Public Charge Ground of Inadmissibility, 55472-55639 [2022-18867]
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Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 212, 213, and 245
[CIS No. 2715–22; DHS Docket No. USCIS–
2021–0013]
RIN 1615–AC74
Public Charge Ground of
Inadmissibility
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule.
AGENCY:
The U.S. Department of
Homeland Security (DHS) is amending
its regulations to prescribe how it
determines whether noncitizens are
inadmissible to the United States
because they are likely at any time to
become a public charge. Noncitizens
who are applicants for visas, admission,
and adjustment of status must establish
that they are not likely at any time to
become a public charge unless Congress
has expressly exempted them from this
ground of inadmissibility or has
otherwise permitted them to seek a
waiver of inadmissibility. Under this
rule, DHS would determine that a
noncitizen is likely at any time to
become a public charge if the noncitizen
is likely at any time to become primarily
dependent on the government for
subsistence, as demonstrated by either
the receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense. On August 14, 2019, DHS
issued a different rule on this topic,
Inadmissibility on Public Charge
Grounds Final Rule (2019 Final Rule),
which is no longer in effect. This rule
implements a different policy than the
2019 Final Rule.
DATES: This final rule is effective
December 23, 2022. This final rule will
apply to applications postmarked on or
after the effective date.
FOR FURTHER INFORMATION CONTACT:
Andrew Parker, Branch Chief,
Residence and Admissibility Branch,
Residence and Naturalization Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
DHS, 5900 Capital Gateway Drive, Camp
Springs, MD 20746; telephone (240)
721–3000 (this is not a toll-free
number).
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Legal Authority
C. Summary of the Proposed Rule
D. Summary of Changes From the NPRM
to the Final Rule
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E. Implementation
F. Summary of Costs and Benefits
II. Background
A. Legal Authority
B. The Public Charge Ground of
Inadmissibility
C. 2019 DHS Inadmissibility on Public
Charge Ground Final Rule, Vacatur, and
Litigation History
D. Current Public Charge Inadmissibility
Guidance
E. Current Rulemaking
III. Response to Public Comments on the
Proposed Rule
A. Summary of Public Comments
B. Comments Expressing General Support
for the Proposed Rule
C. Comments Expressing General
Opposition to the Proposed Rule
D. Comments Regarding Legal Authority
and Statutory Provisions
E. Chilling Effects
F. Applicability of the Public Charge
Ground of Inadmissibility
G. Exemptions, Limited Exemption, and
Waivers
H. Definitions
I. Factors
J. Totality of the Circumstances
K. Receipt of Public Benefits While
Noncitizen Is in an Immigration Category
Exempt From Public Charge
Inadmissibility
L. Receipt of Public Benefits by Those
Granted Refugee Benefits
M. Denial Decision
N. Information Collection (Forms)
O. Bonds and Bond Procedures
P. Economic Analysis Comments &
Responses
Q. Out-of-Scope Comments
IV. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Small Business Regulatory Enforcement
Fairness Act of 1996
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice
Reform)
G. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
H. Family Assessment
I. National Environmental Policy Act
J. Paperwork Reduction Act
V. List of Subjects and Regulatory
Amendments
Table of Abbreviations
AAO—Administrative Appeals Office
ADA—Americans with Disabilities Act
ANPRM—Advance Notice of Proposed
Rulemaking
ASC—Application Support Center
BIA—Board of Immigration Appeals
BLS—Bureau of Labor Statistics
CBP—Customs and Border Protection
CDC—Centers for Disease Control and
Prevention
CFR—Code of Federal Regulations
CHIP—Children’s Health Insurance Program
COS—Change of Status
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COVID–19—Coronavirus Disease 2019
DACA—Deferred Action for Childhood
Arrivals
DHS—U.S. Department of Homeland
Security
DOD—Department of Defense
DOS—U.S. Department of State
DOJ—Department of Justice
E.O.—Executive Order
EOS—Extension of Stay
FAM—Department of State Foreign Affairs
Manual
FBR—Federal Benefit Rate
FDA—Food and Drug Administration
FPG—Federal Poverty Guidelines
FOIA—Freedom of Information Act
HCBS—Home and Community-Based
Services
HCV—Housing Choice Voucher
HHS—U.S. Department of Health and Human
Services
HSA—Homeland Security Act
HUD—U.S. Department of Housing and
Urban Development
IIRIRA—Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
INA—Immigration and Nationality Act
INS—Immigration and Naturalization Service
IRCA—Immigration Reform and Control Act
LPR—Lawful Permanent Resident
LRIF—Liberian Refugee Immigration Fairness
Act
NACARA—Nicaraguan Adjustment and
Central American Relief Act
NATO—North Atlantic Treaty Organization
NEPA—National Environmental Policy Act
NOID—Notice of Intent to Deny
NPRM—Notice of Proposed Rulemaking
OAW—Operation Allies Welcome
OMB—Office of Management and Budget
PHA—Public Housing Agency
PHE—Public Health Emergency
PRA—Paperwork Reduction Act
PRWORA—Personal Responsibility and
Work Opportunity Reconciliation Act of
1996
RFA—Regulatory Flexibility Act of 1980
RFE—Request for Additional Evidence
RIA—Regulatory Impact Analysis
SIPP—Survey of Income and Program
Participation
SNAP—Supplemental Nutrition Assistance
Program
SSA—Social Security Administration
SSI—Supplemental Security Income
TANF—Temporary Assistance for Needy
Families
TPS—Temporary Protected Status
TVPA—Trafficking Victims Protection Act
UMRA—Unfunded Mandates Reform Act of
1995
USCIS—U.S. Citizenship and Immigration
Services
USDA—U.S. Department of Agriculture
VAWA—Violence Against Women Act
WIC—Special Supplemental Nutrition
Program for Women, Infants, and Children
I. Executive Summary
A. Purpose of the Regulatory Action
This rule implements the public
charge ground of inadmissibility, found
in section 212(a)(4) of the Immigration
and Nationality Act (INA), 8 U.S.C.
1182(a)(4), in a manner that will be
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consistent with congressional direction;
that will be clear and comprehensible
for officers as well as for noncitizens 1
and their families; and that will lead to
fair and consistent adjudications,
thereby mitigating the risk of unequal
treatment of similarly situated
individuals.
Under the INA, noncitizens are
inadmissible and therefore (1) ineligible
for a visa, (2) ineligible for admission,
and (3) ineligible for adjustment of
status, if, in the opinion of DHS (or the
Department of Justice (DOJ)) or consular
officers of the Departments of State
(DOS), as applicable),2 they are likely at
any time to become a public charge.3
While the statute does not define the
term ‘‘public charge,’’ it does provide
that in making an inadmissibility
determination, administering agencies
must ‘‘at a minimum consider the
alien’s age; health; family status; assets,
resources, and financial status; and
education and skills.’’ 4 The agencies
may also consider an Affidavit of
Support Under Section 213A of the INA
submitted on the noncitizen’s behalf
when such is required.5
Beginning in 1999, public charge
inadmissibility determinations were
made in accordance with the May 26,
1999, Field Guidance on Deportability
1 For purposes of this discussion, DHS uses the
term ‘‘noncitizen’’ to be synonymous with the term
‘‘alien’’ as it is used in the INA.
2 Three different agencies are responsible for
applying the public charge ground of
inadmissibility, each in a different context or
contexts. DHS primarily applies the public charge
ground of inadmissibility to applicants for
admission at or between ports of entry and when
adjudicating certain applications for adjustment of
status. DOS consular officers are responsible for
applying the public charge ground of
inadmissibility as part of the visa application
process and for determining whether a visa
applicant is ineligible for a visa on public charge
grounds at the time of application for a visa. This
rule does not revise DOS standards or processes.
DOJ is responsible for applying the public charge
ground of inadmissibility with respect to
noncitizens in immigration court. Immigration
judges adjudicate matters in removal proceedings,
and the Board of Immigration Appeals and in some
cases the Attorney General adjudicate appeals
arising from such proceedings. This rule does not
revise DOJ standards or processes. DOS consular
officers are responsible for applying the public
charge ground of inadmissibility as part of the visa
application process and for determining whether a
visa applicant is ineligible for a visa on public
charge grounds at the time of application for a visa.
This rule does not revise DOS standards or
processes.
3 See INA sec. 212(a)(4)(A), 8 U.S.C.
1182(a)(4)(A). Congress has by statute exempted
certain categories of noncitizens, such as asylees
and refugees, from the public charge ground of
inadmissibility. See, e.g., INA secs. 207(c)(3) and
209(c), 8 U.S.C. 1157(c)(3) and 1159(c). A full list
of exemptions is included in this rule.
4 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
5 See INA sec. 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
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and Inadmissibility on Public Charge
Grounds (1999 Interim Field Guidance),
issued by the former Immigration and
Naturalization Service (INS).6 Under
that approach, ‘‘public charge’’ was
defined as a noncitizen who is
‘‘primarily dependent on the
Government for subsistence, as
demonstrated by either the receipt of
public cash assistance for income
maintenance or institutionalization for
long-term care at Government
expense.’’ 7 Under the 1999 Interim
Field Guidance, a noncitizen’s reliance
on or receipt of non-cash benefits such
as the Supplemental Nutrition
Assistance Program (SNAP), also known
as food stamps; Medicaid (except for
support for long-term
institutionalization); and housing
vouchers and other housing subsidies
were not considered by DHS in
determining whether a noncitizen was
deemed likely at any time to become a
public charge.
On August 14, 2019, DHS issued a
rule on the public charge ground of
inadmissibility, which is no longer in
effect.8 The 2019 Final Rule expanded
DHS’s definition of ‘‘public charge’’ and
imposed a heavy direct paperwork
burden on applicants and DHS officers.
The 2019 Final Rule was associated
with widespread collateral effects as
discussed in section III.E below,
primarily with respect to those who
were not even subject to the public
charge ground of inadmissibility, such
as U.S. citizen children in mixed-status
households. Notwithstanding these
widespread collateral effects, during the
time that the 2019 Final Rule was in
effect, of the 47,555 applications for
adjustment of status to which the rule
was applied, DHS issued only three
denials (which were subsequently
reopened and approved) and two
Notices of Intent to Deny (which were
ultimately rescinded, after which the
applications were approved) based on
the totality of the circumstances of a
public charge inadmissibility
determination under section
6 See ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689 (May 26, 1999). Due to a printing error, the
Federal Register version of the field guidance
appears to be dated ‘‘March 26, 1999’’ even though
the guidance was actually signed May 20, 1999,
became effective May 21, 1999, and was published
in the Federal Register on May 26, 1999.
7 See ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28692 (May 26, 1999).
8 See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292 (Aug. 14, 2019), as
amended by ‘‘Inadmissibility on Public Charge
Grounds; Correction,’’ 84 FR 52357 (Oct. 2, 2019).
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212(a)(4)(A) and (B) of the INA, 8 U.S.C.
1182(a)(4)(A) and (B).
This final rule would implement a
different policy than the 2019 Final
Rule. As stated above, in this new rule,
DHS will implement section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), in a
manner that will be clear and
comprehensible for officers as well as
for noncitizens and their families and
will lead to fair and consistent
adjudications, thereby mitigating the
risk of unequal treatment of similarly
situated individuals. In this rule, DHS
has declined to include certain aspects
of the 2019 Final Rule that in DHS’s
view caused undue fear and confusion,
such as (1) a complicated and
unnecessarily broad definition of
‘‘public charge’’; (2) mandatory
consideration of past, current, and
future receipt of certain supplemental
public benefits, notwithstanding that
most noncitizens subject to the public
charge ground of inadmissibility would
not have been eligible for such benefits
at the time of application (and
notwithstanding the potential collateral
effects of this policy on U.S. citizen
children in mixed-status households
and noncitizens who are not subject to
the public charge ground of
inadmissibility); (3) burdensome and in
some instances duplicative information
collection requirements; (4) designation
of certain factors or sets of factual
circumstances as ‘‘heavily weighted’’;
and (5) imposition of a ‘‘public benefit
condition’’ for extension of stay and
change of status, notwithstanding that
the nonimmigrant population to whom
this condition applied is largely
ineligible for such benefits.
As discussed at greater length below,
DHS believes that, in contrast to the
2019 Final Rule, this rule would
effectuate a more faithful interpretation
of the statutory phrase ‘‘likely at any
time to become a public charge’’; avoid
unnecessary burdens on applicants,
officers, and benefits-granting agencies;
and mitigate the possibility of
widespread ‘‘chilling effects’’ 9 with
respect to individuals disenrolling or
declining to enroll themselves or family
members in public benefits programs for
which they are eligible, especially with
respect to individuals who are not
subject to the public charge ground of
inadmissibility. Under this rule, similar
to the 1999 Interim Field Guidance that
was in place for two decades prior to the
9 The term ‘‘chilling effects’’ used throughout this
rule is meant to convey the indirect effect of
chilling an individual’s participation in public
benefit programs, regardless of whether they are
subject to the public charge ground of
inadmissibility, based on fear of negative
immigration consequences.
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Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations
2019 Final Rule, noncitizens would be
considered likely at any time to become
a public charge if they are likely at any
time to become primarily dependent on
the government for subsistence, as
demonstrated by either the receipt of
public cash assistance for income
maintenance or long-term
institutionalization at government
expense.
This final rule also makes important
clarifications and changes as compared
to the 1999 Interim Field Guidance. For
instance, this rule clarifies DHS’s
approach to consideration of disability
and long-term institutionalization at
government expense; states a bright-line
rule against considering the receipt of
public benefits by an applicant’s
dependents (such as a U.S. citizen child
in a mixed-status household); and
changes the Form I–485 to collect
additional information relevant to the
public charge inadmissibility
determination. DHS also added
streamlined provisions to clarify
acceptance, form, and amount of USCIS
public charge bonds, as well as
cancellation of public charge bonds.
Finally, later in this preamble, in
response to public comments, DHS
further clarifies that primary
dependence connotes significant
reliance on the government for support,
and means something more than
dependence that is merely transient or
supplementary.
The rule also contains multiple
additional provisions and definitions,
some of which are consistent with
aspects of the 1999 Interim Field
Guidance (and the 2019 Final Rule), and
some of which differ in material
respects.
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B. Summary of Legal Authority
The authority of the Secretary of
Homeland Security (Secretary) for the
regulatory amendments is found in
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), which governs public charge
inadmissibility determinations; section
235 of the INA, 8 U.S.C. 1225, which
addresses applicants for admission; and
section 245 of the INA, 8 U.S.C. 1255,
which addresses eligibility criteria for
applications for adjustment of status. In
addition, section 103(a)(3) of the INA, 8
U.S.C. 1103(a)(3), authorizes the
Secretary to establish such regulations
as the Secretary deems necessary for
carrying out the Secretary’s authority
under the INA.
C. Summary of the Proposed Rule
On February 24, 2022, DHS published
a notice of proposed rulemaking, Public
Charge Ground of Inadmissibility
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(NPRM).10 The NPRM proposed to
prescribe how DHS would determine
whether a noncitizen is inadmissible to
the United States under section
212(a)(4) of the INA). Under the NPRM,
a noncitizen would be considered likely
at any time to become a public charge
if they are likely at any time to become
primarily dependent on the government
for subsistence, as demonstrated by
either the receipt of public cash
assistance for income maintenance or
long-term institutionalization at
government expense. In the NPRM, DHS
proposed definitions for the terms
‘‘likely at any time to become a public
charge,’’ ‘‘public cash assistance for
income maintenance,’’ ‘‘long-term
institutionalization at government
expense,’’ ‘‘receipt (of public benefits),’’
and ‘‘government.’’
In the NPRM, DHS proposed to adopt
a standard similar to the one used in the
1999 Interim Field Guidance and related
1999 NPRM, which tied public charge
inadmissibility to primary dependence
on the government for subsistence, as
demonstrated by the receipt of public
cash assistance for income maintenance
or long-term institutionalization at
government expense. The NPRM also
identified the groups of individuals
generally subject to or exempt from the
public charge inadmissibility ground
and provided a list of statutory and
regulatory exemptions from and waivers
of the public charge ground of
inadmissibility.
DHS continues to believe that the
‘‘primarily dependent’’ standard
properly balances the competing policy
objectives established by Congress.11
10 87
FR 10570 (Feb. 24, 2022).
the 2019 Final Rule, DHS canvassed a range
of sources to support the proposition that the
statute was ambiguous and that the new definition
represented a reasonable interpretation of such
ambiguity in light of the policy goals articulated in
PRWORA. For example, DHS wrote that the rule ‘‘is
not inconsistent with Congress’ intent in enacting
the public charge ground of inadmissibility in [the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)], or in enacting
PRWORA.’’ See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292, 41317 (Aug. 14, 2019).
DHS noted that Congress enacted those two laws in
the same year, that IIRIRA amended the public
charge inadmissibility statute, and that PRWORA
contained the statements of national policy. DHS
continued by stating that the rule, ‘‘in accordance
with PRWORA, disincentivizes immigrants from
coming to the United States in reliance on public
benefits.’’ Ibid. Similarly, in support of a similar
definition of ‘‘public charge’’ in the 2018 NPRM,
DHS wrote that ‘‘the term public charge is
ambiguous as to how much government assistance
an individual must receive or the type of assistance
an individual must receive to be considered a
public charge. The statute and case law do not
prescribe the degree to which an alien must be
receiving public benefits to be considered a public
charge. Given that neither the statute nor the case
law prescribes the degree to which an alien must
be dependent on public benefits to be considered
11 In
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Although the term ‘‘public charge’’ does
not have a single clear meaning, its
basic thrust is clear: significant reliance
on the government for support. This has
been the longstanding purpose of the
public charge ground of inadmissibility;
individuals who are unable or unwilling
to work to support themselves, and who
do not have other nongovernmental
means of support such as family
members, assets, or sponsors, are at the
core of the term ‘‘public charge.’’
