Proposed Rule2022-03788
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
February 24, 2022
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) proposes to prescribe how it determines whether a noncitizen is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA) because they are likely at any time to become a public charge. Noncitizens 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. Under this proposed rule, a noncitizen would be considered likely at any time to become a public charge if they are likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. In August of 2019, DHS issued a different rule on this topic, which is no longer in effect. This proposed rule, if finalized, would implement a different policy than the August 2019 Final Rule.
Full Text
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<title>Federal Register, Volume 87 Issue 37 (Thursday, February 24, 2022)</title>
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[Federal Register Volume 87, Number 37 (Thursday, February 24, 2022)]
[Proposed Rules]
[Pages 10570-10671]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03788]
[[Page 10569]]
Vol. 87
Thursday,
No. 37
February 24, 2022
Part IV
Department of Homeland Security
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8 CFR Parts 212 and 245
Public Charge Ground of Inadmissibility; Proposed Rule
Federal Register / Vol. 87 , No. 37 / Thursday, February 24, 2022 /
Proposed Rules
[[Page 10570]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 212 and 245
[CIS No. 2715-22; DHS Docket No. USCIS-2021-0013]
RIN 1615-AC74
Public Charge Ground of Inadmissibility
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Homeland Security (DHS) proposes to
prescribe how it determines whether a noncitizen is inadmissible to the
United States under section 212(a)(4) of the Immigration and
Nationality Act (INA) because they are likely at any time to become a
public charge. Noncitizens 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. Under
this proposed rule, a noncitizen would be considered likely at any time
to become a public charge if they are likely at any time to become
primarily dependent on the government for subsistence, as demonstrated
by either the receipt of public cash assistance for income maintenance
or long-term institutionalization at government expense. In August of
2019, DHS issued a different rule on this topic, which is no longer in
effect. This proposed rule, if finalized, would implement a different
policy than the August 2019 Final Rule.
DATES: Written comments and related material must be submitted on or
before April 25, 2022.
ADDRESSES: You may submit comments on this NPRM, 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 the Department of Homeland Security
(DHS) or U.S. Citizenship and Immigration Services (USCIS) officials,
will not be considered comments on the NPRM and may not be considered
by DHS. 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. Executive Summary
A. Major Provisions of the Regulatory Action
B. Summary of Legal Authority
C. Summary of Costs and Benefits
III. Background
A. Legal Authority
B. Grounds of Inadmissibility Generally
C. The Public Charge Ground of Inadmissibility
1. Public Charge Statutes and Case Law, Pre-IIRIRA
2. Public Benefits Under PRWORA
3. Changes Under IIRIRA
4. INS 1999 Notice of Proposed Rulemaking and Interim Field
Guidance
5. DHS Inadmissibility on Public Charge Grounds Notice of
Proposed Rulemaking and 2019 Final Rule
6. Litigation History and Vacatur of DHS 2019 Final Rule
7. Consideration of Chilling Effects
8. Other Burdens of the 2019 Final Rule
9. The COVID-19 Pandemic
D. Public Charge Bonds
IV. DHS 2021 Inadmissibility on Public Charge ANPRM and Listening
Sessions
V. Discussion of Proposed Rule
A. Introduction
B. Applicability
1. Applicants for Admission
2. Adjustment of Status Applicants
3. Rule Does Not Cover Extension of Stay/Change of Status
4. Summary Tables
C. Definitions
1. Likely at Any Time To Become a Public Charge
2. Public Benefits
3. Public Cash Assistance for Income Maintenance
4. Long-Term Institutionalization at Government Expense
5. Receipt (of Public Benefits)
6. Government
7. Additional Definitions
D. Public Charge Inadmissibility Determination
1. Factors
2. Totality of the Circumstances
3. Denial Decision
4. Exclusion From Consideration of Receipt of Certain Public
Benefits
E. Exemptions and Waivers
1. Exemptions
2. Limited Exemption
3. Waivers
F. Public Charge Bonds
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Family Assessment
H. National Environmental Policy Act
I. Paperwork Reduction Act
VII. List of Subjects and Regulatory Amendments
Table of Abbreviations
ADA--Americans with Disabilities Act
ANPRM--Advance Notice of Proposed Rulemaking
ASC--Application Support Center
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CBP--Customs and Border Protection
CDC--Centers for Disease Control and Prevention
CFR--Code of Federal Regulations
CHIP--Children's Health Insurance Program
COS--Change of Status
COVID-19--Coronavirus Disease 2019
DACA--Deferred Action for Childhood Arrivals
DHS--U.S. Department of Homeland Security
DOS--U.S. Department of State
DOJ--Department of Justice
EOS--Extension of Stay
FAM--Department of State Foreign Affairs Manual
FBR--Federal Benefit Rate
FDA--Food and Drug Administration
HCBS--Home and Community Based Services
HCV--Housing Choice Voucher
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act
HUD--U.S. Department of Housing and Urban Development
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
LRIF--Liberian Refugee Immigration Fairness Act
NACARA--Nicaraguan Adjustment and Central American Relief Act
NATO--North Atlantic Treaty Organization
[[Page 10571]]
NEPA--National Environmental Policy Act
NOID--Notice of Intent to Deny
NPRM--Notice of Proposed Rulemaking
OAW--Operation Allies Welcome
OMB--Office of Management and Budget
PHA--Public Housing Agency
PHE--Public Health Emergency
PRA--Paperwork Reduction Act
PRWORA--Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
RFA--Regulatory Flexibility Act of 1980
RFE--Request for Additional Evidence
RIA--Regulatory Impact Analysis
SIPP--Survey of Income and Program Participation
SNAP--Supplemental Nutrition Assistance Program
SSA--Social Security Administration
SSI--Supplemental Security Income
TANF--Temporary Assistance for Needy Families
TPS--Temporary Protected Status
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
VAWA--Violence Against Women Act
WIC--Special Supplemental Nutrition Program for Women, Infants, and
Children
I. Public Participation
DHS invites all interested parties to submit written data, views,
comments, and arguments on all aspects of this NPRM. Comments must be
submitted in English, or an English translation must be provided.
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. Executive Summary
DHS seeks to administer section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), in a manner that will be clear and comprehensible for
officers as well as for noncitizens \1\ and their families and will
lead to fair and consistent adjudications, thereby mitigating the risk
of unequal treatment of similarly situated individuals. DHS proposes to
define the term ``likely at any time to become a public charge'' in
regulation and to identify the types of public benefits that would be
considered as part of the public charge inadmissibility determination.
DHS also proposes to establish general principles regarding
consideration of current and past receipt of public benefits in public
charge inadmissibility determinations.
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\1\ For purposes of this discussion, USCIS uses the term
``noncitizen'' colloquially to be synonymous with the term
``alien.''
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Additionally, DHS proposes the factors that DHS would consider in
prospectively determining, under the totality of the circumstances
framework, whether an applicant for admission or adjustment of status
before DHS is inadmissible under the public charge ground. DHS proposes
to amend existing information collections submitted with applications
for adjustment of status to that of a lawful permanent resident to
include questions relevant to the statutory minimum factors. DHS also
proposes to require that all written denial decisions issued by USCIS
to applicants reflect consideration of each of the statutory minimum
factors, as well as the Affidavit of Support Under Section 213A of the
INA where required, consistent with the standards set forth in the
proposed rule, and specifically articulate the reasons for the
officer's determination.
On August 14, 2019, DHS issued a different rule on the public
charge ground of inadmissibility, which is no longer in effect.\2\ The
2019 Final Rule expanded DHS's definition of ``public charge,'' and was
associated with a heavy direct paperwork burden on applicants and
adjudicators. The 2019 Final Rule was also associated with widespread
indirect effects, primarily with respect to those who were not even
subject to the public charge ground of inadmissibility, such as U.S.
citizen children in mixed-status households. Notwithstanding these
widespread indirect effects, during the time that the 2019 Final Rule
was in place, of the 47,555 applications for adjustment of status to
which the rule was applied, DHS issued only 3 denials (which were
subsequently reopened and approved) and 2 Notices of Intent to Deny
(which were ultimately rescinded, and the applications were approved)
based on the totality of the circumstances public charge
inadmissibility determination under section 212(a)(4)(A)-(B) of the
INA, 8 U.S.C. 1182(a)(4)(A)-(B).
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\2\ 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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This proposed rule, if finalized, would implement a different
policy than the 2019 Final Rule. As discussed at greater length below,
DHS believes that, in contrast to the 2019 Final Rule, this proposed
rule would effectuate a more faithful interpretation of the statutory
concept of ``likely at any time to become a public charge''; avoid
unnecessary burdens on applicants, adjudicators, and benefits-granting
agencies; and mitigate the possibility of widespread ``chilling
effects'' with respect to individuals disenrolling or declining to
enroll themselves or family members in public benefits programs for
which they are eligible, especially by individuals who are not subject
to the public charge ground of inadmissibility.
A. Major Provisions of the Regulatory Action
DHS proposes to include the following major changes:
<bullet> Amending 8 CFR 212.18, Application for waivers of
inadmissibility in connection with an application for adjustment of
status by T nonimmigrant status holders. This section clarifies that T
nonimmigrants seeking adjustment of status are not subject to the
public charge ground of inadmissibility.
<bullet> Adding 8 CFR 212.20, Applicability of public charge
inadmissibility. This section identifies the categories of noncitizens
who are subject to the public charge ground of inadmissibility.
<bullet> Adding 8 CFR 212.21, Definitions. This section establishes
key regulatory definitions: Likely at any time to become a public
charge, public cash assistance for income maintenance, long-term
institutionalization at government expense, receipt (of public
benefits), and government.
<bullet> Adding 8 CFR 212.22, Public charge inadmissibility
determination. This section clarifies that evaluating the likelihood at
any time of becoming a public charge is a prospective determination
based on the totality of the circumstances. This section provides
details on how the statutory minimum factors, as well as an Affidavit
of Support Under Section 213A of the INA, if required, and current or
past receipt of public benefits would be considered when making a
public charge inadmissibility determination. This section also states
that the fact that an applicant has a disability, as defined by section
504 of the Rehabilitation Act (Section 504), will not alone be a
[[Page 10572]]
sufficient basis to determine whether the noncitizen is likely at any
time to become a public charge. This section also includes categories
of noncitizens whose past or current receipt of public benefits will
not be considered in a public charge inadmissibility determination.
<bullet> Adding 8 CFR 212.23, Exemptions and waivers for public
charge ground of inadmissibility. This section provides a list of
statutory and regulatory exemptions from and waivers of the public
charge ground of inadmissibility.
<bullet> Amending 8 CFR 245.23, Adjustment of aliens in T
nonimmigrant classification. This section clarifies that T
nonimmigrants seeking adjustment of status are not subject to the
public charge ground of inadmissibility.
B. Summary of Legal Authority
The Secretary of Homeland Security's (Secretary) authority for the
proposed regulatory amendments is found in section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), which governs public charge inadmissibility
determinations; section 235 of the INA, 8 U.S.C. 1225, which addresses
applicants for admission; and section 245 of the INA, 8 U.S.C. 1255,
which addresses eligibility criteria for applications for adjustment of
status. In addition, section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3),
authorizes the Secretary to establish such regulations as the Secretary
deems necessary for carrying out the Secretary's authority under the
INA.
C. Summary of Costs and Benefits
The proposed rule would result in new costs, benefits, and
transfers. To provide a full understanding of the impacts of the
proposed rule, DHS considers the potential impacts of this proposed
rule relative to two baselines. The No Action Baseline represents a
state of the world under the 1999 Interim Field Guidance, which is the
policy currently in effect. The second baseline is the Pre-Guidance
Baseline, which represents a state of the world before the issuance of
the 1999 Interim Field Guidance (i.e., a state of the world in which
the 1999 Interim Field Guidance did not exist). DHS also considers the
potential effects of a regulatory alternative that is a rulemaking
similar to the 2018 NPRM and the 2019 Final Rule (that is no longer in
effect). As DHS noted in the 2019 Final Rule, those effects would
primarily be experienced by persons who are not subject to the public
charge ground of inadmissibility who might be disenrolled from public
benefits or forgo enrollment in public benefits due to fear and
confusion regarding the scope of the regulatory alternative. Further
discussion of the regulatory alternative can be found in the
``Regulatory Alternative'' section.
Relative to the No Action Baseline, the primary source of
quantified new direct costs for the proposed rule is the increase in
the time required to complete Form I-485. DHS estimates that the
proposed rule would impose additional new direct costs of approximately
$12,871,511 annually to applicants filing Form I-485. In addition, the
proposed rule would result in an annual savings for a subpopulation of
affected individuals; T nonimmigrants applying for adjustment of status
would no longer need to submit Form I-601 to seek a waiver of the
public charge ground of inadmissibility. DHS estimates the total annual
savings for this population would be $15,359. DHS estimates that the
total annual net costs would be $12,856,152.\3\
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\3\ Calculations: Total annual net costs ($12,856,152) = Total
annual costs ($12,871,511) - Total annual savings ($15,359)
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Over the first 10 years of implementation, DHS estimates the total
net costs of the proposed rule would be approximately $128,561,520
(undiscounted). In addition, DHS estimates that the 10-year discounted
total net costs of this proposed rule would be about $109,665,584 at a
3-percent discount rate and about $90,296,232 at a 7-percent discount
rate.
DHS expects the primary benefit of this proposed rule to be the
qualitative benefit of establishing clear standards governing a
determination that a noncitizen is inadmissible based on the public
charge ground.
Tables 1 and 2 provide a more detailed summary of the proposed
provisions and their impacts relative to the No Action Baseline and
Pre-Guidance Baseline, respectively.
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III. Background
A. Legal Authority
The Secretary's authority for issuing this proposed rule 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).\4\
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\4\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.
(Nov. 25, 2002).
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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. Section 101
of the HSA, 6 U.S.C. 111, establishes that part of DHS's primary
mission is to ensure that efforts, activities, and programs aimed at
securing the homeland do not diminish either the overall economic
security of the United States or the civil rights and civil liberties
of persons.
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.
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 they are likely at any time to become a public charge.
In general, under section 213 of the INA, 8 U.S.C. 1183, the
Secretary has the discretion to admit into the United
[[Page 10579]]
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.\5\
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\5\ See INA sec. 213, 8 U.S.C. 1183.
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Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of
applicants for admission, including inadmissibility 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. Grounds of Inadmissibility Generally
The United States has a long history of permitting noncitizens to
enter the United States, whether permanently or on a temporary basis.
At the same time, Congress has sought to exclude noncitizens who pose a
threat to the safety or general welfare of the country or who seek to
violate immigration laws.\6\
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\6\ See Fiallo v. Bell, 430 U.S. 787, 787 (1977) (The Supreme
Court has ``long recognized [that] the power to expel or exclude
aliens [i]s a fundamental sovereign attribute exercised by the
Government's political departments largely immune from judicial
control'').
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Congress has exercised this authority in part by establishing the
concepts of admission \7\ and inadmissibility in the INA.\8\
Noncitizens may be inadmissible due to a range of acts, conditions, and
conduct.\9\ If a noncitizen is inadmissible as described in section
212(a) of the INA, 8 U.S.C. 1182(a), that noncitizen is ineligible to
be admitted to the United States and ineligible to receive a visa.
Congress has extended the applicability of the inadmissibility grounds
beyond the context of applications for admission and visas by making
admissibility an eligibility requirement for certain immigration
benefits.\10\ If a noncitizen is inadmissible, that noncitizen is also
ineligible for those benefits unless the noncitizen is eligible to
apply for and is granted a discretionary waiver of inadmissibility or
other form of relief to overcome the inadmissibility, where available
and appropriate.\11\
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\7\ Admission is defined as ``the lawful entry of the alien into
the United States after inspection and authorization by an
immigration officer.'' See INA sec. 101(a)(13)(A), 8 U.S.C.
1101(a)(13)(A).
\8\ INA sec. 212(a), 8 U.S.C. 1182(a).
\9\ Ibid.
\10\ For example, adjustment of status. See INA sec. 245(a)(2),
8 U.S.C. 1255(a)(2).
\11\ See, e.g., INA sec. 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v), INA sec. 212(h), 8 U.S.C. 1182(h), INA sec.
212(i), 8 U.S.C. 1182(i); INA sec. 212(a)(9)(A)(iii), 8 U.S.C.
1182(a)(9)(A)(iii); see also USCIS Policy Manual, Volume 9--Waivers,
<a href="https://www.uscis.gov/policy-manual/volume-9">https://www.uscis.gov/policy-manual/volume-9</a>.
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C. The Public Charge Ground of Inadmissibility
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 they are likely at any time to become a public charge.
The public charge ground of inadmissibility, therefore, applies to
individuals applying for a visa to come to the United States
temporarily or permanently, for admission, or for adjustment of status
to that of a lawful permanent resident.\12\ By statute, 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.\13\
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\12\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
\13\ See INA sec. 245(j). See 8 CFR 245.11. See INA sec.
245(d)(2)(B). See INA sec. 212(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.\14\ 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, 8 U.S.C. 1183a, submitted on the applicant's behalf,
when determining whether the applicant is likely at any time to become
a public charge.\15\ In fact, with very limited exceptions, most
noncitizens seeking family-based immigrant visas and 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 as likely at any time to become a public charge.\16\
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\14\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\15\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
When required, the applicant must submit an Affidavit of Support
Under Section 213A of the INA (Form I-864 or Form I-864EZ).
\16\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C)
and (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.\17\
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\17\ See INA sec. 213, 8 U.S.C. 1183.
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1. Public Charge Statutes and Case Law, Pre-IIRIRA
Since at least 1882, the United States has denied admission to
noncitizens on public charge grounds.\18\ The INA of 1952 excluded
noncitizens who, in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the government at the time
of application for admission, were likely at any time to become public
charges.\19\ The government has long interpreted the words ``in the
opinion of'' as evincing the subjective nature of the
determination.\20\ The determination is also necessarily subjective to
some degree due to its prospective nature.
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\18\ See Immigration Act of 1882, ch. 376, secs. 1-2, 22 Stat.
214, 214. Section 11 of the Act also provided that a noncitizen who
became a public charge within 1 year of arrival in the United States
from causes that existed prior to their landing was deemed to be in
violation of law and was to be returned at the expense of the person
or persons, vessel, transportation, company, or corporation who
brought the noncitizen into the United States. See also, e.g.,
Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration
Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917,
ch. 29, sec. 3, 39 Stat. 874, 876; INA of 1952, ch. 477, sec.
212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and
Immigrant Responsibility Act, Public Law 104-208, sec. 531(a), 110
Stat. 3009-546, 3009-674-75 (1996); Violence Against Women
Reauthorization Act of 2013, Public Law 113-4, 127 Stat. 54.
\19\ See INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163,
183.
\20\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l Cmm'r
1974) (``[T]he determination of whether an alien falls into that
category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); see also Matter of Martinez-Lopez, 10 I&N Dec.
409, 421 (Att'y Gen. 1962) (``[U]nder the statutory language the
question for visa purposes seems to depend entirely on the consular
officer's subjective opinion.'').
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A series of administrative decisions after the passage of the INA
of 1952 clarified that a totality of the circumstances review was the
proper framework for making public charge determinations and that
receipt of public benefits would not, alone, lead to a finding of
likelihood of becoming a public charge. In Matter of Martinez-Lopez,
the Attorney General opined that the statute ``require[d] more than a
showing of a possibility that the alien will require public support.
