Visas: Ineligibility Based on Public Charge Grounds, 54996-55015 [2019-22399]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 84, Number 198 (Friday, October 11, 2019)]
[Rules and Regulations]
[Pages 54996-55015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22399]



[[Page 54995]]

Vol. 84

Friday,

No. 198

October 11, 2019

Part III





 Department of State





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22 CFR Part 40





 Visas: Ineligibility Based on Public Charge Grounds; Interim Final 
Rule

Federal Register / Vol. 84 , No. 198 / Friday, October 11, 2019 / 
Rules and Regulations

[[Page 54996]]


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DEPARTMENT OF STATE

22 CFR Part 40

[Public Notice: 10922]
RIN 1400-AE87


Visas: Ineligibility Based on Public Charge Grounds

AGENCY: State Department.

ACTION: Interim final rule; request for public comment.

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SUMMARY: This final rule amends Department of State (``Department'') 
regulations by prescribing how consular officers will determine whether 
an alien is ineligible for a visa under the Immigration and Nationality 
Act (``INA''), because he or she is likely at any time to become a 
public charge. Aliens who seek a visa, application for admission, or 
adjustment of status must establish that they are not likely at any 
time to become a public charge, unless Congress has expressly exempted 
them from this ground of ineligibility or if the alien obtained a 
waiver. This interim final rule adds certain definitions, including 
definitions of public charge, public benefit, alien's household, and 
receipt of public benefit. This interim final rule reflects the 
Department's interpretation of the pertinent section of the INA as it 
applies to visa applicants. This rulemaking is also intended to align 
the Department's standards with those of the Department of Homeland 
Security, to avoid situations where a consular officer will evaluate an 
alien's circumstances and conclude that the alien is not likely at any 
time to become a public charge, only for the Department of Homeland 
Security to evaluate the same alien when he seeks admission to the 
United States on the visa issued by the Department of State and finds 
the alien inadmissible on public charge grounds under the same facts. 
The Department is also removing the reference to fee collection for 
review and assistance with submitting an affidavit of support at 
consular posts as consular posts do not collect this fee, and an 
obsolete process related to bonds.

DATES: This interim final rule is effective 12 a.m., Eastern Time, 
October 15, 2019. The Department of State will accept comments up to 
November 12, 2019.

ADDRESSES: You may send comments, identified by [DOS-2019-0035 and/or 
RIN: 1400-AE87], by the Federal eRulemaking Portal: https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Megan Herndon, Deputy Director for 
Legal Affairs, Visa Services, Bureau of Consular Affairs, Department of 
State, 600 19th St NW, Washington, DC 20006, (202) 485-7586, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. What changes are in Sec.  40.41?

    This interim final rule codifies changes to 22 CFR 40.41, which is 
the Department of State's (``Department'') interpretation and 
implementation of the public charge ground of visa ineligibility, 
section 212(a)(4) of the Immigration and Nationality Act (``INA'' or 
``Act''), 8 U.S.C. 1182(a)(4). This interim final rule supersedes all 
prior inconsistent guidance on the public charge visa ineligibility. 
Accordingly, this supersedes all Department guidance that previously 
limited the interpretation of ``likely at any time to become a public 
charge'' as likely to become primarily dependent on the government 
(federal, state, or local) for subsistence (previously limited to 
public cash assistance for income maintenance or institutionalization 
for long-term care at government expense).
    The INA renders inadmissible (and therefore ineligible for a visa, 
ineligible for admission to the United States, and ineligible for 
adjustment of status) any alien who, in the opinion of a consular 
officer (or the Departments of Homeland Security (``DHS'') or Justice 
(``DOJ''), as applicable) is likely at any time to become a public 
charge. The statute does not define the term ``public charge.'' The 
statutory public charge provision provides that administering agencies 
must ``at a minimum consider the alien's age; health; family status; 
assets, resources, and financial status; and education and skills.'' 
The agencies may also consider any affidavit of support, under section 
213A of the INA, 8 U.S.C. 1183a, (i.e., Form I-864, Affidavit of 
Support Under Section 213A of the INA) submitted on the alien's behalf. 
INA 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). In general, the public charge 
ineligibility applies to both nonimmigrants and immigrants, although 
some classes of nonimmigrants and immigrants are exempt from the 
ineligibility ground. The DHS regulation at 8 CFR 212.23(a) lists the 
categories of exempt aliens. This interim final rule neither alters the 
classifications of aliens who are exempt from this ineligibility ground 
nor bears on the classifications of visas available to aliens.
    The interim final rule makes several changes to paragraph (a) Basis 
for Determination of Ineligibility. First, the interim final rule adds 
language from the statute, ``at any time,'' to the existing regulatory 
language. Next, the interim final rule adds a reference to INA 
212(a)(4)(D), 8 U.S.C. 1182(a)(4)(D), the requirement that an 
employment-based immigrant whose relative filed the immigrant visa 
petition or has a significant ownership interest in the entity that 
filed the immigrant visa petition, is ineligible unless such relative 
has executed a sufficient affidavit of support for such alien. The 
interim final rule adds language indicating that the consular officer 
will ``consider whether any third party'' listed in the affidavit of 
support will be ``willing and able to financially support the alien 
while the alien is in the United States.'' The Department is not 
changing the temporal reference for the consular officer's 
determination, which currently and under the interim final rule, is any 
time ``after admission.''
    Next, in paragraph (a), the interim final rule incorporates ``more 
likely than not,'' the preponderance of the evidence standard, as the 
Department's interpretation of ``likely'' relating to the standard that 
consular officers will use when evaluating whether an alien is likely 
to become a public charge.
    Additionally in paragraph (a), the interim final rule cites to the 
statutory requirement from section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), that consular officers will at the time of visa application 
take into account statutory factors, including the alien's age; health; 
family status; assets, resources, financial status; and education and 
skills. More specifically, the interim final rule codifies Department 
of State Foreign Affairs Manual (``FAM'') guidance that consular 
officers must consider, at a minimum, those factors as part of the 
totality of the applicant's circumstances. This interim final rule then 
explains the Department's interpretation of each factor.
    Age: Consular officers will consider whether the alien's age makes 
the alien more likely than not to become a public charge in the 
totality of the circumstances, such as by impacting the alien's ability 
to work. Consular officers will consider an alien's age between 18 and 
62 as a positive factor. Age will be considered a negative factor for 
aliens who are under the age of 18 or over 62. However, consular 
officers may consider other factors, such as the support provided to a 
minor child by a parent, legal guardian, or other source, that in the 
totality of the circumstances may offset the alien's age as a negative 
factor. This generally restates current FAM guidance that being under 
18 years old is a negative factor in the totality of the circumstances 
if the visa applicant

[[Page 54997]]

is neither accompanied by a parent or guardian or following to join a 
parent or guardian. The interim final rule also codifies into 
regulation existing FAM guidance that an applicant's age is a negative 
factor in the totality of the circumstances, if the consular officer 
believes it adversely affects the person's ability to obtain or perform 
work or may increase the potential for healthcare related costs that 
would be borne by the public.
    Health: Under the interim final rule, consular officers will 
consider whether the alien's health serves as a positive or negative 
factor in the totality of the circumstances, including whether the 
alien has been diagnosed with a medical condition that is likely to 
require extensive medical treatment or institutionalization or that 
will interfere with the alien's ability to provide and care for himself 
or herself, to attend school, or to work (if authorized). This new 
provision clarifies current FAM guidance. The new provision adds that 
consular officers will consider the report of a medical examination 
performed by the panel physician where such examination is required, 
including any medical conditions noted by the panel physician. A Class 
B medical condition, including Class B forms of communicable diseases 
of public health significance, as defined in 42 CFR part 34, will not, 
standing alone, result in a finding of ineligibility for public charge. 
In assessing the effect of the alien's health on a public charge 
determination, the interim final rule provides that the consular 
officer will consider evidence of health insurance or the ability to 
pay for reasonably foreseeable medical expenses in the United States a 
positive factor in the totality of the circumstances. Under this 
standard, lack of health insurance alone would not make an alien more 
likely than not to become a public charge at any time, but would 
instead be considered in the totality of the alien's circumstances. 
This standard generally reflects existing guidance that certain health 
issues could increase the burden on the applicant to provide 
information demonstrating the ability to pay for medical expenses in 
the United States, potentially including proof of health insurance.
    Family status: The interim final rule reflects that when 
considering an alien's family status, consular officers will consider 
the size of the alien's household, and whether the alien's household 
size makes the alien likely to become a public charge at any time in 
the future. The term ``alien's household'' is defined in paragraph (d). 
Household size is a positive factor if the family size makes the alien 
unlikely to receive public benefits at any time in the future.
    Assets, resources, and financial status: The interim final rule 
specifies several nonexclusive aspects of the alien's assets, 
resources, and financial status consular officers will consider. First, 
with regard to an alien's household gross income, the interim final 
rule specifies that annual gross income for the applicant's household 
size of at least 125 percent of the most recent Federal Poverty 
Guidelines based on the applicant's household size (or 100 percent for 
an applicant on active duty, other than training, in the Armed Forces), 
is a positive factor. Second, if the applicant's annual household gross 
income is less than 125 percent of the most recent Federal Poverty 
Guidelines (or 100 percent for an applicant on active duty, other than 
training, in the Armed Forces) based on the applicant's household size, 
the applicant can submit evidence of ownership of assets, which may 
affect the consular officer's determination. If the total value of the 
household assets, offsetting for liabilities, is at least five times 
the difference between the applicant's household gross income and 125 
percent of the Federal Poverty Guidelines (or 100 percent for an 
applicant on active duty, other than training, in the Armed Forces) for 
the applicant's household size, then that will be considered a positive 
factor. However, if the alien is the spouse or child of a U.S. citizen, 
assets totaling three times the difference between the alien's 
household gross income and 125 percent of the Federal Poverty 
Guidelines (100 percent for those on active duty, other than training, 
in the Armed Forces) for the alien's household size is a positive 
factor. If the alien is a child who will be adopted in the United 
States and who will likely receive citizenship under INA 320, 8 U.S.C. 
1432, then assets equivalent to or greater than the difference between 
the alien's household gross income and 125 percent of the Federal 
Poverty Guidelines (100 percent for those on active duty, other than 
training, in the Armed Forces) for the alien's household size is a 
positive factor. This reflects a change from existing FAM guidance, 
which recognizes income above 125 percent of the Federal Poverty 
Guideline and assets in the amount of five times 125 percent of the 
Federal Poverty Guideline generally as sufficient resources for 
overcoming public charge concerns.
    The interim final rule provides that, when considering an alien's 
assets, resources, and financial status, consular officers may not 
consider any income from illegal activities or sources, such as 
proceeds from illegal gambling or drug sales, or income from public 
benefits, as defined in the interim final rule. This policy is being 
explicitly articulated for the first time. The interim final rule then 
lists several specific nonexclusive factors consular officers will 
consider in evaluating whether the alien's assets, resources, and 
financial status make an alien likely to become a public charge. These 
include the alien's household gross income; the alien's cash assets and 
resources; non-cash assets and resources that can be converted into 
cash within twelve months of the date of the visa application; the 
alien's financial liabilities; whether the alien has applied for, been 
certified to receive or approved to receive, or received, one or more 
public benefits, as defined in paragraph (c) of this section on or 
after October 15, 2019, or whether the alien has disenrolled or 
requested to be disenrolled from such benefits; whether the alien has 
received an immigration benefit fee waiver from DHS on or after the 
interim final rule's effective date; and whether the applicant has 
private health insurance or other financial resources sufficient to pay 
for reasonably foreseeable medical costs. This interpretation 
introduces two factors: past DHS fee waivers and private health 
insurance or other means to cover reasonably foreseeable medical costs, 
both of which have direct bearing on the visa applicant's assets, 
resources, and financial status.
    The interim final rule also changes how consular officers will 
consider past receipt of public benefits. Current FAM guidance directs 
consular officers to consider receipt of public assistance of any type 
by the visa applicant or a family member in the visa applicant's 
household when determining the likelihood a visa applicant would become 
a public charge. The interim final rule explicitly addresses the 
applicant's receipt of public benefits, and incorporates the 
Department's new definition of public benefit. Consular officers will 
only consider listed public benefits received on or after October 15, 
2019, except that consular officers will consider as a negative factor, 
but not a heavily weighted negative factor, receipt of cash assistance 
for income maintenance or programs supporting institutionalization for 
long term care in the United States, received, or certified for receipt 
before October 15, 2019. Additionally, the current FAM guidance does 
not specifically limit a consular officer's consideration to U.S. forms 
of public assistance, but the interim final

