Rule2022-18867
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
September 9, 2022
Effective
December 23, 2022
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) is amending its regulations to prescribe how it determines whether noncitizens are inadmissible to the United States because they are likely at any time to become a public charge. Noncitizens who are applicants for visas, admission, and adjustment of status 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 rule, DHS would determine that a noncitizen is likely at any time to become a public charge if the noncitizen is 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. On August 14, 2019, DHS issued a different rule on this topic, Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule), which is no longer in effect. This rule implements a different policy than the 2019 Final Rule.
Full Text
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[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55472-55639]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18867]
[[Page 55471]]
Vol. 87
Friday,
No. 174
September 9, 2022
Part II
Department of Homeland Security
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8 CFR Parts 103, 212, 213, et al.
Public Charge Ground of Inadmissibility; Final Rule
Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 /
Rules and Regulations
[[Page 55472]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212, 213, 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: Final rule.
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SUMMARY: The U.S. Department of Homeland Security (DHS) is amending its
regulations to prescribe how it determines whether noncitizens are
inadmissible to the United States because they are likely at any time
to become a public charge. Noncitizens who are applicants for visas,
admission, and adjustment of status 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 rule, DHS would determine that a noncitizen is likely at any time
to become a public charge if the noncitizen is 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. On
August 14, 2019, DHS issued a different rule on this topic,
Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule),
which is no longer in effect. This rule implements a different policy
than the 2019 Final Rule.
DATES: This final rule is effective December 23, 2022. This final rule
will apply to applications postmarked on or after the effective date.
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. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Legal Authority
C. Summary of the Proposed Rule
D. Summary of Changes From the NPRM to the Final Rule
E. Implementation
F. Summary of Costs and Benefits
II. Background
A. Legal Authority
B. The Public Charge Ground of Inadmissibility
C. 2019 DHS Inadmissibility on Public Charge Ground Final Rule,
Vacatur, and Litigation History
D. Current Public Charge Inadmissibility Guidance
E. Current Rulemaking
III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments
B. Comments Expressing General Support for the Proposed Rule
C. Comments Expressing General Opposition to the Proposed Rule
D. Comments Regarding Legal Authority and Statutory Provisions
E. Chilling Effects
F. Applicability of the Public Charge Ground of Inadmissibility
G. Exemptions, Limited Exemption, and Waivers
H. Definitions
I. Factors
J. Totality of the Circumstances
K. Receipt of Public Benefits While Noncitizen Is in an
Immigration Category Exempt From Public Charge Inadmissibility
L. Receipt of Public Benefits by Those Granted Refugee Benefits
M. Denial Decision
N. Information Collection (Forms)
O. Bonds and Bond Procedures
P. Economic Analysis Comments & Responses
Q. Out-of-Scope Comments
IV. 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. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. Family Assessment
I. National Environmental Policy Act
J. Paperwork Reduction Act
V. List of Subjects and Regulatory Amendments
Table of Abbreviations
AAO--Administrative Appeals Office
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
DOD--Department of Defense
DOS--U.S. Department of State
DOJ--Department of Justice
E.O.--Executive Order
EOS--Extension of Stay
FAM--Department of State Foreign Affairs Manual
FBR--Federal Benefit Rate
FDA--Food and Drug Administration
FPG--Federal Poverty Guidelines
FOIA--Freedom of Information Act
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
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
TVPA--Trafficking Victims Protection Act
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. Executive Summary
A. Purpose of the Regulatory Action
This rule implements the public charge ground of inadmissibility,
found in section 212(a)(4) of the Immigration and Nationality Act
(INA), 8 U.S.C. 1182(a)(4), in a manner that will be
[[Page 55473]]
consistent with congressional direction; that will be clear and
comprehensible for officers as well as for noncitizens \1\ and their
families; and that will lead to fair and consistent adjudications,
thereby mitigating the risk of unequal treatment of similarly situated
individuals.
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\1\ For purposes of this discussion, DHS uses the term
``noncitizen'' to be synonymous with the term ``alien'' as it is
used in the INA.
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Under the INA, noncitizens are inadmissible and therefore (1)
ineligible for a visa, (2) ineligible for admission, and (3) ineligible
for adjustment of status, if, in the opinion of DHS (or the Department
of Justice (DOJ)) or consular officers of the Departments of State
(DOS), as applicable),\2\ they are likely at any time to become a
public charge.\3\ While the statute does not define the term ``public
charge,'' it does provide that in making an inadmissibility
determination, administering agencies must ``at a minimum consider the
alien's age; health; family status; assets, resources, and financial
status; and education and skills.'' \4\ The agencies may also consider
an Affidavit of Support Under Section 213A of the INA submitted on the
noncitizen's behalf when such is required.\5\
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\2\ Three different agencies are responsible for applying the
public charge ground of inadmissibility, each in a different context
or contexts. DHS primarily applies the public charge ground of
inadmissibility to applicants for admission at or between ports of
entry and when adjudicating certain applications for adjustment of
status. DOS consular officers are responsible for applying the
public charge ground of inadmissibility as part of the visa
application process and for determining whether a visa applicant is
ineligible for a visa on public charge grounds at the time of
application for a visa. This rule does not revise DOS standards or
processes. DOJ is responsible for applying the public charge ground
of inadmissibility with respect to noncitizens in immigration court.
Immigration judges adjudicate matters in removal proceedings, and
the Board of Immigration Appeals and in some cases the Attorney
General adjudicate appeals arising from such proceedings. This rule
does not revise DOJ standards or processes. DOS consular officers
are responsible for applying the public charge ground of
inadmissibility as part of the visa application process and for
determining whether a visa applicant is ineligible for a visa on
public charge grounds at the time of application for a visa. This
rule does not revise DOS standards or processes.
\3\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A). Congress
has by statute exempted certain categories of noncitizens, such as
asylees and refugees, from the public charge ground of
inadmissibility. See, e.g., INA secs. 207(c)(3) and 209(c), 8 U.S.C.
1157(c)(3) and 1159(c). A full list of exemptions is included in
this rule.
\4\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\5\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
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Beginning in 1999, public charge inadmissibility determinations
were made in accordance with the May 26, 1999, Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds (1999
Interim Field Guidance), issued by the former Immigration and
Naturalization Service (INS).\6\ Under that approach, ``public charge''
was defined as a noncitizen who is ``primarily dependent on the
Government for subsistence, as demonstrated by either the receipt of
public cash assistance for income maintenance or institutionalization
for long-term care at Government expense.'' \7\ Under the 1999 Interim
Field Guidance, a noncitizen's reliance on or receipt of non-cash
benefits such as the Supplemental Nutrition Assistance Program (SNAP),
also known as food stamps; Medicaid (except for support for long-term
institutionalization); and housing vouchers and other housing subsidies
were not considered by DHS in determining whether a noncitizen was
deemed likely at any time to become a public charge.
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\6\ See ``Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds,'' 64 FR 28689 (May 26, 1999). Due to a
printing error, the Federal Register version of the field guidance
appears to be dated ``March 26, 1999'' even though the guidance was
actually signed May 20, 1999, became effective May 21, 1999, and was
published in the Federal Register on May 26, 1999.
\7\ See ``Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds,'' 64 FR 28689, 28692 (May 26, 1999).
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On August 14, 2019, DHS issued a rule on the public charge ground
of inadmissibility, which is no longer in effect.\8\ The 2019 Final
Rule expanded DHS's definition of ``public charge'' and imposed a heavy
direct paperwork burden on applicants and DHS officers. The 2019 Final
Rule was associated with widespread collateral effects as discussed in
section III.E below, 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 collateral effects, during the time that the 2019 Final Rule
was in effect, of the 47,555 applications for adjustment of status to
which the rule was applied, DHS issued only three denials (which were
subsequently reopened and approved) and two Notices of Intent to Deny
(which were ultimately rescinded, after which the applications were
approved) based on the totality of the circumstances of a public charge
inadmissibility determination under section 212(a)(4)(A) and (B) of the
INA, 8 U.S.C. 1182(a)(4)(A) and (B).
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\8\ See ``Inadmissibility on Public Charge Grounds,'' 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 final rule would implement a different policy than the 2019
Final Rule. As stated above, in this new rule, DHS will implement
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 and their families and will lead to fair and consistent
adjudications, thereby mitigating the risk of unequal treatment of
similarly situated individuals. In this rule, DHS has declined to
include certain aspects of the 2019 Final Rule that in DHS's view
caused undue fear and confusion, such as (1) a complicated and
unnecessarily broad definition of ``public charge''; (2) mandatory
consideration of past, current, and future receipt of certain
supplemental public benefits, notwithstanding that most noncitizens
subject to the public charge ground of inadmissibility would not have
been eligible for such benefits at the time of application (and
notwithstanding the potential collateral effects of this policy on U.S.
citizen children in mixed-status households and noncitizens who are not
subject to the public charge ground of inadmissibility); (3) burdensome
and in some instances duplicative information collection requirements;
(4) designation of certain factors or sets of factual circumstances as
``heavily weighted''; and (5) imposition of a ``public benefit
condition'' for extension of stay and change of status, notwithstanding
that the nonimmigrant population to whom this condition applied is
largely ineligible for such benefits.
As discussed at greater length below, DHS believes that, in
contrast to the 2019 Final Rule, this rule would effectuate a more
faithful interpretation of the statutory phrase ``likely at any time to
become a public charge''; avoid unnecessary burdens on applicants,
officers, and benefits-granting agencies; and mitigate the possibility
of widespread ``chilling effects'' \9\ with respect to individuals
disenrolling or declining to enroll themselves or family members in
public benefits programs for which they are eligible, especially with
respect to individuals who are not subject to the public charge ground
of inadmissibility. Under this rule, similar to the 1999 Interim Field
Guidance that was in place for two decades prior to the
[[Page 55474]]
2019 Final Rule, noncitizens 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.
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\9\ The term ``chilling effects'' used throughout this rule is
meant to convey the indirect effect of chilling an individual's
participation in public benefit programs, regardless of whether they
are subject to the public charge ground of inadmissibility, based on
fear of negative immigration consequences.
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This final rule also makes important clarifications and changes as
compared to the 1999 Interim Field Guidance. For instance, this rule
clarifies DHS's approach to consideration of disability and long-term
institutionalization at government expense; states a bright-line rule
against considering the receipt of public benefits by an applicant's
dependents (such as a U.S. citizen child in a mixed-status household);
and changes the Form I-485 to collect additional information relevant
to the public charge inadmissibility determination. DHS also added
streamlined provisions to clarify acceptance, form, and amount of USCIS
public charge bonds, as well as cancellation of public charge bonds.
Finally, later in this preamble, in response to public comments, DHS
further clarifies that primary dependence connotes significant reliance
on the government for support, and means something more than dependence
that is merely transient or supplementary.
The rule also contains multiple additional provisions and
definitions, some of which are consistent with aspects of the 1999
Interim Field Guidance (and the 2019 Final Rule), and some of which
differ in material respects.
B. Summary of Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
the 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 the Proposed Rule
On February 24, 2022, DHS published a notice of proposed
rulemaking, Public Charge Ground of Inadmissibility (NPRM).\10\ The
NPRM proposed to prescribe how DHS would determine whether a noncitizen
is inadmissible to the United States under section 212(a)(4) of the
INA). Under the NPRM, 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 the NPRM,
DHS proposed definitions for the terms ``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.''
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\10\ 87 FR 10570 (Feb. 24, 2022).
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In the NPRM, DHS proposed to adopt a standard similar to the one
used in the 1999 Interim Field Guidance and related 1999 NPRM, which
tied public charge inadmissibility to primary dependence on the
government for subsistence, as demonstrated by the receipt of public
cash assistance for income maintenance or long-term
institutionalization at government expense. The NPRM also identified
the groups of individuals generally subject to or exempt from the
public charge inadmissibility ground and provided a list of statutory
and regulatory exemptions from and waivers of the public charge ground
of inadmissibility.
DHS continues to believe that the ``primarily dependent'' standard
properly balances the competing policy objectives established by
Congress.\11\ Although the term ``public charge'' does not have a
single clear meaning, its basic thrust is clear: significant reliance
on the government for support. This has been the longstanding purpose
of the public charge ground of inadmissibility; individuals who are
unable or unwilling to work to support themselves, and who do not have
other nongovernmental means of support such as family members, assets,
or sponsors, are at the core of the term ``public charge.'' Individuals
who are likely to primarily rely on their own resources, while
secondarily relying on some government support, are less readily
characterized as public charges. DHS does not believe that the term is
best understood to include a person who receives benefits from the
government to help to meet some needs but is not primarily dependent on
the government and instead has one or more sources of independent
income or resources upon which the individual primarily relies.
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\11\ In the 2019 Final Rule, DHS canvassed a range of sources to
support the proposition that the statute was ambiguous and that the
new definition represented a reasonable interpretation of such
ambiguity in light of the policy goals articulated in PRWORA. For
example, DHS wrote that the rule ``is not inconsistent with
Congress' intent in enacting the public charge ground of
inadmissibility in [the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)], or in enacting PRWORA.'' See
``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 41317
(Aug. 14, 2019). DHS noted that Congress enacted those two laws in
the same year, that IIRIRA amended the public charge inadmissibility
statute, and that PRWORA contained the statements of national
policy. DHS continued by stating that the rule, ``in accordance with
PRWORA, disincentivizes immigrants from coming to the United States
in reliance on public benefits.'' Ibid. Similarly, in support of a
similar definition of ``public charge'' in the 2018 NPRM, DHS wrote
that ``the term public charge is ambiguous as to how much government
assistance an individual must receive or the type of assistance an
individual must receive to be considered a public charge. The
statute and case law do not prescribe the degree to which an alien
must be receiving public benefits to be considered a public charge.
Given that neither the statute nor the case law prescribes the
degree to which an alien must be dependent on public benefits to be
considered a public charge, DHS has determined that it is
permissible and reasonable to propose a different approach.'' See
``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 51164
(Oct. 10, 2018). DHS continues to believe that the statute is
ambiguous, but for reasons discussed throughout this preamble, DHS
now believes the interpretation contained in this rule reflects a
reasonable and indeed the most appropriate interpretation of the
statute.
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To evaluate a person's likelihood to become primarily dependent on
the government for subsistence, DHS proposed to designate a list of
public benefits that would be considered for purposes of a public
charge inadmissibility determination. DHS recognized that the universe
of public benefits is quite large. In seeking to provide clear notice
of the effects of the rule and to limit certain undesired collateral
effects that may be associated with the rule (such as indirect effects
on social service providers and chilling effects), DHS proposed to
designate public cash assistance for income maintenance (i.e.,
Supplemental Security Income (SSI), cash assistance for income
maintenance under the Temporary Assistance for Needy Families (TANF),
and State, Tribal, territorial, or local cash benefit programs for
income maintenance) and long-term institutionalization at government
expense as the benefits that DHS would consider as part of the public
charge inadmissibility determination.
DHS believes that this approach--the ``primarily dependent''
standard and the focus on the specific benefits contained in the
proposed rule--is consistent with a more faithful interpretation of the
term ``public charge'' and has the additional benefit of being more
administrable and
[[Page 55475]]
consistent with longstanding practice than the 2019 Final Rule.\12\ DHS
has also determined that this approach is less likely to result in the
significant chilling effects among both noncitizens who are not subject
to the public charge ground of inadmissibility and U.S. citizens, along
with certain effects on State and local governments and social service
providers (such as increases in inquiries regarding the public charge
implications of receiving certain benefits and increases in
uncompensated care), that were observed following promulgation of the
2019 Final Rule.
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\12\ The 2019 Final Rule also designated a specific list of
public benefits as relevant to the public charge determination,
which included benefits other than cash assistance for income
maintenance and long-term institutionalization at government expense
such as SNAP, most non-emergency forms of Medicaid, Section 8
Housing Assistance under the Housing Choice Voucher (HCV) Program,
Section 8 Project-Based Rental Assistance, and public housing under
the Housing Act of 1937.
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DHS sought comment on the proposal to consider cash assistance for
income maintenance, but not non-cash benefits (apart from long-term
institutionalization at government expense), in determining whether a
noncitizen is likely at any time to become primarily dependent on the
government for subsistence. As explained below, following receipt of a
range of public comments on this topic (including proposals to narrow,
expand, or maintain the proposed list of public benefits), DHS has
decided to finalize this aspect of the proposed rule without change
other than the inclusion of an additional provision in the final rule
clarifying the continuation of this policy, which was articulated in
the 1999 Interim Field Guidance and reiterated in the recent NPRM.
In addition to proposing new definitions, DHS proposed the factors
that DHS would consider in prospectively determining whether an
applicant for admission or adjustment of status before DHS is
inadmissible on the public charge ground in the totality of the
circumstances. Those factors include the statutory minimum factors of
age; health; family status; assets, resources, and financial status;
and education and skills; as well as past receipt of designated public
benefits. DHS specifically stated that the fact that an applicant has a
disability, as defined by section 504 of the Rehabilitation Act
(Section 504), would not alone be a sufficient basis to determine
whether the noncitizen is likely at any time to become a public charge.
In addition, DHS proposed to revise the existing information
collection, Form I-485, Application to Register Permanent Residence or
Adjust Status, to include additional questions regarding several of the
statutory minimum factors: family status; assets, resources, and
financial status; education and skills; as well as past receipt of the
designated public benefits. As proposed, the additional questions would
apply to only those applicants who are subject to the public charge
ground of inadmissibility.
DHS also proposed to require that all written denial decisions
issued by USCIS to applicants reflect consideration of each of the
statutory minimum factors, the Affidavit of Support Under Section 213A
of the INA, where required, and the noncitizen's current and/or past
receipt of public benefits, consistent with the standards set forth in
the proposed rule, and to specifically articulate the reasons for the
officer's determination.