Some specific circumstance, such as mental or physical disability,
advanced age, or other fact showing that the burden of supporting the
alien is likely to be cast on the public, must be present. A healthy
person in the prime of life cannot ordinarily be considered likely to
become a public charge, especially where he has friends or relatives in
the
[[Page 10580]]
United States who have indicated their ability and willingness to come
to his assistance in case of emergency.'' \21\ In Matter of Perez, the
Board of Immigration Appeals (BIA) held that
---------------------------------------------------------------------------
\21\ 10 I&N Dec. 409, 421-23 (BIA 1962; Att'y Gen. 1964)
(emphasis added). DHS discusses Matter of Martinez-Lopez, and
consideration of disability, at greater length elsewhere in this
preamble.
[t]he determination of whether an alien is likely to become a public
charge . . . is a prediction based upon the totality of the alien's
circumstances at the time he or she applies for an immigrant visa or
admission to the United States. The fact that an alien has been on
welfare does not, by itself, establish that he or she is likely to
become a public charge.\22\
---------------------------------------------------------------------------
\22\ 15 I&N Dec. 136, 137 (BIA 1974).
As stated in Matter of Harutunian, public charge determinations
should take into consideration factors such as a noncitizen's age,
incapability of earning a livelihood, a lack of sufficient funds for
self-support, and a lack of persons in this country willing and able to
assure that the noncitizen will not need public support.\23\
---------------------------------------------------------------------------
\23\ 14 I&N Dec. 583, 589 (Reg'l Comm'r 1974).
---------------------------------------------------------------------------
The totality of the circumstances framework for public charge
inadmissibility determinations was codified in relation to one specific
class of noncitizens in the 1980s. In 1986, Congress passed the
Immigration Reform and Control Act (IRCA), providing eligibility for
adjustment of status to that of a lawful permanent resident to certain
noncitizens who had resided in the United States continuously prior to
January 1, 1982.\24\ No changes were made to the language of the public
charge exclusion ground under former section 212(a)(15) of the INA, 8
U.S.C. 1182(a)(15), but IRCA contained special public charge rules for
noncitizens seeking legalization under section 245A of the INA, 8
U.S.C. 1255a. Although IRCA provided otherwise eligible noncitizens an
exemption or waiver for some grounds of excludability, the noncitizens
generally remained subject to the public charge ground of
exclusion.\25\ Under IRCA, however, if an applicant demonstrated a
history of self-support through employment and without receiving public
cash assistance, they would not be ineligible for adjustment of status
based on being inadmissible on the public charge ground.\26\ In
addition, IRCA contained a discretionary waiver of public charge
inadmissibility for noncitizens who were ``aged, blind or disabled'' as
defined in section 1614(a)(1) of the Social Security Act who applied
for lawful permanent resident status under IRCA and were determined to
be inadmissible based on the public charge ground.\27\
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\24\ See IRCA of 1986, Public Law 99-603, sec. 201, 100 Stat.
3359, 3394.
\25\ See INA sec. 245A(d)(2)(B)(ii)(IV), 8 U.S.C.
1255a(d)(2)(B)(ii)(IV).
\26\ See INA sec. 245A(d)(2)(B)(iii), 8 U.S.C.
1255a(d)(2)(B)(iii).
\27\ See INA sec. 245A(d)(2)(B)(ii), 8 U.S.C.
1255a(d)(2)(B)(ii); see also 42 U.S.C. 1382c(a)(1). This
discretionary waiver applies only to IRCA legalization and not to
adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a).
---------------------------------------------------------------------------
The former Immigration and Naturalization Service (INS) promulgated
8 CFR 245a.3,\28\ which established that immigration officers would
make public charge inadmissibility determinations by examining the
``totality of the alien's circumstances at the time of his or her
application for legalization.'' \29\ According to the regulation, the
existence or absence of a particular factor could never be the sole
criterion for determining whether a person is likely to become a public
charge.\30\ Further, the regulation provided that the determination is
a ``prospective evaluation based on the alien's age, health, income,
and vocation.'' \31\
---------------------------------------------------------------------------
\28\ See Adjustment of Status for Certain Aliens, 54 FR 29442
(Jul. 12, 1989). This regulation does not apply to adjustment of
status under section 245(a) of the INA, 8 U.S.C. 1255, or to
applications for admission with CBP. It is limited to adjustment
from temporary to permanent resident status under the legalization
provisions of IRCA. DHS does not propose amending 8 CFR 245a.3.
\29\ See 8 CFR 245a.3(g)(4)(i).
\30\ Ibid.
\31\ Ibid.
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A special provision in the rule stated that noncitizens with
incomes below the poverty level are not excludable if they are
consistently employed and show the ability to support themselves.\32\
Finally, a noncitizen's past receipt of public cash assistance would be
a significant factor in a context that also considers the noncitizen's
consistent past employment.\33\ In Matter of A-, INS again pursued a
totality of the circumstances approach in public charge determinations
for applicants for legalization.\34\ ``Even though the test is
prospective,'' INS ``considered evidence of receipt of prior public
assistance as a factor in making public charge determinations.'' \35\
INS also considered a noncitizen's work history, age, capacity to earn
a living, health, family situation, affidavits of support, and other
relevant factors in their totality.\36\
---------------------------------------------------------------------------
\32\ See 8 CFR 245a.3(g)(4)(iii).
\33\ Ibid.
\34\ 19 I&N Dec. 867 (Comm'r 1988).
\35\ Ibid.
\36\ See 19 I&N Dec. 867, 869 (Comm'r 1988).
---------------------------------------------------------------------------
The administrative practices surrounding public charge
inadmissibility determinations began to crystalize into legislative
changes in the 1990s. The Immigration Act of 1990 reorganized section
212(a) of the INA, 8 U.S.C. 1182(a), and redesignated the public charge
provision as section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\37\ In
1996, the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) \38\ added to section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), the mandatory statutory factors and the enforceable
affidavit of support.\39\ Also in 1996, in the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 (PRWORA), which is
commonly known as the 1996 welfare reform law, Congress stated that
noncitizens generally should not depend on public resources and that
the availability of public benefits should not constitute an incentive
for immigration to the United States.\40\
---------------------------------------------------------------------------
\37\ See Immigration Act of 1990, Public Law 101-649, sec.
601(a), 104 Stat. 4978, 5072. In 1990, Congress reorganized INA sec.
212(a), redesignating the public charge provision as INA sec.
212(a)(4).
\38\ Public Law 104-208, div. C, 110 Stat 3009-546.
\39\ Public Law 104-208, div. C, 110 Stat 3009-546.
\40\ See Public Law 104-193, section 400, 110 Stat. 2105, 2260
(codified at 8 U.S.C. 1601).
---------------------------------------------------------------------------
2. Public Benefits Under PRWORA
PRWORA significantly restricted noncitizens' eligibility for many
Federal, State, and local public benefits.\41\ When Congress enacted
PRWORA, it set forth a self-sufficiency policy statement that
noncitizens should be able to financially support themselves with their
own resources or by relying on the aid of family members, sponsors, and
private organizations, without depending on government assistance.\42\
Although not defined in PRWORA, in context, self-sufficiency is tied to
a noncitizen's ability to meet their needs without depending on public
resources.\43\
---------------------------------------------------------------------------
\41\ 8 U.S.C. 1601-1646.
\42\ 8 U.S.C. 1601(2).
\43\ Ibid.
---------------------------------------------------------------------------
PRWORA defines the term ``Federal public benefit'' \44\ and
provides that an ``alien'' who is not a ``qualified alien'' is
ineligible for any such benefits,\45\ subject to certain
exceptions.\46\ Among the exceptions established by Congress allowing
for eligibility for all noncitizens, are provision of medical
assistance for the treatment of an emergency medical condition; short
term, in-kind, non-cash emergency disaster relief; and public health
assistance related to immunizations and treatment of the symptoms of a
[[Page 10581]]
communicable disease.\47\ The exceptions were further clarified by the
Department of Justice (DOJ) and some of the agencies that administer
these public benefits. On January 16, 2001, the DOJ published a notice
of final order, ``Final Specification of Community Programs Necessary
for Protection of Life or Safety Under Welfare Reform Legislation,''
\48\ which indicated that PRWORA does not preclude noncitizens from
receiving certain other widely available programs, services, or
assistance as well as certain benefits and services for the protection
of life and safety.
---------------------------------------------------------------------------
\44\ 8 U.S.C. 1611(c).
\45\ 8 U.S.C. 1611(a).
\46\ 8 U.S.C. 1611(b).
\47\ See 8 U.S.C. 1611(b)(1). See Final Specification of
Community Programs Necessary for Protection of Life or Safety Under
Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001); see also
Interim Guidance on Verification of Citizenship, Qualified Alien
Status and Eligibility Under Title IV of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996, 62 FR 61344 (Nov.
17, 1997).
\48\ See Final Specification of Community Programs Necessary for
Protection of Life or Safety Under Welfare Reform Legislation, 66 FR
3613 (Jan. 16, 2001); see also Specification of Community Programs
Necessary for Protection of Life or Safety Under Welfare Reform
Legislation, 61 FR 45985 (Aug. 30, 1996).
---------------------------------------------------------------------------
PRWORA further identified three types of benefits and related
eligibility rules. First, there are ``specified Federal programs,'' for
which even ``qualified aliens'' are generally not eligible.\49\ Second,
there are ``Federal means-tested public benefits,'' for which
``qualified aliens'' are generally eligible after a 5-year waiting
period.\50\ And finally, there are ``designated federal programs,'' for
which States are allowed to determine whether and when a ``qualified
alien'' is eligible, subject to certain restrictions.\51\
---------------------------------------------------------------------------
\49\ 8 U.S.C. 1612(a).
\50\ 8 U.S.C. 1613(a).
\51\ 8 U.S.C. 1612(b).
---------------------------------------------------------------------------
Subsequent legislation has added additional categories of
noncitizens, many with humanitarian statuses, to PRWORA's various
exceptions and special provisions in order to meet the needs of those
vulnerable populations. DHS also discusses these statuses and
modifications to PRWORA in the section below.
The following is a list of immigration categories that are
``qualified aliens'' under PRWORA. As noted above, subject to certain
exceptions, ``qualified aliens'' are generally eligible for Federal
public benefits after 5 years. As indicated in the section of this
preamble on ``Exemptions and Waivers'' below, most categories of
``qualified aliens'' are not subject to the public charge ground of
inadmissibility.
<bullet> An alien who is lawfully admitted for permanent residence
under the INA.\52\
---------------------------------------------------------------------------
\52\ 8 U.S.C. 1641(b)(1).
---------------------------------------------------------------------------
<bullet> An alien who is granted asylum under section 208 of the
INA.\53\
---------------------------------------------------------------------------
\53\ 8 U.S.C. 1641(b)(2).
---------------------------------------------------------------------------
<bullet> A refugee who is admitted to the United States under
section 207 of the INA.\54\
---------------------------------------------------------------------------
\54\ 8 U.S.C. 1641(b)(3).
---------------------------------------------------------------------------
<bullet> An alien who is paroled into the United States under
section 212(d)(5) of the INA for a period of at least 1 year.\55\
---------------------------------------------------------------------------
\55\ 8 U.S.C. 1641(b)(4). Noncitizens who have been paroled have
not been admitted. See INA sec. 101(a)(13)(B), 8 U.S.C.
1101(a)(13)(B); see also INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5).
---------------------------------------------------------------------------
<bullet> An alien whose deportation is being withheld under section
243(h) \56\ of the INA or section 241(b)(3) of the INA, as amended.\57\
---------------------------------------------------------------------------
\56\ As in effect immediately before the effective date of
section 307 of division C of Public Law 104-208, 110 Stat. 3009-546.
\57\ 8 U.S.C. 1641(b)(5).
---------------------------------------------------------------------------
<bullet> An alien who is granted conditional entry under section
203(a)(7) of the INA as in effect before April 1, 1980.\58\
---------------------------------------------------------------------------
\58\ 8 U.S.C. 1641(b)(6).
---------------------------------------------------------------------------
<bullet> An alien who is a Cuban and Haitian entrant as defined in
section 501(e) of the Refugee Education Assistance Act of 1980.\59\
---------------------------------------------------------------------------
\59\ 8 U.S.C. 1641(b)(7).
---------------------------------------------------------------------------
<bullet> An individual who lawfully resides in the United States in
accordance with the Compacts of Free Association between the Government
of the United States and the Governments of the Federated States of
Micronesia, the Republic of the Marshall Islands, and the Republic of
Palau referred to in 8 U.S.C. 1612(b)(2)(G) (but only with respect to
Medicaid).\60\
---------------------------------------------------------------------------
\60\ 8 U.S.C. 1641(b)(8).
---------------------------------------------------------------------------
<bullet> An alien who has been battered or subjected to extreme
cruelty in the United States by a spouse or a parent or by a member of
the spouse or parent's family residing in the same household as the
alien and the spouse or parent consented to, or acquiesced in, such
battery or cruelty but only if (in the opinion of the agency providing
such benefits) there is a substantial connection between such battery
or cruelty and the need for the benefits to be provided, and the alien
has been approved or has a petition pending that sets forth a prima
facie case for status under section 204(a)(1)(A)(i)-(iv), or
classification pursuant to section 204(a)(1)(B)(i)-(iii) of the INA, or
suspension of deportation under section 244(a)(3) of the INA, or
cancellation of removal pursuant to INA sec. 240A(b)(2).\61\
---------------------------------------------------------------------------
\61\ 8 U.S.C. 1641(c)(1).
---------------------------------------------------------------------------
<bullet> An alien whose child has been battered or subjected to
extreme cruelty in the United States by a spouse or a parent of the
alien (without active participation by the alien in such battery or
cruelty), or by a member of the spouse or parent's family residing in
the same household as the alien and the spouse or parent consented to,
or acquiesced to such battery or cruelty (and the alien did not
actively participate in such battery or cruelty), but only if (in the
opinion of the agency providing such benefits) there is a substantial
connection between such battery or cruelty and the need for the
benefits to be provided, and the alien has been approved or has a
petition pending which sets forth a prima facie case for status under
section 204(a)(1)(A)(i)-(iv), or classification pursuant to section
204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under
section 244(a)(3) of the INA, or cancellation of removal pursuant to
INA section 240A(b)(2).\62\
---------------------------------------------------------------------------
\62\ 8 U.S.C. 1641(c)(2).
---------------------------------------------------------------------------
<bullet> An alien child who resides in the same household as a
parent who has been battered or subjected to extreme cruelty in the
United States by that parent's spouse or by a member of the spouse's
family residing in the same household as the parent, and the spouse
consented to, or acquiesced to such battery or cruelty, but only if (in
the opinion of the agency providing such benefits) there is a
substantial connection between such battery or cruelty and the need for
the benefits to be provided, and the alien has been approved or has a
petition pending which sets forth a prima facie case for status under
section 204(a)(1)(A)(i)-(iv), or classification pursuant to section
204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under
section 244(a)(3) of the INA, or cancellation of removal pursuant to
INA section 240A(b)(2).\63\
---------------------------------------------------------------------------
\63\ 8 U.S.C. 1641(c)(3).
---------------------------------------------------------------------------
<bullet> An alien who has been granted nonimmigrant status under
section 101(a)(15)(T) of the INA or who has a pending application that
sets forth a prima facie case for eligibility for such nonimmigrant
status.\64\
---------------------------------------------------------------------------
\64\ 8 U.S.C. 1641(c)(4).
---------------------------------------------------------------------------
There are additional categories of noncitizens who may be eligible
for certain benefits notwithstanding limitations set under PRWORA. For
instance, the following noncitizens are treated as though they are
refugees for benefits eligibility purposes, under other provisions of
law:
<bullet> An alien who is a victim of a severe form of trafficking
in persons, or an
[[Page 10582]]
alien classified as a nonimmigrant under 8 U.S.C.
1101(a)(15)(T)(ii).\65\
---------------------------------------------------------------------------
\65\ 22 U.S.C. 7105(b)(1)(A).
---------------------------------------------------------------------------
<bullet> An Iraqi or Afghan alien granted special immigrant status
under section 8 U.S.C. 101(a)(27).\66\
---------------------------------------------------------------------------
\66\ Public Law 111-118, Div. A., Tit. VIII., sec. 8120, 123
Stat. 3409, 3457 (2009).
---------------------------------------------------------------------------
<bullet> A citizen or national of Afghanistan (or a person with no
nationality who last habitually resided in Afghanistan) paroled into
the United States after July 31, 2021, who meets certain requirements,
until March 31, 2023, or the term of parole granted, whichever is
later.\67\
---------------------------------------------------------------------------
\67\ Public Law 117-43, sec. 2502(b) (Sept. 30, 2021).
---------------------------------------------------------------------------
In addition, in the Medicaid context, States may also elect to
provide medical assistance under Title XIX of the Social Security Act
to cover all lawfully residing children under age 21 or pregnant
individuals.\68\
---------------------------------------------------------------------------
\68\ See sections 1903(v)(4) of the Social Security Act (42
U.S.C. 1396b(v)(4)).
---------------------------------------------------------------------------
Under PRWORA, States may enact their own legislation to provide
State and local public benefits to certain noncitizens not lawfully
present in the United States.\69\ Some States and localities have
funded public benefits for some noncitizens who may not be eligible for
Federal public benefits.\70\
---------------------------------------------------------------------------
\69\ See 8 U.S.C. 1621(d).
\70\ See, e.g., U.S. Dep't of Health & Human Servs. (HHS),
Office of the Assistant Sec'y for Planning & Evaluation, Overview of
Immigrants Eligible for SNAP, TANF, Medicaid and CHIP (Mar. 27,
2012), available at <a href="http://aspe.hhs.gov/hsp/11/ImmigrantAccess/Eligibility/ib.shtml">http://aspe.hhs.gov/hsp/11/ImmigrantAccess/Eligibility/ib.shtml</a>.
---------------------------------------------------------------------------
While PRWORA allows certain noncitizens to receive certain public
benefits (e.g., Medicaid limited to treatment of an emergency medical
condition (all noncitizens); \71\ Supplemental Nutrition Assistance
Program (SNAP) (``qualified alien'' children under 18)), Congress,
except in very limited circumstances,\72\ did not prohibit DHS from
considering the receipt of such benefits in a public charge
inadmissibility determination under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), or direct DHS to do so.
---------------------------------------------------------------------------
\71\ See 8 U.S.C. 1611(b)(1)(A).
\72\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------
The following table presents a list of the major categories of
noncitizens eligible for SSI, TANF, or Medicaid who would be subject to
a public charge inadmissibility determination were they later to apply
for adjustment of status or admission to the United States, unless
another statutory exemption applies that is particular to their
individual circumstances.\73\ The table is provided for background
purposes only and should not be used to determine benefits eligibility.
---------------------------------------------------------------------------
\73\ A list of statutory exemptions to the public charge ground
of inadmissibility can be found in the Applicability section of this
preamble and in proposed 8 CFR 212.23.