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rule only covers United States (federal, state, local, or tribal) 
public assistance.
    Education and skills: When considering an alien's education and 
skills, consular officers will consider both positive and negative 
factors associated with whether the alien has adequate education and 
skills to either obtain or maintain lawful employment with an income 
sufficient to avoid being likely to become a public charge. In 
assessing whether the alien's level of education and skills makes the 
alien likely to become a public charge, the consular officer must 
consider, among other factors, the alien's history of employment, 
educational level (high school diploma, or its equivalent, or a higher 
educational degree), any occupational skills, certifications, or 
licenses, and proficiency in English or proficiency in other languages 
in addition to English. This standard provides additional detail and in 
some respects changes the guidance currently given to consular officers 
in the FAM. Currently, FAM guidance directs consular officers to 
consider the applicant's skills, length of employment, and frequency of 
job changes, and permitted consular offices to consider that work 
experience is evidence of skills. The Department is superseding the 
FAM's treatment of work experience as evidence of skills, by requiring 
only that consular officers consider the alien's history of employment. 
The Department is also introducing the new concept of whether an alien 
is a primary caregiver, considering as a positive factor under the 
totality of the circumstances if the alien is over 18 years of age and 
has ``significant responsibility for actively caring for and managing 
the well-being of a minor, elderly, ill, or disabled person residing in 
the alien's household, such that the alien lacks an employment history 
or current employment, or is not employed full time.''
    Prospective Visa Classification: The interim final rule adds 
consideration of the alien's prospective visa classification.
    Affidavit of Support: The interim final rule states that a 
sufficient Affidavit of Support Under Section 213A of the INA, where it 
is required, is a positive factor in the totality of the circumstances 
if the sponsor is likely to actually provide the alien with the 
statutorily required amount of financial support and other related 
considerations that may indicate the ability or willingness of the 
sponsor to provide support. Department guidance has reflected this 
interpretation since January 2018. Also, in paragraph (a)(7), the 
Department removed reference to fee collection for review and 
assistance with submitting an affidavit of support at consular posts, 
as consular posts do not collect an affidavit of support fee overseas.
    Heavily Weighted Factors: The interim final rule then introduces 
certain factors and factual circumstances that will weigh heavily in 
determining whether an alien is likely to become a public charge, 
including negative and positive factors. The heavily weighted negative 
factors are:
     The alien is not a full-time student and is authorized to 
work, but is unable to satisfy the consular officer that he or she is 
currently employed, has recent employment history, or a reasonable 
prospect of future employment;
     The alien has received, or has been certified or approved 
to receive, one or more public benefits, as defined in 22 CFR 40.41(c), 
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' worth of benefits), beginning no earlier than 12 a.m., 
October 15, 2019, or 36 months prior to the adjudication of the alien's 
visa application, whichever is later;
     The alien has been diagnosed with a medical condition that 
is likely to require extensive treatment or institutionalization or 
that will interfere with the alien's ability to provide for himself or 
herself, attend school, or work;
     The alien has no health insurance for use in the United 
States and has neither the prospect of obtaining private health 
insurance, nor the financial resources to pay for reasonably 
foreseeable medical costs related to such medical condition;
     The alien was previously found inadmissible or deportable 
on public charge grounds by an Immigration Judge or the Board of 
Immigration Appeals.
    The heavily weighted positive factors are:
     The alien's household has income, assets, resources, or 
support of at least 250 percent of the Federal Poverty Guidelines for 
the alien's household size. Consular officers may not consider any 
income from illegal activities, e.g., proceeds from illegal gambling or 
drug sales, or any income derived from any public benefit as defined in 
22 CFR 40.41(c);
     The alien is authorized to work and is currently employed 
with an annual income of at least 250 percent of the Federal Poverty 
Guidelines for the alien's household size. Consular officers may not 
consider any income from illegal activities, e.g., proceeds from 
illegal gambling or drug sales; and
     The alien has private health insurance (other than health 
insurance obtained with premium tax credits under the Affordable Care 
Act) for use in the United States covering the expected period of 
admission.
    Treatment of forms of public assistance received before October 15, 
2019. Under this interim final rule, consular officers will consider as 
a negative factor, but not as a heavily weighted negative factor as 
described in paragraph (a)(8) of this section, forms of assistance 
received prior to October 15, 2019 only if such assistance would have 
been considered in the public charge determination between May 25, 1999 
and January 2, 2018. These are limited to (1) any amount of cash 
assistance for income maintenance, including Supplemental Security 
Income (``SSI''), Temporary Assistance for Needy Families (``TANF''), 
State and local cash assistance programs that provide benefits for 
income maintenance (often called ``General Assistance'' programs), and 
(2) programs (including Medicaid) supporting aliens who are 
institutionalized for long-term care, received before October 15, 2019. 
Short-term institutionalization for rehabilitation (including under 
Medicaid), received before October 15, 2019, will not be considered in 
the public charge determination under the interim final rule. Under 
this interim final rule, the Department will no longer authorize 
consular officers to consider other forms of public assistance, 
domestic or foreign, in the totality of the circumstances public charge 
calculation.
    Public Charge Definition: In paragraph (b), the interim final rule 
introduces a new definition of public charge. Under previous Department 
guidance in effect since May 1999, consular officers considered an 
applicant likely to become a public charge if the applicant is likely, 
at any time after admission, to become primarily dependent on the U.S. 
Government (which includes Federal, state, or local governments) for 
subsistence. Public charge, for purposes of INA 212(a)(4)(A) and (B), 8 
U.S.C. 1182(a)(4)(A) and (B), is defined under the interim final rule 
as an alien who receives one or more public benefits 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' 
worth of benefits).
    Public Benefit Definition: In paragraph (c), the interim final rule 
introduces a new definition of public benefit. Prior guidance limited 
the types of benefits to receipt of public cash assistance for income 
maintenance and

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institutionalization for long-term care at U.S. Government expense. The 
Department adopted this interpretation in the FAM based on the former 
Immigration and Naturalization Service (``INS'') interpretation of the 
public charge inadmissibility, as explained in the INS Notice, Field 
Guidance on Deportability and Inadmissibility on Public Charge Grounds, 
64 FR 28689 (May 26, 1999).
    Under the Department's new definition, ``public benefit'' means:
     Any Federal, State, local, or tribal cash assistance for 
income maintenance (other than tax credits), including:
    [cir] Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
    [cir] Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 
et seq.;
    [cir] 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);
     Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 
2011 et seq.;
     Medicaid under 42 U.S.C. 1396 et seq., except for:
    [cir] Benefits received for an emergency medical condition as 
described in section 1903(v)(2)-(3) of Title XIX of the Social Security 
Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
    [cir] services or benefits funded by Medicaid but provided under 
the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 
et seq.;
    [cir] 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; or
    [cir] 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).
     Public housing and rental assistance programs under 
sections 8-9 of the Housing Act of 1937, 42 U.S.C. 1437f-g.
    Exclusions from the Public Benefit Definition: Public benefit, 
under the interim final rule, does not include any public benefit 
received by an alien who at the time of receipt of the public benefit, 
or at the time of visa application or visa adjudication, is or was:
     Enlisted in the U.S. Armed Forces under the authority of 
10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2) (or is the spouse or 
child of such person),
     serving in active duty or in the Ready Reserve component 
of the U.S. Armed Forces (or is the spouse or child of such person), or
     the spouse or child of an individual enlisted in the U.S. 
Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 
504(b)(2), or in the Ready Reserve component of the U.S. Armed Forces.

    For the purpose of visa adjudication for which the public charge 
ground of ineligibility applies, public benefit, as defined in this 
section, does not include any public benefit received by an alien 
during periods in which the alien was present in the United States in 
an immigration category that is exempt from the public charge ground of 
inadmissibility, as set forth in 8 CFR 212.23(a), or for which the 
alien received a waiver of public charge inadmissibility from DHS. 
Public benefit does not include health services for immunizations and 
for testing and treatment of communicable diseases, including 
communicable diseases of public health significance as defined in 42 
CFR part 34. Public benefits are limited to benefits received from 
governmental and tribal entities in the United States and does not 
include benefits from foreign governments. Public benefit also does not 
include any public benefit received by:
     Children of U.S. citizens whose lawful admission for 
permanent residence and subsequent residence in the legal and physical 
custody of their U.S. citizen parent will result automatically in the 
child's acquisition of citizenship under the Child Citizenship Act of 
2000, Public Law 106-395, 114 Stat. 1631 (INA section 320(a)-(b), 8 
U.S.C. 1431(a)-(b) in accordance with 8 CFR part 320);
     children of U.S. citizens whose lawful admission for 
permanent residence will result automatically in the child's 
acquisition of citizenship upon finalization of adoption, if the child 
satisfies the requirements applicable to adopted children under INA 
101(b)(1), 8 U.S.C. 1101(b)(1) in the United States by the U.S. citizen 
parent(s) and meets other eligibility criteria as required by the Child 
Citizenship Act of 2000, Public Law 106-395, 114 Stat. 16341 (INA 
section 320(a)-(b), 8 U.S.C. 1431(a)-(b), in accordance with 8 CFR part 
320); or
     children of U.S. citizens who are entering the United 
States for the purpose of attending an interview under section 322 of 
the INA, 8 U.S.C. 1433, in accordance with 8 CFR part 322.
    Additionally, the interim final rule makes clear that only certain 
forms of public assistance received on or after 12:00 a.m., October 15, 
2019 fall within the definition of ``public benefit'' for the purpose 
of applying the public charge ground of ineligibility, with the 
exception of cash assistance for income maintenance and programs 
supporting institutionalization for long term care in the United 
States, as detailed in Sec.  40.41(a)(9).
    Alien's Household: The interim final rule sets out new standards to 
determine the members of an ``alien's household'' at paragraph (d). One 
standard applies to aliens who are twenty-one years of age or older and 
also applies to married individuals under twenty-one, whereas a 
separate standard applies to children, who are defined by the INA as 
unmarried persons under twenty-one years of age. If the alien is 
twenty-one years of age or older, or married and of any age, the 
alien's household includes:
     The alien;
     The alien's spouse, if physically residing or intending to 
physically reside with the alien in the United States;
     The alien's children, as defined in 101(b)(1) of the INA, 
8 U.S.C. 1101(b)(1), if physically residing or intending to physically 
reside with the alien;
     The alien's other children, as defined in section 
101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), not physically residing or 
not intending to physically reside with the alien for whom the alien 
provides or is required to provide at least 50 percent of the 
children's financial support, as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or 
agreement specifying the amount of financial support to be provided by 
the alien;
     Any other individuals (including a spouse not physically 
residing or not intending to physically reside with the alien) to whom 
the alien provides, or is required to provide, at least 50 percent of 
the individual's financial support or who are listed as dependents on 
the alien's United States federal income tax return; and
     Any individual who provides to the alien at least 50 
percent of the alien's financial support, or who lists the alien as a 
dependent on his or her federal income tax return.
    If the alien is a child as defined in section 101(b)(1) of the INA, 
8 U.S.C. 1101(b)(1), the alien's household includes the following 
individuals:
     The alien;
     The alien's children as defined in section 101(b)(1) of 
the INA, 8 U.S.C. 1101(b)(1), physically residing or intending to 
physically reside with the alien;
     The alien's other children as defined in section 101(b)(1) 
of the INA, 8 U.S.C. 1101(b)(1), not physically residing or not 
intending to physically reside with the alien, for whom the alien 
provides or is required to provide

[[Page 55000]]

at least 50 percent of the children's financial support, as evidenced 
by a child support order or agreement, a custody order or agreement, or 
any other order or agreement specifying the amount of financial support 
to be provided by the alien;
     The alien's parents, legal guardians, or any other 
individual providing or required to provide at least 50 percent of the 
alien's financial support to the alien as evidenced by a child support 
order or agreement, a custody order or agreement, or any other order or 
agreement specifying the amount of financial support to be provided to 
the alien;
     The parents' or legal guardians' other children as defined 
in section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), physically 
residing or intending to physically reside with the alien;
     The alien's parents' or legal guardians' other children as 
defined in section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), not 
physically residing or not intending to physically reside with the 
alien for whom the parent or legal guardian provides or is required to 
provide at least 50 percent of the other children's financial support, 
as evidenced by a child support order or agreement, a custody order or 
agreement, or any other order or agreement specifying the amount of 
financial support to be provided by the parents or legal guardians; and
     Any other individual(s) to whom the alien's parents or 
legal guardians provide, or are required to provide at least 50 percent 
of such individual's financial support or who is listed as a dependent 
on the parent's or legal guardian's federal income tax return.
    This definition varies in certain aspects from existing FAM 
guidance. First, the Department is adopting different standards for 
applicants who are at least 21 years of age (or married and any age), 
and children. Prior guidance did not make such distinctions and placed 
more focus on the alien's sponsor, if required. However, the text of 
INA 212(a)(4), 8 U.S.C. 1182(a)(4), focuses on whether the visa 
applicant will become a public charge and requires the Department to 
consider the applicant's family status.
    Receipt of Public Benefit: In paragraph (e), the interim final rule 
sets out new standards for what constitutes ``receipt of public 
benefit.'' Receipt of public benefit occurs when a public benefit 
granting agency provides a public benefit, as defined in Sec.  
40.41(c), to the visa applicant as a beneficiary, whether in the form 
of cash, voucher, services, or insurance coverage. Application or 
certification for a public benefit does not constitute receipt of 
public benefit, but it may be considered as a factor suggesting 
likelihood of future receipt. An alien's receipt of, application for, 
or certification for, a public benefit solely on behalf of another 
individual does not constitute receipt of, application for, or 
certification for, such alien, regardless of whether the alien might 
gain personally from the third party's benefit. This new standard will 
help consular officers implement the new ``public charge'' definition 
at paragraph (b), referring to an alien who receives one or more public 
benefits, as defined in paragraph (c) of this section, for more than 12 
months in the aggregate within any 36-month period. It also clarifies 
that consular officers must evaluate whether the alien is likely to 
receive one or more public benefits, the impact of certification for 
future receipt of a public benefits, and that the relevant 
consideration is the alien's future receipt, or expected receipt, of 
public benefits, not an application or certification solely on behalf 
of another person. Because 40.41(c) limits the definition of ``public 
benefit'' to specified forms of public assistance received on or after 
12 a.m., October 15, 2019, an alien will not be considered to have 
received a public benefit before that date.
    The paragraph in Sec.  40.41 titled Prearranged Employment, 
formerly (e), is redesignated (f). The interim final rule does not 
change the text of these sections. Finally, the Department is removing 
Posting of a Bond, formerly (d), and Joint Sponsors, formerly paragraph 
(c) and Use of the Federal Poverty Line Where INA 213A Not Applicable, 
formerly paragraph (f). These paragraphs were removed because language 
was not necessary; they either restated statutory requirements or were 
obsolete.

II. Why is the Department promulgating this rule?

A. Background

    On August 14, 2019, DHS issued a final rule outlining its new 
interpretation of the public charge ground of inadmissibility. See 
Inadmissibility on Public Charge Grounds, 84 FR 41292. Under DHS's 
prior interpretation of ``public charge'' an alien would be 
inadmissible if he or she would be ``primarily dependent on the 
Government for subsistence, as demonstrated by either the receipt of 
public cash assistance for income maintenance or institutionalization 
for long-term care at Government expense.'' Since May 1999, Department 
guidance has used the same standard. As a consequence, an alien's 
reliance on or receipt of non-cash benefits such as SNAP, Medicaid, 
housing vouchers and other housing subsidies, and other programs that 
DHS now considers ``public benefit'' pursuant to its new definition of 
``public charge'' were not previously considered by DHS or the 
Department in determining whether an alien is deemed likely at any time 
to become a public charge.
    DHS revised its interpretation of ``public charge'' to incorporate 
consideration of such benefits in order to better ensure that aliens 
subject to the public charge inadmissibility ground are not dependent 
on public resources to meet their needs, but rather rely on their own 
capabilities, as well as the resources of family members, sponsors, and 
private organizations. The DHS rule redefines the term ``public 
charge'' to mean an alien who receives one or more designated public 
benefits 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' worth of benefits). The DHS final rule defines 
the term `public benefit' with a finite list of public benefits that 
are considered for purposes of the public charge determination, 
including Federal, state, local or tribal cash assistance for income 
maintenance, Supplemental Security Income (``SSI''), 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. See Inadmissibility on 
Public Charge Grounds, 84 FR 41292 (Aug. 14, 2019).
    Because section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), renders 
inadmissible aliens ineligible to receive visas and ineligible to be 
admitted to the United States, the Department is also modifying its 
interpretation in some respects. The Department's new standards are 
intended to avoid situations where a consular officer will evaluate an 
alien's circumstances and conclude that the alien is not likely at any 
time to become a public charge, only for DHS to evaluate the same alien 
when he seeks admission to the United States on the visa issued by the 
Department of State and finds the alien inadmissible on public charge 
grounds under the same facts. Although the Department has chosen to 
follow DHS's approach in many respects, this interim final rule 
reflects the Department's independent interpretations and policies. In 
addition, some aspects of the rule may deviate from the DHS approach 
due to the differing circumstances of visa applicants, who

[[Page 55001]]

reside outside the United States and typically have not spent 
substantial time in the United States, as contrasted with applicants 
for USCIS-administered benefits, which applicants commonly are in the 
United States and have spent substantial time there.

