Proposed Rule2025-20278
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
November 19, 2025
Issuing agencies
Homeland Security Department
Abstract
DHS proposes to rescind the 2022 public charge ground of inadmissibility regulations. The 2022 regulations are not the best implementation of the statute, inconsistent with congressional intent, unduly restrictive, and hamper DHS's ability to make accurate, precise, and reliable determinations of whether certain aliens are likely at any time to become a public charge. Rescission would restore broader discretion to evaluate all pertinent facts and align with long-standing policy that aliens in the United States should be self-reliant and government benefits should not incentivize immigration. DHS also proposes to address the breach and cancellation of public charge bonds.
Full Text
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<title>Federal Register, Volume 90 Issue 221 (Wednesday, November 19, 2025)</title>
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[Federal Register Volume 90, Number 221 (Wednesday, November 19, 2025)]
[Proposed Rules]
[Pages 52168-52224]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-20278]
[[Page 52167]]
Vol. 90
Wednesday,
No. 221
November 19, 2025
Part II
Department of Homeland Security
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8 CFR Part 103 and 212
Public Charge Ground of Inadmissibility; Proposed Rule
Federal Register / Vol. 90 , No. 221 / Wednesday, November 19, 2025 /
Proposed Rules
[[Page 52168]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103 and 212
[CIS No. 2836-25; DHS Docket No. USCIS-2025-0304]
RIN 1615-AD06
Public Charge Ground of Inadmissibility
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS'').
ACTION: Notice of proposed rulemaking.
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SUMMARY: DHS proposes to rescind the 2022 public charge ground of
inadmissibility regulations. The 2022 regulations are not the best
implementation of the statute, inconsistent with congressional intent,
unduly restrictive, and hamper DHS's ability to make accurate, precise,
and reliable determinations of whether certain aliens are likely at any
time to become a public charge. Rescission would restore broader
discretion to evaluate all pertinent facts and align with long-standing
policy that aliens in the United States should be self-reliant and
government benefits should not incentivize immigration. DHS also
proposes to address the breach and cancellation of public charge bonds.
DATES:
NPRM comment period: Written comments on the NPRM must be submitted
on or before December 19, 2025. The electronic Federal Docket
Management System will accept comments prior to midnight eastern time
at the end of that day.
Information collection comment period: Comments on the information
collection described in the Paperwork Reduction Act section below must
be received by January 20, 2026.
ADDRESSES:
Comments on the NPRM: You may submit comments on this NPRM,
identified by DHS Docket No. USCIS-2025-0304, through the Federal e-
Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In accordance with 5
U.S.C. 553(b)(4), the summary of this rule found above may also be
found at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the website instructions
for submitting comments.
Comments on the Information Collection: Submit comments on the
information collections to the same docket as the NPRM. In addition,
all comments on the information collections must include the following
OMB Control Numbers: Form I-485 (1615-0023), Form I-945 (1615-0143),
and Form I-356 (1615-0141).
Comments must be submitted in English, or an English translation
must be provided. Comments submitted in a manner other than via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the NPRM and may not
receive a response from DHS. Please note that DHS and USCIS cannot
accept any comments that are hand-delivered or couriered. In addition,
USCIS cannot accept comments contained on any form of digital media
storage devices, such as CDs/DVDs and USB drives. USCIS is also not
accepting mailed comments at this time.
If you cannot submit your comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact Regulatory Coordination Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, Department of Homeland Security, by telephone at (240) 721-
3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: U.S. Citizenship and Immigration
Services (USCIS), DHS, 5900 Capital Gateway Drive, Camp Springs, MD
20746; telephone (240) 721-3000 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Legal Authority
C. Summary of the Major Provisions of the Regulatory Action
D. Costs and Benefits
III. Background
A. Legal Authority
B. Grounds of Inadmissibility Generally
C. Public Charge Ground of Inadmissibility
1. Public Charge Statutes and Case Law, Pre-IIRIRA
2. Public Benefits Under PRWORA
3. Changes Under IIRIRA
4. INS 1999 Notice of Proposed Rulemaking and Interim Field
Guidance
5. Victims of Trafficking and Violence Protection Act of 2000
6. DHS 2018 Inadmissibility on Public Charge Grounds Notice of
Proposed Rulemaking and 2019 Final Rule
7. DHS 2022 Public Charge Ground of Inadmissibility Advance
Notice of Proposed Rulemaking, Notice of Proposed Rulemaking, and
Final Rule
IV. Basis and Purpose of the NPRM
A. The Prior Rules Were Overly Restrictive
B. Removal of the Existing Public Charge Inadmissibility
Framework
V. Discussion of the NPRM
A. Introduction
B. Discussion of the Amendments and Removals in the NPRM
1. Cancellation and Breach of Public Charge Bonds--8 CFR
103.6(c)
2. Proposed Removal of Definitions and Regulatory Framework for
Making Public Charge Inadmissibility Determinations--8 CFR 212.21
3. Removal of Regulations Outlining the Public Charge
Inadmissibility Determination--8 CFR 212.22
4. Exemptions and Waivers for Public Charge Ground of
Inadmissibility--8 CFR 212.23
5. Applicability of Public Charge Inadmissibility--8 CFR 212.20
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review),
and 14192 (Unleashing Prosperity Through Deregulation)
1. Summary
2. Background and Purpose
3. Population
4. Cost-Benefit Analysis
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Family Assessment
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act
I. Paperwork Reduction Act
Table of Abbreviations
ANPRM--Advance Notice of Proposed Rulemaking
APA--Administrative Procedure Act
ASC--Application Support Center
BIA--Board of Immigration Appeals
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
CHIP--Children's Health Insurance Program
COVID-19--Coronavirus Disease 2019
CPI-U--Consumer Price Index for All Urban Consumers
DHS--U.S. Department of Homeland Security
DOJ--Department of Justice
DOS--U.S. Department of State
E.O.--Executive Order
FAM--Department of State Foreign Affairs Manual
FFP--Federal Financial Participation
FMAP--Federal Medical Assistance Percentages
FR--Federal Register
FY--Fiscal Year
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
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
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PRWORA--Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
RFA--Regulatory Flexibility Act of 1980
RIA--Regulatory Impact Analysis
SNAP--Supplemental Nutrition Assistance Program
SSA--Social Security Administration
SSI--Supplemental Security Income
TANF--Temporary Assistance for Needy Families
TPS--Temporary Protected Status
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed above, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0304 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2025-0304. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this proposed rulemaking is to remove the current
public charge inadmissibility provisions promulgated by the Public
Charge Ground of Inadmissibility final rule (2022 Final Rule),\1\ as
these provisions straitjacket DHS officers' ability to make public
charge inadmissibility determinations that are consistent with
Congress's express national policy on welfare and immigration enacted
in the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA). See Public Law 104-193, section 400, 110 Stat. 2105,
2260 (codified at 8 U.S.C. 1601). The 2022 Final Rule imposes narrow
definitions of statutory terms and the statutory minimum factors and
limits the public benefits that DHS can consider in a public charge
inadmissibility determination, which prevents DHS officers from
considering all factors and information relevant to an alien's
likelihood at any time of becoming a public charge, as Congress
intended. Indeed, the 2022 Final Rule created a framework under which
officers were directed to consider seven factors (five of those
required by statute) rather than being explicitly empowered to consider
any other factors or information relevant to determining an alien's
likelihood at any time of becoming a public charge in the totality of
the alien's circumstances.\2\ Compare that to the 2019 Final Rule, in
which officers were directed to consider ``all factors that are
relevant'' and listed ``minimum factors to consider,'' stating that the
public charge inadmissibility determination ``must at least entail
consideration'' of those minimum factors. 8 CFR 212.22 (2019).
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\1\ 87 FR 55472 (Sept. 9, 2022).
\2\ For example, when considering the challenge to the 2019
Final Rule, the Fourth Circuit emphasized that the language in the
provision indicates that the executive has extensive and ultimate
discretion over the relevant determination, especially since
Congress embedded discretion into the statutory scheme such as by
identifying minimum, but not exclusive, factors for consideration.
See CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 242-244 (4th Cir.
2020) (request for rehearing en banc granted but case was
dismissed). DHS believes that this rescission will be more
consistent with Congressional intent as it would restore ultimate
discretion for officers to consider not just the minimum statutory
factors but also any other information the officer deems relevant to
a public charge inadmissibility determination.
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DHS intends to remove the regulatory provisions in the 2022 Final
Rule with the exception of certain public charge bond provisions and
technical corrections, which will pave the way for DHS to, in the
future, formulate appropriate policy and interpretive tools that will
guide DHS officers in making individualized, fact-specific public
charge inadmissibility determinations, based on a totality of the
alien's circumstances, that are consistent with the statute and
congressional intent, and comply with past precedent.\3\
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\3\ See Matter of Vindman, 16 I&N Dec. 131, 132 (BIA 1977)
(``The elements constituting likelihood of an alien becoming a
public charge are varied. They are not defined by statute, but
rather are determined administratively upon consideration of all the
factors bearing on the alien's ability or potential ability to be
self-supporting.'') (emphasis added); Matter of Harutunian, 14 I&N
Dec. 583, 588 (BIA 1974) (``Since the elements constituting
likelihood of becoming a public charge are varied, there should be
no attempt to define the term in the law, but rather to establish
the specific qualification that the determination of whether an
alien falls into that category rests within the discretion of the
consular officers or the Commissioner.'').
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DHS notes that while it is proposing to remove the public charge
inadmissibility regulations in the short-term, DHS intends, after the
removal of these regulations, to formulate appropriate policy and
interpretive tools that will guide public charge inadmissibility
determinations while empowering officers to consider: (1) the mandatory
statutory factors in section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B); (2) all individualized case-specific factors and
circumstances relevant to an alien's case; and (3) any empirical data
relevant to an alien's self-sufficiency. Consideration of these, in the
totality of the circumstances, will allow officers to more accurately
assess an alien's likelihood at any time of becoming a public charge
using their good judgment and discretion, as Congress intended.
Consequently, through this NPRM, DHS proposes to move away from a
bright line primary dependence standard, which would allow officers to
make public charge inadmissibility determinations consistent with 8
U.S.C. 1601(2)(A) and reflected in established administrative case law
prior to the 2022 Final Rule, and removing limitations on the types of
public resources that are relevant for considering whether an alien is
dependent, including the references to public cash assistance for
income maintenance or long-term institutionalization at government
expense. DHS welcomes feedback and recommendations on what to include
in
[[Page 52170]]
future policy and interpretive tools on public charge inadmissibility.
B. Summary of Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
the proposed rescissions and 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 Major Provisions of the Regulatory Action
DHS proposes the following changes:
<bullet> Amend 8 CFR 103.6(c), Cancellation and breach
<bullet> Remove 8 CFR 212.20, Applicability of public charge
inadmissibility
<bullet> Remove 8 CFR 212.21, Definitions
<bullet> Remove 8 CFR 212.22, Public charge inadmissibility
determination
<bullet> Remove 8 CFR 212.23, Exemptions and waivers for public
charge ground of inadmissibility
D. Costs and Benefits
DHS proposes to remove most provisions implemented in the 2022
Final Rule to allow DHS to better implement the public charge ground of
inadmissibility. The proposed rule is expected to impose new benefits
and transfers. To assess the impacts of the proposed rule, DHS
considers the potential impacts of the rule relative to a no-action
baseline, which reflects the current state of the world absent this
regulatory action.
The primary source of unquantified benefits of this proposed rule
is the removal of overly-restrictive provisions promulgated in the 2022
Final Rule that hinder officers in making public charge inadmissibility
determinations. By removing rigid regulatory definitions and standards,
this proposed rule would ensure that officers would be able to make
highly individualized, fact-specific, case-by-case public charge
inadmissibility decisions based on the totality of each alien's
individual circumstances. This approach would prevent the application
of overly restrictive criteria that unnecessarily limits DHS officers'
ability to make public charge inadmissibility determinations.
The proposed rule would also result in a reduction in transfer
payments from the Federal Government to individuals who may choose to
disenroll from or forgo enrollment in a public benefits program.
Individuals who might choose to disenroll from or forgo future
enrollment in a public benefits program include aliens as well as U.S.
citizens who are members of mixed-status households. DHS estimates that
the total reduction in transfer payments from the Federal and State
governments could be approximately $8.97 billion annually due to
disenrollment or forgone enrollment in public benefits programs by
members of households that include aliens who may be receiving public
benefits. DHS estimates that the 10-year discounted Federal and State
transfer payments reduction of this proposed rule could be
approximately $76.48 billion at a 3-percent discount rate and about
$62.97 billion at a 7-percent discount rate. This total includes DHS'
estimate that Federal transfer payments could decrease by approximately
$45.12 billion at a 3-percent discount rate and about $37.15 billion at
a 7-percent discount rate. Using the average Federal Medical Assistance
Percentages (FMAP), DHS further estimates that State transfer payments
could decrease by approximately $31.35 billion at a 3-percent discount
rate and about $25.82 billion at a 7-percent discount rate. DHS notes
there may be additional reductions in transfer payments that we are
unable to quantify. DHS also recognizes that the estimated reductions
in transfer payments are approximations and could be influenced by
external factors unrelated to this proposed rule. For example, the
recent enrollment changes to Medicaid and SNAP implemented in the H.R.
1 Reconciliation Bill are expected to impact enrollment rates, adding
complexity to quantification efforts.\4\ DHS anticipates that
disenrollment or forgone enrollment rates may fluctuate independently
of this proposed rule, potentially affecting the transfer payment
estimates presented in this analysis. However, it is too early to
assess the impact of these policies on public benefit usage, and
consequently, on the impact on overall estimates presented in this
analysis.
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\4\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
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Finally, DHS recognizes that reductions in Federal and State
transfers under Federal benefits programs may have downstream and
upstream impacts on State and local economies, large and small
businesses, and individuals. For example, the rule might result in
reduced revenues for healthcare providers, such as hospitals and
nonprofits, participating in Medicaid, companies that manufacture
medical supplies or pharmaceuticals, grocery retailers participating in
SNAP, agricultural producers who grow foods that are eligible for
purchase using SNAP benefits, or landlords participating in federally
funded housing programs.
Table II.1 provides a detailed summary of the regulatory changes of
the proposed rule and the estimated costs, benefits, and transfers
associated with the expected impacts.\5\
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\5\ For a complete summary of regulatory changes and additional
guidance in this proposed rule, please see Section V. ``Discussion
of the NPRM.''
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III. 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).\6\ 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.
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\6\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.
(Nov. 25, 2002).
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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
any alien who applies for a visa, admission, or adjustment of status is
inadmissible if he or she is 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 an alien
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.
Under section 213A of the INA, 8 U.S.C. 1183a, certain aliens are
required to submit a sufficient Affidavit of Support Under Section 213A
of the INA executed by a sponsor who agrees to provide support to
maintain the sponsored alien at an annual income that is not less than
125 percent of the Federal poverty line during the period in which the
affidavit is enforceable. The Affidavit of Support Under Section 213A
of the INA is intended to ensure that an intending immigrant has
adequate means of financial support and is not likely to rely on the
U.S. government for financial support.
Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of
applicants for admission, including inadmissibility determinations of
such aliens.
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 (LPR).
B. Grounds of Inadmissibility Generally
The United States has a long history of permitting aliens to enter
the United States, whether permanently or on a temporary basis. At the
same time, Congress has sought to exclude aliens who pose a threat to
the safety or general welfare of the country or who seek to violate
immigration laws.\7\
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\7\ See Fiallo v. Bell, 430 U.S. 787, 787 (1977) (The Supreme
Court has ``long recognized [that] the power to expel or exclude
aliens [i]s a fundamental sovereign attribute exercised by the
Government's political departments largely immune from judicial
control'').
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Congress has exercised this authority in part by establishing the
concepts of admission \8\ and inadmissibility in the INA.\9\ Aliens are
inadmissible due to a range of acts, conditions, and conduct.\10\ If an
alien is inadmissible as described in section 212(a) of the INA, 8
U.S.C. 1182(a), that alien is ineligible to be admitted to the United
States and ineligible to receive a visa, unless they apply for and
receive a waiver of inadmissibility or other form of relief. Congress
has extended the applicability of the inadmissibility grounds beyond
the context of applications for admission and visas by making
admissibility an eligibility requirement for certain immigration
benefits, including adjustment of status to that of a lawful permanent
resident.\11\ If an alien is inadmissible, that alien is also
ineligible for those benefits unless the alien is eligible to apply for
and is granted a discretionary waiver of inadmissibility or other form
of relief to overcome the inadmissibility, where available and
appropriate.\12\
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\8\ Admission is defined as ``the lawful entry of the alien into
the United States after inspection and authorization by an
immigration officer.'' See INA sec. 101(a)(13)(A), 8 U.S.C.
1101(a)(13)(A).
\9\ See INA sec. 212(a), 8 U.S.C. 1182(a).
\10\ Id.
\11\ For example, adjustment of status. See INA sec. 245(a)(2),
8 U.S.C. 1255(a)(2).
\12\ See, e.g., INA sec. 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v); INA sec. 212(h), 8 U.S.C. 1182(h); INA sec.
212(i), 8 U.S.C. 1182(i); INA sec. 212(a)(9)(A)(iii), 8 U.S.C.
1182(a)(9)(A)(iii); see also USCIS Policy Manual, Volume 9, Waivers,
<a href="https://www.uscis.gov/policy-manual/volume-9">https://www.uscis.gov/policy-manual/volume-9</a>. DHS has the discretion
to waive certain grounds of inadmissibility as designated by
Congress. Where an alien is seeking an immigration benefit that is
subject to a ground of inadmissibility, DHS cannot approve the
immigration benefit being sought if a waiver of that ground is
unavailable under the INA, the alien does not meet the statutory and
regulatory requirements for the waiver, or the alien does not
warrant the waiver in any authorized exercise of discretion.