Individuals who are likely to primarily
rely on their own resources, while
secondarily relying on some government
support, are less readily characterized as
public charges. DHS does not believe
that the term is best understood to
include a person who receives benefits
from the government to help to meet
some needs but is not primarily
dependent on the government and
instead has one or more sources of
independent income or resources upon
which the individual primarily relies.
To evaluate a person’s likelihood to
become primarily dependent on the
government for subsistence, DHS
proposed to designate a list of public
benefits that would be considered for
purposes of a public charge
inadmissibility determination. DHS
recognized that the universe of public
benefits is quite large. In seeking to
provide clear notice of the effects of the
rule and to limit certain undesired
collateral effects that may be associated
with the rule (such as indirect effects on
social service providers and chilling
effects), DHS proposed to designate
public cash assistance for income
maintenance (i.e., Supplemental
Security Income (SSI), cash assistance
for income maintenance under the
Temporary Assistance for Needy
Families (TANF), and State, Tribal,
territorial, or local cash benefit
programs for income maintenance) and
long-term institutionalization at
government expense as the benefits that
DHS would consider as part of the
public charge inadmissibility
determination.
DHS believes that this approach—the
‘‘primarily dependent’’ standard and the
focus on the specific benefits contained
in the proposed rule—is consistent with
a more faithful interpretation of the term
‘‘public charge’’ and has the additional
benefit of being more administrable and
a public charge, DHS has determined that it is
permissible and reasonable to propose a different
approach.’’ See ‘‘Inadmissibility on Public Charge
Grounds,’’ 83 FR 51114, 51164 (Oct. 10, 2018). DHS
continues to believe that the statute is ambiguous,
but for reasons discussed throughout this preamble,
DHS now believes the interpretation contained in
this rule reflects a reasonable and indeed the most
appropriate interpretation of the statute.
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consistent with longstanding practice
than the 2019 Final Rule.12 DHS has
also determined that this approach is
less likely to result in the significant
chilling effects among both noncitizens
who are not subject to the public charge
ground of inadmissibility and U.S.
citizens, along with certain effects on
State and local governments and social
service providers (such as increases in
inquiries regarding the public charge
implications of receiving certain
benefits and increases in
uncompensated care), that were
observed following promulgation of the
2019 Final Rule.
DHS sought comment on the proposal
to consider cash assistance for income
maintenance, but not non-cash benefits
(apart from long-term
institutionalization at government
expense), in determining whether a
noncitizen is likely at any time to
become primarily dependent on the
government for subsistence. As
explained below, following receipt of a
range of public comments on this topic
(including proposals to narrow, expand,
or maintain the proposed list of public
benefits), DHS has decided to finalize
this aspect of the proposed rule without
change other than the inclusion of an
additional provision in the final rule
clarifying the continuation of this
policy, which was articulated in the
1999 Interim Field Guidance and
reiterated in the recent NPRM.
In addition to proposing new
definitions, DHS proposed the factors
that DHS would consider in
prospectively determining whether an
applicant for admission or adjustment of
status before DHS is inadmissible on the
public charge ground in the totality of
the circumstances. Those factors
include the statutory minimum factors
of age; health; family status; assets,
resources, and financial status; and
education and skills; as well as past
receipt of designated public benefits.
DHS specifically stated that the fact that
an applicant has a disability, as defined
by section 504 of the Rehabilitation Act
(Section 504), would not alone be a
sufficient basis to determine whether
the noncitizen is likely at any time to
become a public charge.
In addition, DHS proposed to revise
the existing information collection,
Form I–485, Application to Register
12 The 2019 Final Rule also designated a specific
list of public benefits as relevant to the public
charge determination, which included benefits
other than cash assistance for income maintenance
and long-term institutionalization at government
expense such as SNAP, most non-emergency forms
of Medicaid, Section 8 Housing Assistance under
the Housing Choice Voucher (HCV) Program,
Section 8 Project-Based Rental Assistance, and
public housing under the Housing Act of 1937.
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Permanent Residence or Adjust Status,
to include additional questions
regarding several of the statutory
minimum factors: family status; assets,
resources, and financial status;
education and skills; as well as past
receipt of the designated public benefits.
As proposed, the additional questions
would apply to only those applicants
who are subject to the public charge
ground of inadmissibility.
DHS also proposed to require that all
written denial decisions issued by
USCIS to applicants reflect
consideration of each of the statutory
minimum factors, the Affidavit of
Support Under Section 213A of the INA,
where required, and the noncitizen’s
current and/or past receipt of public
benefits, consistent with the standards
set forth in the proposed rule, and to
specifically articulate the reasons for the
officer’s determination.
DHS also proposed to tailor its rule to
limit the effects of certain regulatory
provisions on discrete populations. DHS
proposed not to consider public benefits
received by a noncitizen during periods
in which the noncitizen was present in
the United States in an immigration
category that is exempt from the public
charge ground of inadmissibility, or for
which the noncitizen received a waiver
of public charge inadmissibility, as well
as not to consider any public benefits
received by a noncitizen who was made
eligible by Congress for resettlement
assistance, entitlement programs, and
other benefits available to refugees, even
if the noncitizen was not admitted as a
refugee under section 207 of the INA, 8
U.S.C. 1157.
Finally, DHS proposed amending
regulations related to T nonimmigrant
status holders, clarifying that these T
nonimmigrants seeking adjustment of
status are not subject to the public
charge ground of inadmissibility.
DHS received 223 comments on the
proposed rule, the majority of which
expressed support or qualified support
for the policy approach articulated in
the proposed rule. A few of the public
comments supported a return to the
framework contained in the 2019 Final
Rule. The preamble to this final rule
includes summaries of the significant
issues raised in the comments, and
includes responses to those comments
and explanations for policy changes.
D. Summary of Changes From the
NPRM to the Final Rule
Following careful consideration of
public comments received, DHS has
made several changes to the regulatory
text proposed in the NPRM.13 As
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discussed in detail in the comment
responses, the changes in this final rule
are as follows:
1. Definitions
a. Definition of Household
In response to public comments, DHS
added a definition of ‘‘household’’ to be
used in connection with the family
status and assets, resources, and
financial status factors. The noncitizen’s
household will include:
• The noncitizen;
• If physically residing with the
noncitizen, the noncitizen’s spouse,
parents, unmarried siblings under 21
years of age, and children;
• Any other individuals who are
listed as dependents on the noncitizen’s
federal income tax return; and
• Any other individuals who list the
noncitizen as a dependent on their
federal income tax return.
DHS notes that a noncitizen’s
household’s income includes income
provided to the household from sources
who are not members of the household,
including but not limited to alimony or
child support.
b. Definition of Long-Term
Institutionalization at Government
Expense
DHS replaced the term ‘‘alien’’ with
the term ‘‘beneficiary’’ to clarify that the
forward-looking nature of the public
charge inquiry includes long-term
institutionalization that occurs after the
applicant for admission or adjustment of
status is no longer an ‘‘alien,’’ as that
term is defined in the INA.
c. Definition of Receipt (of Public
Benefits)
DHS replaced the term ‘‘alien’’ with
the term ‘‘individual’’ to clarify that the
forward-looking nature of the public
charge determination includes public
cash assistance for income maintenance
that is received after the applicant for
admission or adjustment of status is no
longer an ‘‘alien,’’ as that term is
defined in the INA.
2. Statutory Minimum Factors
DHS modified 8 CFR 212.22(a)(1)
from the proposed version in the
following ways:
d. General
DHS eliminated the duplicative text
‘‘at a minimum’’ from paragraph (a)(1).
e. Health
DHS added text stating that DHS will
consider the noncitizen’s health as
evidenced by a report of an immigration
medical examination performed by a
civil surgeon or panel physician where
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such examination is required in making
public charge inadmissibility
determinations. DHS will generally
defer to the report of the examination
unless there is evidence that the report
is incomplete.
f. Family Status
DHS added text stating that DHS will
consider the noncitizen’s family status
as evidenced by the noncitizen’s
household size. ‘‘Household’’ is defined
in 8 CFR 212.21(f).
g. Assets, Resources, and Financial
Status
DHS added text stating that DHS will
consider the noncitizen’s assets,
resources, and financial status as
evidenced by the noncitizen’s
household’s income, assets, and
liabilities (excluding any income from
public benefits listed in 8 CFR 212.21(b)
and income or assets from illegal
activities or sources such as proceeds
from illegal gambling or drug sales).
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h. Education and Skills
DHS added text stating that DHS will
consider the noncitizen’s education and
skills as evidenced by the noncitizen’s
degrees, certifications, licenses, skills
obtained through work experience or
educational programs, and educational
certificates.
3. Consideration of Current and/or Past
Receipt of Public Benefits
DHS clarified the regulatory text by
stating that DHS will not consider the
receipt of, or certification or approval
for future receipt of, public benefits not
referenced in 8 CFR 212.21(b) or (c),
such as Supplemental Nutrition
Assistance Program (SNAP) or other
nutrition programs, Children’s Health
Insurance Program (CHIP), Medicaid
(other than for long-term use of
institutional services under section
1905(a) of the Social Security Act),
housing benefits, any benefits related to
immunizations or testing for
communicable diseases, or other
supplemental or special-purpose
benefits. This policy was discussed at
length in the proposed rule’s preamble,
but DHS has included a more direct
statement to that effect in the final
regulatory text. As further explained in
the proposed rule’s preamble and in
response to comments below, DHS has
opted for an approach in which it
considers past or current receipt of the
benefits most indicative of whether a
person is likely to become primarily
dependent on the government for
subsistence while excluding from
consideration a range of benefits that are
less probative of primary dependence—
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and for which applicants for admission
and adjustment of status are most often
ineligible in any event. This choice,
informed by on-the-record input from
benefits-granting agencies, allows DHS
to faithfully administer the statute
without deterring eligible noncitizens
and their families, including U.S.
citizen children, from seeking important
benefits for which they are eligible and
which it is in the public interest for
them to receive.
4. Public Charge Bonds
a. Cancellation and Breach of Public
Charge Bonds
DHS is amending 8 CFR 103.6(c)(1),
relating to the cancellation and breach
of public charge bonds. With these
amendments, DHS is:
• Clarifying that a public charge bond
will be cancelled upon death,
permanent departure, or naturalization
of the immigrant, provided that the
immigrant did not breach such bond by
receiving public cash assistance for
income maintenance or long-term
institutionalization at government
expense;
• Stating that a public charge bond
may be cancelled by USCIS after the
fifth anniversary of the immigrant’s
admission or adjustment of status,
provided the immigrant files a Form I–
356, Request for Cancellation of Public
Charge Bond, requesting the
cancellation, and USCIS finds that the
immigrant did not receive public cash
assistance for income maintenance or
long-term institutionalization at
government expense prior to that fifth
anniversary; and
• Making technical updates to clarify
that bond cancellation authority lies
with USCIS rather than district
directors.
b. Public Charge Bond Acceptance,
Form, and Amount
DHS is amending 8 CFR 213.1,
relating to the acceptance of public
charge bonds. With these amendments,
DHS is:
• Adding a new paragraph specifying
that USCIS may invite adjustment of
status applicants who are inadmissible
only under section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), and whose
applications are otherwise approvable,
to submit a public charge bond in
USCIS’ discretion and clarifying that
USCIS will set the bond amount and
provide instructions for submission of
the bond;
• Modifying the existing regulatory
language relating to acceptance of bonds
from noncitizens seeking immigrant
visas from DOS, clarifying that USCIS
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will provide instructions for the
submission of the bond, USCIS is the
agency that accepts the bond, and that
the consular officer will set the amount
of the bond; and
• Revising the existing regulatory
language about form and bond amount
of public charge bonds by eliminating
reference to a specific form number,
stating that USCIS or the consular
officer will set the amount of the bond
of an amount no less than $1,000, and
requiring USCIS to provide a receipt to
the noncitizen or an interested party on
a form designated by USCIS for such
purpose.
E. Implementation
DHS will begin implementing this
final rule on its effective date (i.e., on
December 23, 2022). This final rule will
apply to applications for adjustment of
status that are postmarked on or after
the effective date. During the period
between publication and the effective
date, DHS will also conduct necessary
public outreach to minimize the risk of
confusion or chilling effects among both
noncitizens and U.S. citizens. On or
before this date, consistent with 8 CFR
212.22(b) DHS will issue subregulatory
guidance to inform, but not dictate the
outcome of, officers’ totality of the
circumstances determinations.
F. Summary of Costs and Benefits
The rule will result in new costs,
benefits, and transfers. To provide a full
understanding of the impacts of the
rule, DHS considers the potential
impacts of this final rule relative to two
baselines. The No Action Baseline
represents a state of the world under the
1999 Interim Field Guidance, which is
the policy currently in effect. The
second baseline is the Pre-Guidance
Baseline, which represents a state of the
world before the issuance of the 1999
Interim Field Guidance (i.e., a state of
the world in which the 1999 Interim
Field Guidance did not exist). DHS also
considers the potential effects of a
regulatory alternative that is a
rulemaking similar to the 2018 NPRM
and the 2019 Final Rule. As DHS
suggested in the 2019 Final Rule, those
effects would primarily be experienced
by persons who are not subject to the
public charge ground of inadmissibility
and who might disenroll from public
benefits or forgo enrollment in public
benefits due to fear and confusion
regarding the scope of the regulatory
alternative.14 Further discussion of the
14 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41313 (Aug. 14, 2019).
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regulatory alternative can be found in
the ‘‘Regulatory Alternative’’ section.
Relative to the No Action Baseline,
the primary source of quantified new
direct costs for the final rule is the
increase in the time required to
complete Form I–485. DHS estimates
that the rule would impose additional
new direct costs of approximately
$6,435,755 annually to applicants filing
Form I–485. In addition, the rule will
result in an annual savings for a
subpopulation of affected individuals: T
nonimmigrants applying for adjustment
of status would no longer need to
submit Form I–601 to seek a waiver of
the public charge ground of
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inadmissibility. DHS estimates the total
annual savings for this population will
be approximately $15,359. DHS
estimates that the total annual net costs
will be approximately $6,420,396.15
Over the first 10 years of
implementation, DHS estimates the total
net costs of the rule will be
approximately $64,203,960
(undiscounted). In addition, DHS
estimates that the 10-year discounted
total net costs of this rule will be
approximately $54,767,280 at a 315 Calculations: Total annual net costs
($6,420,396) = Total annual costs ($6,435,755)—
Total annual savings ($15,359).
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55477
percent discount rate and approximately
$45,094,175 at a 7-percent discount rate.
DHS expects the primary benefit of
this final rule to be the non-quantified
benefit of increased clarity in the rules
governing public charge inadmissibility
determinations. By codifying into
regulations the current practice under
the No Action Baseline (the 1999
Interim Field Guidance) with some
changes, the final rule reduces
uncertainty and confusion.
The following two tables provide a
more detailed summary of the
provisions and their impacts relative to
the No Action Baseline and PreGuidance Baseline, respectively.
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55484
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A. Legal Authority
The Secretary’s authority for issuing
this rule is found in various sections of
the INA (8 U.S.C. 1101 et seq.) and the
Homeland Security Act of 2002
(HSA).16
Section 102 of the HSA, 6 U.S.C. 112,
and section 103 of the INA, 8 U.S.C.
1103, charge the Secretary with the
administration and enforcement of the
immigration laws of the United States.
Section 101 of the HSA, 6 U.S.C. 111,
establishes that part of DHS’s primary
mission is to ensure that efforts,
activities, and programs aimed at
securing the homeland do not diminish
either the overall economic security of
the United States or the civil rights and
civil liberties of persons.
In addition to establishing the
Secretary’s general authority for the
administration and enforcement of
immigration laws, section 103 of the
INA, 8 U.S.C. 1103, enumerates various
16 See Pub. L. 107–296, 116 Stat. 2135, 6 U.S.C.
101 et seq. (2002).
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related authorities, including the
Secretary’s authority to establish such
regulations, prescribe such forms of
bond, issue such instructions, and
perform such other acts as the Secretary
deems necessary for carrying out such
authority.
Section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), provides that an applicant
for a visa, admission, or adjustment of
status is inadmissible if they are likely
at any time to become a public charge.
In general, under section 213 of the
INA, 8 U.S.C. 1183, the Secretary has
the discretion to admit into the United
States a noncitizen who is determined
to be inadmissible based only on the
public charge ground upon the giving of
a suitable and proper bond or
undertaking approved by the Secretary.
Section 235 of the INA, 8 U.S.C. 1225,
addresses the inspection of applicants
for admission, including inadmissibility
determinations of such applicants.
Section 245 of the INA, 8 U.S.C. 1255,
generally establishes eligibility criteria
for adjustment of status to that of a
lawful permanent resident.
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B. The Public Charge Ground of
Inadmissibility
Section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), provides that an applicant
for a visa, admission, or adjustment of
status is inadmissible if they are likely
at any time to become a public charge.
The public charge ground of
inadmissibility, therefore, applies to
individuals applying for a visa to come
to the United States temporarily or
permanently (typically adjudicated by
DOS consular officers), for admission
(typically adjudicated by U.S. Customs
and Border Protection officers and U.S.
