Rule2021-25038
Visas: Ineligibility Based on Public Charge Grounds
Primary source
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Published
November 17, 2021
Issuing agencies
State Department
Abstract
On October 11, 2019, the Department of State ("the Department") published an interim final rule ("IFR") regarding visa ineligibility on public charge grounds and accepted public comments on the rule through November 12, 2019. Given the many changed circumstances since publication of the IFR, the Department is soliciting additional information from the public by reopening the public comment period for an additional 60 days.
Full Text
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<title>Federal Register, Volume 86 Issue 219 (Wednesday, November 17, 2021)</title>
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[Federal Register Volume 86, Number 219 (Wednesday, November 17, 2021)]
[Rules and Regulations]
[Pages 64070-64071]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25038]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice: 11566]
RIN 1400-AE87
Visas: Ineligibility Based on Public Charge Grounds
AGENCY: State Department.
ACTION: Interim final rule; reopening of public comment period.
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SUMMARY: On October 11, 2019, the Department of State (``the
Department'') published an interim final rule (``IFR'') regarding visa
ineligibility on public charge grounds and accepted public comments on
the rule through November 12, 2019. Given the many changed
circumstances since publication of the IFR, the Department is
soliciting additional information from the public by reopening the
public comment period for an additional 60 days.
DATES: The Department of State will accept comments until January 18,
2022.
ADDRESSES: To provide comments go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, enter
Docket DOS-2021-0034 and RIN 1400-AE87. Alternatively, you may submit
comments by any of the following methods:
<bullet> Email: You may submit comments via email to
<a href="/cdn-cgi/l/email-protection#d680bfa5b784b3b1a596a5a2b7a2b3f8b1b9a0"><span class="__cf_email__" data-cfemail="37615e44566552504477444356435219505841">[email protected]</span></a>. You must include the RIN in the subject line of
your message.
<bullet> Mail paper submissions: You may submit comments via
physical mail to Regulatory Coordinator, Visa Services, Bureau of
Consular Affairs, Department of State, 600 19th St. NW, Washington, DC
20006. You must include the RIN in the Attention Line in the address.
FOR FURTHER INFORMATION CONTACT: Andrea B. Lage, Acting Regulatory
Coordinator, Visa Services, Bureau of Consular Affairs, Department of
State, 600 19th St. NW, Washington, DC 20006, (202) 485-7586,
<a href="/cdn-cgi/l/email-protection#94c2fde7f5c6f1f3e7d4e7e0f5e0f1baf3fbe2"><span class="__cf_email__" data-cfemail="7127180210231416023102051005145f161e07">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Public Participation
All interested parties are invited to respond to this Reopening of
Public Comment Period by submitting written views and comments on the
IFR regarding visa ineligibility on public charge grounds. Comments
must be submitted in English or commenters must submit an English
translation. Comments that will provide the most assistance to the
Department in considering recommendations will reference a specific
existing regulation, order, guidance, policy, or any other similar
agency action, explain the reason for any recommended change, and
include information that supports the recommended change.
II. Background
On August 14, 2019, the Department of Homeland Security (``DHS'')
issued a final rule outlining its new interpretation of the public
charge ground of inadmissibility. See Inadmissibility on Public Charge
Grounds, 84 FR 41292, as amended on October 2, 2019 by Inadmissibility
on Public Charge Grounds; Correction, 84 FR 52357 (``DHS Public Charge
Final Rule''). The Department issued an IFR on October 11, 2019,
amending 22 CFR 40.41 by prescribing how consular officers determine
whether a noncitizen is ineligible for a visa under section 212(a)(4)
of the Immigration and Nationality Act (``INA''), 8 U.S.C. 1182(a)(4),
and 6 U.S.C. 236(b), because they are likely at any time to become a
public charge. See Visas: Ineligibility Based on Public Charge Grounds,
84 FR 54996.
The Department issued its IFR in significant part to ensure that
consular officers were applying standards consistent with the DHS
Public Charge Final Rule. Specifically, the IFR could have helped avoid
situations where a consular officer evaluates a visa applicant's
circumstances and concludes that the applicant is not likely at any
time to become a public charge, only for DHS to find the applicant
inadmissible on public charge grounds under the same facts when they
seek admission to the United States. See, e.g., 84 FR at 55011
(``Coordination of Department and DHS implementation of the public
charge inadmissibility ground is critical to the Department's interest
in preventing inconsistent adjudication standards and different
outcomes between determinations of visa eligibility and determinations
of admissibility at a port of entry.'').\1\
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\1\ The IFR is currently under a preliminary injunction issued
by the Southern District of New York on July 29, 2020. See Make the
Road New York v. Pompeo, 475 F. Supp. 3d 232 (S.D.N.Y. 2020).