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[[Page 52174]]
C. Public Charge Ground of Inadmissibility
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), states that any
alien who applies for a visa, admission, or adjustment of status is
inadmissible if in the opinion of the consular officer or immigration
officer, as applicable, the alien is likely at any time to become a
public charge. The public charge ground of inadmissibility, therefore,
applies to aliens applying for a visa to come to the United States
temporarily or permanently, for admission at or between ports of entry,
and for adjustment of status to that of a lawful permanent
resident.\13\ Under the statute, some categories of aliens are exempt
from the public charge ground of inadmissibility, while others, if
found inadmissible under the public charge ground, may apply for a
waiver of the public charge ground of inadmissibility or submit a
public charge bond.\14\
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\13\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 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 aliens 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.
\14\ See INA sec. 245(j), 8 U.S.C. 1255(j). See 8 CFR 245.11.
See INA sec. 245(d)(2)(B), 8 U.S.C. 1255(d)(2)(B). See INA sec.
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). See INA sec. 213, 8 U.S.C.
1183. See 8 CFR 213.1.
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The INA does not define the terms ``public charge'' or ``likely at
any time to become a public charge.'' However, it does specify that
when determining whether an alien is likely at any time to become a
public charge, consular officers and immigration officers must, at a
minimum, consider the alien's age; health; family status; assets,
resources, and financial status; and education and skills. See INA sec.
212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 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 alien's
behalf, when determining whether the alien is likely at any time to
become a public charge.\15\ In fact, with very limited exceptions, most
aliens seeking family-based immigrant visas and adjustment of status,
and to a lesser extent, some aliens 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). In general,
under section 213 of the INA, 8 U.S.C. 1183, the Secretary has the
discretion to admit into the United States an alien who is determined
to be inadmissible only on the public charge ground upon the giving of
a suitable and proper bond or undertaking approved by the Secretary.
See INA sec. 213, 8 U.S.C. 1183.
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\15\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
When required, the applicant must submit an Affidavit of Support
Under Section 213A of the INA (Form I-864 or Form I-864EZ).
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1. Public Charge Statutes and Case Law, Pre-IIRIRA
The United States has denied admission to aliens on public charge
grounds since at least 1882.\16\ The 1882 law excluded ``any person
unable to take care of himself or herself without becoming a public
charge'' but notably the 1882 law did not provide any definition of a
``public charge'' or any guidelines for determining who would become
one.\17\ The Immigration Act of 1891 completed the federalization of
immigration regulation and retained the exclusion of ``paupers or
persons likely to become a public charge.'' \18\ In 1903 Congress added
``professional beggars'' to the class of exclusion,\19\ a 1907 law
added those with certain mental or physical defects ``which may affect
the ability of such an alien to earn a living,'' \20\ and a 1917 law
added ``vagrants'' to the public charge provision.\21\ This version of
the public charge provision remained substantively unchanged until it
was incorporated into the Immigration and Nationality Act of 1952.
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\16\ See Immigration Act of 1882, ch. 376, secs. 1-2, 22 Stat.
214, 214. Section 11 of the Act also provided that an alien who
became a public charge within 1 year of arrival in the United States
from causes that existed prior to their landing was deemed to be in
violation of law and was to be returned at the expense of the person
or persons, vessel, transportation, company, or corporation who
brought the alien into the United States. See also, e.g.,
Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration
Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917,
ch. 29, sec. 3, 39 Stat. 874, 876; INA of 1952, ch. 477, sec.
212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and
Immigrant Responsibility Act, Public Law 104-208, sec. 531(a), 110
Stat. 3009-546, 3009-674-75 (1996); Violence Against Women
Reauthorization Act of 2013, Public Law 113-4, 127 Stat. 54.
\17\ See Act of August 3, 1882, 22 Stat. 214.
\18\ See Act of March 3, 1891, ch. 551, 26 Stat. 1084, 1084.
\19\ See Act of February 14, 1903, 32 Stat. 825.
\20\ See Act of February 20, 1907, ch. 1134, 34 Stat. 898, 899.
\21\ See Act of February 5, 1917, ch. 29, sec. 3, 39 Stat. 874,
876; INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163, 183.
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While the INA of 1952 left the public charge ground of
inadmissibility unchanged, it added language explicitly emphasizing
officers' discretionary authority in determining an alien's likelihood
at any time of becoming a public charge. The INA of 1952 excluded
aliens who, in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the government at the time
of application for admission, were likely at any time to become public
charges.\22\ The government has long interpreted the words ``in the
opinion of'' as evincing the inherently discretionary nature of the
determination.\23\ The determination is also necessarily subjective due
to its prospective nature. A series of administrative decisions after
the passage of the INA of 1952 clarified that a totality of the
circumstances review was the proper framework for making public charge
determinations and that receipt of public benefits would not, alone,
lead to a finding of likelihood of becoming a public charge.\24\
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\22\ See INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163,
183.
\23\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l Cmm'r
1974) (``[T]he determination of whether an alien falls into that
category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner. . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); see also Matter of Martinez-Lopez, 10 I&N Dec.
409, 421 (BIA 1962; Att'y Gen. 1964) (``[U]nder the statutory
language the question for visa purposes seems to depend entirely on
the consular officer's subjective opinion.'').
\24\ In Matter of Martinez-Lopez, the Attorney General opined
that the statute ``require[d] more than a showing of a possibility
that the alien will require public support. Some specific
circumstance, such as mental or physical disability, advanced age,
or other fact showing that the burden of supporting the alien is
likely to be cast on the public, must be present. A healthy person
in the prime of life cannot ordinarily be considered likely to
become a public charge, especially where he has friends or relatives
in the United States who have indicated their ability and
willingness to come to his assistance in case of emergency.'' 10 I&N
Dec. 409, 421-23 (BIA 1962; Att'y Gen. 1964) (emphasis added). 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.'' 15 I&N Dec. 136, 137 (BIA 1974).
As stated in Matter of Harutunian, public charge determinations
should take into consideration factors such as an alien's age,
incapability of earning a livelihood, a lack of sufficient funds for
self-support, and a lack of persons in this country willing and able
to assure that the alien will not need public support. 14 I&N Dec.
583, 589 (Reg'l Comm'r 1974).
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[[Page 52175]]
The totality of the circumstances framework for public charge
inadmissibility determinations was codified in relation to one specific
class of aliens in the 1980s. In 1986, Congress passed the Immigration
Reform and Control Act (IRCA), providing eligibility for adjustment of
status to that of a lawful permanent resident to certain aliens who had
resided in the United States continuously prior to January 1, 1982.\25\
No changes were made to the language of the public charge exclusion
ground under former section 212(a)(15) of the INA, 8 U.S.C.
1182(a)(15), but IRCA contained special public charge rules for aliens
seeking legalization under section 245A of the INA, 8 U.S.C. 1255a.
Although IRCA provided otherwise eligible aliens an exemption or waiver
for some grounds of excludability, the aliens generally remained
subject to the public charge ground of exclusion. See INA sec.
245A(d)(2)(B)(ii)(IV), 8 U.S.C. 1255a(d)(2)(B)(ii)(IV). Under IRCA,
however, if an alien demonstrated a history of self-support through
employment and without receiving public cash assistance, they would not
be ineligible for adjustment of status based on being inadmissible on
the public charge ground. See INA sec. 245A(d)(2)(B)(iii), 8 U.S.C.
1255a(d)(2)(B)(iii). In addition, IRCA contained a discretionary waiver
of public charge inadmissibility for aliens who were ``aged, blind or
disabled'' as defined in section 1614(a)(1) of the Social Security Act
who applied for lawful permanent resident status under IRCA and were
determined to be inadmissible based on the public charge ground.\26\
The former Immigration and Naturalization Service (INS) promulgated 8
CFR 245a.3,\27\ which established that immigration officers would make
public charge inadmissibility determinations for aliens seeking
legalization under section 245A of the INA, 8 U.S.C. 1255a by examining
the ``totality of the alien's circumstances at the time of his or her
application for legalization.'' See 8 CFR 245a.3(g)(4)(i). According to
the regulation, the existence or absence of a particular factor could
never be the sole criterion for determining whether a person is likely
to become a public charge. Id. Further, the regulation provided that
the determination is a ``prospective evaluation based on the alien's
age, health, income, and vocation.'' Id. A special provision in the
rule stated that aliens with incomes below the poverty level were not
excludable if they were consistently employed and show the ability to
support themselves. Id. Finally, an alien's past receipt of public cash
assistance would be a significant factor in a context that also
considered the alien's consistent past employment. Id.
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\25\ See IRCA of 1986, Public Law 99-603, sec. 201, 100 Stat.
3359, 3394.
\26\ See INA sec. 245A(d)(2)(B)(ii), 8 U.S.C.
1255a(d)(2)(B)(ii); see also 42 U.S.C. 1382c(a)(1). This
discretionary waiver applies only to IRCA legalization and not to
adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a).
\27\ See ``Adjustment of Status for Certain Aliens,'' 54 FR
29442 (July 12, 1989). This regulation does not apply to adjustment
of status under section 245(a) of the INA, 8 U.S.C. 1255, or to
applications for admission with CBP. It is limited to adjustment
from temporary to permanent resident status under the legalization
provisions of IRCA.
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In Matter of A-, INS again pursued a totality of the circumstances
approach in public charge determinations for applicants for
legalization. ``Even though the test is prospective,'' INS ``considered
evidence of receipt of prior public assistance as a factor in making
public charge determinations.'' \28\ INS also considered an alien's
work history, age, capacity to earn a living, health, family situation,
affidavits of support, and other relevant factors in their
totality.\29\ These administrative practices surrounding public charge
inadmissibility determinations began to crystallize into legislative
changes in the 1990s.
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\28\ Id.
\29\ See 19 I&N Dec. 867, 869 (Comm'r 1988).
---------------------------------------------------------------------------
The Immigration Act of 1990 reorganized section 212(a) of the INA,
8 U.S.C. 1182(a), and redesignated the public charge provision as
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\30\ In 1996, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) added to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
the mandatory statutory factors and the enforceable affidavit of
support. Public Law 104-208, div. C, 110 Stat 3009-546. Also in 1996,
in the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA), which is commonly known as the 1996 welfare reform
law, Congress stated that aliens generally should not depend on public
resources and that the availability of public benefits should not
constitute an incentive for immigration to the United States. See
Public Law 104-193, section 400, 110 Stat. 2105, 2260 (codified at 8
U.S.C. 1601). Congress also created section 213A of the INA, 8 U.S.C.
1183a, and made a sponsor's Affidavit of Support Under Section 213A of
the INA for an alien beneficiary legally enforceable.\31\ The Affidavit
of Support Under Section 213A of the INA provides a mechanism for
public benefit granting agencies to seek reimbursement in the event a
sponsored alien received means-tested public benefits. See INA sec.
213A(b), 8 U.S.C. 1183a(b).
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\30\ See Immigration Act of 1990, Public Law 101-649, sec.
601(a), 104 Stat. 4978, 5072. In 1990, Congress reorganized INA sec.
212(a), redesignating the public charge provision as INA sec.
212(a)(4).
\31\ See Public Law 104-193, section 423, 110 Stat. 2105, 2271
(codified at INA sec. 213A, 8 U.S.C. 1183a). The provision was
further amended with the passage of IIRIRA.
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2. Public Benefits Under PRWORA
PRWORA significantly restricted alien eligibility for many Federal,
State, and local public benefits. See 8 U.S.C. 1601-1646. When Congress
enacted PRWORA, it set forth a self-sufficiency policy statement that
aliens should be able to financially support themselves with their own
resources or by relying on the aid of family members, sponsors, and
private organizations, without depending on government assistance. See
8 U.S.C. 1601(2). Although not defined in PRWORA, in context, self-
sufficiency is tied to an alien's ability to meet their needs without
depending on public resources. Id.
With certain exceptions, Congress defined the term ``Federal public
benefit'' broadly as: (A) any grant, contract, loan, professional
license, or commercial license provided by an agency of the United
States or by appropriated funds of the United States; and (B) any
retirement, welfare, health, disability, public or assisted housing,
postsecondary education, food assistance, unemployment benefit, or any
other similar benefit for which payments or assistance are provided to
an individual, household, or family eligibility unit by an agency of
the United States or by appropriated funds of the United States.\32\
Generally, under
[[Page 52176]]
PRWORA, ``qualified aliens'' are eligible for Federal means-tested
benefits after 5 years and are not eligible for ``specified Federal
programs,'' and States are allowed to determine whether the qualified
alien is eligible for ``designated Federal programs.'' See Public Law
104-193, tit. IV, 110 Stat. 2105, 2260-77.
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\32\ See Public Law 104-193, section 401(c), 110 Stat. 2105,
2262 (1996) (codified as amended at 8 U.S.C. 1611(c)). Congress
provided that such term shall not apply--(A) to any contract,
professional license, or commercial license for a nonimmigrant whose
visa for entry is related to such employment in the United States,
or to a citizen of a freely associated state, if section 141 of the
applicable compact of free association approved in Public Law 99-239
or 99-658 (or a successor provision) is in effect; (B) with respect
to benefits for an alien who as a work authorized nonimmigrant or as
an alien lawfully admitted for permanent residence under the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.] qualified
for such benefits and for whom the United States under reciprocal
treaty agreements is required to pay benefits, as determined by the
Attorney General, after consultation with the Secretary of State; or
(C) to the issuance of a professional license to, or the renewal of
a professional license by, a foreign national not physically present
in the United States. 8 U.S.C. 1611(c)(2).
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Among the exceptions established by Congress allowing for
eligibility for all aliens are provision of medical assistance for the
treatment of an emergency medical condition; short-term, in-kind, non-
cash emergency disaster relief; and public health assistance related to
immunizations and treatment of the symptoms of a communicable
disease.\33\
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\33\ See 8 U.S.C. 1611(b)(1). See 66 FR 3613 (Jan. 16, 2001);
see also 62 FR 61344 (Nov. 17, 1997).
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PRWORA identified three types of benefits and related eligibility
rules. First, there are ``specified Federal programs,'' for which even
``qualified aliens'' are generally not eligible. 8 U.S.C. 1612(a).
Second, there are ``Federal means-tested public benefits,'' for which
``qualified aliens'' are generally eligible after a 5-year waiting
period. 8 U.S.C. 1613(a). And finally, there are ``designated federal
programs,'' for which States are allowed to determine whether and when
a ``qualified alien'' is eligible, subject to certain restrictions. 8
U.S.C. 1612(b). Subsequent legislation has added additional categories
of aliens, many with humanitarian statuses, to PRWORA's various
exceptions and special provisions in order to meet the needs of those
vulnerable populations. The following is a list of immigration
categories that are ``qualified aliens'' under PRWORA, who, as noted
above and subject to certain exceptions, are generally eligible for
Federal public benefits after 5 years:
<bullet> An alien who is lawfully admitted for permanent residence
under the INA. 8 U.S.C. 1641(b)(1).
<bullet> An alien who is granted asylum under section 208 of the
INA, 8 U.S.C. 1158. 8 U.S.C. 1641(b)(2).
<bullet> A refugee who is admitted to the United States under
section 207 of the INA, 8 U.S.C. 1157. 8 U.S.C. 1641(b)(3).
<bullet> An alien who is paroled into the United States under
section 212(d)(5) of the INA, 8 U.S.C. 1182(d), for a period of at
least 1 year.\34\ 8 U.S.C. 1641(b)(4).
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\34\ Aliens who have been paroled have not been admitted. See
INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); see also INA sec.
212(d)(5), 8 U.S.C. 1182(d)(5).
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<bullet> An alien whose deportation is being withheld under section
243(h) \35\ of the INA, 8 U.S.C. 1253, or section 241(b)(3) of the INA,
8 U.S.C. 1231(b)(3), as amended. 8 U.S.C. 1641(b)(5).
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\35\ As in effect immediately before the effective date of
section 307 of division C of Public Law 104-208, 110 Stat. 3009-546.
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<bullet> An alien who is granted conditional entry under section
203(a)(7) of the INA, 8 U.S.C. 1153(a)(7), as in effect before April 1,
1980. 8 U.S.C. 1641(b)(6).
<bullet> An alien who is a Cuban and Haitian entrant as defined in
section 501(e) of the Refugee Education Assistance Act of 1980. 8
U.S.C. 1641(b)(7).
<bullet> An individual who lawfully resides in the United States in
accordance with the Compacts of Free Association between the Government
of the United States and the Governments of the Federated States of
Micronesia, the Republic of the Marshall Islands, and the Republic of
Palau referred to in 8 U.S.C. 1612(b)(2)(G) (but only with respect to
Medicaid). 8 U.S.C. 1641(b)(8).
<bullet> An alien who has been battered or subjected to extreme
cruelty in the United States by a spouse or a parent or by a member of
the spouse or parent's family residing in the same household as the
alien and the spouse or parent consented to, or acquiesced in, such
battery or cruelty but only if (in the opinion of the agency providing
such benefits) there is a substantial connection between such battery
or cruelty and the need for the benefits to be provided, and the alien
has been approved or has a petition pending that sets forth a prima
facie case for status under section 204(a)(1)(A)(i)-(iv) of the INA, 8
U.S.C. 1154(a)(1)(A)(i)-(iv), or classification pursuant to section
204(a)(1)(B)(i)-(iii) of the INA, 8 U.S.C. 1154(a)(1)(B)(i)-(iii), or
suspension of deportation under section 244(a)(3) of the INA, 8 U.S.C.
1254a(a)(3), or cancellation of removal pursuant to section 240A(b)(2)
of the INA, 8 U.S.C. 1229b(b)(2). 8 U.S.C. 1641(c)(1).
<bullet> An alien whose child has been battered or subjected to
extreme cruelty in the United States by a spouse or a parent of the
alien (without active participation by the alien in such battery or
cruelty), or by a member of the spouse or parent's family residing in
the same household as the alien and the spouse or parent consented to,
or acquiesced to such battery or cruelty (and the alien did not
actively participate in such battery or cruelty), but only if (in the
opinion of the agency providing such benefits) there is a substantial
connection between such battery or cruelty and the need for the
benefits to be provided, and the alien has been approved or has a
petition pending which sets forth a prima facie case for status under
section 204(a)(1)(A)(i)-(iv) of the INA, 8 U.S.C. 1154(a)(1)(A)(i)-
(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of
the INA, 8 U.S.C. 1154(a)(1)(B)(i)-(iii), or suspension of deportation
under section 244(a)(3) of the INA, 8 U.S.C. 1254a(a)(3), or
cancellation of removal pursuant to section 240A(b)(2) of the INA, 8
U.S.C. 1229b(b)(2). 8 U.S.C. 1641(c)(2).
