Rule2023-19047
Visas: Ineligibility Based on Public Charge
Primary source
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Published
September 5, 2023
Effective
October 5, 2023
Issuing agencies
State Department
Abstract
The Department of State ("Department") has decided not to finalize the regulatory amendments made by the 2019 interim final rule entitled "Visas: Ineligibility Based on Public Charge Grounds" published in the Federal Register on October 11, 2019 ("2019 IFR"). The 2019 IFR implemented such amendments based on an intention to more closely align with the standards then applied by the U.S. Department of Homeland Security ("DHS") to determine inadmissibility on public charge grounds. In 2022, DHS published a new Final Rule ("2022 DHS Final Rule"). As such, the 2019 IFR no longer meets the policy aim of consistency with DHS standards. In declining to finalize the regulatory amendments made by the 2019 IFR, the Department will instead revert to regulatory text that was in place prior to the publication of the 2019 IFR and will continue to apply the guidance set out in the Foreign Affairs Manual ("FAM"). This regulatory text, together with the existing FAM guidance, more closely aligns with the current DHS standards, and the Department anticipates that it will subsequently initiate new notice-and-comment rulemaking in light of the 2022 DHS Final Rule.
Full Text
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<title>Federal Register, Volume 88 Issue 170 (Tuesday, September 5, 2023)</title>
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[Federal Register Volume 88, Number 170 (Tuesday, September 5, 2023)]
[Rules and Regulations]
[Pages 60574-60583]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19047]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice: 11921]
RIN 1400-AE87
Visas: Ineligibility Based on Public Charge
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State (``Department'') has decided not to
finalize the regulatory amendments made by the 2019 interim final rule
entitled ``Visas: Ineligibility Based on Public Charge Grounds''
published in the Federal Register on October 11, 2019 (``2019 IFR'').
The 2019 IFR implemented such amendments based on an intention to more
closely align with the standards then applied by the U.S. Department of
Homeland Security (``DHS'') to determine inadmissibility on public
charge grounds. In 2022, DHS published a new Final Rule (``2022 DHS
Final Rule''). As such, the 2019 IFR no longer meets the policy aim of
consistency with DHS standards. In declining to finalize the regulatory
amendments made by the 2019 IFR, the Department will instead revert to
regulatory text that was in place prior to the publication of the 2019
IFR and will continue to apply the guidance set out in the Foreign
Affairs Manual (``FAM''). This regulatory text, together with the
existing FAM guidance, more closely aligns with the current DHS
standards, and the Department anticipates that it will subsequently
initiate new notice-and-comment rulemaking in light of the 2022 DHS
Final Rule.
DATES: This final rule is effective October 5, 2023.
FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory
Coordinator, Visa Services, Bureau of Consular Affairs, Department of
State; telephone: (202) 485-7586; email: <a href="/cdn-cgi/l/email-protection#e9bf809a88bb8c8e9aa99a9d889d8cc78e869f"><span class="__cf_email__" data-cfemail="22744b5143704745516251564356470c454d54">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
A. Legal Authority
Under section 212(a)(4) of the Immigration and Nationality Act
(``INA''), 8 U.S.C. 1182(a)(4), a noncitizen is inadmissible to the
United States, and therefore ineligible for a visa, if, in the opinion
of the consular officer at the time of the application for a visa, the
applicant is likely at any time to become a ``public charge.'' \1\ The
Department implements the public charge ground of inadmissibility with
respect to visa ineligibility through regulations at 22 CFR 40.41.
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\1\ DHS also applies section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), to noncitizens seeking admission to the United States at
or between ports of entry, or in reviewing applications for
adjustment of status. Additionally, the Department of Justice
(``DOJ'') applies this statute with respect to noncitizens in
immigration court proceedings before the Executive Office for
Immigration Review, a DOJ agency. This final rule does not apply to
the public charge inadmissibility standards applied by DHS or DOJ.
This final rule will use the terms inadmissible to the United States
and ineligible for a visa interchangeably.
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B. The Department's 2019 Interim Final Rule
On August 14, 2019, DHS issued a final rule amending standards in
its regulations for determining inadmissibility under public charge
grounds. See Inadmissibility on Public Charge Grounds, 84 FR 41292, as
amended on October 2, 2019, 84 FR 52357 (``2019 DHS Final Rule'').
Among other changes to these regulations, the 2019 DHS Final Rule
expanded DHS's definition of ``public charge'' and designated certain
factors or factual circumstances that could be weighted positively or
negatively, and some that would be ``heavily'' weighted, either
positively or negatively, to consider whether an applicant was likely
at any time to become a public charge.
On October 11, 2019, the Department issued the 2019 IFR, which
amended Department regulations at 22 CFR 40.41 to modify its standards
for when a consular officer would determine that a noncitizen is
ineligible for a visa under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), because they are likely at any time to become a public
charge.\2\ The Department issued the 2019 IFR largely to avoid
situations when a consular officer would evaluate an applicant's
circumstances and conclude that the applicant is not likely to become a
public charge, only for DHS to evaluate the same applicant when seeking
admission to the United States on a visa issued by the Department, and
find that the applicant is inadmissible on public charge grounds under
the same facts. Though the 2019 IFR included minor deviations from the
2019 DHS Final Rule, its purpose was to align the Department's approach
with that of DHS's.\3\
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\2\ 84 FR 54996 (Oct. 11, 2019).
\3\ See id. at 55002 (``The Department notes that this approach
deviates somewhat from the [2019 DHS Final Rule], in that the
Department's approach focuses on the alien's intended household in
the United States, rather than any members of his foreign household
he or she will leave behind. This difference in effect aligns the
two Departments' approaches.'').
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While the term ``public charge'' is not defined in the INA, the
definition set forth in the 2019 IFR and the 2019 DHS Final Rule
differed significantly from the definition applied for decades
previously, and most notably from the 1999 Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds (``1999
Interim Field Guidance'') \4\ issued by the former Immigration and
Naturalization Service and related FAM guidance issued by the
Department, as further described below. Similar to the 2019 DHS Final
Rule, the 2019 IFR defined public charge to mean a noncitizen who
receives one or more public benefits, as defined in the 2019 IFR, for
more than 12 months in the aggregate within any 36-month period.
Receipt of two benefits in one month would count as two months' worth
of benefits.\5\ Public benefits under the 2019 IFR included any
Federal, State, local, or Tribal cash assistance for income maintenance
(other than tax credits), the Supplemental Nutrition Assistance
Program, 7 U.S.C. 2011 et seq., the Housing Choice Voucher Program, as
authorized under section 8(o) of the United States Housing Act of 1937
(42 U.S.C. 1437f), Project-Based Rental Assistance (including Moderate
Rehabilitation) authorized under section 8 of the United States Housing
Act of 1937, Medicaid (with enumerated exclusions), and Public Housing
under section 9 of the U.S. Housing Act of 1937 (42 U.S.C. 1437g).\6\
Further, the 2019 IFR included certain factors and factual
circumstances that weighed heavily in determining whether a visa
applicant was likely to become a public charge, including negative and
positive factors.
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\4\ Interim Field Guidance on Deportability and Inadmissibility
on Public Charge Grounds, 64 FR 28689 (May 26, 1999).
\5\ 84 FR 54996, 55014.
\6\ Id.
