Proposed Rule2021-17837
Public Charge Ground of Inadmissibility
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 23, 2021
Issuing agencies
Homeland Security DepartmentU.S. Citizenship and Immigration Services
Abstract
Under provisions of the Immigration and Nationality Act, the Department of Homeland Security (DHS) administers the public charge ground of inadmissibility as it pertains to applicants for admission and adjustment of status. DHS is publishing this advance notice of proposed rulemaking (ANPRM) to seek broad public feedback on the public charge ground of inadmissibility that will inform its development of a future regulatory proposal. DHS intends to propose a rule that will be fully consistent with law; that will reflect empirical evidence to the extent relevant and available; that will be clear, fair, and comprehensible for officers as well as for noncitizens and their families; that will lead to fair and consistent adjudications and thus avoid unequal treatment of the similarly situated; and that will not otherwise unduly impose barriers on noncitizens seeking admission to or adjustment of status in the United States. DHS also intends to ensure that its regulatory proposal does not cause undue fear among immigrant communities or present other obstacles to immigrants and their families accessing public services available to them, particularly in light of the COVID-19 pandemic and the resulting long-term public health and economic impacts in the United States. DHS welcomes input from individuals, organizations, government entities and agencies, and all other interested members of the public. Comments will be most helpful if they clearly identify the questions to which they are responding, offer concrete proposals, and/or articulate support or opposition to current or prior DHS public charge policies, and cite to relevant laws, regulations, data, and/or studies. DHS is also providing notice of public virtual listening sessions on the public charge ground of inadmissibility and this ANPRM.
Full Text
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[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Proposed Rules]
[Pages 47025-47032]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17837]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 /
Proposed Rules
[[Page 47025]]
DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 212
[CIS No. 2696-21; DHS Docket No. USCIS-2021-0013]
RIN 1615-AC74
Public Charge Ground of Inadmissibility
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Advance notice of proposed rulemaking and notice of virtual
public listening sessions.
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SUMMARY: Under provisions of the Immigration and Nationality Act, the
Department of Homeland Security (DHS) administers the public charge
ground of inadmissibility as it pertains to applicants for admission
and adjustment of status. DHS is publishing this advance notice of
proposed rulemaking (ANPRM) to seek broad public feedback on the public
charge ground of inadmissibility that will inform its development of a
future regulatory proposal. DHS intends to propose a rule that will be
fully consistent with law; that will reflect empirical evidence to the
extent relevant and available; that will be clear, fair, and
comprehensible for officers as well as for noncitizens and their
families; that will lead to fair and consistent adjudications and thus
avoid unequal treatment of the similarly situated; and that will not
otherwise unduly impose barriers on noncitizens seeking admission to or
adjustment of status in the United States. DHS also intends to ensure
that its regulatory proposal does not cause undue fear among immigrant
communities or present other obstacles to immigrants and their families
accessing public services available to them, particularly in light of
the COVID-19 pandemic and the resulting long-term public health and
economic impacts in the United States. DHS welcomes input from
individuals, organizations, government entities and agencies, and all
other interested members of the public. Comments will be most helpful
if they clearly identify the questions to which they are responding,
offer concrete proposals, and/or articulate support or opposition to
current or prior DHS public charge policies, and cite to relevant laws,
regulations, data, and/or studies. DHS is also providing notice of
public virtual listening sessions on the public charge ground of
inadmissibility and this ANPRM.
DATES: Written comments and related material must be submitted on or
before October 22, 2021.
Listening Sessions Dates and Themes: The virtual public listening
sessions (which will be opportunities for the public to speak directly
to DHS on the questions raised in this ANPRM) will be held on--
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Date/time Theme
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September 14, 2021 at 2:00 pm ET.......... Listening Session for the
General Public.
October 5, 2021 at 2:00 pm ET............. State, Territorial, Local,
and Tribal Benefits
Granting Agencies and
Nonprofit Organizations
Only.
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Registration to comment date: For an opportunity to provide oral
comments during the virtual public listening sessions, you must
register by 12:00 p.m. (noon) Eastern Time (ET) on the Sunday before
the listening session in question. For registration instructions, see
the Public Participation section below.
ADDRESSES: You may submit comments on this ANPRM, identified by DHS
Docket No. USCIS-2021-0013, through the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website instructions for
submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or U.S. Citizenship and
Immigration Services (USCIS) officials, will not be considered comments
on the ANPRM and may not be considered by DHS in informing future
rulemaking. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, USCIS cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives. USCIS is not accepting mailed comments. If
you cannot submit your comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
please contact Samantha Deshommes, Chief, Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, by telephone at
(240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Andrew Parker, Branch Chief, Residence
and Admissibility Branch, Residence and Naturalization Division, Office
of Policy and Strategy, U.S. Citizenship and Immigration Services, DHS,
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240)
721-3000 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Legal Authority
B. Regulatory History
III. Request for Information
A. Purpose and Definition of Public Charge
B. Prospective Nature of the Public Charge Inadmissibility
Determination
C. Statutory Factors
D. Affidavit of Support Under Section 213A of the INA
E. Other Factors to Consider
F. Public Benefits Considered
G. Previous Rulemaking Efforts
H. Bond and Bond Procedures
I. Specific Questions for State, Territorial, Local, and Tribal
Benefit Granting Agencies and Nonprofit Organizations
Table of Abbreviations
AFM--USCIS Adjudicator's Field Manual
ANPRM--Advance Notice of Proposed Rulemaking
BIA--Board of Immigration Appeals
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
DOS--Department of State
DOJ--Department of Justice
FAM--Department of State Foreign Affairs Manual
HCV--Housing Choice Voucher
HSA--Homeland Security Act
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRCA--Immigration Reform and Control Act
LPR--Lawful Permanent Resident
[[Page 47026]]
NPRM--Notice of Proposed Rulemaking
PRWORA--Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
SNAP--Supplemental Nutrition Assistance Program
SSI--Supplemental Security Income
USCIS--U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to submit written data, views,
comments, and arguments on all aspects of this ANPRM. Comments must be
submitted in English, or an English translation must be provided. DHS
welcomes comments on any aspects discussed in this ANPRM and has
identified in Section ``III. Request for Information'' of this document
the matters on which DHS will find public comments most helpful to its
future rulemaking.