<bullet> An alien child who resides in the same household as a
parent who has been battered or subjected to extreme cruelty in the
United States by that parent's spouse or by a member of the spouse's
family residing in the same household as the parent, and the spouse
consented to, or acquiesced to such battery or cruelty, but only if (in
the opinion of the agency providing such benefits) there is a
substantial connection between such battery or cruelty and the need for
the benefits to be provided, and the alien has been approved or has a
petition pending which sets forth a prima facie case for status under
section 204(a)(1)(A)(i)-(iv) of the INA, 8 U.S.C. 1154(a)(1)(A)(i)-
(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of
the INA, 8 U.S.C. 1154(a)(1)(B)(i)-(iii), or suspension of deportation
under section 244(a)(3) of the INA, 8 U.S.C. 1254a(a)(3), or
cancellation of removal pursuant to section 240A(b)(2) of the INA, 8
U.S.C. 1229b(b)(2). 8 U.S.C. 1641(c)(3).
<bullet> An alien who has been granted nonimmigrant status under
section 101(a)(15)(T) of the INA, 8 U.S.C. 1101(a)(15)(T), or who has a
pending application that sets forth a prima facie case for eligibility
for such nonimmigrant status. 8 U.S.C. 1641(c)(4).
There are additional categories of aliens who may be eligible for
certain benefits notwithstanding limitations set under PRWORA. For
instance, the following aliens are treated as though they are refugees
for benefits eligibility purposes, under other provisions of law:
<bullet> An alien who is a victim of a severe form of trafficking
in persons, or an alien classified as a nonimmigrant under section
101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii). 22 U.S.C.
7105(b)(1)(A).
<bullet> An Iraqi or Afghan alien granted special immigrant status
under section
[[Page 52177]]
101(a)(27) of the INA, 8 U.S.C. 1101(a)(27). Public Law 111-118, Div.
A., Tit. VIII., sec. 8120, 123 Stat. 3409, 3457 (2009).
<bullet> A citizen or national of Afghanistan (or a person with no
nationality who last habitually resided in Afghanistan) paroled into
the United States after July 31, 2021, who meets certain requirements,
until March 31, 2023, or the term of parole granted, whichever is
later. Public Law 117-43, sec. 2502(b) (Sept. 30, 2021).
In addition, in the Medicaid context, States may also elect to
provide medical assistance under Title XIX of the Social Security Act
to cover all lawfully residing children under age 21 or pregnant
individuals. See section 1903(v)(4) of the Social Security Act (42
U.S.C. 1396b(v)(4)). Under PRWORA, States may enact their own
legislation to provide State and local public benefits to certain
aliens not lawfully present in the United States. See 8 U.S.C. 1621(d).
Some States and localities have funded public benefits for some aliens
who may not be eligible for Federal public benefits.\36\ While PRWORA
allows certain aliens to receive certain public benefits, Congress,
except in very limited circumstances,\37\ did not prohibit DHS from
considering the receipt of such benefits in a public charge
inadmissibility determination under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), or direct DHS to do so.
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\36\ See, e.g., U.S. Department of Health and Human Services
(HHS), Office of the Assistant Secretary for Planning & Evaluation,
``Overview of Immigrants Eligible for SNAP, TANF, Medicaid and
CHIP'' (Mar. 26, 2012), <a href="https://aspe.hhs.gov/reports/overview-immigrants-eligibility-snap-tanf-medicaid-chip-0">https://aspe.hhs.gov/reports/overview-immigrants-eligibility-snap-tanf-medicaid-chip-0</a>.
\37\ See INA sec. 212(s), 8 U.S.C. 1182(s).
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3. Changes Under IIRIRA
Congress, in IIRIRA,\38\ codified in the public charge
inadmissibility statute the following minimum factors that must be
considered when making public charge inadmissibility determinations:
\39\
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\38\ Public Law 104-208, div. C, 110 Stat 3009-546 (1996).
\39\ 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)).
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<bullet> Age;
<bullet> Health;
<bullet> Family status;
<bullet> Assets, resources, and financial status; and
<bullet> Education and skills.\40\
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\40\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
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Section 531(a) of IIRIRA amended section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), to require an enforceable affidavit of support under
newly added section 213A of the INA, 8 U.S.C. 1183a,\41\ for certain
aliens to avoid a finding of inadmissibility under that section.\42\
The law required submission of an Affidavit of Support Under Section
213A of the INA for most family-based immigrants and certain
employment-based immigrants and provided that these aliens are
inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
unless a sufficient affidavit is filed on their behalf. See INA sec.
212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D). Congress also
permitted, but did not require, consular and immigration officers to
consider the Affidavit of Support Under Section 213A of the INA as a
factor in the public charge inadmissibility determination. See INA sec.
212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). In the House Conference
Report on IIRIRA, the committee indicated that the amendments to
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), were designed to
``expand'' the public charge ground of inadmissibility by requiring DHS
to find inadmissible those who lack a sponsor willing to support
them.\43\ DHS may appropriately consider the policy goals articulated
in PRWORA and IIRIRA when administratively implementing the public
charge ground of inadmissibility, and may also consider other important
goals including, but not limited to, clarity, fairness, and
administrability.
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\41\ Section 551 of IIRIRA created INA sec. 213A, 8 U.S.C.
1183a, and specified the requirements for a sponsor's affidavit,
including making it enforceable. See INA sec. 213A, 8 U.S.C. 1183a;
sec. 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).
\42\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C)
and (D). See INA sec. 213A, 8 U.S.C. 1183a.
\43\ See H.R. Rep. No. 104-828, at 240-41 (1996) (Conf. Rep.);
see also H.R. Rep. No. 104-469(I), at 143-45 (1996).
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Furthermore, in enacting PRWORA and IIRIRA very close in time,
Congress made certain public benefits available to limited categories
of aliens who are also subject to the public charge ground of
inadmissibility, because Congress recognized that certain aliens
present in the United States who are subject to the public charge
ground of inadmissibility might find themselves in need of public
benefits. Except in very limited circumstances,\44\ Congress did not
prohibit DHS from considering the receipt of such benefits in a public
charge inadmissibility determination under section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4). Consequently, although an alien may receive
public benefits for which he or she is eligible, the receipt of those
benefits can be properly considered an adverse factor for public charge
inadmissibility determination purposes.
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\44\ See INA sec. 212(s), 8 U.S.C. 1182(s).
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4. INS 1999 Notice of Proposed Rulemaking and Interim Field Guidance
On May 26, 1999, INS issued a proposed rule, Inadmissibility and
Deportability on Public Charge Grounds (1999 NPRM) (64 FR 28676 (May
26, 1999)), and on that same day issued interim Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds (1999
Interim Field Guidance).\45\ In the 1999 NPRM, INS proposed to
``alleviate growing public confusion over the meaning of the currently
undefined term `public charge' in immigration law and its relationship
to the receipt of Federal, State, or local public benefits.'' See 64 FR
28676, 28676 (May 26, 1999).
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\45\ 64 FR 28689 (May 26, 1999). Due to a printing error, the
Federal Register version of the 1999 Interim Field Guidance appears
to be dated ``March 26, 1999,'' even though the guidance was
actually signed May 20, 1999; became effective May 21, 1999; and was
published in the Federal Register on May 26, 1999, along with the
NPRM.
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INS sought to reduce negative public health and nutrition
consequences generated by that confusion and to provide aliens, their
sponsors, health care and immigrant assistance organizations, and the
public with better guidance as to the types of public benefits that INS
considered relevant to the public charge determination. See 64 FR
28676, 28676-77 (May 26, 1999). INS also sought to address the public's
concerns about immigrants' fears of accepting public benefits for which
they remained eligible, specifically in regard to medical care,
children's immunizations, basic nutrition, and treatment of medical
conditions that may jeopardize public health. See 64 FR 28676, 28676
(May 26, 1999).
When developing the 1999 NPRM, INS consulted with Federal benefit-
granting agencies, such as the U.S. Department of Health and Human
Services (HHS), the Social Security Administration (SSA), and the
Department of Agriculture (USDA). The Deputy Secretary of HHS, which
administers Temporary Assistance for Needy Families (TANF), Medicaid,
the Children's Health Insurance Program (CHIP), and other benefits,
advised that the best evidence of whether an individual is relying
primarily on the government for subsistence is either the receipt of
public cash benefits for income maintenance purposes or
institutionalization for long-term care at government expense. See 64
FR 28676, 28686-87 (May 26, 1999). The Deputy
[[Page 52178]]
Commissioner for Disability and Income Security Programs at SSA agreed
that the receipt of Supplemental Security Income (SSI) ``could show
primary dependence on the government for subsistence fitting the INS
definition of public charge.'' See 64 FR 28676, 28687 (May 26, 1999).
Furthermore, the USDA's Under Secretary for Food, Nutrition and
Consumer Services advised that ``neither the receipt of food stamps nor
nutrition assistance provided under the Special Nutrition Programs
administered by USDA should be considered in making a public charge
determination.'' See 64 FR 28676, 28688 (May 26, 1999).
While these letters supported the approach taken in the 1999 NPRM
and 1999 Interim Field Guidance, the letters specifically focused on
the reasonableness of a given INS interpretation (i.e., primary
dependence on the government for subsistence). The letters did not, and
could not, foreclose the INS from adopting a different definition
consistent with statutory authority.
INS defined public charge in the 1999 NPRM, as well as in the 1999
Interim Field Guidance, to mean, for purposes of admission and
adjustment of status, ``an alien who is likely to become . . .
primarily dependent \46\ 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.'' \47\ The 1999 NPRM provided that non-cash
benefits, as well as ``supplemental, special-purpose cash benefits
should not be considered'' for public charge purposes, in light of
INS's decision to define public charge by reference to primary
dependence on public benefits. See 64 FR 28676, 28692-93 (May 26,
1999). Ultimately, however, INS did not publish a final rule
conclusively addressing these issues.\48\
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\46\ Former INS defined ``primarily dependent'' as ``the
majority'' or ``more than 50 percent.''
\47\ See 64 FR 28676, 28681 (May 26, 1999); 64 FR 28689 (May 26,
1999). The 1999 NPRM also defined public charge to mean, ``for
purposes of removal as a deportable alien means an alien who has
become primarily dependent on the Government for subsistence as
demonstrated by either: (i) The receipt of public cash assistance
for income maintenance purposes, or (ii) Institutionalization for
long-term care at Government expense (other than imprisonment for
conviction of a crime).'' 64 FR 28676, 28684 (May 26, 1999).
\48\ The 1999 NPRM was never finalized and never went into
effect, but it provides insight into INS's thinking about how to
administer the public charge ground of inadmissibility at that time.
The 1999 NPRM was formally withdrawn in 2018. See 83 FR 51114 (Oct.
10, 2018).
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The 1999 Interim Field Guidance was issued as an attachment to the
1999 NPRM in order to ``provide additional information to the public on
the Service's implementation of the public charge provisions of the
immigration laws . . . in light of the recent changes in law.'' See 64
FR 28689 (May 26, 1999). The 1999 Interim Field Guidance explained how
the agency would determine if a person is likely to become a public
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a), for
admission and adjustment of status purposes, and whether a person is
deportable as a public charge under section 237(a)(5) of the INA, 8
U.S.C. 1227(a)(5). See 64 FR 28689, 28692-93 (May 26, 1999). The 1999
Interim Field Guidance also was intended to stem the fears that were
causing aliens to refuse certain supplemental public benefits, such as
transportation vouchers and childcare assistance, that were intended to
help recipients become better able to obtain and retain employment and
establish self-sufficiency. See 64 FR 28689 (May 26, 1999). The
Department of State (DOS) also issued a cable to its consular officers
at that time implementing similar guidance for visa adjudications, and
its Foreign Affairs Manual (FAM) was similarly updated. See 64 FR
28676, 28680 (May 26, 1999).
Until both agencies published new regulations and policy guidance,
including changes to the FAM, in 2018 and 2019, USCIS continued to
follow the 1999 Interim Field Guidance in its adjudications and DOS
continued following the public charge guidance set forth in the FAM in
1999.\49\
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\49\ See 9 FAM 302.8, <a href="https://fam.state.gov/fam/09fam/09fam030208.html">https://fam.state.gov/fam/09fam/09fam030208.html</a> (last visited Aug. 21, 2025).
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5. Victims of Trafficking and Violence Protection Act of 2000 \50\
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\50\ Public Law 106-386 (Oct. 28, 2000).
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In 2000, Congress amended section 212 of the INA, 8 U.S.C. 1182, to
include a provision that prohibited consideration of the receipt of
public benefits by ''certain battered aliens'' in a public charge
inadmissibility determination.\51\ Congress' prohibition of
consideration of prior receipt of benefits by a specific class of
aliens suggests that Congress understood and accepted that
consideration of an alien's past receipt of public benefits in other
circumstances was appropriate when making a public charge
inadmissibility determination.
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\51\ This provision was originally in INA sec. 212(p), 8 U.S.C.
1182(p). It was permanently redesignated as INA sec. 212(s), 8
U.S.C. 1182(s) in the Consolidated Appropriations Act, 2005, Public
Law 108-447, 423 (Dec. 8, 2004)
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6. DHS 2018 Inadmissibility on Public Charge Grounds Notice of Proposed
Rulemaking and 2019 Final Rule
In October 2018, DHS issued a notice of proposed rulemaking,
Inadmissibility on Public Charge Grounds (2018 NPRM) (83 FR 51114 (Oct.
10, 2018)), which proposed regulatory changes regarding the definition
of public charge and related terms and public charge ground
inadmissibility determinations. DHS also included in the 2018 NPRM a
withdrawal of the proposed regulation on public charge, the 1999 NPRM,
that the former INS published on May 26, 1999.
Following public comments on the 2018 NPRM, DHS issued a final rule
in August 2019, Inadmissibility on Public Charge Grounds (2019 Final
Rule). The 2019 Final Rule changed DHS's public charge standards and
procedures. See 84 FR 41292 (Aug. 14, 2019), as amended by 84 FR 52357
(Oct. 2, 2019). The 2019 Final Rule defined the term public charge to
mean ``an alien who receives one or more public benefits, as defined in
[the 2019 Final Rule], for more than 12 months in the aggregate within
any 36-month period (such that, for instance, receipt of two benefits
in 1 month counts as 2 months).'' See 84 FR 41292 (Aug. 14, 2019). It
also defined the term public benefit to mean any Federal, State, local,
or Tribal cash assistance for income maintenance (other than tax
credits), SNAP, most forms of Medicaid, Section 8 Housing Assistance
under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based
Rental Assistance, and certain other forms of subsidized housing. Id.
DHS tailored the 2019 Final Rule to limit the rule's effects in certain
ways, such as with respect to the consideration of public benefits
received by active-duty military members and their spouses and
children, and consideration of public benefits received by children in
certain contexts.\52\
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\52\ See 84 FR 41292 (Aug. 14, 2019). For example, under that
rule, public benefits did not include public benefits received by
those who, at the time of receipt, filing the application for
admission or adjustment of status, or adjudication, is enlisted in
the U.S. Armed Forces, serving in active duty or in the Ready
Reserve component of the U.S. Armed Forces, or the spouse of
children of such service members. Also under that rule, public
benefits did not include benefits received by children of U.S.
citizens whose lawful admission for permanent residence would result
in automatic acquisition of U.S. citizenship.
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The 2019 Final Rule also provided an evidentiary framework under
which USCIS would determine public charge
[[Page 52179]]
inadmissibility and explained how DHS would interpret the statutory
minimum factors for determining whether ``in the opinion of'' \53\ the
officer, an alien is likely at any time to become a public charge.
Specifically, for adjustment of status applications before USCIS, DHS
created a new Declaration of Self Sufficiency, Form I-944, which
collected information from aliens applying for adjustment of status
relevant to the 2019 Final Rule's approach to the statutory factors and
other factors identified in the rule that would be considered in the
totality of the circumstances.\54\
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\53\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
\54\ The Declaration of Self-Sufficiency requirement only
applied to adjustment applicants and not applicants for admission at
a port of entry.
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The 2019 Final Rule also contained a list of negative and positive
factors that DHS would consider as part of this inadmissibility
determination and directed officers to consider these factors ``in the
totality of the circumstances.'' See 84 FR 41292 (Aug. 14, 2019). These
negative and positive factors, as well as the ``heavily weighted''
positive and negative factors, operated as guidelines to help the
officer determine whether the alien was likely at any time to become a
public charge. Id. In the 2019 Final Rule, DHS indicated that apart
from the lack of an Affidavit of Support Under Section 213A of the INA,
where required, the presence of a single positive or negative factor,
or heavily weighted negative or positive factor, would never, on its
own, create a presumption that an alien was inadmissible as likely at
any time to become a public charge or determine the outcome of the
public charge inadmissibility determination. Id. Rather, a public
charge inadmissibility determination would be based on the totality of
the circumstances presented in an alien's case. Id.
Additionally, the 2019 Final Rule added provisions that rendered
certain nonimmigrants ineligible for extension of stay or change of
status if they received one or more public benefits, as defined in the
rule, for more than 12 months in the aggregate within any 36-month
period since obtaining the nonimmigrant status they wished to extend or
change. See 84 FR 41292 (Aug. 14, 2019). The 2019 Final Rule also
revised DHS regulations governing the Secretary's discretion to accept
a public charge bond under section 213 of the INA, 8 U.S.C. 1183, for
those seeking adjustment of status. Id. The 2019 Final Rule did not
interpret or change DHS's implementation of the public charge ground of
deportability.\55\
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\55\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 84 FR
41292, 41295 (Aug. 14, 2019).