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On July 29, 2020, the U.S. District Court for the Southern District
of New York granted a preliminary injunction against implementation of
the 2019 IFR, holding that the plaintiffs were likely to succeed in
their claim that the 2019 IFR did not comply with the requirements of
the Administrative Procedure Act.\7\ The government filed a notice of
appeal from this preliminary injunction, but the appeal was later
dismissed at the government's request.\8\
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\7\ Make the Road N.Y. v. Pompeo, 475 F. Supp. 3d 232, 262
(S.D.N.Y. 2020).
\8\ Make the Road N.Y. v. Pompeo, No. 20-3214 (S.D.N.Y. July 6,
2021), ECF No. 118.
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Following the preliminary injunction against enforcement of the
2019 IFR, the Department issued FAM guidance to
[[Page 60575]]
consular officers \9\ regarding compliance with the court order. The
FAM guidance generally instructed consular officers adjudicating visas
to apply the standards that had been in place prior to the 2019 IFR,
standards which were based on the 1999 Interim Field Guidance.
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\9\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), <a href="https://fam.state.gov/FAM/09FAM/09FAM030208.html">https://fam.state.gov/FAM/09FAM/09FAM030208.html</a> (last visited June 14,
2023).
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C. Purpose of Not Finalizing the Regulatory Standards in the 2019 IFR
There have been significant developments related to the public
charge ground of inadmissibility since the publication of the 2019 IFR.
On February 2, 2021, President Biden issued Executive Order 14012,
Restoring Faith in Our Legal Immigration System and Strengthening
Integration and Inclusion Efforts for New Americans (``E.O.
14012'').\10\ E.O. 14012 directed the Secretary, along with the
Attorney General, the Secretary of Homeland Security, and other
relevant agency heads, to ''review all agency actions related to
implementation of the public charge ground of inadmissibility . . . and
the related ground of deportability.'' \11\ The President ordered each
of the agencies to submit a report ``identify[ing] appropriate agency
actions, if any, to address concerns about the current public charge
policies' effect on the integrity of the Nation's immigration system
and public health'' and ``recommend[ing] steps that relevant agencies
should take to clearly communicate current public charge policies and
proposed changes, if any, to reduce fear and confusion among impacted
communities.'' \12\
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\10\ Executive Order 14012, 86 FR 8277 (Feb. 5, 2021).
\11\ See Exec. Order No. 14012, sec. 4, 86 FR 8277, 8278 (Feb.
5, 2021).
\12\ Id. Sec. 4(a).
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On November 17, 2021, the Department published a notice in the
Federal Register, 86 FR 64070 (``Public Comment Reopening''),
soliciting public comment on the 2019 IFR for an additional 60-day
period, noting significant changes in circumstances since publication
of the 2019 IFR.\13\ As described in the Public Comment Reopening, the
changes in intervening circumstances included public health and
economic conditions arising from the COVID-19 pandemic; a court's
vacatur of the 2019 DHS Final Rule on a nationwide basis; and DHS's
publication on August 23, 2021, of an Advance Notice of Proposed
Rulemaking, soliciting public feedback on the DHS interpretation of the
public charge ground of inadmissibility to inform a future rulemaking
on the issue. In light of those developments, in the Public Comment
Reopening, the Department specifically sought public feedback on
whether: (1) the 2019 IFR should be rescinded or revised; and (2) if
so, what final rule should be adopted regarding visa ineligibility on
public charge grounds.
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\13\ See Visas: Ineligibility Based on Public Charge Grounds, 86
FR 64070 (Nov. 17, 2021).
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As detailed below, following receipt of a range of public comments
in response to the 2019 IFR and the 2021 Public Comment Reopening, the
Department has decided not to finalize the regulatory amendments made
by the 2019 IFR. Instead, the Department is removing from 22 CFR 40.41
the regulations promulgated in the 2019 IFR and restoring the
regulatory text as it appeared prior to the issuance of the 2019 IFR
(``Prior Rule'').\14\ The Prior Rule was published in 1997, and, with
non-substantive changes,\15\ remained in place until the publication of
the 2019 IFR. The subsequently published 1999 Interim Field Guidance
set forth a public charge rule substantially similar to the Prior Rule.
The majority of public comments opposed the 2019 IFR or recommended
substantial revisions, noting an array of public harms that they
attributed to the overall public charge policy reflected in the 2019
IFR, including a measurable decline in enrollment in assistance
programs by children in families with noncitizen members, far more than
the decline of enrollment in assistance programs by children in
families with no noncitizen members.
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\14\ Visas: Public Charge, 62 FR 67563 (Dec. 29, 1997).
\15\ See Immigrant Visas; Change in the Schedule of Fees for
Consular Services, 65 FR 78094 (Dec. 14, 2000); Nomenclature Changes
Reflecting Creation of Department of Homeland Security, 71 FR 34519
(Jun. 15, 2006).
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In 2022, DHS promulgated the 2022 DHS Final Rule in which it
explained why it believed its 2019 Final Rule did not represent the
best interpretation of the public charge statute.\16\ The 2022 DHS
Final Rule adopts a significantly different standard for determining
whether an individual is likely at any time to become a public charge
than the standard reflected in DHS's 2019 Final Rule and the
Department's 2019 IFR. The 2022 DHS Final Rule promulgated a rule
governing the public charge grounds of inadmissibility, which, while
not identical, is substantially similar to the 1999 Interim Field
Guidance.
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\16\ See Public Charge Ground of Inadmissibility, 87 FR 55472
(Sept. 9, 2022).
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Accordingly, the 2019 IFR no longer meets the policy aim of
consistency with DHS standards, which was the Department's principal
reason for adopting the 2019 IFR. The Department therefore will not
finalize the provisions in the 2019 IFR, which have been subject to a
preliminary injunction since July 2020, and will instead return to the
Prior Rule pending further rulemaking. The standards contained in the
Prior Rule, together with the associated FAM guidance, align better
with the 2022 DHS Final Rule than the 2019 IFR. After the instant rule
is finalized, the Department anticipates that it will initiate new
notice-and-comment rulemaking in light of the 2022 DHS Final Rule to
pursue any further amendments to the Department's regulatory text on
public charge ineligibility, as appropriate.
D. Alternatives Considered
The Department considered alternatives to this final rule. For
example, the Department considered promulgating a final rule, following
the 2019 IFR, but taking into account comments received, that would
amend significantly the standards of the 2019 IFR to more closely align
with the 2022 DHS Final Rule. The Department declined to pursue this
alternative, because, despite the two periods of public comment on the
2019 IFR, it would not provide the public an opportunity to provide
comment on the new standards, in the context of the Department's
rulemaking. For that reason, the Department believes it is appropriate
not to finalize the 2019 IFR with revised standards and instead to
undertake new notice-and-comment rulemaking in light of the 2022 DHS
Final Rule.