Registration for listening sessions: To register and receive
information on how to attend the virtual public listening sessions,
please go to: <a href="https://www.uscis.gov/outreach/upcoming-national-engagements">https://www.uscis.gov/outreach/upcoming-national-engagements</a>.
Instructions for comments: All submissions may be posted, without
change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and may include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2021-0013. You may also sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.
II. Background
A. Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
issuing regulations is found in various sections of the Immigration and
Nationality Act (INA, 8 U.S.C. 1101 et seq.), and the Homeland Security
Act of 2002 (HSA). \1\ Section 102 of the HSA, 6 U.S.C. 112, and
section 103 of the INA, 8 U.S.C. 1103, charge the Secretary with the
administration and enforcement of the immigration laws of the United
States. In addition to establishing the Secretary's general authority
for the administration and enforcement of immigration laws, section 103
of the INA, 8 U.S.C. 1103, enumerates various related authorities,
including the Secretary's authority to establish such regulations,
prescribe such forms of bond, issue such instructions, and perform such
other acts as the Secretary deems necessary for carrying out such
authority.
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\1\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.
(Nov. 25, 2002).
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Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), provides that an
applicant for a visa, admission, or adjustment of status is
inadmissible if he or she is likely at any time to become a public
charge. The public charge ground of inadmissibility, therefore, applies
to anyone applying for a visa to come to the United States temporarily
or permanently, for admission to the United States, or for adjustment
of status to that of a lawful permanent resident.\2\ Some categories of
noncitizens are exempt from the public charge inadmissibility ground,
while others may apply for a waiver of the public charge
inadmissibility ground.\3\
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\2\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\3\ See INA section 245(j), 8 U.S.C. 1255(j); 8 CFR 245.11; INA
section 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B); INA 212(d)(3)(A), 8
U.S.C. 1182(d)(3)(A).
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The INA does not define the term ``public charge.'' It does,
however, specify that when determining whether a noncitizen is likely
at any time to become a public charge, consular officers and
immigration officers must, at a minimum, consider the noncitizen's age;
health; family status; assets, resources, and financial status; and
education and skills.\4\ Additionally, section 212(a)(4)(B)(ii) of the
INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits the consular officer or the
immigration officer to consider any Affidavit of Support Under Section
213A of the INA submitted on the applicant's behalf when determining
whether the applicant is likely at any time to become a public
charge.\5\ Most noncitizens seeking family-based immigrant visas or
adjustment of status, and some noncitizens seeking employment-based
immigrant visas or adjustment of status, must submit a sufficient
Affidavit of Support Under Section 213A of the INA in order to avoid
being found inadmissible under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4).\6\
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\4\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\5\ When required, the applicant must submit an Affidavit of
Support Under Section 213A of the INA (Form I-864 or Form I-864EZ).
\6\ See INA section 212(a)(4)(C), (D), 8 U.S.C. 1182(a)(4)(C),
(D).
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In general, under section 213 of the INA, 8 U.S.C. 1183, the
Secretary has the discretion to admit into the United States a
noncitizen who is determined to be inadmissible based only on the
public charge ground upon the giving of a suitable and proper bond or
undertaking approved by the Secretary.\7\ The purpose of issuing a
public charge bond is to ensure that the noncitizen will not become a
public charge in the future.\8\ Since the introduction of the Affidavit
of Support Under Section 213A of the INA, the use of public charge
bonds has decreased, and USCIS does not currently administer a public
charge bond process.\9\
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\7\ See INA section 213, 8 U.S.C. 1183.
\8\ See Matter of Viado, 19 I&N Dec. 252 (BIA 1985).
\9\ See Adjudicator's Field Manual (AFM) Ch. 61.1(b), available
at <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm61-external.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm61-external.pdf</a> (last visited June 4, 2021).
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Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of
applicants for admission, including admissibility determinations of
such applicants.
Section 245 of the INA, 8 U.S.C. 1255, generally establishes
eligibility criteria for adjustment of status to that of a lawful
permanent resident.
B. Regulatory History
The public charge ground of inadmissibility has been the subject of
numerous judicial and administrative decisions, as well as
administrative guidance and regulations. On May 26, 1999, soon after
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), which amended the public charge
ground of inadmissibility,\10\ INS issued Interim Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds (1999
Interim Field Guidance).\11\ This guidance identified
[[Page 47027]]
how the agency would determine if a person is likely to become a public
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), for
admission and adjustment of status purposes, and whether a person is
deportable as a public charge under section 237(a)(5) of the INA, 8
U.S.C. 1227(a)(5). INS proposed promulgating these policies as
regulations in a proposed rule issued on May 26, 1999, but no final
rule was issued.\12\ The Department of State (DOS) also issued a cable
to its consular officers at that time implementing similar guidance for
visa adjudications, and similarly updated its Foreign Affairs Manual
(FAM).\13\ Until 2019, INS and later, USCIS, followed the 1999 Interim
Field Guidance in their adjudications. DOS followed its public charge
guidance as set forth in the FAM.\14\
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\10\ Public Law 104-208, div. C, 110 Stat 3009-546. DHS notes
that a few months after IIRIRA was enacted, Congress enacted the
Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA), Public Law 104-193, 11 Stat. 2105, which included a
statement of national policy regarding immigration and welfare
generally. The statement provides, among other things, that ``it
continues to be the immigration policy of the United States that
aliens within the Nation's borders not depend on public resources to
meet their needs, but rather rely on their own capabilities and the
resources of their families, their sponsors, and private
organizations, and the availability of public benefits not
constitute an incentive for immigration to the United States.'' See
8 U.S.C. 1601.
\11\ 64 FR 28689 (May 26, 1999). Due to a printing error, the
Federal Register version of the field guidance appears to be dated
``March 26, 1999'' even though the guidance was actually signed May
20, 1999, became effective May 21, 1999 and was published in the
Federal Register on May 26, 1999.
\12\ See Inadmissibility and Deportability on Public Charge
Grounds, 64 FR 28676 (May 26, 1999).
\13\ See 9 FAM 40.41.