DHS also proposed to tailor its rule to limit the effects of
certain regulatory provisions on discrete populations. DHS proposed not
to consider public benefits received by a noncitizen during periods in
which the noncitizen was present in the United States in an immigration
category that is exempt from the public charge ground of
inadmissibility, or for which the noncitizen received a waiver of
public charge inadmissibility, as well as not to consider any public
benefits received by a noncitizen who was made eligible by Congress for
resettlement assistance, entitlement programs, and other benefits
available to refugees, even if the noncitizen was not admitted as a
refugee under section 207 of the INA, 8 U.S.C. 1157.
Finally, DHS proposed amending regulations related to T
nonimmigrant status holders, clarifying that these T nonimmigrants
seeking adjustment of status are not subject to the public charge
ground of inadmissibility.
DHS received 223 comments on the proposed rule, the majority of
which expressed support or qualified support for the policy approach
articulated in the proposed rule. A few of the public comments
supported a return to the framework contained in the 2019 Final Rule.
The preamble to this final rule includes summaries of the significant
issues raised in the comments, and includes responses to those comments
and explanations for policy changes.
D. Summary of Changes From the NPRM to the Final Rule
Following careful consideration of public comments received, DHS
has made several changes to the regulatory text proposed in the
NPRM.\13\ As discussed in detail in the comment responses, the changes
in this final rule are as follows:
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\13\ 87 FR at 10668-10671 (Feb. 24, 2022).
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1. Definitions
a. Definition of Household
In response to public comments, DHS added a definition of
``household'' to be used in connection with the family status and
assets, resources, and financial status factors. The noncitizen's
household will include:
<bullet> The noncitizen;
<bullet> If physically residing with the noncitizen, the
noncitizen's spouse, parents, unmarried siblings under 21 years of age,
and children;
<bullet> Any other individuals who are listed as dependents on the
noncitizen's federal income tax return; and
<bullet> Any other individuals who list the noncitizen as a
dependent on their federal income tax return.
DHS notes that a noncitizen's household's income includes income
provided to the household from sources who are not members of the
household, including but not limited to alimony or child support.
b. Definition of Long-Term Institutionalization at Government Expense
DHS replaced the term ``alien'' with the term ``beneficiary'' to
clarify that the forward-looking nature of the public charge inquiry
includes long-term institutionalization that occurs after the applicant
for admission or adjustment of status is no longer an ``alien,'' as
that term is defined in the INA.
c. Definition of Receipt (of Public Benefits)
DHS replaced the term ``alien'' with the term ``individual'' to
clarify that the forward-looking nature of the public charge
determination includes public cash assistance for income maintenance
that is received after the applicant for admission or adjustment of
status is no longer an ``alien,'' as that term is defined in the INA.
2. Statutory Minimum Factors
DHS modified 8 CFR 212.22(a)(1) from the proposed version in the
following ways:
d. General
DHS eliminated the duplicative text ``at a minimum'' from paragraph
(a)(1).
e. Health
DHS added text stating that DHS will consider the noncitizen's
health as evidenced by a report of an immigration medical examination
performed by a civil surgeon or panel physician where
[[Page 55476]]
such examination is required in making public charge inadmissibility
determinations. DHS will generally defer to the report of the
examination unless there is evidence that the report is incomplete.
f. Family Status
DHS added text stating that DHS will consider the noncitizen's
family status as evidenced by the noncitizen's household size.
``Household'' is defined in 8 CFR 212.21(f).
g. Assets, Resources, and Financial Status
DHS added text stating that DHS will consider the noncitizen's
assets, resources, and financial status as evidenced by the
noncitizen's household's income, assets, and liabilities (excluding any
income from public benefits listed in 8 CFR 212.21(b) and income or
assets from illegal activities or sources such as proceeds from illegal
gambling or drug sales).
h. Education and Skills
DHS added text stating that DHS will consider the noncitizen's
education and skills as evidenced by the noncitizen's degrees,
certifications, licenses, skills obtained through work experience or
educational programs, and educational certificates.
3. Consideration of Current and/or Past Receipt of Public Benefits
DHS clarified the regulatory text by stating that DHS will not
consider the receipt of, or certification or approval for future
receipt of, public benefits not referenced in 8 CFR 212.21(b) or (c),
such as Supplemental Nutrition Assistance Program (SNAP) or other
nutrition programs, Children's Health Insurance Program (CHIP),
Medicaid (other than for long-term use of institutional services under
section 1905(a) of the Social Security Act), housing benefits, any
benefits related to immunizations or testing for communicable diseases,
or other supplemental or special-purpose benefits. This policy was
discussed at length in the proposed rule's preamble, but DHS has
included a more direct statement to that effect in the final regulatory
text. As further explained in the proposed rule's preamble and in
response to comments below, DHS has opted for an approach in which it
considers past or current receipt of the benefits most indicative of
whether a person is likely to become primarily dependent on the
government for subsistence while excluding from consideration a range
of benefits that are less probative of primary dependence--and for
which applicants for admission and adjustment of status are most often
ineligible in any event. This choice, informed by on-the-record input
from benefits-granting agencies, allows DHS to faithfully administer
the statute without deterring eligible noncitizens and their families,
including U.S. citizen children, from seeking important benefits for
which they are eligible and which it is in the public interest for them
to receive.
4. Public Charge Bonds
a. Cancellation and Breach of Public Charge Bonds
DHS is amending 8 CFR 103.6(c)(1), relating to the cancellation and
breach of public charge bonds. With these amendments, DHS is:
<bullet> Clarifying that a public charge bond will be cancelled
upon death, permanent departure, or naturalization of the immigrant,
provided that the immigrant did not breach such bond by receiving
public cash assistance for income maintenance or long-term
institutionalization at government expense;
<bullet> Stating that a public charge bond may be cancelled by
USCIS after the fifth anniversary of the immigrant's admission or
adjustment of status, provided the immigrant files a Form I-356,
Request for Cancellation of Public Charge Bond, requesting the
cancellation, and USCIS finds that the immigrant did not receive public
cash assistance for income maintenance or long-term
institutionalization at government expense prior to that fifth
anniversary; and
<bullet> Making technical updates to clarify that bond cancellation
authority lies with USCIS rather than district directors.
b. Public Charge Bond Acceptance, Form, and Amount
DHS is amending 8 CFR 213.1, relating to the acceptance of public
charge bonds. With these amendments, DHS is:
<bullet> Adding a new paragraph specifying that USCIS may invite
adjustment of status applicants who are inadmissible only under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and whose applications are
otherwise approvable, to submit a public charge bond in USCIS'
discretion and clarifying that USCIS will set the bond amount and
provide instructions for submission of the bond;
<bullet> Modifying the existing regulatory language relating to
acceptance of bonds from noncitizens seeking immigrant visas from DOS,
clarifying that USCIS will provide instructions for the submission of
the bond, USCIS is the agency that accepts the bond, and that the
consular officer will set the amount of the bond; and
<bullet> Revising the existing regulatory language about form and
bond amount of public charge bonds by eliminating reference to a
specific form number, stating that USCIS or the consular officer will
set the amount of the bond of an amount no less than $1,000, and
requiring USCIS to provide a receipt to the noncitizen or an interested
party on a form designated by USCIS for such purpose.
E. Implementation
DHS will begin implementing this final rule on its effective date
(i.e., on December 23, 2022). This final rule will apply to
applications for adjustment of status that are postmarked on or after
the effective date. During the period between publication and the
effective date, DHS will also conduct necessary public outreach to
minimize the risk of confusion or chilling effects among both
noncitizens and U.S. citizens. On or before this date, consistent with
8 CFR 212.22(b) DHS will issue subregulatory guidance to inform, but
not dictate the outcome of, officers' totality of the circumstances
determinations.
F. Summary of Costs and Benefits
The rule will result in new costs, benefits, and transfers. To
provide a full understanding of the impacts of the rule, DHS considers
the potential impacts of this final 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. As DHS suggested in the 2019 Final Rule, those
effects would primarily be experienced by persons who are not subject
to the public charge ground of inadmissibility and who might disenroll
from public benefits or forgo enrollment in public benefits due to fear
and confusion regarding the scope of the regulatory alternative.\14\
Further discussion of the
[[Page 55477]]
regulatory alternative can be found in the ``Regulatory Alternative''
section.
---------------------------------------------------------------------------
\14\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292,
41313 (Aug. 14, 2019).
---------------------------------------------------------------------------
Relative to the No Action Baseline, the primary source of
quantified new direct costs for the final rule is the increase in the
time required to complete Form I-485. DHS estimates that the rule would
impose additional new direct costs of approximately $6,435,755 annually
to applicants filing Form I-485. In addition, the rule will 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 will be approximately $15,359. DHS estimates that the total
annual net costs will be approximately $6,420,396.\15\
---------------------------------------------------------------------------
\15\ Calculations: Total annual net costs ($6,420,396) = Total
annual costs ($6,435,755)--Total annual savings ($15,359).
---------------------------------------------------------------------------
Over the first 10 years of implementation, DHS estimates the total
net costs of the rule will be approximately $64,203,960 (undiscounted).
In addition, DHS estimates that the 10-year discounted total net costs
of this rule will be approximately $54,767,280 at a 3-percent discount
rate and approximately $45,094,175 at a 7-percent discount rate.
DHS expects the primary benefit of this final rule to be the non-
quantified benefit of increased clarity in the rules governing public
charge inadmissibility determinations. By codifying into regulations
the current practice under the No Action Baseline (the 1999 Interim
Field Guidance) with some changes, the final rule reduces uncertainty
and confusion.
The following two tables provide a more detailed summary of the
provisions and their impacts relative to the No Action Baseline and
Pre-Guidance Baseline, respectively.
[[Page 55478]]
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[[Page 55479]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.001
[[Page 55480]]
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[[Page 55481]]
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[[Page 55482]]
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[GRAPHIC] [TIFF OMITTED] TR09SE22.005
[[Page 55484]]
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[[Page 55485]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.007
II. Background
A. Legal Authority
The Secretary's authority for issuing this rule is found in various
sections of the INA (8 U.S.C. 1101 et seq.) and the Homeland Security
Act of 2002 (HSA).\16\
---------------------------------------------------------------------------
\16\ See Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.
(2002).
---------------------------------------------------------------------------
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 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.
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. 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 (typically adjudicated by DOS consular
officers), for admission (typically adjudicated by U.S. Customs and
Border Protection officers and U.S. Border Patrol Agents, and governed
by this rule), or for adjustment of status to that of a lawful
permanent resident (governed by this rule when adjudicated by U.S.
Citizenship and Immigration Services officers).\17\ By statute, some
categories of noncitizens are exempt from the public charge ground of
inadmissibility, while others may apply
[[Page 55486]]
for a waiver of the public charge inadmissibility ground.\18\
---------------------------------------------------------------------------
\17\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
\18\ See INA sec. 245(j), 8 U.S.C. 1255(j). See 8 CFR 245.11.
See INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A). See INA sec.
245(l)(2)(A), 8 U.S.C. 1255(l)(2)(A). See INA sec. 212(d)(3)(A), 8
U.S.C. 1182(d)(3)(A).
---------------------------------------------------------------------------
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.\19\ Additionally, section 212(a)(4)(B)(ii) of the
INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits the consular officer or the
immigration officer to consider any Affidavit of Support Under Section
213A of the INA submitted on the applicant's behalf, when determining
whether the applicant is likely at any time to become a public
charge.\20\
---------------------------------------------------------------------------
\19\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\20\ 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). 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. See INA sec. 212(a)(4)(C) and (D), 8
U.S.C. 1182(a)(4)(C) and (D).
---------------------------------------------------------------------------
Additionally, 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.\21\
---------------------------------------------------------------------------
\21\ See INA sec. 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
C. 2019 DHS Inadmissibility on Public Charge Ground Final Rule,
Vacatur, and Litigation History
In August 2019, DHS issued a final rule, Inadmissibility on Public
Charge Grounds (2019 Final Rule).\22\ As explained in more detail in
the NPRM,\23\ the 2019 Final Rule provided key definitions, including
``public charge'' and ``public benefits,'' and provided a multi-factor
framework along with associated evidentiary requirements through which
USCIS would determine inadmissibility on the public charge ground. The
2019 Final Rule added provisions that rendered certain nonimmigrants
ineligible for extension of stay or change of status if they received
public benefits for a certain period, and 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. The 2019 Final Rule did not interpret or change
DHS's implementation of the public charge ground of deportability.\24\
---------------------------------------------------------------------------
\22\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR
41292 (Aug. 14, 2019), as amended by ``Inadmissibility on Public
Charge Grounds; Correction,'' 84 FR 52357 (Oct. 2, 2019).
\23\ See 87 FR at 10606 (Feb. 24, 2022).
\24\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See
``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 41295
(Aug. 14, 2019).
---------------------------------------------------------------------------
Also as discussed in the NPRM,\25\ the 2019 Final Rule was set to
take effect on October 15, 2019. Before it did, numerous Plaintiffs
filed suits challenging the 2019 Final Rule in five district courts,
across four circuits.\26\ Following a series of preliminary injunctions
and stays or reversals of those injunctions, the 2019 Final Rule was
ultimately vacated nationwide by a partial final judgment entered by
the U.S. District Court for the Northern District of Illinois.\27\ DHS
subsequently formally removed the 2019 Final Rule from the Code of
Federal Regulations.\28\
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\25\ See 87 FR at 10586 (Feb. 24, 2022).
\26\ 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.).
\27\ See Cook County v. Wolf, 498 F. Supp. 3d 999 (N.D. Ill.
Nov. 2, 2020).
\28\ See ``Inadmissibility on Public Charge Grounds;
Implementation of Vacatur,'' 86 FR 14221 (Mar. 15, 2021).
---------------------------------------------------------------------------
The litigation concerning the 2019 Final Rule continued, with
attempts by certain States to intervene in the various cases. On May
12, 2021, a collection of States filed motions to intervene in the U.S.
District Court for the Northern District of Illinois for
reconsideration of the grant of partial summary judgment and for other
relief.\29\ The motions were denied, and prospective intervenors noted
their appeal to the U.S. Court of Appeals for the Seventh Circuit.
---------------------------------------------------------------------------
\29\ See Texas, et al. v. Cook County, Illinois, et al., 1:19-
cv-0633419 (N.D. Ill. May 12, 2021).
---------------------------------------------------------------------------
Separately, on March 10, 2021, a collection of prospective
intervenors, led by the State of Arizona, filed an unsuccessful motion
to intervene before the U.S. Court of Appeals for the Ninth
Circuit.\30\ The prospective intervenors then filed a motion before the
Supreme Court seeking leave to intervene, which the Court ordered to be
held in abeyance while the prospective intervenors filed a petition for
certiorari from the Ninth Circuit intervention denial, which was filed
on June 23, 2021.\31\ On October 29, 2021, the Supreme Court granted
certiorari on a single issue of the three presented in the petition:
``Whether States with interests should be permitted to defend a rule
when the United States ceases to defend.'' On June 15, 2022, the
Supreme Court dismissed the writ of certiorari as improvidently
granted.\32\
---------------------------------------------------------------------------
\30\ City and County of San Francisco, et al. v. USCIS et al.,
19-17213 (9th Cir.).
\31\ Arizona, et al., v. City and County of San Francisco, et
al., 20-1775 (U.S. Oct. 29, 2021).
\32\ Arizona, et al., v. City and County of San Francisco, et
al., 20-1775 (U.S. June 15, 2022).
---------------------------------------------------------------------------
On June 27, 2022, the U.S. Court of Appeals for the Seventh Circuit
ruled that the U.S. District Court for the Northern District of
Illinois did not abuse its discretion in denying the States' motions to
intervene in the proceedings concerning the 2019 Final Rule and request
for relief from judgment under Rule 60(b).\33\ Other aspects of the
litigation concerning the 2019 Final Rule have been stayed, with
varying reporting requirements, pending the outcome of the intervention
litigation.
---------------------------------------------------------------------------
\33\ Cook County, Illinois, et al. v. State of Texas, et al., 37
F. 4th 1335 (7th Cir. 2022).
---------------------------------------------------------------------------
D. Current Public Charge Inadmissibility Guidance
As discussed in the NPRM, DHS currently makes public charge
inadmissibility determinations in accordance with the statute and the
1999 Interim Field Guidance.\34\ The guidance explains how the agency
determines if a noncitizen is likely at any time to become a public
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Under
the guidance, officers can offer public charge bonds, but the guidance
does not provide procedures for public charge bonds.
---------------------------------------------------------------------------
\34\ See 87 FR at 10585 (Feb. 24, 2022).
---------------------------------------------------------------------------
E. Current Rulemaking
On August 23, 2021, DHS published an Advance Notice of Proposed
Rulemaking (ANPRM) to seek broad public feedback on the public charge
ground of inadmissibility to inform its development of a future
regulatory proposal.\35\ USCIS sought input from individuals,
organizations, government entities and agencies, and all other
interested members of the public. USCIS held two public listening
sessions and accepted written comments and related
[[Page 55487]]
material through October 22, 2021. DHS reviewed all of the comments and
considered them in developing the NPRM.\36\
---------------------------------------------------------------------------
\35\ See ``Public Charge Ground of Inadmissibility,'' 86 FR
47025 (Aug. 23, 2021).
\36\ See 87 FR at 10597 (Feb. 24, 2022).
---------------------------------------------------------------------------
On February 24, 2022, DHS published a proposed rule, Public Charge
Ground of Inadmissibility.\37\ The public comment period closed on
April 25, 2022. Following careful consideration of public comments
received in response to the NPRM, DHS has made modifications to the
regulatory text proposed in the NPRM, as described above and throughout
this preamble.
---------------------------------------------------------------------------
\37\ ``Public Charge Ground of Inadmissibility,'' 87 FR 10570
(Feb. 24, 2022).