The Department also considered publishing a proposed rule with new
standards for visa ineligibility based on the public charge ground of
inadmissibility, without first removing changes to the regulations
promulgated under the 2019 IFR. The Department determined that this
alternative would not best achieve the Department's policy objective of
consistency in administration of the public charge grounds of
inadmissibility with DHS, because amendments from the 2019 IFR would
remain in Department regulations while the new standards underwent
public notice and comment. Because the 2019 IFR was principally
designed to align with the standards of the 2019 DHS Final Rule, the
2019 IFR, if applied now, would create a pronounced inconsistency with
the standards in the 2022 DHS Final Rule, and the Department determined
that
[[Page 60576]]
neither retaining nor finalizing the regulatory amendments made by the
2019 IFR while it undertook further rulemaking was appropriate.
The Department also considered whether there might be policy
alternatives to amending the 2019 IFR or removing changes to
regulations from the 2019 IFR. The Department determined that there are
no such viable alternatives because the standards promulgated under the
2019 IFR are entirely inconsistent with the standards implemented by
DHS in the 2022 DHS Final Rule with respect to inadmissibility under
the public charge grounds.
E. Consideration of Reliance Interests
In preparing this final rule, the Department also considered
whether there were any serious reliance interests that would be harmed
by removing the 2019 IFR and returning to the Prior Rule.
While no comments submitted in response to the 2019 IFR or Public
Comment Reopening directly or indirectly identified reliance interests
of any individuals or public or private entities that have relied on
the policy articulated in the 2019 IFR, the Department's regulations,
which can affect the interests of individuals and entities in the
United States, could have potentially engendered degrees of reliance.
The 2019 IFR may have engendered such an interest, for example, by
individuals or public or private entities. For instance, public
entities such as state or local governments may assert reliance on the
enjoined rule given potential effects on noncitizens obtaining public
benefits in the United States. The Department has considered those
potential interests and taken them into consideration in formulating
this final rule.
The Department concludes that the reasons not to finalize the
regulatory amendments made by the 2019 IFR outweigh any such reliance
interests, which appear minimal, in light of a number of factors,
including: (1) the limited period in which this policy was in effect
prior to the preliminary injunction, as any reliance interests have
been significantly reduced as compared to a longstanding rule or agency
policy; (2) the significant time during which the Department has been
enjoined from implementing the policy; (3) the Department's notice to
the public in the Public Comment Reopening that it was considering
removing the regulations promulgated under the 2019 IFR, and
solicitation of public comments on whether to adopt, revise, or rescind
it; (4) the explicitly ``interim'' nature of the 2019 IFR itself; and
(5) the significant policy interests articulated in this rule that
support removal of the regulations, specifically the interest in
ensuring that the Department and DHS do not apply significantly
different public charge standards to determine a given individual's
visa eligibility and eligibility for admission to the United States.
In reverting to the Prior Rule and in continuing to apply the FAM
guidance, consular officers will continue to apply the Department's
policy of implementing the public charge ground of inadmissibility
consistently with current DHS standards and the Department's FAM
guidance. As the nationwide preliminary injunction has been in place
since July 2020, the Department has in practice reverted to the Prior
Rule since that time. Compared with the standards set forth in the 2019
IFR, the Prior Rule more closely aligns with the standards articulated
by DHS in the 2022 DHS Final Rule.
F. Comments Received in Response to 2019 IFR and 2021 Public Comment
Reopening
1. Summary of Comments
In the 2019 IFR, the Department solicited public comments on the
rule for a 30-day period following publication on October 11, 2019.
During that period, the Department received 199 comments from
individuals, local and state governments, public officials, and non-
governmental organizations. The Department reviewed these comments, of
which 4 expressed support for the 2019 IFR; 19 were non-responsive to
the 2019 IFR; and 34 did not clearly reflect support or opposition to
the 2019 IFR. The remaining 142 comments expressed opposition to the
2019 IFR.
The Public Comment Reopening solicited public comments on the IFR
for an additional 60-day period following publication of the notice on
November 17, 2021. In response, the Department received 32 comments
\17\ from individuals, local and state governments, public officials,
and non-governmental organizations. The Department reviewed these
comments, of which 3 expressed support for the 2019 IFR and 29 opposed
the 2019 IFR and suggested rescission or substantial revision of the
2019 IFR on a variety of bases, discussed below.
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\17\ There were 33 total comments submitted, but one was an
identical comment submitted by the same commenter. As the substance
of the comments was identical, the Department considers both
comments as one comment.
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The below table provides a summary of the total comments received:
Table 1--Total Comments Received
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Support for the 2019 IFR........................................... 7
Opposition to 2019 IFR............................................. 171
Neither Clearly Supporting nor Opposing............................ 34
Nonresponsive...................................................... 19
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Total.......................................................... 231
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The summary and discussion of comments below reflects the comments
received in response to the 2019 IFR, including those received in
response to the Public Comment Reopening. Of those comments expressing
opposition to the 2019 IFR, the most common reasons expressed were
opposition to policies first articulated in the 2019 DHS Final Rule;
harmful effects of the overall public charge policy reflected in the
2019 IFR on immigrant families; that the interpretation of the public
charge ground of inadmissibility in the 2019 IFR was unlawful; that the
2019 DHS Final Rule was enjoined; and that the overall public charge
policy reflected in the 2019 IFR had a chilling effect that deterred
families from receiving public benefits to which they were eligible. As
detailed in Table 3, other comments in opposition to the 2019 IFR
included objections to the rule's circumstantial eligibility factors
and concerns that calculations related to the statutory factors were
arbitrary. Several commenters opined that the 2019 IFR was
discriminatory against immigrants from particular regions or that it
would unduly burden the U.S. national economy. The two tables below
describe the categories of comments submitted by the public both in
favor of and in opposition to the 2019 IFR, noting that some comments
expressed more than one basis for support or opposition to the rule.
Table 2--Comments in Support of 2019 IFR, by Category
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Reduce Overall Immigration......................................... 3
Immigrants Should be Self-Sufficient............................... 2
Immigrants Should Not Go on Welfare................................ 1
Immigrant Communities are Already Self-Sufficient.................. 1
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Total.......................................................... 7
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Table 3--Comments in Opposition to 2019 IFR, by Category \18\
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Oppose 2019 DHS Public Charge Rule................................. 105
IFR is Unlawful.................................................... 80
2019 Harmful to Immigrant Families................................. 86
DHS Rule and IFR were under Injunction............................. 65
[[Page 60577]]
Chilling Effect to Deter Receipt of Public Benefits................ 65
IFR is Discriminatory or Racist.................................... 41
Oppose Circumstantial Eligibility Factors.......................... 39
Economically Burdensome on Families................................ 39
Unfair Calculations under IFR...................................... 34
Oppose Definition of Public Charge in IFR.......................... 31
Private Health Insurance Concern................................... 19
Other.............................................................. 40
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2. Comments Expressing Support for Finalizing the 2019 IFR
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\18\ Several commenters expressed multiple reasons for
opposition; each reason listed in this table shows the primary
reasons for opposition to the IFR. Additionally, there may be some
overlap between arguments raised by some commenters.
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Comment: Three commenters expressed support for the 2019 IFR,
because, in the commenters' opinion, levels of immigration to the
United States are too high and finalizing the 2019 IFR would have the
effect of restricting or lowering immigration levels overall.