\14\ See 9 FAM 302.8-2(B)(2), Determining ``Totality of
Circumstances,'' (g) Public Charge Bonds, available at <a href="https://fam.state.gov/fam/09fam/09fam030208.html">https://fam.state.gov/fam/09fam/09fam030208.html</a>. Note that on January 3,
2018, DOS amended its FAM guidance, which retained the definitions
and framework from the prior guidance, but changed the manner in
which DOS evaluated the Affidavit of Support Under Section 213A of
the INA as well as how it considered the receipt of non-cash
benefits by applicants, sponsors, and family members.
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In August 2019, DHS issued a final rule titled Inadmissibility on
Public Charge Grounds (2019 Final Rule).\15\ The 2019 Final Rule
redefined the term public charge to mean ``an alien who receives one or
more public benefits, as defined in [the 2019 Final Rule], for more
than 12 months in the aggregate within any 36-month period (such that,
for instance, receipt of two benefits in one month counts as two
months).'' \16\ It also defined the term public benefit to include cash
assistance for income maintenance (other than tax credits), SNAP, most
forms of Medicaid, Section 8 Housing Assistance under the Housing
Choice Voucher (HCV) Program, Section 8 Project-Based Rental
Assistance, and certain other forms of subsidized housing.\17\ The
applicability of some provisions of the 2019 Final Rule was limited in
certain ways, including with respect to active duty military members
and their spouses and children, and for children in certain
contexts.\18\
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\15\ See 84 FR 41292 (Aug. 14, 2019); see also 84 FR 52357 (Oct.
2, 2019) (making corrections). In October 2019, DOS issued a
conforming rule. See 84 FR 54996 (Oct. 11, 2019).
\16\ See 84 FR 41292 (Aug. 14, 2019).
\17\ See 84 FR 41292 (Aug. 14, 2019).
\18\ See 84 FR 41292 (Aug. 14, 2019). For example, under that
rule, public benefits did not include benefits received by a person
who, at the time of receipt, filing the application for admission or
adjustment of status, or adjudication, was enlisted in the U.S.
Armed Forces, serving in active duty or in the Ready Reserve
component of the U.S. Armed Forces, or benefits received by the
spouse or child of such a service member. Moreover, under that rule,
public benefits did not include benefits received by children of
U.S. citizens whose lawful admission for permanent residence would
result in automatic acquisition of U.S. citizenship.
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The 2019 Final Rule also established an evidentiary framework for
USCIS' consideration of public charge inadmissibility and explained how
DHS would interpret the minimum statutory factors for determining
whether, ``in the opinion of'' \19\ the officer, a noncitizen is likely
at any time to become a public charge. Specifically, for adjustment of
status applications before USCIS, DHS created a new Declaration of
Self-Sufficiency, Form I-944, that collected information from
applicants relevant to the 2019 Final Rule's approach to the statutory
factors.\20\
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\19\ See INA section 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
\20\ The Declaration of Self-Sufficiency requirement only
applied to adjustment of status applicants and not to applicants for
admission at a port of entry.
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The 2019 Final Rule also revised DHS regulations governing the
Secretary's discretion to accept a public charge bond under section 213
of the INA, 8 U.S.C. 1183, for those seeking adjustment of status.\21\
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\21\ See 84 FR 41292 (Aug. 14, 2019). The 2019 Final Rule also
contained provisions that would render certain nonimmigrants
ineligible for extension of stay or change of status if they
received one or more public benefits for more than 12 months in the
aggregate within any 36-month period since obtaining the
nonimmigrant status they sought to extend or change.
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The 2019 Final Rule was preliminarily enjoined by U.S. district
courts in the Southern District of New York, District of Maryland,
Northern District of California, Eastern District of Washington, and
Northern District of Illinois.\22\ Following a series of stays of the
preliminary injunctions,\23\ DHS began applying the Final Rule on
February 24, 2020. Since that time, preliminary injunctions against the
Final Rule were affirmed by the Second, Seventh, and Ninth Circuit
Courts of Appeals.\24\ On November 2, 2020, the U.S. District Court for
the Northern District of Illinois issued a Rule 54(b) judgment vacating
the rule on the merits.\25\ On November 3, 2020, the Seventh Circuit
granted an administrative stay of the district court's judgment and, on
November 19, 2020, the Seventh Circuit granted a stay pending appeal.
On March 9, 2021, DHS moved to dismiss its appeal before the Seventh
Circuit, the Seventh Circuit dismissed the appeal, and the Rule 54(b)
judgment went into effect.
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\22\ See City and Cnty. of San Francisco v. USCIS, 408 F. Supp.
3d 1057 (N.D. Cal. 2019); Cook County, Ill. v. McAleenan, 417 F.
Supp. 3d 1008 (N.D. Ill. 2019); Casa de Md. v. Trump, 414 F. Supp.
3d 760 (D. Md. 2019) Make the Road New York v. Cuccinelli, 419 F.
Supp. 3d 647 (S.D.N.Y. 2019); Wash. v. DHS, 408 F. Supp. 3d 1191
(E.D. Wash. 2019).
\23\ See Wolf v. Cook County, 140 S. Ct. 681 (2020) (staying
preliminary injunction from the Northern District of Illinois); DHS
v. New York, 140 S. Ct. 599 (2020) (staying preliminary injunctions
from the Southern District of New York); City and Cnty. of San
Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019) (staying
preliminary injunctions from the Eastern District of Washington and
Northern District of California); CASA de Md. v. Trump, No. 19-2222
(4th Cir. Dec. 9, 2019) (staying preliminary injunction from the
District of Maryland).
\24\ See New York v. DHS, 969 F.3d 42 (2d Cir. 2020); Cook
County, Ill. v. Wolf, 962 F.3d 208 (7th Cir. 2020); City and Cnty.
of San Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2020); see also
Casa de Md. v. Trump, 981 F.3d 311 (4th Cir. 2020) (granting en banc
review and vacating a panel opinion that had reversed a preliminary
injunction). In July 2020, the Southern District of New York issued
a second preliminary injunction against the Final Rule for reasons
related to the COVID-19 pandemic, which the Second Circuit later
stayed. See New York v. DHS, 475 F. Supp. 3d 208 (S.D.N.Y. 2020),
injunction stayed, 974 F.3d 210 (2d Cir. 2020).