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The 2019 Final Rule was set to take effect on October 15, 2019,
but, before it did, numerous plaintiffs filed suits challenging the
2019 Final Rule in five district courts, across four circuits.\56\ All
five district courts preliminarily enjoined the 2019 Final Rule.\57\
Following a series of stays of the preliminary injunctions,\58\ DHS
began applying the 2019 Final Rule on February 24, 2020. On March 9,
2021, DHS announced its determination that continuing to defend the
2019 Final Rule before the Supreme Court and in the lower courts would
not be in the public interest or an efficient use of government
resources.\59\ Consistent with that determination, the government filed
motions and stipulations with the various courts leading to the
dismissal of its appeals of the lower court decisions. As a consequence
of one such dismissal, a district court's vacatur of the 2019 rule went
into effect. See 87 FR 55472, 55486 (Sept. 9, 2022) (detailing the
litigation history of the 2019 Final Rule). DHS subsequently published
a notice in the Federal Register formally removing the 2019 Final Rule
from the CFR. 86 FR 14221 (Mar. 15, 2021).
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\56\ 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.).
\57\ See 87 FR 55472, 55486 (Sept. 9, 2022) (detailing the
litigation history of the 2019 Final Rule).
\58\ See Wolf v. Cook County, 140 S. Ct. 681 (2020) (staying
preliminary injunction from the Northern District of Illinois); DHS
v. New York, 140 S. Ct. 599 (2020) (staying preliminary injunctions
from the Southern District of New York); City and Cnty. of San
Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019) (staying
preliminary injunctions from the Eastern District of Washington and
Northern District of California); CASA de Md. v. Trump, No. 19-2222
(4th Cir. Dec. 9, 2019) (staying preliminary injunction from the
District of Maryland).
\59\ See DHS Secretary Statement on the 2019 Public Charge Rule
(Mar. 9, 2021) available at <a href="https://www.dhs.gov/archive/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule">https://www.dhs.gov/archive/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule</a>.
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7. DHS 2022 Public Charge Ground of Inadmissibility Advance Notice of
Proposed Rulemaking, Notice of Proposed Rulemaking, and Final Rule
In 2021, DHS published an advance notice of proposed rulemaking,
Public Charge Ground of Inadmissibility (2021 ANPRM), see 86 FR 47025
(Aug. 23, 2021), requesting broad public feedback on the public charge
ground of inadmissibility to inform its development of a future
regulatory proposal. DHS welcomed input from individuals,
organizations, government entities and agencies, and all other
interested members of the public. See 86 FR 47025, 47028-32 (Aug. 23,
2021). DHS also provided notice of virtual public listening sessions on
the public charge ground of inadmissibility and the 2021 ANPRM. USCIS
held two public listening sessions, one specifically for the general
public, and one for State, territorial, local, and Tribal benefits-
granting agencies and nonprofit organizations. The public comments DHS
received were considered and discussed in the subsequent notice of
proposed rulemaking, Public Charge of Inadmissibility (2022 NPRM). See
87 FR 10570, 10597-99 (Feb. 24, 2022).
Following public comments on the 2022 NPRM, DHS published a final
rule, Public Charge Ground of Inadmissibility (2022 Final Rule). See 87
FR 55472 (Sept. 9, 2022). The final rule implemented a different policy
than the 2019 Final Rule, more closely aligned with the 1999 Interim
Field Guidance.\60\
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\60\ 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.
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The 2022 Final Rule defined public charge more narrowly than in the
2019 Final Rule as 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, and did not include
mandatory consideration of past, current, and future receipt of certain
supplemental public benefits that did not represent a primary
dependence on such benefits for subsistence. See 8 CFR 212.21(a).
Additional key definitions in the 2022 Final Rule included definitions
for the terms ``public cash assistance for income maintenance'',
``long-term institutionalization at government expense'', ``receipt (of
public benefits)'', ``government'', and ``household''. The 2022 Final
Rule also required a different information collection than the 2019
Final Rule, including the information collection for public charge
inadmissibility determinations in USCIS' Application to Register
Permanent Residence or Adjust Status, Form I-485, rather than in a
separate
[[Page 52180]]
form. The 2022 Final Rule did not designate ``heavily weighted''
positive or negative factors for making a public charge inadmissibility
determination, but instead constrained the public charge
inadmissibility determination to seven factors outlined in the
regulation: the five statutory factors that must be considered under
section 212(a)(4) of the INA, 8 U.S.C. 1182; 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. See 8 CFR 212.22. Additionally, the 2022 Final Rule
clarified DHS's approach to consideration of disability and long-term
institutionalization at government expense \61\ and stated a bright-
line rule prohibiting consideration of the receipt of public benefits
by an alien's dependents, such as a U.S. citizen child in a mixed-
status household. See 87 FR 55472, 55474 (Sept. 9, 2022). The 2022
Final Rule also listed the statutory exemptions from and waivers for
the public charge ground of inadmissibility established by Congress.
See 8 CFR 212.23.
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\61\ See 8 CFR 212.22(a)(3) and (4).
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The 2022 Final Rule did not revise DOS or DOJ standards or
processes related to public charge inadmissibility determinations, and
does not apply to nonimmigrants seeking extension of stay or change of
status in the United States. See 87 FR 55472, 55502-03 (Sept. 9, 2022).
See 87 FR 10570, 10600-01 (Feb. 24, 2022). The 2022 Final Rule only
applies to aliens applying for admission or adjustment of status. See
87 FR 55472, 55491 (Sept. 9, 2022). The 2022 Final Rule did not
interpret or change DHS's implementation of the public charge ground of
deportability.\62\
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\62\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 87 FR
55472, 55509 (Sept. 9, 2022).
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In January 2023, the State of Texas filed a suit under the
Administrative Procedure Act challenging DHS' repeal of the 2019 Final
Rule and the promulgation of the 2022 Final Rule. On September 30,
2024, the District Court found the plaintiff lacked standing, denied
the plaintiff's Motion for Summary Judgment, and terminated the case.
The plaintiff appealed this decision to the U.S. Court of Appeals for
the Fifth Circuit on December 2, 2024. On February 25, 2025, the Fifth
Circuit granted the joint motion to stay further proceedings until May
27, 2025. On May 29, 2025, the Fifth Circuit further extended the stay
of proceedings until August 27, 2025. On September 2, 2025, the Fifth
Circuit granted DHS motion for abeyance for an additional 90 days until
December 2, 2025.
IV. Basis and Purpose of the NPRM
As reflected in Executive Order 14218, Ending Taxpayer
Subsidization of Open Borders, the Trump administration is taking steps
to ``uphold the rule of law, defend against the waste of hard-earned
taxpayer resources, and protect benefits for American citizens in need,
including individuals with disabilities and veterans.'' See 90 FR
10581, 10581 (Feb. 25, 2025). Through this NPRM, DHS is proposing to
rescind the regulations implemented by the 2022 Final Rule related to
the public charge ground of inadmissibility at section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4).\63\ Both the 2019 Final Rule and the 2022
Final Rule erred in too narrowly defining the relevant terms in section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), resulting in the inability
of DHS to apply the public charge ground of inadmissibility consistent
with administration policy and congressional intent.
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\63\ See 87 FR 55472 (Sept. 9, 2022). This NPRM does not propose
to rescind or amend certain elements of the 2022 Final Rule:
regulations at 8 CFR 213.1 related to admission after submitting a
public charge bond, and technical updates related to adjustment of
status by T nonimmigrants at 8 CFR 212.18 and 8 CFR 245.23.
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This NPRM does not propose to revise DOS or DOJ standards or
processes related to public charge inadmissibility determinations.
Further, this NPRM does not propose to interpret or change DHS's
application of the public charge ground of deportability at section
237(a)(5) of the INA, 8 U.S.C. 1227(a)(5).
A. The Prior Rules Were Overly Restrictive
The regulations implemented by the 2022 Final Rule and its
predecessor, the 2019 Final Rule, are inconsistent with the national
policy contained Executive Order 14218 and PRWORA and the spirit of the
broad statutory text in section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), in that both rules severely and unduly limited the factors
that DHS could consider in making a public charge inadmissibility
determination. This discouraged officers from considering relevant
evidence essential to making an accurate and valid public charge
inadmissibility determination that is consistent with the statute, the
spirit of PRWORA, and past precedent decisions. This may have resulted
in USCIS finding aliens eligible for adjustment of status even when
their past receipt of means-tested public benefits may have
demonstrated that they lacked self-sufficiency and were likely at any
time to become a public charge, due to officers' inability to consider
all benefits the alien depended on and any other relevant case-specific
factor that has bearing on the inadmissibility determination.
Section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A), states
that ``any alien who, in the opinion of the consular officer at the
time of application for a visa, or in the opinion of the [immigration
officer] at the time of application for admission or adjustment of
status, is likely at any time to become a public charge is
inadmissible.'' Section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B), lists the minimum, non-exhaustive list of factors the
consular officer or immigration officer must consider when making a
public charge inadmissibility determination: the alien's age; health;
family status; assets, resources, and financial status; and education
and skills. In addition to those five factors, the consular officer or
immigration officer may also consider any Affidavit of Support under
section 213A of the INA, 8 U.S.C. 1183a, when making a public charge
inadmissibility determination. As the statutory language makes clear by
stating that officers ``shall at a minimum'' consider these five
factors, Congress clearly intended for officers to consider case-
specific additional factors and information relevant to the public
charge inadmissibility determination.
However, both the 2019 Final Rule and the 2022 Final Rule provided
a finite list of factors that officers are required to consider without
expressly providing officers with the authority to consider other
factors that are relevant in any individual case. The 2022 Final Rule,
in particular, failed to clarify for officers that their public charge
inadmissibility determination was not limited to consideration of the
factors enumerated in 8 CFR 212.22(a). While section 212(a)(4)(B) of
the INA, 8 U.S.C. 1182(a)(4)(B), clearly lists the ``minimum'' and non-
exhaustive factors that officers must consider when making
inadmissibility determinations, the 2022 Final Rule unduly restricts
officers primarily to these five factors plus two additional factors,
leaving little opportunity for discretion or deviation from considering
these seven factors in the totality of the circumstances. Indeed, the
current regulation at 8 CFR 212.22(a) has no provision for officers to
consider any other factors than the express factors listed. See 8 CFR
212.22(a). Significantly, the 2022 Final Rule failed to include a
provision in 8 CFR 212.22(a) that expressly permits
[[Page 52181]]
officers to consider any other relevant case-specific factors in the
totality of the circumstances.\64\ In other words, there was no
``catch-all'' provision added to the limited, narrow scope of factors
enumerated in either the 2019 Final Rule or the 2022 Final Rule. DHS
has the authority to enumerate exclusive factors to be considered in
making public charge inadmissibility determinations without a catch all
provision and did so in the 2022 Final Rule.\65\ While enumerating
factors in this manner is a permissible use of DHS's rulemaking
authority, the effect of the specific factors that DHS enumerated
restricts public charge inadmissibility determinations in such a way
that the rule contravenes the clear congressional intent of the
statute.\66\ To ensure that officers retain their statutorily-mandated
ability to determine, in their opinion, whether an alien is likely at
any time to become a public charge, DHS believes it must remove
regulations that fail to explicitly permit officers to consider any
case-specific factors that bear on an alien's likelihood of becoming a
public charge at any time in the future.
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\64\ Compare the 2022 Final Rule to the 2019 Final Rule, in
which officers were directed to consider ``all factors that are
relevant'' and listed ``minimum factors to consider,'' stating that
the public charge inadmissibility determination ``must at least
entail consideration'' of those minimum factors. 8 CFR 212.22
(2019).
\65\ See 8 CFR 212.22(a).
\66\ Even if the 2022 Final Rule could be construed to
implicitly contain a catch-all provision, DHS would still propose to
rescind it, because the 2022 Final Rule contains other unnecessary
restrictions on officers' inadmissibility determinations.
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Moreover, both the 2019 Final Rule and 2022 Final Rule, in
providing narrow and finite lists of factors that officers were
required to consider, are in significant tension with the inherently
discretionary nature of the public charge inadmissibility
determination. Indeed, because the statute requires the officer to
determine inadmissibility in his or her opinion, the officer may, in
his or her discretion, determine what factors other than the statutory
minimum factors are relevant to any individual case. This includes a
sufficient Affidavit of Support Under Section 213A of the INA, if one
is required, and any other factors relevant to this ground of
inadmissibility as tailored to the specific facts of a given case. As
the Senate Judiciary Committee noted in 1950, ``[s]ince the elements
constituting likelihood of becoming a public charge are varied, there
should be no attempt to define the term in the law, but rather to
establish the specific qualification that the determination of whether
an alien falls into that category rests within the discretion of the
consular officers or [former INS].'' \67\
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\67\ See The 1950 Omnibus Report of the Senate Judiciary
Committee, S. Rep. No. 81-1515, at 349 (1950); see also Matter of
Harutunian,14 I&N Dec. 583 (Reg'l Comm'r 1974).
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Additionally, both the 2019 Final Rule and the 2022 Final Rule
provided narrow and finite lists of public benefits that could be
considered as part of the public charge inadmissibility determination,
which is inconsistent with congressional intent. The 2019 Final Rule
limited consideration of receipt of public benefits to Federal, State,
local, or tribal cash assistance for income maintenance,\68\
Supplemental Nutrition Assistance Program (SNAP),\69\ Section 8 Housing
Assistance under the Housing Choice Voucher Program,\70\ Section 8
Project-Based Rental Assistance (including Moderate
Rehabilitation),\71\ most Medicaid; \72\ and Public Housing under
section 9 of the U.S. Housing Act of 1937. See 8 CFR 212.21(b) (2019).
However, the 2019 Final Rule expressly excluded from consideration the
receipt of public benefits by certain groups, even though Congress did
not exclude consideration of benefits received by these groups.\73\ See
8 CFR 212.22(b)(7)-(9) (2019).
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\68\ This included Supplemental Security Income (SSI), 42 U.S.C.
1381 et seq., Temporary Assistance for Needy Families (TANF), 42
U.S.C. 601 et seq., and Federal, State or local cash benefit
programs for income maintenance (often called ``General Assistance''
in the State context, but which also exist under other names).
\69\ 7 U.S.C. 2011 to 2036c.
\70\ As administered by HUD under 42 U.S.C. 1437f.
\71\ See Section 8 of the U.S. Housing Act of 1937 (42 U.S.C.
1437f).
\72\ As set forth in section 8 of the U.S. Housing Act of 1937
(42 U.S.C. 1437f), except for: benefits received for an emergency
medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR
440.255(c), services or benefits funded by Medicaid but provided
under the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. 1400 et seq., and school-based services or benefits provided
to individuals who are at or below the oldest age eligible for
secondary education as determined under State or local law, and
benefits received by an alien under 21 years of age, or a woman
during pregnancy (and during the 60- day period beginning on the
last day of the pregnancy).
\73\ The 2019 Final Rule excluded from consideration the receipt
of benefits by certain military servicemembers and their spouses and
children, benefits received while in the alien was present in the
United States in an immigration category that is exempt from the
public charge ground of inadmissibility or for which the alien
received a waiver of public charge inadmissibility, and benefit
received by certain other children.
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The 2022 Final Rule limits consideration of public benefits to only
the receipt of public cash assistance for income maintenance \74\ and
long-term institutionalization at government expense.\75\ See 8 CFR
212.21. Unlike the 2019 rule, the 2022 Final Rule does not exempt
consideration of the receipt of public benefits by servicemembers and
their spouses and children or certain other children. Still, the rule
excludes consideration of the receipt of, or certification or approval
for future receipt of, certain excluded benefits. These excluded
benefits include 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. Congress did not expressly exclude receipt of such
benefits.
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\74\ This included Supplemental Security Income (SSI), 42 U.S.C.
1381 et seq., Cash assistance for income maintenance under the
Temporary Assistance for Needy Families (TANF) program, 42 U.S.C.
601 et seq.; and State, Tribal, territorial, or local cash benefit
programs for income maintenance (often called ``General Assistance''
in the State context, but which also exist under other names).
\75\ Long-term institutionalization at government expense means
government assistance for long-term institutionalization (in the
case of Medicaid, limited to institutional services under section
1905(a) of the Social Security Act) received by a beneficiary,
including in a nursing facility or mental health institution. Long-
term institutionalization does not include imprisonment for
conviction of a crime or institutionalization for short periods for
rehabilitation purposes.
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B. Basis for the Removal of the Existing Public Charge Inadmissibility
Framework
In addition to being inconsistent with administration policy and
congressional intent, DHS notes that any narrow and finite lists of
public benefits that may be considered as part of the public charge
inadmissibility determination and similar limitations on the types of
information that immigration officers may consider are incongruent with
past agency guidance and public-facing communications materials
documenting the expansive, fact-specific, totality of the
circumstances, and discretionary nature of the public charge analysis,
including:
<bullet> A March 1946 INS article discussing the inherently fact-
specific nature of the public charge analysis. ``The proof in these
cases usually consists of what is known as a Form I-234 (formerly 534),
`Proof that alien has become a public charge,' which is executed by the
proper hospital officials, showing that the alien is being maintained
or has been maintained at public expense. This form shows the demand
for payment and obligations due. The proof also consists of evidence,
documentary or oral, establishing whether the cause arose before or
after
[[Page 52182]]
entry, which is necessary to a definitive determination of the issue in
accordance with the statutory prerequisite. In medical cases, it is
customary for the record to contain clinical findings, medical
certificates and testimony of the alien, relatives, or friends on the
factual issues . . .'' \76\
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\76\ Montaquila, Anthony L. ``Status of Aliens Who Become Public
Charges.'' Immigration and Naturalization Service Monthly Review,
vol. III, no. 9 (March 1946): 278-280.
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<bullet> A March 1949 INS article describing the administrative
discretion inherent in the public charge analysis. ``In executing his
mandate to exclude `persons likely to become a public charge,' the
immigration officer at a seaport or border is confronted with a
difficult task. The statute's terms are highly ambiguous but they must
be construed in consonance with the Congressional design and the
American tradition. Moreover, the statute speaks of one `likely' to
become a public charge, and thus it thrusts upon the immigration
officer's shoulders the mantle of prophecy. Manifestly this
determination necessarily entails the exercise of sound discretion.''
\77\ (emphasis supplied)
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\77\ Gordon, Charles. ``Aliens and Public Assistance.''
Immigration and Naturalization Service Monthly Review, vol. VI, no.
9 (March 1949): 115-120.