Response: The INA governs the standards regarding a noncitizen's
admissibility to the United States, and the Department seeks to
faithfully implement the statutory public charge ground of
inadmissibility. The Department will continue to apply the public
charge ground of inadmissibility to nonimmigrant and immigrant visa
applicants in classifications that are subject to this ground, noting
that, by statute, the ground does not apply to certain nonimmigrant
visa classifications.\19\ The INA sets out worldwide levels of
immigration for each fiscal year for certain family-sponsored,
employment-based, and diversity immigrants, while excluding certain
immigrants (notably the immediately relatives of U.S. citizens) from
numerical limitations. Most nonimmigrant visa classifications are not
subject to numerical limitations. Between FY 2016 and 2019, DOS issued
approximately 543,000 immigrant visas and 9,458,000 nonimmigrant visas
annually (on average). Considering the overall demand for visas and
pre-pandemic trends in visa issuance, the Department does not expect
that the 2019 IFR or this final rule would change the overall level of
immigration.
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\19\ Several classifications of nonimmigrant and immigrant visa
applicants are expressly exempted from the public charge grounds of
visa ineligibility. Such visa classifications include, without
limitation, Special Immigrant Visa applicants who were Afghan or
Iraqi nationals employed by or on behalf of the U.S. Government, and
applicants for A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-
2, NATO-3, NATO-4, NATO-6, T, and U (with a limited exception)
nonimmigrant visas. Applicants for S nonimmigrant visas may also
obtain a waiver of the public charge grounds of visa ineligibility.
A full list of exemptions and waivers from the public charge grounds
of inadmissibility is contained in the 2022 DHS Final Rule, 87 FR
55472, 55637-39 (Sept. 9, 2022).
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This conclusion is supported by the immigrant and nonimmigrant visa
statistics available for fiscal year 2020, which covers the time period
when the 2019 IFR was in effect.\20\ In fiscal year 2020, consular
officers made 6,541 inadmissibility findings based on public charge
grounds when adjudicating immigrant visas, and 6,175 were overcome. For
nonimmigrants, the Department made 343 inadmissibility findings based
on public charge grounds, and 193 were overcome. When compared to the
overall volume of immigrant and nonimmigrant visa issuances, the number
of noncitizens found inadmissible who did not overcome that finding
while the 2019 IFR was in effect was negligible. Consequently, the
Department does not believe that reversion to the prior regulatory text
will affect worldwide levels of immigration.
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\20\ Department of State, Annual Report of the Visa Office 2020,
Table XIX, <a href="https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-Table%20XIX.pdf">https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-Table%20XIX.pdf</a>.
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Comment: Two commenters expressed support for the 2019 IFR, stating
that immigrants should be self-sufficient, and that visas should not be
issued to individuals who will not be able to support themselves.
Response: Even after the publication of this final rule, consular
officers will continue to apply the public charge ground of
inadmissibility to applicants for nonimmigrant and immigrant visas in
classifications that are subject to this ground of inadmissibility. A
consular officer who finds that an applicant for a visa is likely at
any time to become a public charge is required to refuse the
applicant's application on that basis.\21\ However, this refusal may be
overcome by presenting additional evidence to the consular officer that
the inadmissibility no longer applies, or by posting a ``suitable and
proper bond or undertaking.'' \22\
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\21\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), <a href="https://fam.state.gov/FAM/09FAM/09FAM030208.html">https://fam.state.gov/FAM/09FAM/09FAM030208.html</a> (last visited June 14,
2023).
\22\ 8 U.S.C. 1183.
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Additionally, federal law generally prevents noncitizens who are
subject to the public charge ground of inadmissibility from taking
advantage of means-tested benefits programs by generally excluding them
from participation for the five years after admission to the United
States or adjustment of status.\23\
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\23\ Public Law 104-193 tit. IV, 8 U.S.C. 1601 et seq.
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Consular officers shall apply the grounds in accordance with the
regulatory text that was in place prior to the publication of the 2019
IFR. Additionally, they will be advised to continue applying FAM
guidance that implements the public charge ground of inadmissibility,
which generally is aligned with the current DHS standards. After the
instant Final Rule takes effect, the Department anticipates that it
will undertake new notice-and-comment rulemaking in light of the 2022
DHS Final Rule.
Comment: One commenter expressed support for the 2019 IFR, stating
that visa applicants should be vetted to ensure they will not overstay
their visas, have children in the United States, and then apply for
welfare.
Response: All visa applicants undergo a thorough screening and
vetting process, and must establish to the satisfaction of the consular
officer that they are eligible to receive a visa in accordance with
U.S. law. Just as the Department will continue to faithfully administer
the public charge ground of inadmissibility, it will also continue to
administer the other wide-ranging grounds of inadmissibility in section
212(a) of the INA, 8 U.S.C. 1182(a), that apply to nonimmigrant and
immigrant visa applicants. However, whether an applicant is likely to
overstay their visa within the United States or have children is
outside the scope of a review of an applicant's admissibility on public
charge grounds.
Comment: One commenter expressed support for the 2019 IFR because,
in the commenter's view, it would reduce levels of unauthorized
presence of noncitizens in the United States. The commenter expressed
their belief that many immigrants in the United States ``refuse to
assimilate.''
Response: Levels of unauthorized presence and ``assimilation'' are
outside the scope of this rule. Consular officers apply the public
charge ground of visa ineligibility with respect to visa applicants,
and specifically those who are likely to become a public charge. This
rule and policy have no direct bearing on whether noncitizens remain in
lawful status in the United States.
Comment: One commenter expressed support for the 2019 IFR, stating
that according to some statistics, immigrants to the United States are
more highly educated and seek public benefits less often than citizens
born in the United States. For that reason, the commenter stated that
finalizing the 2019 IFR would not harm immigrant communities.
Response: The Department's policy goal of consistency with DHS
standards
[[Page 60578]]
in applying the public charge ground of inadmissibility weighs against
finalizing on a permanent basis amendments to regulations that were
implemented as a result of the 2019 IFR.
3. Comments in Opposition to 2019 IFR
(a) Oppose 2019 DHS Final Rule
Comment: 105 commenters expressed opposition to the Department's
2019 IFR citing their opposition to the 2019 DHS Final Rule. The stated
reasons for opposing the 2019 DHS Final Rule were varied and included
many of the other reasons listed in Table 3 above.
Response: The Department acknowledges the opposition expressed
towards the 2019 DHS Final Rule. The Department issued the 2019 IFR in
part to avoid situations when a consular officer would evaluate an
applicant's circumstances and conclude that the applicant is not likely
to become a public charge, only for DHS to reach a different conclusion
under the 2019 DHS Final Rule when the applicant sought admission to
the United States. In light of DHS's removal of the regulatory text
promulgated in the 2019 DHS Final Rule, as well as DHS's subsequent
issuance of the 2022 DHS Final Rule in which DHS explained its decision
to not again pursue the policies contained in the 2019 DHS Final
Rule,\24\ the Department's policy interest in ensuring that noncitizen
travelers to the United States in similarly situated circumstances are
subject to fair and consistent adjudications under U.S. law when
applying for a visa and when seeking admission to the United States on
that visa is not advanced by finalizing the regulatory amendments made
by the 2019 IFR. Rather, reverting to the Prior Rule will better ensure
that the Department maintains consistency with the 2022 DHS Final Rule
because the Prior Rule aligns with the standards contemplated by the
1999 Interim Field Guidance, which influenced the policy reflected in
the 2022 DHS Final Rule. Additionally, following reversion to the Prior
Rule, consular officers will apply the FAM guidance currently in place,
which generally is aligned with the current DHS standards, and avoids
treating visa applicants differently from similarly situated
applications for admission or adjustment of status under the 2022 DHS
Final Rule.