\25\ See Cook County, Ill. v. Wolf, No. 19-C-6334, 2020 WL
6393005 (N.D. Ill. Nov. 2, 2020).
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As a result of the judgment, DHS ceased to apply the 2019 Final
Rule and instead reverted to the policy that was in effect prior to
that rule, i.e., the 1999 Interim Field Guidance. DHS also removed the
regulatory text that DHS had promulgated in the 2019 Final Rule and
that had been vacated by the district court, thereby restoring the
regulatory text to appear as it did prior to the 2019 Final Rule's
issuance.\26\
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\26\ 86 FR 14221 (Mar. 15, 2021).
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DHS notes that on February 2, 2021, President Biden issued
Executive Order 14012, Restoring Faith in Our Legal Immigration System
and Strengthening Integration and Inclusion Efforts for New
Americans.\27\ In the Executive Order, the President declared a
national policy ``to ensure that our laws and policies encourage full
participation by immigrants, including refugees, in our civic life;
that immigration processes and other benefits are delivered effectively
and efficiently; and that the Federal Government eliminates sources of
fear and other barriers that prevent immigrants from accessing
government services available to them.'' \28\ The President also
specifically directed a review of public charge policies by the
Secretary of State, the Attorney General, and the Secretary of Homeland
Security, in consultation with the heads of relevant agencies.
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\27\ 86 FR 8277 (Feb. 5, 2021).
\28\ 86 FR 8277 (Feb. 5, 2021).
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[[Page 47028]]
III. Request for Information
DHS is publishing this ANPRM to seek broad public feedback on the
public charge ground of inadmissibility that will inform DHS's
consideration of further rulemaking action. DHS is in the process of
preparing a regulatory proposal that will be fully consistent with law;
that will reflect empirical evidence to the extent relevant and
available; that carefully considers public comments; that will be
clear, fair, and comprehensible for officers as well as for noncitizens
and their families; that will lead to fair and consistent adjudications
and thus avoid unequal treatment of similarly situated individuals; and
that will not otherwise unduly impose barriers for noncitizens seeking
admission or adjustment of status in the United States.\29\ DHS also
intends to ensure that any regulatory proposal does not unduly
interfere with the receipt of public benefits by applicants and their
families, particularly in light of the COVID-19 pandemic and the
resulting long-term public health and economic impacts in the United
States.\30\
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\29\ See Executive Order 14012 (Restoring Faith in Our Legal
Immigration System and Strengthening Integration and Inclusion
Efforts for New Americans), 86 FR 8277 (Feb. 5, 2021).
\30\ See, e.g., International Labor Organization, Food and
Agricultural Organization of the United Nations, International Fund
for Agricultural Development, and World Health Organization Joint
Statement, ``Impact of COVID-19 on people's livelihoods, their
health and our food systems'' (2020), <a href="https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people">https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people</a>'s-livelihoods-their-health-
and-our-food-systems (last visited Jul. 14, 2021); Pew Research
Center, A Year Into the Pandemic, Long-Term Financial Impact Weighs
Heavily on Many Americans (2021), <a href="https://www.pewresearch.org/social-trends/wp-content/uploads/sites/3/2021/03/PSD_03.05.21.covid_.impact_fullreport.pdf">https://www.pewresearch.org/social-trends/wp-content/uploads/sites/3/2021/03/PSD_03.05.21.covid_.impact_fullreport.pdf</a> (last visited Jul. 14,
2021); Health Affairs, Spillover Effects of the COVID-19 Pandemic
Could Drive Long-Term Health Consequences for Non-COVID-19 Patients
(2020), <a href="https://www.healthaffairs.org/do/10.1377/hblog20201020.566558/full/">https://www.healthaffairs.org/do/10.1377/hblog20201020.566558/full/</a> (last visited Jul. 14, 2021).
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DHS welcomes and will carefully consider public input on all
aspects of public charge inadmissibility in its ongoing rulemaking
efforts in this area, consistent with its broad authority to administer
the U.S. immigration system. In addition to inviting written comments,
DHS is providing the public with the opportunity to participate in
virtual public listening sessions. For information about those
sessions, please see the Public Participation and Dates sections of
this document.
A. Purpose and Definition of Public Charge
1. Background
As noted, the INA does not define the term ``public charge,'' but
specifies that consular and immigration officers must, at a minimum,
consider the noncitizen's age; health; family status; assets,
resources, and financial status; and education and skills when making
public charge inadmissibility determinations.\31\
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\31\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
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As part of this rulemaking, DHS expects to codify a definition of
public charge that (1) is consistent with law; (2) is easily
understood; (3) is straightforward to apply in a fair, consistent, and
predictable manner; (4) reflects consideration of relevant national
policies; and (5) will not unduly impose barriers for noncitizens
seeking admission or adjustment of status in the United States.
2. Questions for the Public
DHS welcomes public comment on all aspects of the topic described
above, and would particularly benefit from commenters addressing one or
more of the following questions, including the reasoning, data, and
information behind their comments:
1. How should DHS define the term ``public charge''?
2. What data or evidence is available and relevant to how DHS
should define the term ``public charge''?
3. How might DHS define the term ``public charge'', or otherwise
draft its rule, so as to minimize confusion and uncertainty that could
lead otherwise-eligible individuals to forgo the receipt of public
benefits?
4. What national policies, including the policies referenced
throughout this ANPRM, policies related to controlling paperwork
burdens on the public, and policies related to promoting the public
health and general well-being, should DHS consider when defining the
term ``public charge'' and administering the statute more generally?
5. What potentially disproportionate negative impacts on
underserved communities (e.g., people of color, persons with
disabilities) could arise from the definition of ``public charge'' and
how could DHS avoid or mitigate them?