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BILLING CODE 9111-97-P
[[Page 10583]]
[GRAPHIC] [TIFF OMITTED] TP24FE22.011
[[Page 10584]]
[GRAPHIC] [TIFF OMITTED] TP24FE22.012
BILLING CODE 9111-97-C
DHS welcomes comments on the table, including proposed
clarifications or corrections, and may update the table as appropriate
in the preamble to a final rule.
3. Changes Under IIRIRA
Congress, in IIRIRA,\74\ codified in the public charge
inadmissibility statute the following minimum factors that must be
considered when making public charge inadmissibility determinations:
\75\
---------------------------------------------------------------------------
\74\ Public Law 104-208, div. C, 110 Stat 3009-546 (1996).
\75\ See Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-
546, 3009-674 (1996) (amending INA sec. 212(a)(4), 8 U.S.C.
1182(a)(4)).
---------------------------------------------------------------------------
<bullet> Age;
<bullet> Health;
<bullet> Family status;
<bullet> Assets, resources, and financial status; and
<bullet> Education and skills.\76\
---------------------------------------------------------------------------
\76\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
---------------------------------------------------------------------------
Section 531(a) of IIRIRA amended section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), to require an enforceable affidavit of support under
newly added section 213A of the INA, 8 U.S.C. 1183a,\77\ for certain
noncitizens to avoid a finding of inadmissibility under that
section.\78\ The law required submission of an Affidavit of Support
Under Section 213A of the INA for most family-based immigrants and
certain employment-based immigrants and provided that these noncitizens
are inadmissible under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), unless a sufficient affidavit is filed on their behalf.\79\
Congress also permitted, but did not require, consular and immigration
officers to consider the Affidavit of Support Under Section 213A of the
INA as a factor in the public charge inadmissibility determination.\80\
In the House Conference Report on IIRIRA, the committee indicated that
the amendments to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
were designed to ``expand'' the public charge ground of inadmissibility
by requiring DHS to find inadmissible those who lack a sponsor willing
to support them.\81\
---------------------------------------------------------------------------
\77\ Section 551 of IIRIRA created INA sec. 213A, 8 U.S.C.
1183a, and specified the requirements for a sponsor's affidavit,
including making it enforceable. See INA sec. 213A, 8 U.S.C. 1183a;
sec. 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).
\78\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C)
and (D). See INA sec. 213A, 8 U.S.C. 1183a.
\79\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C)
and (D).
\80\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
\81\ See H.R. Rep. No. 104-828, at 240-41 (1996) (Conf. Rep.);
see also H.R. Rep. No. 104-469(I), at 143-45 (1996).
---------------------------------------------------------------------------
DHS may appropriately consider the policy goals articulated in
PRWORA and IIRIRA when administratively implementing the public charge
ground of inadmissibility, and may also consider other important goals
including, but not limited to, clarity, fairness, and administrability.
DHS acknowledges the potential tension between the availability of
public benefits to some noncitizens as set forth in PRWORA and
statutory provisions that deny visa issuance, admission, and adjustment
of status to noncitizens who are likely to become a public charge.
Congress, in enacting PRWORA and IIRIRA very close in time, made
certain public benefits available to a small number of noncitizens who
are also subject to the public charge ground of inadmissibility, even
though receipt of some such benefits could influence a determination of
whether the noncitizen is inadmissible as likely at any time to become
a public charge.
Under the statute crafted by Congress, noncitizens generally would
not be issued visas, admitted to the United States, or permitted to
adjust status if they are likely at any time to become a public charge.
Congress nonetheless recognized that certain noncitizens present in the
United States who are subject to the public charge ground of
inadmissibility might reasonably find themselves in need of public
benefits that, if obtained, could influence a determination of whether
they are inadmissible as likely at any time to become a public charge.
Consequently, in PRWORA, Congress allowed certain noncitizens to be
eligible for some
[[Page 10585]]
public benefits even though they may later seek a visa, admission, or
adjustment of status and thereby be subject to the public charge ground
of inadmissibility. However, Congress, except in very limited
circumstances,\82\ did not prohibit DHS from considering the receipt of
such benefits in a public charge inadmissibility determination under
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). In other words,
although a noncitizen may obtain public benefits for which they are
eligible, the receipt of those benefits may be considered for public
charge inadmissibility determination purposes.
---------------------------------------------------------------------------
\82\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------
4. INS 1999 Notice of Proposed Rulemaking and Interim Field Guidance
On May 26, 1999, INS issued a proposed rule, Inadmissibility and
Deportability on Public Charge Grounds \83\ (1999 NPRM), and on that
same day issued interim Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds (1999 Interim Field
Guidance).\84\
---------------------------------------------------------------------------
\83\ 64 FR 28676 (May 26, 1999).
\84\ 64 FR 28689 (May 26, 1999). Due to a printing error, the
Federal Register version of the 1999 Interim 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, along with the
NPRM.
---------------------------------------------------------------------------
In the 1999 proposed rule, INS proposed to ``alleviate growing
public confusion over the meaning of the currently undefined term
`public charge' in immigration law and its relationship to the receipt
of Federal, State, or local public benefits.'' \85\ INS sought to
reduce negative public health and nutrition consequences generated by
that confusion and to provide noncitizens, their sponsors, health care
and immigrant assistance organizations, and the public with better
guidance as to the types of public benefits that INS considered
relevant to the public charge determination.\86\ INS also sought to
address the public's concerns about immigrants' fears of accepting
public benefits for which they remained eligible, specifically in
regards to medical care, children's immunizations, basic nutrition, and
treatment of medical conditions that may jeopardize public health.\87\
---------------------------------------------------------------------------
\85\ See 64 FR 28676, 28676 (May 26, 1999).
\86\ See 64 FR 28676, 28676-77 (May 26, 1999).
\87\ See 64 FR 28676, 28676 (May 26, 1999).
---------------------------------------------------------------------------
When developing the proposed rule, INS consulted with Federal
benefit-granting agencies such as the U.S. Department of Health and
Human Services (HHS), the Social Security Administration (SSA), and the
Department of Agriculture (USDA). The Deputy Secretary of HHS, whose
Department administers Temporary Assistance for Needy Families (TANF),
Medicaid, the Children's Health Insurance Program (CHIP), and other
benefits, advised that the best evidence of whether an individual is
relying primarily on the government for subsistence is either the
receipt of public cash benefits for income maintenance purposes or
institutionalization for long-term care at government expense.\88\ The
Deputy Commissioner for Disability and Income Security Programs at SSA
agreed that the receipt of Supplemental Security Income (SSI) ``could
show primary dependence on the government for subsistence fitting the
INS definition of public charge.'' \89\ Furthermore, the USDA's Under
Secretary for Food, Nutrition and Consumer Services advised that
``neither the receipt of food stamps nor nutrition assistance provided
under the Special Nutrition Programs administered by USDA should be
considered in making a public charge determination.'' \90\ While these
letters supported the approach taken in the 1999 proposed rule and
Interim Field Guidance, the letters specifically focused on the
reasonableness of a given INS interpretation (i.e., primary dependence
on the government for subsistence). The letters did not foreclose the
agency from adopting a different definition consistent with statutory
authority.
---------------------------------------------------------------------------
\88\ See 64 FR 28676, 28686-87 (May 26, 1999).
\89\ See 64 FR 28676, 28687 (May 26, 1999).
\90\ See 64 FR 28676, 28688 (May 26, 1999).
---------------------------------------------------------------------------
INS defined public charge in the 1999 proposed rule, as well as in
the 1999 Interim Field Guidance, to mean, for purposes of admission and
adjustment of status, ``an alien who is likely to become . . .
primarily dependent \91\ on the government for subsistence, as
demonstrated by either (i) the receipt of public cash assistance for
income maintenance or (ii) institutionalization for long-term care at
government expense.'' \92\ The 1999 proposed rule provided that non-
cash benefits, as well as ``supplemental, special-purpose cash benefits
should not be considered'' for public charge purposes, in light of
INS's decision to define public charge by reference to primary
dependence on public benefits.\93\ Ultimately, however, INS did not
publish a final rule conclusively addressing these issues.
---------------------------------------------------------------------------
\91\ Former INS defined ``primarily dependent'' as ``the
majority'' or ``more than 50 percent.''
\92\ See 64 FR 28676, 28681 (May 26, 1999); 64 FR 28689 (May 26,
1999). The proposed rule also defined public charge to mean, ``for
purposes of removal as a deportable alien means an alien who has
become primarily dependent on the Government for subsistence as
demonstrated by either: (i) The receipt of public cash assistance
for income maintenance purposes, or (ii) Institutionalization for
long-term care at Government expense (other than imprisonment for
conviction of a crime).'' 64 FR 28676, 28684 (May 26, 1999).
\93\ See 64 FR 28676, 28692-93 (May 26, 1999).
---------------------------------------------------------------------------
The 1999 Interim Field Guidance was issued as an attachment to the
1999 proposed rule in order to ``provide additional information to the
public on the Service's implementation of the public charge provisions
of the immigration laws . . . in light of the recent changes in law.''
\94\ The 1999 Interim Field Guidance explained 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), 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).\95\ The 1999
Interim Field Guidance also was intended to stem the fears that were
causing noncitizens to refuse certain supplemental public benefits,
such as transportation vouchers and childcare assistance, that were
intended to help recipients become better able to obtain and retain
employment and establish self-sufficiency.\96\
---------------------------------------------------------------------------
\94\ See 64 FR 28689, 28689 (May 26, 1999).
\95\ See 64 FR 28689, 28692-93 (May 26, 1999).
\96\ See 64 FR 28689 (May 26, 1999).
---------------------------------------------------------------------------
The Department of State (DOS) also issued a cable to its consular
officers at that time implementing similar guidance for visa
adjudications, and its Foreign Affairs Manual (FAM) was similarly
updated.\97\ Until both agencies published new regulations and policy
guidance, including changes to the FAM, in 2018 and 2019, USCIS had
continued to follow the 1999 Interim Field Guidance in its
adjudications, and DOS had continued following the public charge
guidance set forth in the FAM in 1999.\98\
---------------------------------------------------------------------------
\97\ See 64 FR 28676, 28680 (May 26, 1999).
\98\ See 9 FAM 302.8, <a href="https://fam.state.gov/fam/09fam/09fam030208.html">https://fam.state.gov/fam/09fam/09fam030208.html</a> (accessed Dec. 12, 2021).
---------------------------------------------------------------------------
5. DHS Inadmissibility on Public Charge Grounds Notice of Proposed
Rulemaking and 2019 Final Rule
In August 2019, DHS issued a final rule, Inadmissibility on Public
Charge Grounds (2019 Final Rule). The 2019 Final Rule (that is no
longer in effect), changed DHS's public charge standards and
procedures.\99\ 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
[[Page 10586]]
months in the aggregate within any 36-month period (such that, for
instance, receipt of two benefits in one month counts as two months).''
\100\ 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.\101\ DHS
tailored the 2019 Final Rule to limit the rule's effects in certain
ways, such as with respect to the consideration of public benefits
received by active duty military members and their spouses and
children, and consideration of public benefits received by children in
certain contexts.\102\
---------------------------------------------------------------------------
\99\ See 84 FR 41292 (Aug. 14, 2019), as amended by
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357
(Oct. 2, 2019).
\100\ See 84 FR 41292 (Aug. 14, 2019).
\101\ Ibid.
\102\ See 84 FR 41292 (Aug. 14, 2019). For example, under that
rule, public benefits did not include public benefits received by
those who, at the time of receipt, filing the application for
admission or adjustment of status, or adjudication, is enlisted in
the U.S. Armed Forces, serving in active duty or in the Ready
Reserve component of the U.S. Armed Forces, or the spouse of
children of such service members. Also 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.
---------------------------------------------------------------------------
The 2019 Final Rule also provided an evidentiary framework under
which USCIS would determine public charge inadmissibility and explained
how DHS would interpret the statutory minimum factors for determining
whether ``in the opinion of'' \103\ 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, which collected information from
applicants relevant to the 2019 Final Rule's approach to the statutory
factors and other factors identified in the rule that would be
considered in the totality of the circumstances.\104\
---------------------------------------------------------------------------
\103\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
\104\ The Declaration of Self-Sufficiency requirement only
applied to adjustment applicants and not applicants for admission at
a port of entry.
---------------------------------------------------------------------------
The 2019 Final Rule also contained a list of negative and positive
factors that DHS would consider as part of this inadmissibility
determination, and directed officers to consider these factors ``in the
totality of the circumstances.'' \105\ These positive or negative
factors, as well as the ``heavily weighted'' positive and negative
factors, operated as guidelines to help the officer determine whether
the noncitizen was likely at any time to become a public charge.\106\
In the 2019 Final Rule, DHS indicated that apart from a lack of an
Affidavit of Support Under Section 213A of the INA, where required, the
presence of a single positive or negative factor, or heavily weighted
negative or positive factor, would never, on its own, create a
presumption that an applicant was inadmissible as likely at any time to
become a public charge or determine the outcome of the public charge
inadmissibility determination.\107\ Rather, a public charge
inadmissibility determination would be based on the totality of the
circumstances presented in an applicant's case.\108\
---------------------------------------------------------------------------
\105\ See 84 FR 41292 (Aug. 14, 2019).
\106\ Ibid.
\107\ Ibid.
\108\ See 84 FR 41292 (Aug. 14, 2019).
---------------------------------------------------------------------------
Additionally, the 2019 Final Rule added provisions that rendered
certain nonimmigrants ineligible for extension of stay or change of
status if they received one or more public benefits, as defined in the
rule, for more than 12 months in the aggregate within any 36-month
period since obtaining the nonimmigrant status they wished to extend or
change.\109\
---------------------------------------------------------------------------
\109\ Ibid.
---------------------------------------------------------------------------
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.\110\
---------------------------------------------------------------------------
\110\ Ibid.
---------------------------------------------------------------------------
The 2019 Final Rule did not interpret or change DHS's
implementation of the public charge ground of deportability.\111\
---------------------------------------------------------------------------
\111\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 84 FR
41292, 41295 (Aug. 14, 2019).
---------------------------------------------------------------------------
6. Litigation History and Vacatur of DHS 2019 Final Rule
The 2019 Final Rule was set to take effect on October 15, 2019,
but, before it did, numerous Plaintiffs filed suits challenging the
2019 Final Rule in five district courts, across four circuits.\112\ All
five district courts preliminarily enjoined the 2019 Final Rule.
Although differing in some particulars, all five concluded that the
2019 Final Rule's definition was contrary to the INA because the term
``public charge'' had a long-settled definition with which the 2019
Final Rule conflicted. Some courts also concluded that the 2019 Final
Rule was likely arbitrary and capricious, and that the 2019 Final Rule
likely violated the Rehabilitation Act.\113\
---------------------------------------------------------------------------
\112\ CASA de Maryland, Inc., et al., v. Trump, 19-cv-2715 (D.
Md.); City and County of San Francisco, et al., v. DHS, et al., 19-
cv-04717 (N.D. Ca.); City of Gaithersburg, et al. v. Trump, et al.,
19-cv-02851 (D. Md.); Cook County et al. v. McAleenan et al., 19-cv-
06334 (N.D. Ill.); La Clinica De La Raza, et al., v. Trump, et
al.,19-cv-4980 (N.D. Ca.); Make the Road New York, et al. v.
Cuccinelli, et al., 19-cv-07993 (S.D.N.Y.); New York, et al. v. DHS,
et al., 19-cv-07777 (S.D.N.Y.); State of California, et al., v. DHS,
et al., 19-cv-04975 (N.D. Cal.); State of Washington, et al. v. DHS,
et al., 19-cv-05210 (E.D. Wa.).
\113\ Cook County. v. Wolf, 962 F.3d 208, 228 (7th Cir. 2020).
---------------------------------------------------------------------------
The cases took differing paths through the courts of appeals. The
Ninth and Fourth Circuits granted the government's requests for stays
pending appeal.\114\ The Second and Seventh Circuits declined to grant
stays; however, the Supreme Court subsequently granted stays in those
cases, pending final resolution by the Court of the government's
appeals.\115\ The 2019 Final Rule was ultimately implemented on
February 24, 2020.
---------------------------------------------------------------------------
\114\ See, City and County of San Francisco, et al. v. DHS, 944
F.3d 773 (9th Cir. Dec. 5, 2019), City and County of San Francisco,
et al. v. DHS, No. 19-17213 (9th Cir. Jan. 20, 2021); CASA de
Maryland, Inc. et al. v. Trump, No. 19-2222 (4th Cir. Dec 9, 2019).
\115\ See DHS v. New York, 140 S. Ct. 599 (2020); Wolf v. Cook
County, 140 S. Ct. 681 (2020).
---------------------------------------------------------------------------
On June 10, 2020, the Seventh Circuit affirmed the lower court's
preliminary injunction.\116\
---------------------------------------------------------------------------
\116\ See Cook County v. Wolf, 962 F.3d 208 (7th Cir. 2020)
(then-Judge Barrett dissenting).
---------------------------------------------------------------------------
On July 29, 2020, the United States District Court for the Southern
District of New York entered a second preliminary injunction
prohibiting enforcement of the 2019 Final Rule nationwide during the
pendency of the COVID-19 public-health emergency.\117\ On August 12,
2020, the Second Circuit issued an order staying the second preliminary
injunction outside of the States within the Second Circuit. Then, on
September 11, 2020, the Second Circuit stayed the second preliminary
injunction in its entirety.\118\
---------------------------------------------------------------------------
\117\ See New York v. DHS, 475 F. Supp. 3d 208 (S.D.N.Y. 2020).
\118\ See New York v. DHS, 974 F.3d 210 (2d Cir. 2020).
---------------------------------------------------------------------------
Meanwhile, on August 4, 2020, the Second Circuit issued a decision
affirming the original Fall 2019 injunctions on appeal before that
court.\119\
---------------------------------------------------------------------------
\119\ See New York v. Department of Homeland Security, 969 F.3d
42 (2d Cir. 2020).
---------------------------------------------------------------------------
One day later, on August 5, 2020, the Fourth Circuit reversed the
Maryland district court's injunction.\120\ Plaintiffs filed a timely
motion for en banc rehearing, and on December 3, 2020, the Fourth
Circuit granted that motion. By ordering en banc rehearing, the Fourth
Circuit vacated the prior panel decision.
---------------------------------------------------------------------------
\120\ See CASA de Maryland v. Trump, 971 F.3d 220 (4th Cir.
2020).
---------------------------------------------------------------------------
On October 7, 2020, the government filed petitions for writ of
certiorari in
[[Page 10587]]
the Second and Seventh Circuit cases.\121\ The government urged the
Court to grant certiorari in the Second Circuit case, and to hold the
Seventh Circuit case pending its resolution of the Second Circuit case.
---------------------------------------------------------------------------
\121\ See Department of Homeland Security v. New York, No. 20-
449 (S. Ct.); Wolf v. Cook County, No. 20-450 (S. Ct.).
---------------------------------------------------------------------------
On November 2, 2020, the United States District Court for the
Northern District of Illinois entered a partial final judgment in favor
of Plaintiffs in the Cook County case and vacated the 2019 Final Rule
nationwide.\122\ The Seventh Circuit stayed the judgment pending the
Supreme Court's resolution of the government's certiorari petition in
the preliminary injunction appeal.
---------------------------------------------------------------------------
\122\ See Cook County v. Wolf, 2020 WL 6393005 (N.D. Ill. Nov.