Border Patrol Agents, and governed by
this rule), or for adjustment of status to
that of a lawful permanent resident
(governed by this rule when adjudicated
by U.S. Citizenship and Immigration
Services officers).17 By statute, some
categories of noncitizens are exempt
from the public charge ground of
inadmissibility, while others may apply
17 See
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INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
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II. Background
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C. 2019 DHS Inadmissibility on Public
Charge Ground Final Rule, Vacatur, and
Litigation History
In August 2019, DHS issued a final
rule, Inadmissibility on Public Charge
Grounds (2019 Final Rule).22 As
explained in more detail in the NPRM,23
the 2019 Final Rule provided key
definitions, including ‘‘public charge’’
and ‘‘public benefits,’’ and provided a
multi-factor framework along with
associated evidentiary requirements
through which USCIS would determine
inadmissibility on the public charge
ground. The 2019 Final Rule added
provisions that rendered certain
nonimmigrants ineligible for extension
of stay or change of status if they
received public benefits for a certain
period, and also revised DHS
regulations governing the Secretary’s
discretion to accept a public charge
bond under section 213 of the INA, 8
U.S.C. 1183, for those seeking
adjustment of status. The 2019 Final
Rule did not interpret or change DHS’s
implementation of the public charge
ground of deportability.24
Also as discussed in the NPRM,25 the
2019 Final Rule was set to take effect on
October 15, 2019. Before it did,
numerous Plaintiffs filed suits
challenging the 2019 Final Rule in five
district courts, across four circuits.26
Following a series of preliminary
injunctions and stays or reversals of
those injunctions, the 2019 Final Rule
was ultimately vacated nationwide by a
partial final judgment entered by the
U.S. District Court for the Northern
District of Illinois.27 DHS subsequently
formally removed the 2019 Final Rule
from the Code of Federal Regulations.28
The litigation concerning the 2019
Final Rule continued, with attempts by
certain States to intervene in the various
cases. On May 12, 2021, a collection of
States filed motions to intervene in the
U.S. District Court for the Northern
District of Illinois for reconsideration of
the grant of partial summary judgment
and for other relief.29 The motions were
denied, and prospective intervenors
noted their appeal to the U.S. Court of
Appeals for the Seventh Circuit.
Separately, on March 10, 2021, a
collection of prospective intervenors,
led by the State of Arizona, filed an
unsuccessful motion to intervene before
the U.S. Court of Appeals for the Ninth
Circuit.30 The prospective intervenors
18 See INA sec. 245(j), 8 U.S.C. 1255(j). See 8 CFR
245.11. See INA sec. 245(h)(2)(A), 8 U.S.C.
1255(h)(2)(A). See INA sec. 245(l)(2)(A), 8 U.S.C.
1255(l)(2)(A). See INA sec. 212(d)(3)(A), 8 U.S.C.
1182(d)(3)(A).
19 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
20 See INA sec. 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii). When required, the applicant must
submit an Affidavit of Support Under Section 213A
of the INA (Form I–864 or Form I–864EZ). With
very limited exceptions, most noncitizens seeking
family-based immigrant visas and adjustment of
status, and some noncitizens seeking employmentbased immigrant visas or adjustment of status, must
submit a sufficient Affidavit of Support Under
Section 213A of the INA in order to avoid being
found inadmissible as likely at any time to become
a public charge. See INA sec. 212(a)(4)(C) and (D),
8 U.S.C. 1182(a)(4)(C) and (D).
21 See INA sec. 213, 8 U.S.C. 1183.
22 See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292 (Aug. 14, 2019), as
amended by ‘‘Inadmissibility on Public Charge
Grounds; Correction,’’ 84 FR 52357 (Oct. 2, 2019).
23 See 87 FR at 10606 (Feb. 24, 2022).
24 See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See
‘‘Inadmissibility on Public Charge Grounds,’’ 84 FR
41292, 41295 (Aug. 14, 2019).
25 See 87 FR at 10586 (Feb. 24, 2022).
26 CASA de Maryland, Inc., et al. v. Trump, 19–
cv–2715 (D. Md.); City and County of San
Francisco, et al. v. DHS, et al., 19-cv-04717
(N.D.Ca.); City of Gaithersburg, et al. v. Trump, et
al., 19-cv-02851 (D. Md.); Cook County et al. v.
McAleenan et al., 19–cv–06334 (N.D. Ill.); La
Clinica De La Raza, et al. v. Trump, et al., 19–cv–
4980 (N.D. Ca.); Make the Road New York, et al. v.
Cuccinelli, et al., 19-cv-07993 (S.D.N.Y.); New York,
et al. v. DHS, et al., 19–cv–07777 (S.D.N.Y.); State
of California, et al. v. DHS, et al., 19–cv–04975
(N.D. Cal.); State of Washington, et al. v. DHS, et
al., 19–cv–05210 (E.D. Wa.).
27 See Cook County v. Wolf, 498 F. Supp. 3d 999
(N.D. Ill. Nov. 2, 2020).
28 See ‘‘Inadmissibility on Public Charge
Grounds; Implementation of Vacatur,’’ 86 FR 14221
(Mar. 15, 2021).
29 See Texas, et al. v. Cook County, Illinois, et al.,
1:19-cv-0633419 (N.D. Ill. May 12, 2021).
30 City and County of San Francisco, et al. v.
USCIS et al., 19–17213 (9th Cir.).
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for a waiver of the public charge
inadmissibility ground.18
The INA does not define the term
‘‘public charge.’’ It does, however,
specify that when determining whether
a noncitizen is likely at any time to
become a public charge, consular
officers and immigration officers must,
at a minimum, consider the noncitizen’s
age; health; family status; assets,
resources, and financial status; and
education and skills.19 Additionally,
section 212(a)(4)(B)(ii) of the INA, 8
U.S.C. 1182(a)(4)(B)(ii), permits the
consular officer or the immigration
officer to consider any Affidavit of
Support Under Section 213A of the INA
submitted on the applicant’s behalf,
when determining whether the
applicant is likely at any time to become
a public charge.20
Additionally, in general, under
section 213 of the INA, 8 U.S.C. 1183,
the Secretary has the discretion to admit
into the United States a noncitizen who
is determined to be inadmissible based
only on the public charge ground upon
the giving of a suitable and proper bond
or undertaking approved by the
Secretary.21
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then filed a motion before the Supreme
Court seeking leave to intervene, which
the Court ordered to be held in abeyance
while the prospective intervenors filed
a petition for certiorari from the Ninth
Circuit intervention denial, which was
filed on June 23, 2021.31 On October 29,
2021, the Supreme Court granted
certiorari on a single issue of the three
presented in the petition: ‘‘Whether
States with interests should be
permitted to defend a rule when the
United States ceases to defend.’’ On
June 15, 2022, the Supreme Court
dismissed the writ of certiorari as
improvidently granted.32
On June 27, 2022, the U.S. Court of
Appeals for the Seventh Circuit ruled
that the U.S. District Court for the
Northern District of Illinois did not
abuse its discretion in denying the
States’ motions to intervene in the
proceedings concerning the 2019 Final
Rule and request for relief from
judgment under Rule 60(b).33 Other
aspects of the litigation concerning the
2019 Final Rule have been stayed, with
varying reporting requirements, pending
the outcome of the intervention
litigation.
D. Current Public Charge Inadmissibility
Guidance
As discussed in the NPRM, DHS
currently makes public charge
inadmissibility determinations in
accordance with the statute and the
1999 Interim Field Guidance.34 The
guidance explains how the agency
determines if a noncitizen is likely at
any time to become a public charge
under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4). Under the guidance,
officers can offer public charge bonds,
but the guidance does not provide
procedures for public charge bonds.
E. Current Rulemaking
On August 23, 2021, DHS published
an Advance Notice of Proposed
Rulemaking (ANPRM) to seek broad
public feedback on the public charge
ground of inadmissibility to inform its
development of a future regulatory
proposal.35 USCIS sought input from
individuals, organizations, government
entities and agencies, and all other
interested members of the public. USCIS
held two public listening sessions and
accepted written comments and related
31 Arizona, et al., v. City and County of San
Francisco, et al., 20–1775 (U.S. Oct. 29, 2021).
32 Arizona, et al., v. City and County of San
Francisco, et al., 20–1775 (U.S. June 15, 2022).
33 Cook County, Illinois, et al. v. State of Texas,
et al., 37 F. 4th 1335 (7th Cir. 2022).
34 See 87 FR at 10585 (Feb. 24, 2022).
35 See ‘‘Public Charge Ground of Inadmissibility,’’
86 FR 47025 (Aug. 23, 2021).
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material through October 22, 2021. DHS
reviewed all of the comments and
considered them in developing the
NPRM.36
On February 24, 2022, DHS published
a proposed rule, Public Charge Ground
of Inadmissibility.37 The public
comment period closed on April 25,
2022. Following careful consideration of
public comments received in response
to the NPRM, DHS has made
modifications to the regulatory text
proposed in the NPRM, as described
above and throughout this preamble.
The following section of this
preamble includes a detailed summary
and analysis of the public comments
received on the NPRM. Comments made
in response to the ANPRM and the
NPRM may be reviewed at the Federal
Docket Management System (FDMS) at
https://www.regulations.gov, docket
number USCIS–2021–0013.
III. Response to Public Comments on
the Proposed Rule
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A. Summary of Public Comments
DHS received a total of 223 public
comment submissions in Docket
USCIS–2021–0013 in response to the
proposed rule. The majority of comment
submissions were from advocacy groups
or individual commenters. Other
commenters included anonymous
commenters; healthcare providers;
research institutes, universities, and
academic researchers; law firms,
individual attorneys, and other legal
services providers; Federal, State, and
local elected officials; State and local
government agencies; religious and
community organizations; unions;
Federal Government officials;
professional associations; and trade and
business organizations. While some
commenters opposed the rule and some
commenters supported the rule in its
entirety, the majority of commenters
expressed support for the rule with
suggestions for improvement, or
indicated that they believed the
proposed rule was flawed in some way,
but a significant improvement over the
2019 Final Rule. A few of the public
comments supported a return to the
framework contained in the 2019 Final
Rule.
B. Comments Expressing General
Support for the Proposed Rule
Comment: Many commenters were
generally in favor of the proposed rule
and expressed support for clarifying the
public charge ground of inadmissibility.
Some of those commenters stated that
36 See
87 FR at 10597 (Feb. 24, 2022).
Charge Ground of Inadmissibility,’’ 87
FR 10570 (Feb. 24, 2022).
37 ‘‘Public
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the rule ensures that the public charge
ground of inadmissibility will be
implemented in a clear, consistent, and
fair manner. Several commenters
praised the rule on the grounds that it
requires less paperwork for applicants
as compared to the 2019 Final Rule, and
allows for administration of the public
charge ground of inadmissibility
without generating undue fear and
confusion. Another commenter
similarly stated that the rule is the best
option because it respects the rights of
the greatest number of stakeholders and
produces the best outcome with the
least harm. This commenter remarked
that this rule would allow more people
‘‘who are fit to immigrate a chance to’’
do so, while keeping more families
together. One commenter expressed
support for the proposed rule, stating it
is critical that DHS move quickly to
finalize a more fair and equitable public
charge rule that minimizes the harm to
children and families, while recognizing
the need to create an inclusive and antiracist system. One commenter stated
that they support the development of a
rule that avoids the unequal treatment
of similarly situated persons, and that a
rule that is straightforward and
administrable can be applied fairly and
consistently.
Response: DHS agrees that this rule
will help ensure that public charge
inadmissibility determinations are fair,
consistent with law, and informed by
relevant data and evidence.
Additionally, DHS agrees that this rule
reduces unnecessary burdens on
applicants as compared to the 2019
Final Rule. Notwithstanding that the
2019 Final Rule resulted in very few
adverse determinations, that rule
introduced a new form and form
instructions spanning over 45 pages,
which was in addition to the more than
60 pages of form and form instructions
associated with the Form I–485,
Application to Register Permanent
Residence or Adjust Status. This rule
introduces a more targeted information
collection that collects the necessary
information under the statute and this
rule without imposing an unnecessary
paperwork burden on the public.
Comment: Several commenters stated
that immigrants fill valuable jobs that
U.S. citizens may not generally favor,
such as direct care work, which can be
very challenging and important but
poorly compensated. A commenter
remarked that immigrants contribute to
the United States through paying their
taxes, and others stated that increased
immigration would have a positive
effect on the current pandemic
economy. Two other commenters stated
that the rule will allow more
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noncitizens to immigrate and access
public education, which will allow
them to obtain better jobs and support
themselves and their families.
Response: DHS appreciates
commenters’ support for this rule and
notes that any impacts on the U.S.
economy, job creation, or better access
to education would be indirect effects of
the rule, and the rule, designed to
implement congressional directions,
would be justified even in the absence
of such benefits. The fundamental intent
of this rule is to help ensure that public
charge inadmissibility determinations
will be consistent with law, fair, and
informed by relevant data and evidence.
DHS also expects that this rule will help
alleviate the chilling effects caused by
previous public charge policies.
Historical evidence, both prior to the
2019 Final Rule and from the period of
time during which that rule was in
effect, does not suggest that this final
rule is likely to meaningfully change the
overall volume of immigration to the
United States.
Comment: One commenter
commended USCIS on the overall
direction of the NPRM and said that the
proposed rule is a reasonable
interpretation of the statutory public
charge ground of inadmissibility that is
generally consistent with long-time
agency policy and an improvement on
the 1999 Interim Field Guidance.
Another commenter stated that the rule
clearly seeks to avoid the barriers to
immigration imposed by the 2019 Final
Rule while preserving the integrity of
the enforcement of the public charge
ground of inadmissibility.
Response: DHS agrees that this rule is
generally consistent with longstanding
agency policy and is a reasonable
interpretation of the statutory language
in section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). DHS believes this rule
codifies a policy that is fully consistent
with law, that reflects empirical
evidence to the extent relevant and
available, and that allows flexibility for
officers to benefit from the emergence of
new evidence as time passes. DHS
believes that this rule will create clear
and comprehensible adjudicative
standards that will lead to fair and
consistent adjudications and ensure
equitable treatment of similarly situated
individuals. DHS also believes that this
rule will not unduly impose barriers for
noncitizens or unduly interfere with the
receipt of supplemental public benefits,
especially by those who are not subject
to the public charge ground of
inadmissibility.
Comment: One commenter indicated
agreement with the rule and stated that
a person who wants permission to enter
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the United States should only be
allowed to do so if they demonstrate
that they would not become a public
charge now or sometime in the future.
Further, the commenter stated that
anyone entering the country illegally
should be sent back to their country if
they cannot show that they will not
become a public charge.
Response: Consistent with section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
any noncitizen who is an applicant for
a visa, admission, or adjustment of
status must demonstrate that they are
not likely at any time to become a
public charge, unless Congress has
expressly exempted them from this
ground. If DHS determines an applicant
for admission or adjustment of status
who is subject to this inadmissibility
ground is likely at any time to become
a public charge, the applicant is
inadmissible and will not be admitted to
the United States or granted adjustment
of status unless they are eligible for and
receive a waiver or are offered and post
a public charge bond.
In regard to noncitizens who are
entering the United States without
authorization, to the extent that such
noncitizens are applicants for
admission, and subject to the public
charge ground of inadmissibility, if they
are unable to demonstrate that they are
not likely at any time to become a
public charge, they would not be
admitted unless they are eligible for and
receive a waiver or are offered and post
a public charge bond. Such individuals
may also be removable on other
grounds.
C. Comments Expressing General
Opposition to the Proposed Rule
Comment: Many commenters stated
that they opposed the rule because, in
their opinion, the statutory public
charge ground of inadmissibility and as
a consequence the corresponding
proposed rule are racist, xenophobic,
based on white nationalism, or
otherwise discriminatory. Several
commenters stated that the United
States should be doing more to help
immigrants, and offering them aid and
assistance. One commenter said that
this rule is intended to prevent
immigration, while another commenter
stated that the proposed rule seeks to
punish potential immigrants for the
simple act of being born outside of the
United States, and enforces a wealth test
that counteracts the reason for the
founding of this nation and the legacy
of the American dream. A different
commenter similarly said that the
proposed rule went against the values of
the United States. Some commenters
stated that it is unfair to reject
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immigrants based on the public charge
ground of inadmissibility because it
would take away opportunities for them
to have a better life.
Response: DHS seeks to be faithful to
the relevant statute and hence to
congressional directions. For that
reason, DHS disagrees with the
suggestion that the rule is contrary to
the laws and values of the United States,
or that the rule implies that immigrants
are inherently less worthy than U.S.
citizens. DHS does not intend or expect
that this rule will have a discriminatory
effect based on race, nationality, gender,
disability, or any other protected
ground. Importantly, the statute does
not direct DHS to consider a
noncitizen’s race, nationality, or
gender.38 Under this rule, DHS will not
consider such characteristics when
making a public charge inadmissibility
determination. DHS cannot rule out the
possibility of disproportionate impacts
on certain groups (whether as a
consequence of the policy contained in
this rule, the 1999 Interim Field
Guidance, or any other policy), but this
rule is neutral on its face and DHS in
no way intends that it will have such
impacts on any protected group. DHS is
committed to applying this rule
neutrally and fairly to all noncitizens
who are subject to it and has included
a provision requiring that USCIS denials
on public charge grounds be
accompanied by a written explanation
that specifically articulates the reasons
for the officer’s determination.39
Additionally, this rule does not apply
a ‘‘wealth test.’’ Consistent with the
governing statute, it looks only at
whether an applicant for admission or
adjustment of status is likely at any time
in the future to become primarily
dependent on the government for
subsistence after consideration of
several factors, none of which alone
determine the final outcome. In that
analysis, the consideration of assets,
resources, and financial status is one
factor to be considered in the totality of
the noncitizen’s circumstances.
In addition, as discussed in the
NPRM, DHS has taken care to address
the potential collateral effects of this
rule on the public, including potential
chilling effects, by including a range of
important provisions. For instance, this
rule includes a clear list of statutory
exemptions from the public charge
ground of inadmissibility; excludes
consideration of a noncitizen’s past
receipt of public benefits while in a
status exempt from the public charge
ground of inadmissibility; makes clear
38 INA
39 See
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8 CFR 212.22(c).
