The U.S. Department of Homeland Security is proposing a costly new rule, “Inadmissibility on Public Charge Grounds.” It is how DHS will determine whether an alien is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA), as that person is likely at any time to become a public charge. Those aliens who seek adjustment of status or a visa, or who are applicants for admission, 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 inadmissibility or has otherwise permitted them to seek a waiver of inadmissibility.

DHS also proposes to require all aliens seeking an extension of stay or change of status to demonstrate that they have not received, are not currently receiving, nor are likely to receive public benefits as defined in the proposed rule. This proposed rule is estimated to have an annual effect on the economy of $100 million or more. It was published in the Federal Register on October 10, 2018.

The proposed rule included an economic analysis, which describes the baseline and anticipated new costs and benefits of the proposal. DHS states that the quantified new direct costs of the proposed rule would range from about $453 million to $1.3 billion (undiscounted). The discounted cost would be about $387 million to $1.1 billion at 3% and $318 million to $910 million at 7%.

A number of issues with this proposed rule caught my attention, including the fact that USCIS will not allow for electronic submissions. This inability to accept electronic applications helps to explain why the costs are high. Moreover, mail submissions slow down the application process. USCIS has known about the need to shift toward electronic submissions for decades because the last two iterations of The Paperwork Reduction Act Submission Form 83-I (dated 10/95 and 2/4) ask agencies to identify the percentage of the paperwork applications that would be collected electronically as agencies were encouraged to migrate towards using electronic submissions wherever possible. I even advocated for this when I worked at OMB in 1999. So while more than 20 years have passed, electronic submissions are still not available to USCIS applicants, and they were not considered as an alternative in the economic analysis.

A second issue is the number of existing and/or new forms that might have to be filled out. Forms that were discussed include I-129, I-129CW, I-356, I-485, I-539, I-693, I-864, I-912, I-944, and I-945. The following table, using USCIS data, shows current wait times by USCIS Service Center to process some of these forms. At a minimum, there is a wide disparity in processing times by service center. For example, it takes 6 months to 42.5 months to process Form I-485 at the California Service Center and between 11 months to 19.5 months to do the same at the Vermont Service Center.

Just as important is the fact that USCIS will be spending the same or more time processing each application as the existing backlog should be longer than otherwise. The analysis is silent on this issue, and it is rather doubtful that each application can be processed in the same amount of time, given that more information would now be required. In sum, USCIS has underestimated the added amount of time (they have assumed no added time) that they need to process each application, and the cost of this added time should be attributed to the applicant.

All of this affects the individual’s decision-making process because applicants cannot predict with certainty the exact processing time required and what they must do in the intermittent time period. Processing time reliability results in large changes in personal income and processing time costs. As a consequence, when making an application, individuals must allow for extra time, or a safety margin, to avoid longer than expected processing times. Owing to processing time pressure and the high personal penalty associated with lower or no income than otherwise, allowing an adequate safety margin is particularly important to these applicants.

This issue is of special importance because DHS has identified no added compliance costs associated with processing time delays. The implication is that regardless of the applicant and the processing time delay, they will all incur the same high cost of application, which is not reasonable to assume. This significant omission calls into question the accuracy of the estimates.

In sum, the electronic collection of this information could expedite the approval process, promote data sharing among agencies, and limit the need for duplicative information collection. If electronic responses were allowed then the cost of this rulemaking to the general public would most likely be lower and the wait time to complete the review of these applications would undoubtedly be less.

DHS will continue to receive comments on the proposed rule until December 10, 2018. Regardless of your view, you should consider commenting on it. The interested reader can review my letter to the DHS docket identifying some of the pitfalls of the economic analysis.