Earlier this week, the Department of Homeland Security (DHS) issued an Advance Notice of Proposed Rulemaking (ANPRM) requesting broad public feedback on the public charge ground of inadmissibility. If you’re scratching your head at the idea of an “A”NPRM, you’re not alone. Think of it as a Request for Information (RFI) specifically tied to the development of a future regulatory proposal.
The good news is that DHS does seem genuinely interested in public input. First, we’re given a 60-day comment period, with comments due October 22, 2021. Second, in addition to taking this extra, pre-regulatory step, they are holding two listening sessions giving stakeholders an opportunity to speak directly to DHS about the questions raised in the ANPRM. You can register for the September 14 (general public) and October 5 (state, territorial, tribal, local government and nonprofit organizations) listening sessions here.
The bad news is that the ANPRM includes a long list of hard-to-answer questions. The basic format of the ANPRM is to provide background about a specific element of current or prior public charge policy and then pose specific questions. The questions cover the following elements: (1) purpose and definition of public charge, (2) prospective nature of the public charge inadmissibility determination, (3) statutory factors (age, health, family status, financial status, education and skills), (4) affidavits of support, (5) other factors to consider, (6) public benefits considered, (7) previous rulemaking efforts, (8) bond procedures, and (9) specific questions for state, territorial, local, and tribal benefit granting agencies and nonprofit organizations.
Some of the questions are broad, e.g., How should DHS define the term “public charge”? while others seek specific data, e.g., Which factors (whether statutory factors or any other relevant factors identified by the commenter) are most predictive of whether a noncitizen is likely (or is not likely) to become a public charge?
Given the importance of the policy plus the number and difficulty of the questions, it is critical that all stakeholders read the ANPRM right away and begin to gather the relevant information necessary to respond. DHS’ goal is admirable –
“DHS is in the process of preparing a regulatory proposal that will be fully consistent with law; that will reflect empirical evidence to the extent relevant and available; that carefully considers public comments; that will be clear, fair, and comprehensible for officers as well as for noncitizens and their families; that will lead to fair and consistent adjudications and thus avoid unequal treatment of similarly situated individuals; and that will not otherwise unduly impose barriers for noncitizens seeking admission or adjustment of status in the United States. DHS also intends to ensure that any regulatory proposal does not unduly interfere with the receipt of public benefits by applicants and their families, particularly in light of the COVID-19 pandemic and the resulting long-term public health and economic impacts in the United States.”
But the journey ahead is arduous. Stakeholders can help DHS achieve a clear and fair public charge policy by engaging thoughtfully along the way.