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that a noncitizen’s receipt of public
benefits solely on behalf of another
person (such as a U.S. citizen child) will
not work to the noncitizen’s
disadvantage; and excludes
consideration of most non-cash benefits
(for which most noncitizens subject to
the public charge ground of
inadmissibility are ineligible), except in
the limited circumstance of long-term
institutionalization at government
expense.
DHS has concluded that this rule is
generally consistent with longstanding
agency policy and is a reasonable
interpretation of the statutory language.
DHS further intends that this rule will
lead to fair and consistent adjudications,
will avoid unequal treatment of
similarly situated individuals, and will
not otherwise unduly impose barriers
for noncitizens seeking admission to or
adjustment of status in the United
States.40 Congress requires DHS to
consider an applicant’s age; health;
family status; assets, resources, and
financial status; and education and
skills as part of the public charge
inadmissibility determination. In the
NPRM, DHS proposed to include an
objective, data-informed consideration
in the totality of the circumstances
analysis and is retaining this
consideration in this final rule. Namely,
when DHS issues guidance to officers
that informs the totality of the
circumstances assessment, such
guidance will consider how these
factors affect the likelihood that a
noncitizen will become a public charge
at any time, and will be based on an
empirical analysis of the best-available
data as appropriate. The nature of the
public charge inadmissibility
determination under this rule—a
prospective determination made in the
totality of the circumstances ‘‘in the
opinion’’ of the immigration officer—
renders it amenable to sub-regulatory
guidance that identifies a range of
nonbinding considerations and can be
updated to account for advancements in
the best-available data. DHS
acknowledges that it cannot eliminate
the possibility of officer bias, but USCIS
adjudicators are trained professionals
and as with other immigration
determinations, adjudicators will
specifically articulate the reasons for a
proposed adverse determination and
will provide an opportunity to
respond.41
40 See Executive Order (E.O.) 14012, ‘‘Restoring
Faith in Our Legal Immigration Systems and
Strengthening Integration and Inclusion Efforts for
New Americans,’’ 86 FR 8277 (Feb. 5, 2021).
41 See 8 CFR 212.22(c).
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Comment: Several commenters stated
that it is immoral for immigration policy
to impoverish vulnerable individuals
and their family members who are
otherwise eligible for cash assistance,
physical and mental health care,
nutrition, or housing benefits. One
commenter remarked that targeting
social programs intended to help the
general public is a waste of resources,
and appears to suggest that the
government should instead focus on
people who are violating other laws.
Response: This rule is designed to
adhere to, and to implement,
congressional instructions. It is not
designed to impoverish individuals or
require individuals to prove their
particular utility to the U.S. economy.
Consistent with the statutory directive
to determine whether a noncitizen is
likely at any time to become a public
charge, this rule directs DHS to consider
the past or current receipt of public cash
assistance for income maintenance and
long-term institutionalization at
government expense. DHS will be doing
so in the totality of the noncitizen’s
circumstances, and will also take into
account the amount, duration, and
recency of such receipt. Nothing in this
rule directs noncitizens to stop
receiving any public benefit considered
in this rule, and past or current receipt
of public benefits is not alone
dispositive of whether or not a
noncitizen will be determined to be
inadmissible on the public charge
ground. While the commenter did not
explain why they thought this rule
targets social programs or in which way,
DHS disagrees with the statement that
the NPRM or this final rule ‘‘targets’’
social programs. Nothing in this rule
affects eligibility for any one or more
public benefits. Instead, DHS is simply
establishing which public benefits it
will consider in public charge
inadmissibility determinations. The
benefits that DHS is considering in this
rule are the benefits it believes are more
indicative of whether a noncitizen is
likely to become primarily dependent
on the government for subsistence.
DHS is also seeking to ensure that to
the extent consistent with law, the rule
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will not unduly interfere with the
receipt of public benefits, especially by
those who are not subject to the public
charge ground of inadmissibility. DHS
has given consideration to the potential
chilling effects of promulgating
regulations governing the public charge
inadmissibility determination. In
considering such effects, DHS has taken
into account the former INS’s approach
to chilling effects in the 1999 Interim
Field Guidance and 1999 NPRM, the
2019 Final Rule’s discussion of chilling
effects, judicial opinions on the role of
chilling effects, evidence of chilling
effects following the 2019 Final Rule (as
well as the minimal number of denials
of applications for adjustment of status
based on the public charge ground of
inadmissibility,42) and public comments
on chilling effects received in response
to the August 2021 ANPRM and the
NPRM. To this end, DHS has
determined that public charge
inadmissibility determinations will be
limited to the specified statutory factors;
the Affidavit of Support Under Section
213A of the INA where required; and
current and/or past receipt of TANF;
SSI; State, Tribal, territorial, or local
cash benefit programs for income
maintenance and long-term
institutionalization at government
expense.
Comment: A commenter stated that
noncitizens who enter the United States
on nonimmigrant visas for certain
periods of time have already shown that
they can provide for themselves and
these noncitizens also do not usually
have the right to obtain public benefits.
That commenter stated that the
likelihood those individuals would
become a public charge is extremely low
42 In the NPRM, DHS acknowledged that
notwithstanding ‘‘widespread indirect effects [of
the 2019 Final Rule], during the time that the 2019
Final Rule was in place, of the 47,555 applications
for adjustment of status to which the rule was
applied, DHS issued only 3 denials (which were
subsequently reopened and approved) and 2
Notices of Intent to Deny (which were ultimately
rescinded, and the applications were approved)
based on the totality of the circumstances public
charge inadmissibility determination under section
212(a)(4)(A)–(B) of the INA, 8 U.S.C. 1182(a)(4)(A)–
(B).’’ 87 FR at 10571 (Feb. 24, 2022).
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because they have no choice but to
support themselves or rely on their
families. The commenter also stated that
immigrants contribute to our society
economically and to limit immigration
is to limit economic growth, citing a
2019 report by the Center on Budget and
Policy Priorities.43 Another commenter
stated that DHS should do more to
reduce barriers to obtaining lawful
immigration status because doing so
also creates positive externalities,
including improved efficiency in the
labor market, the creation of new
business by immigrants, the filling of
less desirable labor positions and
economic gains from growth, earnings,
tax revenues and jobs.
Response: DHS agrees with the
commenter who pointed out that many
noncitizens, including those present in
the United States in nonimmigrant
status, are not eligible for certain public
benefits. PRWORA, which was passed
in 1996, significantly restricted
noncitizens’ eligibility for many
Federal, State, and local public
benefits.44 In the NPRM, DHS included
a table listing the major categories of
noncitizens eligible for SSI, TANF, or
Medicaid who would be subject to a
public charge inadmissibility
determination were they later to apply
for adjustment of status or admission to
the United States, unless another
statutory exemption applies that is
particular to their individual
circumstances.45 DHS presents the table
again here, for background purposes
only. The table should not be used to
determine benefits eligibility.46
43 See Arloc Sherman et al., ‘‘Immigrants
Contribute Greatly to U.S. Economy, Despite
Administration’s ‘Public Charge’ Rule Rationale,’’
Center on Budget and Policy Priorities (Aug. 15,
2019), https://www.cbpp.org/research/poverty-andinequality/immigrants-contribute-greatly-to-useconomy-despite-administrations (last visited July
7, 2022).
44 Public Law 104–193, tit. IV, 8 U.S.C. 1601
through 1646.
45 87 FR 10570, 10583 (Feb. 24, 2022).
46 DHS included this table in the NPRM and
welcomed proposed clarifications or corrections,
but received no substantive comments.
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DHS notes that while the commenter
focused on nonimmigrants, this rule
will apply only to noncitizens applying
for admission or adjustment of status.
As discussed elsewhere in this
preamble, including sections III.D.3.b.
and III.F., unlike the 2019 Final Rule,
this rule does not apply to
nonimmigrants seeking extension of
stay or change of status in the United
States.
DHS has concluded that this rule will
faithfully administer the public charge
ground of inadmissibility. As compared
to the 1999 Interim Field Guidance, the
rule does not necessarily reduce
burdens for applicants, but will provide
important clarity and predictability as
part of DHS’s overall efforts to reduce
barriers for applicants for admission and
adjustment of status. As compared to
the 2019 Final Rule, this rule does
reduce burdens, including the direct
paperwork burden imposed on
applicants. Under this rule, DHS will
not require a separate information
collection form regarding the public
charge ground of inadmissibility but
will instead incorporate a more
manageable set of questions in Form I–
485, Application to Register Permanent
Residence or Adjust Status, that will
collect public charge-related
information from applicants who are
subject to section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4).
DHS also notes that while the public
charge ground of inadmissibility and
this final rule include the consideration
of an applicant’s education and skills
when assessing the likelihood at any
time of becoming a public charge, DHS
is not engaging in an analysis of the
utility of a noncitizen to the U.S. labor
market nor assessing the impact of an
applicant for admission or adjustment of
status on the broader U.S. economy.
DHS addresses the economic impacts of
this rule later in this preamble.
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Comment: One commenter stated that
the rule places a disproportionate
burden on noncitizens to avoid
assistance, where U.S. citizens can use
cash assistance and long-term
institutionalization, such as a nursing
home, without penalty, and also stated
that using cash assistance and
institutionalization does not
automatically disqualify a person from
being a productive member of society.
Another commenter stated that the rule
imposes undue immigration restrictions.
Response: As a matter of law, the
public charge ground of inadmissibility
applies to noncitizens and not to
citizens. It is therefore not inconsistent
with law that a rule implementing the
public charge ground of inadmissibility
would affect noncitizens most directly.
In developing this rule, DHS has taken
into account the chilling effects
historically associated with the public
charge ground of inadmissibility 47 and
has created a rule that remains faithful
to the statutory text and the underlying
Congressional purpose, while remaining
cognizant of the provisions of PRWORA
restricting the use of certain public
benefits by certain groups of
noncitizens. In this final rule, DHS
specifically indicates that public charge
inadmissibility determinations must be
based on the totality of the individual’s
circumstances and no one factor, other
than the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
if required, should be the sole criterion
for determining an applicant is likely at
any time to become a public charge.48
Comment: One commenter stated that
this rule will effectively criminalize
poverty and correspond to an increased
number of noncitizens who reside in the
United States without lawful status
because those more likely to become
public charges in the future are not
47 See,
48 See
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8 CFR 212.22(b).
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likely to be able to afford the cost of
departing the United States.
Response: DHS disagrees that this rule
will effectively criminalize poverty. The
public charge ground of inadmissibility
is not a criminal statute, and only
applies to individuals when they apply
for visas, admission, or adjustment of
status. DHS is under an obligation to
faithfully administer section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), regardless
of whether DHS issues implementing
regulations.49 This rule is intended to
apply the public charge ground of
inadmissibility in a manner that is
consistent with the law, is clear, fair,
and comprehensible, and takes into
account the chilling effects resulting
from previous policies on both
noncitizens and U.S. citizens. DHS
notes that this rule does not create a
new ground of inadmissibility to which
noncitizens are subject.
It is unclear why the above
commenter believes that a rule
implementing the public charge ground
of inadmissibility would increase the
number of noncitizens who reside in the
United States unlawfully. The comment
implies a connection between the rule
discouraging public benefit use by
noncitizens and those noncitizens being
unable to afford the travel costs to
depart the United States. DHS notes that
the great majority of noncitizens are
either ineligible for the public benefits
covered by this rule prior to admission
or adjustment of status or are eligible for
those benefits but are exempt from a
public charge inadmissibility
determination under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4). Given this,
DHS believes it is unlikely that
noncitizens would remain in the United
States unlawfully as a result of the rule
49 In fact, the vast majority of the grounds of
inadmissibility at section 212 of the INA, 8 U.S.C.
1182, have not been implemented by regulation at
all, but are administered and enforced by DHS
based on the statute.
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rendering them unable to afford travel
costs as the commenter suggests.
Comment: Some commenters stated
that the rule is ‘‘ineffective’’ and will
encourage the use of public benefits by
noncitizens while rendering the public
charge ground of inadmissibility
‘‘useless.’’ Commenters wrote that, if
finalized, the rule will be an incentive
for more immigration to the United
States by noncitizens who will rely on
public benefits without fear of
repercussions as they build their lives in
the United States and eventually seek to
obtain lawful status. They further stated
that any changes to the proposed rule
that create the appearance of facilitating
access to public benefits will only
attract more immigration during a time
when many noncitizens are entering
unlawfully at the southern border.
Another commenter stated that
immigrant families may include many
family members, which can lead to
higher taxes at the State and local level
to support education if the children are
non-English speaking. Commenters
stated that the rule is more concerned
with chilling effects but should be
concerned with the national value of
self-sufficiency established by Congress
in more than a century of statutes, a
concern also addressed elsewhere in
this preamble.
Response: DHS disagrees that the rule
is ineffective or will encourage the use
of public benefits by noncitizens who
are subject to the public charge ground
of inadmissibility.
The rule establishes appropriate
definitions and regulatory standards,
and is accompanied by form changes
that will allow DHS to collect
information from applicants to make
determinations under the public charge
ground of inadmissibility. Under this
rule, DHS will determine whether any
noncitizen who Congress has decided is
subject to the public charge ground of
inadmissibility is likely at any time to
become primarily dependent on the
government for subsistence, as
demonstrated by either the receipt of
public cash assistance for income
maintenance or long-term
institutionalization at government
expense. In making this determination,
DHS considers the statutory factors, an
Affidavit of Support Under Section
213A of the INA if required, and the
applicant’s current and/or past receipt
of public cash assistance for income
maintenance or long-term
institutionalization at government
expense, in the totality of the
circumstances.50 It is apparent from
DHS’s approach in this rule, which
50 See
8 CFR 212.22(a).
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considers public benefits receipt both as
part of the definition for likely at any
time to become a public charge as well
as when making the public charge
inadmissibility determination in the
totality of the circumstances, that
commenters’ concern that this rule will
render the public charge ground of
inadmissibility ‘‘ineffective’’ or
‘‘useless’’ is unfounded.
DHS notes that the commenters’
preferred approach—the 2019 Final
Rule or something similar—ultimately
did not result in a single denial of
adjustment of status on public charge
grounds, although that rule apparently
resulted in widespread disenrollment
effects among those who were not
covered by that rule to begin with.51 To
the extent that commenters suggest that
the effectiveness of this rule should be
measured by disenrollment effects
among those who are not subject to the
public charge ground of inadmissibility,
or that DHS must pursue public charge
rulemaking for the sake of, or without
regard to, disenrollment effects among
that population, DHS respectfully
disagrees. Reducing costs by causing
confusion among those who are not
covered by the rule, leading them to
forgo benefits for which they are
eligible, would not be a desirable effect
even if the rule were found to have that
effect.
As discussed in the NPRM,52
noncitizens who are subject to the
public charge ground of inadmissibility
are generally not eligible for public
benefits. PRWORA significantly
restricted noncitizens’ eligibility for
many Federal, State, and local public
benefits.53 PRWORA defines the term
‘‘Federal public benefit’’ 54 and provides
that an ‘‘alien’’ who is not a ‘‘qualified
alien’’ is ineligible for such benefits,55
subject to certain exceptions.56 Among
the exceptions established by Congress
are eligibility among all noncitizens for
medical assistance for the treatment of
an emergency medical condition; shortterm, in-kind, non-cash emergency
disaster relief; and public health
assistance related to immunizations and
treatment of the symptoms of a
communicable disease.57 The
51 See,
e.g., 87 FR at 10589 (Feb. 24, 2022).
87 FR at 10580 (Feb. 24, 2022).
53 Public Law 104–193, tit. IV, 8 U.S.C. 1601
through 1646.
54 Public Law 104–193, sec. 401(c), 8 U.S.C.
1611(c).
55 Public Law 104–193, sec. 401(a), 8 U.S.C.
1611(a).
56 Public Law 104–193, sec. 401(b), 8 U.S.C.
1611(b).
57 See Public Law 104–193, sec. 401(b)(1), 8
U.S.C. 1611(b)(1). See ‘‘Final Specification of
Community Programs Necessary for Protection of
Life or Safety Under Welfare Reform Legislation,’’
52 See
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exceptions were further clarified by the
Department of Justice (DOJ) and some of
the agencies that administer these
public benefits. On January 16, 2001,
DOJ published a notice of final order,
‘‘Final Specification of Community
Programs Necessary for Protection of
Life or Safety Under Welfare Reform
Legislation,’’ 58 which indicated that
PRWORA does not preclude noncitizens
from receiving certain other widely
available programs, services, or
assistance as well as certain benefits and
services for the protection of life and
safety.
Under this rule, DHS will determine
if a noncitizen is likely at any time to
become primarily dependent on the
government for subsistence, as
demonstrated by either the receipt of
public cash assistance for income
maintenance or long-term
institutionalization at government
expense. This rule does not change
eligibility for public benefits. Rather,
officers will consider a noncitizen’s past
or current receipt of public cash
assistance for income maintenance or
long-term institutionalization at
government expense when making
public charge inadmissibility
determinations.
DHS also disagrees that the rule is
likely to meaningfully change the
overall volume of immigration,
including unlawful migration. This rule
certainly does not create any greater
incentive for unlawful migration than
PRWORA (which noted congressional
concern with such incentives, and also
created benefits eligibility rules for
noncitizens to address them, at least in
part) or the various subsequent statutory
exceptions to PRWORA’s general
framework. The commenters provided
no objective evidence that any of the
above policies resulted in a significant
increase in immigration, let alone
objective evidence that this rule will
have that effect. Even if this rule had a
minor effect on immigration, due to the
misperception that it alters the impact
of the receipt of benefits by noncitizens
residing in the United States
unlawfully, DHS would still issue it
because the rule is generally consistent
with longstanding agency policy and is
66 FR 3613 (Jan. 16, 2001); see also ‘‘Interim
Guidance on Verification of Citizenship, Qualified
Alien Status and Eligibility Under Title IV of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996,’’ 62 FR 61344 (Nov. 17,
1997).
