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Public Charge Rulemaking Update
The Biden administration’s Unified Regulatory Agenda -- which provides information about upcoming regulatory activities across federal agencies twice a year -- released last Friday indicates that the Department of Homeland Security (DHS) plans to take action on public charge in the coming months. DHS plans to release an Advance Notice of Proposed Rulemaking [“ANPRM”] in the Federal Register with a target date of August, 2021. (This date is just an estimate, and it could take longer). It also indicates that the Department of State (DOS) intends to publish a notice in the Federal Register to solicit comments on whether DOS’s 2019 Interim Final Rule (IFR) should be rescinded or revised and what final rule should be adopted, if any.
What is an ANPRM?
In the preliminary stages of rulemaking, an agency may decide to publish an “Advance Notice of Proposed Rulemaking” (ANPRM) in the Federal Register to gather information. The ANPRM is a formal invitation to participate in shaping the proposed rule and sets the notice-and comment process in motion. It may also be called a "notice of intent" or simply a "request for comments." An ANPRM can be used to obtain public input on a regulatory change before the agency has done significant research or made a decision on a particular regulatory action.
What do you need to know?
When the DHS ANPRM and DOS notice seeking comments are published, it will be critical to submit comments to provide DHS guidance on what you want to see in DHS’ Notice of Proposed Rulemaking (NPRM) and DOS’ final rule that codifies and builds on the 1999 public charge field guidance. PIF will circulate a template comment that will help you draft comments of your own. In the meantime, please continue to monitor the chilling effects of the 2019 rule on the community you serve, and why a new rule is so important. We will not know whether the comment period will be 30 or 60 days until DHS’ ANPRM and DOS’ request for comments are published.
What can we expect next?
We are likely looking at a three step process to get to a final DHS public charge rule: 1) DHS Issues ANPRM (comments + agency review); 2) DHS issues NPRM (comments + agency review); 3) DHS issues a final rule. DOS’s process is not entirely clear. The notice in the unified agenda suggests that DOS will request comments about whether the 2019 IFR should be rescinded or revised and what final rule should be adopted, and a final rule could flow from that.
Is this good news?
While it’s affirming to see that DHS and DOS have public charge rulemaking on their agendas, we still have work to do to urge both agencies to finalize public charge rules with enough time for the Biden administration to implement and potentially defend these rules in court.
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