B. Specific Provisions

    In addition to the reasons cited in Section (II)(A), the Department 
adopts the interpretations set forth in the interim final rule based on 
the additional considerations below.
1. Basis for Determination of Ineligibility
    The new reference to the Affidavit of Support provision for certain 
employment-based immigrants reflects the statutory requirement that 
aliens who are the beneficiary of petitions filed pursuant to section 
212(a)(4)(D) of the INA, 8 U.S.C. 1182(a)(4)(D), by a relative or an 
entity in which a relative has a significant ownership interest are 
ineligible without an Affidavit of Support from such relative. 
Significant ownership interest means 5 percent or more under existing 
Department guidance. See also 8 CFR 213a.1. This addition does not 
reflect a policy change. The Department is also clarifying that 
consular officers will consider whether a third party is willing and 
able to financial support the alien in the United States. A third party 
could be the sponsor, or, for example, for a B-1/B-2 applicant, the 
alien's parent or child. This clarifies current policy and is not a 
policy change.
    Also in paragraph (a), the interim final rule incorporates ``more 
likely than not'' as the standard that consular officers will use when 
evaluating whether an alien is ``likely'' to become a public charge. 
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), specifies that the 
public charge ground will apply to ``any alien who, in the opinion of 
the consular officer . . . is likely at any time to become a public 
charge''. The Department believes that the word ``likely'' could be 
ambiguous to consular officers, particularly given the overall 
subjective nature of the standard (``in the opinion of the consular 
officer''), and that both consular officers and visa applicants would 
benefit from having a more clear standard of proof and adjudicatory 
framework.
    The requisite degree of proof in civil matters is generally a 
preponderance of the evidence, which is synonymous with ``more likely 
than not.'' The standard of proof specified by the INA that must be met 
by individuals applying for visas is ``to the satisfaction of the 
consular officer.'' See INA 291, 8 U.S.C. 1361. However, most 
provisions in section 212(a) of the INA, 8 U.S.C. 1182(a), also require 
consular officers either to have a ``reason to believe'' or to evaluate 
whether as a factual matter something has happened in the past (e.g., 
that a visa applicant was convicted of a particular crime or engaged in 
trafficking activity). The public charge provision, like certain other 
provisions, requires a consular officer to assess the likelihood of an 
event happening in the future, which here serves as the sole criterion 
for whether the ineligibility applies. To clarify the standard for 
consular officers, the Department is interpreting ``likely'' as ``more 
likely than not'' in the context of the public charge ineligibility 
ground, which will eliminate ambiguity from the phrase ``likely at any 
time'' by requiring a consular officer to make a finding that it is 
probable, i.e., more likely than not, that an applicant will at any 
time in the future become a public charge for this ground of 
ineligibility to apply. Conversely, this standard makes clear to 
applicants that they can avoid application of the public charge ground 
of ineligibility by demonstrating that it is not more likely than not 
that they will become a public charge at any time in the future.
    The interim final rule also cites in paragraph (a) to the statutory 
requirement from section 212(a)(4)(B) of the INA, 8 U.S.C. 
1182(a)(4)(B), that consular officers will, at the time of visa 
application, take into account statutory factors, including the alien's 
age; health; family status; assets, resources, financial status; and 
education and skills. The rule also explains that consular officers 
must consider those factors, among others, as part of the totality of 
the applicant's circumstances. The interim final rule then explains the 
Department's interpretation of each factor. The Department's standards 
will be implemented through guidance that is consistent with standards 
announced in the DHS final rule, and will mitigate against the 
possibility that consular officers would issue a visa to an individual 
whom DHS would find inadmissible based on the same facts. However, the 
Department's standards are in some ways tailored specifically for 
unique aspects of visa adjudication.
a. Age
    Consular officers will consider whether the alien's age makes the 
alien more likely than not to become a public charge in the totality of 
the circumstances, such as by impacting the alien's ability to obtain 
and perform work. Consular officers will consider an alien's age 
between 18 and 62 as a positive factor, which takes into consideration 
``early retirement age'' for Social Security set forth in 42 U.S.C. 
416(l)(2). The 18-through-62 age range is based on the ages at which 
people are generally able to work full-time and prior to an 
individual's general ability to retire with some social security 
retirement benefits under Federal law.
    Under this provision, being under 18 would be a negative factor. 
The Department notes this approach reflects the common understanding of 
when people are generally able to work full-time and that children 
under the age of 18 generally face difficulties working full-time. 
Federal laws, such as the Fair Labor Standards Act, and some state laws 
place restrictions on the ability of children under the age of 18 to 
work full-time. Additionally, individuals under the age of 18 may be 
more likely to qualify for and receive public benefits. For example, 
the U.S. Census reported that persons under the age of 18 were more 
likely to receive means-tested benefits than other age groups. See 
Jessica L. Semega et al., U.S. Census Bureau, Income and Poverty in the 
United States: 2016, at 13 tbl.3 (Sept. 2017), available at https://www.census.gov/content/dam/Census/library/publications/2017/demo/P60-259.pdf.
    However, consular officers will also review the support provided by 
a parent or other source (assets, resources, and financial status) as 
part of the totality of the circumstances. For example, in the case of 
a 17-year old child in a United States boarding school, consular 
officers would consider age to be a negative factor. However, the 
alien's financial status or support, such as having education and 
living expenses paid for by someone else, would be a positive factor 
that in the totality of the circumstances could lead to the conclusion 
that the applicant is not likely to become a public charge. Likewise, 
in the case of a 17-year-old who has a credible offer of lawful 
employment that would make him- or herself-sufficient, the alien's age 
would be a negative factor, but a credible offer of employment that 
would make the alien self-sufficient would be a positive factor.
    In codifying existing FAM guidance that an applicant's age above 
early retirement age is a negative factor in the totality of the 
circumstances if the consular officer believes it negatively affects 
the person's ability to work or may increase the potential for 
healthcare related costs, the Department does not intend this standard 
to imply that individuals over early retirement age are unable to work. 
These factors

[[Page 55002]]

will be weighed by consular officers in analyzing the totality of the 
applicant's circumstances.
b. Health
    The interim final rule generally restates FAM guidance that directs 
consular officers to consider a visa applicant's health when assessing 
whether the applicant is likely to become a public charge. As explained 
below, the rule introduces additional factors related to assets, 
resources, and financial status, including whether an applicant will 
have health insurance or other means to cover reasonably foreseeable 
medical costs (relating to health issues existing at the time of visa 
adjudication). Lack of health insurance alone would not make an alien 
more likely than not to become a public charge at any time, but would 
instead be considered in the totality of the alien's circumstances.
c. Family Status
    Under the interim final rule, consular officers will consider 
whether the alien has a household to support, or whether the alien is 
being supported by another household and whether the alien's household 
size makes the alien likely to become a public charge. Household size 
is a positive factor if the family size makes the alien unlikely to 
receive public benefits at any time in the future.
    The Department notes that consular officers will frequently view 
family status in connection with, among other things, the alien's 
assets and resources, because the amount of assets and resources 
necessary to support a larger number of people in a household is 
generally greater. Thus, as described in the section below on ``Assets, 
resources, and financial status,'' consular officers will consider 
annual gross income for the applicant's household size of at least 125 
percent of the most recent Federal Poverty Guidelines based on the 
applicant's household size (or 100 percent for an applicant on active 
duty, other than training, in the Armed Forces) a positive factor. The 
Department also recognizes DHS analyses showing that receipt of non-
cash benefits generally increases as family size increases, and 
therefore family size is relevant to assessing whether an alien is 
likely to become a public charge. See Inadmissibility on Public Charge 
Grounds, 83 FR 51114, 51185, Tables 16 and 17 (proposed Oct. 10, 2018). 
Regardless of household size, an alien may present other factors (e.g., 
assets, resources, financial status, education, and skills) that weigh 
for or against a finding that the alien is likely to become a public 
charge. For instance, an alien who is part of a large household may 
have his or her own income or access to additional assets and resources 
that would assist in supporting the household. All of these factors 
would be considered in the totality of the circumstances.
    The Department notes that this approach deviates somewhat from the 
DHS rule, in that the Department's approach focuses on the alien's 
intended household in the United States, rather than any members of his 
foreign household he or she will leave behind. This difference in 
effect aligns the two Departments' approaches.
d. Assets, Resources, and Financial Status
    The Department's interpretation of this factor in the interim final 
rule comports with the totality of the circumstances test. Household 
gross income above 125 percent of the Federal Poverty Guidelines for 
the alien's household size (100 percent for an alien on active duty, 
other than training, in the Armed Forces), or assets five times the 
difference between the applicant's household gross income and the 
Federal Poverty Guidelines for the applicant's household, is a positive 
factor. However, if the alien is the spouse or child of a U.S. citizen, 
assets totaling three times the difference between the alien's 
household gross income and 125 percent of the Federal Poverty 
Guidelines (100 percent for those on active duty, other than training, 
in the Armed Forces) for the alien's household size is a positive 
factor. If the alien is a child who will be adopted in the United 
States and who will likely receive citizenship under INA 320, 8 U.S.C. 
1432, then assets equivalent to or greater than the difference between 
the alien's household gross income and 125 percent the Federal Poverty 
Guidelines (100 percent for those on active duty, other than training, 
in the Armed Forces) for the alien's household size is a positive 
factor. This significant assets provision allows an alien whose income 
is below the applicable income threshold to demonstrate assets to 
support himself or herself, thereby reducing the likelihood of becoming 
a public charge. This reflects a change from existing FAM guidance, 
which recognizes income above 125 percent of the Federal Poverty 
Guidelines and assets in the amount of five times 125 percent of the 
Federal Poverty Guidelines generally as sufficient resources for 
overcoming public charge concerns. This new standard is more consistent 
with DHS Affidavit of Support requirements, outlined in 8 CFR 
213a.2(c)(2)(iii)(B), and the framework DHS will use for public charge 
inadmissibility determinations. See 8 CFR 212.22(b)(4).
    It is still possible that other factors, such as an alien's health 
and inability to pay for reasonably foreseeable health costs, could 
mean that a consular officer could find an alien with such financial 
resources likely to become a public charge. The Department recognizes 
that this factor will be more relevant to immigrant visa applicants who 
will reside permanently in the United States than nonimmigrant 
applicants who intend to travel to the United States for a short 
duration.
    The interim final rule introduces two factors related to assets, 
resources, and financial status: Previous DHS fee waivers and health 
insurance or other means to cover foreseeable medical costs. DHS fee 
waivers are based on an individual's inability to pay. 8 CFR 103.7(c). 
A recently granted fee waiver is relevant to whether an applicant is 
likely to become a public charge, although the factor is less relevant 
if the applicant's financial status has materially improved since the 
waiver was granted. Additionally, a fee waiver granted by DHS is not 
considered as a factor in the public charge inadmissibility 
determination if the alien applied for and was granted a fee waiver as 
part of an application for a benefit request for which a public charge 
inadmissibility under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) 
was not required.
    The interim final rule's addition of private health insurance as a 
factor relevant to assets, resources, and financial status reflects the 
fact that medical costs can be significant and certain public benefits 
are designed to help individuals with limited resources to cover 
medical costs. The fact that an applicant has health insurance or other 
sufficient financial resources makes it less likely that an alien will 
resort to public benefits to cover medical expenses. A consular officer 
will consider an alien's health insurance coverage or other financial 
resources, in light of reasonably foreseeable medical costs (those 
related to medical issues existing at the time of visa adjudication), 
in the totality of the applicant's circumstances. Lack of health 
insurance alone would not make an alien more likely than not to become 
a public charge at any time, but would instead be considered in the 
totality of the alien's circumstances.
    The Department also considered whether to include a visa 
applicant's credit score or credit report among the other factors 
relevant to assets, resources, and financial status. The

[[Page 55003]]