6. What tools and approaches can DHS use to ensure that future
rulemaking is appropriately informed by available evidence? \32\
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\32\ Consistent with Executive Orders 12866 and 13563, DHS is
committed to evidence-based policymaking. DHS is aware of at least
one recent attempt to use available data and machine-learning tools
to estimate the probability of a noncitizen becoming a public charge
(as that term was defined under the 2019 Final Rule). See Mitra
Akhtari et al., Estimating the Likelihood of Becoming a ``Public
Charge,'' N.Y.U. J. Legis. & Pub. Pol'y Quorum (Aug. 2, 2021),
<a href="https://nyujlpp.org/quorum/estimating-the-empirical-likelihood-of-becoming-a-public-charge/">https://nyujlpp.org/quorum/estimating-the-empirical-likelihood-of-becoming-a-public-charge/</a> (accessed Aug. 4, 2021). DHS welcomes
comments on the approach described in that paper; alternative
approaches that may appropriately leverage available evidence and
tools; and the potential implications of such approaches for this
rulemaking.
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B. Prospective Nature of the Public Charge Inadmissibility
Determination
1. Background
As noted in the 1999 Interim Field Guidance, the existing test for
adjudicating public charge inadmissibility ``has been developed in
several Service, BIA, and Attorney General decisions and has been
codified in the Service regulations implementing the legalization
provisions of the Immigration Reform and Control Act of 1986. These
decisions and regulations, and section 212(a)(4) itself, create a
`totality of the circumstances' test.'' \33\ The vacated 2019 Final
Rule also required that the public charge inadmissibility determination
``be based on the totality of the alien's circumstances by weighing all
factors that are relevant to whether the alien is more likely than not
at any time in the future to receive one or more public benefits.''
\34\ Under the vacated 2019 Final Rule, at a minimum, officers were to
consider all of the mandatory factors set forth in the statute, as well
as the noncitizen's prospective immigration status and expected period
of admission, and (where applicable) a sufficient Affidavit of Support
Under Section 213A of the INA.\35\
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\33\ See 64 FR 28689, 28690 (May 26, 1999).
\34\ See 84 FR 41292, 41502 (Aug. 14, 2019).
\35\ See 84 FR 41292, 41423 (Aug. 14, 2019).
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Through a future rulemaking, DHS may seek to clarify how officers
should consider a noncitizen's past and present circumstances in
determining the likelihood that they will become a public charge at any
time in the future.
2. Questions for the Public
DHS welcomes public comment on all aspects of the topic described
above, but would particularly benefit from commenters addressing one or
more of the following questions, including the reasoning, data, and
information that inform their comments:
[[Page 47029]]
1. To the extent that DHS considers a noncitizen's past or current
receipt of public benefits, for what period of time before the public
charge inadmissibility determination should DHS consider the
noncitizen's receipt of public benefits? Why is that time period
relevant?
C. Statutory Factors
1. Background
Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), states
that DHS must, at a minimum, consider the noncitizen's age; health;
family status; assets, resources, and financial status; and education
and skills.\36\ DHS may also consider any Affidavit of Support under
Section 213A of the INA, which is described below in Section D.\37\
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\36\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\37\ See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
---------------------------------------------------------------------------
In the 1999 Interim Field Guidance, the former INS noted that
officers must consider the mandatory statutory factors, as well as any
Affidavit of Support Under Section 213A of the INA submitted, and that
``[e]very denial order based on public charge must reflect
consideration of each of these factors and specifically articulate the
reasons for the officer's determination.'' \38\ The guidance suggested
that factors would be either positive or negative,\39\ but did not
explain what evidence officers should consider in evaluating these
factors listed in section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B), or the weight to be given to a particular factor, in the
totality of the circumstances.\40\
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\38\ See 64 FR 28689, 28689-90 (May 26, 1999).
\39\ See 64 FR 28689, 28689-90 (May 26, 1999).
\40\ See 64 FR 28689, 28689-90 (May 26, 1999). As explained more
fully elsewhere in this document, the 1999 Interim Field Guidance
included consideration of the past and present receipt of cash
assistance for income maintenance and noted that less weight would
be assigned the longer ago the benefits were received. 64 FR at
28690. The 1999 Interim Field Guidance also noted that applicants
who received cash assistance for income maintenance could overcome
such receipt by being employed full-time or having a sufficient
Affidavit of Support Under Section 213A of the INA. 64 FR at 28690.
---------------------------------------------------------------------------
In the vacated 2019 Final Rule, DHS also required officers to
consider the mandatory statutory factors, as well as a sufficient
Affidavit of Support Under Section 213A of the INA, if submitted, in
the totality of the circumstances, when assessing an applicant's
likelihood of becoming a public charge at any time in the future.\41\
That rule provided certain standards for officers to use in assessing
each factor and also identified evidence that USCIS deemed relevant for
the consideration of these factors.\42\
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\41\ See 84 FR 41307. As explained more fully elsewhere, the
rule also required consideration of an additional factor not
referenced in the statute.
\42\ See 84 FR 41292 (Aug. 14, 2019).
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Through a future rulemaking, DHS may seek to clarify how officers
should consider the statutory factors in making a public charge
inadmissibility determination, as well as any other factors relevant to
assessing an applicant's likelihood of becoming a public charge at any
time.
2. Questions for the Public
DHS welcomes public comment on the topic described above, but would
particularly benefit from commenters addressing one or more of the
following questions including the reasoning, data, and information
behind their comments:
1. Which factors (whether statutory factors or any other relevant
factors identified by the commenter) are most predictive of whether a
noncitizen is likely (or is not likely) to become a public charge? To
the extent that data exist on this question, how can DHS use such data
to improve public charge policymaking and adjudication?
2. How can DHS address the potential for perceived or actual
unfairness or discrimination in public charge inadmissibility
adjudications, whether due to cognitive, racial, or other biases;
arbitrariness; variations in outcomes across cases with similar facts;
or other reasons?
3. What kinds of tools (in regulation or policy guidance) could DHS
provide to the public and adjudicators to make the totality of the
circumstances determination more predictable and less subject to
variation in different cases presenting similar facts?
4. Should DHS give any more or less consideration to any one or
more of the statutory factors, the Affidavit of Support Under Section
213A of the INA, or any additional factors DHS may add through the
rulemaking process in a public charge inadmissibility determination?
5. In the adjustment of status context, how should DHS request the
necessary information to consider the mandatory statutory factors for
each adjudication, without imposing undue paperwork burdens on the
public and adjudicators?
a. Age
1. How should an applicant's age be considered as part of the
public charge inadmissibility determination?
b. Health
1. How should DHS define health for the purposes of a public charge
inadmissibility determination?