---------------------------------------------------------------------------
The following section of this preamble includes a detailed summary
and analysis of the public comments received on the NPRM. Comments made
in response to the ANPRM and the NPRM may be reviewed at the Federal
Docket Management System (FDMS) at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket
number USCIS-2021-0013.
III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments
DHS received a total of 223 public comment submissions in Docket
USCIS-2021-0013 in response to the proposed rule. The majority of
comment submissions were from advocacy groups or individual commenters.
Other commenters included anonymous commenters; healthcare providers;
research institutes, universities, and academic researchers; law firms,
individual attorneys, and other legal services providers; Federal,
State, and local elected officials; State and local government
agencies; religious and community organizations; unions; Federal
Government officials; professional associations; and trade and business
organizations. While some commenters opposed the rule and some
commenters supported the rule in its entirety, the majority of
commenters expressed support for the rule with suggestions for
improvement, or indicated that they believed the proposed rule was
flawed in some way, but a significant improvement over the 2019 Final
Rule. A few of the public comments supported a return to the framework
contained in the 2019 Final Rule.
B. Comments Expressing General Support for the Proposed Rule
Comment: Many commenters were generally in favor of the proposed
rule and expressed support for clarifying the public charge ground of
inadmissibility. Some of those commenters stated that the rule ensures
that the public charge ground of inadmissibility will be implemented in
a clear, consistent, and fair manner. Several commenters praised the
rule on the grounds that it requires less paperwork for applicants as
compared to the 2019 Final Rule, and allows for administration of the
public charge ground of inadmissibility without generating undue fear
and confusion. Another commenter similarly stated that the rule is the
best option because it respects the rights of the greatest number of
stakeholders and produces the best outcome with the least harm. This
commenter remarked that this rule would allow more people ``who are fit
to immigrate a chance to'' do so, while keeping more families together.
One commenter expressed support for the proposed rule, stating it is
critical that DHS move quickly to finalize a more fair and equitable
public charge rule that minimizes the harm to children and families,
while recognizing the need to create an inclusive and anti-racist
system. One commenter stated that they support the development of a
rule that avoids the unequal treatment of similarly situated persons,
and that a rule that is straightforward and administrable can be
applied fairly and consistently.
Response: DHS agrees that this rule will help ensure that public
charge inadmissibility determinations are fair, consistent with law,
and informed by relevant data and evidence. Additionally, DHS agrees
that this rule reduces unnecessary burdens on applicants as compared to
the 2019 Final Rule. Notwithstanding that the 2019 Final Rule resulted
in very few adverse determinations, that rule introduced a new form and
form instructions spanning over 45 pages, which was in addition to the
more than 60 pages of form and form instructions associated with the
Form I-485, Application to Register Permanent Residence or Adjust
Status. This rule introduces a more targeted information collection
that collects the necessary information under the statute and this rule
without imposing an unnecessary paperwork burden on the public.
Comment: Several commenters stated that immigrants fill valuable
jobs that U.S. citizens may not generally favor, such as direct care
work, which can be very challenging and important but poorly
compensated. A commenter remarked that immigrants contribute to the
United States through paying their taxes, and others stated that
increased immigration would have a positive effect on the current
pandemic economy. Two other commenters stated that the rule will allow
more noncitizens to immigrate and access public education, which will
allow them to obtain better jobs and support themselves and their
families.
Response: DHS appreciates commenters' support for this rule and
notes that any impacts on the U.S. economy, job creation, or better
access to education would be indirect effects of the rule, and the
rule, designed to implement congressional directions, would be
justified even in the absence of such benefits. The fundamental intent
of this rule is to help ensure that public charge inadmissibility
determinations will be consistent with law, fair, and informed by
relevant data and evidence. DHS also expects that this rule will help
alleviate the chilling effects caused by previous public charge
policies. Historical evidence, both prior to the 2019 Final Rule and
from the period of time during which that rule was in effect, does not
suggest that this final rule is likely to meaningfully change the
overall volume of immigration to the United States.
Comment: One commenter commended USCIS on the overall direction of
the NPRM and said that the proposed rule is a reasonable interpretation
of the statutory public charge ground of inadmissibility that is
generally consistent with long-time agency policy and an improvement on
the 1999 Interim Field Guidance. Another commenter stated that the rule
clearly seeks to avoid the barriers to immigration imposed by the 2019
Final Rule while preserving the integrity of the enforcement of the
public charge ground of inadmissibility.
Response: DHS agrees that this rule is generally consistent with
longstanding agency policy and is a reasonable interpretation of the
statutory language in section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). DHS believes this rule codifies a policy that is fully
consistent with law, that reflects empirical evidence to the extent
relevant and available, and that allows flexibility for officers to
benefit from the emergence of new evidence as time passes. DHS believes
that this rule will create clear and comprehensible adjudicative
standards that will lead to fair and consistent adjudications and
ensure equitable treatment of similarly situated individuals. DHS also
believes that this rule will not unduly impose barriers for noncitizens
or unduly interfere with the receipt of supplemental public benefits,
especially by those who are not subject to the public charge ground of
inadmissibility.
Comment: One commenter indicated agreement with the rule and stated
that a person who wants permission to enter
[[Page 55488]]
the United States should only be allowed to do so if they demonstrate
that they would not become a public charge now or sometime in the
future. Further, the commenter stated that anyone entering the country
illegally should be sent back to their country if they cannot show that
they will not become a public charge.
Response: Consistent with section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), any noncitizen who is an applicant for a visa, admission,
or adjustment of status must demonstrate that they are not likely at
any time to become a public charge, unless Congress has expressly
exempted them from this ground. If DHS determines an applicant for
admission or adjustment of status who is subject to this
inadmissibility ground is likely at any time to become a public charge,
the applicant is inadmissible and will not be admitted to the United
States or granted adjustment of status unless they are eligible for and
receive a waiver or are offered and post a public charge bond.
In regard to noncitizens who are entering the United States without
authorization, to the extent that such noncitizens are applicants for
admission, and subject to the public charge ground of inadmissibility,
if they are unable to demonstrate that they are not likely at any time
to become a public charge, they would not be admitted unless they are
eligible for and receive a waiver or are offered and post a public
charge bond. Such individuals may also be removable on other grounds.
C. Comments Expressing General Opposition to the Proposed Rule
Comment: Many commenters stated that they opposed the rule because,
in their opinion, the statutory public charge ground of inadmissibility
and as a consequence the corresponding proposed rule are racist,
xenophobic, based on white nationalism, or otherwise discriminatory.
Several commenters stated that the United States should be doing more
to help immigrants, and offering them aid and assistance. One commenter
said that this rule is intended to prevent immigration, while another
commenter stated that the proposed rule seeks to punish potential
immigrants for the simple act of being born outside of the United
States, and enforces a wealth test that counteracts the reason for the
founding of this nation and the legacy of the American dream. A
different commenter similarly said that the proposed rule went against
the values of the United States. Some commenters stated that it is
unfair to reject immigrants based on the public charge ground of
inadmissibility because it would take away opportunities for them to
have a better life.
Response: DHS seeks to be faithful to the relevant statute and
hence to congressional directions. For that reason, DHS disagrees with
the suggestion that the rule is contrary to the laws and values of the
United States, or that the rule implies that immigrants are inherently
less worthy than U.S. citizens. DHS does not intend or expect that this
rule will have a discriminatory effect based on race, nationality,
gender, disability, or any other protected ground. Importantly, the
statute does not direct DHS to consider a noncitizen's race,
nationality, or gender.\38\ Under this rule, DHS will not consider such
characteristics when making a public charge inadmissibility
determination. DHS cannot rule out the possibility of disproportionate
impacts on certain groups (whether as a consequence of the policy
contained in this rule, the 1999 Interim Field Guidance, or any other
policy), but this rule is neutral on its face and DHS in no way intends
that it will have such impacts on any protected group. DHS is committed
to applying this rule neutrally and fairly to all noncitizens who are
subject to it and has included a provision requiring that USCIS denials
on public charge grounds be accompanied by a written explanation that
specifically articulates the reasons for the officer's
determination.\39\
---------------------------------------------------------------------------
\38\ INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
\39\ See 8 CFR 212.22(c).
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Additionally, this rule does not apply a ``wealth test.''
Consistent with the governing statute, it looks only at whether an
applicant for admission or adjustment of status is likely at any time
in the future to become primarily dependent on the government for
subsistence after consideration of several factors, none of which alone
determine the final outcome. In that analysis, the consideration of
assets, resources, and financial status is one factor to be considered
in the totality of the noncitizen's circumstances.
In addition, as discussed in the NPRM, DHS has taken care to
address the potential collateral effects of this rule on the public,
including potential chilling effects, by including a range of important
provisions. For instance, this rule includes a clear list of statutory
exemptions from the public charge ground of inadmissibility; excludes
consideration of a noncitizen's past receipt of public benefits while
in a status exempt from the public charge ground of inadmissibility;
makes clear that a noncitizen's receipt of public benefits solely on
behalf of another person (such as a U.S. citizen child) will not work
to the noncitizen's disadvantage; and excludes consideration of most
non-cash benefits (for which most noncitizens subject to the public
charge ground of inadmissibility are ineligible), except in the limited
circumstance of long-term institutionalization at government expense.
DHS has concluded that this rule is generally consistent with
longstanding agency policy and is a reasonable interpretation of the
statutory language. DHS further intends that this rule will lead to
fair and consistent adjudications, will avoid unequal treatment of
similarly situated individuals, and will not otherwise unduly impose
barriers for noncitizens seeking admission to or adjustment of status
in the United States.\40\ Congress requires DHS to consider an
applicant's age; health; family status; assets, resources, and
financial status; and education and skills as part of the public charge
inadmissibility determination. In the NPRM, DHS proposed to include an
objective, data-informed consideration in the totality of the
circumstances analysis and is retaining this consideration in this
final rule. Namely, when DHS issues guidance to officers that informs
the totality of the circumstances assessment, such guidance will
consider how these factors affect the likelihood that a noncitizen will
become a public charge at any time, and will be based on an empirical
analysis of the best-available data as appropriate. The nature of the
public charge inadmissibility determination under this rule--a
prospective determination made in the totality of the circumstances
``in the opinion'' of the immigration officer--renders it amenable to
sub-regulatory guidance that identifies a range of nonbinding
considerations and can be updated to account for advancements in the
best-available data. DHS acknowledges that it cannot eliminate the
possibility of officer bias, but USCIS adjudicators are trained
professionals and as with other immigration determinations,
adjudicators will specifically articulate the reasons for a proposed
adverse determination and will provide an opportunity to respond.\41\
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\40\ See Executive Order (E.O.) 14012, ``Restoring Faith in Our
Legal Immigration Systems and Strengthening Integration and
Inclusion Efforts for New Americans,'' 86 FR 8277 (Feb. 5, 2021).
\41\ See 8 CFR 212.22(c).
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[[Page 55489]]
Comment: Several commenters stated that it is immoral for
immigration policy to impoverish vulnerable individuals and their
family members who are otherwise eligible for cash assistance, physical
and mental health care, nutrition, or housing benefits. One commenter
remarked that targeting social programs intended to help the general
public is a waste of resources, and appears to suggest that the
government should instead focus on people who are violating other laws.
Response: This rule is designed to adhere to, and to implement,
congressional instructions. It is not designed to impoverish
individuals or require individuals to prove their particular utility to
the U.S. economy. Consistent with the statutory directive to determine
whether a noncitizen is likely at any time to become a public charge,
this rule directs DHS to consider the past or current receipt of public
cash assistance for income maintenance and long-term
institutionalization at government expense. DHS will be doing so in the
totality of the noncitizen's circumstances, and will also take into
account the amount, duration, and recency of such receipt. Nothing in
this rule directs noncitizens to stop receiving any public benefit
considered in this rule, and past or current receipt of public benefits
is not alone dispositive of whether or not a noncitizen will be
determined to be inadmissible on the public charge ground. While the
commenter did not explain why they thought this rule targets social
programs or in which way, DHS disagrees with the statement that the
NPRM or this final rule ``targets'' social programs. Nothing in this
rule affects eligibility for any one or more public benefits. Instead,
DHS is simply establishing which public benefits it will consider in
public charge inadmissibility determinations. The benefits that DHS is
considering in this rule are the benefits it believes are more
indicative of whether a noncitizen is likely to become primarily
dependent on the government for subsistence.
DHS is also seeking to ensure that to the extent consistent with
law, the rule will not unduly interfere with the receipt of public
benefits, especially by those who are not subject to the public charge
ground of inadmissibility. DHS has given consideration to the potential
chilling effects of promulgating regulations governing the public
charge inadmissibility determination. In considering such effects, DHS
has taken 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 (as well as the minimal number of denials of applications for
adjustment of status based on the public charge ground of
inadmissibility,\42\) and public comments on chilling effects received
in response to the August 2021 ANPRM and the NPRM. To this end, DHS has
determined that public charge inadmissibility determinations will be
limited to the specified statutory factors; the Affidavit of Support
Under Section 213A of the INA where required; and current and/or past
receipt of TANF; SSI; State, Tribal, territorial, or local cash benefit
programs for income maintenance and long-term institutionalization at
government expense.
---------------------------------------------------------------------------
\42\ In the NPRM, DHS acknowledged that notwithstanding
``widespread indirect effects [of the 2019 Final Rule], 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).'' 87 FR at 10571 (Feb. 24, 2022).
---------------------------------------------------------------------------
Comment: A commenter stated that noncitizens who enter the United
States on nonimmigrant visas for certain periods of time have already
shown that they can provide for themselves and these noncitizens also
do not usually have the right to obtain public benefits. That commenter
stated that the likelihood those individuals would become a public
charge is extremely low because they have no choice but to support
themselves or rely on their families. The commenter also stated that
immigrants contribute to our society economically and to limit
immigration is to limit economic growth, citing a 2019 report by the
Center on Budget and Policy Priorities.\43\ Another commenter stated
that DHS should do more to reduce barriers to obtaining lawful
immigration status because doing so also creates positive
externalities, including improved efficiency in the labor market, the
creation of new business by immigrants, the filling of less desirable
labor positions and economic gains from growth, earnings, tax revenues
and jobs.
---------------------------------------------------------------------------
\43\ See Arloc Sherman et al., ``Immigrants Contribute Greatly
to U.S. Economy, Despite Administration's `Public Charge' Rule
Rationale,'' Center on Budget and Policy Priorities (Aug. 15, 2019),
<a href="https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations">https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations</a> (last
visited July 7, 2022).
---------------------------------------------------------------------------
Response: DHS agrees with the commenter who pointed out that many
noncitizens, including those present in the United States in
nonimmigrant status, are not eligible for certain public benefits.
PRWORA, which was passed in 1996, significantly restricted noncitizens'
eligibility for many Federal, State, and local public benefits.\44\ In
the NPRM, DHS included a table listing 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.\45\ DHS presents the table again here, for
background purposes only. The table should not be used to determine
benefits eligibility.\46\
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\44\ Public Law 104-193, tit. IV, 8 U.S.C. 1601 through 1646.
\45\ 87 FR 10570, 10583 (Feb. 24, 2022).
\46\ DHS included this table in the NPRM and welcomed proposed
clarifications or corrections, but received no substantive comments.
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[[Page 55490]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.008
[[Page 55491]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.009
DHS notes that while the commenter focused on nonimmigrants, this
rule will apply only to noncitizens applying for admission or
adjustment of status. As discussed elsewhere in this preamble,
including sections III.D.3.b. and III.F., unlike the 2019 Final Rule,
this rule does not apply to nonimmigrants seeking extension of stay or
change of status in the United States.
DHS has concluded that this rule will faithfully administer the
public charge ground of inadmissibility. As compared to the 1999
Interim Field Guidance, the rule does not necessarily reduce burdens
for applicants, but will provide important clarity and predictability
as part of DHS's overall efforts to reduce barriers for applicants for
admission and adjustment of status. As compared to the 2019 Final Rule,
this rule does reduce burdens, including the direct paperwork burden
imposed on applicants. Under this rule, DHS will not require a separate
information collection form regarding the public charge ground of
inadmissibility but will instead incorporate a more manageable set of
questions in Form I-485, Application to Register Permanent Residence or
Adjust Status, that will collect public charge-related information from
applicants who are subject to section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4).
DHS also notes that while the public charge ground of
inadmissibility and this final rule include the consideration of an
applicant's education and skills when assessing the likelihood at any
time of becoming a public charge, DHS is not engaging in an analysis of
the utility of a noncitizen to the U.S. labor market nor assessing the
impact of an applicant for admission or adjustment of status on the
broader U.S. economy. DHS addresses the economic impacts of this rule
later in this preamble.
Comment: One commenter stated that the rule places a
disproportionate burden on noncitizens to avoid assistance, where U.S.
citizens can use cash assistance and long-term institutionalization,
such as a nursing home, without penalty, and also stated that using
cash assistance and institutionalization does not automatically
disqualify a person from being a productive member of society. Another
commenter stated that the rule imposes undue immigration restrictions.
Response: As a matter of law, the public charge ground of
inadmissibility applies to noncitizens and not to citizens. It is
therefore not inconsistent with law that a rule implementing the public
charge ground of inadmissibility would affect noncitizens most
directly. In developing this rule, DHS has taken into account the
chilling effects historically associated with the public charge ground
of inadmissibility \47\ and has created a rule that remains faithful to
the statutory text and the underlying Congressional purpose, while
remaining cognizant of the provisions of PRWORA restricting the use of
certain public benefits by certain groups of noncitizens. In this final
rule, DHS specifically indicates that public charge inadmissibility
determinations must be based on the totality of the individual's
circumstances and no one factor, other than the lack of a sufficient
Affidavit of Support Under Section 213A of the INA, if required, should
be the sole criterion for determining an applicant is likely at any
time to become a public charge.\48\
---------------------------------------------------------------------------
\47\ See, e.g., 87 FR at 10587-10592 (Feb. 24, 2022).