Department is aware that the DHS final rule includes an alien's credit 
history and credit score among the types of evidence USCIS adjudicators 
consider. The Department did not include credit history or credit score 
in this interim final rule, primarily because visa applicants generally 
would not have an active or recent credit history in the United States.
    The interim final rule codifies some changes to how consular 
officers will consider past receipt of public benefits. Current 
guidance directs consular officers to consider receipt of public 
assistance of any type by the visa applicant or a family member in the 
visa applicant's household when determining the likelihood a visa 
applicant would become a public charge. The interim final rule revises 
this by focusing on receipt of public benefits only by the applicant 
and incorporates the Department's new definition of public benefit. 
Both of these elements align with the DHS rule, ensure consistent 
administration of the INA's public charge provisions, and minimize the 
possibility of a consular officer issuing a visa to an alien who is 
later found to be inadmissible by DHS on the same facts.
    The Department's new definition of ``public benefit'' includes only 
certain forms of public assistance received on or after 12 a.m., 
October 15, 2019, although, as explained below in Section 
(II)(B)(1)(i), consular officers may consider any amount of cash 
assistance for income maintenance, including Supplemental Security 
Income (SSI), Temporary Assistance for Needy Families (TANF), State and 
local cash assistance programs that provide benefits for income 
maintenance (often called ``General Assistance'' programs), and 
programs (including Medicaid) supporting aliens who are 
institutionalized for long-term care, received, or certified for 
receipt, before October 15, 2019 as a negative factor (but not a 
heavily weighted negative factor).
e. Education and Skills
    When considering an alien's education and skills, consular officers 
will consider whether the alien has adequate education and skills to 
either obtain or maintain lawful employment with an income sufficient 
to avoid being likely to become a public charge. In assessing whether 
the alien's level of education and skills makes the alien likely to 
become a public charge, the consular officer must consider, among other 
factors, the alien's history of employment, educational level (high 
school diploma or higher educational degree), any occupational skills, 
certifications or licenses, and language proficiency. Current guidance 
directs consular officers to consider the applicant's skills, length of 
employment, and frequency of job changes, and permitted consular 
offices to consider work experience as evidence of skills. Although the 
interim final rule does not treat work experience as evidence of 
skills, it does require that consular officers consider the alien's 
history of employment. Section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), directs officers to consider the alien's education and 
skills. The interim final rule implements Congress's directive on this 
mandatory statutory factor. This formulation is also more similar to 
the new DHS guidance, and is aimed to mitigate against situations where 
a consular officer will issue a visa to an alien who is later found 
inadmissible by DHS on the same facts.
    The interim final rule introduces a requirement that consular 
officers consider the following additional information relevant to 
education and skills: Educational level (high school diploma, or its 
equivalent, or higher educational degree), any occupational skills, 
certifications or licenses, and language proficiency. Various studies 
and data show that a higher level of education and skills is a positive 
indicator of self-sufficiency. The U.S. Bureau of Labor Statistics 
(BLS) observed in 2016 a relationship between educational level and the 
unemployment rate. See U.S. Bureau of Labor Statistics, Employment 
Projections, Unemployment Rates and Earnings by Educational Attainment, 
2016, available at https://www.bls.gov/emp/chart-unemployment-earnings-education.htm (last updated Mar. 27, 2018). According to that report, 
the unemployment rate for an individual with a doctoral degree was only 
1.6 percent, compared to 7.4 percent for an individual with less than a 
high school diploma. According to the U.S. Census Bureau, lower 
educational attainment was associated with higher public benefit 
program participation rates for people over the age of 18. See Shelley 
K. Irving & Tracy A. Loveless, U.S. Census Bureau, Dynamics of Economic 
Well-Being: Participation in Government Programs, 2009-2012: Who Gets 
Assistance? (May 2015), available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf. That report 
reflected that in 2012, 37.3 percent of people who did not graduate 
from high school received means-tested benefits, compared with 21.6 
percent of high school graduates and 9.6 percent of individuals with 
one or more years of college.
    Additionally, data suggest that people who have lower education 
levels are not only more likely to receive public benefits but also 
more likely to receive them for longer periods. For example, 49.4 
percent of people with less than four years of high school who received 
public benefits from a major means-tested program between January 2009 
and December 2012 continued to participate in the benefit program for 
37 to 48 months. In contrast, only 39.3 percent of high school 
graduates and 29.0 percent of those with one or more years of college 
who received public benefits during the same time period continued to 
participate in the public benefit program for 37 to 48 months. See id. 
The data suggests that a lack of education increases the likelihood of 
poverty and unemployment, which may in turn increase the likelihood of 
applying for, and participating in, public assistance programs.
    The Department's treatment of education and skills in the interim 
final rule is supported by DHS's analysis of Survey of Income and 
Program Participation data, which shows a relationship between 
education level and self-sufficiency. See Inadmissibility on Public 
Charge Grounds, 83 FR 51114, 51190-51196 (proposed Oct. 10, 2018).
    The interim final rule recognizes the implications of whether the 
alien is a primary caregiver. This factor is intended to take into 
consideration difficult-to-monetize contributions by aliens who may 
lack current employment or an employment history due to their full-
time, unpaid care of household members. For example, a visa applicant 
may care for a household member who will not travel with the visa 
applicant to the United States. The visa applicant's employment history 
would not accurately reflect the alien's unpaid work as a primary 
caregiver. In this respect, serving as a primary caregiver could be a 
positive factor in the totality of the circumstances.
f. Prospective Visa Classification
    The interim final rule adds that consular officers will consider 
the visa classification sought. This factor relates to the alien's 
ability to financially support himself or herself and the members of 
his or her household while in the United States. For example, a 
consular officer's public charge analysis of an applicant for a B-1 
nonimmigrant visa, who plans to attend a week-long business meeting, 
would differ from a longer term nonimmigrant applicant, such as an H-1B 
nonimmigrant

[[Page 55004]]

specialty worker, who would reside and work in the United States for 
years at a time, and would differ even more from an immigrant visa 
applicant who intends to reside permanently in the United States and 
may not have pre-arranged employment. In this respect, the visa 
classification, including the purpose and duration of travel, are 
relevant to assessing the likelihood that an alien would avail himself 
or herself of public benefits (noting that in many cases visa 
applicants may not be eligible for public benefits in the United 
States), and therefore consular officers must evaluate these factors on 
a case-by-case basis.
    That is not to say that a B-1 nonimmigrant applicant is subject to 
a lower standard than an H-1B nonimmigrant or immigrant under the 
statute or this interim final rule, but the immigration status sought 
by the applicant will be highly relevant context for the consular 
officer's totality of the circumstances determination. An applicant 
with a serious chronic health condition seeking medical treatment in 
the United States on a tourist visa would be expected to establish that 
he or she has the means and intent to pay for all reasonably 
foreseeable treatment. By demonstrating the ability to cover the 
medical expenses anticipated on a short-term trip to the United States, 
the applicant can demonstrate that even though health presents as a 
negative factor, the applicant has financial resources that make it 
unlikely the applicant would avail himself or herself of one or more 
public benefits. However, an immigrant visa applicant with the same 
serious chronic health condition and need for ongoing treatment would 
have to satisfy a consular officer that he or she has the means to pay 
for long-term care.
g. Affidavit of Support
    The interim final rule provides that a properly filed, non-
fraudulent, and sufficient Affidavit of Support, in those cases where 
it is required, is a positive factor in the totality of the 
circumstances. In the totality of the circumstances review, the 
consular officer would take into consideration the likelihood that the 
sponsor actually would provide the required financial support, based on 
the any available relevant information about the sponsor. Since January 
2018, FAM guidance has reflected that a properly filed, non-fraudulent 
Affidavit of Support, in those cases where it is required, is a 
positive factor in the totality of the circumstances analysis, and that 
an alien who is required to submit an Affidavit of Support but who 
fails to submit a sufficient Affidavit of Support is ineligible as a 
public charge. To be sufficient, an Affidavit of Support must meet the 
requirements of 8 CFR part 213a. Also, in paragraph (b), the Department 
removed reference to fee collection for review and assistance with 
submitting an affidavit of support at consular posts because consular 
posts do not collect an affidavit of support fee overseas.
h. Heavily Weighted Factors
    The interim final rule provides that certain factors or factual 
circumstances will weigh heavily in determining whether an alien is 
likely to become a public charge. The mere presence of one of these 
enumerated circumstances would not, alone, be determinative. A heavily 
weighted factor could be outweighed by countervailing evidence in the 
totality of the circumstances. While heavily weighted factors are 
circumstances the Department considers particularly indicative of the 
likelihood an alien will become a public charge, they are evaluated in 
conjunction with other relevant positive and negative factors in the 
totality of the alien's circumstances.
i. Heavily Weighted Negative Factors
    The interim final rule provides that certain factors are weighted 
as heavily negative because these factors are particularly indicative 
of a likelihood that the alien would become a public charge, 
particularly with regard to the alien's ability to be self-sufficient. 
Heavily weighted negative factors include:
a. Lack of Recent Employment or Prospect of Future Employment
    As long as an alien is not a full-time student and is authorized to 
work in the alien's place of residence abroad and, if relevant, in the 
United States, the interim final rule sets the absence of current 
employment, employment history, or reasonable prospect of future 
employment as a heavily weighted negative factor. Self-sufficiency 
generally involves people being capable and willing to work and being 
able to secure and maintain gainful employment. Various studies and 
data show that a person's education, skills, and employment history, 
are positive factors for self-sufficiency. See Section (II)(B)(1)(e), 
above. In addition, the lack of positive employment history and 
demonstrable marketable skills are indicative of an increased 
likelihood that an individual would avail himself or herself of public 
benefits. This concept is supported by two Census Bureau studies 
covering 2004 to 2007 and 2009 to 2012, which show that, in each of the 
covered years, individuals with full-time work were less likely to 
receive means-tested benefits during the year (ranging from 4.5 percent 
to 5.1 percent of full-time workers who received benefits) than those 
who were unemployed (ranging from 24.8 percent to 31.2 percent of 
unemployed individuals who received benefits). See Jeongsoo Kim, 
Shelley K. Irving, & Tracy A. Loveless, U.S. Census Bureau, Dynamics of 
Economic Well-Being: Participation in Government Programs, 2004 to 2007 
and 2009--Who Gets Assistance? (July 2012), available at https://www2.census.gov/library/publications/2012/demo/p70-130.pdf; Shelley K. 
Irving & Tracy A. Loveless, U.S. Census Bureau, Dynamics of Economic 
Well-Being: Participation in Government Programs, 2009-2012: Who Gets 
Assistance? (May 2015), available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf. The Department 
recognizes that not everyone authorized to work needs to work and thus 
the Department does not require a working age alien to have an 
employment history as part of the public charge determination. Some 
aliens may have sufficient assets and resources, including a household 
member's income and assets, which may overcome any negative factor 
related to lack of employment. For example, some student visa 
applicants may have scholarships that cover the cost of education as 
well as living expenses during the time of their studies. Further, 
students generally acquire skills as part of their studies so that 
post-education they will be able to obtain employment. Consular 
officers will review those considerations in the totality of the 
circumstances.
b. Current or Certain Past Receipt of Public Benefits
    Under Sec.  40.41(a)(8)(i)(B), receipt of one or more public 
benefits, as defined in Sec.  40.41(c), is a heavily weighted negative 
factor in a consular officer's public charge determination if an alien 
has received or has been certified or approved to receive one or more 
public benefits for more than 12 months in the aggregate within any 36-
month period, beginning no earlier than 36 months prior to the alien's 
visa application or after October 15, 2019, whichever is later. Under 
this interim final rule, receipt of two benefits in one month counts as 
two months' worth of benefits. Current receipt of one or more public 
benefits, alone, will not always justify a finding of ineligibility on 
public charge grounds. However, an alien's current

[[Page 55005]]

receipt of one or more public benefits suggests that the alien may 
continue to receive one or more public benefits in the future and would 
be more likely to be a public charge as defined under Sec.  40.41(b).
    With regard to current receipt of public benefits, according to 
U.S. Census Bureau data, the largest share of participants (43.0 
percent) who benefited from one or more means-tested assistance 
programs between January 2009 and December 2012 continued to receive 
program benefits for between 37 and 48 months. See U.S. Census Bureau, 
News Release: 21.3 Percent of U.S. Population Participates in 
Government Assistance Programs Each Month (May 28, 2015), available at 
https://www.census.gov/newsroom/press-releases/2015/cb15-97.html. A 
separate U.S. Census Bureau study showed that an individual who 
received benefits at any point during a two-year timespan was likely to 
receive benefits every month during the period studied, suggesting 
relatively long periods of receipt of benefits. Between January 2004 
and December 2005, a greater share of the population received one or 
more means-tested benefits for the entire 24-month study period (10.2 
percent) than for either one to 11 months (8.5 percent) or 12 to 23 
months (6.5 percent). See Jeongsoo Kim, Shelley K. Irving, & Tracy A. 
Loveless, U.S. Census Bureau, Dynamics of Economic Well-Being: 
Participation in Government Programs, 2004 to 2007 and 2009--Who Gets 
Assistance? (July 2012), available at https://www2.census.gov/library/publications/2012/demo/p70-130.pdf. The Department views current 
receipt of public benefits as a strong indicator that an alien will 
continue to receive public benefits after admission to the United 
States and is, therefore, likely to become a public charge. However, an 
alien may be able to establish circumstances indicating that the 
receipt of public benefits will stop in the near future, prior to 
admission to the United States on the visa being sought.
    An alien's past receipt of public benefits at any time on or after 
October 15, 2019, for more than 12 months in the aggregate within the 
36 months immediately preceding his or her application is a heavily 
weighted negative factor in determining whether the alien is likely to 
become a public charge. However, an alien's past receipt of T any 
designated public benefits is considered a negative factor, even if not 
a heavily weighted one. For example, the receipt of a public benefit 
five years ago (assuming the evaluation was on or after October 1, 
2024) would be a negative factor; however, a public benefit received 
within the previous three years prior to the visa application and for 
more than twelve months (assuming the twelve months occurred after 
October 15, 2019 and was for more than 12 of 36 months in the 
aggregate) is considered a heavily weighted negative factor. The weight 
given to the receipt of public benefits will depend not only on how 
long ago and for how long the alien received the benefits, but also on 
whether the alien received multiple benefits.
    The interim final rule makes clear that consular officers will only 
consider past receipt of public benefits on or after October 15, 2019, 
as a heavily weighted negative factor. The definition of ``public 
benefit'' in Sec.  40.41(c) only applies to benefits received on or 
after October 15, 2019.
c. Lack of Financial Means to Pay for Medical Costs
    An alien presents a high risk of becoming a public charge if he or 
she does not have private health insurance and also lacks the prospect 
of obtaining private health insurance or the financial resources to pay 
for reasonably foreseeable medical costs related to an existing medical 
condition. The risk increases if the alien is likely to require 
extensive medical treatment or institutionalization or the condition 
will interfere with the alien's ability to provide care for him- or 
herself, to attend school, or to work. If the applicant has no medical 
conditions existing at the time of visa adjudication, he or she would 
have no reasonably foreseeable medical costs.
    Certain chronic medical conditions can be costly to treat and an 
alien is a high risk of incurring significant medical costs if he or 
she has such a condition. See U.S. Dep't of Health & Human Servs., 
Research In Action, Issue #19: The High Concentration of U.S. Health 
Care Expenditures (June 2006), available at https://archive.ahrq.gov/research/findings/factsheets/costs/expriach/expendria.pdf; see also 
https://www.cdc.gov/chronicdisease/about/costs/index.htm (costs 
associated with certain chronic diseases).
    Certain conditions may adversely affect an applicant's ability and 
capacity to obtain and retain gainful employment. Other conditions 
could result in long-term institutionalization in a health care 
facility. Id. According to the Multiple Chronic Conditions Chartbook 
2010 Medical Expenditure Panel Survey Data, 86 percent of the nation's 
$2.7 trillion annual health care expenditures were for individuals with 
chronic or mental health conditions. Id. Consular officers will learn 
of medical conditions through panel physician medical examinations or 
the alien's disclosure of a medical condition. If a consular officer 
has reason to believe a visa applicant's medical condition will require 
extensive medical treatment or institutionalization, or will interfere 
with the alien's ability to provide for himself or herself, attend 
school, or work, the consular officer will require the visa applicant 
to explain how he or she will cover medical costs in the United States. 
It is a heavily weighted negative factor if such an alien does not have 
private health insurance to cover such expenses in the United States 
and has neither the prospect of obtaining private health insurance to 
cover medical expenses in the United States, nor the financial 
resources to pay for reasonably foreseeable medical costs related to 
such medical condition.
d. Prior Public Charge Inadmissibility or Deportability Finding
    A prior finding by an Immigration Judge or the Board of Immigration 
Appeals that the visa applicant was inadmissible under INA 212(a)(4), 8 
U.S.C. 1182(a)(4), or deportable under INA 237(a)(5), 8 U.S.C. 
1227(a)(5) (for having become a public charge within five years after 
date of entry to the United States, not from causes affirmatively shown 
to have arisen since entry) is a heavily weighted negative factor; 
however, a past public charge finding is not necessarily dispositive of 
whether the individual subsequently will be denied a visa on public 
charge grounds. The Department recognizes that individual circumstances 
can change with the passage of time. This approach aligns with the DHS 
final rule.
ii. Heavily Weighted Positive Factors
    The interim final rule provides that certain factors will be 
weighted as heavily positive, because they strongly indicate the alien 
would not become a public charge. Heavily weighted positive factors 
include:
a. Alien's Household Has Income, Assets, Resources, or Support of at 
Least 250 Percent of the Federal Poverty Guidelines
    If the alien's household has financial assets, resources, support 
or annual income of at least 250 percent of the Federal Poverty 
Guidelines for the alien's household size, then that will be considered 
a heavily weighted positive factor in the totality of the 
circumstances. DHS's analysis of Survey of Income and Program 
Participation data on income and participation in public benefit 
programs shows that participation in programs that