2, 2020).
---------------------------------------------------------------------------
On December 2, 2020, the Ninth Circuit affirmed preliminary
injunctions entered by the U.S. district courts in California and
Washington.\123\
---------------------------------------------------------------------------
\123\ See City & County of San Francisco v. USCIS, 981 F.3d 742
(9th Cir. 2020).
---------------------------------------------------------------------------
On January 19, 2021, the government submitted a petition for writ
of certiorari in the Ninth Circuit case, which asked the Court to hold
the petition until it decided the New York case.\124\
---------------------------------------------------------------------------
\124\ See USCIS v. City & County of San Francisco, No. 20-962
(S. Ct.). The petition was submitted on January 19, 2021, and
docketed on January 21, 2021.
---------------------------------------------------------------------------
On February 2, 2021, President Biden directed the Secretary, along
with the Attorney General, the Secretary of State, and other relevant
agency heads, to ``review all agency actions related to implementation
of the public charge ground of inadmissibility . . . and the related
ground of deportability.'' \125\ The President ordered the agencies to
complete that review within 60 days.\126\
---------------------------------------------------------------------------
\125\ See Exec. Order No. 14012, sec. 4, 86 FR 8277, 8278.
\126\ Ibid.
---------------------------------------------------------------------------
On February 22, 2021, the Supreme Court granted the government's
petition for writ of certiorari in DHS v. New York, No. 20-449, in
order to review the preliminary injunctions issued in October 2019 by
the United States District Court for the Southern District of New York.
Approximately 2 weeks later, DHS announced its determination that
continuing to defend the 2019 Final Rule before the Supreme Court and
in the lower courts would not be in the public interest or an efficient
use of government resources. Consistent with that determination, the
government filed stipulations with the Supreme Court dismissing DHS v.
New York, No. 20-449; Mayorkas v. Cook County, No. 20-450; and USCIS v.
City & County of San Francisco, No. 20-962.
The government likewise filed motions to dismiss public charge
related appeals in the lower courts. The Seventh Circuit granted the
government's motion and dismissed the appeal. As a consequence, the
vacatur ordered by the United States District Court for the Northern
District of Illinois became effective. The government subsequently
published a notice in the Federal Register formally removing the 2019
Final Rule from the Code of Federal Regulations.\127\
---------------------------------------------------------------------------
\127\ See Inadmissibility on Public Charge Grounds;
Implementation of Vacatur, 86 FR 14221, 14221 (Mar. 15, 2021).
---------------------------------------------------------------------------
On March 11, 2021, the United States Court of Appeals for the
Fourth Circuit granted DHS's unopposed motion to dismiss the appeal and
issued a mandate making the order dismissing the appeal effective. On
the same day, a group of States filed motions in the Fourth and Seventh
Circuits to intervene and recall the respective mandates. On March 15,
2021, the Seventh Circuit motion was denied. On March 18, 2021, the
Fourth Circuit motion was denied.
On March 19, 2021, the same collection of States filed with the
Supreme Court an application to intervene and to stay the vacatur
judgment of the United States District Court for the Northern District
of Illinois.\128\ That application was denied on April 26, 2021.
---------------------------------------------------------------------------
\128\ See Texas, et al. v. Cook County, Illinois, et al.,
20A150.
---------------------------------------------------------------------------
On March 10, 2021, a different collection of States filed a motion
to intervene in the Ninth Circuit case.\129\ On April 8, 2021, that
motion was denied.
---------------------------------------------------------------------------
\129\ See City and County of San Francisco, et al., v. USCIS, et
al., 19-17213.
---------------------------------------------------------------------------
On April 30, 2021, the same collection of States filed a motion for
leave to intervene in the Supreme Court in order to pursue further
review of the Ninth Circuit's judgment.\130\ On June 1, 2021, the Court
ordered that the matter be held in abeyance to permit the prospective
intervenors an opportunity to file a petition for writ of certiorari
from the denial of their motion to intervene in the United States Court
of Appeals for the Ninth Circuit.
---------------------------------------------------------------------------
\130\ See Arizona, et al. v. City and County of San Francisco,
et al., 20M81.
---------------------------------------------------------------------------
On June 18, 2021, the same collection of States filed a petition
for writ of certiorari with the Supreme Court, in which the States
presented three questions.\131\
---------------------------------------------------------------------------
\131\ See Arizona, et al. v. City and County of San Francisco,
et al., 20-1775. The questions presented were: (1) Whether States
with interests should be permitted to intervene to defend a rule
when the United States ceases to defend; (2) whether the rule is
contrary to law or arbitrary and capricious; and (3) alternatively,
whether the decision below as to the rule should be vacated as moot
under Munsingwear.
---------------------------------------------------------------------------
On October 29, 2021, the Supreme Court granted the petition limited
to the question of whether the States should be permitted to intervene.
7. Consideration of Chilling Effects
In this proposed rule, DHS gives more thorough consideration to the
potential chilling effects of promulgating regulations governing the
public charge inadmissibility determination. In considering such
effects, DHS took into account the former INS's approach to chilling
effects in the 1999 Interim Field Guidance and 1999 NPRM, the 2019
Final Rule's discussion of chilling effects, judicial opinions on the
role of chilling effects, evidence of chilling effects following the
2019 Final Rule, and public comments on chilling effects following the
August 2021 Advance Notice of Proposed Rulemaking (ANPRM).
a. Discussion of Chilling Effects in the 1999 NPRM and 1999 Interim
Field Guidance
The 1999 NPRM and accompanying 1999 Interim Field Guidance
specifically cited public confusion regarding the meaning of the
statutorily undefined term ``public charge,'' and the potential
negative public health consequences, as creating a need for urgent
action to provide ``better guidance as to the types of public benefits
that will and will not be considered in public charge determinations.''
\132\ The 1999 NPRM explained that, following the enactment of PRWORA
and its restrictions on the eligibility of certain noncitizens for many
Federal, State, and local public benefits,
---------------------------------------------------------------------------
\132\ See 64 FR 28676 (May 26, 1999); 64 FR 28689 (May 26,
1999).
numerous legal immigrants and other aliens are choosing not to apply
for . . . benefits [for which Congress expressly made them eligible]
because they fear the negative immigration consequences of
potentially being deemed a `public charge.' This tension between the
immigration and welfare laws is exacerbated by the fact that `public
charge' has never been defined in statute or regulation. Without a
clear definition of the term, noncitizens have no way of knowing
which benefits they may safely access without risking deportation or
inadmissibility.\133\
---------------------------------------------------------------------------
\133\ 64 FR 28676 (May 26,1999).
The INS went on to note that, according to Federal and State
---------------------------------------------------------------------------
benefit-granting agencies,
this growing confusion is creating significant, negative public
health consequences across
[[Page 10588]]
the country. This situation is becoming particularly acute with
respect to the provision of emergency and other medical assistance,
children's immunizations, and basic nutrition programs, as well as
the treatment of communicable diseases. Immigrants' fears of
obtaining these necessary medical and other benefits are not only
causing them considerable harm, but are also jeopardizing the
general public. For example, infectious diseases may spread as the
numbers of immigrants who decline immunization services
increase.\134\
---------------------------------------------------------------------------
\134\ 64 FR 28676, 28677 (May 26, 1999).
For these reasons, and following on-the-record consultation with
HHS, USDA, and SSA, as well as consideration of the historical
understandings of the term ``public charge,'' the INS proposed (and in
the 1999 Interim Field Guidance, implemented) a clear definition of
``public charge'' that excluded from consideration non-cash benefits
(other than institutionalization for long-term care at government
expense).\135\
---------------------------------------------------------------------------
\135\ See 64 FR 28677, 28678-28686 (May 26, 1999).
---------------------------------------------------------------------------
b. Discussion of Chilling Effects in the 2019 Final Rule
In the 2019 Final Rule, DHS adopted a markedly different approach
to chilling effects as compared to the former INS's approach in the
1999 NPRM and 1999 Interim Field Guidance. In the 2019 Final Rule, DHS
acknowledged that the rule could result in a chilling effect with
respect to the use of public benefits by noncitizens, even among
individuals who were not subject to the rule, and with respect to
public benefits that are not covered by the rule.\136\ DHS received a
significant number of detailed public comments regarding the chilling
effects of that rule.\137\ Commenters pointed to past studies regarding
the effects of PRWORA \138\ on public benefits eligibility for
noncitizens.\139\ Some commenters discussed chilling effects that
resulted from confusion and fear regarding the 2018 NPRM that preceded
that 2019 Final Rule.\140\ Some commenters reported direct knowledge of
such effects.\141\ In response to the comments, although DHS did not
dispute the studies cited by commenters, DHS made three arguments
regarding its approach in the 2019 Final Rule.
---------------------------------------------------------------------------
\136\ See, e.g., 84 FR 41292, 41310 et seq. (Aug. 14, 2019).
\137\ See, e.g., 84 FR 41292, 41310 (Aug. 14, 2019)
(``Commenters said that the rule's disenrollment effect would have
lasting impacts on the health and safety of our communities and that
immigrant families are experiencing significant levels of fear and
uncertainty that has a direct impact on the health and well-being of
children. Citing studies and research, many commenters asserted that
the chilling effect will increase hunger, food insecurity,
homelessness and poverty. They added that the chilling effect will
also decrease educational attainment and undermine workers' ability
to acquire new skills for in-demand occupations. Many commenters
stated that negative public health, social, and economic outcomes
(e.g., hunger, food insecurity, decreased nutrition, unmet physical
and mental health needs, unimmunized individuals, disease, decreased
school attendance and performance, lack of education, poverty,
homelessness) collectively damage the prosperity and health of our
communities, schools, and country. Several commenters said that the
rule would drive up uncompensated care costs, increase use of
medical emergency departments, increase healthcare costs, endanger
maternal and infant health, and heighten the risk of infectious
disease epidemics. One commenter indicated that the rule would make
child poverty worse and harm communities as well as infrastructure
that serves all of us.'').
\138\ See Public Law 104-193, title IV, 110 Stat. 2260 (1996).
\139\ One commenter wrote that ``[a] U.S. Department of
Agriculture analysis found that welfare reform's restrictions on
legal immigrants' ability to receive food stamps appears to have
deterred participation by their children, many of whom retained
their eligibility.'' Another wrote that ``[r]esearch shows that
following PRWORA, enrollment declined both in programs whose
eligibility PRWORA did not change and among individuals and families
that remained eligible (that is, who were unaffected by the
eligibility changes but were fearful of receiving benefits).''
(emphasis in original.)
\140\ A commenter reported that ``just months after the first
leaks of the executive order, a Los Angeles-based health care
provider serving a largely Latino community reported a 20 percent
drop in SNAP enrollment and a 54 percent drop in Medicaid enrollment
among children, as well as an overall 40 percent decline in program
re-enrollments.'' Another reported that ``community providers have
already reported changes in healthcare use, including decreased
participation in Medicaid and WIC in the wake of the release of the
draft proposal.''
\141\ A commenter stated that ``[a]s the Intake Coordinator, I
have spoken with several families whose children are in dire need of
mental health services (experiencing depression, anxiety, grief,
trauma, disruptive behaviors), but the caregivers are afraid to
utilize their child's Medi-Cal insurance. As a result, these
children are not receiving the services they need.''). Another
stated that ``[l]ast year when there were early press accounts about
a change in the public charge test, the health center's WIC program
experienced a sudden drop off in attendance based on rumors in the
immigrant community that it was no longer safe to participate in
WIC.''
---------------------------------------------------------------------------
First, DHS emphasized that the government's interest, as stated in
8 U.S.C. 1601, in reducing noncitizens' incentive to immigrate to or
adjust status in the United States due to the availability of public
benefits, and in promoting the self-sufficiency of noncitizens within
the United States, was ``a sufficient basis to move forward.'' \142\
DHS also cited its ``authority to take past, current, and likely future
receipt of public benefits into account, even where it may ultimately
result in discouraging aliens from receiving public benefits.'' \143\
Accordingly, DHS stated that it expected noncitizens seeking lawful
permanent resident status or nonimmigrant status in the United States
to ``make purposeful and well-informed decisions commensurate with the
immigration status they are seeking.'' \144\ Although DHS acknowledged
that individuals subject to the 2019 Final Rule may decline to enroll
in, or choose to disenroll from, public benefits for which they are
eligible under PRWORA to avoid the 2019 Final Rule's negative
consequences, DHS stated that it would not ``limit the effect of the
rulemaking to avoid the possibility that individuals subject to this
rule may disenroll or choose not to enroll, as self-sufficiency is the
rule's ultimate aim.'' \145\
---------------------------------------------------------------------------
\142\ See 84 FR 41292, 41312 (Aug. 14, 2019).
\143\ Ibid.
\144\ 84 FR 41292, 41312 (Aug. 14, 2019).
\145\ Ibid.
---------------------------------------------------------------------------
Second, DHS stated that it was ``difficult to predict the rule's
disenrollment impacts with respect to the regulated population,
although DHS has attempted to do so in the . . . Final Regulatory
Impact Analysis'' that accompanied the 2019 Final Rule.\146\ DHS stated
that ``data limitations [have impeded DHS from developing] a precise
count [or a] reasonable estimate of the number of aliens who are both
subject to the public charge ground of inadmissibility and are eligible
for public benefits in the United States.'' \147\ But DHS also
acknowledged that there is little overlap between the population
regulated by the 2019 Final Rule and the public benefits considered in
public charge inadmissibility determinations under the 2019 Final Rule:
---------------------------------------------------------------------------
\146\ 84 FR 41292, 41312 (Aug. 14, 2019). The Final Regulatory
Impact Analysis (RIA) did not contain any estimates that took into
account the regulated population's actual eligibility for the
covered benefits.
\147\ DHS also wrote that the difficulty in producing an
estimate ``is compounded by the fact that most applicants subject to
the public charge ground of inadmissibility and therefore this rule
are generally unlikely to suffer negative consequences resulting
from past receipt of public benefits because they will have been
residing outside of the United States and therefore, ineligible to
have ever received public benefits.'' 84 FR at 41292, 41313 (Aug.
14, 2019).
---------------------------------------------------------------------------
<bullet> ``Aliens who are unlawfully present and nonimmigrants
physically present in the United States . . . are generally barred from
receiving federal public benefits other than emergency assistance'';
\148\
---------------------------------------------------------------------------
\148\ 84 FR 41292, 41313 (Aug. 14, 2019).
---------------------------------------------------------------------------
<bullet> ``[A]pplicants for admission and adjustment of status . .
. are generally ineligible for SNAP benefits and therefore, would not
need to disenroll from SNAP to avoid negative consequences''; \149\ and
---------------------------------------------------------------------------
\149\ 84 FR 41292, 41313 (Aug. 14, 2019).
---------------------------------------------------------------------------
[[Page 10589]]
<bullet> ``[C]ertain lawfully present children and pregnant women
in certain states and the District of Columbia [are eligible for
Medicaid, but] this final rule exempts receipt of Medicaid by such
persons.'' \150\
---------------------------------------------------------------------------
\150\ 84 FR 41292, 41313 (Aug. 14, 2019).
---------------------------------------------------------------------------
Third, DHS wrote that it was ``difficult to predict the rule's
disenrollment impacts with respect to people who are not regulated by
this rule, such as people who erroneously believe themselves to be
affected.'' \151\ DHS wrote that
---------------------------------------------------------------------------
\151\ 84 FR 41292, 41313 (Aug. 14, 2019).
because DHS will not consider the receipt of public benefits by U.S.
citizens and aliens not subject to public charge inadmissibility . .
. it would be unwarranted for U.S. citizens and aliens exempt from
public charge inadmissibility to disenroll from a public benefit
program or forgo enrollment in response to this rule when such
individuals are not subject to this rule. DHS will not alter this
rule to account for such unwarranted choices.\152\
---------------------------------------------------------------------------
\152\ 84 FR 41292, 41313 (Aug. 14, 2019).
Instead, DHS committed itself to ``issue clear guidance that
identifies the groups of individuals who are not subject to this
rule,'' \153\ and noted that DHS had excluded multiple public benefits
from consideration.
---------------------------------------------------------------------------
\153\ 84 FR 41292, 41313 (Aug. 14, 2019).
---------------------------------------------------------------------------
c. Judicial Opinions Regarding Chilling Effects
Several courts have considered the appropriate role of chilling
effects in public charge inadmissibility determinations. All the cases
challenging the 2019 Final Rule involved allegations that DHS failed to
adequately consider the potential chilling effects of the 2019 Final
Rule. In a June 2020 opinion, the Seventh Circuit reasoned that the
rule's chilling effects were foreseeable and, in some respects,
represented a rational response by immigrants to the 2019 Final Rule,
insofar as the 2019 Final Rule did not create a predictable framework
for weighing past receipt of designated public benefits, and did not
foreclose DHS from designating additional public benefits for
consideration in the future.\154\ The court held that DHS failed to
adequately grapple with ``the collateral consequences of . . .
disenrollments'' resulting from the rule, including ``reduce[d] access
to vaccines and other medical care, resulting in an increased risk of
an outbreak of infectious disease among the general public.'' \155\ The
court also held that DHS failed to adequately consider ``the added
burden on states and local governments, which must disentangle their
purely state-funded programs from covered federal programs,'' and noted
that notwithstanding the rule's potential effects on State and local
governments, DHS had also concluded that the rule would not have
``substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' \156\
---------------------------------------------------------------------------
\154\ See Cook County Ill. v. Wolf, 962 F.3d 208, 230-31 (7th
Cir. 2020).
\155\ See Cook County Ill., 962 F.3d at 230-31.
\156\ See Cook County Ill., 962 F.3d at 230-31.
---------------------------------------------------------------------------
In a December 2019 opinion that stayed multiple preliminary
injunctions against the 2019 Final Rule, a panel of the Ninth Circuit
Court of Appeals reasoned that DHS's ``only mandate is to regulate
immigration and naturalization, not to secure transfer payments to
state governments or ensure the stability of the health care industry.
Any effects on those entities are indirect and well beyond DHS's charge
and expertise.'' \157\ But a later decision by the Ninth Circuit took
an opposing view. The later panel emphasized the substantial evidence
in the record regarding chilling effects and characterized the 2019
Final Rule's response to comments regarding chilling effects as ``a
generality coupled with an expression of uncertainty.'' \158\ The court
found that, although ``[t]he record before DHS was replete with
detailed information about, and projections of, disenrollment and
associated financial costs to state and local governments . . . . DHS
made no attempt to quantify the financial costs of the Rule or critique
the projections offered.'' \159\ The court concluded that DHS likely
failed to satisfy its duty to ``examine the relevant data.'' \160\
Similarly, with respect to the financial impacts of the 2019 Final
Rule's public health consequences, the court found that ``DHS itself
repeatedly acknowledged that hospitals might face financial harms as a
result of the Rule, but DHS repeatedly declined to quantify, assess, or
otherwise deal with the problem in any meaningful way.'' The court also
observed that
---------------------------------------------------------------------------
\157\ See City & Co. of San Francisco v. USCIS et al., 944 F.3d
773, 804 (9th Cir. 2019).
\158\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d
742, 759 (9th Cir. 2020).
\159\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d
742, 759 (9th Cir. 2020).
\160\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d
742, 759 (9th Cir. 2020).
