Sending Office: Honorable Nydia M. Velazquez
American legal Assistance and CASA
Please join me in expressing our concerns regarding the new Department of State rule which amends the Department’s regulations by prescribing how Consulate and Embassy officers will determine whether an applicant is ineligible for a visa under the Immigration
and Nationality Act (“INA”) because he or she is likely at any time to become a public charge.
Just this week, a Federal District Court Judge issued a nationwide temporary restraining order preventing the government from implementing a policy that would require immigrants to prove they have insurance or the financial resources for medical costs to obtain
a visa. This ban, in combination with the delay of the September 2019 “public charge” rule, illustrates that the courts believe that these unwarranted policies will cause immediate and irreparable harm. Given these considerations, I remain vehemently opposed
to the proposed rule and urge its immediate withdrawal.
The Honorable Michael R. Pompeo
Department of State
RE: Visas: Ineligibility Based on Public Charge Grounds Rule
Docket ID: DOS-2019-0035
FR Citation: 84 FR 54996
Dear Secretary Pompeo:
We write to express our profound concern over the interim final rule that the Department of State (“Department”) intends to implement for immigrants seeking to apply for a visa to enter the United States. For more than 130 years, our nation’s immigration
laws have held that persons seeking to obtain status would have to prove that they would not become dependent on the federal government’s support.,
Congress has, for certain immigrants, provided access to critical safety net programs for eligible immigrants. Yet despite Congress’ legislative intent, the Administration, as well as the Department of State, has crafted a rule that aims to unnecessarily widen
the scope of public charge considerations.
Specifically, this final rule amends the Department’s regulations by prescribing how Consulate and Embassy officers will determine whether an applicant is ineligible for a visa under the Immigration and Nationality Act (“INA”) because he or she is likely
at any time to become a public charge. Those who seek a visa, application for admission, or adjustment of status must establish that they are not likely at any time to become a public charge unless Congress has expressly exempted them from this ground of ineligibility
or if the person obtained a waiver.
The rule also includes the use of numerous “heavily weighted factors” that would serve to assist the Consul in determining whether an immigrant is likely to become a public charge in the future. Such inclusion is alarming, especially given the political
concern and public outcry that resulted from similar evaluation categories outlined in the Department of Homeland Security’s Public Charge Rule.
For example, lacking private health insurance to pay medical bills is deemed a heavily weighted factor — if the individual does not have private health insurance and does not have plans/prospects to secure such health insurance, then it could be a roadblock
in their application process. Under the revised instructions, applicants
— particularly those with a preexisting health condition — may need to provide proof of medical insurance or means to pay medical expenses in the U.S. We argue that the requirement of such health coverage or a financial plan to pay for treatment is irrelevant—and
suggests that all immigrants applying for visas, legal immigration status or adjustment of status suffer from preexisting conditions that would warrant the use of public benefits in the future to treat or remedy such ailment. Not all immigrants suffer from
preexisting conditions, and not all immigrants arriving to the United States will need medical insurance coverage through a federally-subsidized mechanism or provider.
The assumptions provided by your department’s proposed rule do not strengthen the need to expand public charge. The language used by the rule is designed to discriminate against those who suffer from preexisting conditions proactively.
Furthermore, the proposed rule identifies a lack of employment or future employment as a limiting factor in a public charge determination. Under this new rule, if the applicant is not (a) a full-time student and is authorized to work in their residence
country but is not currently employed or (b) does not have an employment history or the prospect of future employment, they could be denied a visa.
This is also inappropriate, as many people seeking visas or pathway to citizenship have left their country of origin because of a shortage of employment opportunities, as well as the inability to support their families.
We also stress our concern over the recommendation that receipt of one or more public benefits is a heavily weighed negative factor. For example, if the visa applicant has received, or has been certified or approved to receive, one or more public benefits,
as defined in 22 CFR 40.41(c), for more than 12 months in the aggregate within any 36-month period, they may be denied a visa.
This should not be a benchmark by which applicants for visas are assessed. If an immigrant has been deemed eligible for a benefit by a Federal agency, we believe that undermining the use of that agency’s authority to provide benefits is an
inappropriate undue influence on another Federal agency’s decision-making authority.
Furthermore, the use of these and other “heavily weighed positive factors” as proposed by the rule are inconsistent with the purpose of the immigration laws. The public charge provision intends to ensure that immigrants have the essential means to support
themselves. This provision of law is not, however, designed to serve as a
carte blanche for wealthier immigrants to seek entry or facilitate their entry thereof. The proposed standards of wealth are unreasonable. The rule proposes that an immigrant posses wealth (i.e., assets, resources, or income) of at least 250
percent of the federal poverty guidelines in the totality of the circumstances. This standard is arbitrary and counters the original intent of the immigration laws.
Our assessment is not new. On November 2, 2019, Judge Michael Simon of the Federal District Court in Portland, Oregon issued a nationwide temporary restraining order preventing the government from implementing a policy that would require immigrants to prove
they have insurance or the financial resources for medical costs to obtain a visa. This ban, in combination with the September 2019 “public charge” rule, illustrates that the courts believe that these unwarranted policies will cause immediate and irreparable
harm. Given these considerations, we remain vehemently opposed to the proposed rule and urge its immediate withdrawal.
Nydia M. Velázquez
Member of Congress
e-Dear Colleague version 2.0