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In the time since the Department first issued the IFR, a court
order vacating the DHS Public Charge Final Rule nationwide went into
effect after the government moved to voluntarily dismiss an appeal of
that order.\2\ Due to the vacatur of the DHS Public Charge Final Rule,
DHS immediately stopped applying its Public Charge Final Rule to all
pending applications and petitions that would have been subject to that
rule.\3\ DHS is now implementing the public charge inadmissibility
statute using the former-Immigration and Nationalization Service's 1999
Interim Field Guidance on Deportability and Inadmissibility on Public
Charge Grounds (64 FR 28689, May 26, 1999) issued by the former
Immigration and Naturalization Service, which was in place before the
2019 DHS Public Charge Final Rule was implemented, for immigration
petitions, applications for admission and adjustment of status. On
August 23, 2021, DHS published an Advance Notice of Proposed Rulemaking
(``ANPRM'') and notice of virtual public listening sessions to seek
broad public feedback on the public charge ground of inadmissibility
that will inform its development of a future regulatory proposal.\4\
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\2\ Cook County v. Wolf, 498 F. Supp. 3d 999 (N.D. Ill. 2020),
appeal dismissed, 2021 WL 1608766 (7th Cir. Mar. 9, 2021).
\3\ See USCIS, ``Inadmissibility on Public Charge Grounds Final
Rule: Litigation'' <a href="https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/inadmissibility-on-public-charge-grounds-final-rule-litigation">https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/inadmissibility-on-public-charge-grounds-final-rule-litigation</a> (last visited Aug. 24, 2021).
\4\ Public Charge Ground of Inadmissibility, 86 FR 47025 (Aug.
23, 2021).
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III. Change in Circumstances
With the vacatur of the 2019 DHS Public Charge Final Rule the
original reason for the Department's adoption of the 2019 IFR may no
longer apply. Further, with the publication of the DHS ANPRM, DHS has
indicated an intention to develop a new regulatory proposal that may
substantively differ from the IFR.
Additionally, just months after the Department issued its IFR, the
COVID-19 pandemic swept the globe. The pandemic's ongoing effects on
public health and economic conditions have been vast and have
underscored the importance of ensuring that individuals are able to
access public health and other programs for which they and their
[[Page 64071]]
family members are eligible, without undue fear or confusion. The
Department welcomes comments on the potential effects of the IFR on
public health measures in response to the pandemic, as well as other
ways that the Department should consider the intervening circumstances
of the COVID-19 pandemic in relation to the IFR.
Consequently, the Department has concluded that it should review
the IFR to determine (1) if the IFR should be rescinded or revised, and
(2) what final rule should be adopted, if any. If the IFR is rescinded,
Sec. 40.41 would logically revert to its prior text pending any new
rulemaking; such an outcome would likely be preferable to a regulatory
void, which the Department did not propose in the 2019 IFR. See 22 CFR
40.41 (2018).\5\
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\5\ Prior text of Sec. 40.41 available at <a href="https://www.govinfo.gov/content/pkg/CFR-2018-title22-vol1/pdf/CFR-2018-title22-vol1-chapI-subchapE.pdf">https://www.govinfo.gov/content/pkg/CFR-2018-title22-vol1/pdf/CFR-2018-title22-vol1-chapI-subchapE.pdf</a>, page 8.
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IV. Request for Public Comment
The Department invites comment on any issues that may be pertinent
to its review of the IFR to determine (1) if the IFR should be
rescinded or revised, and (2) what final rule should be adopted, if
any. Reopening the comment period gives interested persons an
opportunity to comment on these issues.
Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of
State.
[FR Doc. 2021-25038 Filed 11-16-21; 8:45 am]
BILLING CODE 4710-06-P
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