\48\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------
Comment: One commenter stated that this rule will effectively
criminalize poverty and correspond to an increased number of
noncitizens who reside in the United States without lawful status
because those more likely to become public charges in the future are
not likely to be able to afford the cost of departing the United
States.
Response: DHS disagrees that this rule will effectively criminalize
poverty. The public charge ground of inadmissibility is not a criminal
statute, and only applies to individuals when they apply for visas,
admission, or adjustment of status. DHS is under an obligation to
faithfully administer section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), regardless of whether DHS issues implementing
regulations.\49\ This rule is intended to apply the public charge
ground of inadmissibility in a manner that is consistent with the law,
is clear, fair, and comprehensible, and takes into account the chilling
effects resulting from previous policies on both noncitizens and U.S.
citizens. DHS notes that this rule does not create a new ground of
inadmissibility to which noncitizens are subject.
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\49\ In fact, the vast majority of the grounds of
inadmissibility at section 212 of the INA, 8 U.S.C. 1182, have not
been implemented by regulation at all, but are administered and
enforced by DHS based on the statute.
---------------------------------------------------------------------------
It is unclear why the above commenter believes that a rule
implementing the public charge ground of inadmissibility would increase
the number of noncitizens who reside in the United States unlawfully.
The comment implies a connection between the rule discouraging public
benefit use by noncitizens and those noncitizens being unable to afford
the travel costs to depart the United States. DHS notes that the great
majority of noncitizens are either ineligible for the public benefits
covered by this rule prior to admission or adjustment of status or are
eligible for those benefits but are exempt from a public charge
inadmissibility determination under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4). Given this, DHS believes it is unlikely that
noncitizens would remain in the United States unlawfully as a result of
the rule
[[Page 55492]]
rendering them unable to afford travel costs as the commenter suggests.
Comment: Some commenters stated that the rule is ``ineffective''
and will encourage the use of public benefits by noncitizens while
rendering the public charge ground of inadmissibility ``useless.''
Commenters wrote that, if finalized, the rule will be an incentive for
more immigration to the United States by noncitizens who will rely on
public benefits without fear of repercussions as they build their lives
in the United States and eventually seek to obtain lawful status. They
further stated that any changes to the proposed rule that create the
appearance of facilitating access to public benefits will only attract
more immigration during a time when many noncitizens are entering
unlawfully at the southern border.
Another commenter stated that immigrant families may include many
family members, which can lead to higher taxes at the State and local
level to support education if the children are non-English speaking.
Commenters stated that the rule is more concerned with chilling effects
but should be concerned with the national value of self-sufficiency
established by Congress in more than a century of statutes, a concern
also addressed elsewhere in this preamble.
Response: DHS disagrees that the rule is ineffective or will
encourage the use of public benefits by noncitizens who are subject to
the public charge ground of inadmissibility.
The rule establishes appropriate definitions and regulatory
standards, and is accompanied by form changes that will allow DHS to
collect information from applicants to make determinations under the
public charge ground of inadmissibility. Under this rule, DHS will
determine whether any noncitizen who Congress has decided is subject to
the public charge ground of inadmissibility is 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
making this determination, DHS considers the statutory factors, an
Affidavit of Support Under Section 213A of the INA if required, and the
applicant's current and/or past receipt of public cash assistance for
income maintenance or long-term institutionalization at government
expense, in the totality of the circumstances.\50\ It is apparent from
DHS's approach in this rule, which considers public benefits receipt
both as part of the definition for likely at any time to become a
public charge as well as when making the public charge inadmissibility
determination in the totality of the circumstances, that commenters'
concern that this rule will render the public charge ground of
inadmissibility ``ineffective'' or ``useless'' is unfounded.
---------------------------------------------------------------------------
\50\ See 8 CFR 212.22(a).
---------------------------------------------------------------------------
DHS notes that the commenters' preferred approach--the 2019 Final
Rule or something similar--ultimately did not result in a single denial
of adjustment of status on public charge grounds, although that rule
apparently resulted in widespread disenrollment effects among those who
were not covered by that rule to begin with.\51\ To the extent that
commenters suggest that the effectiveness of this rule should be
measured by disenrollment effects among those who are not subject to
the public charge ground of inadmissibility, or that DHS must pursue
public charge rulemaking for the sake of, or without regard to,
disenrollment effects among that population, DHS respectfully
disagrees. Reducing costs by causing confusion among those who are not
covered by the rule, leading them to forgo benefits for which they are
eligible, would not be a desirable effect even if the rule were found
to have that effect.
---------------------------------------------------------------------------
\51\ See, e.g., 87 FR at 10589 (Feb. 24, 2022).
---------------------------------------------------------------------------
As discussed in the NPRM,\52\ noncitizens who are subject to the
public charge ground of inadmissibility are generally not eligible for
public benefits. PRWORA significantly restricted noncitizens'
eligibility for many Federal, State, and local public benefits.\53\
PRWORA defines the term ``Federal public benefit'' \54\ and provides
that an ``alien'' who is not a ``qualified alien'' is ineligible for
such benefits,\55\ subject to certain exceptions.\56\ Among the
exceptions established by Congress are eligibility among all
noncitizens for 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 communicable disease.\57\ 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, DOJ published a notice of final order, ``Final Specification of
Community Programs Necessary for Protection of Life or Safety Under
Welfare Reform Legislation,'' \58\ 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.
---------------------------------------------------------------------------
\52\ See 87 FR at 10580 (Feb. 24, 2022).
\53\ Public Law 104-193, tit. IV, 8 U.S.C. 1601 through 1646.
\54\ Public Law 104-193, sec. 401(c), 8 U.S.C. 1611(c).
\55\ Public Law 104-193, sec. 401(a), 8 U.S.C. 1611(a).
\56\ Public Law 104-193, sec. 401(b), 8 U.S.C. 1611(b).
\57\ See Public Law 104-193, sec. 401(b)(1), 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).
\58\ 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).
---------------------------------------------------------------------------
Under this rule, DHS will determine if a noncitizen is 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. This rule does not change eligibility for public
benefits. Rather, officers will consider a noncitizen's past or current
receipt of public cash assistance for income maintenance or long-term
institutionalization at government expense when making public charge
inadmissibility determinations.
DHS also disagrees that the rule is likely to meaningfully change
the overall volume of immigration, including unlawful migration. This
rule certainly does not create any greater incentive for unlawful
migration than PRWORA (which noted congressional concern with such
incentives, and also created benefits eligibility rules for noncitizens
to address them, at least in part) or the various subsequent statutory
exceptions to PRWORA's general framework. The commenters provided no
objective evidence that any of the above policies resulted in a
significant increase in immigration, let alone objective evidence that
this rule will have that effect. Even if this rule had a minor effect
on immigration, due to the misperception that it alters the impact of
the receipt of benefits by noncitizens residing in the United States
unlawfully, DHS would still issue it because the rule is generally
consistent with longstanding agency policy and is
[[Page 55493]]
a faithful interpretation of the statutory phrase ``likely at any time
to become a public charge''; avoids unnecessary burdens on applicants,
officers, and benefits-granting agencies; and mitigates 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 with
respect to individuals who are not subject to the public charge ground
of inadmissibility. As previously noted, this rule has no effect on the
limited eligibility of noncitizens for public benefits under PRWORA or
any other statute, and for this reason does not have an impact on the
availability of public benefits to noncitizens in the United States.
Nor should it create an incentive for immigration to the United States.
DHS acknowledges that some non-cash benefits programs involve
significant expenditures of government funds, but has concluded that
the term ``public charge'' is best interpreted by reference to the
degree of an individual's dependence on the government for support,
rather than the scale of overall government expenditures for particular
programs. DHS further discusses the impact of this rule on States'
social welfare budgets later in this preamble.
Finally, DHS notes that the commenter provided no data or sources
for their statement that immigrants have larger families, which can
lead to higher State and local taxes based on education costs. Under
this rule, DHS will consider family status and household size as
consistent with the standards in the proposed rule to determine whether
an individual is likely at any time to become a public charge; it will
not rely on generalizations about the relative size of immigrant
households when considering family status.
D. Comments Regarding Legal Authority and Statutory Provisions
1. Statutory Text, Congressional Intent, and the Proposed Rule
Comment: Some commenters said that DHS should be focused on self-
sufficiency, with some stating that the rule contradicts Congress'
intent, as set forth in 8 U.S.C. 1601,\59\ that noncitizens be self-
sufficient, and not rely on public resources to meet their needs, but
instead rely on their own skills and the resources of their families,
their sponsors, and private organizations. These commenters further
stated that the rule is inconsistent with 8 U.S.C. 1601 because it
incentivizes immigration through the availability of public benefits
rather than addressing ``the government's interest in ensuring
noncitizens are self-reliant in accordance with national immigration
policy.'' Another commenter stated that current eligibility rules for
public assistance and unenforceable financial support agreements have
not lived up to the intent of the laws to prevent individual
noncitizens burdening the public benefits system. A commenter also
stated that the role of the Executive Branch is to enforce the laws
written by Congress, and suggested that this rule is not enforcing
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and is suspending
and dispensing with the ground. A commenter stated that the rule's
interpretation of public charge violates the statute's text, intent,
and legislative history. A commenter stated that the proposed rule
``fails to address the compelling government interest to enact new
rules for eligibility and sponsorship agreements in order to assure
that noncitizens be self-reliant in accordance with national
immigration policy.'' The commenter also requested DHS remove the
``incentives'' of the proposed rule and instead provide enforceable
consequences to prevent further abuse of already strained public
resources.
---------------------------------------------------------------------------
\59\ Public Law 104-193, sec. 400, 8 U.S.C. 1601.
---------------------------------------------------------------------------
Response: USCIS agrees that self-sufficiency is a principle
discussed in 8 U.S.C. 1601,\60\ and that subsection (2) of this
provision states that ``it continues to be the immigration policy of
the United States that aliens within the Nation's borders not depend on
public resources to meet their needs.'' \61\ DHS disagrees that this
rule contradicts Congress' intent with respect to those principles. The
principles of self-sufficiency articulated in 8 U.S.C. 1601(2) are
reflected in a range of statutory measures including, most directly,
those measures specifically referenced in 8 U.S.C. 1601 itself. In that
section, immediately after articulating the above policy, Congress--
---------------------------------------------------------------------------
\60\ 8 U.S.C. 1601(1).
\61\ 8 U.S.C. 1601(2)(A).
---------------------------------------------------------------------------
<bullet> expressed concern that ``[d]espite the principle of self-
sufficiency, aliens have been applying for and receiving public
benefits from Federal, State, and local governments at increasing
rates''; \62\
---------------------------------------------------------------------------
\62\ 8 U.S.C. 1601(3) (emphasis added).
---------------------------------------------------------------------------
<bullet> concluded that ``[c]urrent eligibility rules for public
assistance and unenforceable financial support agreements have proved
wholly incapable of assuring that individual aliens not burden the
public benefits system''; \63\
---------------------------------------------------------------------------
\63\ 8 U.S.C. 1601(4) (emphasis added).
---------------------------------------------------------------------------
<bullet> identified ``a compelling government interest to enact new
rules for eligibility and sponsorship agreements in order to assure
that aliens be self-reliant in accordance with national immigration
policy,'' and ``to remove the incentive for illegal immigration
provided by the availability of public benefits''; \64\ and
---------------------------------------------------------------------------
\64\ 8 U.S.C. 1601(5)-(6) (emphases added).
---------------------------------------------------------------------------
<bullet> stated that ``[w]ith respect to the State authority to
make determinations concerning the eligibility of qualified aliens for
public benefits in this chapter, a State that chooses to follow the
Federal classification in determining the eligibility of such aliens
for public assistance shall be considered to have chosen the least
restrictive means available for achieving the compelling governmental
interest of assuring that aliens be self-reliant in accordance with
national immigration policy.'' \65\
---------------------------------------------------------------------------
\65\ 8 U.S.C. 1601(7) (emphasis added).
---------------------------------------------------------------------------
In short, Congress tied the statement of national policy most
closely to two types of actions that have already been taken by
Congress itself: further restrictions on noncitizen eligibility for
public benefits and enhanced enforceability of the Affidavit of Support
Under Section 213A of the INA. Neither of those actions is changed at
all by this rule, nor does this rule interfere in any respect with a
State's ability to follow the Federal classification in determining the
eligibility of noncitizens for public assistance.
DHS acknowledges a relationship between the statement of national
policy and the public charge ground of inadmissibility. The two
statutes relate to a similar subject matter; Congress has tied the
Affidavit of Support Under Section 213A of the INA to the public charge
ground of inadmissibility; and Congress enacted the statement of
national policy close in time with revisions to the public charge
ground of inadmissibility. But Congress left it to DHS (and other
agencies administering the public charge ground of inadmissibility) to
specify how best to account for this statement of national policy in
the context of a public charge inadmissibility determination generally.
DHS notes that while the policy goals articulated in 8 U.S.C. 1601(2)
with respect to self-sufficiency and the receipt of public benefits
inform DHS's administrative implementation of the public charge ground
of inadmissibility, DHS believes it is permitted to consider other
important goals in implementing this ground of inadmissibility, such as
[[Page 55494]]
clarity, fairness, national resilience, and administrability. Moreover,
DHS believes that this rule is consistent with the goals set forth in 8
U.S.C. 1601.\66\ Indeed, the rule's consideration of receipt of public
cash assistance for income maintenance or long-term
institutionalization at government expense helps ensure that DHS
focuses its public charge inadmissibility determinations on applicants
who are likely to become primarily dependent on the government for
subsistence. As with all grounds of inadmissibility, DHS is bound to
administer and enforce the public charge ground of inadmissibility, but
DHS is not bound to issue regulations with respect to each and every
ground. In fact, such regulations are exceedingly rare. To whatever
extent 8 U.S.C. 1601(2) calls for a more systematic implementation of
the public charge ground of inadmissibility, DHS has accomplished that
goal through this rulemaking.
---------------------------------------------------------------------------
\66\ 87 FR at 10611 (Feb. 24, 2022).
---------------------------------------------------------------------------
DHS also disagrees that, in publishing this rule, it is declining
to enforce section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and is
suspending and dispensing with the ground of inadmissibility. Contrary
to this commenter's assertion, and as noted in the NPRM,\67\ this rule
reflects DHS's faithful administration of the public charge ground of
inadmissibility without making it needlessly difficult for individuals
to apply for adjustment of status or obtain supplemental services for
which they are eligible. This rule is wholly consistent with section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and 8 U.S.C. 1601, as well
as longstanding case law (as discussed at length below), mirrors the
approach the Executive Branch used in enforcing the provision for two
decades, and provides a rule that is clear and fair to administer.
---------------------------------------------------------------------------
\67\ 87 FR at 10611 (Feb. 24, 2022).
---------------------------------------------------------------------------
In addition, while commenters state that DHS has failed to
adequately account for government interests and the costs of
noncitizens receiving public benefits, commenters critical of the
proposed policy have not provided data that illustrate how and to what
extent noncitizens subject to the public charge ground of
inadmissibility are drawing on limited government resources that fund
the public benefit programs DHS is excluding from consideration in
public charge inadmissibility determinations. Furthermore, as DHS
explained in the NPRM, even during the period when the 2019 Final Rule
was in effect, when DHS took into consideration a broader list of
public benefits, that approach ultimately did not result in any denials
of applications for adjustment of status based on the public charge
ground of inadmissibility.
With respect to public comments that stated that current
sponsorship agreements are ``unenforceable'' and that DHS has failed to
propose or enact new rules for eligibility and sponsorship agreements
to assure that noncitizens be self-reliant in accordance with national
immigration policy, such comments are largely outside the scope of the
proposed rule, which (like the 2019 Final Rule) did not include any
changes on those topics. In addition, DHS notes that an Affidavit of
Support Under Section 213A of the INA is enforceable by statute.\68\
Although DHS may issue regulations governing the Affidavit of Support
process, Congress has not tasked DHS with the enforcement of the
Affidavit of Support Under Section 213A of the INA; such enforcement
may be sought by the sponsored immigrant or by ``the appropriate
nongovernmental entity which provided such benefit or the appropriate
entity of the Federal Government, a State, or any political subdivision
of a State.'' \69\
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\68\ INA sec. 213A, 8 U.S.C. 1183a.
\69\ INA sec. 213A(a)(1)(B), (b)(1)(A); 8 U.S.C. 1183a(a)(1)(B),
(b)(1)(A).
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The commenters who opposed the proposed rule on this basis also did
not provide data showing how many sponsored immigrants \70\ actually
receive public benefits, and how often benefits-granting agencies have
enforced sponsorship obligations.\71\
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\70\ See 8 CFR 213a.1 (``Sponsored immigrant means any alien who
was an intending immigrant, once that person has been lawfully
admitted for permanent residence, so that the affidavit of support
filed for that person under this part has entered into force.'').
\71\ DHS notes that in a proposed rule, ``Affidavit of Support
on Behalf of Immigrants,'' 85 FR 62432 (Oct. 2, 2020), which was
withdrawn on March 22, 2021, see ``Affidavit of Support on Behalf of
Immigrants,'' 86 FR 15140 (Mar. 22, 2021), DHS acknowledged that it
did ``not have data on reimbursement efforts or successful
recoveries by benefits granting agencies. USCIS receives limited
information from benefit granting agencies or other parties
enforcing the Affidavit [Of Support Under Section 213A of the INA or
Contract [Between Sponsor and Household Member], despite the
information sharing provisions in the statute and regulations and
thus is unable to determine whether the proposed rule's benefits are
likely to exceed its costs.'' See ``85 FR at 62453 (Oct. 2, 2020).