58 See ‘‘Final Specification of Community
Programs Necessary for Protection of Life or Safety
Under Welfare Reform Legislation,’’ 66 FR 3613
(Jan. 16, 2001); see also ‘‘Specification of
Community Programs Necessary for Protection of
Life or Safety Under Welfare Reform Legislation,’’
61 FR 45985 (Aug. 30, 1996).
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a faithful interpretation of the statutory
phrase ‘‘likely at any time to become a
public charge’’; avoids unnecessary
burdens on applicants, officers, and
benefits-granting agencies; and mitigates
the possibility of widespread ‘‘chilling
effects’’ with respect to individuals
disenrolling or declining to enroll
themselves or family members in public
benefits programs for which they are
eligible, especially with respect to
individuals who are not subject to the
public charge ground of inadmissibility.
As previously noted, this rule has no
effect on the limited eligibility of
noncitizens for public benefits under
PRWORA or any other statute, and for
this reason does not have an impact on
the availability of public benefits to
noncitizens in the United States. Nor
should it create an incentive for
immigration to the United States.
DHS acknowledges that some noncash benefits programs involve
significant expenditures of government
funds, but has concluded that the term
‘‘public charge’’ is best interpreted by
reference to the degree of an
individual’s dependence on the
government for support, rather than the
scale of overall government
expenditures for particular programs.
DHS further discusses the impact of this
rule on States’ social welfare budgets
later in this preamble.
Finally, DHS notes that the
commenter provided no data or sources
for their statement that immigrants have
larger families, which can lead to higher
State and local taxes based on education
costs. Under this rule, DHS will
consider family status and household
size as consistent with the standards in
the proposed rule to determine whether
an individual is likely at any time to
become a public charge; it will not rely
on generalizations about the relative
size of immigrant households when
considering family status.
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D. Comments Regarding Legal Authority
and Statutory Provisions
1. Statutory Text, Congressional Intent,
and the Proposed Rule
Comment: Some commenters said that
DHS should be focused on selfsufficiency, with some stating that the
rule contradicts Congress’ intent, as set
forth in 8 U.S.C. 1601,59 that
noncitizens be self-sufficient, and not
rely on public resources to meet their
needs, but instead rely on their own
skills and the resources of their families,
their sponsors, and private
organizations. These commenters
further stated that the rule is
59 Public
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inconsistent with 8 U.S.C. 1601 because
it incentivizes immigration through the
availability of public benefits rather
than addressing ‘‘the government’s
interest in ensuring noncitizens are selfreliant in accordance with national
immigration policy.’’ Another
commenter stated that current eligibility
rules for public assistance and
unenforceable financial support
agreements have not lived up to the
intent of the laws to prevent individual
noncitizens burdening the public
benefits system. A commenter also
stated that the role of the Executive
Branch is to enforce the laws written by
Congress, and suggested that this rule is
not enforcing section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), and is
suspending and dispensing with the
ground. A commenter stated that the
rule’s interpretation of public charge
violates the statute’s text, intent, and
legislative history. A commenter stated
that the proposed rule ‘‘fails to address
the compelling government interest to
enact new rules for eligibility and
sponsorship agreements in order to
assure that noncitizens be self-reliant in
accordance with national immigration
policy.’’ The commenter also requested
DHS remove the ‘‘incentives’’ of the
proposed rule and instead provide
enforceable consequences to prevent
further abuse of already strained public
resources.
Response: USCIS agrees that selfsufficiency is a principle discussed in 8
U.S.C. 1601,60 and that subsection (2) of
this provision states that ‘‘it continues
to be the immigration policy of the
United States that aliens within the
Nation’s borders not depend on public
resources to meet their needs.’’ 61 DHS
disagrees that this rule contradicts
Congress’ intent with respect to those
principles. The principles of selfsufficiency articulated in 8 U.S.C.
1601(2) are reflected in a range of
statutory measures including, most
directly, those measures specifically
referenced in 8 U.S.C. 1601 itself. In that
section, immediately after articulating
the above policy, Congress—
• expressed concern that ‘‘[d]espite
the principle of self-sufficiency, aliens
have been applying for and receiving
public benefits from Federal, State, and
local governments at increasing
rates’’; 62
• concluded that ‘‘[c]urrent eligibility
rules for public assistance and
unenforceable financial support
agreements have proved wholly
incapable of assuring that individual
U.S.C. 1601(1).
U.S.C. 1601(2)(A).
62 8 U.S.C. 1601(3) (emphasis added).
aliens not burden the public benefits
system’’; 63
• identified ‘‘a compelling
government interest to enact new rules
for eligibility and sponsorship
agreements in order to assure that aliens
be self-reliant in accordance with
national immigration policy,’’ and ‘‘to
remove the incentive for illegal
immigration provided by the availability
of public benefits’’; 64 and
• stated that ‘‘[w]ith respect to the
State authority to make determinations
concerning the eligibility of qualified
aliens for public benefits in this chapter,
a State that chooses to follow the
Federal classification in determining the
eligibility of such aliens for public
assistance shall be considered to have
chosen the least restrictive means
available for achieving the compelling
governmental interest of assuring that
aliens be self-reliant in accordance with
national immigration policy.’’ 65
In short, Congress tied the statement
of national policy most closely to two
types of actions that have already been
taken by Congress itself: further
restrictions on noncitizen eligibility for
public benefits and enhanced
enforceability of the Affidavit of
Support Under Section 213A of the INA.
Neither of those actions is changed at all
by this rule, nor does this rule interfere
in any respect with a State’s ability to
follow the Federal classification in
determining the eligibility of
noncitizens for public assistance.
DHS acknowledges a relationship
between the statement of national policy
and the public charge ground of
inadmissibility. The two statutes relate
to a similar subject matter; Congress has
tied the Affidavit of Support Under
Section 213A of the INA to the public
charge ground of inadmissibility; and
Congress enacted the statement of
national policy close in time with
revisions to the public charge ground of
inadmissibility. But Congress left it to
DHS (and other agencies administering
the public charge ground of
inadmissibility) to specify how best to
account for this statement of national
policy in the context of a public charge
inadmissibility determination generally.
DHS notes that while the policy goals
articulated in 8 U.S.C. 1601(2) with
respect to self-sufficiency and the
receipt of public benefits inform DHS’s
administrative implementation of the
public charge ground of inadmissibility,
DHS believes it is permitted to consider
other important goals in implementing
this ground of inadmissibility, such as
60 8
63 8
61 8
64 8
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U.S.C. 1601(4) (emphasis added).
U.S.C. 1601(5)-(6) (emphases added).
65 8 U.S.C. 1601(7) (emphasis added).
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clarity, fairness, national resilience, and
administrability. Moreover, DHS
believes that this rule is consistent with
the goals set forth in 8 U.S.C. 1601.66
Indeed, the rule’s consideration of
receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense helps ensure that DHS focuses
its public charge inadmissibility
determinations on applicants who are
likely to become primarily dependent
on the government for subsistence. As
with all grounds of inadmissibility, DHS
is bound to administer and enforce the
public charge ground of inadmissibility,
but DHS is not bound to issue
regulations with respect to each and
every ground. In fact, such regulations
are exceedingly rare. To whatever extent
8 U.S.C. 1601(2) calls for a more
systematic implementation of the public
charge ground of inadmissibility, DHS
has accomplished that goal through this
rulemaking.
DHS also disagrees that, in publishing
this rule, it is declining to enforce
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), and is suspending and
dispensing with the ground of
inadmissibility. Contrary to this
commenter’s assertion, and as noted in
the NPRM,67 this rule reflects DHS’s
faithful administration of the public
charge ground of inadmissibility
without making it needlessly difficult
for individuals to apply for adjustment
of status or obtain supplemental
services for which they are eligible. This
rule is wholly consistent with section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
and 8 U.S.C. 1601, as well as
longstanding case law (as discussed at
length below), mirrors the approach the
Executive Branch used in enforcing the
provision for two decades, and provides
a rule that is clear and fair to
administer.
In addition, while commenters state
that DHS has failed to adequately
account for government interests and
the costs of noncitizens receiving public
benefits, commenters critical of the
proposed policy have not provided data
that illustrate how and to what extent
noncitizens subject to the public charge
ground of inadmissibility are drawing
on limited government resources that
fund the public benefit programs DHS is
excluding from consideration in public
charge inadmissibility determinations.
Furthermore, as DHS explained in the
NPRM, even during the period when the
2019 Final Rule was in effect, when
DHS took into consideration a broader
list of public benefits, that approach
66 87
67 87
FR at 10611 (Feb. 24, 2022).
FR at 10611 (Feb. 24, 2022).
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ultimately did not result in any denials
of applications for adjustment of status
based on the public charge ground of
inadmissibility.
With respect to public comments that
stated that current sponsorship
agreements are ‘‘unenforceable’’ and
that DHS has failed to propose or enact
new rules for eligibility and sponsorship
agreements to assure that noncitizens be
self-reliant in accordance with national
immigration policy, such comments are
largely outside the scope of the
proposed rule, which (like the 2019
Final Rule) did not include any changes
on those topics. In addition, DHS notes
that an Affidavit of Support Under
Section 213A of the INA is enforceable
by statute.68 Although DHS may issue
regulations governing the Affidavit of
Support process, Congress has not
tasked DHS with the enforcement of the
Affidavit of Support Under Section
213A of the INA; such enforcement may
be sought by the sponsored immigrant
or by ‘‘the appropriate nongovernmental
entity which provided such benefit or
the appropriate entity of the Federal
Government, a State, or any political
subdivision of a State.’’ 69
The commenters who opposed the
proposed rule on this basis also did not
provide data showing how many
sponsored immigrants 70 actually
receive public benefits, and how often
benefits-granting agencies have enforced
sponsorship obligations.71
While DHS agrees that it did not
propose in the NPRM to enact new rules
related to the Affidavit of Support
Under Section 213A of the INA, and
notwithstanding that, changes to the
Affidavit of Support regulations at 8
CFR part 213a would be outside the
scope of this rulemaking, DHS observes
that such changes would not be
necessary to ensure that applicants for
68 INA
sec. 213A, 8 U.S.C. 1183a.
sec. 213A(a)(1)(B), (b)(1)(A); 8 U.S.C.
1183a(a)(1)(B), (b)(1)(A).
70 See 8 CFR 213a.1 (‘‘Sponsored immigrant
means any alien who was an intending immigrant,
once that person has been lawfully admitted for
permanent residence, so that the affidavit of
support filed for that person under this part has
entered into force.’’).
71 DHS notes that in a proposed rule, ‘‘Affidavit
of Support on Behalf of Immigrants,’’ 85 FR 62432
(Oct. 2, 2020), which was withdrawn on March 22,
2021, see ‘‘Affidavit of Support on Behalf of
Immigrants,’’ 86 FR 15140 (Mar. 22, 2021), DHS
acknowledged that it did ‘‘not have data on
reimbursement efforts or successful recoveries by
benefits granting agencies. USCIS receives limited
information from benefit granting agencies or other
parties enforcing the Affidavit [Of Support Under
Section 213A of the INA or Contract [Between
Sponsor and Household Member], despite the
information sharing provisions in the statute and
regulations and thus is unable to determine whether
the proposed rule’s benefits are likely to exceed its
costs.’’ See ‘‘85 FR at 62453 (Oct. 2, 2020).
69 INA
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admission or adjustment of status will
not become primarily dependent on the
government for subsistence. This is
because determining whether an
applicant is likely at any time to become
a public charge based on a review of the
statutory minimum factors is separate
and distinct from both determining the
sufficiency of an Affidavit of Support
Under section 213A of the INA and
enforcing the sponsorship obligation
and related reimbursement
requirements that attach once the
intending immigrant is admitted as a
lawful permanent resident (although, as
noted throughout this rule, there is a
relationship between the two statutes,
and the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
if required, renders a noncitizen
inadmissible under the public charge
ground of inadmissibility).
Furthermore, the obligations and
requirements related to the affidavit do
not go into effect until after the public
charge inadmissibility determination
has already been made and the
intending immigrant has been admitted
as an immigrant or granted adjustment
of status. Even if changes to such
regulations had been contemplated in
the proposed rule, DHS would decline
to include any provisions regarding
enforcement of the support obligation as
part of the public charge inadmissibility
determination, in part because they
would be unduly cumbersome to
incorporate into the predictive public
charge inadmissibility determination.
Comment: One commenter expressed
support for the rule, noting that
diminishing chilling effects among
groups of immigrants who are eligible
for public benefits and not subject to the
public charge ground of inadmissibility
serves both the public welfare and
Congressional intent, as stated in 7
U.S.C. 2011 and the United States
Housing Act of 1937. The commenter
cited 7 U.S.C. 2011, quoting the statute
stating that ‘‘[i]t is declared to be the
policy of Congress, in order to promote
the general welfare, to safeguard the
health and well-being of the Nation’s
population by raising levels of nutrition
among low-income households.’’ The
commenter also cited and quoted the
United States Housing Act of 1937
stating that assistance under the
Housing Act advances ‘‘the national
policy of the United States to promote
the general welfare’’ to help States and
localities ‘‘remedy the unsafe and
insanitary housing conditions and the
acute shortage of decent, safe, and
sanitary dwellings for families of low
income, in rural or urban communities,
that are injurious to the health, safety,
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and morals of the citizens of the
Nation.’’ 72
Response: In promulgating this final
rule, DHS is implementing the public
charge ground of inadmissibility in a
way that is consistent with the statutory
text of and Congressional intent
underlying section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), while also ensuring
that the implementing regulations are
clear, fair, and understandable for the
public and officers. As discussed in the
NPRM, when deciding which public
benefits to consider when looking at
past or current receipt of public benefits
for the purpose of making public charge
inadmissibility determinations, DHS
determined that it should not consider
special purpose and supplemental
programs such as SNAP and affordable
housing programs. DHS agrees with the
commenter that programs such as SNAP
and housing assistance contribute to the
well-being of both low-income
individuals and communities at large
and assist individuals in ultimately
depending on themselves and their
families and sponsors rather than the
government for subsistence. While DHS
notes that very few categories of
noncitizens who are subject to the
public charge ground of inadmissibility
are eligible for SNAP and housing
benefits, DHS notes that the exclusion of
SNAP and housing benefits from public
charge inadmissibility determinations
may also reduce the chilling effects
among individuals who are not subject
to the public charge ground of
inadmissibility but who were deterred
from enrolling or continuing to receive
those benefits due to confusion about
the 2019 Final Rule.
Comment: Several commenters stated
that the rule ignores Congressional
intent dating back to the late nineteenth
century, relies on interim guidance that
was never meant to be the equivalent of
a final rule, and seeks to narrowly
define critical concepts including
‘‘public charge’’ and the types of public
benefits used in a public charge
inadmissibility determination.
Response: First, DHS disagrees with
the commenters who argued that the
NPRM’s definition of ‘‘public charge’’
conflicts with longstanding
Congressional intent. Further discussion
of how the NPRM’s and this rule’s
standard aligns with long-standing
congressional intent is discussed below
in this same section in response to other
comments.
In addition, DHS disagrees with how
these commenters characterized the
government’s longstanding policy with
72 Public Law 75–412, sec. 1, 50 Stat. 888, 888
(Sept. 1, 1937).
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respect to the public charge ground of
inadmissibility. While DHS
acknowledges that the 1999 Interim
Field Guidance was interim guidance
and not a final rule, the Government has
interpreted the public charge ground of
inadmissibility consistent with that
guidance for over 20 years, with the
exception of the short period of time
during which the 2019 Final Rule was
in effect. Accordingly, it is reasonable
that DHS reviewed and considered the
guidance’s provisions when developing
the NPRM and this rule. At the same
time, DHS disagrees with any
insinuation by commenters that DHS
did not independently consider the
merits of the guidance when developing
this rule. Although this rule ultimately
adopts portions of the guidance as
regulations, DHS did not simply adopt
the guidance wholesale without further
analysis, and, in fact, there are a number
of differences between the guidance and
this rule.73 Ultimately, as explained in
the NPRM, DHS believes that the
approach taken by the 1999 Interim
Field Guidance, as further refined in the
NPRM and this final rule, reflects a
reasonable interpretation of the public
charge ground of inadmissibility and is
consistent with the statutory text and
with Congressional intent, and
longstanding caselaw.
DHS has determined that not all
public benefits should be considered in
public charge inadmissibility
determinations because, among other
things, not all benefits are equally
indicative of primary dependence on
the government for subsistence. For one
thing, as discussed in more detail later
in the preamble, many modern public
benefit programs take the form of
payments or in-kind benefits to help
individuals meet particular needs and
are not limited to individuals without a
separate primary means of support. For
another, as both the 1999 Interim Field
Guidance and the NPRM explained,
under PRWORA, most noncitizens are
not eligible for most types of public
benefits. Moreover, most categories of
noncitizens eligible for public benefits
under PRWORA are also statutorily
exempt from the public charge ground
of inadmissibility.74 In addition, and as
73 See, e.g., 8 CFR 212.22(a)(4) (providing specific
guidance that was not in the 1999 guidance
regarding the treatment of disabilities in the context
of public charge adjudications); 8 CFR 212.21
(providing definitions for key terms, including
‘‘receipt (of public benefits)’’and ‘‘household.’’).