DHS insisted that vaccines would ``still be available'' to Medicaid-
disenrolled individuals because ``local health centers and state
health departments'' would pick up the slack . . . despite
objections voiced by such local health centers and state health
departments themselves showing that the Rule will put the
populations they serve--citizens and non-citizens alike--in
danger.\161\
---------------------------------------------------------------------------
\161\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d
742, 759 (9th Cir. 2020).
Finally, in the Second Circuit, a panel that upheld a preliminary
injunction against the rule cited the plaintiffs' allegations of
chilling effects as being sufficient to establish standing.\162\
However, the panel did not cite such chilling effects in its evaluation
of the merits of the policy.\163\
---------------------------------------------------------------------------
\162\ See New York v. DHS, 969 F.3d 42, 59-61 (2020).
\163\ A few days prior to the panel's decision, a court in the
Southern District of New York had issued a second preliminary
injunction against the 2019 Final Rule, based primarily on a range
of alleged harms associated with the rule's chilling effects during
the COVID-19 pandemic. See New York v. DHS, 475 F. Supp. 3d 208,
226-30 (S.D.N.Y 2020). The Second Circuit later stayed that second
preliminary injunction, ``based primarily on the district court's
apparent lack of jurisdiction to issue the preliminary injunction
during the appeal of its prior, virtually identical injunction
(coupled with DHS's showing of irreparable harm resulting from its
inability to enforce its regulation).'' See New York v. DHS, 974
F.3d 210 (2d Cir. 2020).
---------------------------------------------------------------------------
d. Evidence of Chilling Effects Related to the 2019 Final Rule
DHS is aware of evidence that the 2019 Final Rule, and the
rulemaking process that preceded it, resulted in significant
disenrollment effects among noncitizens and U.S. citizens in immigrant
families. For instance, in February 2021, the Urban Institute published
a report describing the following survey findings:
<bullet> ``In 2020, almost one in seven adults in immigrant
families (13.6 percent) reported that they or a family member avoided a
noncash government benefit program, such as Medicaid, the Children's
Health Insurance Program, the Supplemental Nutrition Assistance
Program, or housing assistance, because of concerns about future green
card applications. This `chilling effect' was most significant in
families more likely to be directly affected by the rule, those in
which one or more members do not have a green card (27.7 percent).''
\164\
---------------------------------------------------------------------------
\164\ See Bernstein, H., Dulce Gonzalez, Michael Karpman, &
Stephen Zuckerman (2021), Immigrant Families Continued Avoiding the
Safety Net during the COVID-19 Crisis 1 (The Urban Institute),
available at <a href="https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis">https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis</a>
(accessed Feb. 13, 2021).
---------------------------------------------------------------------------
<bullet> ``In 2020, more than one in six adults in immigrant
families (17.8 percent) reported avoiding a noncash government benefit
program or other help with basic needs because of green card concerns
or other worries about immigration status or enforcement. More than one
in three adults in families in which one or more members do not have a
green card (36.1 percent)
[[Page 10590]]
reported these broader chilling effects.'' \165\
---------------------------------------------------------------------------
\165\ Ibid.
---------------------------------------------------------------------------
<bullet> ``Immigrant families avoided public benefits and supports
not only because of perceived risks of how the public charge rule might
affect their ability to secure a green card but because of broader
immigration concerns, such as the risk of information being shared with
immigration enforcement authorities or the deportation of family
members.'' \166\
---------------------------------------------------------------------------
\166\ Ibid.
---------------------------------------------------------------------------
These findings were generally consistent with the findings
described in prior reports, which documented similar chilling effects
and confusion in the aftermath of the 2018 NPRM on public charge
inadmissibility and after implementation of the 2019 Final Rule.\167\
---------------------------------------------------------------------------
\167\ See Bernstein, H., Dulce Gonzalez, Michael Karpman, and
Stephen Zuckerman (2020), Amid Confusion over the Public Charge
Rule, Immigrant Families Continued Avoiding Public Benefits in 2019
(Urban Institute) (accessed Jan. 26, 2022); Bernstein, H., Dulce
Gonzalez, Michael Karpman, & Stephen Zuckerman (2019), One in Seven
Adults in Immigrant Families Reported Avoiding Public Benefit
Programs in 2018 (Urban Institute).).
---------------------------------------------------------------------------
Similarly, in December 2020, the Migration Policy Institute
published an analysis showing that from 2017 to 2019,
participation in [Temporary Assistance for Needy Families (TANF)],
SNAP, and Medicaid declined twice as fast among noncitizens as
citizens . . . . Between 2016 and 2019, the number of low-income
noncitizens participating in SNAP fell by 37 percent, as did the
number using TANF or similar cash assistance programs . . . . At the
same time, Medicaid participation by low-income noncitizens fell by
20 percent. Across all the programs, the decline in participation
for U.S.-born citizens was far smaller, decreasing only about half
as much as for noncitizens and with even smaller drops for
naturalized citizens.\168\
---------------------------------------------------------------------------
\168\ See Randy Capps et al., Migration Policy Institute,
Anticipated ``Chilling Effects'' of the Public-Charge Rule Are Real:
Data Reflect Steep Decline in Benefits Use by Immigrant Families
(Dec. 2020), <a href="https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real">https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real</a> (accessed Jan. 26,
2022).
The analysis also showed notable declines ``among low-income U.S.-
citizen children under age 18 with noncitizens in the household, as
their program participation dropped almost as rapidly as that of
noncitizens themselves . . . . Participation in [SNAP, TANF, and
Medicaid] fell about twice as fast over the 2016 to 2019 period for
U.S.-citizen children with noncitizens in the household as for those
with only citizens in the household.'' \169\
---------------------------------------------------------------------------
\169\ See Randy Capps et al., Migration Policy Institute,
Anticipated ``Chilling Effects'' of the Public-Charge Rule Are Real:
Data Reflect Steep Decline in Benefits Use by Immigrant Families
(Dec. 2020), <a href="https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real">https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real</a> (accessed Jan. 26,
2022).
---------------------------------------------------------------------------
Similar outcomes were described in an October 2019 report regarding
immigrant communities in San Diego and San Francisco issued by the
Kaiser Family Foundation. That report relayed qualitative assertions
from various social and legal services providers that ``an increasing
number of families are disenrolling themselves and their children from
programs, including Medi-Cal (California's Medicaid program), and not
renewing or not enrolling in programs even though they or their
children are eligible and are not directly affected by the policy
changes.'' \170\ For instance, a family services provider is quoted as
saying, ``they're scared to apply for certain much needed funding
whether it's Calfresh [food assistance] or it's Medi-Cal, to get them
the health insurance.'' \171\ A health provider is quoted as stating
that ``we had a patient who had a breast mass. Our physician had told
her to go see a specialist. And because she had heard about public
charge, she did not want to go see the specialist.'' \172\
---------------------------------------------------------------------------
\170\ See Samantha Artiga et al., Kaiser Family Foundation,
Issue Brief: Addressing Health and Social Needs of Immigrant
Families: Lessons from Local Communities at 7 (Oct. 28, 2019),
available at <a href="https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/">https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/</a> (accessed Jan. 26, 2022).
\171\ See Samantha Artiga et al., Kaiser Family Foundation,
Issue Brief: Addressing Health and Social Needs of Immigrant
Families: Lessons from Local Communities at 7 (Oct. 28, 2019),
available at <a href="https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/">https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/</a> (accessed Jan. 26, 2022).
\172\ See Samantha Artiga et al., Kaiser Family Foundation,
Issue Brief: Addressing Health and Social Needs of Immigrant
Families: Lessons from Local Communities at 8 (Oct. 28, 2019),
available at <a href="https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/">https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/</a> (accessed Feb. 12, 2021).
---------------------------------------------------------------------------
An October 2019 Kaiser Family Foundation report described similar
results, as follows:
<bullet> ``Based on findings from the health center survey, nearly
half (47%) of health centers reported that many or some immigrant
patients declined to enroll themselves in Medicaid in the past year . .
. . In addition, nearly one-third (32%) said that many or some
immigrant patients disenrolled from or declined to renew Medicaid
coverage.'' \173\
---------------------------------------------------------------------------
\173\ Jennifer Tolbert et al., Kaiser Family Foundation, Issue
Brief: Impact of Shifting Immigration Policy on Medicaid Enrollment
and Utilization of Care among Health Center Patients at 2 (Oct. 15,
2019), available at <a href="https://www.kff.org/medicaid/issue-brief/impact-of-shifting-immigration-policy-on-medicaid-enrollment-and-utilization-of-care-among-health-center-patients/">https://www.kff.org/medicaid/issue-brief/impact-of-shifting-immigration-policy-on-medicaid-enrollment-and-utilization-of-care-among-health-center-patients/</a> (accessed Feb. 14,
2021).
---------------------------------------------------------------------------
<bullet> ``Health centers also report enrollment declines among
children in immigrant families. More than a third of (38%) health
centers reported that many or some immigrant patients were declining to
enroll their children in Medicaid over the past year, while nearly
three in ten (28%) reported many or some immigrant patients were
disenrolling or deciding not to renew Medicaid coverage for their
children.'' \174\
---------------------------------------------------------------------------
\174\ Id. at 2-3.
---------------------------------------------------------------------------
<bullet> ``Follow-up interviews with health center staff are
consistent with these survey findings of declining Medicaid enrollment
among immigrant patients and their families . . . . In addition,
enrollment staff who assist patients in applying for Medicaid and other
coverage have access to this information as part of the application
process. At some health centers interviewed, these changes were
widespread with many patients dropping Medicaid while at others, the
changes were occurring among only a small number of patients.'' \175\
---------------------------------------------------------------------------
\175\ Id. at 3.
---------------------------------------------------------------------------
<bullet> ``Health center respondents reported that immigrant
patients are increasingly afraid to disclose personal information.
Interview respondents across all health centers reported that some
immigrant patients have become reluctant to disclose any personal
information out of fear that the health center would share that
information with authorities.'' \176\
---------------------------------------------------------------------------
\176\ Ibid.
---------------------------------------------------------------------------
<bullet> ``Health center interview respondents reported that the
patients disenrolling or declining to enroll in Medicaid are a broader
group of immigrants than those targeted by the public charge rule . . .
. Respondents also reported that patients have expressed concerns that
enrolling their children in these programs, even if their children were
born in the United States, may jeopardize their status or the status of
family members. In addition, although pregnant women are categorically
eligible for Medicaid and would be unaffected by public charge if they
enroll in Medicaid, health center respondents reported that pregnant
women are declining to enroll in Medicaid or disenrolling, in some
cases out of fear of risking future opportunities for residency or
citizenship.'' \177\
---------------------------------------------------------------------------
\177\ Id. at 5.
---------------------------------------------------------------------------
[[Page 10591]]
<bullet> ``Fear of public charge implications extends beyond
Medicaid to other health and social service programs, including some
that are not included in the public charge rule . . . . Several
respondents noted that their WIC caseloads are down and attributed the
trend to public charge fears. Respondents in California and Missouri
also noted that immigrant patients are declining to enroll in or accept
referrals for state and local food assistance programs, even though
these programs are not subject to public charge. A health center
serving New York City reported that patients with HIV or AIDS are
hesitating to enroll in or are disenrolling from the city-run HIV/AIDS
Services Administration (HASA) program out of fear that the program's
services fall under the public charge rule.'' \178\
---------------------------------------------------------------------------
\178\ Ibid.
---------------------------------------------------------------------------
The Kaiser Family Foundation report, like the other reports
described in this section, raises critical questions about the chilling
effects of the 2019 Final Rule on noncitizens and citizens alike,
including pregnant women and children.
e. Comments on Chilling Effects in Response to the 2021 ANPRM
On August 23, 2021, DHS issued an ANPRM on the public charge ground
of inadmissibility.\179\ In the ANPRM, DHS asked the public how it
should 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. DHS asked for any data and information it should
consider about the direct and indirect effects of past public charge
policies in this regard. In addition, DHS asked about data that it
could use to estimate any potential direct and indirect effects,
economic or otherwise, of the public charge ground of inadmissibility
related to the 2019 Final Rule. DHS also specifically sought
information from State, territorial, local, and Tribal benefit granting
agencies regarding impacts of the 2019 Final Rule on the application
for or disenrollment from public benefit programs, including how DHS
could reduce the likelihood that individuals would forgo public
benefits out of concern over immigration consequences of such receipt.
Commenters overwhelmingly confirmed the existence of chilling effects
and cited to studies and data regarding the same.
---------------------------------------------------------------------------
\179\ Public Charge Ground of Inadmissibility; Advance Notice of
Proposed Rulemaking and Notice of Virtual Public Listening Sessions,
86 FR 47025 (Aug. 23, 2021).
---------------------------------------------------------------------------
For example, a group of 21 Attorneys General urged DHS to weigh and
avoid chilling effects when crafting future public charge policies.
These commenters stated that, as a consequence of the 2019 Final Rule,
increasing numbers of immigrants disenrolled from or declined to enroll
in public benefits programs, including programs not covered by the
rule. This may have led, for instance, to a ``nationwide decrease of
approximately 260,000 enrollees in child Medicaid and 21,000
enrollees'' in the Special Supplemental Nutrition Program for Women,
Infants, and Children (WIC), neither of which would have been
considered under the 2019 Final Rule in any event.\180\ The commenters
stated that, according to State benefit granting agencies, because the
public charge inadmissibility formula in the 2019 Final Rule was so
complex and layered, it was extraordinarily difficult for immigrants
and service providers to understand whether or how it applied to them.
Those commenters said that many immigrants avoided benefits out of fear
and confusion. To underscore the severity of the impact, commenters
noted that these immigrants even avoided important benefits like
medical care during a pandemic.
---------------------------------------------------------------------------
\180\ Alma Guerrero, M.D., M.P.H, et al., Forgoing Healthcare in
a Global Pandemic: The Chilling Effects of the Public Charge Rule on
Health Access Among Children in California, UCLA Latino Policy &
Politics Initiative (Apr. 07, 2021), <a href="https://latino.ucla.edu/research/public-charge-ca-children/">https://latino.ucla.edu/research/public-charge-ca-children/</a>; Leslie Berestein Rojas,
Thousands Of LA Immigrant Families Are No Longer Enrolled In Public
Benefits. A Pending Trump Rule Could Be Why, LAist (Aug. 02, 2019),
<a href="https://laist.com/news/thousands-of-la-immigrant-families-are-no-longer-enrolled-in-public-benefits-a-pending-trump-rule-co">https://laist.com/news/thousands-of-la-immigrant-families-are-no-longer-enrolled-in-public-benefits-a-pending-trump-rule-co</a>.
---------------------------------------------------------------------------
With respect to health effects, in particular, the American Medical
Association (AMA) commented that the potential wide-reaching effect of
the 2019 Final Rule was anticipated and acknowledged in the 2019 Final
Rule and that those predictions were proven to be true, stating that
half of the immigrant families surveyed said they had avoided using
Medicaid, CHIP, or SNAP.\181\ But the commenter acknowledged that most
of the individuals who chose not to access non-cash benefits were not
subject to the 2019 Final Rule.\182\ Like other commenters, the AMA
highlighted the amplified chilling effects during the pandemic, stating
that ``the lead up to, and short-term change of, the public charge rule
had a far-reaching chilling effect on the immigrant population and
caused eligible individuals to not access benefits during a time when
they were most needed, the COVID-19 public health emergency.'' \183\
The AMA stated that researchers using Census Bureau data have found
that, during the public health emergency, ``the public charge policy
likely caused 2.1 million essential workers and household members to
forgo Medicaid and 1.3 million to forgo SNAP'' \184\ during a time when
41.4 percent of low-income immigrant families were experiencing food
insecurity and 52.1 percent were worried about being able to pay for
medical costs.\185\
---------------------------------------------------------------------------
\181\ Bernstein, H., Dulce Gonzalez, Michael Karpman, and
Stephen Zuckerman (2020), Amid Confusion over the Public Charge
Rule, Immigrant Families Continued Avoiding Public Benefits in 2019
(Urban Institute). <a href="https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_2.pdf">https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_2.pdf</a>
(accessed Jan 26, 2022).
\182\ Shaw, April. The Public Charge Rule and Public Health
(Apr. 6, 202), Network for Public Health Law, <a href="https://www.networkforphl.org/resources/the-public-charge-rule-and-public-health/">https://www.networkforphl.org/resources/the-public-charge-rule-and-public-health/</a> (accessed Jan. 18, 2022).
\183\ Barofsky, Jeremy et al. Spreading Fear: The Announcement
of The Public Charge Rule Reduced Enrollment in Child Safety-Net
Programs (Oct. 2020); Health Affairs Vol. 39, No.10: Children's
Health <a href="https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763">https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763</a>
(accessed Jan. 18, 2022).
\184\ Touw, Sharon, McCormack, Grace, Himmelstein, David,
Woolhandler, Steffie, and Zallman, Leah. ``Immigrant Essential
Workers Likely Avoided Medicaid And SNAP Because Of A Change To The
Public Charge Rule,'' (Jul. 2021) Health Affairs, <a href="https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2021.00059">https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2021.00059</a> (accessed
Jan. 18, 2022).
\185\ Bernstein, H., Dulce Gonzalez, Michael Karpman, and
Stephen Zuckerman (2021), Adults in Low-Income Immigrant Families
Were Deeply Affected by the COVID-19 Crisis yet Avoided Safety Net
Programs in 2020, (The Urban Institute), available at <a href="https://www.urban.org/research/publication/adults-low-income-immigrant-families-were-deeply-affected-covid-19-crisis-yet-avoided-safety-net-programs-2020">https://www.urban.org/research/publication/adults-low-income-immigrant-families-were-deeply-affected-covid-19-crisis-yet-avoided-safety-net-programs-2020</a> (accessed Jan. 26, 2022).
---------------------------------------------------------------------------
Similarly, another commenter noted that while chilling effects
would have been damaging under any circumstances, they were
particularly devastating when the COVID-19 pandemic struck in the
United States. The commenter cited to recent evidence that the chilling
effect is still impacting many immigrant communities, even though DHS
stopped applying the 2019 Final Rule in March 2021.\186\
---------------------------------------------------------------------------
\186\ Protecting Immigrant Families (PIF), Research Documents
Harm of Public Charge Policy During the COVID-19 Pandemic, (Aug.
2021), <a href="https://protectingimmigrantfamilies.org/wp-content/uploads/2022/01/PIF-Research-Document_Public-Charge_COVID-19_Jan2022.pdf">https://protectingimmigrantfamilies.org/wp-content/uploads/2022/01/PIF-Research-Document_Public-Charge_COVID-19_Jan2022.pdf</a>.
---------------------------------------------------------------------------
A Latino civil rights and advocacy group cited to a Kaiser Family
Foundation study, which found that 35 percent of Latino respondents,
and 63 percent in the case of potentially undocumented Latino adults,
cited
[[Page 10592]]
concerns that receiving the COVID-19 vaccine would negatively affect
either their own or a family member's immigration status, or both.\187\
Similarly, a poll conducted by the commenter found that 14 percent of
parents are concerned that getting their child vaccinated against
COVID-19 might cause immigration problems for themselves or their
family.\188\
---------------------------------------------------------------------------
\187\ Hamel, Liz et al., KFF COVID-19 Vaccine Monitor: COVID-19
Vaccine Access, Information, and Experiences Among Hispanic Adults
in the U.S., Kaiser Family Foundation (May 13, 2021), <a href="https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-access-information-experiences-hispanic-adults/">https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-access-information-experiences-hispanic-adults/</a>.