---------------------------------------------------------------------------
While DHS agrees that it did not propose in the NPRM to enact new
rules related to the Affidavit of Support Under Section 213A of the
INA, and notwithstanding that, changes to the Affidavit of Support
regulations at 8 CFR part 213a would be outside the scope of this
rulemaking, DHS observes that such changes would not be necessary to
ensure that applicants for admission or adjustment of status will not
become primarily dependent on the government for subsistence. This is
because determining whether an applicant is likely at any time to
become a public charge based on a review of the statutory minimum
factors is separate and distinct from both determining the sufficiency
of an Affidavit of Support Under section 213A of the INA and enforcing
the sponsorship obligation and related reimbursement requirements that
attach once the intending immigrant is admitted as a lawful permanent
resident (although, as noted throughout this rule, there is a
relationship between the two statutes, and the lack of a sufficient
Affidavit of Support Under Section 213A of the INA, if required,
renders a noncitizen inadmissible under the public charge ground of
inadmissibility).
Furthermore, the obligations and requirements related to the
affidavit do not go into effect until after the public charge
inadmissibility determination has already been made and the intending
immigrant has been admitted as an immigrant or granted adjustment of
status. Even if changes to such regulations had been contemplated in
the proposed rule, DHS would decline to include any provisions
regarding enforcement of the support obligation as part of the public
charge inadmissibility determination, in part because they would be
unduly cumbersome to incorporate into the predictive public charge
inadmissibility determination.
Comment: One commenter expressed support for the rule, noting that
diminishing chilling effects among groups of immigrants who are
eligible for public benefits and not subject to the public charge
ground of inadmissibility serves both the public welfare and
Congressional intent, as stated in 7 U.S.C. 2011 and the United States
Housing Act of 1937. The commenter cited 7 U.S.C. 2011, quoting the
statute stating that ``[i]t is declared to be the policy of Congress,
in order to promote the general welfare, to safeguard the health and
well-being of the Nation's population by raising levels of nutrition
among low-income households.'' The commenter also cited and quoted the
United States Housing Act of 1937 stating that assistance under the
Housing Act advances ``the national policy of the United States to
promote the general welfare'' to help States and localities ``remedy
the unsafe and insanitary housing conditions and the acute shortage of
decent, safe, and sanitary dwellings for families of low income, in
rural or urban communities, that are injurious to the health, safety,
[[Page 55495]]
and morals of the citizens of the Nation.'' \72\
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\72\ Public Law 75-412, sec. 1, 50 Stat. 888, 888 (Sept. 1,
1937).
---------------------------------------------------------------------------
Response: In promulgating this final rule, DHS is implementing the
public charge ground of inadmissibility in a way that is consistent
with the statutory text of and Congressional intent underlying section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), while also ensuring that the
implementing regulations are clear, fair, and understandable for the
public and officers. As discussed in the NPRM, when deciding which
public benefits to consider when looking at past or current receipt of
public benefits for the purpose of making public charge inadmissibility
determinations, DHS determined that it should not consider special
purpose and supplemental programs such as SNAP and affordable housing
programs. DHS agrees with the commenter that programs such as SNAP and
housing assistance contribute to the well-being of both low-income
individuals and communities at large and assist individuals in
ultimately depending on themselves and their families and sponsors
rather than the government for subsistence. While DHS notes that very
few categories of noncitizens who are subject to the public charge
ground of inadmissibility are eligible for SNAP and housing benefits,
DHS notes that the exclusion of SNAP and housing benefits from public
charge inadmissibility determinations may also reduce the chilling
effects among individuals who are not subject to the public charge
ground of inadmissibility but who were deterred from enrolling or
continuing to receive those benefits due to confusion about the 2019
Final Rule.
Comment: Several commenters stated that the rule ignores
Congressional intent dating back to the late nineteenth century, relies
on interim guidance that was never meant to be the equivalent of a
final rule, and seeks to narrowly define critical concepts including
``public charge'' and the types of public benefits used in a public
charge inadmissibility determination.
Response: First, DHS disagrees with the commenters who argued that
the NPRM's definition of ``public charge'' conflicts with longstanding
Congressional intent. Further discussion of how the NPRM's and this
rule's standard aligns with long-standing congressional intent is
discussed below in this same section in response to other comments.
In addition, DHS disagrees with how these commenters characterized
the government's longstanding policy with respect to the public charge
ground of inadmissibility. While DHS acknowledges that the 1999 Interim
Field Guidance was interim guidance and not a final rule, the
Government has interpreted the public charge ground of inadmissibility
consistent with that guidance for over 20 years, with the exception of
the short period of time during which the 2019 Final Rule was in
effect. Accordingly, it is reasonable that DHS reviewed and considered
the guidance's provisions when developing the NPRM and this rule. At
the same time, DHS disagrees with any insinuation by commenters that
DHS did not independently consider the merits of the guidance when
developing this rule. Although this rule ultimately adopts portions of
the guidance as regulations, DHS did not simply adopt the guidance
wholesale without further analysis, and, in fact, there are a number of
differences between the guidance and this rule.\73\ Ultimately, as
explained in the NPRM, DHS believes that the approach taken by the 1999
Interim Field Guidance, as further refined in the NPRM and this final
rule, reflects a reasonable interpretation of the public charge ground
of inadmissibility and is consistent with the statutory text and with
Congressional intent, and longstanding caselaw.
---------------------------------------------------------------------------
\73\ See, e.g., 8 CFR 212.22(a)(4) (providing specific guidance
that was not in the 1999 guidance regarding the treatment of
disabilities in the context of public charge adjudications); 8 CFR
212.21 (providing definitions for key terms, including ``receipt (of
public benefits)''and ``household.'').
---------------------------------------------------------------------------
DHS has determined that not all public benefits should be
considered in public charge inadmissibility determinations because,
among other things, not all benefits are equally indicative of primary
dependence on the government for subsistence. For one thing, as
discussed in more detail later in the preamble, many modern public
benefit programs take the form of payments or in-kind benefits to help
individuals meet particular needs and are not limited to individuals
without a separate primary means of support. For another, as both the
1999 Interim Field Guidance and the NPRM explained, under PRWORA, most
noncitizens are not eligible for most types of public benefits.
Moreover, most categories of noncitizens eligible for public benefits
under PRWORA are also statutorily exempt from the public charge ground
of inadmissibility.\74\ In addition, and as discussed in more detail
elsewhere in this rule, some public benefits like public housing and
SNAP assist individuals and families to remain employed and support
themselves and their families but are on their own insufficient to meet
all or even a substantial portion of their needs. This point is
illustrated in the case of SNAP; as USDA informed DHS in its on-the-
record letter, SNAP is supplemental in nature; SNAP benefits are
relatively modest; and most SNAP supports work.\75\ In short, the
benefits excluded from consideration under this rule are less probative
of primary dependence than the benefits that are considered; their
consideration would add scant value for officers while--as detailed
elsewhere--deterring noncitizens and their families (including U.S.
citizens and those not subject to the public charge ground of
inadmissibility) from seeking benefits for which they are eligible.
Nothing in the statute dictates that receipt of such supplemental or
special-purpose benefits must be considered for public charge
inadmissibility determinations.
---------------------------------------------------------------------------
\74\ See, e.g., Cook County v. Wolf, 962 F.3d 208, 236-37 (7th
Cir. 2020) (Barrett, J., dissenting) (``The upshot is that the [2019
Final Rule] will rarely apply to a noncitizen who has received
benefits in the past . . . . Notwithstanding all of this, many
lawful permanent residents, refugees, asylees, and even naturalized
citizens have disenrolled from government-benefit programs since the
public charge rule was announced. Given the complexity of
immigration law, it is unsurprising that many are fearful about how
the rule might apply to them. Still, the pattern of disenrollment
does not reflect the rule's actual scope.'').
\75\ See Letter from USDA Deputy Under Secretary on Public
Charge (Feb. 15, 2022), <a href="https://www.regulations.gov/document/USCIS-2021-0013-0199">https://www.regulations.gov/document/USCIS-2021-0013-0199</a> (last visited July 12, 2022).
---------------------------------------------------------------------------
Comment: One commenter stated concern that the proposed rule
mentioned that ``Congress has sought to exclude noncitizens who pose a
threat to the safety or general welfare of the country,'' and expressed
concern that such exclusion may be based on a range of acts,
conditions, or conduct that would cause a noncitizen to be excluded
during a public charge inadmissibility determination.
Response: This comment quotes the NPRM, which in turn quotes Fiallo
v. Bell,\76\ for the encapsulation of the government's general
authority over inadmissibility and exclusion of noncitizens from the
United States. While this statement is contained in the NPRM, it was
not intended to suggest that public charge inadmissibility
determinations would be based on an unspecified range of acts,
conditions, and conduct. Rather the NPRM, and the regulatory text in
particular, included relevant definitions and factors that would be
considered were the proposal
[[Page 55496]]
contained therein to be finalized in a final rule. Such definitions and
factors are also in this final rule. USCIS intends to issue additional
guidance for officers and the public to further clarify how these
definitions and factors should be applied in individual public charge
inadmissibility determinations.
---------------------------------------------------------------------------
\76\ 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.' '').
---------------------------------------------------------------------------
Comment: One commenter stated that the rule's definition of
``likely at any time to become a public charge'' is in line with
Congressional intent and that the public charge test was never designed
to prevent immigration of low- and moderate-income families who may at
some point need access to public programs to overcome temporary
setbacks. In addition, twenty-six members of Congress submitted a joint
comment from the House Judiciary Committee indicating that the rule is
consistent with the intent of Congress to apply the public charge
ground of inadmissibility to those who are primarily dependent on the
government for subsistence, and urged DHS to finalize the rule as it
will provide certainty to applicants and petitioners navigating our
immigration system. Another commenter stated that DHS should reject any
assertion that the definitions of ``public charge'' in the 1933 and
1951 editions of Black's Law Dictionary, and a 1929 immigration
treatise, Arthur Cook et al., Immigration Laws of the United States
Sec. 285 (1929)), show that receipt of ``any'' amount of public
benefits historically rendered the recipient a public charge. The
commenter stated that all three of these sources mistakenly rely on a
single case, Ex Parte Kichmiriantz (involving a noncitizen who had been
institutionalized and was ``unable to care for himself in any
way.'').\77\ The commenter stated that contrary to what the three
sources indicate, Kichmiriantz reflects the consistent historical focus
of the term on those unable to care for themselves and without other
support.
---------------------------------------------------------------------------
\77\ 283 F. 697 (N.D. Cal. 1922).
---------------------------------------------------------------------------
Response: DHS generally agrees with these commenters. As an initial
matter, DHS acknowledges that Congress has never, in enacting or
reenacting the public charge ground of inadmissibility, defined
``public charge,'' ``likely to become a public charge,'' or ``likely at
any time to become a public charge.'' In the 1996 amendments, Congress
specified which factors, at a minimum, the relevant government agencies
must consider when making public charge inadmissibility determinations;
Congress did not provide a specific definition of the term ``public
charge'' or the phrase ``likely at any time to become a public
charge.'' In addition, Congress has long made clear that DHS has broad
discretion to administer and interpret the statute. The statute itself
uses the words ``in the opinion of,'' which emphasizes the
discretionary nature of the determination.\78\ The INA also authorizes
the Secretary of Homeland Security to promulgate rules to guide public
charge inadmissibility determinations.\79\
---------------------------------------------------------------------------
\78\ INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
\79\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
---------------------------------------------------------------------------
In the 2018 proposed rule, DHS indicated that its understanding of
the term ``public charge'' is consistent with various dictionary
definitions of that term.\80\ DHS stated that the [then] current
edition of the Merriam-Webster Dictionary defines public charge simply
as ``one that is supported at public expense.'' \81\ DHS further relied
on Black's Law Dictionary (6th ed.) that further defines public charge
as ``an indigent; a person whom it is necessary to support at public
expense by reason of poverty alone or illness and poverty.'' \82\ In
addition, DHS indicated that the term ``charge'' is defined in Merriam-
Webster Dictionary as ``a person or thing committed into the care of
another'' \83\ and Black's Law Dictionary defines charge as ``a person
or thing entrusted to another's care,'' e.g., ``a charge of the
estate.'' \84\ DHS concluded that the definitions generally suggest
that an impoverished or ill individual who receives public benefits for
a substantial component of their support and care can be reasonably
viewed as being a public charge. DHS also concluded that the then-
proposed definition of public charge was also consistent with the
concept of an indigent, which is defined as ``one who is needy and poor
. . . and ordinarily indicates one who is destitute of means of
comfortable subsistence so as to be in want.'' \85\ In the 2019 Final
Rule, DHS rejected commenters' assertions that its reliance on
dictionary definitions referenced in the proposed rule was flawed
because DHS failed to consider the definition of the term ``support,''
which Merriam-Webster defined as ``pay[ing] the cost of'' or
``provid[ing] a basis for the existence or subsistence of.'' \86\ DHS
indicated that the dictionary definitions did not specify the degree of
assistance, noting that the Merriam-Webster's dictionary also defines
``support'' as ``assist, help.'' \87\
---------------------------------------------------------------------------
\80\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114,
51158 (Oct. 10, 2018) (``DHS believes that a person should be
considered a public charge based on the receipt of financial support
from the general public through government funding (i.e., public
benefits). This is consistent with various dictionary definitions of
public charge and `charge' also support a definition that involves
the receipt of public benefits.'').
\81\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114,
51158 (Oct. 10, 2018) (citing Merriam-Webster Online Dictionary,
Definition of Public Charge, <a href="https://www.merriamwebster.com/dictionary/public%20charge">https://www.merriamwebster.com/dictionary/public%20charge</a>).
\82\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114,
51158 (Oct. 10, 2018) (citing Black's Law Dictionary 233 (6th ed.
1990), <a href="http://www.republicsg.info/dictionaries/1990_black">http://www.republicsg.info/dictionaries/1990_black</a>'s-law-
dictionary-edition6.pdf).
\83\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114,
51158 (Oct. 10, 2018) (citing Merriam-Webster Online Dictionary,
Definition of Charge, <a href="https://www.merriamwebster.com/dictionary/charge">https://www.merriamwebster.com/dictionary/charge</a>).
\84\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114,
51158 (Oct. 10, 2018) (citing Black's Law Dictionary, Charge (10th
ed. 2014)).
\85\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114,
51158 (Oct. 10, 2018) (citing Black's Law Dictionary 773 (6th ed.
1990), <a href="http://www.republicsg.info/dictionaries/1990_black">http://www.republicsg.info/dictionaries/1990_black</a>'s-law-
dictionary-edition6.pdf).
\86\ ``Inadmissibility and Deportability on Public Charge
Grounds,'' 84 FR 41292, 41354 (Aug. 14, 2019) (citing Webster's
Dictionary 1828 Online Edition, definition of ``charge,'' <a href="http://webstersdictionary1828.com/Dictionary/charge">http://webstersdictionary1828.com/Dictionary/charge</a>).
\87\ ``Inadmissibility and Deportability on Public Charge
Grounds,'' 84 FR 41292, 41354 (Aug. 14, 2019) (citing Merriam-
Webster Online Dictionary, Definition of Support, <a href="https://www.merriamwebster.com/dictionary/support">https://www.merriamwebster.com/dictionary/support</a>).
---------------------------------------------------------------------------
DHS continues to conclude that dictionary definitions of the
relevant terms do not dictate a specific meaning of the term ``public
charge'' nor clearly prescribe the level of dependence on the
government necessary to render a person a public charge. Although many
dictionary definitions suggest primary or total dependence on the
government for subsistence, others may be read to suggest a lesser
level of dependence.\88\
---------------------------------------------------------------------------
\88\ See also, e.g., Cook County v. Wolf, 962 F.3d 208, 223 (7th
Cir. 2020) (``Enter the dueling dictionaries. In Cook County's
corner, we have the Century Dictionary, defining a `charge' as a
person who is `committed to another's custody, care, concern or
management,' Century Dictionary 929 (William Dwight Whitney, ed.,
1889) (emphasis added); and Webster's Dictionary, likewise defining
a `charge' as a `person or thing committed to the care or management
of another,' Webster's Condensed Dictionary of the English Language
84 (Dorsey Gardner, ed., 1884). These suggest primary, long-term
dependence. In DHS's corner, we have dictionaries defining a
`charge' as `an obligation or liability,' as in a `pauper being
chargeable to the parish or town,' Dictionary of Am. and English Law
196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a
`burden, incumbrance, or lien,' Glossary of the Common Law 56
(Frederic Jesup Stimson, ed., 1881). These definitions can be read
to indicate that a lesser reliance on public benefits is enough.
Finding no clarity here, we move on.'').
---------------------------------------------------------------------------
The legislative history at the time of the first introduction of a
public charge ground of inadmissibility also does not establish a
specific definition of the term ``public charge.'' Congress first
included a public charge ground of inadmissibility in the Immigration
Act of 1882, which prohibited the entry, inter alia, of ``any person
unable to take care of himself or herself without becoming a public
charge.'' \89\ Debate in
[[Page 55497]]
the House of Representatives at the time of enactment indicates that
Congress was concerned about preventing the future immigration to the
United States of people who would depend on or would be ``committed
to'' the country's ``poor-houses and alms-houses.'' \90\ The record--
which relates to a broader list of grounds of inadmissibility, of which
public charge was only one--contains references to people committed to
poor-houses and almshouses, paupers, and people who had no earnings in
recent years and were wholly destitute, all of whom would likely be
covered by the definition adopted in this final rule.
---------------------------------------------------------------------------
\89\ 22 Stat. 214.
\90\ 13 Cong. Rec. 5109 (1882).
---------------------------------------------------------------------------
Over the years, judicial decisions interpreting the public charge
ground generally did not focus exclusively on whether noncitizens
seeking admission or adjustment of status had low earnings or were
impoverished at the time of the inadmissibility determination. Rather,
officers focused on whether, notwithstanding the current condition of
poverty, noncitizens could prospectively support themselves. For
example, in In re Feinknopf, a federal district court suggested that
evidence regarding an individual's age, profession, presence of family
members, assets, and future employability are relevant to determining
whether an immigrant is likely to become a public charge.\91\
---------------------------------------------------------------------------
\91\ 47 F. 447, 447, 451 (E.D.N.Y. 1891). The court held that
``there must be a determination by the inspection officer of the
fact that the immigrant is likely to become a public charge, made
upon competent evidence tending to show such to be the fact . . .