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\24\ See, e.g., 87 FR 55472, 55504 (Sept. 9, 2022).
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(b) 2019 IFR Is Unlawful
Comment: Many commenters suggested that the 2019 IFR should be
rescinded because it was contrary to the statute and was unlawful. Many
commenters had submitted their comments stating that the 2019 IFR was
unlawful before it was preliminarily enjoined by a federal district
court, but after the 2019 DHS Final Rule had been found unlawful and
preliminarily enjoined or vacated by federal courts. Some commenters in
2019 noted that federal district courts had issued injunctions against
the 2019 DHS Final Rule. Some commenters in response to the Public
Comment Reopening noted that on March 9, 2021, a federal district court
order vacating the 2019 DHS Final Rule went into effect.
Response: The judicial decision regarding the 2019 IFR that
enjoined its application, and the judicial decisions enjoining or
vacating the 2019 DHS Final Rule were considered in the Department's
decision to reopen the public comment period on the 2019 IFR.\25\ In
the 2019 IFR, the Department noted that, as a policy matter,
coordination of the Department's and DHS's implementation of the public
charge inadmissibility ground is critical to the Department's interest
in preventing inconsistent adjudication standards and different
outcomes between determinations of visa eligibility and determinations
of admissibility at or between a port of entry or in an application for
adjustment of status.\26\ Given DHS's adoption of the 2022 DHS Final
Rule, the Department's interest in coordinating adjudication standards
no longer favors retention of the regulatory amendments made by the
2019 IFR and instead favors a return to the Prior Rule.
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\25\ See 86 FR 64070.
\26\ See 84 FR 54996.
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(c) 2019 IFR Is Harmful to Immigrant Families
Comment: Some commenters expressed opposition to the overall public
charge policy reflected in the 2019 IFR because of what they alleged to
be its detrimental public health effect on immigrant families.
Response: The Department understands these commenters' concerns
about the relationship between public charge inadmissibility
determinations under the standards set forth in the 2019 DHS Final Rule
and the 2019 IFR and the willingness of immigrant families, including
U.S. citizen children in immigrant families, to receive public benefits
for which they were eligible. Following the reversion of regulations to
those in place prior to the 2019 IFR, the public charge grounds of visa
ineligibility have been and will be applied in a way that should
ameliorate the concern of these commenters. This final rule will be
accompanied by public outreach by the Department to ensure that
immigrant communities understand this rule, including how it differs
from the 2019 IFR.
(d) 2019 DHS Final Rule and 2019 IFR Were Enjoined
Comment: A large number of commenters argued that the 2019 IFR
should be rescinded because the 2019 DHS Final Rule, which was
consistent in substance with the 2019 IFR, was vacated by a federal
district court, and preliminarily enjoined by that court and multiple
other federal district courts. In response to the Public Charge
Reopening, several commenters also noted that the 2019 IFR itself was
preliminarily enjoined by a federal district court.
Response: As stated above, the judicial orders enjoining or
vacating the 2019 DHS Final Rule were considered in the Department's
decision to reopen the public comment period on the 2019 IFR.\27\ For
the reasons stated above, the Department is not finalizing that
regulatory text, and is instead reverting to the Prior Rule and
continuing to apply current FAM guidance,\28\ while considering new
rulemaking in light of the 2022 DHS Final Rule.
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\27\ See 86 FR 64070.
\28\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), <a href="https://fam.state.gov/FAM/09FAM/09FAM030208.html">https://fam.state.gov/FAM/09FAM/09FAM030208.html</a> (last visited June 14,
2023).
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(e) 2019 IFR Is Discriminatory or Racially Biased
Comment: 41 comments stated that the 2019 IFR was either racially
biased or discriminatory in how it applied the public charge ground of
inadmissibility. Commenters claimed that the 2019 IFR rendered certain
visa applicants inadmissible on public charge grounds due to conditions
in their countries of origin.
Response: The 2019 IFR explained the Department's reasons for
adopting the IFR, in particular as a means to ensure consistency with
the 2019 DHS Final Rule. As noted, the Department will not finalize the
regulatory amendments made by the 2019 IFR for the reasons stated
previously and anticipates that it will undertake further rulemaking in
light of the 2022 DHS Final Rule. In the development of any future
rulemaking regarding the public charge ground of inadmissibility, the
Department will continue to be faithful to the relevant statute and
congressional directions, including developing a rule that can be
applied fairly and consistently to applicants worldwide in a manner
consistent with the laws and values of the United States.
[[Page 60579]]
(f) Opposition to Circumstantial Eligibility Factors in 2019 IFR
Comment: 39 commenters expressed opposition to the 2019 IFR due to
what were described as circumstantial eligibility factors to be
considered in the totality of the circumstances analysis. The 2019 IFR
listed a number of factors that an adjudicator would consider in the
totality of the circumstances when determining whether a visa applicant
is inadmissible on public charge grounds and listed a number of
different benefits the receipt of which over a certain period of time
could lead to a finding of inadmissibility. Some commenters argued that
these factors were designed to increase the percentage of applicants
who would be found inadmissible. Others argued that the factors were so
complicated that public benefit administrators had difficulty advising
potential recipients on a course of action they could take that would
be consistent with the public charge policy set forth in the 2019 IFR.
Response: The Department's consular officers will continue to apply
a totality of the circumstances framework for the analysis of the
public charge ground of inadmissibility consistent with the statute,
the Prior Rule, and guidance published in the FAM. Under the FAM
guidance, in making public charge inadmissibility determinations,
consular officers will look at ``many factors . . . including age,
health, family status, assets, resources, financial status, education,
and skills. No single factor, other than the lack of a qualifying
affidavit of support, in accordance with INA 213A, if required, will
determine whether an individual is a public charge.'' \29\ Under this
FAM guidance, these factors make up the ``totality of the
circumstances'' framework that was in place prior to the publication of
the 2019 IFR. This framework aligns more closely with the current DHS
standards than the 2019 IFR.\30\ The FAM guidance clearly notes for
adjudicators and the public that the application of the public charge
ground of inadmissibility differs significantly from the heavily
weighted positive and negative factors set forth in the 2019 IFR. The
FAM guidance is also consistent with the Prior Rule, which along with
the statute will govern adjudications.
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\29\ See 9 FAM 302.8-2(B)(1)--Definition of Public Charge
<a href="https://fam.state.gov/FAM/09FAM/09FAM030208.html">https://fam.state.gov/FAM/09FAM/09FAM030208.html</a> (last visited June
14, 2023).
\30\ 9 FAM 302.8-2(B)(2)--Public Charge--Applying INA 212(a)(4)
to Immigrants, <a href="https://fam.state.gov/FAM/09FAM/09FAM030208.html">https://fam.state.gov/FAM/09FAM/09FAM030208.html</a>
(last visited June 14, 2023).
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(g) 2019 IFR Is Economically Burdensome on Families
Comment: 39 commenters stated that the overall public charge policy
reflected in the 2019 IFR imposed economic burdens on immigrant
families and other vulnerable populations within the United States,
increasing healthcare costs on an aggregate basis and increasing food
insecurity.
