Letter to Alejandro Mayorkas, Secretary of Homeland Security - Representatives Clarke, Espaillat, Chu Call on Dhs to Expand Immigrant Access to Public Benefits


Dear Secretary Mayorkas:

As Members of the United States Congress, we write to provide comments to the U.S. Department of Homeland Security's (DHS) notice of proposed rulemaking (NPRM) on the Public Charge Ground of Inadmissibility.

First, we want to express our support for the Department's effort to repair the damage caused by the harmful Trump Administration's public charge rule, which disproportionately harmed communities of color. We strongly agree that "the 2019 public charge rule was not consistent with our nation's values." In fact, many members represented in this letter today joined the Congressional Tri-Caucus in filing four amicus briefs in opposition to the 2019 rule, citing our belief that it was "written with the clear intent of intimidating and discriminating against immigrants of color." And while we applaud the Biden Administration's prompt efforts to end this Trump-era policy, our communities are still experiencing the consequences of the Trump Administration's actions. Data reveals that there is little awareness of this policy reversal among individuals in immigrant and mixed-status families. In September 2021, a poll of 1,000 mostly Latinx and AAPI individuals in immigrant families found that "nearly half (46%) of families who needed assistance during the COVID-19 pandemic abstained from applying for assistance due to concerns over immigration status." We urge DHS to provide funding to trusted community organizations that can conduct outreach and education to immigrants and their families in a culturally and linguistically appropriate manner.

Among many things, we are encouraged by the recognition of this NPRM that the use of critical supports such as healthcare, nutrition and housing assistance programs should in no way be linked to the exclusionary "public charge" provision. Congress created these programs to help workers and families, including eligible immigrants and U.S. citizen family members in immigrant families. Additionally, we write to express our support for the proposed updates, clarifications and improvements to long-standing public charge policy.

Exemptions for survivors of trafficking, domestic violence and other serious crimes

The proposed rule incorporates the law that makes T and U non-immigrants, or survivors of trafficking or serious crimes, seeking adjustment of status exempt from the public charge ground of inadmissibility. In March 2013 Congress enacted several changes to the William Wilberforce Violence Against Women Act (VAWA) & Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), including an exemption from the public charge ground of inadmissibility for T and U visa holders and applicants. We support the proposed rule, which clarifies that these individuals are exempt from a public charge determination regardless of which pathway they use to adjust to lawful permanent status. We recommend a similar clarification for the VAWA self-petitioners and qualified immigrants in 8 USC § 1641(c), who were included in the same provision of the 2008 law. This clarification would be consistent with Congressional intent.

Definitions -- Receipt of public benefits

The Proposed Rule defines what constitutes "receipt" of public benefits and specifically clarifies that an individual is not receiving a benefit unless they are listed as a beneficiary. Therefore, receipt of a benefit by someone else in an applicant's family or household would not be a factor in the applicant's public charge assessment. Moreover, simply applying for a benefit, applying for a benefit on behalf of another person (such as a child), or assisting someone with an application does not constitute "receipt" of a benefit. We believe that this clarification will mitigate the chilling effect caused by uncertainty in immigrant communities. Beginning in 2019, even before the finalization of the Trump-era public charge rule, the uncertainty surrounding the definition caused significant declines in enrollment of social programs among eligible immigrant households. In 2019 and into January 2020, a series of focus groups revealed that more than one-quarter of immigrant parents who were surveyed reported that they stopped using the Supplemental Nutrition Assistance Program (SNAP) or other food programs due to immigration-related concerns, and this was confirmed by nutrition service providers. This same chilling effect spilled into other programs including those that were not included in the prior administration's public charge rule, such as school meals.

Definitions -- Likely at Any Time to Become a Public Charge

We agree with DHS's proposal to exclude programs that are essential to a family's health, stability and ability to earn income, including housing, nutrition assistance and health programs. These programs are critical for all parents who work hard in low-wage positions that do not provide employer-sponsored health coverage or an adequate, living wage for their families.

We appreciate the opportunity to comment on this important matter.