74 See, e.g., Cook County v. Wolf, 962 F.3d 208,
236–37 (7th Cir. 2020) (Barrett, J., dissenting) (‘‘The
upshot is that the [2019 Final Rule] will rarely
apply to a noncitizen who has received benefits in
the past . . . . Notwithstanding all of this, many
lawful permanent residents, refugees, asylees, and
even naturalized citizens have disenrolled from
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discussed in more detail elsewhere in
this rule, some public benefits like
public housing and SNAP assist
individuals and families to remain
employed and support themselves and
their families but are on their own
insufficient to meet all or even a
substantial portion of their needs. This
point is illustrated in the case of SNAP;
as USDA informed DHS in its on-therecord letter, SNAP is supplemental in
nature; SNAP benefits are relatively
modest; and most SNAP supports
work.75 In short, the benefits excluded
from consideration under this rule are
less probative of primary dependence
than the benefits that are considered;
their consideration would add scant
value for officers while—as detailed
elsewhere—deterring noncitizens and
their families (including U.S. citizens
and those not subject to the public
charge ground of inadmissibility) from
seeking benefits for which they are
eligible. Nothing in the statute dictates
that receipt of such supplemental or
special-purpose benefits must be
considered for public charge
inadmissibility determinations.
Comment: One commenter stated
concern that the proposed rule
mentioned that ‘‘Congress has sought to
exclude noncitizens who pose a threat
to the safety or general welfare of the
country,’’ and expressed concern that
such exclusion may be based on a range
of acts, conditions, or conduct that
would cause a noncitizen to be
excluded during a public charge
inadmissibility determination.
Response: This comment quotes the
NPRM, which in turn quotes Fiallo v.
Bell,76 for the encapsulation of the
government’s general authority over
inadmissibility and exclusion of
noncitizens from the United States.
While this statement is contained in the
NPRM, it was not intended to suggest
that public charge inadmissibility
determinations would be based on an
unspecified range of acts, conditions,
and conduct. Rather the NPRM, and the
regulatory text in particular, included
relevant definitions and factors that
would be considered were the proposal
government-benefit programs since the public
charge rule was announced. Given the complexity
of immigration law, it is unsurprising that many are
fearful about how the rule might apply to them.
Still, the pattern of disenrollment does not reflect
the rule’s actual scope.’’).
75 See Letter from USDA Deputy Under Secretary
on Public Charge (Feb. 15, 2022), https://
www.regulations.gov/document/USCIS-2021-00130199 (last visited July 12, 2022).
76 430 U.S. 787, 787 (1977) (‘‘The Supreme Court
has ‘long recognized [that] the power to expel or
exclude aliens [i]s a fundamental sovereign
attribute exercised by the Government’s political
departments largely immune from judicial
control.’ ’’).
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contained therein to be finalized in a
final rule. Such definitions and factors
are also in this final rule. USCIS intends
to issue additional guidance for officers
and the public to further clarify how
these definitions and factors should be
applied in individual public charge
inadmissibility determinations.
Comment: One commenter stated that
the rule’s definition of ‘‘likely at any
time to become a public charge’’ is in
line with Congressional intent and that
the public charge test was never
designed to prevent immigration of lowand moderate-income families who may
at some point need access to public
programs to overcome temporary
setbacks. In addition, twenty-six
members of Congress submitted a joint
comment from the House Judiciary
Committee indicating that the rule is
consistent with the intent of Congress to
apply the public charge ground of
inadmissibility to those who are
primarily dependent on the government
for subsistence, and urged DHS to
finalize the rule as it will provide
certainty to applicants and petitioners
navigating our immigration system.
Another commenter stated that DHS
should reject any assertion that the
definitions of ‘‘public charge’’ in the
1933 and 1951 editions of Black’s Law
Dictionary, and a 1929 immigration
treatise, Arthur Cook et al., Immigration
Laws of the United States § 285 (1929)),
show that receipt of ‘‘any’’ amount of
public benefits historically rendered the
recipient a public charge. The
commenter stated that all three of these
sources mistakenly rely on a single case,
Ex Parte Kichmiriantz (involving a
noncitizen who had been
institutionalized and was ‘‘unable to
care for himself in any way.’’).77 The
commenter stated that contrary to what
the three sources indicate, Kichmiriantz
reflects the consistent historical focus of
the term on those unable to care for
themselves and without other support.
Response: DHS generally agrees with
these commenters. As an initial matter,
DHS acknowledges that Congress has
never, in enacting or reenacting the
public charge ground of inadmissibility,
defined ‘‘public charge,’’ ‘‘likely to
become a public charge,’’ or ‘‘likely at
any time to become a public charge.’’ In
the 1996 amendments, Congress
specified which factors, at a minimum,
the relevant government agencies must
consider when making public charge
inadmissibility determinations;
Congress did not provide a specific
definition of the term ‘‘public charge’’ or
the phrase ‘‘likely at any time to become
a public charge.’’ In addition, Congress
77 283
F. 697 (N.D. Cal. 1922).
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has long made clear that DHS has broad
discretion to administer and interpret
the statute. The statute itself uses the
words ‘‘in the opinion of,’’ which
emphasizes the discretionary nature of
the determination.78 The INA also
authorizes the Secretary of Homeland
Security to promulgate rules to guide
public charge inadmissibility
determinations.79
In the 2018 proposed rule, DHS
indicated that its understanding of the
term ‘‘public charge’’ is consistent with
various dictionary definitions of that
term.80 DHS stated that the [then]
current edition of the Merriam-Webster
Dictionary defines public charge simply
as ‘‘one that is supported at public
expense.’’ 81 DHS further relied on
Black’s Law Dictionary (6th ed.) that
further defines public charge as ‘‘an
indigent; a person whom it is necessary
to support at public expense by reason
of poverty alone or illness and
poverty.’’ 82 In addition, DHS indicated
that the term ‘‘charge’’ is defined in
Merriam-Webster Dictionary as ‘‘a
person or thing committed into the care
of another’’ 83 and Black’s Law
Dictionary defines charge as ‘‘a person
or thing entrusted to another’s care,’’
e.g., ‘‘a charge of the estate.’’ 84 DHS
concluded that the definitions generally
suggest that an impoverished or ill
individual who receives public benefits
for a substantial component of their
support and care can be reasonably
viewed as being a public charge. DHS
also concluded that the then-proposed
definition of public charge was also
consistent with the concept of an
indigent, which is defined as ‘‘one who
is needy and poor . . . and ordinarily
indicates one who is destitute of means
78 INA
sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
80 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 51114, 51158 (Oct. 10, 2018) (‘‘DHS believes
that a person should be considered a public charge
based on the receipt of financial support from the
general public through government funding (i.e.,
public benefits). This is consistent with various
dictionary definitions of public charge and ‘charge’
also support a definition that involves the receipt
of public benefits.’’).
81 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 51114, 51158 (Oct. 10, 2018) (citing MerriamWebster Online Dictionary, Definition of Public
Charge, https://www.merriamwebster.com/
dictionary/public%20charge).
82 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 51114, 51158 (Oct. 10, 2018) (citing Black’s
Law Dictionary 233 (6th ed. 1990), https://
www.republicsg.info/dictionaries/1990_black’s-lawdictionary-edition6.pdf).
83 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 51114, 51158 (Oct. 10, 2018) (citing MerriamWebster Online Dictionary, Definition of Charge,
https://www.merriamwebster.com/dictionary/
charge).
84 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 51114, 51158 (Oct. 10, 2018) (citing Black’s
Law Dictionary, Charge (10th ed. 2014)).
79 INA
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of comfortable subsistence so as to be in
want.’’ 85 In the 2019 Final Rule, DHS
rejected commenters’ assertions that its
reliance on dictionary definitions
referenced in the proposed rule was
flawed because DHS failed to consider
the definition of the term ‘‘support,’’
which Merriam-Webster defined as
‘‘pay[ing] the cost of’’ or ‘‘provid[ing] a
basis for the existence or subsistence
of.’’ 86 DHS indicated that the dictionary
definitions did not specify the degree of
assistance, noting that the MerriamWebster’s dictionary also defines
‘‘support’’ as ‘‘assist, help.’’ 87
DHS continues to conclude that
dictionary definitions of the relevant
terms do not dictate a specific meaning
of the term ‘‘public charge’’ nor clearly
prescribe the level of dependence on the
government necessary to render a
person a public charge. Although many
dictionary definitions suggest primary
or total dependence on the government
for subsistence, others may be read to
suggest a lesser level of dependence.88
The legislative history at the time of
the first introduction of a public charge
ground of inadmissibility also does not
establish a specific definition of the
term ‘‘public charge.’’ Congress first
included a public charge ground of
inadmissibility in the Immigration Act
of 1882, which prohibited the entry,
inter alia, of ‘‘any person unable to take
care of himself or herself without
becoming a public charge.’’ 89 Debate in
85 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 51114, 51158 (Oct. 10, 2018) (citing Black’s
Law Dictionary 773 (6th ed. 1990), https://
www.republicsg.info/dictionaries/1990_black’s-lawdictionary-edition6.pdf).
86 ‘‘Inadmissibility and Deportability on Public
Charge Grounds,’’ 84 FR 41292, 41354 (Aug. 14,
2019) (citing Webster’s Dictionary 1828 Online
Edition, definition of ‘‘charge,’’ https://websters
dictionary1828.com/Dictionary/charge).
87 ‘‘Inadmissibility and Deportability on Public
Charge Grounds,’’ 84 FR 41292, 41354 (Aug. 14,
2019) (citing Merriam-Webster Online Dictionary,
Definition of Support, https://
www.merriamwebster.com/dictionary/support).
88 See also, e.g., Cook County v. Wolf, 962 F.3d
208, 223 (7th Cir. 2020) (‘‘Enter the dueling
dictionaries. In Cook County’s corner, we have the
Century Dictionary, defining a ‘charge’ as a person
who is ‘committed to another’s custody, care,
concern or management,’ Century Dictionary 929
(William Dwight Whitney, ed., 1889) (emphasis
added); and Webster’s Dictionary, likewise defining
a ‘charge’ as a ‘person or thing committed to the
care or management of another,’ Webster’s
Condensed Dictionary of the English Language 84
(Dorsey Gardner, ed., 1884). These suggest primary,
long-term dependence. In DHS’s corner, we have
dictionaries defining a ‘charge’ as ‘an obligation or
liability,’ as in a ‘pauper being chargeable to the
parish or town,’ Dictionary of Am. and English Law
196 (Stewart Rapalje & Robert Lawrence, eds.,
1888); and as a ‘burden, incumbrance, or lien,’
Glossary of the Common Law 56 (Frederic Jesup
Stimson, ed., 1881). These definitions can be read
to indicate that a lesser reliance on public benefits
is enough. Finding no clarity here, we move on.’’).
89 22 Stat. 214.
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the House of Representatives at the time
of enactment indicates that Congress
was concerned about preventing the
future immigration to the United States
of people who would depend on or
would be ‘‘committed to’’ the country’s
‘‘poor-houses and alms-houses.’’ 90 The
record—which relates to a broader list
of grounds of inadmissibility, of which
public charge was only one—contains
references to people committed to poorhouses and almshouses, paupers, and
people who had no earnings in recent
years and were wholly destitute, all of
whom would likely be covered by the
definition adopted in this final rule.
Over the years, judicial decisions
interpreting the public charge ground
generally did not focus exclusively on
whether noncitizens seeking admission
or adjustment of status had low earnings
or were impoverished at the time of the
inadmissibility determination. Rather,
officers focused on whether,
notwithstanding the current condition
of poverty, noncitizens could
prospectively support themselves. For
example, in In re Feinknopf, a federal
district court suggested that evidence
regarding an individual’s age,
profession, presence of family members,
assets, and future employability are
relevant to determining whether an
immigrant is likely to become a public
charge.91
In Gegiow v. Uhl, the Supreme Court
concluded that a noncitizen could not
‘‘be declared likely to become a public
charge on the ground that the labor
market in the city of his immediate
destination is overstocked.’’ 92 The court
found that ‘‘[t]he persons enumerated,
in short, are to be excluded on the
ground of permanent personal
objections accompanying them
irrespective of local conditions.’’ 93 In
the 2019 Final Rule, DHS concluded
that Gegiow did not conclusively
establish the contours of the public
charge ground of inadmissibility.94 DHS
continues to hold that view, but believes
that the Supreme Court’s statements
there about the public charge ground are
nevertheless supportive of the
interpretation adopted in this final rule.
In 1917, Congress amended the public
charge provision by moving it to the end
of a list of factors rendering an ‘‘alien’’
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90 13
Cong. Rec. 5109 (1882).
F. 447, 447, 451 (E.D.N.Y. 1891). The court
held that ‘‘there must be a determination by the
inspection officer of the fact that the immigrant is
likely to become a public charge, made upon
competent evidence tending to show such to be the
fact . . . .’’
92 239 U.S. 3, 9–10 (1915).
93 239 U.S. at 10 (1915).
94 84 FR 41292, 41350 n.317 (Aug. 14, 2019).
91 47
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inadmissible.95 The revised statute
rendered inadmissible, among others,
‘‘persons . . . who are . . . mentally or
physically defective, such physical
defect being of a nature which may
affect the ability of such alien to earn a
living; persons who have been
convicted of or admit having committed
a felony or other crime or misdemeanor
involving moral turpitude; polygamists,
or . . . persons likely to become a
public charge.’’ 96 Legislative history
suggests that Congress may have done
so ‘‘in order to indicate the intention
. . . that aliens shall be excluded upon
[the public charge] ground for economic
as well as other reasons’’ and did so,
specifically, ‘‘to overcom[e] the decision
of the Supreme Court in [Gegiow].’’ 97
Even assuming that Congress moved the
placement of the public charge
provision to respond to Gegiow, it still
did not define ‘‘public charge’’ or
‘‘likely to become a public charge,’’
leaving the application of the provision
in the hands of immigration officials
and the executive branch.
DHS continues to believe that the
1917 amendments clarified that
Congress intended the Executive Branch
to consider something more than
‘‘permanent personal objections,’’ and
in particular to consider certain
economic factors, when making public
charge inadmissibility determinations,
and does not consider this decision as
limiting its discretion to find
individuals inadmissible even if there is
evidence that dependence on the
government is not complete or
permanent. DHS has not designated
local labor market conditions as a
regulatory factor to determine whether a
noncitizen is likely at any time to
become a public charge. DHS is
considering a noncitizen’s education
and skills, as evidenced by their
degrees, certifications, licenses, skills
obtained through work experience or
educational programs, and educational
certificates. DHS may also consider
other information in the record in the
totality of the circumstances, such as a
noncitizen’s work history, if applicable.
While there may be evidence that
factors into a factual conclusion that a
particular noncitizen is likely to be
wholly and/or permanently dependent
on the government for subsistence
95 In addition, Congress amended the immigration
laws three other times between the introduction of
the public charge ground in 1882 and 1917, but
none of the amendments provided a definition of
‘‘public charge.’’ See Act of Mar. 3, 1903, ch. 1012,
32 Stat. 1213; Act of Feb. 20, 1907, ch. 1134, 34
Stat. 898; Act of Mar. 26, 1910, ch. 128, 36 Stat. 263.
96 Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874,
875–76.
97 See 70 Cong. Rec. 3620 (1929).
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55497
(whether based on ‘‘immutable’’
characteristics or not), DHS’s inquiry
under this rule is broader; under the
rule, DHS may determine that a person
is inadmissible on public charge
grounds even when the record suggests
a level of dependence that is less than
complete or permanent.
In Wallis v. United States ex rel.
Mannara, the Second Circuit defined a
person likely to become a public charge
as ‘‘one whom it may be necessary to
support at public expense by reason of
poverty, insanity and poverty, disease
and poverty, idiocy and poverty.’’ 98 In
that case, the immigrant family’s
primary income earner was ‘‘certified
for senility’’ and thus would not be
‘‘capable of continued self-support.’’ 99
The court noted that the family had
‘‘insufficient [means] to provide for
their necessary wants [for] any
reasonable length of time’’ and no
private sources of support.100 Similarly,
in Howe v. United States ex rel.
Savitsky, immigration officers sought to
exclude a noncitizen under the public
charge ground because the noncitizen
engaged in a dishonest practice (writing
a bad check, and being accused of
selling another person’s equipment and
keeping the proceeds). The Ninth
Circuit indicated that it was ‘‘convinced
that Congress meant the act to exclude
persons who were likely to become
occupants of almshouses for want of
means with which to support
themselves in the future. If the words
covered jails, hospitals, and insane
asylums, several of the other categories
of exclusion would seem to be
unnecessary.’’ 101 And in Ex parte
Hosaye Sakaguchi, the Ninth Circuit
held that an immigrant woman with the
skills to support herself was not likely
to become a public charge.102 It ruled
that the government had to present
evidence of ‘‘mental or physical
disability or any fact tending to show
that the burden of supporting the
[immigrant] is likely to be cast upon the
public.’’ 103 The court in that case did
not explain how much of a burden on
the government would make a person a
public charge. In the 2019 Final Rule,
DHS indicated that it was aware of the
Howe and Sakaguchi decisions but that
it did not believe that these cases are
inconsistent with the public charge
definition set forth in the 2019 Final
Rule or with the suggested link between
public charge and the receipt of public
98 273
F. 509, 510–11 (2d Cir. 1921).
F. at 510 (2d Cir. 1921).
100 273 F. at 510 (2d Cir. 1921).
101 247 F. 292, 294 (9th Cir. 1917).
102 277 F. 913, 916 (9th Cir. 1922).
103 277 F. at 916 (9th Cir. 1922).