Response: Neither the 2019 IFR nor this final rule address
eligibility standards for the receipt of public benefits. However, the
Department acknowledges the data provided by public commenters showing
a measurable drop in receipt of public benefits by individuals who were
eligible to receive such benefits during the time period after the
publication of the 2019 DHS Final Rule and the 2019 IFR.\31\ Following
the effective date of this Final Rule, the public charge
inadmissibility ground will be applied as interpreted by the Prior Rule
and FAM guidance, which generally are aligned more closely with the
current DHS standards than the 2019 IFR. Reverting to the Prior Rule
will reduce any unintended economic burdens among immigrant populations
not subject to the public charge ground of inadmissibility, while not
imposing undue burdens on the public.
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\31\ New American Economy, The New ``Public Charge Rule and its
Negative Impact on the U.S. Economy, Feb. 2, 2021, <a href="https://research.newamericaneconomy.org/report/economic-impact-of-public-charge-rule/">https://research.newamericaneconomy.org/report/economic-impact-of-public-charge-rule/</a>.
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(h) Methods of Calculation in 2019 IFR Are Unfairly Derived
Comment: Distinct from the opposition to the ``totality of the
circumstances'' framework set forth in the 2019 IFR, a number of
commenters argued that its methods of calculation of factors in public
charge inadmissibility determinations, both positively and negatively
weighted, with certain factors being heavily weighted in either
direction, were themselves unfairly derived and applied. Specifically,
commenters argued that the way in which factors were heavily weighted,
either positively or negatively, would result in inconsistent
adjudicatory results in applying the public charge grounds of
inadmissibility.
Response: Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
consular officers are required to consider specific factors, at a
minimum, in determining whether an applicant for a nonimmigrant or
immigrant visa is inadmissible because they are likely at any time to
become a public charge. These factors are the applicant's age; health;
family status; assets, resources, and financial status; and education
and skills. Furthermore, a consular officer may also consider an
Affidavit of Support Under Section 213A of the INA submitted on the
noncitizen's behalf when such is required.\32\ The 2019 IFR sought to
ensure the Department was consistent with the policy set forth in the
2019 DHS Final Rule in how the Department considered such factors when
applying the public charge ground. DHS promulgated a new rule in 2022
that departs from the 2019 DHS Final Rule and the 2019 IFR's approach
to consideration of such factors. Accordingly, as explained, the
Department will not finalize the regulatory amendments made by the 2019
IFR, including its approach to consideration of such factors, because
doing so would create rather than avoid inconsistency with DHS. The
Department is also inclined to agree with DHS's analysis regarding the
issues posed by the weighing of factors in the 2019 DHS Final Rule. The
Department anticipates that it will engage in further rulemaking in
light of DHS's 2022 rule.
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\32\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
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As the Department is not finalizing the regulatory amendments made
by the 2019 IFR, the inadmissibility of applicants for nonimmigrant and
immigrant visas subject to the public charge ground shall be reviewed
on the basis of the totality of their circumstances, consistent with
Department regulations and guidance in place prior to the promulgation
of the 2019 IFR.
(i) Breadth of Definition of ``Public Charge'' in 2019 IFR
Comment: 31 commenters opposed the definition of ``public charge''
set forth in the 2019 IFR. Commenters stated that the definition was
too broad; asserted that it was inconsistent with congressional intent,
historical practice, judicial decisions, and administrative guidance;
and raised other objections to the definition listed therein.
Response: While the term ``public charge'' is not defined in the
text of the INA and the statute vests the Department with discretion in
its administration, the Department acknowledges that the definition set
forth in the 2019 IFR and the 2019 DHS Final Rule differed
significantly from the definition applied for decades previously, most
notably in the 1999 Interim Field Guidance and related FAM guidance
issued by the Department. The 2019 IFR had
[[Page 60580]]
implemented this definition out of a desire to more closely align with
the standards then applied by DHS in determining inadmissibility on
public charge grounds. In 2022, DHS published a new Final Rule,
implementing different standards. In the 2022 DHS Final Rule, DHS
discussed in depth the definition that it used in the 2019 DHS Final
Rule, and how it will not be applied in implementing the 2022 DHS Final
Rule. As such, the 2019 IFR no longer meets the policy aim of
consistency with DHS standards. The Department will instead restore the
Prior Rule, and after the instant rule is finalized, anticipates that
it will initiate new rulemaking in light of the 2022 DHS Final Rule.
(j) Private Health Insurance Concerns
Comment: Some commenters, particularly those focused on healthcare,
asserted that the overall public charge policy reflected in the 2019
IFR had an adverse effect on the private health insurance industry. In
particular, commenters stated that the increased numbers of immigrants
not accepting public health benefits to which they would normally be
eligible caused overall healthcare costs to increase, leading to an
aggregate increase in private health insurance premiums for the public.
Response: The Department appreciates these commenters' concerns
about the relationship between public charge inadmissibility
determinations and private health insurance. We acknowledge evidence
provided by many commenters suggesting that perceptions about the
overall public charge policy reflected in the 2019 IFR had unintended
effects on the willingness of individuals outside the scope of the IFR,
such as U.S. citizens with noncitizen family members, to enroll in
health insurance programs for which they are eligible.\33\ The
reversion to the Prior Rule will provide applicants with a clearer
understanding of the application of the public charge grounds of
inadmissibility, which should mitigate unintended consequences such as
disenrollment in health insurance programs by U.S. citizens with non-
citizen family members.
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\33\ Department of Health and Human Services, ``Health Insurance
Coverage and Access to Care for Immigrants: Key Challenges and
Policy Options'' (Dec. 17, 2021), <a href="https://aspe.hhs.gov/sites/default/files/documents/96cf770b168dfd45784cdcefd533d53e/immigrant-health-equity-brief.pdf">https://aspe.hhs.gov/sites/default/files/documents/96cf770b168dfd45784cdcefd533d53e/immigrant-health-equity-brief.pdf</a>.
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(k) Inconsistent With Executive Order 14012
Comment: Three commenters suggested that the 2019 IFR should be
rescinded because it contradicts E.O. 14012,\34\ which called on
government departments and agencies to review public charge policies
and other current immigration policies, in order to consider their
effect on the integrity of the national immigration system. E.O. 14012
also called upon government departments to consider better methods of
communicating its public charge policies and proposed changes, if any,
with the public.
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\34\ Executive Order 14012, 86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------
Response: Through the instant rulemaking, the Department is
declining to make permanent the regulatory amendments made by the 2019
IFR. The Department anticipates that it will engage in rulemaking in
light of the 2022 DHS Final Rule, pursuant to the Executive Branch's
policy as articulated in section 1 of E.O. 14012. Until a subsequent
rule is developed and published, the Department will continue to
instruct its consular officers to apply the public charge ground of
inadmissibility consistent with the statute, Prior Rule, and guidance
contained in the FAM.\35\
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\35\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), <a href="https://fam.state.gov/FAM/09FAM/09FAM030208.html">https://fam.state.gov/FAM/09FAM/09FAM030208.html</a> (last visited June 14,
2023).
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(l) Excessive Burden on State, Local, and Territorial Governments
Comment: Some localities and states submitted comments, arguing
that the overall public charge policy reflected in the 2019 IFR
constituted a burden on state, local and territorial governments'
ability to administer their own public health services and other
benefits.
