Cite as "AILA InfoNet Doc. No. 99072640 (posted Jul. 26, 1999)"
July 23, 1999
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,
Submitted in Triplicate
In response to the interim rule implementing the above-mentioned
provisions, following are the comments of the American Immigration Law
("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
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
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
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
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.
Anna Marie Gallagher
Director, Legal Action Center