[[Page 55006]]

administer ``public benefits,'' as defined for the purpose of this 
rule, declines significantly for individuals with an income at least 
250 percent of the Federal Poverty Guidelines. See Inadmissibility on 
Public Charge Grounds, 83 FR 51206, (October 10, 2018) (noting, e.g., 
that use of SNAP benefits declines from a 21.2 percent participation 
rate for those with income between 125-250 percent of the Federal 
Poverty Guidelines to 15 percent for those with incomes between 250-400 
percent of the Federal Poverty Guidelines). This approach aligns with 
the DHS final rule. Accordingly, the Department will treat income, 
assets, resources, or support that is at least 250 percent of the 
Federal Poverty Guidelines as a heavily weighted positive factor.
b. Alien With Work Authorization Has Income of at Least 250 Percent of 
the Federal Poverty Guidelines
    The Department will consider an alien with work authorization and 
income of at least 250 percent of the Federal Poverty Guidelines as a 
heavily weighted positive factor. In addition to the reasons provided 
in the prior paragraph, this level of income suggests that the alien 
has obtained a level of self-sufficiency and that he or she would be 
less likely to become a public charge, barring unforeseen changes in 
circumstances. This aligns with the DHS final rule.
c. Alien Has Private Health Insurance
    Additionally, consular officers will consider as a heavily weighted 
positive factor that an alien is covered by private health insurance 
(other than health insurance obtained with premium tax credits under 
the Affordable Care Act) that can be used in the United States during 
the entire period of the alien's anticipated stay in the United States. 
This approach is supported by DHS's analysis of Survey of Income and 
Program Participation data, which indicates that the fact that an alien 
has health insurance is indicative of the alien's ability to be self-
sufficient. See Inadmissibility on Public Charge Grounds, 84 FR 41292, 
41449 (Aug. 14, 2019). In excluding health insurance obtained with 
premium tax credits under the Affordable Care Act from the category of 
heavily weighted positive factors, though not from consideration as a 
positive factor, the Department observes that DHS adopted this approach 
in its final rule.
i. Treatment of Benefits Received Before October 15, 2019
    Under the interim final rule, consular officers will consider, as a 
negative factor, but not as a heavily weighted negative factor, any 
amount of cash assistance for income maintenance, including 
Supplemental Security Income (SSI), Temporary Assistance for Needy 
Families (TANF), State and local cash assistance programs that provide 
benefits for income maintenance (often called ``General Assistance'' 
programs), and programs (including Medicaid) supporting aliens who are 
institutionalized for long-term care, received, or certified for 
receipt, before October 15, 2019. This is reflective of the fact that 
under previous Department guidance in effect since May 1999, consular 
officers considered an applicant likely to become a public charge if 
the applicant was likely, at any time after admission, to become 
primarily dependent on the U.S. Government (which includes Federal, 
state, or local governments) for subsistence. However, the mere receipt 
of these benefits does not automatically make an alien ineligible for 
the visa. Consular officers will make each determination on a case-by-
case basis in the context of the totality of the circumstances. The 
Department will not consider as a negative factor any other public 
assistance received, or certified for receipt, before October 15, 2019.
2. Public Charge Definition
    The Department's interim final rule interprets public charge as the 
receipt of one or more public benefits, as defined in paragraph (b) of 
Sec.  40.41, for more than 12 months in the aggregate within any 36-
month period. Receipt of two benefits in one month counts as receiving 
benefits for two months. Prior Department guidance limited the 
interpretation of ``likely to become a public charge'' to ``likely to 
become primarily dependent on the U.S. Government (which includes 
Federal, state, or local governments) for subsistence'' (previously 
meaning receipt of public cash assistance for income maintenance or 
institutionalization for long-term care at U.S. Government expense). 
The Department believes this new, more rigorous implementation of the 
public charge visa ineligibility is consistent with section 212(a)(4) 
of the INA, 8 U.S.C. 1182(a)(4), and congressional objectives stated in 
the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA), 
where Congress noted that aliens subject to the public charge visa 
ineligibility should ``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.'' See 8 
U.S.C. 1601(2)(A).
    There is a scarcity of legislative guidance and case law 
interpreting public charge. Legislative history, however, suggests a 
link between public charge and the receipt of public benefits. 
According to a 1950 Senate Judiciary Committee report, which led up to 
passage of the INA in 1952, a Senate subcommittee highlighted concerns 
raised by an immigration inspector about aliens receiving old age 
assistance. The Senate subcommittee recommended against establishing a 
strict statutory definition of public charge. Because the circumstances 
that indicate any given individual's likelihood of becoming a public 
charge vary, the subcommittee instead recommended that the 
determination of whether an alien is likely to become a public charge 
should rest within the discretion of consular officers and the 
Commissioner. See 1950 Omnibus Report of the Senate Judiciary 
Committee, S. Rep. No. 81-1515, at 349 (1950).
    In setting the standard as receipt of public benefits 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' 
worth of benefits) the Department recognizes that States have developed 
widely varying approaches to the imposition of time limits for the 
receipt of public benefits. On the Federal level, PRWORA established a 
60-month time limit on the receipt of federally funded Temporary 
Assistance for Needy Families (TANF) program benefits. See 42 U.S.C. 
608(a)(7) and 45 CFR 264.1. Some states have adopted shorter lifetime 
limits on benefit receipt; in 2017, fourteen States had lifetime limits 
of less than 60 months and nine states had intermittent time limits. 
See Heffernan, Christine, Benjamin Goehring, Ian Hecker, Linda 
Giannarelli, and Sarah Minton (2018). Welfare Rules Databook: State 
TANF Policies as of July 2017, OPRE Report 2018- 109, Washington, DC: 
Office of Planning, Research, and Evaluation, Administration for 
Children and Families, U.S. Department of Health and Human Services 
https://wrd.urban.org/wrd/data/databooks/2017%20Welfare%20Rules%20Databook%20(final%2010%2031%2018).pdf (last 
visited Sept. 13, 2019).
    The Department's position is that an individual who receives public 
benefits for more than 12 months, in the aggregate, during a 36-month 
period is

[[Page 55007]]

neither self-sufficient nor on the road to achieving self-sufficiency, 
and may appropriately be considered a public charge. The Department's 
implementation deems receipt of public benefits for such a duration as 
exceeding what could reasonably be defined as a nominal level of 
support that merely supplements an alien's independent ability to meet 
his or her basic living needs. This new definition aligns with the new 
DHS rule.
3. Public Benefit
    In general: As described above, the Department's prior guidance 
interpreted the public charge ground of ineligibility to include only 
public cash assistance for income maintenance and institutionalization 
for long-term care at U.S. Government expense. Guidance on public cash 
assistance for income maintenance was further clarified to include 
supplemental security income (SSI); TANF cash assistance, but not 
supplemental cash benefits or any non-cash benefits provided under 
TANF; and state and local cash assistance programs that provide for 
income maintenance (often referenced as ``state general assistance''). 
This previous guidance explicitly excluded other benefits including 
non-cash benefits such as the SNAP, Medicaid, housing vouchers and 
other housing subsidies, and other programs. The Department adopted 
this interpretation based on an INS interpretation of the public charge 
inadmissibility, as explained in the INS Notice, Field Guidance on 
Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 
(May 26, 1999).
    The new rule broadens the Department's interpretation of ``public 
benefit'' for purposes of applying the public charge ground of 
ineligibility to include public cash assistance for income maintenance, 
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.
    The Department believes this interpretation of public benefit is 
consistent with INA section 212(a)(4), 8 U.S.C. 1182(a)(4). The sparse 
statutory language and legislative history allows for a wide range of 
interpretations, including both the Department's previous more limited 
definition of public benefit focused on cash assistance and this 
broader definition.
    The definition of ``public benefit'' in this interim final rule is 
also consistent with PRWORA. That statute includes broad definitions of 
``federal public benefit'' and ``state or local public benefit'' that 
extend significantly beyond the Department's prior guidance in the 
public charge context. While PRWORA allows some aliens to receive 
certain benefits covered under its expansive definitions, Congress did 
not exclude the lawful receipt of such benefits from consideration for 
purposes of INA section 212(a)(4), 8 U.S.C. 1182(a)(4). Further, the 
Department's definition of ``public benefit'' is consistent with the 
Congressional goals articulated in PRWORA, specifically that aliens 
subject to the public charge visa ineligibility should ``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.'' See 8 U.S.C. 1601(2)(A). The Department chose 
to include the specific non-cash benefits covered under the definition 
of ``public benefit'' because these benefits assist recipients in 
meeting basic living requirements, namely food, housing, and medical 
care. The receipt of any of the listed benefits indicates that the 
recipient, rather than being self-sufficient, needs the government's 
assistance to meet basic living requirements.
    Since 1999, the Department, when applying the public charge 
ineligibility ground, has considered only whether an alien is likely to 
become primarily dependent for subsistence on the U.S. Government, 
which includes Federal, state, or local governments, by resorting to 
income maintenance and institutionalization for long-term care at 
government expense. However, current FAM guidance says:

    There are many forms of public assistance that an applicant may 
have accepted in the past, or that you may reasonably believe an 
applicant might receive after admission to the United States, that 
are of a non-cash and/or supplemental nature and should not be 
considered to be benefits when examining the applicant under INA 
212(a)(4), and may only be considered as part of the totality of the 
applicant's circumstances in determining whether an applicant is 
likely to become a public charge.

    Under the interim final rule, the Department will only treat 
receipt of the specified forms of public assistance on or after 12:00 
a.m., October 15, 2019 as a ``public benefit'' for the purposes of 
applying the public charge ground of ineligibility, and will only 
consider cash assistance for income maintenance and programs supporting 
institutionalization for long term care in the United States that are 
not included in the new definition of ``public benefit'' that were 
received or certified for receipt prior to October 15, 2019. The 
Department believes that consideration of these forms of assistance 
represent an appropriately comprehensive and also readily administrable 
application of the public charge ground of ineligibility. The interim 
final rule will supersede the current policy, which allows consular 
officers to consider past receipt of any forms of public assistance, at 
any time. The Department observes that DHS proposed a similar approach 
in its NPRM, but, following public comments, opted for the approach 
reflected in this interim final rule when it finalized its rule. For 
consistency with the DHS standard, as well as for increased 
transparency and to provide a clear and helpful limitation on the scope 
of review for consular officers and visa applicants, the Department is 
adopting the DHS final rule's approach.
a. Exception for Certain Individuals Enlisted or Serving in the U.S. 
Armed Forces, Spouse, and Children
    Under the interim final rule, consular officers will not consider 
receipt of public benefits by those enlisted in the U.S. Armed Forces, 
or serving in active duty or in the Ready Reserve component of the U.S. 
Armed Forces, and their families, when assessing whether such 
individuals are likely to become a public charge. The United States 
Government is profoundly grateful for the unparalleled sacrifices of 
the members of our armed services and their families. The Department 
recognizes that some service members, during their service, or their 
family members, qualify for and receive public benefits in addition to 
the salary and benefits provided by the U.S. government. Their 
sacrifices, including risking life and limb, are so vital to the 
public's safety and security that the Department finds this exception 
warranted. The Department understands that many of the individuals who 
enlist in the military are early in their careers, and therefore, 
consistent with statutory pay authorities, earn relatively low salaries 
that are supplemented by certain other allowances and tax advantages 
provided by the U.S. government. See Inadmissibility on Public Charge 
Grounds, 84 FR 41371; see also Final Rule, Inadmissibility on Public 
Charge Grounds; Correction, 84 FR 52357 (Oct. 10, 2019). This approach 
is consistent with the DHS rule. For these reasons, the Department's 
interim final rule excludes consideration of the receipt of any public 
benefits by active duty service members and their spouses and children.

