December 10, 2018
Samantha Deshommes, Chief
Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services, Department of Homeland Security
20 Massachusetts Ave. NW., Washington DC 20529-2140
Re: DHS Docket Number USCIS-2010-0012: Inadmissibility on Public Charge Rule, Notice of Proposed Rulemaking
Dear Chief Deshommes:
I write on behalf of the National Council on Disability (NCD) – an independent, nonpartisan federal agency charged with providing advice to the President, Congress and federal agencies on matters affecting the lives of people with disabilities – to convey our concerns about the impact of DHS’s proposed Inadmissibility on Public Charge Grounds rule on people with disabilities, particularly those in poverty, including American-citizen children with disabilities living with non-citizen parents.
The proposed rule would prescribe how DHS will determine whether an alien is admissible to the U.S. because he or she is likely to become a “public charge” – a person primarily dependent on government benefits. It would broadly expand the types of government benefits that, if applied for or used by an alien, would result in an inadmissibility determination on public charge grounds. It would establish low thresholds on the amount of benefits a person could use (financial) and for how long (duration). It would also count the use of one or more non-cash benefits by the applicant within the previous three years as a "heavily weighed negative factor" in deciding whether to grant permanent residency. Under the proposed rule, a person would likely be denied admission or have their application for lawful permanent residency denied because they applied for or used even a limited amount of government benefits, even if those benefits were for an American citizen child.
Notably, the expanded types of benefits proposed for inclusion in the public charge determination would include Medicaid, housing assistance, and food assistance. Congress has previously deemed these benefits too important to the public health to include in public charge considerations for fear that families would not seek treatment and not apply for critical services. The addition of Medicaid would be particularly harmful to for people with disabilities since it is the main provider of community services and supports that help people with disabilities live in the community. If the rule is implemented, people with disabilities and their families may choose not to use Medicaid, for fear of imperiling their immigration status, leaving them without necessary supports and healthcare. This would be devastating. Further, although the proposed rule is directed at the self-sufficiency of aliens, it would impact American-citizen children with disabilities living with non-citizen parents who will have to choose between needed services or endangering their immigration status.
Secondly, the proposed rule would require DHS to consider the health of the person applying for admission to determine whether a person’s health will make he or she likely to become a public charge. While health has always been a consideration by officials in determining whether a person is admissible, the proposed rule specifically targets people with disabilities by making disability and chronic illness “heavily weighed negative factors.” This factor is applicable even if the applicant has not used public benefits and would keep most people with disabilities from entering or remaining in the U.S. People with disabilities, especially those with severe disabilities or chronic illnesses, have historically faced discrimination based on the belief that they are not capable of independence and employment – an inaccurate stereotype. In the U.S., people with disabilities have opportunities in all areas of life and DHS should not erect such a barrier to people with disabilities who seek to enter the U.S. or take steps to become an American citizen. Assigning a heavy negative weight to applicants with disabilities will codify discriminatory assumptions and perpetuate a negative view of the abilities of all people with disabilities. We have come too far for that. Disability should remain a factor to be measured on a case by case basis free of an automatically assigned heavy negative weight.
NCD strongly advises DHS to consider the impacts of the proposed rule on people with disabilities and not add critical benefits for persons with disabilities, like Medicaid, housing and food assistance to the benefits that are considered in public charge determinations. We also urge you not to make disability a “heavily weighed negative factor” because it will codify misconceptions about all people with disabilities and will keep talented people with disabilities from entering or remaining in the U.S.
NCD appreciates the opportunity to comment. If you have any questions, please contact Joan Durocher, General Counsel, at firstname.lastname@example.org or Ana Torres-Davis, Attorney-Advisor, at email@example.com.
 Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 196 (October 10, 2018).