2. Should DHS consider disabilities and/or chronic health
conditions as part of the health factor? If yes, how should DHS
consider these conditions and why?
3. How should the Rehabilitation Act of 1973's prohibition of
discrimination on the basis of disability be considered in DHS's
analysis of the health factor? \43\
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\43\ Note that under Executive Order 12250, DOJ is charged with
coordinating the implementation and enforcement by Executive
agencies of Section 504 of the Rehabilitation Act.
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4. How should DHS consider the Report of Medical Examination and
Vaccination Record, Form I-693, as part of the health factor?
5. Should DHS account for social determinants of health to avoid
unintended disparate impacts on historically disadvantaged groups? If
yes, how should DHS consider this limited access and why?
c. Family Status
1. How should DHS define and consider family status for the
purposes of a public charge inadmissibility determination?
2. How should an applicant's household size be considered as part
of the family status factor? What definition of an applicant's
household size should DHS use for the public charge inadmissibility
determination?
d. Assets, Resources, and Financial Status
1. What types of assets and resources are relevant to a public
charge inadmissibility determination?
2. Whose assets and resources should be considered as part of this
factor?
3. How should DHS define financial status for the purposes of a
public charge inadmissibility determination?
4. How should DHS address the challenges faced by those not served
by a bank or similar financial institution in demonstrating their
assets, resources, and financial status?
5. Should DHS consider an applicant's financial obligations (such
as child or spousal support), debt, or bankruptcy in a public charge
inadmissibility determination? If yes, how should DHS consider an
applicant's debt, bankruptcy, or financial obligations when evaluating
an applicant's financial status and why?
6. Should DHS address its assessment of the relationship between
the applicant's assets, resources, and financial status in the context
of his or her particular circumstances (e.g., costs of living in the
applicant's geographic location) in its rulemaking? If yes, how so?
[[Page 47030]]
7. What data sources and criteria should DHS use to assess the
sufficiency of the applicant's assets, resources, and financial status?
8. Should DHS consider the varied economic opportunities afforded
to applicants to avoid unintended disparate impacts? If yes, how should
DHS consider these limited opportunities and why?
e. Education and Skills
1. How should DHS consider an applicant's education and skills in
making a public charge inadmissibility determination?
2. What education and skills should DHS consider in making a public
charge inadmissibility determination?
3. Should DHS consider the varied access to educational
opportunities afforded to applicants to avoid disparate impacts? If
yes, how should DHS consider this limited access and why?
D. Affidavit of Support Under Section 213A of the INA
1. Background
Most family-based and some employment-based applicants for
adjustment of status are required to submit an Affidavit of Support
Under Section 213A of the INA, Form I-864 or Form I-864EZ, executed by
a sponsor, which is usually the U.S. citizen or LPR who filed the
immigrant visa petition on the adjustment applicant's behalf.\44\ The
absence of a sufficient Affidavit of Support Under Section 213A of the
INA, where required, will result in a finding of inadmissibility under
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), without
consideration of the mandatory statutory factors.\45\ Under section
212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), DHS may
consider a sufficient Affidavit of Support Under Section 213A of the
INA \46\ for the purposes of determining the applicant's likelihood of
becoming a public charge at any time.
---------------------------------------------------------------------------
\44\ See INA sections 212(a)(4)(C), (D) and 213A, 8 U.S.C.
1182(a)(4)(C) and (D).
\45\ See INA sections 212(a)(4)(C), (D) and 213A, 8 U.S.C.
1182(a)(4)(C) and (D).
\46\ A sufficient Affidavit of Support Under Section 213A of the
INA is one in which the sponsor has demonstrated that he or she has
enough income and/or assets to maintain the sponsored noncitizen and
the rest of the sponsor's household at 125% of the Federal Poverty
Guidelines (FPG) for that household size (or at 100 percent of the
FPG if the sponsor is active duty in the U.S. Armed Forces or U.S.
Coast Guard). See INA section 213A, 8 U.S.C. 1183a.
---------------------------------------------------------------------------
The 1999 Interim Field Guidance did not specifically address how
officers should consider the Affidavit of Support Under Section 213A of
the INA for the purposes of the totality of the circumstances
determination as set forth in section 212(a)(4)(B)(ii) of the INA, 8
U.S.C. 1182(a)(4)(B)(ii), focusing instead on how a sponsor's receipt
of means-tested public benefits was considered for the purposes of
determining the sufficiency of the affidavit.\47\ However, in the
vacated 2019 Final Rule, DHS described how officers would consider a
sufficient Affidavit of Support Under Section 213A of the INA.\48\ In
that rule, DHS provided that adjudicators would consider the likelihood
that the sponsor would actually provide the statutorily required amount
of financial support to the noncitizen as part of the totality of the
circumstances determination.\49\
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\47\ See 64 FR 28689, 28693 (May 26, 1999).
\48\ See 84 FR 41292, 41440 (Aug. 14, 2019).
\49\ See 84 FR 41292, 41504 (Aug. 14, 2019).
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In a future rulemaking, DHS may seek to address the manner in which
a sufficient Affidavit of Support Under Section 213A of the INA is
considered as part of a public charge inadmissibility determination.
2. Questions for the Public
DHS welcomes public comment on all aspects of the topic described
above, but would particularly benefit from commenters addressing one or
more of the following questions, including the reasoning, data, and
information behind their comments:
1. How should DHS consider a sufficient Affidavit of Support Under
Section 213A of the INA in the public charge inadmissibility
determination?
2. What weight should DHS give to a sufficient Affidavit of Support
Under Section 213A of the INA in comparison to the mandatory statutory
factors in the public charge inadmissibility determination?
E. Other Factors To Consider
1. Background
Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), states
that DHS must, at minimum, consider the individual's age; health;
family status; assets, resources, and financial status; and education
and skills. DHS may also consider any Affidavit of Support Under
Section 213A of the INA, which is described above in Section D. The
statute's inclusion of the words ``at minimum'' suggests that other
factors, beyond those listed and the Affidavit of Support Under Section
213A of the INA, may be considered when determining whether an
individual is likely to become a public charge.