[[Page 55008]]

b. Exception for Aliens Present in the United States in an Immigration 
Category Exempt from the Public Charge Ground
    For the purpose of immigration benefit adjudication, DHS does not 
consider public benefits received by an alien during periods in which 
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. 8 
CFR 212.21(b)(8). Likewise, for the purpose of adjudicating visa 
applications, consular officers will not consider public benefits an 
alien received during any periods in which the alien was present in the 
United States in an immigration category that is exempt from the public 
charge ground of visa ineligibility, or if the alien was the recipient 
of a waiver of the public charge ground of ineligibility.
c. Exception for Foreign-Born Children of U.S. Citizens
    In some cases, the children of U.S. citizens will acquire 
citizenship upon finalization of their adoption in the United States, 
under section 320 of the INA, 8 U.S.C. 1431, or the children will 
naturalize upon taking the Oath of Allegiance (or having it waived) 
under section 322 of the INA, 8 U.S.C. 1433. In other cases, the 
children of U.S. citizens will acquire citizenship upon taking up 
residence in the United States in the legal and physical custody of 
their U.S. citizen parent pursuant to a lawful admission. The 
definition of ``public benefits'' does not include any benefits that 
were or will be received by aliens described in this paragraph.
    Children of U.S. citizens eligible for automatic acquisition of 
citizenship under section 320 of the INA, 8 U.S.C. 1431, are exempt 
from the affidavit of support requirement. See Child Citizenship Act, 
Public Law 106-395, 114 Stat. 1631 (Oct. 30, 2000); 8 CFR 
213a.2(a)(2)(ii)(E). Therefore, consular officers will not require any 
affidavit of support forms from sponsors of visa applicants who will 
benefit from section 320 of the INA, 8 U.S.C. 1431.
    Children of U.S. citizens, including those adopted abroad, 
typically receive one of several types of immigrant visas as listed 
below and are lawfully admitted to the United States for permanent 
residence. Such children may become U.S. citizens (1) automatically, 
(2) following their admission to the United States and upon the 
finalization of their adoption, or (3) upon meeting other eligibility 
criteria. International adoptions vary depending on the laws of the 
country of origin, the laws of the U.S. State of residence, and 
multiple other factors. In the majority of cases, adoptions are 
finalized in the country of origin before the child enters the United 
States and the child automatically acquires U.S. citizenship upon 
admission to the United States. Children whose adoptions are not 
finalized until after their admission or who were subject to custody 
orders permitting immigration to and adoption in the United States do 
not automatically acquire citizenship after admission. They may acquire 
citizenship, however, upon completing an adoption in the United States 
or having the foreign adoption recognized by the State where they are 
permanently residing, after which they would be eligible to naturalize. 
See U.S. Dep't of State, 2018 Annual Report on Intercountry Adoptions, 
available at https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-publications.html.
    The following categories of children acquire citizenship upon 
lawful admission for permanent residence and beginning to reside in the 
legal and physical custody of their U.S. citizen parent(s):
     IR-2/IR-7 (Child of a U.S. citizen)--requires an approval 
of a Form I-130 (Petition for Alien Relative). These children, 
excluding stepchildren who have not been adopted by the U.S. citizen 
parent, are generally lawfully admitted for permanent residence or 
their status is adjusted to that of lawful permanent resident. The 
child must then file a Form N-600 (Application for Certificate of 
Citizenship) to receive the Certificate of Citizenship. The Certificate 
generally uses the date the child was lawfully admitted for permanent 
residence.
     IR-3/IR-8 (Orphan adopted abroad by a U.S. citizen)--
requires an approval of the Form I-600 (Petition to Classify Orphan as 
an Immediate Relative). These children are generally admitted for 
permanent residence, and USCIS will send a Certificate of Citizenship 
to the child without a Form N-600 being filed or adjudicated.
     IH-3 (Hague Convention orphan adopted abroad by a U.S. 
citizen)--requires an approval of the Form I-800 (Petition to Classify 
Convention Adoptee as an Immediate Relative). These children are 
generally admitted for permanent residence and USCIS will send a 
Certificate of Citizenship to the child without a Form N-600 being 
filed or adjudicated.
    The following categories of children are lawfully admitted for 
permanent residence for finalization of adoption:
     IR-4/IR-9 (Orphan to be adopted by a U.S. citizen). 
Generally, the parent(s) must complete the adoption in the United 
States. However, the child will also be admitted as an IR-4 if the 
foreign adoption was obtained without either parent having seen the 
child during the adoption proceedings, or when the parent(s) must 
establish that they have either ``readopted'' the child or obtained 
recognition of the foreign adoption in the State of residence (this 
requirement can be waived if there is a statute or precedent decision 
that clearly shows that the foreign adoption is recognized in the State 
of residence). See 8 CFR 320.1.
     IH-4 (Hague Convention Adoptee to be adopted by a U.S. 
citizen). These children are lawfully admitted for permanent residence 
and the parent(s) must complete the adoption in the United States. INA 
section 101(b)(1), 8 U.S.C. 1101(b).
    Furthermore, children of U.S. citizens, who are residing outside of 
the United States and are eligible to naturalize under section 322 of 
the INA, 8 U.S.C. 1433, must apply for an immigrant or nonimmigrant 
visa to enter the United States before they naturalize. These children 
are generally issued a B-2 nonimmigrant visa in order to complete the 
process for naturalization through an interview and take the Oath of 
Allegiance under section 322 of the INA, 8 U.S.C. 1433. Congress has 
enacted numerous laws over the last two decades to ensure that foreign-
born children of U.S. citizens are not subject to adverse immigration 
consequences in the United States on account of their foreign birth. 
Most notably, the Child Citizenship Act of 2000 provides that children, 
including adopted children, of U.S. citizen parents automatically 
acquire U.S. citizenship if certain conditions are met. See Dep't of 
State, FAQ: Child Citizenship Act of 2000, available at https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-FAQs/child-citizenship-act-of-2000.html (last visited July 30, 
2019). See also 8 CFR part 320. The same year, Congress passed the 
Intercountry Adoption Act of 2000 (IAA), 42 U.S.C. 14901-14954, to 
implement the Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, which established 
international standards of practices for intercountry adoptions. The 
United States signed the Convention in 1994, and the Convention entered 
into force for the United States

[[Page 55009]]

on April 1, 2008. Deposit of Instrument of Ratification by the United 
States of the Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, 72 FR 71730 (Dec. 18, 
2007). The full text of the Convention is available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=69 (last visited 
July 30, 2019). The IAA protects the rights of children, birth 
families, and adoptive parents, and improves the Government's ability 
to assist U.S. citizens seeking to adopt children from abroad. IAA 
section[thinsp]2, 42 U.S.C. 14901(a). See also Hague Convention on 
Intercountry Adoption; Intercountry Adoption Act of 2000; Accreditation 
of Agencies; Approval of Persons, 71 FR 8064 (Feb. 15, 2006).
    Many U.S. citizens seek to adopt children with disabilities or 
serious medical conditions, and a significant proportion of children 
adopted abroad by U.S. citizens have special medical needs. U.S. 
citizens seeking to adopt foreign-born children abroad generally must 
undergo a rigorous home study that includes a detailed assessment of 
finances, emotional, mental, and physical health, and other factors to 
determine their eligibility and suitability as prospective adoptive 
parents. See 8 CFR 204.3(e), 204.311(g)(3). Accordingly, such parents 
generally will have sufficient financial resources to provide for the 
child. See 8 CFR 204.311(h) (financial considerations); see also USCIS, 
Home Study Information, available at https://www.uscis.gov/adoption/home-study-information (last visited July 30, 2019).
    Nevertheless, many U.S. citizens who have adopted or are in the 
process of adopting foreign-born children with special medical needs 
may seek Medicaid for their children. See Public Law 97-248, 96 Stat. 
324. Medicaid programs vary by State, and may be based on the child's 
disability alone rather than financial means of the parents, or have 
higher income eligibility thresholds. As enrollment in Medicaid 
programs by children who are under 21 years of age will not be 
considered a ``public benefit'' for the purposes of this interim final 
rule, and because the adoptive parents have been found to have 
sufficient resources to meet the needs of their adoptive child, these 
visa applicants will not be considered likely to become public charges. 
Specifically, Congress has already imposed a requirement on adoptees 
under INA sections 101(b)(1)(F) or (G), 8 U.S.C. 1101(b)(1)(F) or (G), 
that requires their parents to demonstrate to the government that 
``proper care will be furnished the child if admitted to the United 
States.'' Federal regulations already require submission of a home 
study in cases involving the proposed adoption of children with special 
needs. The home studies in those cases must assess the adoptive 
parents' ``preparation, willingness, and ability'' to provide proper 
care for such children. 8 CFR 204.3(e)(4) and 204.311(p). The 
Department believes that Congress, by imposing a parental suitability 
determination that must be satisfied before an immigrant petition may 
be approved or a visa may be granted, has frontloaded aspects of the 
public charge determination for certain adoptive children and conveyed 
a preference that concerns directly related to public charge for 
adoptive families be assessed at early stages of the immigration 
process, rather than waiting until the time of the visa application at 
the very end of the process. Additionally, excluding consideration of 
the receipt of public benefits by such children is consistent with 
Congress' strong interest in supporting U.S. citizens seeking to adopt 
and welcome foreign-born children into their families, as reflected in 
the IAA section[thinsp]2, 42 U.S.C. 14901(a). See also 146 Cong. Rec. 
S8938-01, S8938 (daily ed. Sept. 21, 2000) (statement by Sen. Landrieu) 
(``I have said it before and I believe it rings true here, adoption 
brings people, whether they are Republican, Democrat, conservative, 
liberal, American, Russian or Chinese, together. United by the belief 
that all children deserve to grow in the love of a permanent family. 
Adoption breaks down barriers and helps build families.''). See also 
Public Law 106-139, 113 Stat. 1696 (1999) (amending the definition of 
``child'' in section 101(b)(1)(E) of the INA, 8 U.S.C. 1101(b)(1)(E), a 
change that allowed children adopted abroad to maintain their familial 
relationship with their natural siblings, making it easier for siblings 
to be adopted together).
    Furthermore, because these children are being brought to the United 
States by their U.S. citizen parents (including adoptive parents) and 
will generally become U.S. citizens upon or after admission, and 
because the adoptive families have been found to have the resources to 
care for them, such an interpretation is not at odds with Congress' 
concerns in enacting PRWORA, or as reflected in concurrent immigration 
legislation restating the public charge ground of visa ineligibility 
noting that aliens should rely on their own capabilities and the 
resources of their families, their sponsors, and private organizations; 
and that the availability of public benefits should not constitute an 
incentive for immigration to the United States. 8 U.S.C. 1601.
    This provision also aligns with the DHS final rule. Accordingly, 
the interim final rule excludes receipt of benefits by foreign-born 
children of United States citizens from its interpretation of ``public 
benefits,'' as explained in Section I, above.
4. Alien's Household
    The federal poverty guidelines do not define how to determine 
household size, and different agencies and programs have different 
requirements. See Annual Update of the HHS Poverty Guidelines, 84 FR 
1167 (Feb. 1, 2019). Public benefit-granting agencies generally 
consider an applicant's income for purposes of public benefit 
eligibility and either use the household size or family size to 
determine the income threshold needed to qualify for a public benefit. 
Each federal program administrator or State determines the general 
eligibility requirements needed to qualify for the public benefits and 
how to determine whose income is included for purposes of determining 
income based eligibility thresholds. For example, SNAP uses the term 
``household'' to include ``individuals who live together and 
customarily purchase food and prepare meals together for home 
consumption.'' 7 U.S.C. 2012(m)(1). The Department did not incorporate 
the SNAP definition because an alien may have significant financial 
obligations to children who do not reside in the same residence. 
Instead, the standard in the interim final rule takes into account 
individuals for whom the alien or the alien's parent(s) or legal 
guardian(s) or other individual is providing at least 50 percent of 
financial support because such expenditure would have significant 
bearing on whether the alien has sufficient assets, resources, and 
financial status in the context of a public charge determination.
    The U.S. Department of Housing and Urban Development (HUD) uses the 
term ``families,'' which includes:

    [F]amilies with children and, in the cases of elderly families, 
near-elderly families, and disabled families, means families whose 
heads (or their spouses), or whose sole members, are elderly, near-
elderly, or persons with disabilities, respectively. The term 
includes, in the cases of elderly families, near-elderly families, 
and disabled families, 2 or more elderly persons, near-elderly 
persons, or persons with disabilities living together, and 1 or more 
such persons living with 1 or more persons determined under the 
public housing agency plan to be essential to their care or well-
being.


[[Page 55010]]


42 U.S.C. 1437a(b)(3). The U.S. Housing Act of 1937 (the 1937 Act), 42 
U.S.C. 1437 to 1437zz-10, requires that dwelling units assisted under 
it must be rented only to families who are low-income[thinsp]at the 
time of their initial occupancy. Section 3 of the 1937 Act also defines 
income, with respect to a family, as:

    [I]ncome received from all sources by each member of the 
household who is 18 years of age or older or is the head of 
household or spouse of the head of the household, plus unearned 
income by or on behalf of each dependent who is less than 18 years 
of age, as determined in accordance with the criteria prescribed by 
the Secretary [of Housing and Urban Development], in consultation 
with the Secretary of Agriculture [. . .].