99 273
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benefits.104 DHS expressed a belief that
courts generally have quantified neither
the level of public support nor the type
of public support required for purposes
of a public charge inadmissibility
finding.105 DHS continues to agree with
that broad statement; DHS further
believes that judicial and administrative
decisions since the enactment of the
public charge provision are clearly
consistent with a primary dependence
standard in that they focus on a
noncitizen’s ability to support
themselves, without treating the
possibility that the noncitizen might
need publicly subsidized medical care
at a hospital, for example, as sufficient
to demonstrate that the immigrant is
likely to become a public charge.
In United States ex rel. De Sousa v.
Day, the Second Circuit stated that ‘‘[i]n
the face of [Gegiow] it is hard to say that
a healthy adult immigrant, with no
previous history of pauperism, and
nothing to interfere with his chances in
life but lack of savings, is likely to
become a public charge within the
meaning of the statute.’’ 106 This rule is
consistent with that decision as well.
In 1952, Congress amended the INA
in a way that uses the language of
discretion: it deemed inadmissible
immigrants ‘‘who, in the opinion of the
consular officer at the time of
application for a visa, or in the opinion
of the Attorney General at the time of
application for admission, are likely at
any time to become public charges.’’ 107
This language clarifies the temporal
dimension of the public-charge
determination, but it says nothing about
the degree of assistance required. In the
special legalization provision under the
Immigration Reform and Control Act
(IRCA),108 Congress did not define the
term ‘‘public charge,’’ but provided that
‘‘[a]n alien is not ineligible for
adjustment of status under [that
provision] due to being [a public charge]
if the alien demonstrates a history of
employment in the United States
evidencing self-support without receipt
of public cash assistance.’’ 109 The
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104 ‘‘Inadmissibility
on Public Charge Grounds,’’
84 FR 41292, 41350 (Aug. 14, 2019).
105 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41350 (Aug. 14, 2019).
106 22 F.2d 472, 473–74 (2d Cir. 1927).
107 An Act to Revise the Laws Relating to
Immigration, Naturalization, and Nationality; and
for Other Purposes, Public Law 82–414, sec.
212(a)(15), 66 Stat. 163, 183 (1952).
108 Immigration Reform and Control Act of 1986,
Public Law 99–603, 100 Stat. 3359.
109 Public Law 99–603, tit. II, sec. 201 (Nov. 6,
1986) (codified at section 245A(d)(2)(B)(ii)(IV) of
the INA, 8 U.S.C. 1255a(d)(2)(B)(ii)(IV)) (emphasis
added); see also id. at secs. 302, 303 (similar
provision for Special Agricultural Workers).
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Immigration Act of 1990 also lacked a
definition of ‘‘public charge.’’ 110
As noted above, in the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA),
Congress for the first time provided
guidance on what factors the
government agencies tasked with
administering the public charge ground
of inadmissibility must consider when
determining whether a noncitizen is
likely to become a public charge.111 The
amended provision instructs
government officials ‘‘at a minimum’’ to
look at age; health; family status; assets,
resources, and financial status; and
education and skills.112 They also could
consider whether an immigrant had an
Affidavit of Support Under Section
213A of the INA from a third party.113
Furthermore, Congress rejected a
proposal to define ‘‘public charge’’ to
cover ‘‘any alien who receives [meanstested public benefits] for an aggregate
of at least 12 months.’’ 114
During the same period that Congress
amended the public charge ground of
inadmissibility through IIRIRA to add
the consideration of certain factors and
enforceable affidavit of support
requirements, it also enacted
PRWORA.115 As DHS noted in the 2019
Final Rule, language in that statute
expresses Congress’s desire that
immigrants be self-sufficient and not
come to the United States with the
purpose of benefitting from public
welfare programs.116 To that end,
Chapter 14 of Title 8 of the U.S. Code
restricts most noncitizens from
eligibility for many federal and State
public benefits. It grants most lawful
permanent residents access to meanstested public benefits only after they
have spent five years as a lawful
permanent resident.117 But the
exclusions are not absolute. Congress
specified instead that immigrants may at
any time receive emergency medical
assistance; immunizations and testing
for communicable diseases; short-term,
in-kind emergency disaster relief;
various in-kind services such as shortterm shelter and crisis counseling; and
certain housing and community
development assistance.118
110 Public Law 101–649, sec. 601, 104 Stat. 4978,
5067.
111 Public Law 104–208, div. C, sec. 531, 110 Stat.
3009–546, 3009–674 (1996).
112 Public Law 104–208, div. C, sec. 531, 110 Stat.
3009–546, 3009–674 (1996).
113 Public Law 104–208, Div. C, sec. 531, 110 Stat.
3009–546, 3009–674 (1996).
114 142 Cong. Rec. 24313, 24425 (1996).
115 Public Law 104–193 (1996), 110 Stat. 2105.
116 8 U.S.C. 1601.
117 Public Law 104–193 (1996), secs. 401, 403,
411, 8 U.S.C. 1611, 1613, 1621, 110 Stat. 2105.
118 8 U.S.C. 1611, 1613, 1621.
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In addition, a series of administrative
decisions after the passage of the INA of
1952 clarified that more than a
possibility of receipt of public benefits
is needed to lead to a finding of
likelihood of becoming a public charge.
The cases focused on the presence of
more ‘‘permanent’’ characteristics along
with a relative lack of non-governmental
sources of support. In Matter of
Martinez-Lopez, the Attorney General
opined that the statute
require[d] more than a showing of a
possibility that the alien will require public
support. . . . A healthy person in the prime
of life cannot ordinarily be considered likely
to become a public charge, especially where
he has friends or relatives in the United
States who have indicated their ability and
willingness to come to his assistance in case
of emergency.119
Furthermore, in Matter of Perez, the
Board of Immigration Appeals (BIA)
held that ‘‘[t]he determination of
whether an alien is likely to become a
public charge . . . is a prediction based
upon the totality of the alien’s
circumstances at the time he or she
applies for an immigrant visa or
admission to the United States. The fact
that an alien has been on welfare does
not, by itself, establish that he or she is
likely to become a public charge.’’ 120
This decision supports DHS’s position
that evidence of past or current receipt
of public benefits, alone, is not outcome
determinative. In Matter of Harutunian,
the INS Regional Commissioner
determined that public charge
inadmissibility determinations should
take into consideration factors such as a
noncitizen’s age, incapability of earning
a livelihood, a lack of sufficient funds
for self-support, lack of persons in this
country willing and able to assure that
the noncitizen will not need public
support, and the expectation that the
noncitizen will depend on old age
assistance, a form of financial assistance
for low income older adults.121 In the
2019 Final Rule, DHS cited Harutunian
and Matter of Vindman 122 for the
general proposition that ‘‘[a]bsent a
clear statutory or regulatory definition,
119 10 I&N Dec. 409, 421–23 (BIA 1962; Att’y Gen.
1964) (emphasis added).
120 15 I&N Dec. 136, 137 (BIA 1974).
121 14 I&N Dec. 583, 583–89 (Reg’l Comm’r 1974)
(finding that the applicant who was 70 years old,
lacked means of supporting herself, had no one
responsible for her support, and who expected to
be dependent for support on old-age assistance was
ineligible for a visa, as likely to become a public
charge).
122 Matter of Vindman, 16 I&N Dec. 131, 132
(Reg’l Comm’r 1977) 132 (‘‘Congress intends that an
applicant be excluded who is without sufficient
funds to support himself, who has no one under
any obligation to support him, and whose chances
of becoming self-supporting decrease as time
passes’’).
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some courts and administrative
authorities have tied the public charge
ground of inadmissibility to the receipt
of public benefits.’’ 123 This remains
DHS’s view of those cases—i.e., that
they are indicative of the relatively wide
ambit of DHS’s interpretive authority—
although DHS also notes that both cases
involved receipt of cash assistance.
In the 1999 Interim Field Guidance,
the INS interpreted the 1996 statutory
scheme by defining ‘‘public charge’’ as
someone who is ‘‘primarily dependent
on the government for subsistence, as
demonstrated by either (i) the receipt of
public cash assistance for income
maintenance or (ii) institutionalization
for long-term care at government
expense.’’ 124 Consistent with an earlier
1987 rule addressing the IRCA 125
legalization program,126 and based on
input from benefits-granting agencies,
the 1999 Interim Field Guidance stated
that ‘‘officers should not place any
weight on the receipt of non-cash public
benefits (other than institutionalization)
or the receipt of cash benefits for
purposes other than for income
maintenance with respect to
determinations of admissibility or
eligibility for adjustment on public
charge grounds.’’ 127
Following PRWORA, later statutory
enactments lightened some of the
statutory restrictions on noncitizens
receiving benefits, in order to allow
additional categories of these
individuals to qualify for certain
benefits without a five-year waiting
period.128
Some of the courts in recent litigation
against the 2019 Final Rule generally
agreed that the meaning of the term
‘‘public charge’’ is ambiguous, that it
has evolved over time, and that
Congress granted wide discretion to the
Executive Branch to interpret that
term.129 DHS agrees with those
123 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41349 (Aug. 14, 2019).
124 ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689 (May 26, 1999).
125 Immigration Reform and Control Act of 1986,
Public Law 99–603, 100 Stat. 3359.
126 ‘‘Adjustment of Status for Certain Aliens,’’ 52
FR 16205, 16211–16212, 16216 (May 1, 1987).
127 ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689 (May 26, 1999).
128 See Farm Security and Rural Investment Act
of 2002, Public Law 107–171, sec. 4401, 116 Stat.
34, 333 (2002); Children’s Health Insurance
Program Reauthorization Act of 2009, Public Law
111–3, sec. 214, 123 Stat. 8, 56 (2009).
129 See Cook County v. Wolf, 962 F.3d 208, 226
(7th Cir. 2020) (‘‘[T]he question before us is not
whether Cook County has offered a reasonable
interpretation of the law. It is whether the statutory
language unambiguously leads us to that
interpretation. We cannot say that it does. As our
quick and admittedly incomplete overview of this
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principles. Other courts found that the
term ‘‘public charge’’ has an
unambiguous meaning and/or that the
2019 Final Rule definition was contrary
to the historical understanding of that
term.130 This conclusion likewise does
not preclude the rule at issue here.
With respect to commenters who
indicated that Ex parte Kichmiriantz 131
reflects the historical understanding of
the term public charge, and does not
contemplate a standard under which a
person is a public charge if they impose
any level of burden upon the public,
DHS agrees, although of course that
byzantine law has shown, the meaning of ‘public
charge’ has evolved over time as immigration
priorities have changed and as the nature of public
assistance has shifted from institutionalization of
the destitute and sick, to a wide variety of cash and
in-kind welfare programs. What has been consistent
is the delegation from Congress to the Executive
Branch of discretion, within bounds, to make
public-charge determinations.’’); id. at 248, 253
(Barrett, J., dissenting) (noting that ‘‘DHS could
have exercised its discretion differently’’ than it
chose to do in the 2019 Final Rule and that ‘‘the
term ‘public charge’ is indeterminate enough to
leave room for interpretation.’’); Casa de Maryland
v. Trump, 971 F.3d 220, 229 (4th Cir. 2020) (‘‘[T]he
public charge provision has led for almost a century
and a half a long and varied life, with different
administrations advancing varied interpretations of
the provision, depending on the needs and wishes
of the nation at a particular point in time. To be
sure, the public charge provision ties alien
admissibility to prospective alien self-sufficiency.
But within that broad framework, Congress has
charged the executive with defining and
implementing what can best be described as a
purposefully elusive and ambiguous term.’’),
rehearing en banc granted, 981 F.3d 311 (4th Cir.
2020).
130 See New York v. DHS, 969 F.3d 42, 74–75 (2d
Cir. 2020) (‘‘The prevailing administrative and
judicial interpretation of ‘public charge’ ratified by
Congress understood the term to mean a non-citizen
who cannot support himself, in the sense that he
‘is incapable of earning a livelihood, . . . does not
have sufficient funds in the United States for his
support, and has no person in the United States
willing and able to assure that he will not need
public support[.]’ . . . We think it plain on the face
of these different interpretations that the Rule falls
outside the statutory bounds marked out by
Congress. . . . Whatever gray area may exist at the
margins, we need only decide today whether
Congress ‘has unambiguously foreclosed the
[specific] statutory interpretation’ at issue. . . .
And we conclude that Congress’s intended meaning
of ‘public charge’ unambiguously forecloses the
Rule’s expansive interpretation. We are not
persuaded by DHS’s efforts to argue otherwise.’’
(internal citations omitted)); City and County of San
Francisco v. United States Citizenship and
Immigration Services, 981 F.3d 742, 756–58 (9th
Cir. 2020) (‘‘From the Victorian Workhouse through
the 1999 Guidance, the concept of becoming a
‘public charge’ has meant dependence on public
assistance for survival. Up until the promulgation
of this Rule, the concept has never encompassed
persons likely to make short-term use of in-kind
benefits that are neither intended nor sufficient to
provide basic sustenance . . . For these reasons we
conclude the plaintiffs have demonstrated a high
likelihood of success in showing that the Rule is
inconsistent with any reasonable interpretation of
the statutory public charge bar and therefore is
contrary to law.’’).
131 283 F. 697, 698 (N.D. Cal. 1922).
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individual case is not dispositive. In
that case, the court concluded that a
noncitizen who was institutionalized in
a mental hospital was not a public
charge because his family was paying
for the institutionalization. The court
opined that ‘‘the words ‘public charge,’
as used in the Immigration Act, mean
. . . a money charge upon, or an
expense to, the public for support and
care.’’ The court indicated that when ‘‘a
state receives from the relatives what it
has fixed as an adequate compensation
for such support,’’ the noncitizen so
cared for is not a public charge, ‘‘within
the meaning of the act,’’ 132 even if the
physical condition of the person suggest
a significant level of dependence on
others for their basic care. Given that the
court was opining about the meaning of
the term ‘‘public charge’’ in the context
of long-term institutionalization, DHS
agrees that this case does not stand for
the proposition that ‘‘any’’ reliance on
the government for subsistence would
render a noncitizen likely at any time to
become a public charge, and thus
inadmissible.
In short, DHS has determined that it
is appropriate in light of the statute’s
text and purpose, as well as
longstanding judicial and administrative
precedent to focus on primary
dependence on the government for
subsistence, and to do so by reference to
public cash assistance for income
maintenance and long-term
institutionalization at government
expense in particular. In addition, when
considering past, current, and future
receipt of such public benefits, DHS
believes it is appropriate to take into
consideration the amount, duration, and
recency of receipt along with other
factors.
Comment: One commenter stated that
facilitating the use of public benefits
generally by immigrants, even those
who may be eligible by the benefits’
authorizing statutes, directly conflicts
with Congressional intent in enacting
the public charge ground of
inadmissibility, and that the rule, which
‘‘significantly’’ raises the threshold of
permissible means-tested benefits usage
for purposes of public charge
inadmissibility determinations, should
be withdrawn. The commenter also
stated that Congress, in enacting
PRWORA and IIRIRA very close in time,
must have recognized that it made
certain public benefits available to some
noncitizens who are also subject to the
public charge ground of inadmissibility,
even though receipt of such benefits
could render the noncitizen
inadmissible as likely to become a
132 283
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public charge. The commenter cited
data and studies, including those
conducted by the Center for
Immigration Studies,133 for the
proposition that a high percentage of
‘‘immigrant-led’’ households depended
on safety-net public benefit programs,
and that a change in policy by DHS
could result in significant cost savings
in the context of Medicaid as well as
other public benefit programs.
Response: While DHS agrees with
commenters that Congress was aware
that some noncitizens who are eligible
for public benefits under PRWORA are
also subject to the public charge ground
of inadmissibility and may have their
past or current receipt of some benefits
considered in the context of public
charge inadmissibility determinations,
DHS disagrees with the suggestion that
it should withdraw the proposed rule.
As noted above, the congressional
statement of policy at 8 U.S.C. 1601(2)
relates most directly to other policy
measures enacted (and in fact later
relaxed) by Congress, and does not
mandate a specific result in this
rulemaking.
DHS believes that the rule draws
reasonable distinctions consistent with
Congressional intent between cash
benefits intended for income
maintenance and special-purpose and
supplemental benefits intended to help
recipients remain self-sufficient.
Furthermore, DHS has determined that
very few noncitizens are both eligible
for public benefits and subject to the
public charge ground of inadmissibility.
DHS has also determined that a great
number of households not subject to the
public charge ground of inadmissibility
could be deterred from receiving
important supports (such as medical
care or preventive services needed to
combat or prevent the spread of
communicable disease, or supplemental
nutrition assistance for children)
because of the chilling effects that
would be associated with expanding the
list of public benefits considered in
making public charge inadmissibility
determinations, as this commenter
suggested. DHS is uncertain how the
commenter arrived at the estimated $4.9
billion in savings in Medicaid by the
year 2030 but disagrees that any direct
impacts of the rule on the population
regulated thereby would result in
significant cost savings in the context of
Medicaid; rather DHS believes that the
commenter is suggesting that chilling
effects that could be caused by the rule,
influencing primarily those individuals
not subject to the rule, would result in
what they view as a desirable outcome
and cost savings. DHS disagrees that
such a policy objective—which depends
on confusion about the scope and effect
of the rule—is consistent with
Congressional intent or that it is
desirable.
DHS also notes that the analysis by
the Center for Immigration Studies cited
by the commenter is methodologically
flawed, which results in inflated and
inaccurate estimates of benefit use. The
analysis examined benefit use by ‘‘noncitizen-headed households’’ rather than
by noncitizens themselves.134 While
that analysis showed generally low use
of SSI and TANF by such households,
even those low rates of use are
misleading in the context of a public
charge inadmissibility determination.