\188\ UnidosUS, ``National Survey of Latino Parents: Economic
Concerns and Vaccine Access for Children,'' (Washington DC:
UnidosUS, September 14, 2021), <a href="https://www.unidosus.org/publications/national-survey-of-latino-parents-economic-concerns-and-vaccine-access-for-children/">https://www.unidosus.org/publications/national-survey-of-latino-parents-economic-concerns-and-vaccine-access-for-children/</a>
---------------------------------------------------------------------------
A State agency wrote that, following issuance of the 2019 Final
Rule, the agency
spoke to numerous noncitizens who were afraid to apply for public
benefits for their U.S. citizen children. This was particularly
apparent when [the agency] began its Pandemic-Electronic Benefit
Transfer (EBT) program for children. The [agency] program
automatically provided food assistance in the form of an EBT card to
families in Chicago with children enrolled in the Chicago Public
Schools and provided ready to go meals at schools during the height
of the pandemic. Many parents did not utilize the assistance for
fear of being deemed a public charge in the future.
The same agency expressed concern that ``if [medical or nutrition
benefits] are included in a new public charge rule or if the new final
rule is as cumbersome and untenable'' as was the 2019 Final Rule, the
rule would ``likely increase demand for other state-funded social
services, such as non-Medicaid behavioral health services, emergency
food assistance, and other safety net resources.''
When addressing how DHS could reduce or minimize chilling effects
when issuing rules addressing public charge inadmissibility, commenters
had a number of suggestions, including:
<bullet> Consider only the use of cash assistance from TANF and SSI
in public charge determinations, not the use of Medicaid, SNAP, or
public housing benefits, including Medicaid institutional care
benefits.
<bullet> Exclude consideration of other public benefits, such as
the Children's Health Insurance Program, the health insurance
marketplaces, WIC, or National School Lunch or Breakfast programs, or
receipt of the Earned Income or Child Tax Credit.
<bullet> Exclude dependents' and family members' use of benefits,
especially use of benefits by children, as well as by those who use
benefits due to reasons such as domestic violence.
<bullet> Exclude past, current, or future receipt of public
benefits from public charge inadmissibility determinations, and instead
only find noncitizens inadmissible if they are determined to be likely
in the future to rely on the Federal Government to such an extent that
the reliance is permanent, primary, and total, meaning the use of the
benefits is necessary to avoid destitution.
<bullet> Limit public charge consideration to only two Federal
cash-assistance programs (TANF and SSI), and excluding all State,
local, and Tribal benefits from consideration, to make the guidelines
simple to communicate and understand.
<bullet> Clearly define which public benefits would not be
considered in a public charge inadmissibility determination (e.g.,
SNAP, CHIP, Medicaid, and Affordable Care Act premium subsidies for
health coverage through an exchange).
In addition, commenters emphasized the importance of simple,
streamlined, and easy to communicate rules, and encouraged DHS and
other Federal agencies to provide outreach to immigrant communities
about the relief afforded by any revised rules.
DHS appreciates that the consideration of past and current benefit
receipt has resulted and may continue to result in chilling effects,
notwithstanding that few categories of noncitizens are actually subject
to the public charge ground of inadmissibility, and these categories of
noncitizens would likely not have received such benefits to begin with.
As discussed elsewhere in this preamble, however, DHS nonetheless
believes that it is important to consider a noncitizen's past or
current receipt of certain benefits, to the extent that such receipt
occurs, as part of the public charge inadmissibility determination.
DHS remains interested in public comment regarding ways to shape
public communications around the final rule to mitigate chilling
effects among U.S. citizens and among the great majority of noncitizens
who are either ineligible for the public benefits covered by this rule
prior to admission or adjustment of status or are exempt from a public
charge determination under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). Although such communications materials are not part of the
rulemaking, DHS is keenly aware of the established effects of its
actions in this policy area and wishes to ensure that the final rule
faithfully applies the public charge statute without causing undue
confusion among the public.
8. Other Burdens of the 2019 Final Rule
The 2019 Final Rule imposed a range of burdens separate and apart
from the chilling effects described above. Commenters responding to the
ANPRM, as well as those participating in the listening sessions,
expressed concerns regarding those burdens. These comments echoed
concerns raised in response to the 2018 NPRM. DHS briefly describes the
most recent public input here.
Some commenters focused on the information collection and
evidentiary burdens associated with the rule. Many commenters objected
to the burden of collecting documentation for and completing the Form
I-944. The Form I-944, together with its instructions, spanned 30 pages
and requested a wide range of information on the statutory minimum
factors, some of which was duplicative of other filings. Information
and supporting documentation included, for instance, an accounting of
all liabilities and debts; a list of all assets that can be converted
into cash within 12 months; account statements, evidence of real estate
value, and other evidence of the value of assets; credit report, if
available (or documentation showing that no such report is available);
proof of health insurance; and copies of W-2s and income tax returns.
One commenter, a professional association, noted that the scope and
burden of the Form I-944
created a variety of practical problems. The first is one of simple
adjudicative inefficiency. Instead of an adjustment of status
application consisting of completed forms and a reasonable number of
supporting documents, filings would include hundreds or even
thousands of pages of supporting financial documents. USCIS was then
charged with maintaining and organizing this voluminous
documentation simply to reach the obvious conclusion that an
employment-based immigrant, many of whom are offered employment at
high salaries well above the poverty line, [is] unlikely to become a
public charge.
The commenter also noted that the form's scope and burden forced
applicants to choose between seeking adjustment of status and
collecting and then transmitting, first to an attorney and then to
USCIS, a wide range of sensitive financial documents. The commenter
encouraged USCIS to limit information collection regarding financial
status from employment-based immigrants who have an approved immigrant
visa petition containing a valid labor certification or (for an
[[Page 10593]]
immigrant category for which a labor certification is not required) a
valid U.S. job offer.
Other commenters focused on the 2019 Final Rule's burdens on public
benefit agencies, healthcare providers, and others who interacted with
the public in connection with public benefits and therefore expended
resources to familiarize themselves with the 2019 Final Rule and to
communicate with the public about the rule's terms. Commenters stated
that this kind of research and outreach went well beyond the staff's
skills and typical responsibilities.
One State agency wrote that it ``incurred significant costs to
support the needs of immigrant-serving community organizations and in
responding to the fear and confusion caused by the 2019 public charge
rule (published as an NPRM in October 2018 but broadly leaked and
reported on in spring 2018).'' The agency issued multiple grants to
address misinformation and fear in communities and fund family
counseling related to the 2018 NPRM and 2019 Final Rule. The commenter
wrote that ``staff dedicated hundreds of hours planning and
implementing State help for immigrants completing the [Form I-944,
including] dozens of meetings with both internal staff members and
cross-agency staff members, as well as external partners who work with
immigrant communities to understand the extensive requirements of the
[Form I-944].'' The commenter wrote that the resource burden centered
on the Form I-944's questions related to the type, amount, and dates of
all benefits ever applied for or received, which in the commenter's
view were so detailed as to ``[make] it highly unlikely that any
noncitizen subject to the 2019 rule would have been able to complete
the form without intensive consultation with IDHS caseworkers,
potentially even caseworkers in multiple states, and/or administering
agencies.''
Following issuance of the 2019 Final Rule, the commenter observed
``a significant increase in the number of customers to our offices. The
amount of work needed to prepare for and meet this demand was
overwhelming.'' The commenter wrote that ``[t]he expense of training
caseworkers alone cost more than 2,700 person hours and $91,000.
Caseworkers were needed to provide information and services to
individuals seeking to disenroll from benefits. The estimated
administrative cost ranges from 61,500 to 143,500 person hours and over
$3 million.''
Similarly, another commenter on the ANPRM stated their belief that
the 2019 Final Rule ``used administrative burdens as a tool to keep
people from adjusting their status with the creation of the I-944''
which, in their view, imposed a huge paperwork burden on applicants,
legal services providers, and attorneys. This commenter went on to
state that ``[a]dministrative burdens have a disproportionately harmful
effect on people with fewer resources'' and that such administrative
burdens ``like onerous paperwork, complex requirements, and opaque
guidelines are barriers to equity in federal policies and programs.''
9. The COVID-19 Pandemic
Although DHS believes that the approach contained in this proposed
rule would be warranted, on both legal and policy grounds, regardless
of the effects of the COVID-19 pandemic, DHS includes brief background
on the pandemic's effects for three reasons. First, the onset of the
COVID-19 pandemic coincided with the implementation of the 2019 Final
Rule and had widespread effects on the same population that adjusted
their behavior in response to the 2019 Final Rule. As a result, the
COVID-19 pandemic's effects necessarily serve as relevant historical
context when considering the effects of the 2019 Final Rule. Second,
although DHS recognizes that the COVID-19 pandemic has evolved, the
pandemic's effects continue, in a variety of ways, to this day. Third,
the current COVID-19 pandemic provides certain evidence that another
pandemic is not a hypothetical concern and illustrates the importance
that this rule account for similar occurrences in the future. The
following description is thus a relevant context for this proposed rule
as well.
a. The COVID-19 Pandemic and Its Effects on Public Health and the
Economy
Beginning as early as December 2019, just a few months after
publication of the 2019 Final Rule, there was an outbreak of a novel
coronavirus, now known as severe acute respiratory syndrome coronavirus
2 (SARS-CoV-2), and the disease it causes, now known as coronavirus
disease 2019 (COVID-19).\189\ On January 30, 2020, the Director-General
of the World Health Organization (WHO) declared the outbreak a ``public
health emergency of international concern'' under the International
Health Regulations (2005) and on March 11, 2020, the WHO announced that
the COVID-19 outbreak can be characterized as a pandemic.\190\ On
January 31, 2020, the Secretary of HHS declared a public health
emergency dating back to January 27, 2020, under section 319 of the
Public Health Service Act (42 U.S.C. 247d), in response to COVID-
19.\191\ On March 13, 2020, President Trump declared a National
Emergency concerning the COVID-19 outbreak to control the spread of the
virus in the United States.\192\
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\189\ See Wang, Chen et al., Comment: A Novel Coronavirus
Outbreak of Global Health Concern, The Lancet (Jan. 24, 2020),
available at <a href="https://www.thelancet.com/journals/lancet/article/PIIS0140-6736">https://www.thelancet.com/journals/lancet/article/PIIS0140-6736</a>(20)30185-9/fulltext.
\190\ See WHO, Statement on the second meeting of the
International Health Regulations (2005) Emergency Committee
regarding the outbreak of novel coronavirus (2019-nCoV) (Jan. 30,
2020), available at <a href="https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-">https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-</a>(2005)-emergency-committee-regarding-the-outbreak-of-
novel-coronavirus-(2019-ncov) and WHO, Listing of WHO's Response to
COVID-19, <a href="https://www.who.int/news/item/29-06-2020-covidtimeline">https://www.who.int/news/item/29-06-2020-covidtimeline</a>.
\191\ Determination of Public Health Emergency, 85 FR 7316 (Feb.
7, 2020). See also HHS Renewal of Determination That A Public Health
Emergency Exists, <a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx</a> (Jan. 14, 2022). The determination that a public
health emergency exists due to COVID-19 has subsequently been
renewed seven times: On April 21, 2020, on July 23, 2020, on October
2, 2020, on January 7, 2021, on April 15, 2021, on July 19, 2021, on
October 15, 2021, and most recently on January 14, 2022, effective
January 16, 2022.
\192\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
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The virus that causes COVID-19 is characterized by easy airborne
transmission among individuals in close physical proximity (within
about 6 feet), and it can be spread by both symptomatic and certain
asymptomatic carriers.\193\ Among adults, the risk for severe illness
from COVID-19 (e.g., illness requiring hospitalization, intensive care,
and ventilator use) \194\ increases with age, with older adults at
highest risk, as well as people of any age with underlying medical
conditions.\195\
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\193\ See Centers for Disease Control & Prevention (CDC), How
COVID-19 Spreads (updated July 14, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html">https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html</a>
(accessed Jan. 25, 2022); and Centers for Disease Control &
Prevention (CDC), How COVID-19 Spreads (updated July 14, 2021),
<a href="https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html">https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html</a> (accessed Jan. 25, 2022).
\194\ See Centers for Disease Control & Prevention (CDC), People
with Certain Medical Conditions (updated Dec. 14, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html">https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html</a> (accessed Jan. 27, 2022).
\195\ See Centers for Disease Control & Prevention (CDC), How
COVID-19 Spreads (updated July 14, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html">https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html</a>
(accessed Jan. 25, 2022).
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The COVID-19 pandemic's effects have been vast, including within
the United States, and they are ongoing. As
[[Page 10594]]
of February 8, 2022, a total of 903,038 COVID-19 deaths have been
reported in the United States.\196\ As of February 8, 2022, the 7-day
moving average of daily deaths in the United States was 2,303 \197\ and
the 7-day moving average of hospitalizations was 102,695.\198\ Effects
on the U.S. economy as a result of the COVID-19 pandemic have been
dramatic. Soon after the COVID-19 pandemic began, the United States
witnessed widespread job losses and food insecurity. In March 2020, the
U.S. Bureau of Labor Statistics estimated that the seasonally adjusted
domestic unemployment rate was 4.4 percent.\199\ That number spiked to
14.8 percent in April, and it gradually fell to 6.3 percent by January
2021.\200\ The unemployment rate for January 2022 was 4.0 percent.\201\
While the high unemployment rate has declined significantly, the United
States is now experiencing high demand for labor as compared to the
available supply of workers.\202\ As of November 2021, the labor force
participation rate was at 61.8 percent, having recovered about half of
what was lost at height of the COVID-19 pandemic compared with the
February 2020 rate of 63.3 percent.\203\ In addition, the full scope of
implications of the emergence of the Omicron variant, and the potential
effects of future variants, for public health,\204\ inflation,\205\ and
supply chains \206\ remains uncertain.
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\196\ See CDC, United States COVID-19 Cases, Deaths, and
Laboratory Testing (NAATs) by State, Territory, and Jurisdiction,
<a href="https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days">https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days</a> (accessed Feb. 8, 2022).
\197\ See CDC, Daily Trends in Number of COVID-19 Deaths in The
United States Reported to CDC, available at <a href="https://covid.cdc.gov/covid-data-tracker/#trends_dailydeaths">https://covid.cdc.gov/covid-data-tracker/#trends_dailydeaths</a> (accessed Feb. 10, 2022).
\198\ See CDC, Prevalent Hospitalizations of Patents with
Confirmed COVID-19, United States, available at <a href="https://covid.cdc.gov/covid-data-tracker/#hospitalizations">https://covid.cdc.gov/covid-data-tracker/#hospitalizations</a> (accessed Feb.
10, 2022).
\199\ See U.S. Bureau of Labor Statistics, Graphics for Economic
News Releases: Civilian Unemployment Rate, available at <a href="https://www.bls.gov/charts/employment-situation/civilian-unemployment-rate.htm">https://www.bls.gov/charts/employment-situation/civilian-unemployment-rate.htm</a> (accessed Feb. 9, 2022).
\200\ Id.
\201\ Id.
\202\ The BLS Job Openings and Labor Turnover Survey (JOLTS)
reports 11 million job openings in October 2021 (compared to 6.8
million job openings in October 2020). See Bureau of Labor
Statistics, Job Openings and Labor Turnover Survey released on
December 8, 2021, at <a href="https://www.bls.gov/news.release/archives/jolts_12082021.htm">https://www.bls.gov/news.release/archives/jolts_12082021.htm</a>.
\203\ See CNN, Three key numbers that explain America's labor
shortage (Dec. 25, 2021), <a href="https://www.cnn.com/2021/12/25/economy/labor-shortage-early-retirement-charts/index.html">https://www.cnn.com/2021/12/25/economy/labor-shortage-early-retirement-charts/index.html</a> (accessed Jan. 18,
2021).
\204\ See Annika Kim Constantino, Omicron detected in Florida
and Texas as it takes root in 25 U.S. states, CNBC, <a href="https://www.cnbc.com/2021/12/10/omicron-detected-in-florida-texas-and-other-states-as-it-takes-root-across-the-us-.html">https://www.cnbc.com/2021/12/10/omicron-detected-in-florida-texas-and-other-states-as-it-takes-root-across-the-us-.html</a> (accessed Dec. 10,
2021).
\205\ On December 10, 2021, BLS reported that the CPI-U
increased 0.8 percent in November on a seasonally adjusted basis
after rising 0.9 percent in October. Over the previous 12 months,
the all items index increased 6.8 percent before seasonal
adjustment. See BLS, Economic News Release, Consumer Price Index
Summary (Dec. 20, 2021), <a href="https://www.bls.gov/news.release/cpi.nr0.htm">https://www.bls.gov/news.release/cpi.nr0.htm</a>.
\206\ See, e.g., Mitchell Hartman, Omicron's impact on inflation
and supply chains is uncertain, Marketplace, <a href="https://www.marketplace.org/2021/12/01/omicrons-impact-on-inflation-and-supply-chains-is-uncertain/">https://www.marketplace.org/2021/12/01/omicrons-impact-on-inflation-and-supply-chains-is-uncertain/</a> (Dec. 1, 2021) (``People have trouble
getting to work through lockdowns and what have you, and labor gets
scarcer--particularly for those jobs where being present at work
matters. Supply goes down and has an upward pressure on pricing . .
.''); Alyssa Fowers & Rachel Siegel, Five charts explaining why
inflation is at a near 40-year high, Wash. Post, <a href="https://www.washingtonpost.com/business/2021/10/14/inflation-prices-supply-chain/">https://www.washingtonpost.com/business/2021/10/14/inflation-prices-supply-chain/</a> (Oct. 14, 2021, last updated Dec. 10, 2021) (``Prices for
meat, poultry, fish and eggs have surged in particular above other
grocery categories. The White House has pointed to broad
consolidation in the meat industry, saying that large companies bear
some of the responsibility for pushing prices higher . . . Meat
industry groups disagree, arguing that the same supply-side issues
rampant in the rest of the economy apply to proteins because it
costs more to transport and package materials, while tight labor
market has held back meat production.'').
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The COVID-19 pandemic's effects on food insecurity have at times
also been severe. Prior to March 13, 2020, of 250 million persons
surveyed, 20 million reported that they ``often'' or ``sometimes'' did
not have enough to eat.\207\ By December 9, 2020, that figure had
increased by 50 percent to 30 million people.\208\ From March to
September 2020, the number of people participating in SNAP increased
from around 37.2 million to 42.9 million, and the number of
participating households increased from around 19 million to 22.6
million.\209\ That number has since decreased but has not returned to
pre-pandemic levels. As of October 2021, the number of people
participating in SNAP decreased to 41.1 million, and the number of
households to 21.3 million.\210\ In addition, multiple States are
administering Pandemic Electronic Benefit Transfer (P-EBT) programs for
school-age children. As of September 2020, over 10.9 million people and
7.3 million households were participating in this program.\211\ As of
October 2021, this number only marginally decreased to 10.0 million
people but increased to 8.8 million households.\212\
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\207\ U.S. Census Bureau, Week 1 Household Pulse Survey: April
23-May 5, Food Table 2a. Food Sufficiency for Households, Prior to
COVID-19 Pandemic, by Select Characteristics: United States,
available at <a href="https://www.census.gov/data/tables/2020/demo/hhp/hhp1.html#setables">https://www.census.gov/data/tables/2020/demo/hhp/hhp1.html#setables</a> (accessed Jan. 27, 2022).