42 U.S.C. 1437a(b)(4), as amended by the Housing Opportunity Through 
Modernization Act of 2016, Public Law 114-201, section 102, 130 Stat. 
782, 787 (2016). Beyond the statutory framework defining families, and 
as provided by the 1937 Act, HUD allows public housing agencies the 
discretion to determine particularities related to family composition, 
as determined under each public housing agency's plan.
    ``Alien's household,'' under paragraph (e) of the interim final 
rule, encompasses many of the individuals identified in various HUD 
definitions of ``family,'' including spouses and children as defined 
under the INA. The definition of child in INA section 101(b), 8 U.S.C. 
1101(b), generally includes unmarried persons under 21 years of age who 
are born in or out of wedlock, stepchildren, legitimated children, 
adopted children if adopted under the age of 16 or the age of 18 if 
natural siblings of another adopted child. In addition, the 
Department's interpretation focuses on both individuals who the alien 
anticipates will live in the alien's home or physically reside with the 
alien in the United States, as well as individuals not living in the 
alien's home but for whom the alien and/or the alien's parent(s)/legal 
guardian(s) is providing or is required to provide at least 50 percent 
of financial support, whether in the United States or abroad.
    The IRS defines ``dependent'' to include a qualifying child or a 
qualifying relative. See 26 U.S.C. 152; see also IRS Publication 501 
(Jan 2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf. 
These tests generally include some type of relationship to the person 
filing (including step and foster children and their children) whether 
or not the dependent is living with the person filing and the amount of 
support being provided by the person filing (over 50 percent). IRS 
Publication 501 (Jan 2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf. In general, the dependent must also be a U.S. citizen 
or lawful permanent resident in order to qualify as a dependent for tax 
purposes. Id.
    The IRS definition of ``dependent'' would generally exclude 
nonresident aliens. However Sec.  40.41(d) does not. This will result 
in a larger number of people being included than if the Department 
tracked the IRS's definition of ``dependent'' in order to more 
accurately capture the alien's actual financial obligations. As used in 
paragraph (d), ``alien's household'' also considers those individuals 
who are supported by the alien and are themselves aliens, or those who 
may be contributing to the alien's income, in order to determine 
whether the alien's financial resources are sufficient to support the 
alien and other members of the alien's household. For example, if an 
alien resides with a younger sibling who is attending school and the 
alien provides 50 percent or more financial support for the younger 
sibling, that sibling is a part of the alien's household, even though 
the younger sibling may be earning some wages from a part-time job. 
Those part-time wages would be counted toward the requisite income 
threshold. Similarly, if the alien has an older sibling who is 
providing 50 percent or more of financial support to the alien but not 
residing with the alien, that older sibling would also be included in 
the alien's household and his/her income counted toward the requisite 
income threshold along with any income earned by the alien.
    As used in Sec.  40.41(d), ``alien's household'' adopts the IRS 
standard of the amount of support being provided to the individual (50 
percent) as the standard for deeming an individual part of the 
household in the public charge determination. See Internal Revenue 
Serv., Dependency Exemptions, available at https://apps.irs.gov/app/vita/content/globalmedia/4491_dependency_exemptions.pdf (last visited 
Jul. 30, 2019); see also Internal Revenue Serv., Table 2: Dependency 
Exemption for Qualifying Relative, available at https://apps.irs.gov/app/vita/content/globalmedia/table_2_dependency_exemption_relative_4012.pdf (last visited Jul. 30, 
2019). The Department believes that the ``at least 50 percent of 
financial support'' standard used by the IRS is reasonable to apply to 
the determination of who is a member of an alien's household, without 
regard to whether these individuals physically reside in the alien's 
home. This would include those individuals the alien may not have a 
legal responsibility to support but may nonetheless be supporting. For 
example, this could include a parent, sibling, or a grandparent living 
with the alien, or an adult child, sibling, or any other adult who the 
alien may be supporting or required to support or who contributes to 
the alien's financial support.
5. Receipt of Public Benefits
    The interim final rule clarifies that receipt of public benefits 
occurs when a public benefit-granting agency provides a public benefit, 
as defined in Sec.  40.41(c), to the visa applicant as a beneficiary, 
whether in the form of cash, voucher, services, or insurance coverage. 
The Department clarifies that application or certification for a public 
benefit does not constitute receipt of public benefits, but it may be 
considered as a factor suggesting likelihood of future receipt. 
Likewise, certification for future receipt of a public benefit does not 
constitute receipt of public benefits, although it may suggest a 
likelihood of future receipt. An alien's receipt of, application for, 
or certification for, public benefits solely on behalf of another 
individual does not constitute receipt of, application for, or 
certification for, such alien. This standard will help consular 
officers implement the new ``public charge'' definition at Sec.  
40.41(b) as an alien who receives one or more public benefits, as 
defined in paragraph (c) of Sec.  40.41, 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' worth of benefits). 
It also clarifies that consular officers must evaluate whether the 
alien is likely to receive one or more public benefits, the impact of 
certification for future receipt of public benefits, and that the 
relevant consideration is the alien's receipt of public benefits, not 
application or certification solely on behalf of another person.
6. Deletion of Posting of Bond
    The Department removed the provision in former 22 CFR 40.41(d), 
which said that a consular officer may issue a visa to an alien who is 
within the purview of INA 212(a)(4), 8 U.S.C. 1182(a)(4), upon receipt 
of notice from DHS of the giving of a bond, and provided the consular 
officer is satisfied that the giving of such bond removes the 
likelihood that the alien will become a public charge. The Department 
is removing this provision because it reflects an obsolete process.

[[Page 55011]]

7. Deletion of Use of the Federal Poverty Line Where INA 213A Not 
Applicable
    The Department removed the discussion in former 22 CFR 40.41(f), 
which stated that an immigrant visa applicant, not subject to the 
requirements of INA 213A, 8 U.S.C. 1183a, and relying solely on 
personal income to establish eligibility under INA 212(a)(4), 8 U.S.C. 
1182(a)(4), who does not demonstrate an annual income above the Federal 
poverty line, as defined in INA 213A(h), 8 U.S.C. 1183a(h), and who is 
without other adequate financial resources, shall be presumed 
ineligible under INA 212(a)(4), 8 U.S.C. 1182(a)(4). The new language 
in sections (a) through (g) provide the framework consular officers 
will use to assess the public charge visa ineligibility, including for 
immigrant visa applicants who are subject to the public charge ground 
of ineligibility, but not the Affidavit of Support requirement. Instead 
of retaining a second framework for one subset of individuals subject 
to the public charge ground, the Department will apply this standard 
uniformly.
8. Deletion of Joint Sponsor
    The Department removed the discussion in former 22 CFR 40.41(g), 
which stated that submission of one or more additional affidavits of 
support by a joint sponsor is required if the relative sponsor's income 
and assets and the immigrant's assets do not meet the Federal poverty 
requirements. This language has been deleted as it merely restates 
statutory requirements of INA 213A, 8 U.S.C. 1183a, and as such is not 
necessary in the 22 CFR 40.41.

Regulatory Findings

Administrative Procedure Act

    The Department has concluded that the good cause exceptions in 5 
U.S.C. 553(b)(B) and (d)(3) apply to this rule, as the delay associated 
with notice and comment rulemaking would be impracticable, unnecessary, 
or contrary to the public interest. 5 U.S.C. 553(b)(3)(B); 5 U.S.C. 
553(d)(3). Those exceptions relieve agencies of the notice-and-comment 
requirement in emergency situations, or in circumstances where ``the 
delay created by the notice and comment requirements would result in 
serious damage to important interests.'' Woods Psychiatric Inst. v. 
United States, 20 Cl. Ct. 324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. 
Cir. 1991); see also United States v. Dean, 604 F.3d 1275, 1279 (11th 
Cir. 2010); Nat'l Fed'n of Federal Emps. v. Nat'l Treasury Emps. Union, 
671 F.2d 607, 611 (D.C. Cir. 1982).
    Notice and comment on this rule, along with a 30-day delay in its 
effective date, would be impracticable and contrary to the public 
interest. On August 14, 2019, DHS published a final rule on 
inadmissibility on public charge grounds of inadmissibility. 84 FR 
41292. That rule, which will be effective October 15, 2019, changes how 
DHS interprets the public charge ground of inadmissibility, section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Coordination of Department 
and DHS implementation of the public charge inadmissibility ground is 
critical to the Department's interest in preventing inconsistent 
adjudication standards and different outcomes between determinations of 
visa eligibility and determinations of admissibility at a port of 
entry. If implementation of the rule is delayed pending completion of 
notice and comment, consular officers would apply public charge-related 
ineligibility standards differing from those applied by DHS and, 
consequently, might issue visas to applicants who would later arrive at 
a port of entry and be found inadmissible by U.S. Customs and Border 
Protection under the new DHS public charge standards, based on the same 
information that was presented to the adjudicating consular officer. 
This inconsistency between the two agencies' adjudications would create 
a public harm and would significantly disrupt the Department's interest 
in issuing visas only to individuals who appear to qualify for 
admission to the United States. The Department has determined that the 
need to minimize the occurrence of situations in which visa holders 
arrive at a port of entry and are found inadmissible under the new DHS 
public charge standards supports a finding of good cause under 5 U.S.C. 
553.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this interim final rule is exempt from notice-and-comment 
rulemaking under 5 U.S.C. 553, it is exempt from the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Nonetheless, consistent with 
the Regulatory Flexibility Act, the Department certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities because this rule only regulates individual visa 
applicants and does not regulate any small entities or businesses.

Small Business Regulatory Enforcement Fairness Act of 1996

    The Office of Information and Regulatory Affairs has determined 
that this is not a major rule as defined by 5 U.S.C. 804.

Executive Orders 12866, 13563, and 13771

    The new public charge standards will impose additional costs on 
many individuals, by requiring applicants to provide detailed 
information about their age, health, family status, finances, and 
education and skills. These costs are analyzed in the notice required 
under the Paperwork Reduction Act of a new form, the DS-5540, Public 
Charge Questionnaire, which certain categories of applicants will be 
required to complete to help inform the consular officer's public 
charge assessment. The Department is separately seeking OMB approval of 
a new information collection (form) for this purpose. The Department 
estimates 12,736,034 visa applicants per year will be affected by this 
interim final rule based on the average number of visa applicants 
subject to the public charge ineligibility ground for the years 2017 
and 2018. Specifically, in 2017, 624,317 immigrant visa applications 
were subject to the public charge ineligibility ground. The number was 
630,340 in 2018. In 2017, 12,356,864 nonimmigrant visa applications 
were in categories subject to the public charge ineligibility, and 
11,860,545 in 2018. While the Department estimates 12,736,034 visa 
applicants will be affected by this interim final rule per year, the 
Department estimates that only 450,000 applicants per year will be 
asked to submit this information; given that the majority of 
nonimmigrant visa applicants would not overcome 214(b) if they were 
also deemed likely to be a public charge and thus would be refused as 
such. The average burden per response is estimated to be 60 minutes. 
The Department estimates that the annual hour burden to visa applicants 
posed by the additional questions is 450,000 hours (450,000 applicants 
x 60 minutes). The weighted wage hour cost burden for this collection 
is $15,737,400 based on the calculation of $24.98 \1\ (average hourly 
wage) x 1.4 (weighted wage multiplier) x 450,000 hours.
---------------------------------------------------------------------------

    \1\ Source: Data from the U.S. Bureau of Labor Statistics' May 
2018 National Occupational Employment and Wage Estimates for all 
occupations (https://www.bls.gov/oes). Retrieved September 10, 2019.
---------------------------------------------------------------------------

    The Department believes the benefits of rigorously applying the 
public charge ineligibility ground, informed by relevant information 
that can only be provided by applicants, outweighs the costs associated 
with the new rule. Visa applicants and their representatives will 
already need to adjust to the new DHS

[[Page 55012]]

public charge inadmissibility standard, so the information requested 
for the purpose of enforcing the Department's new rule substantially 
overlaps with the information requested by DHS when the applicant 
applies for admission or other immigration-related benefits in the 
United States. Most importantly, this interpretation seeks to mitigate 
against the possibility that consular officers would issue a visa to an 
individual who DHS would find inadmissible and deny U.S. entry, based 
on the same facts. This benefits applicants by preventing the 
investment of time and expenditure of personal funds on travel to the 
United States in the event that DHS ultimately finds them inadmissible.
    This rule is an E.O. 13771 regulatory action.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. The Department does not expect that this 
interim final rule will impose substantial direct compliance costs on 
State and local governments, or preempt State law. The rule will not 
have federalism implications warranting the application of Executive 
Orders 12372 and 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulation in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have a 
substantial direct effect on one or more Indian tribes, will not impose 
substantial direct compliance costs on Indian tribal governments, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, and will not pre-empt tribal law. 
Accordingly, the requirements of Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

    This rule imposes a new information collection requirements under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35. 
The Department is separately seeking OMB approval of a new form, which 
certain applicants will be required to complete to assist with the 
consular officer's public charge assessment.

List of Subjects in 22 CFR Part 40

    Administrative practice and procedure, foreign relations, passports 
and visas, aliens.

    For the reasons stated in the preamble, the Department amends 22 
CFR part 40 as follows:

PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND 
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 40 is revised to read as follows:

    Authority: 8 U.S.C. 1104, 1182, 1183a, 1641


0
2. Section 40.41 is revised to read as follows:


Sec.  40.41  Public charge.

    (a) Basis for determination of ineligibility. Any determination 
that an alien is ineligible under INA 212(a)(4) must be predicated upon 
circumstances indicating that, taking into account any Affidavit of 
Support under section 213A of the INA that may have been filed on the 
alien's behalf, the alien is likely at any time to become a public 
charge after admission, or, if applicable, that the alien has failed to 
submit a sufficient Affidavit of Support Under Section 213A of the INA 
as set forth in either INA 212(a)(4)(C) or 212(a)(4)(D). Consular 
officers will consider whether any identified third party is willing 
and able to financially support the alien while the alien is in the 
United States. When considering the likelihood of an alien becoming a 
public charge at any time through receipt of public benefits, as 
defined in paragraph (c) of this section, consular officers will use a 
more likely than not standard and take into account the totality of the 
alien's circumstances at the time of visa application, including at a 
minimum: The alien's age; health; family status; assets, resources, and 
financial status; and education and skills. No one enumerated factor 
alone, apart from the lack of a sufficient Affidavit of Support under 
section 213A of the Act where required, will make the alien more likely 
than not to become a public charge. For immigration classifications 
exempt from the public charge ground of ineligibility, see 8 CFR 
212.23(a).
    (1) The alien's age. Consular officers will consider whether the 
alien's age makes the alien more likely than not to become a public 
charge in the totality of the circumstances, such as by impacting the 
alien's ability to work. Consular officers will consider an alien's age 
between 18 and early retirement age as defined in 42 U.S.C. 416(l)(2) 
as a positive factor. Age is a negative factor for aliens who are under 
the age of 18. However, consular officers may consider other factors, 
such as the support provided to a minor child by a parent, legal 
guardian, or other source, that in the totality of the circumstances 
may offset the alien's age as a negative factor. An alien's age above 
early retirement age is a negative factor in the totality of the 
circumstances, if the consular officer believes it adversely affects 
the alien's ability to obtain or perform work, or may increase the 
potential for healthcare related costs that would be borne by the 
public.
    (2) The alien's health. Consular officers will consider whether the 
alien's health is a positive or negative factor in the totality of the 
circumstances, including whether the alien, has been diagnosed with a 
medical condition that is likely to require extensive medical care or 
institutionalization, or that will interfere with the alien's ability 
to provide and care for himself or herself, to attend school, or to 
work, if authorized. Consular officers will consider the report of a 
medical examination performed by the panel physician where such 
examination is required, including any medical conditions noted by the 
panel physician. An individual with a Class B medical condition, 
including Class B forms of communicable diseases of public health 
significance, as defined in 42 CFR part 34, is not alone a 
determinative factor for public charge purposes. The medical condition 
will be taken into consideration with all factors under the totality of 
circumstances. In assessing the effect of the alien's health on a 
public charge ineligibility determination, the consular officer will 
consider evidence of health insurance or the ability to pay for 
reasonably foreseeable medical expenses in the United States a positive 
factor in the totality of the circumstances.
    (3) The alien's family status. When considering an alien's family 
status, consular officers will consider the size of the alien's 
household, as defined in paragraph (e) of this section, and whether the 
alien's household size is a positive or negative factor in the totality 
of the circumstances.
    (4) The alien's assets, resources, and financial status--(i) In 
general. Consular

