage the INS, State Department and Executive Office for Immigration Review to take extra care to train their personnel on the final rules and procedures.

We also strongly recommend that a mechanism be established to monitor implementation of the rule and that procedures be established for immigrants and their relatives in the U.S. to obtain speedy redress if the rule is not properly applied-- particularly by consular officers abroad. This will inspire public confidence and ensure that the rule is implemented as designed.

For the same reason, we respectfully request that the proposed rule be finalized in an expedited fashion, to eliminate any uncertainty about whether immigrants and their families may fully rely on the current guidance.

While the proposed rule is generally comprehensive and clear, we recommend certain important additions and clarifications. Specifically, we urge a clarification of the impact of using public benefits on applications for suspension of deportation/cancellation of removal and certain other forms of discretionary relief. While there is no public charge barrier to obtaining such relief, adjudicators have sometimes viewed the receipt of public benefits as a negative factor justifying denial, in effect applying a type of public charge analysis. This should be changed to provide consistency with the legal, factual, and policy judgments that the Service has made in the public charge context that led to adoption of the proposed rule. All of the considerations that apply to public charge also apply to these other immigration applications. We urge you to strengthen the rule by clarifying that adjudicators cannot weigh the receipt of public benefits as a negative factor, or at least that they cannot consider benefits other than cash assistance for income maintenance or institutionalization for long-term care.

The proposed rule seeks comments about whether any forms should be modified along with the final public charge rule. The affidavit of support (Form I-864), which is completed by persons applying to sponsor immigrants, contains a question that asks whether the sponsor or a member of the sponsor's household has received means-tested public benefits within the past three years. This question should be deleted from the form because it causes potential sponsors to incorrectly believe that if they use benefits they will be considered public charges or found ineligible to sponsor immigrants. Also, we recommend that a clarification be inserted in the final rule providing that sponsors are not subject to public charge screening and that receipt of public benefits does not preclude potential sponsors from completing an affidavit of support. Similar changes should also be made to any other forms currently in use that reference use of benefits.

In conclusion, we support the proposed rule and encourage the Service to promptly finalize it. It is clear and promotes sound public policy. It will help to alleviate unnecessary suffering in the community. We also applaud the INS for utilizing the question-and-answer format employed in the rule; this format makes the rule much more accessible to lay people, consistent with the larger goal of promoting clarity about the legal standards. We commend the INS for its fine work.

Thank you again for the opportunity to comment and for your prompt attention to the matters raised in this letter.

Sincerely,


Anna Marie Gallagher
Director, Legal Action Center
AILF

Jeanne Butterfield
Executive Director
AILA