.''
---------------------------------------------------------------------------
In Gegiow v. Uhl, the Supreme Court concluded that a noncitizen
could not ``be declared likely to become a public charge on the ground
that the labor market in the city of his immediate destination is
overstocked.'' \92\ The court found that ``[t]he persons enumerated, in
short, are to be excluded on the ground of permanent personal
objections accompanying them irrespective of local conditions.'' \93\
In the 2019 Final Rule, DHS concluded that Gegiow did not conclusively
establish the contours of the public charge ground of
inadmissibility.\94\ DHS continues to hold that view, but believes that
the Supreme Court's statements there about the public charge ground are
nevertheless supportive of the interpretation adopted in this final
rule.
---------------------------------------------------------------------------
\92\ 239 U.S. 3, 9-10 (1915).
\93\ 239 U.S. at 10 (1915).
\94\ 84 FR 41292, 41350 n.317 (Aug. 14, 2019).
---------------------------------------------------------------------------
In 1917, Congress amended the public charge provision by moving it
to the end of a list of factors rendering an ``alien''
inadmissible.\95\ The revised statute rendered inadmissible, among
others, ``persons . . . who are . . . mentally or physically defective,
such physical defect being of a nature which may affect the ability of
such alien to earn a living; persons who have been convicted of or
admit having committed a felony or other crime or misdemeanor involving
moral turpitude; polygamists, or . . . persons likely to become a
public charge.'' \96\ Legislative history suggests that Congress may
have done so ``in order to indicate the intention . . . that aliens
shall be excluded upon [the public charge] ground for economic as well
as other reasons'' and did so, specifically, ``to overcom[e] the
decision of the Supreme Court in [Gegiow].'' \97\ Even assuming that
Congress moved the placement of the public charge provision to respond
to Gegiow, it still did not define ``public charge'' or ``likely to
become a public charge,'' leaving the application of the provision in
the hands of immigration officials and the executive branch.
---------------------------------------------------------------------------
\95\ In addition, Congress amended the immigration laws three
other times between the introduction of the public charge ground in
1882 and 1917, but none of the amendments provided a definition of
``public charge.'' See Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213;
Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898; Act of Mar. 26, 1910,
ch. 128, 36 Stat. 263.
\96\ Act of Feb. 5, 1917, ch. 29, Sec. 3, 39 Stat. 874, 875-76.
\97\ See 70 Cong. Rec. 3620 (1929).
---------------------------------------------------------------------------
DHS continues to believe that the 1917 amendments clarified that
Congress intended the Executive Branch to consider something more than
``permanent personal objections,'' and in particular to consider
certain economic factors, when making public charge inadmissibility
determinations, and does not consider this decision as limiting its
discretion to find individuals inadmissible even if there is evidence
that dependence on the government is not complete or permanent. DHS has
not designated local labor market conditions as a regulatory factor to
determine whether a noncitizen is likely at any time to become a public
charge. DHS is considering a noncitizen's education and skills, as
evidenced by their degrees, certifications, licenses, skills obtained
through work experience or educational programs, and educational
certificates. DHS may also consider other information in the record in
the totality of the circumstances, such as a noncitizen's work history,
if applicable. While there may be evidence that factors into a factual
conclusion that a particular noncitizen is likely to be wholly and/or
permanently dependent on the government for subsistence (whether based
on ``immutable'' characteristics or not), DHS's inquiry under this rule
is broader; under the rule, DHS may determine that a person is
inadmissible on public charge grounds even when the record suggests a
level of dependence that is less than complete or permanent.
In Wallis v. United States ex rel. Mannara, the Second Circuit
defined a person likely to become a public charge as ``one whom it may
be necessary to support at public expense by reason of poverty,
insanity and poverty, disease and poverty, idiocy and poverty.'' \98\
In that case, the immigrant family's primary income earner was
``certified for senility'' and thus would not be ``capable of continued
self-support.'' \99\ The court noted that the family had ``insufficient
[means] to provide for their necessary wants [for] any reasonable
length of time'' and no private sources of support.\100\ Similarly, in
Howe v. United States ex rel. Savitsky, immigration officers sought to
exclude a noncitizen under the public charge ground because the
noncitizen engaged in a dishonest practice (writing a bad check, and
being accused of selling another person's equipment and keeping the
proceeds). The Ninth Circuit indicated that it was ``convinced that
Congress meant the act to exclude persons who were likely to become
occupants of almshouses for want of means with which to support
themselves in the future. If the words covered jails, hospitals, and
insane asylums, several of the other categories of exclusion would seem
to be unnecessary.'' \101\ And in Ex parte Hosaye Sakaguchi, the Ninth
Circuit held that an immigrant woman with the skills to support herself
was not likely to become a public charge.\102\ It ruled that the
government had to present evidence of ``mental or physical disability
or any fact tending to show that the burden of supporting the
[immigrant] is likely to be cast upon the public.'' \103\ The court in
that case did not explain how much of a burden on the government would
make a person a public charge. In the 2019 Final Rule, DHS indicated
that it was aware of the Howe and Sakaguchi decisions but that it did
not believe that these cases are inconsistent with the public charge
definition set forth in the 2019 Final Rule or with the suggested link
between public charge and the receipt of public
[[Page 55498]]
benefits.\104\ DHS expressed a belief that courts generally have
quantified neither the level of public support nor the type of public
support required for purposes of a public charge inadmissibility
finding.\105\ DHS continues to agree with that broad statement; DHS
further believes that judicial and administrative decisions since the
enactment of the public charge provision are clearly consistent with a
primary dependence standard in that they focus on a noncitizen's
ability to support themselves, without treating the possibility that
the noncitizen might need publicly subsidized medical care at a
hospital, for example, as sufficient to demonstrate that the immigrant
is likely to become a public charge.
---------------------------------------------------------------------------
\98\ 273 F. 509, 510-11 (2d Cir. 1921).
\99\ 273 F. at 510 (2d Cir. 1921).
\100\ 273 F. at 510 (2d Cir. 1921).
\101\ 247 F. 292, 294 (9th Cir. 1917).
\102\ 277 F. 913, 916 (9th Cir. 1922).
\103\ 277 F. at 916 (9th Cir. 1922).
\104\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292,
41350 (Aug. 14, 2019).
\105\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292,
41350 (Aug. 14, 2019).
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In United States ex rel. De Sousa v. Day, the Second Circuit stated
that ``[i]n the face of [Gegiow] it is hard to say that a healthy adult
immigrant, with no previous history of pauperism, and nothing to
interfere with his chances in life but lack of savings, is likely to
become a public charge within the meaning of the statute.'' \106\ This
rule is consistent with that decision as well.
---------------------------------------------------------------------------
\106\ 22 F.2d 472, 473-74 (2d Cir. 1927).
---------------------------------------------------------------------------
In 1952, Congress amended the INA in a way that uses the language
of discretion: it deemed inadmissible immigrants ``who, in the opinion
of the consular officer at the time of application for a visa, or in
the opinion of the Attorney General at the time of application for
admission, are likely at any time to become public charges.'' \107\
This language clarifies the temporal dimension of the public-charge
determination, but it says nothing about the degree of assistance
required. In the special legalization provision under the Immigration
Reform and Control Act (IRCA),\108\ Congress did not define the term
``public charge,'' but provided that ``[a]n alien is not ineligible for
adjustment of status under [that provision] due to being [a public
charge] if the alien demonstrates a history of employment in the United
States evidencing self-support without receipt of public cash
assistance.'' \109\ The Immigration Act of 1990 also lacked a
definition of ``public charge.'' \110\
---------------------------------------------------------------------------
\107\ An Act to Revise the Laws Relating to Immigration,
Naturalization, and Nationality; and for Other Purposes, Public Law
82-414, sec. 212(a)(15), 66 Stat. 163, 183 (1952).
\108\ Immigration Reform and Control Act of 1986, Public Law 99-
603, 100 Stat. 3359.
\109\ Public Law 99-603, tit. II, sec. 201 (Nov. 6, 1986)
(codified at section 245A(d)(2)(B)(ii)(IV) of the INA, 8 U.S.C.
1255a(d)(2)(B)(ii)(IV)) (emphasis added); see also id. at secs. 302,
303 (similar provision for Special Agricultural Workers).
\110\ Public Law 101-649, sec. 601, 104 Stat. 4978, 5067.
---------------------------------------------------------------------------
As noted above, in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Congress for the first time
provided guidance on what factors the government agencies tasked with
administering the public charge ground of inadmissibility must consider
when determining whether a noncitizen is likely to become a public
charge.\111\ The amended provision instructs government officials ``at
a minimum'' to look at age; health; family status; assets, resources,
and financial status; and education and skills.\112\ They also could
consider whether an immigrant had an Affidavit of Support Under Section
213A of the INA from a third party.\113\ Furthermore, Congress rejected
a proposal to define ``public charge'' to cover ``any alien who
receives [means-tested public benefits] for an aggregate of at least 12
months.'' \114\
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\111\ Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-546,
3009-674 (1996).
\112\ Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-546,
3009-674 (1996).
\113\ Public Law 104-208, Div. C, sec. 531, 110 Stat. 3009-546,
3009-674 (1996).
\114\ 142 Cong. Rec. 24313, 24425 (1996).
---------------------------------------------------------------------------
During the same period that Congress amended the public charge
ground of inadmissibility through IIRIRA to add the consideration of
certain factors and enforceable affidavit of support requirements, it
also enacted PRWORA.\115\ As DHS noted in the 2019 Final Rule, language
in that statute expresses Congress's desire that immigrants be self-
sufficient and not come to the United States with the purpose of
benefitting from public welfare programs.\116\ To that end, Chapter 14
of Title 8 of the U.S. Code restricts most noncitizens from eligibility
for many federal and State public benefits. It grants most lawful
permanent residents access to means-tested public benefits only after
they have spent five years as a lawful permanent resident.\117\ But the
exclusions are not absolute. Congress specified instead that immigrants
may at any time receive emergency medical assistance; immunizations and
testing for communicable diseases; short-term, in-kind emergency
disaster relief; various in-kind services such as short-term shelter
and crisis counseling; and certain housing and community development
assistance.\118\
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\115\ Public Law 104-193 (1996), 110 Stat. 2105.
\116\ 8 U.S.C. 1601.
\117\ Public Law 104-193 (1996), secs. 401, 403, 411, 8 U.S.C.
1611, 1613, 1621, 110 Stat. 2105.
\118\ 8 U.S.C. 1611, 1613, 1621.
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In addition, a series of administrative decisions after the passage
of the INA of 1952 clarified that more than a possibility of receipt of
public benefits is needed to lead to a finding of likelihood of
becoming a public charge. The cases focused on the presence of more
``permanent'' characteristics along with a relative lack of non-
governmental sources of support. 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. . . . 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 United States
who have indicated their ability and willingness to come to his
assistance in case of emergency.\119\
---------------------------------------------------------------------------
\119\ 10 I&N Dec. 409, 421-23 (BIA 1962; Att'y Gen. 1964)
(emphasis added).
Furthermore, in Matter of Perez, the Board of Immigration Appeals
(BIA) held that ``[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.'' \120\ This decision supports
DHS's position that evidence of past or current receipt of public
benefits, alone, is not outcome determinative. In Matter of Harutunian,
the INS Regional Commissioner determined that public charge
inadmissibility 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, lack of persons in this
country willing and able to assure that the noncitizen will not need
public support, and the expectation that the noncitizen will depend on
old age assistance, a form of financial assistance for low income older
adults.\121\ In the 2019 Final Rule, DHS cited Harutunian and Matter of
Vindman \122\ for the general proposition that ``[a]bsent a clear
statutory or regulatory definition,
[[Page 55499]]
some courts and administrative authorities have tied the public charge
ground of inadmissibility to the receipt of public benefits.'' \123\
This remains DHS's view of those cases--i.e., that they are indicative
of the relatively wide ambit of DHS's interpretive authority--although
DHS also notes that both cases involved receipt of cash assistance.
---------------------------------------------------------------------------
\120\ 15 I&N Dec. 136, 137 (BIA 1974).
\121\ 14 I&N Dec. 583, 583-89 (Reg'l Comm'r 1974) (finding that
the applicant who was 70 years old, lacked means of supporting
herself, had no one responsible for her support, and who expected to
be dependent for support on old-age assistance was ineligible for a
visa, as likely to become a public charge).
\122\ Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l Comm'r
1977) 132 (``Congress intends that an applicant be excluded who is
without sufficient funds to support himself, who has no one under
any obligation to support him, and whose chances of becoming self-
supporting decrease as time passes'').
\123\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292,
41349 (Aug. 14, 2019).
---------------------------------------------------------------------------
In the 1999 Interim Field Guidance, the INS interpreted the 1996
statutory scheme by defining ``public charge'' as someone who is
``primarily dependent 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.'' \124\ Consistent with an earlier 1987 rule
addressing the IRCA \125\ legalization program,\126\ and based on input
from benefits-granting agencies, the 1999 Interim Field Guidance stated
that ``officers should not place any weight on the receipt of non-cash
public benefits (other than institutionalization) or the receipt of
cash benefits for purposes other than for income maintenance with
respect to determinations of admissibility or eligibility for
adjustment on public charge grounds.'' \127\
---------------------------------------------------------------------------
\124\ ``Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds,'' 64 FR 28689 (May 26, 1999).
\125\ Immigration Reform and Control Act of 1986, Public Law 99-
603, 100 Stat. 3359.
\126\ ``Adjustment of Status for Certain Aliens,'' 52 FR 16205,
16211-16212, 16216 (May 1, 1987).
\127\ ``Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds,'' 64 FR 28689 (May 26, 1999).
---------------------------------------------------------------------------
Following PRWORA, later statutory enactments lightened some of the
statutory restrictions on noncitizens receiving benefits, in order to
allow additional categories of these individuals to qualify for certain
benefits without a five-year waiting period.\128\
---------------------------------------------------------------------------
\128\ See Farm Security and Rural Investment Act of 2002, Public
Law 107-171, sec. 4401, 116 Stat. 34, 333 (2002); Children's Health
Insurance Program Reauthorization Act of 2009, Public Law 111-3,
sec. 214, 123 Stat. 8, 56 (2009).
---------------------------------------------------------------------------
Some of the courts in recent litigation against the 2019 Final Rule
generally agreed that the meaning of the term ``public charge'' is
ambiguous, that it has evolved over time, and that Congress granted
wide discretion to the Executive Branch to interpret that term.\129\
DHS agrees with those principles. Other courts found that the term
``public charge'' has an unambiguous meaning and/or that the 2019 Final
Rule definition was contrary to the historical understanding of that
term.\130\ This conclusion likewise does not preclude the rule at issue
here.
---------------------------------------------------------------------------
\129\ See Cook County v. Wolf, 962 F.3d 208, 226 (7th Cir. 2020)
(``[T]he question before us is not whether Cook County has offered a
reasonable interpretation of the law. It is whether the statutory
language unambiguously leads us to that interpretation. We cannot
say that it does. As our quick and admittedly incomplete overview of
this byzantine law has shown, the meaning of `public charge' has
evolved over time as immigration priorities have changed and as the
nature of public assistance has shifted from institutionalization of
the destitute and sick, to a wide variety of cash and in-kind
welfare programs. What has been consistent is the delegation from
Congress to the Executive Branch of discretion, within bounds, to
make public-charge determinations.''); id. at 248, 253 (Barrett, J.,
dissenting) (noting that ``DHS could have exercised its discretion
differently'' than it chose to do in the 2019 Final Rule and that
``the term `public charge' is indeterminate enough to leave room for
interpretation.''); Casa de Maryland v. Trump, 971 F.3d 220, 229
(4th Cir. 2020) (``[T]he public charge provision has led for almost
a century and a half a long and varied life, with different
administrations advancing varied interpretations of the provision,
depending on the needs and wishes of the nation at a particular
point in time. To be sure, the public charge provision ties alien
admissibility to prospective alien self-sufficiency. But within that
broad framework, Congress has charged the executive with defining
and implementing what can best be described as a purposefully
elusive and ambiguous term.''), rehearing en banc granted, 981 F.3d
311 (4th Cir. 2020).
\130\ See New York v. DHS, 969 F.3d 42, 74-75 (2d Cir. 2020)
(``The prevailing administrative and judicial interpretation of
`public charge' ratified by Congress understood the term to mean a
non-citizen who cannot support himself, in the sense that he `is
incapable of earning a livelihood, . . . does not have sufficient
funds in the United States for his support, and has no person in the
United States willing and able to assure that he will not need
public support[.]' . . . We think it plain on the face of these
different interpretations that the Rule falls outside the statutory
bounds marked out by Congress. . . . Whatever gray area may exist at
the margins, we need only decide today whether Congress `has
unambiguously foreclosed the [specific] statutory interpretation' at
issue. . . . And we conclude that Congress's intended meaning of
`public charge' unambiguously forecloses the Rule's expansive
interpretation. We are not persuaded by DHS's efforts to argue
otherwise.'' (internal citations omitted)); City and County of San
Francisco v. United States Citizenship and Immigration Services, 981
F.3d 742, 756-58 (9th Cir. 2020) (``From the Victorian Workhouse
through the 1999 Guidance, the concept of becoming a `public charge'
has meant dependence on public assistance for survival. Up until the
promulgation of this Rule, the concept has never encompassed persons
likely to make short-term use of in-kind benefits that are neither
intended nor sufficient to provide basic sustenance . . . For these
reasons we conclude the plaintiffs have demonstrated a high
likelihood of success in showing that the Rule is inconsistent with
any reasonable interpretation of the statutory public charge bar and
therefore is contrary to law.'').