\208\ U.S. Census Bureau, Week 21 Household Pulse Survey:
December 9 to December 21, Food Table 2b. Food Sufficiency for
Households, In the Last Seven Days, by Select Characteristics:
United States, available at <a href="https://www.census.gov/data/tables/2020/demo/hhp/hhp21.html#setables">https://www.census.gov/data/tables/2020/demo/hhp/hhp21.html#setables</a> (accessed Jan. 23, 2021).
\209\ See Food and Nutrition Service, National and/or State
Level Monthly and/or Annual Data, FY16 through FY20 National View
Summary (Latest Available Month: September 2020), available at
<a href="https://www.fns.usda.gov/pd/supplemental-nutrition-assistance-program-snap">https://www.fns.usda.gov/pd/supplemental-nutrition-assistance-program-snap</a> (accessed Feb. 11, 2021).
\210\ See Food and Nutrition Service, Supplemental Nutrition
Assistance Program (Data as of Jan. 7, 2022), Monthly Data FY 2019
through FY 2022, <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/34SNAPmonthly-1.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/34SNAPmonthly-1.pdf</a> (accessed Jan. 18, 2022).
\211\ See Food and Nutrition Service, Pandemic EBT Program
Participation and Benefits--FY 20, available at <a href="https://www.fns.usda.gov/pd/supplemental-nutrition-assistance-program-snap">https://www.fns.usda.gov/pd/supplemental-nutrition-assistance-program-snap</a>
(accessed Feb. 11, 2021).
\212\ See Food and Nutrition Service, Pandemic EBT (P-EBT)
Program (data as of Jan. 7, 2022), <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/40PEBTPart%24-1.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/40PEBTPart%24-1.pdf</a> (accessed
Jan. 18, 2022).
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The COVID-19 pandemic has also had major impacts on State, Tribal,
territorial, and local governments, which have played a critical role
in responding to the pandemic.\213\ Projections indicated that use of
State and local spending programs is likely to increase, particularly
for public welfare programs and hospital and health expenses.\214\
Congress has appropriated significant funding to support these
governments through the Coronavirus Relief Fund.\215\
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\213\ See Cong. Res. Serv., General State and Local Fiscal
Assistance and COVID-19: Eligible Purposes, Allocations, and Use
Data, R46990 (Dec. 16, 2021).
\214\ Ibid.
\215\ Ibid.
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Finally, the COVID-19 pandemic has created significant pressures on
health care providers. For instance, community health centers have
experienced a decline in patient visits, staffing, and revenue. By one
estimate, as of December 2020, the decline in patient visits may have
translated into over $4 billion in revenue losses nationwide, ``an
amount that represents 12.7 percent of total revenue reported
nationally in 2019.'' \216\ In September 2021, prior to the emergence
of the Omicron variant, one analysis projected that hospitals
nationwide would lose an estimated $92 billion in net income over the
course of
[[Page 10595]]
that year, or $54 billion taking into account certain Federal
funding.\217\
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\216\ See Sharac, Jessica et al., Geiger Gibson/RCHN Community
Health Foundation Research Collaborative, Data Note: Key Updates
from the Health Center COVID-19 Survey (Week #36): The Status of
Community Health Centers in the Midst of the Worst Phase of the
COVID-19 Pandemic, at 7-9, available at <a href="https://www.rchnfoundation.org/?p=9394">https://www.rchnfoundation.org/?p=9394</a> (accessed Feb. 12, 2021).
\217\ See Kaufman Hall, Financial Effects of COVID-19: Hospital
Outlook for the Remainder of 2021 at 7 (Sept. 2021), <a href="https://www.aha.org/guidesreports/2021-09-21-financial-effects-covid-19-hospital-outlook-remainder-2021">https://www.aha.org/guidesreports/2021-09-21-financial-effects-covid-19-hospital-outlook-remainder-2021</a> (accessed Jan. 26, 2022).
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b. Nationwide Vaccination Effort
The COVID-19 vaccination effort in the United States began in mid-
December 2020, after the U.S. Food and Drug Administration granted the
first vaccine emergency use authorization.\218\ As of February 9, 2022,
213.2 million (64.2 percent) of the U.S. population was fully
vaccinated, and 251.5 million (75.7 percent) had received at least one
shot.\219\
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\218\ See, U.S. Department of Health and Human Services, COVID-
19 Vaccines; Timeline <a href="https://www.hhs.gov/coronavirus/covid-19-vaccines/index.html">https://www.hhs.gov/coronavirus/covid-19-vaccines/index.html</a> (accessed Feb. 10, 2022).
\219\ See CDC, COVID-19 Vaccinations in the United States,
<a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total">https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total</a> (accessed Feb. 9, 2022).
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On January 4, 2022, Centers for Disease Control and Prevention
(CDC) recommended the use of the Pfizer booster 5 months after becoming
fully vaccinated.\220\ On January 7, 2022, CDC recommended the use of
the Moderna booster 5 months after becoming fully vaccinated.\221\ As
of February 9, 2022, 90.5 million people (42.5 percent) have received a
booster dose.\222\
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\220\ See CDC, CDC Recommends Pfizer Booster at 5 Months,
Additional Primary Dose for Certain Immunocompromised Children
[verbar] CDC Online Newsroom (Jan. 4, 2022), <a href="https://www.cdc.gov/media/releases/2022/s0104-Pfizer-Booster.html">https://www.cdc.gov/media/releases/2022/s0104-Pfizer-Booster.html</a> (accessed Jan. 18,
2022).
\221\ See CDC, CDC Recommends Moderna Booster at 5 Months (Jan.
7, 2022), <a href="https://www.cdc.gov/media/releases/2022/s0107-moderna-booster.html">https://www.cdc.gov/media/releases/2022/s0107-moderna-booster.html</a> (accessed Jan. 18, 2022).
\222\ See CDC, COVID-19 Vaccinations in the United States (Jan.
15, 2022), <a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total">https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total</a> (accessed Feb. 9, 2022).
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c. The COVID-19 Pandemic's Effects on Vulnerable Communities
From the outset, many of the COVID-19 pandemic's effects have been
felt most acutely in more vulnerable communities, including localities
with high poverty rates and among certain racial and ethnic
populations. For instance, the cumulative COVID-19 case rate on a per
capita basis has consistently been higher in counties with a higher
percentage of their population in poverty. As of January 27, 2022,
counties with ``Low'' such percentages (0 percent to 12.3 percent) had
experienced a cumulative case rate of approximately 20,426 cases per
100,000 persons. By contrast, counties with Moderate (12.3 percent to
17.3 percent) and High (>17.3 percent) percentages experienced case
rates of approximately 22,555 and 23,720 per 100,000 persons,
respectively.\223\ The relative disparities are greater with respect to
COVID-19 deaths. As of January 27, 2022, cumulative COVID-19 deaths
ranged from 216 per 100,000 in counties falling within the ``Low''
classification, to 275 and 339 for ``Moderate'' and ``High,''
respectively.\224\
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\223\ See CDC, Trends in COVID-19 Cases and Deaths in the United
States, by County-level Population Factors, available at <a href="https://covid.cdc.gov/covid-data-tracker/#pop-factors_totalcases">https://covid.cdc.gov/covid-data-tracker/#pop-factors_totalcases</a> (sorted by
United States/Percent of Population in Poverty/Cases/Cumulative)
(accessed Jan. 27, 2022).
\224\ See CDC, Trends in COVID-19 Cases and Deaths in the United
States, by County-level Population Factors, available at <a href="https://covid.cdc.gov/covid-data-tracker/#pop-factors_totaldeaths">https://covid.cdc.gov/covid-data-tracker/#pop-factors_totaldeaths</a> (sorted by
United States/Percent of Population in Poverty/Deaths/Cumulative)
(accessed Jan. 27, 2022).
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Similarly, the cumulative case rate on a per capita basis has
consistently been higher in counties with a higher percentage of
uninsured individuals. As of January 27, 2022, counties with ``Low''
percentages of uninsured individuals (0 percent to 7.1 percent) had
experienced a cumulative case rate of approximately 20,822 cases per
100,000 persons. By contrast, counties with Moderate (7.1 percent to
11.4 percent) and High (>11.4 percent) percentages of uninsured persons
experienced rates of approximately 22,719 and 23,022 per 100,000
persons, respectively.\225\ The pattern is similar with respect to
COVID-19 deaths. As of January 27, cumulative COVID-19 deaths ranged
from 235 per 100,000 in counties falling within the ``Low''
classification, to 268 and 305 for ``Moderate'' and ``High,''
respectively.\226\ Although most of the uninsured are citizens,
noncitizens are significantly more likely than citizens to be
uninsured. In 2018, among the nonelderly population, 23 percent of
lawfully present noncitizens and more than 4 in 10 (45 percent)
undocumented noncitizens were uninsured compared to less than 1 in 10
(9 percent) citizens. Moreover, among citizen children, those with at
least one noncitizen parent are more likely to be uninsured compared to
those with citizen parents (8 percent vs. 4 percent).\227\
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\225\ See CDC, Trends in COVID-19 Cases and Deaths in the United
States, by County-level Population Factors, available at <a href="https://covid.cdc.gov/covid-data-tracker/#pop-factors_totalcases">https://covid.cdc.gov/covid-data-tracker/#pop-factors_totalcases</a> (sorted by
United States/Percent of Population Uninsured/Cases/Cumulative)
(accessed Jan. 27, 2022).
\226\ See CDC, Trends in COVID-19 Cases and Deaths in the United
States, by County-level Population Factors, available at <a href="https://covid.cdc.gov/covid-data-tracker/#pop-factors_totaldeaths">https://covid.cdc.gov/covid-data-tracker/#pop-factors_totaldeaths</a> (sorted by
United States/Percent of Population Uninsured/Deaths/Cumulative)
(accessed Jan. 27, 2022).
\227\ See Kaiser Family Foundation, Health Coverage of
Immigrations (Mar. 18, 2020), available at <a href="https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/">https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/</a> (accessed Jan. 27, 2022).
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Similarly, some racial and ethnic groups have experienced higher
rates of COVID-19 cases and deaths as compared to the general
population. Through January 31, 2022, the CDC data on race and
ethnicity for 85 percent of the people who have died from COVID-19
reveal that the percent of non-Hispanic American Indian/Alaska Native,
non-Hispanic Black, and non-Hispanic Native Hawaiian/Other Pacific
Islander people who have died from COVID-19 is higher than the percent
of these racial and ethnic groups in the total U.S. population.\228\
Through January 31, 2022, the CDC data on race and ethnicity for 65
percent of the people who have been infected by COVID-19 show that the
percent of Hispanic/Latino, non-Hispanic American Indian/Alaska Native,
and non-Hispanic Native Hawaiian/Other Pacific Islander people who have
had COVID-19 cases is higher than the percent of these racial and
ethnic groups in the total U.S. population.\229\
---------------------------------------------------------------------------
\228\ See CDC, Deaths by Race/Ethnicity--All Age Groups,
available at <a href="https://covid.cdc.gov/covid-data-tracker/#demographics">https://covid.cdc.gov/covid-data-tracker/#demographics</a>
(accessed Feb. 1, 2022).
\229\ Ibid.
---------------------------------------------------------------------------
These disparities likely trace to a range of factors, including
disparities in access to telework in certain communities. Research
shows that
[r]acial minorities and low-income workers, including immigrants,
have fewer opportunities to work from home because more of them tend
to work in service industries. As a result, immigrants working in
factories, supermarkets, delivery, sanitation, and poultry and meat
processing sectors are more likely to be exposed to COVID-19.\230\
---------------------------------------------------------------------------
\230\ See Indiana University Public Policy Institute,
Immigration Policy and COVID-19: Implications of the Public Charge
Rule (June 2020), available at <a href="https://policyinstitute.iu.edu/doc/covid-19-public-charge-immigration-brief.pdf">https://policyinstitute.iu.edu/doc/covid-19-public-charge-immigration-brief.pdf</a> (accessed Jan. 27,
2022) (citing Elise Gould et al., Economic Policy Institute, Not
Everybody Can Work from Home: Black and Hispanic Workers are Much
Less Likely to be Able to Telework (Mar. 19, 2020), available at
<a href="https://www.epi.org/blog/black-and-hispanic-workers-are-much-less-likely-to-be-able-to-work-from-home/">https://www.epi.org/blog/black-and-hispanic-workers-are-much-less-likely-to-be-able-to-work-from-home/</a> (accessed Jan. 27, 2022)).
Immigrants are also more likely to feel pressure to continue to go
to work due to the disproportionate job losses experienced in such
industries.\231\ DHS
[[Page 10596]]
is aware that a significant portion of service industry work also is
essential critical infrastructure work,\232\ some of which DHS has
previously prioritized for additional immigration flexibilities.\233\
Participation in this kind of work frequently benefits the country, but
also places such workers at greater risk for infection than those who
work from home or in more socially distanced settings.
---------------------------------------------------------------------------
\231\ With respect to immigrants specifically, unemployment data
from August 2019 to August 2020 indicate that ``the observed
increase in unemployment in the United States was twice as large
among immigrants with at most a high-school degree than for their
peers with higher degrees. In addition, differences by education
level were less pronounced for the native-born.'' See Organisation
for Economic Co-operation and Development, What is the impact of the
COVID-19 pandemic on immigrants and their children? (Oct. 19, 2020),
available at <a href="http://www.oecd.org/coronavirus/policy-responses/what-is-the-impact-of-the-covid-19-pandemic-on-immigrants-and-their-children-e7cbb7de/">http://www.oecd.org/coronavirus/policy-responses/what-is-the-impact-of-the-covid-19-pandemic-on-immigrants-and-their-children-e7cbb7de/</a> (accessed Feb. 11, 2021).
\232\ See generally Cybersecurity and Infrastructure Security
Agency, Guidance on the Essential Critical Infrastructure Workforce:
Ensuring Community and National Resilience in COVID-19 Response
(Aug. 10, 2021), available at <a href="https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce">https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce</a> (accessed Jan.
27, 2022).
\233\ See, e.g., 85 FR 82291 (Dec. 18, 2020) (extension of
temporary rule creating flexibilities with respect to certain H-2A
temporary agricultural workers); 85 FR 51304 (Aug. 20, 2020) (first
extension of temporary rule); 85 FR 21739 (Apr. 20, 2020) (initial
temporary rule); see also, e.g., 87 FR 4722 (Jan. 28, 2022) (similar
flexibilities with respect to certain H-2B temporary non-
agricultural workers); 86 FR 28198 (May 25, 2021) (same); 85 FR
28843 (May 14, 2020) (same).
---------------------------------------------------------------------------
Finally, although DHS is unaware of vaccination data specific to
citizenship and immigration status, there were disparities across
racial and ethnic lines with respect to vaccination rates during the
initial rollout of the nationwide vaccination campaign. For example,
the percentage of fully vaccinated non-Hispanic Asians did not reach
parity with non-Hispanic Whites until May 2, 2021, and the percentage
of fully vaccinated Hispanics/Latinos did not reach parity with non-
Hispanic Whites until September 23, 2021.\234\ On January 12, 2022, the
Kaiser Family Foundation reported that ``Over the course of the
vaccination rollout, Black and Hispanic people have been less likely
than their White counterparts to receive a vaccine, but these
disparities have narrowed over time, particularly for Hispanic
people.'' DHS emphasizes, however, that existing data contain
limitations and may have been influenced by restrictions on vaccine
eligibility related to age and other factors during the initial
rollout.\235\
---------------------------------------------------------------------------
\234\ See CDC, Percent of People Receiving COVID-19 Vaccine by
Race/Ethnicity and Date Administered, United States, available at
<a href="https://covid.cdc.gov/covid-data-tracker/#vaccination-demographics-trends">https://covid.cdc.gov/covid-data-tracker/#vaccination-demographics-trends</a> (accessed Feb. 10, 2022).
\235\ See Kaiser Family Foundation, Latest Data on COVID-19
Vaccinations by Race/Ethnicity (Jan. 12, 2022), <a href="https://www.kff.org/coronavirus-covid-19/issue-brief/latest-data-on-covid-19-vaccinations-by-race-ethnicity/#">https://www.kff.org/coronavirus-covid-19/issue-brief/latest-data-on-covid-19-vaccinations-by-race-ethnicity/#</a> (accessed Jan. 27, 2022). See also
CDC, Race/Ethnicity of People Fully Vaccinated, available at <a href="https://covid.cdc.gov/covid-data-tracker/#vaccination-demographic">https://covid.cdc.gov/covid-data-tracker/#vaccination-demographic</a> (accessed
Feb. 10, 2022).
---------------------------------------------------------------------------
d. USCIS Response to COVID-19 and Public Charge
Commenters on the 2018 NPRM expressed concerns that the proposed
rule would ``make immigrant families afraid to seek healthcare,
including vaccinations against communicable diseases, and therefore,
endanger the U.S. population.'' A commenter specifically provided the
example of ``a novel influenza outbreak'' for which the ``critical
first step'' of the government's response would ``be to get individuals
access to healthcare'' and stated that even if such services qualified
for a narrow exception, ``it would have a significant impact on the
country's ability to protect and promote the public health.'' \236\
---------------------------------------------------------------------------
\236\ See 84 FR 41292, 41384 (Aug. 14, 2019).
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DHS responded to those concerns by noting that with the rule it did
``not intend to restrict the access of vaccines . . . or intend to
discourage individuals from obtaining the necessary vaccines.'' \237\
DHS also stated that many sources of vaccines through public benefits
programs are not considered public benefits under (the now vacated) 8
CFR 212.21(b) \238\ or would otherwise not be a negative factor in the
totality of the circumstances determination.\239\ In the 2019 Final
Rule, DHS did not directly address the commenters' concerns that a loss
of trust in government healthcare services might hamper the
government's ability to respond to a novel disease outbreak.
---------------------------------------------------------------------------
\237\ Ibid.
\238\ 84 FR 41292, 41501 (Aug. 14, 2019).
\239\ See 84 FR 41292, 41385 (Aug. 14, 2019).
---------------------------------------------------------------------------
However, USCIS did address such concerns in a limited way with the
publication of USCIS Policy Manual (PM) content relating to the public
charge ground of inadmissibility.\240\ In PM Volume 8, Part G, Chapter
10--Public Benefits, USCIS provided a non-exhaustive list of benefits
that are ``not considered public benefits in the public charge
inadmissibility determination.'' \241\ This list included ``public
health assistance for immunizations with respect to immunizable
diseases and for testing and treatment of symptoms of communicable
diseases whether or not such symptoms are caused by a communicable
disease.'' \242\ The PM also noted that USCIS does not consider certain
Medicaid benefits for purposes of the public charge inadmissibility
determination, including ``benefits paid for an emergency medical
condition.'' \243\ USCIS published this guidance to its website on
February 5, 2020.