While the 1999 Interim Field Guidance suggests that there are other
factors besides the mandatory factors and the Affidavit of Support
Under Section 213A of the INA that are considered in the totality of
the circumstances, that guidance did not specify or explain those other
factors.\50\ The vacated 2019 Final Rule, however, promulgated one
additional factor apart from the factors set forth in section
212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B)--the noncitizen's
prospective immigration status and expected period of admission.\51\
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\50\ See 64 FR 28689, 28690 (May 26, 1999).
\51\ See 84 FR 41292, 41423 (Aug. 14, 2019).
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In a future rulemaking, DHS may seek to address whether there are
factors other than those identified in section 212(a)(4)(B) of the INA,
8 U.S.C. 1184(a)(4)(B), that should be considered as part of a public
charge inadmissibility determination.
2. Questions for the Public
DHS welcomes public comment on all aspects of the topic described
above, but would particularly benefit from commenters addressing the
following questions including the reasoning, data, and information
behind their comments:
1. What other factors, if any, should DHS consider as part of the
public charge inadmissibility determination and why?
2. How, if at all, should DHS account for the fact that there are
differences in the duration of time noncitizens are authorized to stay
in the United States, and that many noncitizens subject to the public
charge ground of inadmissibility are expected to remain in the United
States for only a brief period of time?
3. What data or evidence is available and relevant to the question
above?
F. Public Benefits Considered
1. Background
The former INS, in the 1999 Interim Field Guidance, recognized a
link between public charge and the receipt of public benefits by
defining public charge in terms of primary dependence on the government
for subsistence, and in directing officers to consider the receipt of
public cash assistance for income maintenance or institutionalization
for long-term care at government expense.\52\ In tying the receipt of
cash assistance for income maintenance to public charge, the former INS
believed it would be able to ``identify those who are primarily
dependent on the government for subsistence without inhibiting access
to non-cash benefits that serve important public interests.'' \53\ The
former INS's focus on cash assistance for income maintenance reflected
the determination
[[Page 47031]]
that receipt of benefits under these programs was more reflective of
poverty or dependence, while such was not the case for most non-cash
benefits, which (with the exception of institutionalization for long-
term care at government expense) were not considered.\54\ Finally, the
former INS also tried to address the negative impacts on public health
and general welfare caused by individuals forgoing the receipt of such
non-cash benefits to avoid negative immigration consequences.\55\
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\52\ See 64 FR 28689, 28692 (May 26, 1999).
\53\ See 64 FR 28689, 28692 (May 26, 1999).
\54\ See 64 FR 28689, 28692 (May 26, 1999).
\55\ See 64 FR 28689, 28692 (May 26, 1999).
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In the vacated 2019 Final Rule, DHS also recognized a link between
public charge and receipt of public benefits, but determined ``that
neither the wording of section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), nor case law examining public charge inadmissibility,
mandates the `primarily dependent' standard [set forth in the 1999
Interim Field Guidance] . . . .'' \56\ Emphasizing the policy
statements contained in PRWORA,\57\ the vacated 2019 Final Rule
expanded the types of public benefits considered as part of a public
charge inadmissibility determination to include not only public cash
assistance for income maintenance but also certain designated public
non-cash benefits.\58\
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\56\ See 84 FR 41292, 41349 (Aug. 14, 2019).
\57\ See 8 U.S.C. 1601.
\58\ See 84 FR 41292, 41439 (Aug. 14, 2019).
---------------------------------------------------------------------------
In a future rulemaking, DHS may seek to clarify whether and which
public benefits should be considered as part of a public charge
inadmissibility determination.
2. Questions for the Public
DHS welcomes public comment on all aspects of the topic discussed
above, but would particularly benefit from commenters addressing one or
more of the following questions including the reasoning, data, and
information behind their comments:
1. Should DHS consider the receipt of public benefits (past and/or
current) in the public charge inadmissibility determination? If yes,
how should DHS consider the receipt of public benefits and why?
2. Which public benefits should be considered as part of a public
charge inadmissibility determination?
3. Which public benefits, if any, should not be considered as part
of a public charge inadmissibility determination?
4. How should DHS address the possibility that individuals who are
eligible for public benefits, including U.S. citizen relatives of
noncitizens, would forgo the receipt of those benefits as a result of
DHS's consideration of certain public benefits in the public charge
inadmissibility determination? What data and information should DHS
consider about the direct and indirect effects of past public charge
policies in this regard?
G. Previous Rulemaking Efforts
1. Background
DHS and its predecessor, INS, engaged in two previous rulemaking
efforts as discussed in greater detail above in Part II, Section C. On
May 26, 1999, INS issued a NPRM, which proposed how the agency would
determine if a noncitizen is likely at any time to become a public
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a), for
admission and adjustment of status purposes, and whether a noncitizen
in and admitted to the United States has become a public charge within
5 years after the date of entry for causes not affirmatively shown to
have arisen since entry under section 237(a)(5) of the INA, 8 U.S.C.
1227(a)(5).\59\ That NPRM, and the related 1999 Interim Field Guidance,
provided a definition for public charge, specified the public benefits
that would and would not be considered as part of a public charge
determination, established a prospective totality of the circumstances
framework that considered the factors set forth in section 212(a)(4)(B)
of the INA, 8 U.S.C. 1182(a)(4)(B), and clarified how the Affidavit of
Support Under Section 213A of the INA is used. INS and later DHS never
finalized the 1999 NPRM.
---------------------------------------------------------------------------
\59\ See Inadmissibility and Deportability on Public Charge
Grounds, 64 FR 28676 (May 26, 1999).
---------------------------------------------------------------------------
On August 14, 2019, DHS issued a final rule addressing the public
charge ground of inadmissibility.\60\ The rule provided a new
definition for public charge; specified the public benefits that would
be considered as part of a public charge inadmissibility determination;
established a prospective totality of the circumstances framework that
required consideration of all of the factors set forth in section
212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), as well as one
additional factor; specified the standards and evidence that would be
considered in the public charge inadmissibility determination; created
a new Form I-944 for public charge inadmissibility determinations in
the adjustment of status context; and changed the regulations for
public charge bonds.\61\
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\60\ See 84 FR 41292 (Aug. 14, 2019), as amended by
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357
(Oct. 2, 2019).