---------------------------------------------------------------------------
With respect to commenters who indicated that Ex parte Kichmiriantz
\131\ reflects the historical understanding of the term public charge,
and does not contemplate a standard under which a person is a public
charge if they impose any level of burden upon the public, DHS agrees,
although of course that individual case is not dispositive. In that
case, the court concluded that a noncitizen who was institutionalized
in a mental hospital was not a public charge because his family was
paying for the institutionalization. The court opined that ``the words
`public charge,' as used in the Immigration Act, mean . . . a money
charge upon, or an expense to, the public for support and care.'' The
court indicated that when ``a state receives from the relatives what it
has fixed as an adequate compensation for such support,'' the
noncitizen so cared for is not a public charge, ``within the meaning of
the act,'' \132\ even if the physical condition of the person suggest a
significant level of dependence on others for their basic care. Given
that the court was opining about the meaning of the term ``public
charge'' in the context of long-term institutionalization, DHS agrees
that this case does not stand for the proposition that ``any'' reliance
on the government for subsistence would render a noncitizen likely at
any time to become a public charge, and thus inadmissible.
---------------------------------------------------------------------------
\131\ 283 F. 697, 698 (N.D. Cal. 1922).
\132\ 283 F. 697, 698 (N.D. Cal. 1922).
---------------------------------------------------------------------------
In short, DHS has determined that it is appropriate in light of the
statute's text and purpose, as well as longstanding judicial and
administrative precedent to focus on primary dependence on the
government for subsistence, and to do so by reference to public cash
assistance for income maintenance and long-term institutionalization at
government expense in particular. In addition, when considering past,
current, and future receipt of such public benefits, DHS believes it is
appropriate to take into consideration the amount, duration, and
recency of receipt along with other factors.
Comment: One commenter stated that facilitating the use of public
benefits generally by immigrants, even those who may be eligible by the
benefits' authorizing statutes, directly conflicts with Congressional
intent in enacting the public charge ground of inadmissibility, and
that the rule, which ``significantly'' raises the threshold of
permissible means-tested benefits usage for purposes of public charge
inadmissibility determinations, should be withdrawn. The commenter also
stated that Congress, in enacting PRWORA and IIRIRA very close in time,
must have recognized that it made certain public benefits available to
some noncitizens who are also subject to the public charge ground of
inadmissibility, even though receipt of such benefits could render the
noncitizen inadmissible as likely to become a
[[Page 55500]]
public charge. The commenter cited data and studies, including those
conducted by the Center for Immigration Studies,\133\ for the
proposition that a high percentage of ``immigrant-led'' households
depended on safety-net public benefit programs, and that a change in
policy by DHS could result in significant cost savings in the context
of Medicaid as well as other public benefit programs.
---------------------------------------------------------------------------
\133\ See Steven Camarota and Karen Ziegler, ``63% of Non-
Citizen Households Access Welfare Programs,'' Center for Immigration
Studies (Nov. 2018), <a href="https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs">https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs</a> (last visited Aug. 16, 2022).
---------------------------------------------------------------------------
Response: While DHS agrees with commenters that Congress was aware
that some noncitizens who are eligible for public benefits under PRWORA
are also subject to the public charge ground of inadmissibility and may
have their past or current receipt of some benefits considered in the
context of public charge inadmissibility determinations, DHS disagrees
with the suggestion that it should withdraw the proposed rule. As noted
above, the congressional statement of policy at 8 U.S.C. 1601(2)
relates most directly to other policy measures enacted (and in fact
later relaxed) by Congress, and does not mandate a specific result in
this rulemaking.
DHS believes that the rule draws reasonable distinctions consistent
with Congressional intent between cash benefits intended for income
maintenance and special-purpose and supplemental benefits intended to
help recipients remain self-sufficient. Furthermore, DHS has determined
that very few noncitizens are both eligible for public benefits and
subject to the public charge ground of inadmissibility. DHS has also
determined that a great number of households not subject to the public
charge ground of inadmissibility could be deterred from receiving
important supports (such as medical care or preventive services needed
to combat or prevent the spread of communicable disease, or
supplemental nutrition assistance for children) because of the chilling
effects that would be associated with expanding the list of public
benefits considered in making public charge inadmissibility
determinations, as this commenter suggested. DHS is uncertain how the
commenter arrived at the estimated $4.9 billion in savings in Medicaid
by the year 2030 but disagrees that any direct impacts of the rule on
the population regulated thereby would result in significant cost
savings in the context of Medicaid; rather DHS believes that the
commenter is suggesting that chilling effects that could be caused by
the rule, influencing primarily those individuals not subject to the
rule, would result in what they view as a desirable outcome and cost
savings. DHS disagrees that such a policy objective--which depends on
confusion about the scope and effect of the rule--is consistent with
Congressional intent or that it is desirable.
DHS also notes that the analysis by the Center for Immigration
Studies cited by the commenter is methodologically flawed, which
results in inflated and inaccurate estimates of benefit use. The
analysis examined benefit use by ``non-citizen-headed households''
rather than by noncitizens themselves.\134\ While that analysis showed
generally low use of SSI and TANF by such households, even those low
rates of use are misleading in the context of a public charge
inadmissibility determination. Under both the 2019 Final Rule, favored
by the commenter, and this rule, only public benefits received by the
noncitizen, where the noncitizen is listed as a beneficiary, are
considered in a public charge inadmissibility determination. Given that
this analysis cited by the commenter attributes to the noncitizen
``head of household'' any use of benefits by any member of the
household, including U.S. citizens, the rates of SSI and TANF use by
such households is unrelated to public charge inadmissibility
determinations under both the 2019 Final Rule and this rule.
---------------------------------------------------------------------------
\134\ See Steven Camarota and Karen Ziegler, ``63% of Non-
Citizen Households Access Welfare Programs,'' Center for Immigration
Studies (Nov. 20, 2018), <a href="https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs">https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs</a> (last visited Aug. 16, 2022).
---------------------------------------------------------------------------
Since Congress sharply limited the eligibility for public benefits
for noncitizens in PRWORA (and, as noted, provided exceptions to the
public charge ground of inadmissibility for most categories of
noncitizens eligible for benefits), the members of the ``non-citizen-
headed households'' actually receiving the SSI and TANF in this
analysis are most likely not the noncitizen heading the household but
rather other members of the family.
The SIPP data used by the analysts at the Center for Immigration
Studies does allow for a more accurate assessment of public benefit use
by noncitizens themselves, using individuals as the basis for analysis,
which was the approach taken by DHS in the 2019 Final Rule and in this
rule. However, the Center for Immigration Studies used household as the
basis for analysis which resulted in inflated and inaccurate estimates
of benefit use.
2. Support for Changes to the Public Charge Ground of Inadmissibility
Comment: One commenter stated that immigrants deserve a right to
benefits when they migrate because they may come to the United States
with nothing and may be migrating out of a need for survival rather
than because they feel they are entitled to benefits. This commenter
said that it is unjust to assume immigrants will be able to support
themselves shortly after leaving dangerous situations and short-term
government assistance should be an option for those experiencing
traumatic situations in their home countries. Another commenter stated
that all noncitizens should have access to public benefits, including
housing, Medicaid, food stamps, and other benefits Congress intended.
Another commenter stated that many U.S.-born citizens have needed
government assistance, so it is reasonable that immigrants starting
over in the United States would also need support from the government
and should receive that support. Another commenter stated that for
whatever reason people become public charges, they are often grateful
for the help and do the best they can to contribute back to our
society.
Response: To the extent that these commenters suggest that DHS
should, through this rulemaking, expand the public benefits available
to noncitizens, DHS disagrees. As explained in more detail above,
Congress has the authority to legislate which noncitizens are eligible
to apply for and receive Federal public benefits and did so when it
enacted PRWORA. Neither the statutory public charge ground of
inadmissibility nor this final rule govern eligibility for public
benefits. This final rule does not intend to decide or impact which
categories of noncitizens are, or should be, eligible to receive public
benefits, but rather to indicate when a noncitizen is inadmissible
under the public charge ground of inadmissibility. DHS therefore
declines to make any changes in response to these commenters.
Comment: Many commenters suggested that the public charge
inadmissibility determination should be eliminated entirely. Others
suggest that while DHS waits for Congress to eliminate the public
charge ground of inadmissibility, it should not apply it. One commenter
suggested DHS inform Congress of the ``many issues of the Public Charge
rules and regulations.'' One commenter stated that the public charge
ground of inadmissibility is dehumanizing to immigrants because it
punishes them for accessing support for basic human needs in the
adjudication
[[Page 55501]]
of immigration benefit applications. One commenter opposed the public
charge ground of inadmissibility because it is dehumanizing to force
individuals to prove their utility to the U.S. economy before
permitting them to stay in the country and implies that noncitizens are
inherently worth less than U.S. citizens. Another commenter stated that
the statute has historically been used to erect barriers to immigrants
of color.
Response: To the extent that these commenters suggest that DHS has
the authority to eliminate or ignore the public charge ground of
inadmissibility, DHS disagrees. DHS recognizes that the public charge
ground of inadmissibility could result in the denial of admission or
adjustment of status for certain applicants, but DHS notes that the
commenters' concerns with respect to the existence and structure of
this ground of inadmissibility should be directed to Congress, not to
DHS. The public charge ground of inadmissibility was established by
Congress in some of the earliest immigration laws \135\ and, as
discussed in the NPRM,\136\ has existed in its current form since
1996.\137\ As Congress has determined that all applicants for visas,
admission, and adjustment of status are inadmissible if they are
determined to be likely at any time to become a public charge, DHS is
required to apply the public charge ground of inadmissibility to all
noncitizens seeking admission or adjustment of status unless otherwise
expressly exempted by Congress.
---------------------------------------------------------------------------
\135\ Immigration Act of 1882, Public Law 47-376, 22 Stat. 214
(1882).
\136\ 87 FR at 10579 (Feb. 24, 2022).
\137\ Public Law 104-208, div. C, 110 Stat 3009-546, 3009-674.
---------------------------------------------------------------------------
However, DHS does have the authority to define ``likely at any time
to become a public charge,'' \138\ as it has in this rule, and in doing
so, decide which public benefits are considered for the purposes of
this rule.
---------------------------------------------------------------------------
\138\ See Homeland Security Act of 2002, Public Law 107-296,
sec. 102, 116 Stat. 2135, 2142 (2002) (codified at 6 U.S.C. 112);
INA sec. 103, 8 U.S.C. 1103.
---------------------------------------------------------------------------
DHS notes that it did not codify this final rule to discriminate
against noncitizens based on their race or color. Rather, as noted in
the NPRM,\139\ this rule is intended to be a faithful execution of the
public charge ground of inadmissibility that is clear and
comprehensible, and that would lead to fair and consistent
adjudication. DHS believes that this rule accomplishes that goal,
avoids unequal treatment, and avoids imposing undue barriers for
noncitizens applying for admission or adjustment of status. Indeed,
through this rulemaking, DHS is promulgating a clear and concise
regulation that implements the public charge ground of inadmissibility
by evaluating each noncitizen applying for adjustment of status or
admission for public charge inadmissibility in the totality of the
circumstances, absent statutory exemptions.
---------------------------------------------------------------------------
\139\ 87 FR at 10599 (Feb. 24, 2022).
---------------------------------------------------------------------------
Comment: Another commenter stated that the statute is in conflict
with E.O. 14012, ``Restoring Faith in Our Legal Immigration Systems and
Strengthening Integration and Inclusion Efforts for New Americans,'' as
neither efficient nor a removal of barriers. While several commenters
acknowledged that amending or repealing the statute is not within DHS's
authority, one commenter stated that the statute compromises the
overall goal of DHS to prioritize and incorporate equity into the rule.
Response: As noted above, DHS lacks the authority to make any
changes to the statute underlying the public charge ground of
inadmissibility; only Congress can do so. To the extent that these
commenters are suggesting that this this rule conflicts with the
Administration's goals to achieve equality and inclusion, as set forth
in E.O. 14012,\140\ DHS disagrees. As explained above, this rule is
intended to be a faithful execution of the public charge ground of
inadmissibility that is clear and comprehensible, and that would lead
to fair and consistent adjudication for similarly situated
applications. DHS believes that this rule avoids unequal treatment and
avoids imposing undue barriers for noncitizens applying for admission
or adjustment of status.
---------------------------------------------------------------------------
\140\ See ``Restoring Faith in Our Legal Immigration Systems and
Strengthening Integration and Inclusion Efforts for New Americans,''
86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------
3. Other Legal Arguments
a. Comments on Litigation Relating to the 2019 Final Rule
Comment: A commenter representing a State remarked that the changes
in this rule are being proposed even though the 2019 Final Rule was
still being litigated, and DHS removed the 2019 Final Rule from the
Federal Register without notice and comment based entirely on the
``unreviewed, nationwide vacatur'' issued by the District Court for the
Northern District of Illinois, despite multiple States seeking to
intervene. The commenter wrote that ``multiple states (including the
undersigned) have sought to intervene in the Northern District of
Illinois for the purpose of challenging that vacatur, and that matter
is currently pending before the Seventh Circuit. Multiple states
(including the undersigned) have also sought to intervene in a similar
case in the Ninth Circuit, and that matter is currently pending before
the United States Supreme Court. These cases are ongoing and could
easily result in a reversal of the Northern District of Illinois's
vacatur of the 2019 Rule, which was the sole justification for the
immediate removal of the 2019 Rule from the Federal Register without
notice and comment.'' \141\ Another commenter stated that if DHS were
to finalize the proposed rule, the commenter would pursue litigation
against the rule.
---------------------------------------------------------------------------
\141\ Internal footnotes omitted.
---------------------------------------------------------------------------
Response: Comments regarding the basis for the vacatur
implementation rule are outside the scope of this rulemaking. To the
extent that the commenter suggests that DHS should delay issuance of
this final rule pending resolution of all litigation regarding the 2019
Final Rule, the vacatur of the 2019 Final Rule, and the implementation
of that vacatur, the comment is arguably within the scope of the
rulemaking, but DHS respectfully disagrees with the commenter's
suggestion. First, as a factual matter, in the time since the commenter
submitted the above comments, the Supreme Court dismissed the writ of
certiorari in one case as improvidently granted, and the Seventh
Circuit upheld the U.S. District Court for the Northern District of
Illinois' denial of intervention. Although it is conceivable that these
issues will continue to be litigated, DHS sees no reason to delay
issuance of this rule pending resolution of all possible litigation.
Second, DHS does not see how delaying issuance of this notice-and-
comment rulemaking would meaningfully address concerns about the
adequacy of the rulemaking process for the vacatur implementation rule.
The expressed concern regarding that rule was the absence of notice and
comment, but in this rulemaking, DHS has completed multiple rounds of
notice and comment, including an ANPRM and virtual public listening
sessions, as well as the notice-and-comment process in which this
commenter took advantage of the opportunity to participate. This
rulemaking process has provided ample opportunity for public
participation. The commenter's suggestion that DHS should delay issuing
this rule pending further litigation is therefore unwarranted.
Third, DHS notes that although this rule does not replace the 2019
Final Rule, throughout the rulemaking process, DHS has considered and
welcomed comment related to various
[[Page 55502]]
aspects of the content and effects of that rule. DHS has analyzed the
effects of this rule against the 1999 Interim Field Guidance, a Pre-
Guidance Baseline, and an alternative similar to the 2019 Final Rule.
To whatever extent the commenter expresses concern regarding the
availability of notice and comment regarding whether to issue a rule
similar to the 2019 Final Rule, this rulemaking process has addressed
the matter squarely.
Finally, DHS acknowledges the significant public interest in public
charge issues. The 2018 NPRM resulted in over 266,000 comments, vastly
more than any other rulemaking in the history of the Department. This
rulemaking resulted in a much smaller number of public comments.
Although in both rulemaking proceedings the vast majority of comments
expressed opposition to the 2019 Final Rule or a return to a similar
framework, in this rulemaking proceeding, DHS has carefully considered
comments from all quarters and representing all perspectives.
Ultimately, following careful consideration of the public comments
received in response to the 2021 ANPRM and the 2022 NPRM, and for the
reasons expressed throughout this preamble, DHS determined that this
rule represented the most appropriate path forward.
DHS understands that some commenters intend to pursue litigation
against this rule. Although DHS is confident that this rule is fully
consistent with law, DHS notes its intention that the provisions of the
rule be treated as severable to the maximum extent possible, such that
if any court of competent jurisdiction were to deem any provision of
the rule to be invalid or unenforceable in any respect, all other parts
of the rule will remain in effect to the maximum extent permitted by
law.
b. Allegations That the Proposed Rule Is Arbitrary and Capricious
Comment: Several commenters stated that DHS failed to adequately
explain its decision to take a different approach from the previous
Administration's rule and appears to simply express its disagreement
with the 2019 Final Rule. Commenters stated that, although DHS is
within its discretion to take a different approach than DHS did in 2019
as long as that approach is consistent with the law, proposed rules
must include justification and reasoning for the approaches taken.
Commenters stated that DHS appears to be motivated simply by issuing a
rule that is different from the 2019 Final Rule.
Response: DHS disagrees that it failed to adequately explain that
it was considering adopting an approach different than the approach set
forth in the 2019 Final Rule. In fact, DHS explained at the outset of
the NPRM that, rather than simply disagreeing with the approach taken
in the 2019 Final Rule, DHS was aiming to implement a rule that
provided a more faithful interpretation of the public charge ground of
inadmissibility that would also, to the extent possible, minimize the
unnecessary paperwork burdens, confusion, and chilling effects
associated with the 2019 Final Rule.\142\
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\142\ 87 FR at 10571 (Feb. 24, 2022).