---------------------------------------------------------------------------
\240\ See USCIS Policy Manual, Part G--Public Charge Ground of
Inadmissibility (accessed Jan. 31, 2022). To find historical
guidance, click on the ``Appendices'' tab.
\241\ USCIS Policy Manual Volume 8, Part G--Public Charge Ground
of Inadmissibility, Chapter 10--Public Benefits, available at
<a href="https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10">https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10</a>.
\242\ Ibid.
\243\ Ibid.
---------------------------------------------------------------------------
On March 13, 2020, USCIS posted an alert box on its website
regarding the 2019 Final Rule and COVID-19. The alert stated that
USCIS will neither consider testing, treatment, nor preventative
care (including vaccines, if a vaccine becomes available) related to
COVID-19 as part of a public charge inadmissibility determination,
nor as related to the public benefit condition applicable to certain
nonimmigrants seeking an extension of stay or change of status, even
if such treatment is provided or paid for by one or more public
benefits, as defined in the rule (e.g. federally funded
Medicaid).\244\
---------------------------------------------------------------------------
\244\ See USCIS, Public Charge; Alert, available at <a href="https://www.uscis.gov/archive/public-charge">https://www.uscis.gov/archive/public-charge</a> (last Reviewed/updated Sep. 22,
2020).
The alert did not explain how a person could enroll in Medicaid for
the sole purpose of COVID-19-related care,\245\ or cite a provision of
the 2019 Final Rule specifically authorizing the exemptions described
in the alert or the PM.
---------------------------------------------------------------------------
\245\ Cf., e.g., 84 FR at 41380 (``DHS recognizes that Medicaid
and CHIP benefits for children also provide for other services or
funding for in school health services and serve as an important way
to ensure that children receive the vaccines needed to protect
public health and welfare.'').
---------------------------------------------------------------------------
With respect to receipt of other public benefits covered by the
2019 Final Rule (such as non-COVID-19-related federally funded
Medicaid, SNAP, and public housing benefits), the PM and alert did not
offer flexibility beyond that implicit in the ``totality of the
circumstances'' analysis. The alert stated that
if an alien subject to the public charge ground of inadmissibility
lives and works in a jurisdiction where disease prevention methods
such as social distancing or quarantine are in place, or where the
alien's employer, school, or university voluntarily shuts down
operations to prevent the spread of COVID-19, the alien may submit a
statement with his or her application for adjustment of status to
explain how such methods or policies have affected the alien as
relevant to the factors USCIS must consider in a public charge
inadmissibility determination. For instance, if the alien is
prevented from working or attending school and must rely on public
benefits for the duration of the COVID-19 outbreak and recovery
phase, the alien can provide an
[[Page 10597]]
explanation and relevant supporting documentation. To the extent
relevant and credible, USCIS will take all such evidence into
consideration in the totality of the alien's circumstances.
The alert did not provide any further detail regarding the weight
that USCIS would afford the COVID-19-related mitigating circumstances
in its public charge inadmissibility determinations or explain whether
the existence of a general economic downturn might warrant similar
special consideration.
D. Public Charge Bonds
If a noncitizen is determined to be inadmissible under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), they may be admitted in the
discretion of the Secretary, if otherwise admissible, upon the giving
of a suitable and proper bond.\246\ Public charge bonds are intended to
ensure ``that the alien will not in the future become a public
charge.'' \247\
---------------------------------------------------------------------------
\246\ See INA sec. 213, 8 U.S.C. 1183. See 8 CFR 103.6; see also
8 CFR 213.1.
\247\ See INA sec. 213, 8 U.S.C. 1183; Matter of Viado, 19 I&N
Dec. 252, 253 (BIA 1985).
---------------------------------------------------------------------------
Historically, bond provisions started with States requiring certain
amounts to assure a noncitizen would not become a public charge.\248\
Bond provisions were codified in Federal immigration laws in 1903.\249\
Notwithstanding codification in 1903, the acceptance of a bond posting
in consideration of a noncitizen's admission and to assure that they
will not become a public charge apparently had its origin in Federal
administrative practice earlier than this date. Beginning in 1893,
immigration inspectors served on Boards of Special Inquiry that
reviewed exclusion cases of noncitizens who were likely to become
public charges because the noncitizens lacked funds or relatives or
friends who could provide support.\250\ In these cases, the Boards of
Special Inquiry usually admitted the noncitizen if someone could post
bond or one of the immigrant aid societies would accept responsibility
for the noncitizen.\251\
---------------------------------------------------------------------------
\248\ See, e.g., Mayor, Aldermen & Commonalty of City of N.Y. v.
Miln, 36 U.S. 102 (1837) (upholding a New York statute that required
vessel captains to provide certain biographical information about
every passenger on the ship and further permitting the mayor to
require the captain to provide a surety of not more than $300 for
each noncitizen passenger to indemnify and hold harmless the
government from all expenses incurred to financially support the
person and the person's children); see also H.D. Johnson & W.C.
Reddall, History of Immigration (Washington, 1856).
\249\ See Immigration Act of 1903, ch. 1012, 32 Stat. 1213
(repealed by Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898, and
Immigration Act of 1917, ch. 29, 39 Stat. 874).
\250\ See Immigration Act of 1891, ch. 551, 26 Stat. 1084, which
created the Office of the Superintendent of Immigration within the
Treasury Department. The Superintendent oversaw a new corps of U.S.
Immigrant Inspectors stationed at the country's principal ports of
entry. See USCIS History and Genealogy, Origins of Federal
Immigration Service, <a href="https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service">https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service</a>
(accessed June 4, 2021).
\251\ See USCIS History and Genealogy, Origins of Federal
Immigration Service, available at <a href="https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service">https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service</a> (accessed June 4, 2021).
---------------------------------------------------------------------------
The present language of section 213 of the INA, 8 U.S.C. 1183, has
been in the law without essential variation since 1907.\252\ Under
section 21 of the Immigration Act of 1917, an immigration officer could
admit a noncitizen if a suitable bond was posted. In 1970, Congress
amended section 213 of the INA, 8 U.S.C. 1183, to permit the posting of
cash received by the U.S. Department of the Treasury and to eliminate
specific references to communicable diseases of public health
significance.\253\ At that time, Congress also added, without further
explanation or consideration, the phrase that any sums or other
security held to secure performance of the bond shall be returned
``except to the extent forfeited for violation of the terms thereof''
upon termination of the bond.\254\ Subsequently, IIRIRA amended the
provision when adding a parenthetical that clarified that a bond is
provided in addition to, and not in lieu of, the Affidavit of Support
Under Section 213A of the INA and the income deeming requirements under
section 213A of the INA, 8 U.S.C. 1183a.\255\ Regulations implementing
the public charge bond were promulgated in 1964 and 1966,\256\ and are
currently found at 8 CFR 103.6 and 8 CFR 213.1.
---------------------------------------------------------------------------
\252\ See Act of February 20, 1907, ch. 1134, sec. 26, 34 Stat.
898, 907.
\253\ See Public Law 91-313, 84 Stat. 413, 413 (1970); see also
116 Cong. Rec. S9957 (daily ed. June 26, 1970).
\254\ See Public Law 91-313, 84 Stat. 413, 413 (1970).
\255\ See Public Law 104-208, div. C, sec. 564(f), 110 Stat.
3009-546, 3009-684. Under 8 U.S.C. 1631, the sponsor's income and
resources, as well as the income and resources of the sponsor's
spouse, is counted as the sponsored alien's income for the purposes
of determining eligibility for any Federal means-tested public
benefits.
\256\ See Miscellaneous Amendments to Chapter, 29 FR 10579 (July
30, 1964); see also Miscellaneous Edits to Chapter, 31 FR 11713
(Sept. 7, 1966).
---------------------------------------------------------------------------
The 1999 Interim Field Guidance explained the IIRIRA changes to the
public charge bond statute and noted that officers can offer public
charge bonds as they had done in the past, but did not detail
procedures for public charge bonds.\257\ In the 2019 Final Rule, DHS
promulgated a detailed public charge bond framework that included
provisions that USCIS, consistent with sections 103 and 213 of the INA,
8 U.S.C. 1103 and 1183, would offer a public charge bond to certain
applicants for adjustment of status who are inadmissible only due to
the likelihood of becoming a public charge and when a favorable
exercise of discretion is warranted, based upon the totality of the
applicant's facts and circumstances.\258\ The 2019 Final Rule also
included provisions regarding the minimum public charge bond amount,
the circumstances under which a public charge bond would be cancelled,
as well as established specific conditions under which a public charge
bond would be breached.\259\
---------------------------------------------------------------------------
\257\ See 64 FR 28689 (May 26, 1999).
\258\ See 84 FR 41292, 41595 (Aug. 14, 2019).
\259\ See 84 FR 41292, 41299 (Aug. 14, 2019).
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IV. DHS 2021 Inadmissibility on Public Charge ANPRM and Listening
Sessions
On August 23, 2021, DHS published an ANPRM to seek broad public
feedback on the public charge ground of inadmissibility to inform its
development of a future regulatory proposal. The goal of the ANPRM was
to help ensure that a future regulatory proposal would be fair,
consistent with law, and informed by relevant data and evidence. The
ANPRM identified key considerations associated with the public charge
ground of inadmissibility. These considerations include how DHS should
define the term ``public charge,'' which public benefits DHS should
consider relevant to the public charge inadmissibility determination,
and how DHS should assess the statutory minimum factors when
determining whether a noncitizen is likely to become a public charge.
DHS welcomed input from individuals, organizations, government
entities and agencies, and all other interested members of the public.
DHS also provided notice of public virtual listening sessions on the
public charge ground of inadmissibility and the ANPRM. USCIS held two
public listening sessions, one specifically for the general public on
September 14, 2021, and one for State, territorial, local, and Tribal
benefits-granting agencies and nonprofit organization on October 5,
2021. DHS accepted written comments and related material through
October 22, 2021.
DHS received a total of 195 public comments in response to the
ANPRM. Of these, 181 were unique and applicable to the ANPRM. DHS
received comments from advocacy groups, individuals, State and local
governments, legal services providers, professional associations, and a
variety
[[Page 10598]]
of other groups. The slight majority of all unique submissions were
provided by organizations. Commenter types included:
[GRAPHIC] [TIFF OMITTED] TP24FE22.013
While commenters provided thoughtful responses relating to most
topics raised by DHS in the ANPRM, the 10 topics with the most comments
were:
[GRAPHIC] [TIFF OMITTED] TP24FE22.014
[[Page 10599]]
Approximately 250 individuals or groups participated in the
September 14, 2021,\260\ listening session and approximately 210
participated in the October 5, 2021, session.\261\ Among the topics
raised by participants were the following:
---------------------------------------------------------------------------
\260\ See Listening Session I Transcript.
\261\ See Listening Session II Transcript.
---------------------------------------------------------------------------
<bullet> Disenrollment effects associated with the 2019 Final Rule
and how to reduce potential disenrollment effects in future rulemaking
through policy choices and communication strategy;
<bullet> The definition of public charge and which public benefits,
if any, are relevant to that definition;
<bullet> How DHS should apply the health factor, particularly for
noncitizens who may have disabilities;
<bullet> Better communication concerning which populations of
noncitizens are subject to the public charge ground of inadmissibility;
<bullet> Consistency between DOS and DHS approaches to public
charge inadmissibility;
<bullet> The totality of the circumstances approach to public
charge inadmissibility determinations;
<bullet> Concerns relating to the heavy burden of information
collection and required evidence associated with the 2019 Final Rule;
and
<bullet> Consideration of a sufficient Affidavit of Support Under
Section 213A of the INA in a public charge inadmissibility
determination.
Many individuals and organizations who provided feedback during the
listening sessions stated that they also provided written comments with
more detailed and comprehensive suggestions for DHS's consideration.
DHS thanks all of those individuals and organizations who
participated in the listening sessions or provided public comments. DHS
has reviewed all of the comments and considered them in developing this
proposed rule. Where relevant, DHS has referenced comments received in
response to the ANPRM in the preamble to this proposed rule.
V. Discussion of Proposed Rule
A. Introduction
In drafting this proposed rule, DHS seeks to articulate a policy
that would be fully consistent with law; that would reflect empirical
evidence to the extent relevant and available, and allow flexibility
for adjudicators to benefit from the emergence of new evidence as time
passes; that would carefully consider public comments; that would be
clear, fair, and comprehensible for officers as well as for noncitizens
and their families; that would lead to fair and consistent
adjudications and, thus, avoid unequal treatment of similarly situated
individuals; and would not otherwise unduly impose barriers for
noncitizens seeking admission or adjustment of status in the United
States.\262\ DHS also seeks to ensure that its regulatory proposal
would not unduly interfere with the receipt of public benefits, in
particular by those who are not subject to the public charge ground of
inadmissibility.
---------------------------------------------------------------------------
\262\ See Executive Order 14012 (Restoring Faith in Our Legal
Immigration System and Strengthening Integration and Inclusion
Efforts for New Americans), 86 FR 8277 (published Feb. 5, 2021).
---------------------------------------------------------------------------
B. Applicability
This proposed rule interprets the public charge inadmissibility
ground under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and
only with respect to public charge inadmissibility determinations made
by DHS. This proposed rule would apply to any noncitizen subject to
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), who is applying for
adjustment of status to that of a lawful permanent resident before
USCIS or is applying for admission before U.S. Customs and Border
Protection (CBP) at a port of entry as part of the inspection
process.\263\
---------------------------------------------------------------------------
\263\ See proposed 8 CFR 212.20 through 212.23.
---------------------------------------------------------------------------
However, this proposed rule does not propose to address public
charge inadmissibility determinations under section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), or public charge deportability determinations
under section 237(a)(5) of the INA, 8 U.S.C. 1227(a)(5), made by DOJ in
the course of removal proceedings under section 240 of the INA, 8
U.S.C. 1229a.
Furthermore, this proposed rule does not address public charge
inadmissibility determinations made by DOS when noncitizens apply for
visas with DOS.\264\
---------------------------------------------------------------------------
\264\ DOS reopened the comment period for 60 days on their
preliminarily enjoined interim final rule addressing ineligibility
on public charge grounds. The comment period closed on January 18,
2022. See, Visas: Ineligibility Based on Public Charge Grounds,
interim final rule; reopening of public comment period, 86 FR 64070
(Nov. 17, 2021).
---------------------------------------------------------------------------
1. Applicants for Admission
Applicants for admission are inspected at, or when encountered
between, ports of entry. They are inspected by immigration officers to
assess, among other things, whether they are inadmissible under section
212(a) of the INA, 8 U.S.C. 1182(a), including section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4).
a. Nonimmigrants
Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), any
noncitizen who is applying for a visa or for admission to the United
States as a nonimmigrant is inadmissible if they are likely at any time
to become a public charge. A noncitizen applies directly to a U.S.
consulate or embassy abroad for a nonimmigrant visa to travel to the
United States temporarily for a limited purpose, such as to visit for
business or tourism.\265\ As noted above, this proposed rule does not
address public charge ineligibility determinations made by DOS.
Instead, DOS consular officers assess whether the noncitizen is
ineligible for a visa, including under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), as applicable.
---------------------------------------------------------------------------
\265\ Certain nonimmigrant classifications are subject to
petition requirements, and in such cases a petition generally must
be approved on a noncitizen's behalf by USCIS prior to application
for a visa. See, e.g., INA sec. 214(c), 8 U.S.C. 1184(c). In
addition, certain noncitizens are not subject to a visa requirement
in order to seek admission as a nonimmigrant. See, e.g., INA sec.
217, 8 U.S.C. 1187; see also 8 CFR 212.1.
---------------------------------------------------------------------------
Once DOS issues the nonimmigrant visa, the noncitizen generally may
travel to the United States using that visa and apply for admission at
a port of entry. CBP determines whether the applicant for admission is
inadmissible under any ground, including section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4). This proposed rule applies to CBP's public charge
inadmissibility determinations.\266\
---------------------------------------------------------------------------
\266\ See INA secs. 221 and 222, 8 U.S.C. 1201 and 1202; 8 CFR
204.
---------------------------------------------------------------------------
b. Immigrants
A noncitizen who is the beneficiary of an immigrant visa petition
approved by USCIS may apply to a DOS consulate or embassy abroad for an
immigrant visa to allow them to seek admission to the United States as
an immigrant.\267\ As part of the immigrant visa process, DOS
determines whether the applicant is eligible for the visa, which
includes a determination of whether the noncitizen has demonstrated
that they are admissible to the United States and that no
inadmissibility grounds in section 212(a) of the INA, 8 U.S.C. 1182(a),
apply. In determining whether the applicant has demonstrated that they
are not inadmissible on the public charge ground, DOS reviews all of
the mandatory factors, including any required Affidavit of Support
Under Section 213A of the INA as set forth in their regulations and
guidance.\268\ This
[[Page 10600]]
proposed rule will not address public charge inadmissibility
determinations made by DOS.\269\
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\267\ See INA secs. 221 and 222, 8 U.S.C. 1201 and 1202; 8 CFR
204; 22 CFR part 42.
\268\ 22 CFR 40.41; 9 FAM 302.8.
\269\ On October 11, 2019, DOS published an interim final rule
(``IFR'') regarding visa ineligibility on public charge grounds and
accepted public comments on the rule through November 19, 2019.
Given the changed circumstances since publication of that IFR, on
November 17, 2021, DOS reopened the public comment period for an
additional 60 days to seek additional comments regarding whether the
IFR should be rescinded or revised, and what final rule should
ultimately be adopted, if any, regarding the public charge ground of
inadmissibility. Therefore, it is possible that DOS will amend its
regulations and guidance.
---------------------------------------------------------------------------
Once DOS issues the immigrant visa, the noncitizen typically can
travel to the United States and apply for admission as an immigrant at
a port of entry. CBP determines whether the applicant for admission as
an immigrant is inadmissible under any ground, including section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). This proposed rule applies
to these public charge inadmissibility determinations made by CBP.
c. Certain Lawful Permanent Residents Returning to the United States
Lawful permanent residents generally are not considered to be
applicants for admission, and therefore are not subject to
inadmissibility determinations upon their return from a trip abroad.
However, in certain limited circumstances, a lawful permanent resident
will be considered an applicant for admission and, therefore, subject
to an inadmissibility determination upon the lawful permanent
resident's return to the United States.\270\ This inadmissibility
determination includes whether the noncitizen is inadmissible as likely
at any time to become a public charge.
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\270\ Individuals who have been lawfully admitted for permanent
residence are regarded as applicants for admission in the following
circumstances: (1) The individual has abandoned or relinquished that
status; (2) the individual has been outside the United States for a
continuous period in excess of 180 days; (3) the individual has
engaged in illegal activity after departing the United States; (4)
the individual has departed the United States while under legal
process seeking removal of the noncitizen from the United States,
including removal proceedings and extradition proceedings; (5) the
individual has committed an offense identified in section 212(a)(2)
of the INA, 8 U.S.C. 1182(a)(2), unless granted a waiver of
inadmissibility for such offense or cancellation of removal; and (6)
the individual has attempted to enter at a time or place other than
as designated by immigration officers or has not been admitted to
the United States after inspection and authorization by an
immigration officer. See INA sec. 101(a)(13)(C), 8 U.S.C.
1101(a)(13)(C).
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2.
[…truncated; see source link]Indexed from Federal Register on February 24, 2022.
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.