News Releases
December 07, 2018

BBA Submits Comments in Opposition to the Proposed Public Charge Rule

Press Release

The Boston Bar Association (BBA) is speaking out in opposition to the recently proposed rule relating to inadmissibility on public charge grounds.

The proposal would dramatically change the way in which the Department of Homeland Security (DHS) determines whether an immigrant is likely to become a “public charge,” which can act as a bar to legal permanent resident (green card) status, and if adopted, to certain non-immigrant employment and student statuses. We are especially concerned by the rule’s consideration of fee waivers for immigration benefits as a negative factor, inclusion of a vastly expanded set of non-cash benefits, including healthcare, housing, and nutrition assistance, inadequate cost-benefit analysis, and lack of clear and consistent guidance for applying the new standard.

If adopted, the proposed rule would have a sweeping chilling effect, causing millions across the country to forgo important benefits to which they are entitled. Our Immigration Working Group Report and Principles released earlier this year warned against approaches that deter immigrants from seeking the rights and benefits to which they are otherwise entitled, noting the serious access to justice concerns that result. The benefits included for consideration in the proposed rule serve as supports and bridges to economic stability and prosperity, not, as the rule implies, as indicators of future government dependency. No one should be required to seek housing, food, and health care for their family at the cost of risking their ability to remain united with those same family members.

In addition to the harms this will cause individual immigrants and their families, it will also create widespread public health burdens and costs, the loss of workers and talent necessary to maintaining strong local and national economies, and generally create unfair barriers to accessing benefits and processes that individuals are otherwise entitled to receive.

Shiva Karimi of McLane Middleton, Immigration Law Section Co-Chair and member of the BBA Immigration Working Group stated, “The proposal runs counter to the reality of the invaluable contributions immigrants, of all income levels, make to our communities and economies. Such a dramatic expansion seems based not on sound policy meant to actually evaluate the likelihood of future government dependency, but instead on a desire to change the current nature of our immigration system and create significant barriers for certain low-income populations.”

In addition to the BBA’s concerns with the nature of the rule, the proposal also provides little clarity as to how the provision should be applied. It offers no specific guidance as to how much weight is to be given to the newly enumerated negative and positive factors considered in the totality of circumstances test, beyond those “heavily weighted,” and will, as a result, be highly subjective and likely unequally applied.

On this point, BBA President Jon Albano, partner at Morgan Lewis, said “As attorneys, we appreciate that without standards that are fair, clear, and consistent, we cannot provide equal access to justice for all, an essential element in maintaining faith in our public institutions.”

In light of these and additional concerns, the BBA has submitted comments in opposition to the proposal. You can read our full comments here. For more information on how you can join us in opposing this proposal before December 10, please visit this page.

Additionally, six BBA substantive-law sections are submitting their own comments raising concerns unique to their expertise and practice area. We appreciate the leadership and commitment shown by these Sections in joining this effort. Read the section comments:Health Law Section, Real Estate Section, Delivery of Legal Services Section, Civil Rights and Civil Liberties Section, Immigration Law Section, and Family Law Section .