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<bullet> A May 1950, INS article documenting aliens deported as
public charges to instruct INS officers on how to appropriately
evaluate public charge, expressly stating that ``further light may be
thrown on the matter by a detailed examination of the actual cases
deported in recent years.'' The article noted that ``likely to become a
public charge'' is a delineated term in immigration law and offered a
highly factual analysis of recent cases, specifically addressing the
types of charges, the cause of disability in the reported cases, status
at last entry, length of residence in the United States before entering
an institution, and facts regarding the social characteristics of the
aliens (e.g., age, marital status, etc.) for such aliens. The article
noted for officers that before the INS acts in any such cases, ``a
careful investigation is made.'' \78\
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\78\ Miller, Watson B. ``Aliens Deported as Public Charges.''
Immigration and Naturalization Service Monthly Review, vol. VII, no.
11 (May 1950): 144-148.
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<bullet> On May 25, 1999, INS issued a Public Charge Fact Sheet
that discussed the 1999 NPRM's criteria for public charge
determinations, but then expressly stated ``The law requires that INS
and DOS officials consider several additional issues as well. Each
determination is made on a case-by-case basis.'' \79\
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\79\ U.S. Department of Justice, Immigration and Naturalization
Office of Public Affairs, ``Public Charge Fact Sheet'' (May 25,
1999).
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<bullet> In 2009, the USCIS Public Charge web page was updated to
provide additional guidance, including ``Inadmissibility based on the
public charge ground is determined by the totality of the
circumstances. This means that the adjudicating officer must weigh both
the positive and negative factors when determining the likelihood that
someone might become a public charge. At a minimum, a U.S. Citizenship
and Immigration Services (USCIS) officer must consider the following
factors when making a public charge determination: Age, Health, Family
status, Assets, Resources, Financial status, and Education and skills .
. . In assessing the totality of the circumstances, including the
statutory factors above, an officer may consider the individual's
receipt of certain publicly funded benefits.'' \80\
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\80\ United States Citizenship and Immigration Services,
``Public Charge'' web page, as updated September 3, 2009.
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<bullet> In 2011, USCIS issued a Public Charge Fact Sheet stating
``Each determination is made on a case-by-case basis in the context of
the totality of the circumstances. In addition, public assistance,
including Medicaid, that is used to support aliens who reside in an
institution for long-term care--such as a nursing home or mental health
institution--may also be considered as an adverse factor in the
totality of the circumstances for purposes of public charge
determinations.'' \81\
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\81\ United States Citizenship and Immigration Services ``Public
Charge Fact Sheet'' (April 29, 2011).
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Even if some past agency policy or practice is inconsistent with
these examples, DHS notes these examples of past practice as the most
consistent with the statute and best means of reaching accurate,
precise, and reliable determinations. Indeed, even the 1999 Interim
Field Guidance, which the 2022 Final Rule substantively tracks in most
other respects, emphasized ``Officers must consider, at a minimum,''
the statutory factors and mandated ``Every denial order based on public
charge must reflect consideration of each of these factors and
specifically articulate the reasons for the officer's determination.''
\82\ The guidance continued, ``In determining whether an alien is
likely to become a public charge, Service officers should assess the
financial responsibility of the alien by examining the `totality of the
alien's circumstances' . . . The determination of financial
responsibility should be a prospective evaluation based on the alien's
age, health, family status, assets, resources and financial status,
education, and skills, among other factors . . . In addition, the
Attorney General has ruled that `[s]ome specific circumstances, such as
mental or physical disability, advanced age, or other fact reasonably
tending to show that the burden of supporting the alien is likely to be
cast on the public, must be present.' '' \83\ (emphasis in original)
---------------------------------------------------------------------------
\82\ Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds (1999 Interim Field Guidance) 64 FR 28689 (May
26, 1999).
\83\ Id. at 28690.
---------------------------------------------------------------------------
These examples of past agency guidance and public-facing materials
relating to public charge support DHS's position that the public charge
determination is extremely fact-specific and discretionary in nature,
but also that the 2019 Final Rule and the 2022 Final Rule were far too
narrow in terms of reducing officer discretion and that the 2022 Final
Rule continues to straitjacket DHS officers because it unduly limits
the scope of factors officers may consider when arriving at a case-by-
case determination in the totality of each alien's circumstances.
For these reasons, DHS believes that it must completely remove the
public charge inadmissibility framework established by the 2022 Final
Rule in order to be more consistent with PRWORA's directive that
``aliens within the Nation's borders not depend on public resources to
meet their needs, but rather rely on their own capabilities and the
resources of their families, their sponsors, and private
organizations,'' as well as with section 212(a)(4)(A) of the INA, 8
U.S.C. 1182(a)(4)(A), which directs DHS to deny admission and
adjustment of status to aliens who are likely at any time to become a
public charge. Indeed, DHS believes that the 2022 Final Rule's public
charge inadmissibility provisions do not faithfully implement PRWORA
and section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A), insofar as
they straitjacket DHS officers by limiting what public benefits DHS can
consider in the totality of the circumstances and by precluding
officers from considering factors beyond the seven factors outlined in
the regulations.
To address the 2022 Final Rule's inconsistency with administration
policy and the clear directives in PRWORA and section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), in this NPRM, DHS proposes to remove 8 CFR
212.20, 212.21, 212.22, and 212.23. In removing 8 CFR 212.21 and 8 CFR
212.22, DHS
[[Page 52183]]
will eliminate the unduly and inappropriately restrictive framework
established by the 2022 Final Rule that results in officers being
required to ignore aliens' receipt of certain public benefits such as
Medicaid, CHIP, SNAP, and housing benefits. Eliminating this narrow
approach allows DHS to formulate appropriate policy and interpretive
tools that will guide DHS officer determinations, as envisioned by
Congress in PRWORA and in the INA, where the receipt of any type of
public benefits by a qualified alien is relevant and indeed critical to
determining whether an alien is actually self-sufficient and able to
rely on their own capabilities and the resources of their families,
their sponsors, and private organizations rather than depending on
public resources to meet their needs. See 8 U.S.C. 1601(2)(A); INA sec.
212(s), 8 U.S.C. 1182(s).
Additionally, DHS believes that it should remove the limitation on
factors to be considered in public charge inadmissibility
determinations in order to more faithfully implement PRWORA and section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). DHS believes that the
current regulations are inconsistent with section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), by focusing on consideration of seven exclusive
factors. Instead, DHS contends that Congress clearly signaled the
inadmissibility determination must be a subjective, individualized, and
case-specific determination based on consideration of all relevant
factors rather than an enumerated, finite set of factors. See INA sec.
212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). Even if the 2022 Final Rule could
be viewed as a faithful implementation of the INA as a legal matter,
DHS would still move to rescind the rule in light of current
administration policy and the national policies articulated in PRWORA
with respect to welfare and immigration.\84\
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\84\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Simply put, DHS believes that the narrow definitions as well as the
limitations on what public benefits and what factors can be considered
in public charge inadmissibility determinations that exist in 8 CFR
212.20, 212.21, and 212.22 impede DHS's ability to robustly execute
administration and congressional policy concerning aliens who depend on
public resources to meet their needs instead of relying on their own
capabilities and the resources of their families, their sponsors, and
private organizations. Put another way, the administration and clear
congressional national policy on welfare and immigration point to the
view that an alien who lacks self-sufficiency should not be admitted to
the United States or be granted adjustment of status to that of a
lawful permanent resident.\85\ Accordingly, DHS's expeditious removal
of these regulations would allow DHS to more accurately, precisely, and
reliably assess public charge inadmissibility, and would bolster DHS's
ability to make individualized and case-specific public charge
inadmissibility determinations that are required under the statute and
are consistent with our national policy with respect to welfare and
immigration.
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\85\ See 8 U.S.C. 1601.
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DHS believes that the existing regulatory framework can lead to
irrational outcomes where officers are precluded from finding aliens
inadmissible under the public charge ground when it is evident that
these aliens are clearly not self-sufficient, which can lead to both
more aliens remaining in the United States who are likely at any time
to become a public charge and more aliens being dependent on public
benefits programs. For example, under the 2022 Final Rule, DHS officers
could find aliens who receive multiple forms of means-tested benefits
to meet their needs not inadmissible due to the restrictive definition
of ``likely at any time to become a public charge,'' which exclusively
focuses on public cash assistance for income maintenance and long-term
institutionalization at government expense and ignores the vast
majority of public assistance aliens could potentially depend on in the
future.
If this proposed rule is finalized, while DHS works on formulating
appropriate policy and interpretive tools that will guide DHS officers
for public charge inadmissibility determinations, officers will be
empowered to consider not only the mandatory statutory factors, but
also all evidence and information specific to the alien and relevant to
the public charge ground of inadmissibility that is before them as they
determine whether that alien is likely at any time to become a public
charge. This will restore an inadmissibility determination process that
trusts in and relies on DHS officers' good judgment and sound
discretion as envisioned by Congress.
DHS also believes that removing the current regulations would
provide DHS greater flexibility to adapt to changing circumstances,
such as Federal and State changes to aliens' eligibility for means-
tested public benefits as well as changes to the value of those
benefits, as occurred with the enactment of H.R. 1-One Big Beautiful
Bill Act, Public Law 119-21, 139 Stat. 72 (``HR-1''). As the
administration persists in its efforts to reduce the siloing of
data,\86\ DHS anticipates working toward the integration of immigration
records with records from Federal benefit-granting agencies. The
analysis of that data will inform the development of the flexible and
adaptive policy and interpretive tools that will guide future public
charge inadmissibility determinations.
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\86\ See Executive Order 14243, Stopping Waste, Fraud, and Abuse
by Eliminating Information Silos, 90 FR 1368 (Mar. 25, 2025) (The
purpose of the E.O. is ``removing unnecessary barriers to Federal
employees accessing Government data and promoting inter-agency data
sharing are important steps toward eliminating bureaucratic
duplication and inefficiency while enhancing the Government's
ability to detect overpayments and fraud.'').
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Upon removal of 8 CFR 212.20, 212.21, and 212.22, and until such
time that DHS establishes its new public charge inadmissibility policy
and interpretive tools, DHS will ensure that public charge
inadmissibility determinations are made consistent with the statute and
in accordance with the totality of the circumstances including those
established by past precedent decisions.\87\ DHS notes that it is not
proposing to replace the rescinded public charge inadmissibility
regulations at this time. Notably, while INS published the 1999
NPRM,\88\ there were no regulations governing public charge
inadmissibility determination
[[Page 52184]]
from 1882 \89\ until the 2019 Final Rule.\90\ DHS also proposes to
remove 8 CFR 212.23, which clarifies in one place the categories of
aliens to whom the public charge ground of inadmissibility does not
apply and the categories of aliens to whom the ground applies but for
whom a waiver of inadmissibility is available. DHS believes that this
regulatory text is unnecessary and redundant.
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\87\ See e.g. Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (``[T]he determination of whether an alien falls into
that category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-
22 (Att'y Gen. 1962) ((in determining whether a person is likely to
become a public charge, factors to consider include age, health, and
physical condition, physical or mental defects which might affect
earning capacity, vocation, past record of employment, current
employment, offer of employment, number of dependents, existing
conditions in the United States, sufficient funds or assurances of
support by relatives or friends in the United States, bond or
undertaking, or any specific circumstances reasonably tending to
show that the burden of supporting he alien is likely to be case on
the public.); see also Matter of A-, 19 I&N Dec. 867, 869 (Comm'r
1988) (applying ``[t]he traditional test . . . to determine whether
an alien is likely to become a public charge . . . `based on the
totality of the alien's circumstances' as presented in the
individual case.'') (citations omitted); Matter of Perez, 15 I&N
Dec. 136, 137 (BIA 1974) (``the statute . . . requires more than a
showing of a possibility that the alien will require public support.
Some specific circumstance, such as mental or physical disability,
advanced age, or other fact reasonably tending to show that the
burden of supporting the alien is likely to be cast on the public,
must be present.'') (emphasis added).
\88\ See 64 FR 28676 (May 26, 1999).
\89\ See Immigration Act of 1882, ch. 376, secs. 1-2, 22 Stat.
214, 214. Section 11 of the Act also provided that an alien who
became a public charge within 1 year of arrival in the United States
from causes that existed prior to their landing was deemed to be in
violation of law and was to be returned at the expense of the person
or persons, vessel, transportation, company, or corporation who
brought the alien into the United States.
\90\ See 84 FR 41292 (Aug. 14, 2019), as amended by 84 FR 52357
(Oct. 2, 2019).
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V. Discussion of the NPRM
A. Introduction
DHS proposes to remove its regulations governing the public charge
ground of inadmissibility under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), because those regulations conflict or are in significant
tension with congressional intent, administration and congressional
national policy with respect to welfare and immigration,\91\ and past
precedent decisions.\92\ The removal of these regulations, reflected in
this NPRM, rescind the key policies implemented in the 2022 Final Rule
while modifying provisions relating to public charge bonds to align
with the removal of the other provisions and for clarity.
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\91\ 8 U.S.C. 1601.
\92\ See e.g. Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (emphasizing that the term public charge refers to
individuals who are ``without sufficient funds to support
[themselves], who ha[ve] no one under any obligation to support
[them] and who, being older, ha[ve] an increasing chance of becoming
dependent, disabled and sick.''); Matter of Martinez-Lopez, 10 I&N
Dec. 409, 421-423 (BIA 1962; Att'y Gen. 1962) (A public charge
inadmissibility determination ``requires more than a showing of a
possibility that the alien will require public support. Some
specific circumstance, such as mental or physical disability,
advanced age, or other fact showing that the burden of supporting
the alien is likely to be cast on the public, must be present. A
healthy person in the prime of life cannot ordinarily be considered
likely to become a public charge, especially where he has friends or
relatives in the United States who have indicated their ability and
willingness to come to his assistance in case of emergency.'');
Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974) (``The
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.''). See also Matter of A-, 19 I&N Dec. 867,
869 (Comm'r 1988) (33 year old employed mother of three not likely
to become a public charge notwithstanding having previously received
public benefits. The BIA considered other relevant factors such as
that a mother's temporary absence from the work force to care for
her children is not by itself sufficient basis to find the mother
likely to become a public charge. There may be circumstances beyond
the control of the alien which temporarily prevent an alien from
joining the work force. For example, as the applicant states in her
appeal, she lives in an area where jobs are scarce and she had been
unable to find a job.); Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977)). And see Ex parte Hosaye Sakaguchi, 277 F. 913, 916
(9th Cir. 1922) (holding that an alien could not be deemed a public
charge absent evidence of ``mental or physical disability or any
fact tending to show that the burden of supporting the [alien] is
likely to be cast upon the public.'').
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By removing overly restrictive provisions, DHS seeks to ensure that
DHS officers more accurately and appropriately evaluate an alien's
likelihood of becoming dependent on public resources to meet their
needs by following the plain language of the statute and past precedent
decisions that have guided public charge inadmissibility determinations
for decades. DHS believes that removal of these overly restrictive
provisions would lead to fewer aliens remaining in the United States
who are likely at any time to become a public charge, which would also
result in a reduction in the number of aliens dependent on public
benefits programs, as intended by Congress in PRWORA.
B. Discussion of the Amendments and Removals in the NPRM
1. Proposed Amendments to Cancellation and Breach of Public Charge
Bonds Provisions--8 CFR 103.6(c)
DHS proposes to amend its regulations governing the cancellation
and breach of public charge bonds at 8 CFR 103.6(c)(1) to reflect the
rescission of 8 CFR 212.21 as well as to more fully address when a
public charge bond will be considered breached, and to explicitly
address administrative appeals from a determination that the alien
breached a bond.
Under the proposed 8 CFR 103.6(c)(1)(A), a public charge bond
posted for an alien will continue to be cancelled when the alien dies,
departs permanently from the United States, or is naturalized, provided
the alien did not breach the bond as described in proposed 8 CFR
103.6(c)(1)(B). However, under proposed 8 CFR 103.6(c)(1)(B), a public
charge bond submitted on or after the effective date of a forthcoming
final rule would be breached if the bonded alien were to receive any
means-tested public benefits prior to death, permanent departure, or
naturalization, or otherwise violate a condition of the bond.
Since DHS proposes to remove references to public cash assistance
for income maintenance or long-term institutionalization at government
expense as part of the public charge inadmissibility determination, DHS
relatedly proposes to replace that language prohibiting the
cancellation of a public charge bond if the bonded alien has received
public cash assistance for income maintenance or long-term
institutionalization at government expense with language that prohibits
cancellation if the bonded alien has breached the bond by receiving any
means-tested public benefits or is otherwise noncompliant with any
conditions of the bond. This amendment is intended to ensure that the
government \93\ is held harmless if a bonded alien breaches his or her
public charge bond, as required by the statute. See INA sec. 213, 8
U.S.C. 1183. An alien who submitted his or her public charge bond
before the effective date of any forthcoming final rule that is issued
based on this NPRM, and whose bond is accepted by USCIS, would be held
to the regulatory standards from the 2022 Final Rule, which are also
reflected on the bond form. That is, the alien would only breach the
bond if he or she received public cash assistance for income
maintenance or long-term institutionalization at government expense, or
otherwise violated the conditions of the bond, before meeting one of
the requirements for cancellation. In addition, cancellation of that
bond submitted prior to the effective date of any final rule stemming
from this NPRM (if accepted by USCIS) would be based on the version of
8 CFR 103.6 established by the 2022 Final Rule. Further, the proposed
changes to this provision make explicit that final breach bond
determinations are appealable by sureties under 8 CFR 103.6(f), and by
aliens under 8 CFR 103.3.
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\93\ Under INA sec. 213, 8 U.S.C. 1183, ``the United States and
all States, territories, counties, towns, municipalities, and
districts thereof.''
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DHS also proposes to amend 8 CFR 103.6(c)(1) to modify the standard
for cancellation of a public charge bond after the fifth anniversary of
the alien's admission or adjustment of status to reflect the removal of
8 CFR 212.21. Under the proposed 8 CFR 103.6(c)(1), if an alien files
Form I-356, Request for Cancellation of Public Charge Bond, USCIS may
cancel the bond if USCIS determines that the alien did not breach the
bond by receiving any means-tested public benefit or otherwise being
noncompliant with the conditions of the bond.
