CSPI's comment on public charge ground of inadmissibility proposed rule

The Center for Science in the Public Interest (CSPI) submits these comments in response to the U.S. Department of Homeland Security (DHS) Notice of Proposed Rulemaking (NPRM) on Public Charge Ground of Inadmissibility. We strongly urge DHS to withdraw the proposed rule.

In 2022, DHS finalized a public charge rule that provided clear, bright-line guidance on how immigration officials should assess whether a noncitizen is likely to become a “public charge.” A public charge determination assesses whether a person is likely to become primarily dependent on the government for subsistence, which can affect eligibility for lawful permanent residence. As required by statute, public charge determinations are made based on a totality of the circumstances assessment, in which immigration officers weigh multiple factors rather than applying a fixed numerical threshold.

The 2022 final rule constrains that discretionary assessment by limiting which types of public benefits could be considered. Under that rule, DHS can only consider a person’s use of a narrow set of government benefits in a public charge determination, limited to specific cash assistance programs and long-term institutionalization. The 2022 final rule explicitly excludes non-cash programs, such as key nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP), the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and the School Breakfast and National School Lunch Programs (SBP and NSLP, respectively). Excluding these programs from public charge determination ensures that families can access essential nutrition and health supports without fear of endangering their immigration status. Importantly, the 2022 final rule also restricts the public charge determination to only consider benefits received directly by the applicant, not by their family members, ensuring that children’s use of benefits cannot be held against their parents.

The current proposed rule would rescind the 2022 final rule in its entirety and replace it with a highly discretionary framework that removes clear exclusions and does not specify which additional public benefit programs may be considered in a public charge determination beyond those required by statute. While the public charge test would continue to operate as a totality of the circumstances assessment, the proposed rule would significantly expand the range of benefits and household factors that individual U.S. Citizenship and Immigration Services (USCIS) officers may weigh. This includes the use of non-cash nutrition programs like SNAP, WIC, SBP, and NSLP. The current proposed rule would also allow individual officers to consider benefits used by an applicant’s household members, including U.S. citizen children, expanding the scope of what can be considered and increasing the likelihood of a public charge determination.

The current proposed rule would rescind the 2022 final rule in its entirety and replace it with a highly discretionary framework that removes clear exclusions and does not specify which additional public benefit programs may be considered in a public charge determination beyond those required by statute. While the public charge test would continue to operate as a totality of the circumstances assessment, the proposed rule would significantly expand the range of benefits and household factors that individual U.S. Citizenship and Immigration Services (USCIS) officers may weigh. This includes the use of non-cash nutrition programs like SNAP, WIC, SBP, and NSLP. The current proposed rule would also allow individual officers to consider benefits used by an applicant’s household members, including U.S. citizen children, expanding the scope of what can be considered and increasing the likelihood of a public charge determination.