[[Page 55013]]

officers will consider, among other relevant factors, the following 
aspects of an alien's assets, resources, and financial status:
    (A) If the alien's annual gross income for the alien's household 
size is at least 125 percent of the most recent Federal Poverty 
Guidelines based on the alien's household size (or 100 percent for an 
alien on active duty, other than training, in the Armed Forces), 
consular officers will consider the alien's income a positive factor;
    (B) If the alien's annual household gross income is less than 125 
percent of the most recent Federal Poverty Guidelines (100 percent for 
those on active duty, other than training, in the Armed Forces) based 
on the alien's household size, consular officers will consider a total 
value of the household assets and resources that is at least five times 
the difference between the alien's household gross income and 125 
percent of the Federal Poverty Guidelines for the alien's household 
size as a positive factor. However, if the alien is the spouse or child 
of a U.S. citizen, assets totaling three times the difference between 
the alien's household gross income and 125 percent of the Federal 
Poverty Guidelines (100 percent for those on active duty, other than 
training, in the Armed Forces) for the alien's household size is a 
positive factor. If the alien is a child who will be adopted in the 
United States and who will likely receive citizenship under section 320 
of the INA, then assets equivalent to or greater than the difference 
between the alien's household gross income and 125 percent the Federal 
Poverty Guidelines (100 percent for those on active duty, other than 
training, in the Armed Forces) for the alien's household size is a 
positive factor.
    (ii) Factors to consider. When considering an alien's assets, 
resources, and financial status, consular officers must consider 
assets, resources, and financial status including:
    (A) The alien's household annual gross income;
    (B) The alien's cash assets and resources;
    (C) Non-cash assets and resources that can be converted into cash 
within twelve months of the visa application;
    (D) The alien's financial liabilities;
    (E) Whether the alien has applied for, been certified to receive, 
been approved to receive, or received one or more public benefits, as 
defined in paragraph (c) of this section on or after October 15, 2019, 
or whether the alien has disenrolled or requested to be disenrolled 
from such public benefits.
    (F) Whether the alien has received an immigration benefit fee 
waiver from DHS on or after October 15, 2019, unless the fee waiver was 
applied for or granted as part of an application for which a public 
charge inadmissibility under section 212(a)(4) of the Act was not 
required; and
    (G) Whether the alien has private health insurance or other 
financial resources sufficient to cover reasonably foreseeable costs 
related to a medical condition in the United States.
    (iii) Income from illegal activities or sources. Consular officers 
may not consider any income from illegal activities or sources, such as 
proceeds from illegal gambling or drug sales, or income from any public 
benefit listed in paragraph (c) of this section.
    (5) The alien's education and skills. When considering an alien's 
education and skills, consular officers will consider both positive and 
negative factors associated with whether the alien has adequate 
education and skills to either obtain or maintain lawful employment 
with an income sufficient to avoid being likely to become a public 
charge. In assessing whether the alien's level of education and skills 
makes the alien likely to become a public charge, the consular officer 
must consider, among other factors, the alien's history of employment, 
educational level (high school diploma, or its equivalent, or higher 
educational degree), any occupational skills, certifications or 
licenses, and English language proficiency or proficiency in languages 
in addition to English. Consular officers will take into positive 
consideration an alien who is a primary caregiver 18 years of age or 
older who has significant responsibility for actively caring for and 
managing the well-being of a minor, elderly, ill, or disabled person 
residing in the alien's household, such that the alien lacks an 
employment history or current employment, or is not employed full time. 
Only one alien within a household can be considered a primary caregiver 
of the same individual within the household.
    (6) Prospective visa classification. When considering the 
likelihood at any time of an alien becoming a public charge, consular 
officers will consider the visa classification sought.
    (7) Affidavit of Support Under Section 213A of the Act. Any alien 
seeking an immigrant visa under INA 201(b)(2), 203(a), or 203(b), based 
upon a petition filed by a relative of the alien (or in the case of a 
petition filed under INA 203(b) by an entity in which a relative has a 
significant ownership interest), shall be required to present to the 
consular officer an Affidavit of Support Under Section 213A of the INA 
on a form that complies with terms and conditions established by the 
Secretary of Homeland Security. A properly filed, non-fraudulent, 
sufficient Affidavit of Support Under Section 213A of the INA, in those 
cases where it is required, is a positive factor in the totality of the 
circumstances if the sponsor is likely to actually provide the alien 
with the statutorily-required amount of financial support and other 
related considerations.
    (8) Heavily weighted factors. The factors below will weigh heavily 
in an ineligibility determination based on public charge.
    (i) Heavily weighted negative factors. The following factors will 
weigh heavily in favor of a finding that an alien is likely at any time 
in the future to become a public charge:
    (A) The alien is not a full-time student and is authorized to work 
in his or her country of residence or the United States, as 
appropriate, but is unable to satisfy the consular officer that he or 
she is currently employed, has recent employment history, or a 
reasonable prospect of future employment;
    (B) The alien has received or has been certified or approved to 
receive one or more public benefits, as defined in paragraph (c) 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' worth of benefits), beginning no earlier 
than October 15, 2019, or for more than 12 months in the aggregate 
within the 36 month period prior to the adjudication of the alien's 
visa application, whichever is later.
    (C)(1) The alien has been diagnosed with a medical condition that 
is likely to require extensive medical treatment or 
institutionalization or that will interfere with the alien's ability to 
provide for himself or herself, attend school, or work; and
    (2) The alien has no health insurance for use in the United States 
and has neither the prospect of obtaining private health insurance for 
use in the United States, nor the financial resources to pay for 
reasonably foreseeable medical costs related to such medical condition;
    (D) The alien was previously found inadmissible or deportable on 
public charge grounds by an Immigration Judge or the Board of 
Immigration Appeals.
    (ii) Heavily weighted positive factors. The following factors will 
weigh heavily in favor of a finding that an alien is not likely at any 
time to become a public charge:
    (A) The alien's household has income, assets, resources, or support 
of at least

[[Page 55014]]

250 percent of the Federal Poverty Guidelines for the alien's household 
size. Consular officers may not consider any income from illegal 
activities, e.g., proceeds from illegal gambling or drug sales, or any 
income derived from any public benefit as defined in paragraph (c) of 
this section;
    (B) The alien is authorized to work and is currently employed with 
an annual income of at least 250 percent of the Federal Poverty 
Guidelines for the alien's household size. Consular officers may not 
consider any income from illegal activities, e.g., proceeds from 
illegal gambling or drug sales;
    (C) The alien has private health insurance (other than health 
insurance obtained with premium tax credits under the Affordable Care 
Act) for use in the United States covering the expected period of 
admission.
    (9) Treatment of benefits received before October 15, 2019. When 
considering whether an alien is more likely than not to become a public 
charge under this section, consular officers will consider, as a 
negative factor, but not as a heavily weighted negative factor as 
described in paragraph (a)(8) of this section, any amount of cash 
assistance for income maintenance, including Supplemental Security 
Income (SSI), Temporary Assistance for Needy Families (TANF), State and 
local cash assistance programs that provide benefits for income 
maintenance (often called ``General Assistance'' programs), and 
programs (including Medicaid) supporting aliens who are 
institutionalized for long-term care, received, or certified for 
receipt, before October 15, 2019.
    (b) Public charge. Public charge means, for the purpose of INA 
212(a)(4)(A) and (B), an alien who receives one or more public 
benefits, as defined in paragraph (c) 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' 
worth of benefits).
    (c) Public benefit. (1) Public benefit means any of the following 
forms of assistance received on or after October 15, 2019:
    (i) Any Federal, State, local, or tribal cash assistance for income 
maintenance (other than tax credits), including:
    (A) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
    (B) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 
et seq.;
    (C) 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); and
    (ii) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 
2011 et seq.;
    (iii) Housing Choice Voucher Program, as authorized under section 
8(o) of the United States Housing Act of 1937 (42 U.S.C. 1437f);
    (iv) Project-Based Rental Assistance (including Moderate 
Rehabilitation) authorized under section 8 of the United States Housing 
Act of 1937 (42 U.S.C. 1437f);
    (v) Medicaid under 42 U.S.C. 1396 et seq., except for:
    (A) Benefits received for an emergency medical condition as 
described in section 1903(v)(2)-(3) of Title XIX of the Social Security 
Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
    (B) Services or benefits funded by Medicaid but provided under the 
Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et 
seq.;
    (C) 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
    (D) 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).
    (vi) Public Housing under section 9 of the U.S. Housing Act of 1937 
(42 U.S.C. 1437g).
    (2) Public benefit, as defined in this section, does not include 
any form of assistance listed in paragraphs (c)(1)(i) through (vi) of 
this section received by an alien who at the time of receipt of the 
public benefit, or at the time of visa application or visa 
adjudication, is or was:
    (i) Enlisted in the U.S. Armed Forces under the authority of 10 
U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
    (ii) Serving in active duty or in the Ready Reserve component of 
the U.S. Armed Forces, or
    (iii) Is the spouse or child as defined in INA101(b), of an 
individual described in paragraph (c)(2)(i) or (ii) of this section, or 
of a citizen of the United States described in paragraph (c)(2)(i) or 
(ii).
    (3) Public benefit, as defined in this section, does not include 
any form of assistance listed in paragraphs (c)(1)(i) through (vi) of 
this section received by an alien during periods in which the alien was 
present in the United States in an immigration category that is exempt 
from the public charge ground of inadmissibility, as set forth in 8 CFR 
212.23(a), or for which the alien received a waiver of public charge 
inadmissibility from DHS. Public benefit does not include health 
services for immunizations and for testing and treatment of 
communicable diseases, including communicable diseases of public health 
significance as defined in 42 CFR part 34.
    (4) Public benefit, as defined in this section, does not include 
any form of assistance listed in paragraphs (c)(1)(i) through (vi) of 
this section that were or will be received by:
    (i) Children of U.S. citizens whose lawful admission as permanent 
residents and subsequent residence in the legal and physical custody of 
their U.S. citizen parent will result automatically in the child's 
acquisition of citizenship;
    (ii) Children of U.S. citizens whose lawful admission as permanent 
residents will result automatically in the child's acquisition of 
citizenship upon finalization of adoption; or
    (iii) Children of U.S. citizens who are entering the United States 
for the purpose of attending an interview under INA 322 in accordance 
with 8 CFR part 322.
    (d) Alien's household. For purposes of public charge ineligibility 
determinations under INA 212(a)(4):
    (1) If the alien is 21 years of age or older, or under the age of 
21 and married, the alien's household includes:
    (i) The alien;
    (ii) The alien's spouse, if physically residing or intending to 
physically reside with the alien in the United States;
    (iii) The alien's children, as defined in INA 101(b)(1), if 
physically residing or intending to physically reside with the alien in 
the United States;
    (iv) The alien's other children, as defined in INA 101(b)(1), not 
physically residing or not intending to physically reside with the 
alien for whom the alien provides or is required to provide at least 50 
percent of financial support, as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or 
agreement specifying the amount of financial support to be provided by 
the alien;
    (v) Any other individuals (including a spouse not physically 
residing or intending to physically reside with the alien) to whom the 
alien provides, or is required to provide, at least 50 percent of the 
individual's financial support or who are listed as dependents on the 
alien's United States federal income tax return; and
    (vi) Any individual who provides to the alien at least 50 percent 
of the alien's financial support, or who lists the alien as a dependent 
on his or her federal income tax return.

[[Page 55015]]

    (2) If the alien is a child as defined in INA 101(b)(1), the 
alien's household includes the following individuals:
    (i) The alien;
    (ii) The alien's children as defined in INA 101(b)(1), physically 
residing or intending to physically reside with the alien in the United 
States;
    (iii) The alien's other children as defined in INA 101(b)(1) not 
physically residing or intending to physically reside with the alien 
for whom the alien provides or is required to provide at least 50 
percent of the children's financial support, as evidenced by a child 
support order or agreement, a custody order or agreement, or any other 
order or agreement specifying the amount of financial support to be 
provided by the alien;
    (iv) The alien's parents, legal guardians, or any other individual 
providing or required to provide at least 50 percent of the alien's 
financial support to the alien as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or 
agreement specifying the amount of financial support to be provided to 
the alien;
    (v) The alien's parents' or legal guardians' other children as 
defined in INA 101(b)(1), physically residing or intending to 
physically reside with the alien in the United States;
    (vi) The alien's parents' or legal guardians' other children as 
defined in INA 101(b)(1), not physically residing or intending to 
physically reside with the alien for whom the parent or legal guardian 
provides or is required to provide at least 50 percent of the other 
children's financial support, as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or 
agreement specifying the amount of financial support to be provided by 
the parents or legal guardians; and
    (vii) Any other individual to whom the alien's parents or legal 
guardians provide, or are required to provide at least 50 percent of 
each individual's financial support, or who is listed as a dependent on 
the parent's or legal guardian's federal income tax return.
    (e) Receipt of public benefit. Receipt of public benefit occurs 
when a public benefit-granting agency provides a public benefit, as 
defined in paragraph (c) of this section, to the alien as a 
beneficiary, whether in the form of cash, voucher, services, or 
insurance coverage. Application or certification for a public benefit 
does not constitute receipt of public benefit, but it may be considered 
as a factor suggesting likelihood of future receipt. An alien's receipt 
of, application for, or certification for public benefit solely on 
behalf of another individual does not constitute receipt of, 
application for, or certification for such alien.
    (f) Prearranged employment. An immigrant visa applicant relying on 
an offer of prearranged employment to establish eligibility under INA 
212(a)(4), other than an offer of employment certified by the 
Department of Labor pursuant to INA 212(a)(5)(A), must provide written 
confirmation of the relevant information sworn and subscribed to before 
a notary public by the employer or an authorized employee or agent of 
the employer. The signer's printed name and position or other 
relationship with the employer must accompany the signature.

Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2019-22399 Filed 10-10-19; 8:45 am]
BILLING CODE 4710-06-P