In addition, DHS proposes to remove language from 8 CFR 103.6(c)(1)
stating that DHS can cancel a public charge bond at any time if it
determines ``that
[[Page 52185]]
the alien is not likely at any time to become a public charge'' because
that provision is misleading and not feasible. For aliens who have been
admitted to the United States as LPRs or adjusted to LPR status within
the United States after submitting a suitable and proper public charge
bond under section 213 of the INA, 8 U.S.C. 1183, DHS does not sua
sponte make a second, post-adjudication public charge inadmissibility
determination under section 212(a)(4)(A) of the INA, 8 U.S.C.
1182(a)(4)(A).\94\ The existing regulatory language suggests that USCIS
may periodically review and reconsider its previous public charge
inadmissibility determination and cancel the public charge bond, or
that aliens who had submitted a public charge bond may request such a
review. However, neither of these suggestions are accurate.\95\ Once
USCIS or DOS determines that an alien is inadmissible under the public
charge ground but adjusts the alien's status or grants their immigrant
visa after the alien submits a suitable and proper bond, DHS would not
cancel the bond except as otherwise noted in proposed 8 CFR 103.6(c).
If the proposal is finalized, the removal of this language would result
in regulatory text that clearly and transparently communicates to the
regulated public about the circumstances under which a public charge
bond may be cancelled.
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\94\ Under INA sec. 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), an
LPR may only be considered an applicant for admission, and subject
to an inadmissibility determination, in certain narrow circumstances
outlined by Congress in the statute. These include situations in
which the alien has abandoned their LPR status or has engaged in
illegal activity after departing.
\95\ DHS notes that in general, once it makes an inadmissibility
determination and the alien is no longer applying for admission at a
port of entry or a benefit before USCIS it does not reevaluate
inadmissibility after granting admission at a POE or after approving
an alien's application to adjust status to that of an LPR. The
exception to this general rule is if the LPR becomes an applicant
for admission through the operation of INA 101(a)(13)(C), 8 U.S.C.
1101(a)(13)(C) for example, if the abandoned his or her LPR status,
has been absent from the United States for more than 180 days, etc.
However, in the context of naturalization, for example, USCIS may,
in assessing whether an applicant was lawfully admitted for
permanent residence, evaluate whether the alien was admissible at
the time of admission or adjustment of status. See INA sec. 316, 8
US.C. 1427; INA sec. 245(a)(2), 8 U.S.C. 1255(a)(2).
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DHS also proposes to restructure the current 8 CFR 103.6(c)(1) for
clarity. It proposes to move content relating to the breach of bonds to
a new 8 CFR 103.6(c)(1)(B). This proposed paragraph explains how the
receipt of means-tested public benefits (or, for public charge bonds
accepted before the effective date of the final rule, public cash
assistance for income maintenance or long-term institutionalization at
government expense), as well as any other noncompliance with a
condition of the bond, will result in a breach. DHS also proposes to
re-order and restructure 8 CFR 103.6(c)(1)(A), which outlines the bases
for cancellation of a public charge bond. If finalized, this will help
officers and the public better understand the separate bases for bond
cancellation and the related requirements, and understand that
cancellation requires the submission of a request on the form
designated by DHS.
Apart from these changes, DHS is retaining the technical amendments
from the 2022 Final Rule in 8 CFR 213.1 that facilitate the efficient
administration of public charge bonds as well as the clarification
concerning DHS's authority to offer public charge bonds, in its
discretion, to certain adjustment of status applicants.
2. Proposed Removal of Definitions and Regulatory Framework for Making
Public Charge Inadmissibility Determinations--8 CFR 212.21
DHS is proposing to remove 8 CFR 212.21, which contains definitions
codified by the 2022 Final Rule. The definitions DHS proposes to remove
include ``likely at any time to become a public charge,'' ``receipt (of
public benefits),'' ``public cash assistance for income maintenance,''
and ``long-term institutionalization at government expense.'' DHS also
proposes to eliminate the definitions for ``government'' and
``household.''
a. Proposed Removal of Definition for Likely at Any Time To Become a
Public Charge
The INA does not define ``public charge'' or ``likely at any time
to become a public charge.'' See INA sec. 212(a)(4), 8 U.S.C.
1182(a)(4). It instead provides an orientational framework for making
public charge inadmissibility determinations by identifying five
mandatory factors and one discretionary factor for officers to consider
when determining whether an alien is inadmissible under the public
charge ground in the totality of the circumstances.
The 2019 Final Rule specifically defined a public charge as ``an
alien who receives one or more public benefits, as defined in paragraph
(b) of this section, for more than 12 months in the aggregate within
any 36-month period (such that, for instance, receipt of two benefits
in one month counts as two months).'' See 8 CFR 212.21(a) (2019). The
2019 Final Rule also defined likely at any time to become a public
charge to mean ``more likely than not at any time in the future to
become a public charge, as defined in 212.21(a), based on the totality
of the alien's circumstances.'' See 8 CFR 212.21(c) (2019). These
definitions were based on the longstanding national policy that aliens
inside the United States must be self-sufficient and not rely on public
benefits to meet their needs. See 84 FR 41292, 41295 (August 14, 2019).
The 2022 Final Rule did not define public charge, but defined
``likely at any time to become a public charge'' to mean ``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.'' See 8 CFR 212.21(a) (2022). This interpretation
was based on, among other things, an interpretation of the interplay
between section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A), and 8
U.S.C. 1601. See 87 FR 10570, 10606 (Feb. 24, 2022).
However, DHS finds that the definitions for ``likely at any time to
become a public charge'' in both the 2019 Final Rule and 2022 Final
Rule are too restrictive and, as a result, prevented officers from
assessing whether an alien is self-sufficient and is likely to depend
on their own capabilities and the resources of their families, their
sponsors, and private organizations to meet their needs, as intended by
Congress when enacting 8 U.S.C. 1601 close in time to the changes to
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in IIRIRA. DHS does
not believe that limiting the types of benefits and the time frame of
receipt of such benefits in determining an alien's likelihood of
becoming a public charge, as was done in the 2019 Final Rule, or a
bright line primary dependence on the government for subsistence
standard, as was done in the 2022 Final Rule, are the best
implementation of the public charge inadmissibility statute given
Congress' clear statement that ``aliens within the Nation's borders not
depend on public resources to meet their needs . . . .'' See 8 U.S.C.
1601(2)(A) (emphasis added).
DHS is therefore proposing to eliminate the 2022 definition of
``likely at any time to become a public charge,'' which was defined as
``likely at any time to become primarily dependent on the government
for subsistence.'' This would allow officers to focus on Congress'
unequivocal policy goal that aliens not depend on public resources to
meet their needs,\96\ but rather that aliens
[[Page 52186]]
rely ``on their own capabilities and the resources of their families,
their sponsors, and private organizations'' as envisioned by PRWORA.
See 8 U.S.C. 1601(2). This interpretation also recognizes that aliens
can lack self-sufficiency and not be relying on their own capabilities
and the resources of their families, their sponsors, and private
organizations, even where they are not primarily dependent on the
government.\97\
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\96\ See 8 U.S.C. 1601(1).
\97\ See 84 FR 41292, 41349 (Aug. 14, 2019) (``although the
primarily dependence (more-than-50-percent dependence) on public
assistance standard creates a bright line rule, it is possible and
likely probable that many individuals whose receipt of public
benefits falls below that standard lack self-sufficiency.''); 83 FR
51114, 51164 (Oct. 10, 2018) (``it is possible and likely probable
that many individuals whose receipt of public benefits falls below
[the ``primarily dependent''] standard lack self-sufficiency.'').
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Moreover, DHS notes that neither the statute nor case law prescribe
the degree to which an alien must receive public benefits to be
considered likely at any time to become a public charge. As concluded
in past precedent, in general, an alien who is incapable of earning a
livelihood, who does not have sufficient funds in the United States for
support, who has no person in the United States willing and able to
ensure that the alien will not need public support, and who, in fact,
receives such public support generally is inadmissible as likely to
become a public charge.\98\ Additionally, there are public benefits
other than the two types relied upon in the 2022 Final Rule that are
intended to meet the basic necessities of life and maintain a minimum
quality of life within the United States. There are also classes of
public benefits where the cost to the government (in the aggregate or
on a per-alien basis) is similar to or greater than the costs
associated with cash assistance for income maintenance.\99\ Ignoring
any dependence on these other public benefits when making a public
charge inadmissibility determination is inconsistent with the clear
self-sufficiency objectives articulated by Congress in PRWORA.
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\98\ See, e.g., Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l
Comm'r 1977) (Congress intends that an applicant for a visa 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.''); Matter of
Harutunian, 14 I&N Dec. 583, 589 (Reg'l Comm'r 1974) (``Congress
intends that an applicant for a visa be excluded who is without
sufficient funds to support himself, who has no one under any
obligation to support him and who, being older, has an increasing
chance of becoming dependent, disabled and sick.'') (emphasis
added); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962;
Att'y Gen. 1964) (``the general tenor of the holdings is that the
statute requires more than a showing of a possibility that the alien
will require public support. Some specific circumstance, such as
mental or physical disability, advanced age, or other fact
reasonably tending to show that the burden of supporting the alien
is likely to be cast on the public, must be present. A healthy
person in the prime of life cannot ordinarily be considered likely
to become a public charge, especially where he has friends or
relatives in the United States who have indicated their ability and
willingness to come to his assistance in case of emergency.'').
\99\ For example, in calendar year 2022 the median Medicaid
expenditure per enrollee was $9,108. See <a href="http://Medicaid.gov">Medicaid.gov</a>, ``Medicaid
Per Capita Expenditures,'' <a href="https://www.medicaid.gov/state-overviews/scorecard/measure/Medicaid-Per-Capita-Expenditures?measure=EX.5&measureView=state&stratification=463&dataView=pointInTime&chart=map&timePeriods=%5B%222022%22%5D">https://www.medicaid.gov/state-overviews/scorecard/measure/Medicaid-Per-Capita-Expenditures?measure=EX.5&measureView=state&stratification=463&dataView=pointInTime&chart=map&timePeriods=%5B%222022%22%5D</a> (last visited
Sept. 17, 2025). By comparison, in July 2022, the average monthly
SSI payment per recipient was $624, or $7,491 annually. See Social
Security Administration, ``Monthly Statistical Snapshot, July 2022''
(August 2022), <a href="https://www.ssa.gov/policy/docs/quickfacts/stat_snapshot/2022-07.html">https://www.ssa.gov/policy/docs/quickfacts/stat_snapshot/2022-07.html</a> (last visited Sept. 17, 2025). TANF cash
assistance levels vary significantly between States due to the
nature of the program, but in 2024 an analysis by the National
Center for Children in Poverty found that the median maximum TANF
benefit for a family of three was $552/month, or $2,208 annually per
household member. See National Center for Children in Poverty, ``A
50-State Comparison of TANF Amounts'' (Nov. 12, 2024), <a href="https://www.nccp.org/wp-content/uploads/2024/11/TANF-Benefit-Amounts-2024-FINAL.pdf">https://www.nccp.org/wp-content/uploads/2024/11/TANF-Benefit-Amounts-2024-FINAL.pdf</a> (last visited Sept. 17, 2025).
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Moreover, ignoring an alien's dependence on any benefit intended to
help the alien meet their needs incentivizes immigration to the United
States and is inconsistent with the clear national policy regarding
welfare and immigration. See 8 U.S.C. 1601(2)(B). By removing
unnecessarily restrictive definitions from the regulations, DHS
officers will be able to make public charge inadmissibility
determinations that are consistent with administration policy, the
self-sufficiency goals of PRWORA, and the totality of the circumstances
framework established in IIRIRA in section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4).
DHS believes that it is any dependence on a means-tested public
benefit to meet the alien's needs--and not just receiving more than a
designated public benefit for a specific period of time or being
primarily dependent on public cash assistance for income maintenance or
long-term institutionalization at government expense--that Congress
intended to address with the public charge ground of inadmissibility as
it has existed since IIRIRA. Limiting what it means to be likely at any
time to become a public charge as it was done in the 2019 Final Rule
and the 2022 Final Rule is inconsistent with congressional intent and
DHS therefore declines to limit it in this way.
Consequently, through this NPRM, DHS proposes to move away from a
bright line primary dependence standard, which would allow officers to
make public charge inadmissibility determinations consistent with the
dependence standard contemplated in 8 U.S.C. 1601(2)(A) and reflected
in past precedent decisions. DHS proposes to remove all regulatory
limitations on the types of public resources that are relevant for
considering whether an alien is dependent by removing the references to
public cash assistance for income maintenance or long-term
institutionalization at government expense. This will allow officers to
make public charge inadmissibility determinations that are consistent
with Congress' intent.
DHS notes that the litigation on the 2019 Final Rule did not
culminate in a decision on the merits from the U.S. Supreme Court, and
therefore DHS does not have a nationally binding judicially established
best interpretation of likely at any time to become a public
charge.\100\ However, if DHS were to finalize this proposed removal of
the 2022 Final Rule, until such time as DHS puts forth new policy and
interpretive tools for public charge inadmissibility determinations,
DHS would make these determinations in line with the mandatory
statutory factors, relevant circuit precedent,\101\ and established
[[Page 52187]]
precedent decisions that have historically informed such
determinations.\102\ Those decisions favor a nuanced approach but
generally recognize that a healthy individual of working age with no
significant health conditions or disabilities impacting his or her
ability to be self-sufficient, and who has family members, sponsors, or
others obligated or otherwise able to come to their aid is unlikely to
be inadmissible as likely at any time to become a public charge, and
that even past receipt of public benefits is not always dispositive in
such determinations.\103\
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\100\ Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
(overruling Chevron deference to agency interpretations of ambiguous
statutes and acknowledging that courts rather than agencies are in
the position to determine the best interpretation of an ambiguous
statue. The case acknowledges that in some circumstances, an agency
interpretation of a statute may nonetheless have the power to
persuade the court consistent with the standard enunciated in
Skidmore v. Swift & Co., 323 U.S. 134 (1944), especially to the
extent that the agency views are within its area of expertise.)
\101\ The U.S. Courts of Appeal for the Second, Fourth, Seventh,
and Ninth Circuits opined on the plain language of the statute as
well as the historical/traditional meaning of the term public
charge. The Fourth Circuit, for example, disagreed that the
primarily dependent standard is not embedded into the text of the
statute, as well as that the term has a fixed historical meaning and
emphasized that instead the statute grants the executive extensive
and ultimate discretion over inadmissibility determinations,
including the consideration of a non-finite list of factors. See,
CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 242-244 (4th Cir.
2020) (rehearing en banc granted but the case was subsequently
dismissed). Other circuits particularly focused on identifying
limitations on the meaning of the term, and ensuring that the term
public charge is not defined in such a way that would deem someone
receiving a small amount of supplemental benefits for a short period
of time as inadmissible under the ground. See, e.g. New York v. DHS,
969 F.3d 42, 78 (2nd Cir. 2020); City and Cnty. of San Francisco v.
United States Citizenship and Immigration Services, 981 F.3d 742,
759 (9th Cir. 2020); Cook County v. Wolf, 962 F.3d 208, 229, 246
(7th Cir. 2020). The Seventh Circuit in particular held that the
term ``public charge'' has a ``floor inherent in the words,'' which
requires a degree of dependency that goes beyond temporary receipt
of supplemental benefits. Id.
\102\ See e.g. Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (emphasizing that the term public charge refers to
individuals who are ``without sufficient funds to support
[themselves], who ha[ve] no one under any obligation to support
[them] and who, being older, ha[ve] an increasing chance of becoming
dependent, disabled and sick.''); Matter of Martinez- Lopez, 10 I&N
Dec. 409, 421-423 (BIA 1962; Att'y Gen. 1962) (A public charge
inadmissibility determination ``requires more than a showing of a
possibility that the alien will require public support. Some
specific circumstance, such as mental or physical disability,
advanced age, or other fact showing that the burden of supporting
the alien is likely to be cast on the public, must be present. A
healthy person in the prime of life cannot ordinarily be considered
likely to become a public charge, especially where he has friends or
relatives in the United States who have indicated their ability and
willingness to come to his assistance in case of emergency.'');
Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974) (``The
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.''). See also Matter of A-, 19 I&N Dec. 867,
869 (Comm'r 1988) (33 year old employed mother of three not likely
to become a public charge notwithstanding having previously received
public benefits. The BIA considered other relevant factors such as
that a mother's temporary absence from the work force to care for
her children is not by itself sufficient basis to find the mother
likely to become a public charge. There may be circumstances beyond
the control of the alien which temporarily prevent an alien from
joining the work force. For example, as the applicant states in her
appeal, she lives in an area where jobs are scarce and she had been
unable to find a job.); Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977)). And see Ex parte Hosaye Sakaguchi, 277 F. 913, 916
(9th Cir. 1922), (holding that an alien could not be deemed a public
charge absent evidence of ``mental or physical disability or any
fact tending to show that the burden of supporting the [alien] is
likely to be cast upon the public.'')
\103\ See Matter of Martinez- Lopez, 10 I&N Dec. 409, 421-423
(BIA 1962; Att'y Gen. 1962) (A public charge inadmissibility
determination ``requires more than a showing of a possibility that
the alien will require public support. Some specific circumstance,
such as mental or physical disability, advanced age, or other fact
showing that the burden of supporting the alien is likely to be cast
on the public, must be present. A healthy person in the prime of
life cannot ordinarily be considered likely to become a public
charge, especially where he has friends or relatives in the United
States who have indicated their ability and willingness to come to
his assistance in case of emergency.''); Matter of Perez, 15 I&N
Dec. 136, 137 (BIA 1974) (``The 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.'').
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b. Proposed Removal of Definitions for Public Cash Assistance for
Income Maintenance and Long-Term Institutionalization at Government
Expense
To align this rule with the removal of the definition for ``likely
at any time to become a public charge'', DHS proposes to eliminate the
definitions for public cash assistance for income maintenance and long-
term institutionalization at government expense that are present in 8
CFR 212.21(b) and (c). As mentioned above, limiting consideration to
primary dependence on only public cash assistance for income
maintenance and long-term institutionalization at government expense is
unnecessarily restrictive. Given the statute does not prescribe a
primary dependence standard or consideration of only a narrow and
specific list of public benefits for these inadmissibility
determinations, DHS believes that it is appropriate to allow for
consideration of the receipt of any means-tested public benefit when
determining whether an alien is likely at any time to become a public
charge.\104\ DHS notes that relevant precedent decisions do not
prescribe primary dependence based on a narrow and specific list of
public benefits either.\105\ Accordingly, DHS proposes to eliminate
these definitions that limit the benefits that are considered as part
of the public charge inadmissibility determination.