Response: The Department acknowledges the uncertainty many state,
local, Tribal, and territorial governments experienced due to the
administrative changes caused by the overall public charge policy
reflected in the 2019 IFR. According to a joint public comment by
attorneys general from twenty states and the District of Columbia,
immigrant parents of school aged children, whether citizens, LPRs, or
noncitizens, were hesitant to participate in distance learning, accept
loaned technology, or participate in food distribution programs such as
the National School Lunch Program, School Breakfast Program, and the
Summer Food Service Meal Program provided by state and local
governments due to confusion regarding the overall public charge
policy. Other public commenters have expressed concern that the 2019
IFR dissuaded individuals in several communities, such as U.S. citizen
family members of noncitizens overseas applying for visas, from
applying for, collecting or retaining public benefits for which they
would have been eligible. And some commenters representing local and
state governments stated that they found a decline in enrollment in
public benefit programs relating to the overall change in public charge
policy, which resulted in unexpected changes to program usage.
Following the reversion of regulations to those in place prior to the
2019 IFR, the public charge ground of visa ineligibility has been and
will be applied in a way that should ameliorate the concern of these
commenters. This final rule will be accompanied by public outreach by
the Department and other stakeholders to ensure that immigrant
communities understand this rule, including how it differs from the
2019 IFR.
G. Contents of This Final Rule
In continuing to apply the interpretation of the public charge
ground of inadmissibility that existed prior to the 2019 IFR, this
final rule removes the amendments to the regulation made by the 2019
IFR and restores the regulatory text of the Prior Rule. The Department
finds, following its review of the public comments and the changes in
circumstances following publication of the 2019 IFR, that the
Department's policy of ensuring consistency with DHS no longer supports
the 2019 IFR and that the Department should conduct further notice-and-
comment rulemaking in light of the 2022 DHS Final Rule.
The Public Comment Reopening solicited comments on (1) whether the
2019 IFR should be rescinded or revised, and (2) what final rule should
be adopted, if any. In reviewing the public comments submitted in
response to it, along with public comments provided in response to the
2019 IFR, together with E.O. 14012 and the standards set forth in the
2022 DHS Final Rule, the Department has concluded that reverting to the
Prior Rule is the most appropriate path forward.
The Department is therefore not finalizing the regulatory
amendments made by the 2019 IFR and is instead reverting to the Prior
Rule. This does not represent any change from the policies the
Department has applied since 2020, when the preliminary injunction of
the 2019 IFR took effect. This final rule restores the Prior Rule, with
the exception of a technical change
[[Page 60581]]
made to remove an outdated reference to a particular portion of the
Schedule of Fees for Consular Services.\36\
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\36\ The Department also notes that the 2019 IFR found that the
description of a procedure relating to the posting of a bond or
undertaking was obsolete. See 84 FR 54996, 55010. While some of the
specific steps to posting a bond, as described in 22 CFR 40.41(d),
have changed since the original publication of the Prior Rule, the
posting of a bond by a visa applicant is still authorized by
sections 213 and 221(g) of the INA, 8 U.S.C. 1183, 1201. Revisions
to this rule to update the bond procedure and other provisions would
be considered in the development of any future rule governing the
public charge ground of inadmissibility but are not addressed by
this final rule.
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The interpretation of the public charge ground of inadmissibility
in the Prior Rule more closely aligns with the standards articulated in
the 2022 DHS Final Rule. There is a significant policy interest in
ensuring that similarly situated noncitizen travelers to the United
States are subject to fair and consistent adjudications under U.S. law
when applying for a visa and when seeking admission to the United
States on that visa. While the Prior Rule differs in some respects from
the 2022 DHS Final Rule (for example, while the 2022 DHS Final Rule
amends an existing information collection, the Department is not
implementing any changes to its information collections in reverting to
the Prior Rule), the change will greatly decrease the potential for
unequal treatment and undue barriers for noncitizens applying for
visas.
Following publication of this final rule, the Department intends to
commence new rulemaking, which will have the goal of publishing and
implementing a more comprehensive public charge regulation. For the
reasons discussed in this rule, the Department has removed the
regulations promulgated under the 2019 IFR and reverted to the prior
text of 22 CFR 40.41.
II. Regulatory Findings
A. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (``UMRA''),
generally requires agencies to prepare a statement before proposing any
rule that may result in an annual expenditure of $100 million or more
(adjusted for inflation) by State, local, territorial, or Tribal
governments, or by the private sector. This rule will generally
continue consular practices that had been in place prior to 2019, and
that have been applied since the 2019 IFR was preliminarily enjoined by
a District Court in 2020. This rule does not require the Department to
prepare a statement because it is not anticipated that it will result
in an annual expenditure of $100 million or more (adjusted for
inflation) by State, local, territorial, or Tribal governments, or by
the private sector.\37\ Additionally, this rule does not contain any
Federal mandate (as defined in UMRA) because it does not impose any
enforceable duty upon any level of government or private sector entity.
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\37\ 2 U.S.C. 1532(a).
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B. Executive Order 12866--Regulatory Planning and Review
The Department has reviewed this rule to ensure its consistency
with the regulatory philosophy and principles set forth in Executive
Order 12866. The Office of Management and Budget (OMB) has determined
that this is a significant regulatory action under Executive Order
12866. As such, OMB has reviewed this regulation accordingly.
In comparison to the 2019 IFR, which was previously published and
put into effect, this rule may result in new costs, benefits, and
transfers. The Department does not believe there are any quantifiable
new direct costs for this final rule, as the Department is not
proposing to add additional information collection burdens on visa
applicants. As such, visa applicants will see no increase in the time
it takes to complete either the immigrant visa application or the
nonimmigrant visa application or associated opportunity costs.
The Department believes that this final rule may have indirect
effects on State, local, territorial, and/or Tribal governments,
primarily in the form of increased transfer payments from federal,
state, territorial and Tribal governments to individuals. According to
OMB Circular A-4, transfer payments are payments of money from one
group to another for which no goods or services are exchanged, and do
not affect the total resources available to society.\38\ Changes in
transfer payments are considered neither costs nor benefits of a rule.
While acknowledging the potential chilling effects caused by the 2019
IFR, the Department emphasizes that neither the public charge statute
nor this final rule directly regulates eligibility for public benefits
for any population. While the removal of the 2019 IFR from the
regulations may result in increased transfer payments, the Department
is unable to concretely quantify these effects. This final rule is
being published after DHS published the 2022 DHS Final Rule, which may
have a more significant impact on the willingness of noncitizens to
accept transfer payments than the removal of the 2019 IFR.
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\38\ See OMB, ``Circular A-4'' (Sept. 17, 2003), <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf</a>.
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Further, the 2019 IFR was only in effect between October 15, 2019,
when it was published in the Federal Register,\39\ and July 29, 2020,
when the United States District Court for the Southern District of New
York issued a preliminary injunction enjoining the Department from its
application.\40\ In addition, on March 20, 2020, in response to the
worldwide COVID-19 pandemic the Department temporarily suspended
routine visa services at all U.S. Embassies and Consulates.\41\ A
phased resumption of services began on July 15, 2020, just two weeks
before the preliminary injunction was issued.\42\
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\39\ 84 FR 54996 (Oct. 11, 2019).
\40\ See Make the Road N.Y v. Pompeo, 475 F.Supp. 3d 232
(S.D.N.Y. 2020).