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Moreover, throughout the NPRM, DHS noted where this rule
substantively differed from the 2019 Final Rule and explained why DHS
had opted to take a different approach. For example, in the NPRM, in
explaining the definition for ``likely at any time to become a public
charge,'' DHS explained in detail why the degree of dependence on the
government that would give rise to inadmissibility under this rule--
primary dependence on the government for subsistence--as compared to
the degree of dependence in the 2019 Final Rule--reliance over a
specific threshold for duration of receipt--was a more sound
interpretation of the public charge ground of inadmissibility and
appropriately balanced the policy objectives set forth in PRWORA and
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\143\
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\143\ 87 FR at 10606 (Feb. 24, 2022).
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Additionally, DHS explained in detail in the NPRM why, after
consulting with Federal benefits-granting agencies like HHS and USDA,
it was proposing to consider a narrower list of public benefits than
the more extensive list of public benefits that were considered under
the 2019 Final Rule.\144\ For instance, DHS explained that it proposed
not to include SNAP benefits and most Medicaid benefits, as receipt of
such was described by the relevant benefits-granting agencies as not
being indicative of an individual being or likely to become primarily
dependent on the government for subsistence.\145\ DHS further explained
in the NPRM that its approach to this rule was based on the objective
to faithfully execute the public charge ground of inadmissibility while
avoiding policies that unduly discourage individuals from availing
themselves to the public benefits for which they are eligible.\146\
Following consideration of public comments received on the NPRM, DHS
continues to believe this to be the case.
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\144\ 87 FR at 10609-10610 (Feb. 24, 2022).
\145\ 87 FR at 10610 (Feb. 24, 2022).
\146\ 87 FR at 10610 (Feb. 24, 2022).
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Comment: Several commenters stated that DHS fails to provide any
reasoned analysis concerning why noncitizens changing or extending
their nonimmigrant status in the United States should not be subject to
the proposed rule. The commenters reasoned that if these classes of
noncitizens may ultimately be able to utilize certain public benefit
programs, States have a right to understand why DHS intends to exercise
its discretion this way, and saying that certain noncitizens may not
presently be eligible for benefits is insufficient and does not provide
a meaningful opportunity to comment on the proposed rule. Another
commenter acknowledged that DHS has the discretion to decide whether to
set conditions on extension of stay and change of status applications,
but said DHS is arbitrarily declining to include a public benefits
condition in this rule.
Response: DHS disagrees that it failed to explain why this rule
does not impose conditions on extension of stay and change of status
applications and petitions based on the receipt of public benefits.
Although DHS has the authority to set conditions on requests for
extension of stay and change of status,\147\ as explained in the
NPRM,\148\ DHS cannot apply the public charge ground of inadmissibility
to such requests because the plain language of the statute provides
that the ground only applies to applications for a visa, admission, and
adjustment of status under the INA.\149\ Requests for extension of stay
and change of status are not applications for visa, admission, or
adjustment of status, and therefore are not subject to the public
charge ground of inadmissibility.
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\147\ INA secs. 214 and 248, 8 U.S.C. 1184 and 1258.
\148\ 87 FR at 10600-10601 (Feb. 24, 2022).
\149\ INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
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Furthermore, as explained in the NPRM,\150\ DHS does not believe
that it needs to require, as a condition of an application or petition
for extension of stay or change of status, that the nonimmigrant not
become a public charge or not receive public benefits, because such a
condition would be applicable to very few nonimmigrants, if any. This
is because nonimmigrants are generally barred from receiving the public
benefits considered in this proposed rule, such as SSI, TANF, and
Medicaid for long-term institutionalization.\151\ Additionally, to
[[Page 55503]]
the extent that commenters are concerned that a nonimmigrant seeking an
extension of stay or change of status may not be self-reliant, these
concerns are, for many nonimmigrant categories, addressed by both the
requirements for obtaining such status in the first instance as well as
the requirements applicable to their applications and petitions for
extension of stay and change of status.
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\150\ 87 FR at 10600-10601 (Feb. 24, 2022).
\151\ Public Law 104-193, sec. 431(b), Public Law 104-208, div.
C, sec. 501 (amending Public Law 104-193 by adding sec. 431(c)), 8
U.S.C. 1641(b) and (c) (defining ``qualified aliens'' for Federal
public benefits purposes); Public Law 104-193, sec. 411, 8 U.S.C.
1621 (describing eligibility for State and local public benefits
purposes).
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For example, in some of the employment-based nonimmigrant cases,
the petitioning employer is required to comply with certain wage
requirements applicable to such classifications. In the temporary
agricultural worker (H-2A nonimmigrant) context,\152\ the employer must
offer the appropriate wage rate \153\ and comply with other
requirements as set by law and regulations.\154\ Other nonimmigrants,
such as F and M nonimmigrant students, need to demonstrate that they
have sufficient funds to pay tuition and related costs as part of the
application for extension of stay or change of status to such
nonimmigrant categories.\155\ Therefore, DHS believes that it has
adequately explained its reasons for not imposing conditions related to
the receipt of public benefits on nonimmigrants seeking an extension of
stay or change of status and as a result declines to add provisions in
this regard to the final rule.
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\152\ See INA secs. 101(a)(15)(H)(ii)(a), 218, 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1188.
\153\ See 20 CFR 655.120(l). Employers must pay H-2A workers and
workers in corresponding employment, unless otherwise excepted by
the regulations, at least the highest of the Adverse Effect Wage
Rate (AEWR), the prevailing hourly wage rate, the prevailing piece
rate, the agreed-upon collective bargaining wage (if applicable), or
the Federal or State minimum wage in effect at the time the work is
performed.
\154\ See 20 CFR 655.100 through 655.185.
\155\ See 8 CFR 214.1(f)(1)(i)(B) (requiring that the student
presents documentary evidence of financial support in the amount
indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID)); 8
CFR 214.2(m)(1)(i)(B) (requiring that student documents financial
support in the amount indicated on the SEVIS Form I-20 (or the Form
I-20M-N/I-20ID)); USCIS, ``Adjudicator's Field Manual (AFM),''
Chapter 30.3(c)(2)(C) (applicants to change status to a nonimmigrant
student must demonstrate that they have the financial resources to
pay for coursework and living expenses in the United States),
<a href="https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm30-external.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm30-external.pdf</a> (last visited Aug. 16, 2022); see also 22 CFR
41.61(b)(1)(ii) (requiring that F and M nonimmigrants possess
sufficient funds to cover expenses while in the United States or can
satisfy the consular officer that other arrangements have been made
to meet those expenses); 22 CFR 41.62(a)(2) (requiring that J-1 visa
applicants possess sufficient funds to cover expenses or have made
other arrangements to provide for expenses before a DOS consular
officer can approve the visa).
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Comment: Several commenters suggested that the proposed rule
reflects DHS's intention to ignore its authority with respect to public
charge bonds without adequate justification.
Response: DHS disagrees with commenters' assertion that it is
ignoring its bond authority without justification. On the contrary, DHS
acknowledged its discretionary bond authority in the NPRM,\156\ and DHS
reiterates, in this rule, that it has authority under section 213 of
the INA, 8 U.S.C. 1183, to consider whether to exercise its discretion
on a case-by-case basis to admit noncitizens who are inadmissible only
under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), upon the
submission of a suitable and proper public charge bond.
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\156\ 87 FR at 10597 (Feb. 24, 2022).
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However, as explained more fully in the bond section below, after
careful consideration of public comments and feedback, DHS has revised
the bond provisions to reflect DHS's statutory authority to consider
offering public charge bonds, in its discretion, to adjustment of
status applicants inadmissible only under section 212(a)(4) of the INA,
8 U.S.C. 1183.\157\ These additional provisions will help ensure that
DHS adequately addresses how DHS will exercise its discretion to offer
public charge bonds in the context of adjustment of status applications
and will help ensure that public charge bonds remain operationally
feasible in such cases. Under this rule, DHS will consider offering
adjustment of status applicants who are inadmissible only under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), the opportunity to submit a
bond as a condition of adjustment of status.\158\ When USCIS
determines, in its discretion, to offer an adjustment of status
applicant the opportunity to submit a public charge bond, USCIS will
set the bond amount at an amount of no less than $1,000 and provide
instructions for the submission of a public charge bond.\159\ USCIS
will also amend the other regulations pertaining to public charge
bonds. USCIS will provide officers with guidance and training to ensure
that this discretionary authority is exercised in a fair, efficient,
and consistent manner.
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\157\ 8 CFR 213.1.
\158\ See 8 CFR 213.1(a) and (c).
\159\ See 8 CFR 213.1(a) and (c).
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c. Allegations That the Proposed Rule Is Inconsistent With the Statute
Comment: Commenters opposed to the rule generally stated that the
rule markedly departs from the standards in the 2019 Final Rule and is
contrary to law.
Response: Although DHS agrees that this rule is different than the
standards set forth in the 2019 Final Rule, DHS disagrees that this
rule is contrary to law. DHS noted that neither the statute nor case
law require DHS to interpret the statute as was done in the 2019 Final
Rule. On the contrary, when Congress enacted the public charge ground
of inadmissibility without defining what it meant to be a ``public
charge'' or ``likely at any time to become a public charge,'' Congress
authorized the agencies administering this ground of inadmissibility to
determine and specify what those terms meant and how such
inadmissibility determinations would be made.\160\ DHS has concluded,
consistent with the NPRM,\161\ that this rule is a permissible and
faithful implementation of the public charge ground of inadmissibility.
With this rule, DHS is providing important definitions and guidance to
implement the public charge ground of inadmissibility, such as defining
``likely at any time to become a public charge,'' that Congress left
for DHS to implement. Also as noted in the NPRM,\162\ this rule
provides a close connection to the language used in the statute and
reflects the forward-looking subjective aspect of the statutory
standard. DHS has further determined, consistent with the NPRM,\163\
that this rule better balances the overlapping policy objectives
established by Congress when it enacted PRWORA \164\ in close proximity
to enacting the current public charge ground of inadmissibility,
without unnecessarily harming separate efforts related to the health
and well-being of people whom Congress made eligible for supplemental
supports, let alone those eligible for benefits and not subject to the
public charge ground of inadmissibility.
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\160\ 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)).
\161\ 87 FR at 10571, 10606-10610 (Feb. 24, 2022).
\162\ 87 FR at 10606 (Feb. 24, 2022).
\163\ 87 FR at 10610 (Feb. 24, 2022).
\164\ See Public Law 104-193, sec. 400, 110 Stat. 2105, 2260
(1996) (codified at 8 U.S.C. 1601).
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Comment: One commenter stated that the rule conflicts with section
101 of the HSA, 6 U.S.C. 111, which requires DHS to protect the
economic security of the United States. The commenter said that
providing public benefits, even with an approved sponsor, bond or
undertaking approved by the Secretary, has the potential to impede the
economic security of the United States and its citizens.
[[Page 55504]]
Response: DHS disagrees with this commenter's characterization of 6
U.S.C. 111(b)(1)(F), and further disagrees that this rule conflicts
with that provision. 6 U.S.C. 111(b)(1)(F) provides that among other
primary missions, DHS should ``ensure that the overall economic
security of the United States is not diminished by efforts, activities,
and programs aimed at securing the homeland . . . .'' \165\ Consistent
with this mission set forth in the statute, DHS has determined that
this rule properly achieves the policy objective set by Congress in
ensuring that those who are likely at any time to become a public
charge are not admitted into the United States or permitted to adjust
status, without diminishing the overall economic security of the United
States.
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\165\ Public Law 107-296, sec. 101(b)(1)(F), 6 U.S.C.
111(b)(1)(F).
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Moreover, to the extent that this commenter suggests that this rule
provides public benefits to noncitizens that will diminish the economic
security of the United States, DHS strongly disagrees.
Neither the public charge ground of inadmissibility nor this final
rule govern eligibility for public benefits. Rather, the public charge
ground of inadmissibility and this final rule pertain to whether an
applicant for admission or adjustment of status is likely at any time
to become a public charge. This final rule thus does not determine
which noncitizens are, or should be, eligible to apply for and receive
public benefits. And in any event, DHS disagrees that a contraction of
eligibility for public benefits (or a change in incentives for or fear
and confusion about their use) would have a positive effect on the
economic security of the United States. DHS has determined that using
the public charge ground of inadmissibility to deter the use of health
and nutrition benefits primarily among people who are not subject to
the public charge ground of inadmissibility (such as U.S. citizen
children in mixed-status households) would not further the nation's
economic security. Accordingly, DHS declines to make any changes in
response to the comment.
Comment: One commenter stated an opposition to PRWORA and the
restriction for eligibility for federal means-tested benefits within
PRWORA.
Response: The comment is outside the scope of the rulemaking. As
explained more fully above, this rule does not govern eligibility for
public benefits. Rather, this final rule governs the determination of
whether an applicant for admission or adjustment of status is likely at
any time to become a public charge.
E. Chilling Effects
1. Impacts of Previous Public Charge Policies
Comment: Many commenters opposed the previous public charge policy
enacted by the 2019 Final Rule due to the confusion and fear it caused
with respect to the immigration consequences of utilizing public
benefits, with some remarking that the 2019 Final Rule had a profound
chilling effect. One commenter noted that a court decision concerning
the 2019 Final Rule, Cook County v. Wolf,\166\ observed that much of
the chilling effect was a result of the 2019 Final Rule's complexity.
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\166\ 962 F.3d 208 (7th Cir. 2020).
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Several commenters stated generally that the chilling effects
caused older adults and their families to forgo benefits, including
Medicaid and SNAP, due to the feared immigration consequences, with a
disproportionate impact on older adults and people with disabilities.
Commenters cited published research and studies that found that the
mere announcement of a public charge rule in 2018 led to declines in
safety-net participation, with an analysis of State-reported data
showing that the announcement of public charge regulations was
associated with a decrease in child enrollment in Medicaid of
approximately 260,000 from 2017 levels.\167\ Commenters submitted
studies that found evidence that enrollment by all individuals in
Medicaid, SNAP, and CHIP, as well as enrollment in WIC, even though
CHIP and WIC were not included in the 2019 Final Rule, declined.\168\ A
different commenter noted a study that found that 30 percent of adults
in low-income immigrant families with children reported that they or a
family member had avoided non-cash government programs or other
assistance with their basic needs because of concerns about the impact
on their immigration status. Another commenter cited research on the
impact of the 2019 Final Rule on immigrant families, which they
described as showing that 48 percent of immigrant families avoided the
SNAP program, 45 percent avoided Medicaid and CHIP, and 35 percent
avoided housing subsidies because of the fear of risking their ability
to obtain a green card.\169\ The commenter also cited a 2020 report by
the Center for Law and Social Policy stating that some parents were
also reluctant to send their children to school or childcare, although
the report did not attribute that claim to a specific study.\170\
Another commenter stated that the Asian American, Native Hawaiian, and
Pacific Islander population was especially affected by the chilling
effects of the 2019 Final Rule, and continues to be affected in
Medicaid and CHIP enrollment and renewals. Some commenters said that
the 2019 Final Rule also affected U.S. citizen children, whose parents
elected to disenroll or not enroll them in CHIP due to fear of
immigration consequences.
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\167\ Jeremy Barofsky et al., ``Spreading Fear: The Announcement
of the Public Charge Rule Reduced Enrollment in Child Safety-Net
Programs,'' Health Affairs (Oct. 2020), <a href="https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763">https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763</a> (last visited
Aug. 16, 2022).
\168\ Jeremy Barofsky et al., ``Spreading Fear: The Announcement
of the Public Charge Rule Reduced Enrollment in Child Safety-Net
Programs,'' Health Affairs (Oct. 2020), <a href="https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763">https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763</a> (last visited
Aug. 16, 2022),; Jeremy Barofsky et al., ``Putting Out the
`Unwelcome Mat:' The Announced Public Charge Rule Reduced Safety Net
Enrollment among Exempt Noncitizens,'' J. of Behav. Pub. Admin.
(Oct. 2021), <a href="https://doi.org/10.30636/jbpa.42.200">https://doi.org/10.30636/jbpa.42.200</a> (last visited Aug.
16, 2022); Hamutal Bernstein et al., ``Amid Confusion over the
Public Charge Rule, Immigrant Families Continued Avoiding Public
Benefits in 2019,'' Urban Institute (May 2020), <a href="https://www.urban.org/research/publication/amid-confusion-over-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-2019">https://www.urban.org/research/publication/amid-confusion-over-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-2019</a> (last visited Aug. 16, 2022).
\169\ Hamutal Bernstein et al., ``Amid Confusion over the Public
Charge Rule, Immigrant Families Continued Avoiding Public Benefits
in 2019,'' Urban Institute (May 2020), <a href="https://www.urban.org/research/publication/amid-confusion-over-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-2019">https://www.urban.org/research/publication/amid-confusion-over-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-2019</a> (last
visited Aug. 16, 2022).
\170\ Rebecca Ullrich, ``The Public Charge Rule & Young
Children: Q&A on the New Regulation,'' Center for Law and Social
Policy (Feb. 2020), <a href="https://www.clasp.org/sites/default/files/publications/2020/02/2020.02.24%20Public">https://www.clasp.org/sites/default/files/publications/2020/02/2020.02.24%20Public</a>
%20Charge%20Young%20Children %20Final%20Rule%20QA_update.pdf (last
visited Aug. 16, 2022).
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One commenter cited a study showing that from 2016 to 2019, U.S.
citizen children living in low-income households with at least one
noncitizen saw:
<bullet> An 18 percent drop in Medicaid participation compared to
an 8 percent drop in participation for U.S. citizen children living in
households with only U.S. citizens;
<bullet> a 36 percent drop in SNAP participation compared to a 17
percent drop in participation for U.S. citizen children living in
households with only U.S. citizens; and
<bullet> A 36 percent drop in TANF, General Assistance, and similar
cash assistance programs compared to a 20 percent drop in participation
[…truncated; see source link]Indexed from Federal Register on September 9, 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.