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\104\ Matter of Harutunian, 14 I&N Dec. 583, 589 (BIA 1974)
(``Congress intends that an applicant for a visa be excluded who is
without sufficient funds to support himself, who has no one under
any obligation to support him and who, being older, has an
increasing chance of becoming dependent, disabled and sick.'').
\105\ See Matter of A-, 19 I&N Dec. 867, 869 (BIA 1988)
(acknowledging consideration of evidence of receipt of any prior
public assistance as a factor in making the public charge
inadmissibility determination); Matter of Vindman, 16 I&N Dec. 131,
132 (BIA 1977) (finding that aliens who are receiving SSI and public
funds from the New York Department of Social Services ``fall clearly
within the confines of section 212(a)(15) of the Act and are
excludable as public charges.''). Note that Congress implicitly
recognized that past receipt of any public benefit can be considered
in determining the alien's likelihood of becoming a public charge
when it prohibited consideration of the receipt of any public
benefit that is authorized under 8 U.S.C. 1641(c) for certain
battered aliens. See INA sec. 212(s), 8 U.S.C. 1182(s).
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c. Proposed Removal of the Definition for Receipt (of Public Benefits)
In light of DHS's elimination of the definitions for likely at any
time to become a public charge, public cash assistance for income
maintenance, and long-term institutionalization at government expense,
DHS is removing the definition from the 2022 Final Rule for receipt (of
public benefits). The definition is not necessary and reflects an
inappropriate limitation on immigration officer's ability to consider
relevant evidence.
d. Proposed Removal of the Definitions for Government and Household
Similarly, in light of the rescission of the key policy elements of
the 2022 Final Rule, no purpose would be served in retaining the
definitions for ``government'' or ``household'' found in 8 CFR
212.21(e) and (f). DHS believes that the ordinary meaning of various
terms (e.g., government, household) that are relevant to public charge
determinations are sufficient for officers to conduct determinations
after DHS issues any final rule removing the 2022 Final Rule based on
this NPRM, and before DHS has the opportunity to issue policy and
interpretive tools addressing public charge inadmissibility.
3. Proposed Removal of Regulations Outlining the Public Charge
Inadmissibility Determination--8 CFR 212.22
The stated aim of the 2022 Final Rule was to maintain the framework
set forth in the 1999 Interim Field Guidance.\106\ Under the 2022 Final
Rule, officers are directed to consider the statutory minimum factors,
a sufficient Affidavit of Support Under Section 213A of the INA, where
required, and the receipt of specified public benefits, in the totality
of the circumstances, without separately codifying the standard and
evidence required for each factor that existed in the 2019 Final
Rule.\107\
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\106\ 87 FR 55472, 55473 (Sept. 9, 2022).
\107\ See 8 CFR 212.22(a) and (b).
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a. Proposed Removal of Statutory Minimum Factors Provision
Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), officers
are required to consider specific minimum factors in determining
whether an alien applying for a visa, admission, or adjustment of
status is likely at any time to become a public charge--the alien's
age; health; family status; assets, resources, and financial status;
and education and
[[Page 52188]]
skills.\108\ Insofar as the regulations at 8 CFR 212.22(a)(1) reflect
what the statute mandates be considered as part of every public charge
inadmissibility determination, DHS believes that it is unnecessary to
restate these statutory minimum factors in the regulation.
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\108\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
The statute also permits, but does not require, the consideration of
a sufficient Affidavit of Support Under Section 213A of the INA, if
required. See INA sec. 212(a)(40(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------
If the removal of this regulation is finalized, the statute, DHS
would continue to collect information pertinent to the statutory
minimum factors and relevant considerations, such as the alien's
household size, the alien's income, assets, and liabilities, the
alien's education level and any skills, and whether the alien has or is
receiving means-tested public benefits. DHS would continue to use this
information to determine, in the totality of the circumstances, whether
the alien is inadmissible as likely at any time to become a public
charge. INA sec. 212(a)(4); 8 U.S.C. 1182(a)(4).
While DHS is adjusting the Form I-485 to account for the proposed
removal of the regulatory provisions, DHS is not proposing to
substantively change the collection of information related to the
statutory minimum factors but will continue to request information in a
manner that maximizes practical utility of the information collection
and relevance to the totality of the circumstances analysis, consistent
with governing precedent. For example, information pertaining to the
health factor will continue to be obtained from Report of Immigration
Medical Examination and Vaccination Record, Form I-693, and USCIS will
continue to use Form I-485 and information obtained during any
interview, if any, to collect information about the alien's age; family
status; assets, resources, and financial status; education and skills;
and receipt of means-tested public benefits.
As with any benefit request, officers may request additional
evidence relating to any of the statutory minimum factors as needed, on
a case-by-case basis, when indicated by evidence in the record,
including responses to questions during an interview or on Form I-485
or other forms.\109\ As indicated elsewhere in this preamble, DHS
believes that the statute, PRWORA, and the governing caselaw would
provide sufficient guidance to officers to consider all relevant case-
specific circumstances in their discretion while DHS formulates
appropriate policy and interpretive tools that will guide DHS officers
in making individualized, fact-specific public charge inadmissibility
determinations, based on a totality of the alien's circumstances, that
are consistent with the statute and congressional intent and comply
with past precedent.\110\
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\109\ See 8 CFR 103.2(b)(8).
\110\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (``[T]he determination of whether an alien falls into
that category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421
(BIA 1962; Att'y Gen. 1964) (``[U]nder the statutory language the
question for visa purposes seems to depend entirely on the consular
officer's subjective opinion.'').
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As discussed earlier in this preamble, DHS's very purpose in
proposing the removal of the 2022 Final Rule is to restore the case-by-
case and inherently discretionary nature of the determination intended
by Congress without constraining officers from considering information
and evidence that is relevant to an alien's likelihood at any time of
becoming a public charge. DHS believes that relevant precedent
decisions that have guided public charge inadmissibility determinations
for decades and as well as recent circuit case law would provide
officers with sufficient guidance to conduct subjective individualized
determinations based on the specific facts and circumstances of each
alien's case. DHS believes that this approach falls within the explicit
discretionary authority Congress delegated to the Secretary regarding
public charge inadmissibility determinations.\111\
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\111\ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,
2263 (2024) (``In a case involving an agency, of course, the
statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes expressly delegate to an agency
the authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '' (cleaned up)).
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Furthermore, with respect to existing provisions informing the
totality of the circumstances analysis, such as the consideration of
current and/or past receipt of enumerated public benefits and the
provision indicating that disability alone is not a sufficient basis to
determine whether the alien is likely at any time to become a public
charge, DHS believes that these provisions are already embedded in
historical practice as dictated by past precedent decisions. DHS
further believes that in following these past precedent decisions,
officers would consider all information and evidence specific to an
applicant in the context of all other information and evidence. For
example, following past precedent, an officer would not conclude that
an alien is inadmissible as likely at any time to become a public
charge simply because that alien received a means-tested public
benefit.\112\ Officers would, instead, look at the circumstances
surrounding such receipt, for example the nature of the benefit and
whether it is the type of benefit that alone or in combination with
other benefits meets the alien's basic needs, the recency, duration,
and amount of receipt, the reason for the receipt, whether the reason
has or is likely to persist.\113\ In the context of any disability,
officers would comply with existing law and consider whether or to what
extent a disability is likely to impact an alien's ability to be self-
sufficient, ensuring that disability is not used as the sole
determinant of an alien's likelihood at any time of becoming a public
charge.\114\
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\112\ See Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974)
(``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.'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421 (BIA 1962) (``the
statute requires more than a showing of a possibility that the alien
will require public support.'').
\113\ See e.g. Matter of A-, 19I&N Dec. 867 (BIA 1974) (BIA
considered that the alien was a mother of a small child and found it
legitimate that she may be temporarily out of the workforce to care
for her children, they also looked at the fact that there were few
jobs in the area where she lived, and that she was now employed
despite receiving public benefits previously for 4 years).
\114\ In the litigation on the 2019 Final Rule, plaintiffs
argued that the 2019 final rule violated the Rehabilitation Act,
which bans discrimination on the basis of disability. 29 U.S.C.
794(a). The Seventh Circuit looked favorably on this contention, and
the Second and Ninth Circuits did not expressly address it. Cook
Cnty., 962 F.3d at 228, New York, 969 F.3d at 64 n.20; City and Cnty
of San Francisco, 981 F.3d at 762. While the 2022 Final Rule
included a provision precluding disability from being the sole
determinative factor for a finding of inadmissibility on the public
charge ground, as discussed further in this preamble, DHS believes
this provision is unnecessary as DHS is already precluded by law
from considering disability a sole determinant. Please see a fuller
discussion in this preamble addressing the proposed elimination of 8
CFR 212.22(a)(4) Disability alone not sufficient.
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b. Proposed Removal of Favorable Consideration of a Sufficient
Affidavit of Support Under Section 213A of the INA, if Required
IIRIRA amended the INA by setting forth requirements for submitting
an enforceable affidavit of support (i.e., the current Affidavit of
Support Under Section 213A of the INA). The Affidavit of Support Under
Section 213A of the INA is a contract between the sponsor and the U.S.
Government that imposes
[[Page 52189]]
on the sponsor a legally enforceable obligation ``to provide support to
maintain the sponsored alien at an annual income that is not less than
125 percent of the Federal poverty line during the period in which the
affidavit is enforceable.'' \115\
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\115\ INA sec. 213A(a)(1)(A), 8 U.S.C. 1183a(a)(1)(A). However,
a sponsor who is on active duty (other than active duty for
training) in the Armed Forces of the United States and filed a
petition on behalf of a spouse or child only needs to demonstrate
support equal to at least 100 percent of the Federal poverty line.
See INA sec. 213A(f)(3), 8 U.S.C. 1183a(f)(3).
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Under section 212(a)(4)(C) and (D) of the INA, 8 U.S.C.
1182(a)(4)(C) and (D), most family-based immigrants and some
employment-based immigrants are required to submit an Affidavit of
Support Under Section 213A of the INA executed by a sponsor to avoid
being found inadmissible based on the public charge ground.\116\ This
requirement applies even if the officer would ordinarily find, after
reviewing the statutory minimum factors, that the intending immigrant
is not likely at any time to become a public charge.\117\ Where such an
Affidavit of Support Under Section 213A of the INA has been executed on
an alien's behalf, the statute permits, but does not require, DHS to
consider it along with the statutory minimum factors and any other
relevant factors, evidence, information, or circumstances in the public
charge inadmissibility determination.\118\
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\116\ See INA sec. 213A, 8 U.S.C. 1183a(a)(1).
\117\ See INA sec. 213A, 8 U.S.C. 1183a(a)(1).
\118\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
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A sufficient Affidavit of Support Under Section 213A of the INA
does not, alone, result in a finding that an alien is not likely at any
time to become a public charge due to the statute's requirement to
consider the statutory minimum factors and the clear statutory
authority to consider any other factors, evidence, information, or
circumstances relevant to the public charge inadmissibility
determination.\119\ Additionally, an Affidavit of Support Under Section
213A is not intended to guarantee that an intending immigrant will not
become dependent on the government for subsistence, but rather, to
ensure that public benefit granting agencies could be reimbursed for
certain aid provided to the sponsored alien.\120\
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\119\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
\120\ See H.R. Rep. No. 104-651, at 1449 (1996) (in explaining
the provision, emphasizing that the Affidavit of Support Under
Section 213A of the INA would permit benefit-providing agencies to
seek reimbursement).
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With the proposed removal of 8 CFR 212.22, officers would no longer
be required by regulation to favorably consider a sufficient Affidavit
of Support Under Section 213A of the INA. Consistent with section
212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), officers would
instead use their discretion to determine whether and how to consider
the Affidavit of Support Under Section 213A of the INA on a case-by-
case basis and in the totality of the circumstances, as intended by
Congress when making the public charge inadmissibility determination in
the officer's opinion. DHS does not believe that Congress intended DHS
to always consider a sufficient Affidavit of Support Under Section 213A
of the INA. Notably, Congress could have mandated the consideration of
the Affidavit of Support Under Section 213A of the INA when it also
mandated consideration of the five statutory minimum factors. However,
Congress decided to leave consideration of the Affidavit of Support
Under Section 213A of the INA to the officer's discretion, DHS does not
believe it necessary to mandate such consideration. DHS reminds the
public that the statute already requires that an alien's application
for adjustment of status be denied due to inadmissibility under the
public charge ground if the alien fails to submit a sufficient
Affidavit of Support Under Section 213A of the INA, if such an
affidavit is required. See, e.g., INA sec. 212(a)(4)(C) and (D) and
213A(a), 8 U.S.C. 1182(a)(4)(C) and (D) and 1183a(a).
If the changes proposed in this rule are finalized, consistent with
the statute and past precedent decisions, DHS would consider not only
the mandatory statutory factors, but also all relevant evidence and
information specific to the alien and relevant to determining that
individual alien's likelihood at any time of becoming a public charge.
This could include, but is not required to include a sufficient
Affidavit of Support Under Section 213A of the INA. Indeed, DHS
believes that Congress intended that officers would decide, on a case-
by-case basis and in the totality of the circumstances, whether and how
to consider an Affidavit of Support Under Section 213A of the INA.
c. Proposed Removal of Consideration of Current and/or Past Receipt of
Public Benefits
Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), does not
require consideration of the receipt of public benefits as part of the
public charge inadmissibility determination. However, as noted
previously, the 2022 Final Rule requires DHS officers to consider the
alien'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.\121\ Under the 2022 Final
Rule, DHS will consider the amount and duration of receipt of these
enumerated benefits, as well as how recently the alien received the
benefits, and for long-term institutionalization at government expense,
evidence submitted by the alien that the alien's institutionalization
violates federal law, including the Americans with Disabilities Act or
the Rehabilitation Act.\122\ This regulation also expressly prohibits
consideration of any benefit that is not listed in 8 CFR 212.21(b)-
(d).\123\
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\121\ 8 CFR 212.22(a)(3) (2022).
\122\ 8 CFR 212.22(a)(3) (2022).
\123\ 8 CFR 212.22(a)(3) (2022).
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DHS believes, as noted previously, that an alien's dependence on
any means-tested public benefit to meet his or her needs--and not just
his or her dependence on public cash assistance for income maintenance
and long-term institutionalization at government expense--is what that
Congress intended to address with the public charge ground of
inadmissibility. Indeed, DHS believes that the current and/or past
receipt of any means-tested public benefit is a key gauge in
determining an alien's likelihood of dependence on the government and
therefore to determining whether an alien is inadmissible under section
212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A). DHS has determined
that current regulations, which restrict consideration of receipt of
public benefits to only public cash assistance for income maintenance
or long-term institutionalization at government expense, prevent
officers from making public charge inadmissibility determinations that
align with the longstanding national policy that aliens within the
Nation's borders are to be self-sufficient and not depend on public
resources to meet their needs. DHS is therefore proposing to remove 8
CFR 212.22(a)(3).
Moreover, consistent with how DHS has proposed to broaden the
universe of public benefits that may be considered as part of the
public charge inadmissibility determination, DHS is also proposing to
remove language that limited consideration of receipt of benefits other
than public cash assistance for income maintenance or long-term
institutionalization at government expense, such as SNAP or other
nutrition programs, Children's Health Insurance Program (CHIP),
Medicaid, or housing benefits. DHS is also proposing to remove the
provision that excluded application for an
[[Page 52190]]
approval or certification to receive in the future public benefits to
clarify and align our consideration of the past receipt of means-tested
public benefits with the prospective, forward-looking evaluation in a
public charge inadmissibility determination.
If the proposed removal of 8 CFR 212.22 is finalized, DHS officers
would, consistent with the statute and past precedent decisions,
determine an alien's likelihood at any time of becoming a public charge
by ``consider[ing] of all the factors bearing on the alien's ability or
potential ability to be self-supporting.'' \124\ Importantly, past
precedent decisions strongly suggests that an alien's self-sufficiency,
i.e., the alien's ability to meet his or her needs without depending on
any public resources, plays a critical role in the outcome of a public
charge inadmissibility determination.\125\ Consequently, DHS would
consider the alien's receipt of any means-tested public benefit as part
of the case-by-case and totality of the circumstances inadmissibility
determination. Additionally, and consistent with past precedent
decisions, DHS would continue to treat receipt of one or more means-
tested public benefit as one of many factors considered in the totality
of the circumstances.\126\ DHS would also consider the fact that an
alien is trying to receive and/or has been approved or certified to
receive in the future means-tested public benefits given this is
relevant to the likelihood that an alien will become dependent on
means-tested public benefits in the future.
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\124\ See Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l Comm'r
1977).
\125\ See, e.g., Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977); Matter of Perez, 15 I&N Dec. 137 (BIA 1974); Matter of
Harutunian, 14 I&N Dec. 583 (Reg'l Comm'r 1974).
\126\ See Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974)
(``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.'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421 (BIA 1962) (``the
statute requires more than a showing of a possibility that the alien
will require public support.'').
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e. Proposed Removal of Provision Addressing Disability as Alone Not
Being Sufficient for a Finding of Inadmissibility
Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B) requires
DHS to consider an alien's health when assessing his or her likelihood
at any time of becoming a public charge,\127\ which may include
consideration of any disabilities identified in the report of medical
examination in the record.\128\ However, there is no presumption under
the statute that having a disability in and of itself means that the
alien is in poor health or is likely at any time to become a public
charge. Therefore, consistent with section 504 of the Rehabilitation
Act, the current regulation at 8 CFR 212.22(a)(4) expressly precludes
an officer from relying solely on an alien's disability, as defined by
section 504 of the Rehabilitation Act, to determine that the alien is
likely at any time to become a public charge in the totality of the
circumstances.
