DHS Corrects Its Own ‘Sloppy’ Mistakes in Public Charge Rule Affecting Military Families

DHS makes dozens of corrections to controversial immigration policy less than two weeks before effective date

Oct 2, 2019

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IMPORTANT UPDATE — FEBRUARY 2, 2021: The new Department of Homeland Security (DHS) public charge rule, which initially took effect on Feb. 24, 2020, is currently in effect but under review by the Biden administration. The new Department of State (DOS) public charge policy that took effect the same day as the DHS rule was paused indefinitely on July 29, 2020. This page reflects those policies and will not be immediately updated according to the previous, longstanding guidance issued in 1999. Learn more.

The Department of Homeland Security (DHS) today published a list of corrections to its “public charge rule” — most notably regarding its treatment of military families who have used certain public benefits — just two weeks shy of the controversial policy’s effective date, Oct. 15. Although DHS has touted its 65 corrections as “technical,” critics argue that the changes pertaining to military families are substantive enough to trigger a requirement that would delay the rule’s effective date by at least a month.

What the rule initially said about military families

When the final language of the public charge rule was originally published in the Federal Register on Aug. 14, it stated that enlisted, active-duty, and Ready Reserve service members in the U.S. Armed Forces who are non-U.S. citizens would not be penalized for using the government benefits considered for public charge determinations — such as food stamps, Medicaid, and federal housing assistance — and neither would their family members. But non-U.S.-citizen spouses and children of military service members who are U.S. citizens were not included in this exemption, meaning their use of public benefits could put their future in the United States at risk.

What the rule says now

On Oct. 2, DHS announced it “inadvertently” excluded from the exception the spouses and children of U.S. citizens serving in the military. DHS corrected paragraph (b)(7) of section 8 CFR 212.21 of the regulation to include this segment of the population in the exception, which now specifies “spouses and children of individuals serving in the U.S. Armed Forces” (emphasis added by Boundless). “Individuals,” in this case, include both non-U.S. citizens and U.S. citizens in the military.

A way to avoid delay?

Critics called the rule “sloppily written,” saying there’s no clear reason why family members of U.S. citizens would be subjected to more scrutiny than family members of non-U.S. citizens.

In the revision document, DHS stated that its corrections, mostly typos, are “technical” and not “substantive.” Critics argue, however, that this move is an attempt by DHS to skirt the Congressionally mandated public-notice requirement to delay the effective date of the rule by at least 30 days in order to allow for public comment (sections 553(b) and 553(d) of the Administrative Procedure Act). That means the rule would instead go into effect Nov. 14 at the earliest.

Citing the requirement, DHS stated that the agency “believes there is good cause for publishing this correction document without prior notice and opportunity for public comment and with an effective date of less than 30 days because DHS finds that such procedures are unnecessary.”

Boundless co-founder and immigration policy expert Doug Rand said the large number of changes is unusual.

“It’s pretty rare to see such an overwhelming volume of errors made in a final rule, and that tells you something about the integrity and assiduousness of the rule-making process,” Rand told ProPublica.

Making it harder for legal immigrants

The public charge rule, which is designed to reduce legal immigration, is expected to affect some 1 million green card and visa applicants within the United States each year, plus millions more abroad.

Under the new rule, DHS will judge green card applicants and even some temporary visa applicants based on a complex set of criteria to determine whether they are likely at any time in the future to rely on government support.

“This is an example of the government trying to obfuscate something critical that affects families’ lives, especially those giving the most to our country,” said Boundless CEO Xiao Wang.

Boundless is constantly monitoring changes to the U.S. immigration system to help keep you informed. Stay up to date by following Boundless on Twitter or Facebook, so you can be alerted as soon as more official details come to light.

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