\61\ See 84 FR 41292 (Aug. 14, 2019), as amended by
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357
(Oct. 2, 2019).
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2. Questions for the Public
DHS welcomes public comment on all aspects of the topic described
above, but would particularly benefit from commenters addressing one or
more of the following questions including the reasoning, data, and
information behind their comments:
1. What aspects of the 1999 Interim Field Guidance, if any, should
be included in a future public charge inadmissibility rulemaking and
why?
2. What aspects of the 1999 NPRM, if any, should be included in a
future public charge inadmissibility rulemaking and why?
3. What aspects of the vacated 2019 Final Rule, if any, should be
included in a future public charge inadmissibility rulemaking and why?
4. What data are available to estimate any potential direct and
indirect effects, economic or otherwise, of the public charge ground of
inadmissibility, the 1999 Interim Field Guidance, or the vacated 2019
Final Rule? For instance, what data are available to estimate any
potential direct and indirect effects, economic or otherwise, on
individuals, social service organizations, hospitals, businesses, and
other persons and entities?
H. Bond and Bond Procedures
1. Background
If a noncitizen is determined to be inadmissible based on the
public charge ground, but is otherwise admissible, the person may be
admitted in the discretion of the Secretary of Homeland Security upon
the giving of a suitable and proper bond under section 213 of the INA,
8 U.S.C. 1183. That section authorizes the Secretary to establish the
amount and conditions of such bond. Regulations implementing the public
charge bond were promulgated in 1964 and 1966,\62\ and are currently
found at 8 CFR 103.6 and 8 CFR 213.1.
---------------------------------------------------------------------------
\62\ See Miscellaneous Amendments to Chapter, 29 FR 10579 (July
30, 1964); Miscellaneous Edits to Chapter, 31 FR 11713 (Sept. 7,
1966).
---------------------------------------------------------------------------
The 1999 Interim Field Guidance noted that the agency had the
discretionary authority to offer public charge bonds, but did not
otherwise explain the manner in which the agency would exercise that
discretion.\63\ In the vacated 2019 Final Rule, DHS established a
framework to offer public charge bonds under section 213 of the
[[Page 47032]]
INA, 8 U.S.C. 1183, to adjustment of status applicants inadmissible
only on the public charge ground, which included the minimum bond
amount, conditions under which a bond was breached, and when a public
charge bond would be cancelled.\64\
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\63\ See 64 FR 28689, 28693 (May 26, 1999).
\64\ See 84 FR 41292, 41299 (Aug. 14, 2019).
---------------------------------------------------------------------------
In a future rulemaking, DHS may seek to establish a public charge
bond process.
2. Questions for the Public
DHS welcomes public comment on all aspects of the topic described
above, but would particularly benefit from commenters addressing one or
more of the following questions including the reasoning, data, and
information behind their comments:
1. What standard should DHS use to determine whether to exercise
its discretion and authorize a noncitizen inadmissible only under the
public charge ground to submit a public charge bond?
2. Should DHS establish a minimum bond amount? If yes, how should
DHS establish that minimum bond amount and how should DHS adjust that
minimum bond amount over time?
3. What factors should DHS consider in establishing a bond amount
for a particular inadmissible noncitizen?
4. Under what circumstances should DHS consider a public charge
bond breached?
5. Under what circumstances should DHS consider a public charge
bond cancelled?
I. Specific Questions for State, Territorial, Local, and Tribal Benefit
Granting Agencies and Nonprofit Organizations
1. Background
DHS acknowledges that benefit granting agencies and nonprofit
organizations may have valuable information and data regarding the
receipt of public benefits and how benefit use intersects with the
public charge ground of inadmissibility. DHS intends to formally
consult with relevant Federal agencies, including benefits granting
agencies, in connection with future rulemaking actions addressing the
public charge ground of inadmissibility. As part of this ANPRM, DHS is
specifically seeking feedback from state, territorial, local, and
tribal benefit granting agencies, as well as nonprofit organizations.
2. Questions for State, Territorial, Local, and Tribal Benefit Granting
Agencies and Nonprofit Organizations
DHS welcomes public comment on all aspects of the topic described
above, but would particularly benefit from commenters addressing one or
more of the following questions including the reasoning, data, and
information behind their comments:
1. What costs, if any, has your agency or organization incurred in
order to implement changes in public charge policy, such as revising
enrollment procedures and public-facing materials? Please provide
relevant data.
2. What costs, if any, has your agency or organization incurred as
a result of reduction in enrollment, or disenrollment in public
benefits programs generally? Please provide relevant data.
3. What costs, if any, has your agency or organization incurred as
a result of disenrollment or reduction in enrollment in public benefits
programs caused by the public charge ground of inadmissibility, the
1999 Interim Field Guidance, or the vacated 2019 Final Rule? Please
provide relevant data.
4. With respect to the specific types of public benefits overseen
by your agency, under what circumstances is the receipt of such
benefits relevant, if at all, to assessing whether or not an individual
is likely at any time to become a public charge?
5. What, if any, specific concerns does your agency or organization
have about how DHS applies the public charge ground of inadmissibility
and how should DHS address those concerns?
6. What data does your agency or organization have that can be
shared to demonstrate any potential impact of the public charge ground
of inadmissibility, the 1999 Interim Field Guidance, or the vacated
2019 Final Rule on applications for or disenrollment from public
benefits by individuals who are eligible for such benefits?
7. What information, data, or studies does your agency or
organization have that can be shared that would help DHS identify
factors or patterns of benefit use (e.g., duration, frequency, or
extent of benefits use) that suggest whether and to what extent
individuals would be likely to use public benefits in the future?
8. How should DHS reduce the possibility that individuals who are
eligible for public benefits overseen by your agency would decide to
forgo the receipt of those benefits out of concern that receipt of such
benefits will make them (or a family member or household member)
inadmissible on public charge grounds, even if receipt of such a
benefit would not be considered by DHS in a public charge
determination, or would not be a decisive factor in a public charge
inadmissibility determination?
Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2021-17837 Filed 8-20-21; 8:45 am]
BILLING CODE 9111-97-P
</pre></body>
</html>Indexed from Federal Register on August 23, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.