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\127\ See INA sec. 212(a)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
\128\ See 8 CFR 212.22(a)(1)(ii).
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However, insofar as section 504 of the Rehabilitation Act expressly
prohibits discrimination against a qualified individual with a
disability solely on the basis of that disability under any program or
activity receiving Federal financial assistance or under any federally
conducted program or activity, DHS is already precluded from treating
an alien's disability alone as outcome determinative in a public charge
inadmissibility determination. See 29 U.S.C. 794(a).
Therefore, DHS has determined that it is unnecessary to retain
current 8 CFR 212.22(a)(4), which merely restates the prohibition on
relying solely on an alien's disability to make a public charge
inadmissibility determination. Since this is already binding on DHS
officers when making public charge inadmissibility determinations, it
is not necessary to duplicate it in the regulatory text.
If this NPRM is finalized in a final rule, DHS officers would,
consistent with section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), make
public charge inadmissibility determinations on a case-by-case basis in
the totality of the circumstances, considering all relevant case-
specific factors, including, where applicable, an alien's disability.
DHS would, however, not treat an alien's disability as outcome
determinative, in compliance with section 504 of the Rehabilitation
Act.
f. Proposed Removal of Totality of the Circumstances Provisions
Under section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B),
officers are required, at a minimum, to consider the alien's age;
health; family status; assets, resources, and financial status; and
education and skills, and may consider a sufficient Affidavit of
Support Under Section 213A of the INA, where required. Although the
statute does not expressly include a totality of the circumstances
test, this test ``has been developed in several Service, BIA [Board of
Immigration Appeals], and Attorney General decisions and has been
codified in the Service regulations implementing the legalization
provisions of the Immigration Reform and Control Act of 1986.'' \129\
Federal courts have also endorsed this ``totality of the
circumstances'' test.\130\ As a result, since at least 1999, DHS and
the former INS have required officers to make public charge
inadmissibility determinations in the totality of the circumstances and
indicated that no single factor, other than the lack of a sufficient
Affidavit of Support Under Section 213A of the INA, when required,
would control the decision.\131\
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\129\ See 64 FR 28689, 28690 (May 26, 1999) (citing Zambrano v.
INS, 972 F.2d 1122 (9th Cir. 1992), judgment vacated on other
grounds, 509 U.S. 918 (1993)).
\130\ See, e.g., Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992),
judgment vacated on other grounds, 509 U.S. 918 (1993).
\131\ See 64 FR 28689, 28690 (May 26, 1999). See 84 FR 41292,
41295 (Aug. 14, 2019). See 87 FR 55472, 55488 (Sept. 9, 2022).
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Insofar as DHS is already required under past precedent decisions
to make public charge inadmissibility decisions in the totality of the
circumstances,\132\ DHS does not believe this provision is necessary to
be retained. Therefore, if this NPRM is finalized, DHS would continue
to consider the totality of an alien's circumstances when making a
public charge inadmissibility determination consistent with past
precedent decisions.
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\132\ Matter of A-, 19 I&N Dec. 867, 869 (BIA 1988) (``The
traditional test applied by the Service to determine whether an
alien is likely to become a public charge is ``a prediction based on
the totality of the alien's circumstances'' as presented in the
individual case.''); Matter of Perez, 15 I&N Dec. 136, 137 (BIA
1974) (``The determination of whether an alien is likely to become a
public charge under section 212(a)(15) 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.'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962; Att'y
Gen. 1964) (in determining whether a person is likely to become a
public charge, factors to consider include age, health, and physical
condition, physical or mental defects which might affect earning
capacity, vocation, past record of employment, current employment,
offer of employment, number of dependents, existing conditions in
the United States, sufficient funds or assurances of support by
relatives or friends in the United States, bond or undertaking, or
any specific circumstances reasonably tending to show that the
burden of supporting he alien is likely to be case on the public.).
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g. Proposed Removal of Denial Decision Provision
DHS regulations require that USCIS officers ``explain in writing
the specific reasons for a denial.'' See 8 CFR 103.3(a)(1)(i). This
requirement applies to all applications, petitions, and requests
adjudicated by USCIS, including denials based on an adjustment of
status applicant being inadmissible under the public charge
[[Page 52191]]
ground. Id. Because existing DHS regulations and policy already require
USCIS officers to specify in written denials the basis for the
denial,\133\ DHS does not believe that a provision explicitly requiring
denial decisions to include a discussion of the factors the officer
considered in a public charge inadmissibility determination is
necessary.
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\133\ See 8 CFR 103.3(a)(1)(i). See also USCIS Policy Manual,
Volume 7, Part A, Chapter 11, ``Decision Procedures,'' <a href="https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-11">https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-11</a>.
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DHS notes that if this NPRM is finalized, DHS will continue to
issue denial decisions consistent with 8 CFR 103.3(a)(1)(i).
h. Proposed Removal of Receipt of Public Benefits While an Alien Is in
an Immigration Category Exempt From Public Charge Inadmissibility
Provision
Under PRWORA, many aliens, whether present in the United States in
a lawful immigration status or not, are ineligible to receive many
types of public benefits. See 8 U.S.C. 1611, 1621, and 1641. Aliens who
are eligible for Federal, State, Tribal, territorial or local benefits
may include lawful permanent residents, refugees, and asylees who are
not subject to a public charge inadmissibility determination.\134\
Although many aliens who are eligible for Federal, State, Tribal,
territorial, or local benefits receive those benefits while present in
an immigration classification or category that is exempt from the
public charge ground of inadmissibility or after the alien obtained a
waiver of the public charge ground of inadmissibility, such aliens may
later apply for an immigration benefit that subjects them to the public
charge ground of inadmissibility. For example, an alien admitted as a
refugee may have received benefits on that basis but may later apply
for adjustment of status based on marriage to a U.S. citizen and will
be subject to the public charge ground of inadmissibility. And, as
noted previously; while making such aliens eligible for the receipt of
certain public benefits, Congress also made it clear that unless
otherwise specified, these same aliens would be subject to the public
charge ground of inadmissibility when they applied for visas,
admission, or adjustment of status. Importantly, it is Congress, not
DHS, who determines which aliens applying for visas, admission, or
adjustment of status are exempt from the public charge ground of
inadmissibility. Congress did not exempt aliens who are applying for
visas, admission, or adjustment of status from the public charge ground
of inadmissibility if they were, in the past, in a category of aliens
exempt from the public charge ground of inadmissibility. And while
Congress left it to DHS to determine which public benefits should be
considered as part of a public charge inadmissibility
determination,\135\ Congress neither left it to DHS to exempt certain
aliens from the public charge ground of inadmissibility nor authorized
DHS to ignore receipt of public benefits for purposes of the public
charge inadmissibility determination if the alien received those
benefits while in a category that is exempt from the public charge
ground of inadmissibility.
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\134\ See 8 U.S.C. 1641. States and localities may, however,
extend eligibility for State and local public benefits to aliens
under 8 U.S.C. 1621(d) through the enactment of State laws after
August 22, 1996.
\135\ See INA sec. 103, 8 U.S.C. 1103.
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Additionally, as discussed in previous sections, DHS believes that
any prior receipt of means-tested public benefits is a key gauge to
determining the likelihood of future dependence on the government for
subsistence. This is true even if those benefits were received while in
a status that is exempt. And Congress intended that receipt of public
benefits, regardless of when they were received, should be considered.
See INA sec. 212(s), 8 U.S.C. 1182(s). Therefore, it would be
inconsistent with the purpose of the statute and administration and
congressional policy on immigration and welfare to exclude such use
from consideration.
For these reasons, DHS is proposing to eliminate the regulation at
8 CFR 212.22(d), which removes from consideration the receipt of public
benefits by an alien in an exempt category in an adjudication for an
immigration benefit for which the public charge ground of
inadmissibility applies.
This change would not affect those categories of aliens who are
exempt from the public charge ground of inadmissibility and who then
pursue adjustment of status in an exempt category using the
humanitarian path set out by Congress. For example, aliens admitted as
refugees are eligible for means-tested public benefits \136\ and exempt
from the public charge ground of inadmissibility. See INA sec.
207(c)(3), 8 U.S.C. 1157(c)(3). If such aliens then pursue adjustment
of status using the path laid out by Congress under section 209 of the
INA, 8 U.S.C. 1159, they remain exempt from the public charge ground of
inadmissibility,\137\ and their use of means-tested public benefits
while in refugee status will not negatively affect their ability to
adjust status to that of a lawful permanent resident.\138\
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\136\ See 8 U.S.C. 1641(b)(3).
\137\ See INA sec. 209(c), 8 U.S.C. 1159(c).
\138\ As further examples, the same would be true for asylees
applying for adjustment of status under INA sec. 209, 8 U.S.C. 1159,
and T nonimmigrants applying for adjustment of status under INA sec.
245(l), 8 U.S.C. 1255(l).
---------------------------------------------------------------------------
In contrast, this change will affect those categories of aliens who
have been in a category exempt from a public charge inadmissibility
determination and who are seeking adjustment of status under a
nonexempt category. For example, Congress did not provide a pathway to
lawful permanent resident status for aliens granted Temporary Protected
Status (TPS), who are exempt from the public charge ground of
inadmissibility.\139\ Because Congress did not specifically exempt
these aliens from section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4) at
the time of adjustment, if these aliens seek adjustment of status in a
category that is not exempt from the public charge ground of
inadmissibility, it is reasonable and aligned with the statute for DHS
to consider any current and/or past receipt of means-tested public
benefits by these aliens when making a public charge inadmissibility
determination.\140\
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\139\ See 8 CFR 244.3. See also INA sec. 244(c)(2)(ii), 8 U.S.C.
1254a(c)(2)(ii), which authorizes DHS to waive any inadmissibility
ground under INA sec. 212(a), 8 U.S.C. 1182, except for those that
Congress specifically noted could not be waived.
\140\ As further examples, certain A, C, G, or NATO
nonimmigrants are exempt from the public charge ground of
inadmissibility but have no direct pathway to adjustment of status.
If they apply for adjustment of status in a nonexempt category, they
will be subject to the public charge ground of inadmissibility and
it is reasonable to consider their past and/or current receipt of
public benefits as a part of the inadmissibility determination in
the totality of the circumstances.
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i. Proposed Removal of Receipt of Benefits Available to Refugees
Provisions
Congress made discrete populations of aliens who have not been
admitted to the United States under section 207 of the INA, 8 U.S.C.
1157, eligible for resettlement assistance, entitlement programs, and
other benefits available to refugees, including services described
under 8 U.S.C. 1522(d)(2) provided to an ``unaccompanied alien child''
as defined under 6 U.S.C. 279(g)(2).\141\ In
[[Page 52192]]
the 2022 Final Rule, DHS added a provision at 8 CFR 212.22(e) to
clarify that DHS would not consider any public benefits received by
those categories of aliens eligible for all three of the types of
support listed (resettlement assistance, entitlement programs, and
other benefits) typically reserved for refugees in a public charge
inadmissibility determination. See 87 FR 55472 (Sept. 9, 2022).
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\141\ See section 2502(b) of the Extending Government Funding
and Delivering Emergency Assistance Act, Public Law 117-43 (Sept.
30, 2021). See also Additional Ukraine Supplemental Appropriations
Act of 2022, Public Law 117-128 (May 21, 2022).
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DHS proposes that the regulation at 8 CFR 212.22(e) should be
removed. Similar to the regulation at 8 CFR 212.22(d), DHS has
determined that any means-tested public benefit received by an alien
should be considered if the alien is applying for adjustment of status
in a category that is not exempt from the public charge ground of
inadmissibility, regardless of previous status or the basis for his or
her eligibility for public benefits.
As it relates specifically to aliens in categories who have
previously been granted benefits available to refugees, DHS notes that
these aliens are no different than any other alien whom Congress made
eligible for public benefits while simultaneously making them subject
to the public charge ground of inadmissibility. Indeed, DHS believes
that Congress must have recognized that it made public benefits
available to certain aliens who may be or may later become subject to
the public charge ground of inadmissibility, even though receipt of
such benefits would be considered in a public charge inadmissibility
determination. If an alien, subsequent to receiving public benefits to
which they are eligible, wishes to become a lawful permanent resident
in the United States, the receipt of those benefits may be considered,
consistent with IIRIRA and PRWORA, for future public charge
inadmissibility determination purposes.
Moreover, the initial grant of such benefits to certain Afghan
nationals and Ukrainians has since expired and most aliens in those
categories can no longer receive those benefits.\142\ In addition, most
Afghans paroled into the United States under Operation Allies Welcome
have either obtained some other immigration status or have a pending
application for such status.\143\ Since eligibility for public benefits
for these populations is time-limited, a USCIS officer would take this
into account when making a forward-looking public charge
inadmissibility determination.\144\ While benefit eligibility for T
nonimmigrants does not expire, T nonimmigrants seeking adjustment of
status through the pathway designated by Congress under section 245(l)
of the INA, 8 U.S.C. 1255(l), remain exempt from the public charge
ground of inadmissibility. Removal of the regulation at 8 CFR 212.22(e)
will not negatively impact those aliens so long as they seek adjustment
of status as Congress intended.
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\142\ See section 2502(b) of the Extending Government Funding
and Delivering Emergency Assistance Act, Public Law 117-43 (Sept.
30, 2021). See also section 1501 of the Consolidated Appropriations
Act, 2023, Public Law 117-328 (Dec. 29, 2022). See also Additional
Ukraine Supplemental Appropriations Act of 2022, Public Law 117-128
(May 21, 2022). See also Ukraine Security Supplemental
Appropriations Act, 2024, Division C of Public Law 118-50 (Apr. 24,
2024). Some Ukrainian parolees may retain eligibility for benefits
through September 30, 2026, depending on when they were paroled into
the United States. Some Afghan parolees may retain eligibility for
benefits through September 30, 2025. Spouses and children of Afghans
paroled into the United States prior to October 1, 2023, who
themselves were paroled into the United States on or after October
1, 2023, may also still be eligible to receive certain benefits.
\143\ Of the approximately 78,000 Afghans paroled into the
United States under Operation Allies Welcome, about 66,000 have
already become U.S. citizens, lawful permanent residents (LPRs), or
asylees. About 9,000 have pending applications for asylum or
adjustment of status. For Afghans who remain in valid parole status,
the overwhelming majority will see the end of that period of
validity before November 1, 2025. Data provided by USCIS OPQ-PAER,
as of August 29, 2025.
\144\ For example, if an alien is not now and would not in the
future be eligible for benefits under these specific laws extending
eligibility to certain Afghans and Ukrainians, then clearly they
could not use those benefits in the future unless they were to
reestablish eligibility on some other basis.
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4. Removal of Exemptions and Waivers for Public Charge Ground of
Inadmissibility Provisions--8 CFR 212.23
DHS also proposes to remove 8 CFR 212.23. The first two paragraphs
of this section enumerate the categories of aliens to whom the public
charge ground of inadmissibility does not apply under the INA or
various other laws. For example, Congress established in section 209(c)
of the INA, 8 U.S.C. 1159(c), that the public charge ground of
inadmissibility does not apply to refugees or asylees seeking
adjustment of status under that section of law. Similarly, Congress
exempted aliens applying for adjustment of status under the Cuban
Adjustment Act \145\ from the public charge ground of inadmissibility.
The third paragraph of the section outlines the existing waivers of the
public charge ground of inadmissibility.
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\145\ Public Law 89-732 (Nov. 2, 1966), as amended.
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DHS, and former INS, included a similar list of exemptions and
waivers in the 1999 Interim Field Guidance, the 1999 NPRM, and the 2019
Final Rule. As explained in 2022, DHS included this list because doing
so would ``better ensure that the regulated public understands which
applicants for admission and adjustment of status are either exempt
from the public charge ground of inadmissibility or may be eligible for
a waiver of the inadmissibility ground.'' See 87 FR 10570, 10625 (Feb.
24, 2022). While DHS acknowledges that publishing a list of exemptions
and waivers may be useful for both the public and for DHS officers, it
proposes to remove the list from the regulation.
DHS notes that this regulatory text is redundant to several other
publicly available sources. First, DHS already publishes the same lists
of exemptions and waivers in the USCIS Policy Manual.\146\ The Policy
Manual can be easily updated to reflect any changes that Congress may
make in the future to the exemptions and waivers for the public charge
ground of inadmissibility. The possibility that the regulatory text
would fall out of date is why DHS included two catchall provisions in
the existing regulation.\147\ Second, DHS also publishes the list of
exemptions within USCIS' Form I-485 (Part 9, Item Number 56, in the
current version). DHS believes that USCIS Policy Manual content and the
Form I-485 are equally or more accessible to officers and the general
public than regulatory text. This is particularly true for Form I-485,
where the exemptions are fully listed in an item specifically designed
to help aliens understand if the public charge ground of
inadmissibility applies to them as they complete the form. As a result,
DHS believes there is no need to continue to include the same list in
its regulations.
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\146\ USCIS publishes the list of exemptions in Volume 8, Part
G, Chapter 3, Section C. of the Policy Manual, available at https://
www.uscis.gov/policy-manual/volume-8-part-g-chapter-
3#:~:text=informant)%5B38%5D-,C.%20Exemptions,-The%20public%20charge
(last visited Oct. 1, 2025). Information about waivers is published
in Volume 8, Part G, Chapter 8--Waivers of Inadmissibility Based on
Public Charge Ground, available at <a href="https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-8">https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-8</a> (last visited Oct. 1, 2025).
\147\ 8 CFR 212.23(a)(29) and (c)(3).
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5. Removal of Applicability of Public Charge Inadmissibility
Provision--8 CFR 212.20
As a conforming amendment to DHS's proposal to remove 8 CFR 212.21,
through 212.23, DHS proposes to remove 8 CFR 212.20. This section
serves two purposes: it introduces the three sections that follow and
states that the provisions of those three sections apply to an
applicant for admission or adjustment of status to that of a lawful
permanent resident, unless the alien
[[Page 52193]]
was in a category exempt from the public charge ground of
inadmissibility.
In light of the proposed removal of the three other sections,
retaining 8 CFR 212.20 in its current, or even an amended form, would
serve no purpose. Th
[…truncated; see source link]Indexed from Federal Register on November 19, 2025.
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.