Commenting on Regulations, an Example: Proposed Change to Public Charge Ground of Inadmissibility

By Susan Lloyd McGarry

Many in the public health community have concerns about the possible effects of proposed changes in regulations related to how US Citizenship and Immigration Services, Department of Homeland Security (US CIS, DHS) determines “public charge” as grounds to deny immigration visas and permanent residence. Harvard FXB sponsored an event in which experts discussed those concerns (read highlights of the event here). December 10 (coincidentally the seventieth anniversary of the Universal Declaration of Human Rights) is the deadline for comment. To continue its usefulness past those dates, this post will discuss not only the “public charge” regulations, but use them as an example on how to comment on US regulation changes in general. If the past is any prediction, there will continue to be many proposed regulation changes on which those who care about public health and human rights will desire to comment. Anyone can comment.

You do not necessarily need to follow all of these steps, but they provide you with a framework for informing yourself about the issues involved, various arguments, and ways of commenting. Why comment? All federal agencies are required to consult the public in rulemaking and are required to respond to categories of comments in the preambles of the final rules. It is an opportunity for the public to participate in rulemaking, although it is not a vote—quality rather than quantity  is supposed to define a comment’s impact. As the government fact sheet ”Public Comments Make a Difference” explains: “At the end of the process, the agency must base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre-rule and proposed rule stages.”

Overview on the Public Charge Changes from a Statement from Dean Williams:

On September 22, 2018, the Department of Homeland Security proposed a new regulation that may make it more difficult for legal immigrants who have received public assistance, such as Medicaid and food stamps, to obtain green cards that would allow them to stay in the U.S. permanently. This proposal would dramatically alter a longstanding immigration policy known as “public charge,” a category used to determine whether someone seeking to live in the U.S. permanently is likely to become heavily dependent on government assistance.

Previously, the public charge designation applied to people who immigration officials deemed at risk of becoming dependent on cash assistance or help with long-term care. Broadening the category to include safety-net programs like Medicaid, food stamps, and public-housing assistance may give the administration a considerable amount of discretion to decide who is likely to become a public charge at some point in the future.

The Latinx Students in Public Health Association at Harvard Chan School has been collaborating with other student groups within the School and across the University, including Harvard Medical School, Harvard Kennedy School, and the Harvard Graduate School of Education, to raise awareness of this issue. They are encouraging members of the School community to submit a comment opposing the proposed rule before Dec. 10, which is the deadline for public comment in the Federal Register. Comments can be submitted at either of the following:

As part of a week of action, students are participating in an event on Thursday, Dec. 6: Teach-in and comment writing party in Kresge G-2, 1-2 p.m.

Regulations from the Point of View of the Agency

You may have learned about the proposed changes from a newspaper article, organizing email, or flyer. To educate yourself further, consider starting with the agency suggesting the change and looking at their overview of the changes, in this case, the US CIS, remembering always that they are the ones advocating for this change.

Proposed Change to Public Charge Ground of Inadmissibility on the CIS website summarizes their arguments and cites relevant laws, such as

8 U.S.C. § 1601 (PDF)(1): “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

8 U.S.C. § 1601 (PDF)(2)(A): “It continues to be the immigration [policy] of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organization

It also has frequently asked questions, where you will find more detail:

What Changes? The proposed rule would change the standard that DHS uses when determining whether an alien is likely to become a “public charge,” at any time in the future and is therefore inadmissible and ineligible for adjustment of status or admission into the United States. The rule would also make nonimmigrant aliens who receive or are likely to receive designated public benefits above the designated threshold generally ineligible for change of status and extension of stay.

How will DHS determine? Inadmissibility based on the public charge ground is determined by looking at the mandatory factors set forth in INA section 212(a)(4) and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances.

Federal Register and Comments

To see the actual proposed change, you need to go to the Federal Register. In this case, the CIS webpage provides a link to Notice of Proposed Rulemaking (NPRM) on the Register, which shows the actual language of the proposed regulation. Going to the Docket Folder is even more helpful, because it offers you access to public statements already made, both those made before the rule opened for general comment and all of those made since it opened for public comment.  Those comments may provide you with inspiration for constructing your own.

The Docket Folder also provides you with a direct link to the online form for commenting on that regulation, the preferred method, although you can also mail a letter. You have 5000 characters in the form, but can also submit any number of attachments. You do need to supply your first and last name, but can opt out of providing contact information. To the right of the form, you will find “Tips for Submitting Effective Comments.”   Among the tips are identifying credentials and experience which might distinguish your comments and including data, facts, and expert opinions. The sheet also has practical tips, such as saving your statement as a file, lest you have problems submitting it and suggestions as to a file naming convention for attachments. The tip sheet discourages form letters, saying “The comment process is not a vote—one well supported comment is often more influential than a thousand form letters.”

We hope that these resources inspire you, rather than daunt you. To comment on the changes regarding public charge, you have until 11:59 PM EST, December 10.

December 5 Event
Public Charge: A Threat to Immigrant Health and Public Health
Flier: HarvardFXB Center for Health and Human Rights. Public Charge: A Threat to Immigrant Health and Public Health. Wednesday, December 5, 2018, 1:00 - 2:00pm, Kresge G3.





Some other resources on public comments:

Environmental Law Institute: Step-by-step tips for filing effective public comments

Federal Register: A Guide to the Rulemaking Process

Protecting Immigrant Families:  Helpful  Ways to Approach Your Public Comment – Comments from Individuals (also has a similar sheet for organizations)

US Government, ”Public Comments Make a Difference”

US Government, “Tips for Submitting Effective Comments”

Winter Wildlands Alliance: Writing substantive and effective comments – your guide to making a difference

Susan Lloyd McGarry is a senior writer with Harvard FXB.

Graphic from “Welcome to the United States, A Guide to New Immigrants,” US Citizenship and Immigration Services

Post was updated to put the event in the past and include a summary of it.