\41\ Department of State, Suspension of Routine Visa Services
(Mar. 20, 2020), <a href="https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html">https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html</a>.
\42\ Department of State, Phased Resumption of Visa Services,
(July 15, 2020), <a href="https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html">https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html</a>.
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Consistent with E.O. 12866, the Department considered the costs and
benefits of available regulatory alternatives. One alternative that the
Department considered was finalizing the regulatory amendments made by
the 2019 IFR. However, as noted above, the Department adopted the 2019
IFR largely to conform with the 2019 DHS Final Rule, which has been
supplanted by the 2022 DHS Final Rule. In publishing this final rule,
the public charge grounds of inadmissibility will be applied using the
Prior Rule and FAM Guidance, as they were applied prior to 2019. The
Department believes that, to the extent practicable, standards for the
enforcement of the public charge ground of inadmissibility should be
consistent in order to ensure consistent application among similarly
situated noncitizens. As such, the Department does not believe that
finalizing the regulatory amendments made by the 2019 IFR would be the
best course of action.
C. Executive Orders 13563 and 14094--Improving and Modernizing
Regulation and Regulatory Review
Along with Executive Order 12866, Executive Order 13563 directs
agencies to assess costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributed impacts,
and equity).
[[Page 60582]]
The Department has reviewed the final rule under Executive Order 13563
and has determined that this rulemaking is consistent with the
principles therein.
Additionally, the Department has reviewed this rule to ensure its
consistency with the regulatory philosophy and principles set forth in
Executive Order 14094 and confirms this rulemaking is consistent with
the principles therein.
D. Executive Orders 12372 and 13132--Federalism
This final rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Nor will the final rule have federalism
implications warranting the application of Executive Orders 12372 and
13132.
E. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
The Department has determined that this rulemaking will not have
Tribal implications, will not impose substantial direct compliance
costs on Indian Tribal governments, and will not preempt Tribal law.
Accordingly, the requirements of Section 5 of Executive Order 13175 do
not apply to this rulemaking.
F. Executive Order 12988--Civil Justice Reform
The Department has reviewed the rule considering sections 3(a) and
3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize
litigation, establish clear legal standards, and reduce burden.
G. Paperwork Reduction Act
This final rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501-
3520. The 2019 IFR imposed a new information collection requirement.
OMB subsequently granted an emergency approval for the use of a new
form by the Department, DS-5540, Public Charge Questionnaire (``DS-
5540'').\43\ The emergency approval was granted only until August 31,
2020, and expired after that date. OMB has not approved the information
collection under the DS-5540 since that time, and on March 26, 2021,
the Department published a notice stating that visa applicants are not
required to complete and should not present a DS-5540.\44\
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\43\ Notice of OMB Emergency Approval of Information Collection:
Public Charge Questionnaire, 85 FR 13694 (Mar. 9, 2020).
\44\ Update on Public Charge, <a href="https://travel.state.gov/content/travel/en/News/visas-news/update-on-public-charge.html">https://travel.state.gov/content/travel/en/News/visas-news/update-on-public-charge.html</a> (Mar. 26,
2021).
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H. Regulatory Flexibility Act/Executive Order 13272: Small Businesses
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires
agencies to perform an analysis of the potential impact of regulations
on small businesses, small governmental jurisdictions, and small
organizations during the development of their rules. ``Small entities''
comprises small business, not-for-profit organizations that are
independently owned and operated and not dominant within their fields,
or governmental jurisdictions with populations under 50,000. This final
rule would not regulate ``small entities'' as that term is defined in 5
U.S.C. 601(6) and as such does not have a significant economic impact
on a substantial number of small entities. This final rule only applies
to individual visa applicants, which are not defined as a ``small
entity'' by the RFA.
I. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this final rule is not a ``major rule'' as defined by Subtitle E
of the Small Business Regulatory Enforcement Fairness Act of 1996, also
known as the Congressional Review Act, 5 U.S.C. 804(2). This final rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and import markets.
The Department will send this final rule to Congress and to the
Comptroller General pursuant to the Congressional Review Act, 5 U.S.C.
801.
List of Subjects in 22 CFR Part 40
Administrative practice and procedure, Aliens, Foreign relations,
Passports and visas.
For the reasons stated in the preamble, the Department amends 22
CFR part 40 as follows:
PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 40 continues to read as follows:
Authority: 8 U.S.C. 1104, 1182, 1183a, 1641.
0
2. Section 40.41 is revised to read as follows:
Sec. 40.41 Public charge.
(a) Basis for determination of ineligibility. Any determination
that an alien is ineligible under INA 212(a)(4) must be predicated upon
circumstances indicating that, notwithstanding any affidavit of support
that may have been filed on the alien's behalf, the alien is likely to
become a public charge after admission, or, if applicable, that the
alien has failed to fulfill the affidavit of support requirement of INA
212(a)(4)(C).
(b) Affidavit of support. Any alien seeking an immigrant visa under
INA 201(b)(2), 203(a), or 203(b), based upon a petition filed by a
relative of the alien (or in the case of a petition filed under INA
203(b) by an entity in which a relative has a significant ownership
interest), shall be required to present to the consular officer an
affidavit of support (AOS) on a form that complies with terms and
conditions established by the Secretary of Homeland Security.
Petitioners for applicants at a post designated by the Deputy Assistant
Secretary for Visa Services for initial review of and assistance with
such an AOS will be charged a fee for such review and assistance
pursuant to the Schedule of Fees for Consular Services (22 CFR 22.1).
(c) Joint sponsors. Submission of one or more additional affidavits
of support by a joint sponsor/sponsors is required whenever the
relative sponsor's household income and significant assets, and the
immigrant's assets, do not meet the Federal poverty line requirements
of INA 213A.
(d) Posting of bond. A consular officer may issue a visa to an
alien who is within the purview of INA 212(a)(4) (subject to the
affidavit of support requirement and attribution of sponsor's income
and resources under section 213A), upon receipt of a notice from DHS of
the giving of a bond or undertaking in accordance with INA 213 and INA
221(g), and provided further that the officer is satisfied that the
giving of such bond or undertaking removes the likelihood that the
alien will become a public charge within the meaning of this section of
the law and that the alien is otherwise eligible in all respects.
(e) Prearranged employment. An immigrant visa applicant relying on
an offer of prearranged employment to establish eligibility under INA
212(a)(4), other than an offer of employment certified by the
Department of Labor
[[Page 60583]]
pursuant to INA 212(a)(5)(A), must provide written confirmation of the
relevant information sworn and subscribed to before a notary public by
the employer or an authorized employee or agent of the employer. The
signer's printed name and position or other relationship with the
employer must accompany the signature.
(f) Use of Federal poverty line Where INA 213A not applicable. An
immigrant visa applicant, not subject to the requirements of INA 213A,
and relying solely on personal income to establish eligibility under
INA 212(a)(4), who does not demonstrate an annual income above the
Federal poverty line, as defined in INA 213A(h), and who is without
other adequate financial resources, shall be presumed ineligible under
INA 212(a)(4).
Hugo Rodriguez,
Principal Deputy Assistant Secretary, Bureau of Consular Affairs,
Department of State.
[FR Doc. 2023-19047 Filed 9-1-23; 8:45 am]
BILLING CODE 4710-06-P
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</html>Indexed from Federal Register on September 5, 2023.
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