Taking Disability Discrimination Out of the Public Charge Rule

The public charge rule is slated for substantial changes under the Biden Administration. This rule establishes grounds for ineligibility for residency, visas, or entrance into the United States if an immigration officer determines that the applicant is likely to become dependent on certain government benefits.

On August 23, 2021, the U.S. Department of Homeland Security (DHS) issued an advance notice of proposed rulemaking soliciting comments for a future regulatory proposal interpreting the public charge basis of exclusion for immigrants to the United States. DHS also set listening sessions and provided questions for commenters to address.

DHS plans to use this information to develop a new regulatory framework for determining whether to exclude individuals from immigration based on concerns that they may become a public charge. The public charge basis for exclusion is hugely important to individuals with disabilities who wish to immigrate to the United States or seek citizenship while already in the United States.

Historically, American immigration law has explicitly discriminated against people with disabilities. As late as the 1980s, American law prohibited 33 categories of immigrants from entry, including those with intellectual disabilities, mental illnesses, alcoholism, and people “having a physical defect, disease, or disability.”

In 1990, Congress repealed many of these categorical exclusions, but it retained the provision calling for inadmissibility of “any alien who … is likely at any time to become a public charge.” As part of the immigration application process, an immigrant who may be designated as a public charge must undergo an evaluation of age, health, family status, assets, resources, financial status, and education and skills.

The public charge exclusion in the Immigration and Nationality Act traces its origins to just before the beginning of the 20th century. It was a creature of that period’s obsession with the perceived decline of the American population stock and the contemporaneous rise of eugenics—the pseudo-science of optimal human breeding and elimination of genetic inferiority.

Eugenics did not survive the Nazi regime’s murderous efforts to put it into practice, but negative attitudes about disabilities, and fear of people with disabilities, never died out. Combined with the age-old bugaboo about welfare, negative attitudes about people with disabilities continue to sustain the application of the public charge exclusion to immigrants with disabling conditions.

The Trump Administration seized upon the public charge exclusion as part of its campaign against immigrants it considered unworthy of entry to the United States. It implemented a rule that greatly expanded the definition of a public charge. The rule designated as a public charge anyone receiving any amount of public cash assistance or specified in-kind aid, including Medicaid and SNAP food assistance, public housing, or other benefits, for 12 months of a 36-month period.

This new version of the public charge rule also stated that a heavily weighted negative factor for admissibility would be having a medical condition likely to require extensive treatment or interfering with the ability to provide for oneself, attend school, or work. Having a household income of less than 125 percent of the federal poverty guideline also counted against the immigrant in the likely-public-charge determination, as did being under 18 or over 61.

Before the Trump Administration’s changes to the public charge rule, in-kind benefits such as Medicaid and SNAP were not considered in public charge determinations. Cash support that was not the primary basis of a person’s livelihood also did not make a person a public charge. In addition, an affidavit of support from a sponsor would routinely result in waiver of exclusion on the basis of likelihood of becoming a public charge; in contrast, the new regulations restricted affidavits of support.

Because disabilities are often characterized as medical conditions, and immigrants with disabilities may have physical or mental impairments that cause them to rely on resources such as Medicaid or SNAP when and where the benefits are available and the need exists, the regulations effectively targeted disability.

The Trump-era rule had the predictable result of causing immigrants with and without disabilities to forgo needed medical and social support, undermining public health and harming immigrants’ family members, both citizens and noncitizens alike.

Advocates objected to the new rule, arguing that the rule was arbitrary and capricious because, among other things, it conflicted with the obligation of federal agencies under the Rehabilitation Act of 1973 to avoid discriminating against persons with disabilities. Although the public charge exclusion is a statutory one, the previous policies implementing the Immigration and Nationality Act’s public charge provision had much less of a negative impact on individuals with disabilities. A return to previous policies offered a reasonable modification to avoid discrimination. Congress had in fact left these policies in place since 1999, when the Immigration and Nationality Service  published them in a field guidance.

Soon after the Trump Administration changed the 1999 policy, several courts issued injunctions to stop implementation of the Administration’s new rule. But the Supreme Court stayed the lower courts’ injunctions, allowing the new policy to take effect. Ultimately, the Biden Administration dropped the appeal of an injunction issued by the Northern District of Illinois, and DHS reverted to its 1999 policy.

When the Trump Administration was trying to enforce its rule, advocates for immigrants with disabilities cited the 1999 policy as the alternative. Now that the Biden Administration is asking for ideas about the new rule, the question is whether there might be something better than the 1999 policy. Since 1999, consciousness has grown about how thoughtlessly applying standard operating procedures to people with disabilities disadvantages them.

As the world has adapted to COVID-19 over the past year and a half, employers, schools, and others have drastically changed their usual operating practices. Many of those changes, such as allowing work from home and offering flexible employment schedules, serve as examples of potential reasonable accommodations for people with disabilities.

It is time to recognize that physical and mental impairments do not necessarily increase the chances of becoming a public charge, particularly if employers and others follow the letter and spirit of the Americans with Disabilities Act by offering accommodations. And the availability of alternate means of support—as evidenced by an affidavit of support—eliminates the likelihood of someone becoming a public charge, even when reasonable accommodations might not be sufficient to enable self-support.

Exclusion from the community based on disability reinforces stereotypes, and is precisely the evil Congress meant to prevent with the disability discrimination laws. Rather than simply reverting to the 1999 policies, a better option would be to redraft the public charge rule to take into account the requirement of reasonable accommodations when evaluating the opportunity for self-support through employment.

Similarly, even if health status is to be considered under the Immigration and Nationality Act, the rule should recognize that a person with a physical or mental impairment can be quite healthy, even extraordinarily so, as the participants in the recent Paralympics demonstrated.

Most importantly, a new public charge rule should recognize that a person might use public benefits for a limited period without becoming a public charge in the sense of someone who needs cash public assistance as their primary source of income over the long term.

Now is the time to put a more realistic, less fearful approach to disability into the public charge rule.

Mark C. Weber is a Vincent DePaul Professor of Law at DePaul University.