Under both the 2019 Final Rule, favored
by the commenter, and this rule, only
public benefits received by the
noncitizen, where the noncitizen is
listed as a beneficiary, are considered in
a public charge inadmissibility
determination. Given that this analysis
cited by the commenter attributes to the
noncitizen ‘‘head of household’’ any use
of benefits by any member of the
household, including U.S. citizens, the
rates of SSI and TANF use by such
households is unrelated to public charge
inadmissibility determinations under
both the 2019 Final Rule and this rule.
Since Congress sharply limited the
eligibility for public benefits for
noncitizens in PRWORA (and, as noted,
provided exceptions to the public
charge ground of inadmissibility for
most categories of noncitizens eligible
for benefits), the members of the ‘‘noncitizen-headed households’’ actually
receiving the SSI and TANF in this
analysis are most likely not the
noncitizen heading the household but
rather other members of the family.
The SIPP data used by the analysts at
the Center for Immigration Studies does
allow for a more accurate assessment of
public benefit use by noncitizens
themselves, using individuals as the
basis for analysis, which was the
approach taken by DHS in the 2019
Final Rule and in this rule. However,
the Center for Immigration Studies used
household as the basis for analysis
which resulted in inflated and
inaccurate estimates of benefit use.
133 See Steven Camarota and Karen Ziegler, ‘‘63%
of Non-Citizen Households Access Welfare
Programs,’’ Center for Immigration Studies (Nov.
2018), https://cis.org/Report/63-NonCitizenHouseholds-Access-Welfare-Programs (last visited
Aug. 16, 2022).
134 See Steven Camarota and Karen Ziegler, ‘‘63%
of Non-Citizen Households Access Welfare
Programs,’’ Center for Immigration Studies (Nov.
20, 2018), https://cis.org/Report/63-NonCitizenHouseholds-Access-Welfare-Programs (last visited
Aug. 16, 2022).
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2. Support for Changes to the Public
Charge Ground of Inadmissibility
Comment: One commenter stated that
immigrants deserve a right to benefits
when they migrate because they may
come to the United States with nothing
and may be migrating out of a need for
survival rather than because they feel
they are entitled to benefits. This
commenter said that it is unjust to
assume immigrants will be able to
support themselves shortly after leaving
dangerous situations and short-term
government assistance should be an
option for those experiencing traumatic
situations in their home countries.
Another commenter stated that all
noncitizens should have access to
public benefits, including housing,
Medicaid, food stamps, and other
benefits Congress intended. Another
commenter stated that many U.S.-born
citizens have needed government
assistance, so it is reasonable that
immigrants starting over in the United
States would also need support from the
government and should receive that
support. Another commenter stated that
for whatever reason people become
public charges, they are often grateful
for the help and do the best they can to
contribute back to our society.
Response: To the extent that these
commenters suggest that DHS should,
through this rulemaking, expand the
public benefits available to noncitizens,
DHS disagrees. As explained in more
detail above, Congress has the authority
to legislate which noncitizens are
eligible to apply for and receive Federal
public benefits and did so when it
enacted PRWORA. Neither the statutory
public charge ground of inadmissibility
nor this final rule govern eligibility for
public benefits. This final rule does not
intend to decide or impact which
categories of noncitizens are, or should
be, eligible to receive public benefits,
but rather to indicate when a noncitizen
is inadmissible under the public charge
ground of inadmissibility. DHS
therefore declines to make any changes
in response to these commenters.
Comment: Many commenters
suggested that the public charge
inadmissibility determination should be
eliminated entirely. Others suggest that
while DHS waits for Congress to
eliminate the public charge ground of
inadmissibility, it should not apply it.
One commenter suggested DHS inform
Congress of the ‘‘many issues of the
Public Charge rules and regulations.’’
One commenter stated that the public
charge ground of inadmissibility is
dehumanizing to immigrants because it
punishes them for accessing support for
basic human needs in the adjudication
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of immigration benefit applications. One
commenter opposed the public charge
ground of inadmissibility because it is
dehumanizing to force individuals to
prove their utility to the U.S. economy
before permitting them to stay in the
country and implies that noncitizens are
inherently worth less than U.S. citizens.
Another commenter stated that the
statute has historically been used to
erect barriers to immigrants of color.
Response: To the extent that these
commenters suggest that DHS has the
authority to eliminate or ignore the
public charge ground of inadmissibility,
DHS disagrees. DHS recognizes that the
public charge ground of inadmissibility
could result in the denial of admission
or adjustment of status for certain
applicants, but DHS notes that the
commenters’ concerns with respect to
the existence and structure of this
ground of inadmissibility should be
directed to Congress, not to DHS. The
public charge ground of inadmissibility
was established by Congress in some of
the earliest immigration laws 135 and, as
discussed in the NPRM,136 has existed
in its current form since 1996.137 As
Congress has determined that all
applicants for visas, admission, and
adjustment of status are inadmissible if
they are determined to be likely at any
time to become a public charge, DHS is
required to apply the public charge
ground of inadmissibility to all
noncitizens seeking admission or
adjustment of status unless otherwise
expressly exempted by Congress.
However, DHS does have the
authority to define ‘‘likely at any time
to become a public charge,’’ 138 as it has
in this rule, and in doing so, decide
which public benefits are considered for
the purposes of this rule.
DHS notes that it did not codify this
final rule to discriminate against
noncitizens based on their race or color.
Rather, as noted in the NPRM,139 this
rule is intended to be a faithful
execution of the public charge ground of
inadmissibility that is clear and
comprehensible, and that would lead to
fair and consistent adjudication. DHS
believes that this rule accomplishes that
goal, avoids unequal treatment, and
avoids imposing undue barriers for
noncitizens applying for admission or
adjustment of status. Indeed, through
135 Immigration Act of 1882, Public Law 47–376,
22 Stat. 214 (1882).
136 87 FR at 10579 (Feb. 24, 2022).
137 Public Law 104–208, div. C, 110 Stat 3009–
546, 3009–674.
138 See Homeland Security Act of 2002, Public
Law 107–296, sec. 102, 116 Stat. 2135, 2142 (2002)
(codified at 6 U.S.C. 112); INA sec. 103, 8 U.S.C.
1103.
139 87 FR at 10599 (Feb. 24, 2022).
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this rulemaking, DHS is promulgating a
clear and concise regulation that
implements the public charge ground of
inadmissibility by evaluating each
noncitizen applying for adjustment of
status or admission for public charge
inadmissibility in the totality of the
circumstances, absent statutory
exemptions.
Comment: Another commenter stated
that the statute is in conflict with E.O.
14012, ‘‘Restoring Faith in Our Legal
Immigration Systems and Strengthening
Integration and Inclusion Efforts for
New Americans,’’ as neither efficient
nor a removal of barriers. While several
commenters acknowledged that
amending or repealing the statute is not
within DHS’s authority, one commenter
stated that the statute compromises the
overall goal of DHS to prioritize and
incorporate equity into the rule.
Response: As noted above, DHS lacks
the authority to make any changes to the
statute underlying the public charge
ground of inadmissibility; only Congress
can do so. To the extent that these
commenters are suggesting that this this
rule conflicts with the Administration’s
goals to achieve equality and inclusion,
as set forth in E.O. 14012,140 DHS
disagrees. As explained above, this rule
is intended to be a faithful execution of
the public charge ground of
inadmissibility that is clear and
comprehensible, and that would lead to
fair and consistent adjudication for
similarly situated applications. DHS
believes that this rule avoids unequal
treatment and avoids imposing undue
barriers for noncitizens applying for
admission or adjustment of status.
3. Other Legal Arguments
a. Comments on Litigation Relating to
the 2019 Final Rule
Comment: A commenter representing
a State remarked that the changes in this
rule are being proposed even though the
2019 Final Rule was still being litigated,
and DHS removed the 2019 Final Rule
from the Federal Register without
notice and comment based entirely on
the ‘‘unreviewed, nationwide vacatur’’
issued by the District Court for the
Northern District of Illinois, despite
multiple States seeking to intervene.
The commenter wrote that ‘‘multiple
states (including the undersigned) have
sought to intervene in the Northern
District of Illinois for the purpose of
challenging that vacatur, and that matter
is currently pending before the Seventh
Circuit. Multiple states (including the
140 See ‘‘Restoring Faith in Our Legal Immigration
Systems and Strengthening Integration and
Inclusion Efforts for New Americans,’’ 86 FR 8277
(Feb. 5, 2021).
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undersigned) have also sought to
intervene in a similar case in the Ninth
Circuit, and that matter is currently
pending before the United States
Supreme Court. These cases are ongoing
and could easily result in a reversal of
the Northern District of Illinois’s vacatur
of the 2019 Rule, which was the sole
justification for the immediate removal
of the 2019 Rule from the Federal
Register without notice and
comment.’’ 141 Another commenter
stated that if DHS were to finalize the
proposed rule, the commenter would
pursue litigation against the rule.
Response: Comments regarding the
basis for the vacatur implementation
rule are outside the scope of this
rulemaking. To the extent that the
commenter suggests that DHS should
delay issuance of this final rule pending
resolution of all litigation regarding the
2019 Final Rule, the vacatur of the 2019
Final Rule, and the implementation of
that vacatur, the comment is arguably
within the scope of the rulemaking, but
DHS respectfully disagrees with the
commenter’s suggestion. First, as a
factual matter, in the time since the
commenter submitted the above
comments, the Supreme Court
dismissed the writ of certiorari in one
case as improvidently granted, and the
Seventh Circuit upheld the U.S. District
Court for the Northern District of
Illinois’ denial of intervention.
Although it is conceivable that these
issues will continue to be litigated, DHS
sees no reason to delay issuance of this
rule pending resolution of all possible
litigation.
Second, DHS does not see how
delaying issuance of this notice-andcomment rulemaking would
meaningfully address concerns about
the adequacy of the rulemaking process
for the vacatur implementation rule.
The expressed concern regarding that
rule was the absence of notice and
comment, but in this rulemaking, DHS
has completed multiple rounds of notice
and comment, including an ANPRM
and virtual public listening sessions, as
well as the notice-and-comment process
in which this commenter took
advantage of the opportunity to
participate. This rulemaking process has
provided ample opportunity for public
participation. The commenter’s
suggestion that DHS should delay
issuing this rule pending further
litigation is therefore unwarranted.
Third, DHS notes that although this
rule does not replace the 2019 Final
Rule, throughout the rulemaking
process, DHS has considered and
welcomed comment related to various
141 Internal
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aspects of the content and effects of that
rule. DHS has analyzed the effects of
this rule against the 1999 Interim Field
Guidance, a Pre-Guidance Baseline, and
an alternative similar to the 2019 Final
Rule. To whatever extent the commenter
expresses concern regarding the
availability of notice and comment
regarding whether to issue a rule similar
to the 2019 Final Rule, this rulemaking
process has addressed the matter
squarely.
Finally, DHS acknowledges the
significant public interest in public
charge issues. The 2018 NPRM resulted
in over 266,000 comments, vastly more
than any other rulemaking in the history
of the Department. This rulemaking
resulted in a much smaller number of
public comments. Although in both
rulemaking proceedings the vast
majority of comments expressed
opposition to the 2019 Final Rule or a
return to a similar framework, in this
rulemaking proceeding, DHS has
carefully considered comments from all
quarters and representing all
perspectives. Ultimately, following
careful consideration of the public
comments received in response to the
2021 ANPRM and the 2022 NPRM, and
for the reasons expressed throughout
this preamble, DHS determined that this
rule represented the most appropriate
path forward.
DHS understands that some
commenters intend to pursue litigation
against this rule. Although DHS is
confident that this rule is fully
consistent with law, DHS notes its
intention that the provisions of the rule
be treated as severable to the maximum
extent possible, such that if any court of
competent jurisdiction were to deem
any provision of the rule to be invalid
or unenforceable in any respect, all
other parts of the rule will remain in
effect to the maximum extent permitted
by law.
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b. Allegations That the Proposed Rule Is
Arbitrary and Capricious
Comment: Several commenters stated
that DHS failed to adequately explain its
decision to take a different approach
from the previous Administration’s rule
and appears to simply express its
disagreement with the 2019 Final Rule.
Commenters stated that, although DHS
is within its discretion to take a
different approach than DHS did in
2019 as long as that approach is
consistent with the law, proposed rules
must include justification and reasoning
for the approaches taken. Commenters
stated that DHS appears to be motivated
simply by issuing a rule that is different
from the 2019 Final Rule.
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Response: DHS disagrees that it failed
to adequately explain that it was
considering adopting an approach
different than the approach set forth in
the 2019 Final Rule. In fact, DHS
explained at the outset of the NPRM
that, rather than simply disagreeing
with the approach taken in the 2019
Final Rule, DHS was aiming to
implement a rule that provided a more
faithful interpretation of the public
charge ground of inadmissibility that
would also, to the extent possible,
minimize the unnecessary paperwork
burdens, confusion, and chilling effects
associated with the 2019 Final Rule.142
Moreover, throughout the NPRM,
DHS noted where this rule substantively
differed from the 2019 Final Rule and
explained why DHS had opted to take
a different approach. For example, in
the NPRM, in explaining the definition
for ‘‘likely at any time to become a
public charge,’’ DHS explained in detail
why the degree of dependence on the
government that would give rise to
inadmissibility under this rule—
primary dependence on the government
for subsistence—as compared to the
degree of dependence in the 2019 Final
Rule—reliance over a specific threshold
for duration of receipt—was a more
sound interpretation of the public
charge ground of inadmissibility and
appropriately balanced the policy
objectives set forth in PRWORA and
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4).143
Additionally, DHS explained in detail
in the NPRM why, after consulting with
Federal benefits-granting agencies like
HHS and USDA, it was proposing to
consider a narrower list of public
benefits than the more extensive list of
public benefits that were considered
under the 2019 Final Rule.144 For
instance, DHS explained that it
proposed not to include SNAP benefits
and most Medicaid benefits, as receipt
of such was described by the relevant
benefits-granting agencies as not being
indicative of an individual being or
likely to become primarily dependent
on the government for subsistence.145
DHS further explained in the NPRM that
its approach to this rule was based on
the objective to faithfully execute the
public charge ground of inadmissibility
while avoiding policies that unduly
discourage individuals from availing
themselves to the public benefits for
which they are eligible.146 Following
consideration of public comments
142 87
FR at 10571 (Feb. 24, 2022).
FR at 10606 (Feb. 24, 2022).
144 87 FR at 10609–10610 (Feb. 24, 2022).
145 87 FR at 10610 (Feb. 24, 2022).
146 87 FR at 10610 (Feb. 24, 2022).
143 87
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received on the NPRM, DHS continues
to believe this to be the case.
Comment: Several commenters stated
that DHS fails to provide any reasoned
analysis concerning why noncitizens
changing or extending their
nonimmigrant status in the United
States should not be subject to the
proposed rule. The commenters
reasoned that if these classes of
noncitizens may ultimately be able to
utilize certain public benefit programs,
States have a right to understand why
DHS intends to exercise its discretion
this way, and saying that certain
noncitizens may not presently be
eligible for benefits is insufficient and
does not provide a meaningful
opportunity to comment on the
proposed rule. Another commenter
acknowledged that DHS has the
discretion to decide whether to set
conditions on extension of stay and
change of status applications, but said
DHS is arbitrarily declining to include
a public benefits condition in this rule.
Response: DHS disagrees that it failed
to explain why this rule does not
impose conditions on extension of stay
and change of status applications and
petitions based on the receipt of public
benefits. Although DHS has the
authority to set conditions on requests
for extension of stay and change of
status,147 as explained in the NPRM,148
DHS cannot apply the public charge
ground of inadmissibility to such
requests because the plain language of
the statute provides that the ground
only applies to applications for a visa,
admission, and adjustment of status
under the INA.149 Requests for
extension of stay and change of status
are not applications for visa, admission,
or adjustment of status, and therefore
are not subject to the public charge
ground of inadmissibility.
Furthermore, as explained in the
NPRM,150 DHS does not believe that it
needs to require, as a condition of an
application or petition for extension of
stay or change of status, that the
nonimmigrant not become a public
charge or not receive public benefits,
because such a condition would be
applicable to very few nonimmigrants, if
any. This is because nonimmigrants are
generally barred from receiving the
public benefits considered in this
proposed rule, such as SSI, TANF, and
Medicaid for long-term
institutionalization.151 Additionally, to
147 INA secs. 214 and 248, 8 U.S.C. 1184 and
1258.
148 87 FR at 10600–10601 (Feb. 24, 2022).
149 INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
150 87 FR at 10600–10601 (Feb. 24, 2022).
151 Public Law 104–193, sec. 431(b), Public Law
104–208, div. C, sec. 501 (amending Public Law
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the extent that commenters are
concerned that a nonimmigrant seeking
an extension of stay or change of status
may not be self-reliant, these concerns
are, for many nonimmigrant categories,
addressed by both the requirements for
obtaining such status in the first
instance as well as the requirements
applicable to their applications and
petitions for extension of stay and
change of status.
For example, in some of the
employment-based nonimmigrant cases,
the petitioning employer is required to
comply with certain wage requirements
applicable to such classifications. In the
temporary agricultural worker (H–2A
nonimmigrant) context,152 the employer
must offer the appropriate wage rate 153
and comply with other requirements as
set by law and regulations.154 Other
nonimmigrants, such as F and M
nonimmigrant students, need to
demonstrate that they have sufficient
funds to pay tuition and related costs as
part of the application for extension of
stay or change of status to such
nonimmigrant categories.155 Therefore,
DHS believes that it has adequately
explained its reasons for not imposing
conditions related to the receipt of
public benefits on nonimmigrants
seeking an extension of stay or change
of status and as a result declines to add
104–193 by adding sec. 431(c)), 8 U.S.C. 1641(b)
and (c) (defining ‘‘qualified aliens’’ for Federal
public benefits purposes); Public Law 104–193, sec.
411, 8 U.S.C. 1621 (describing eligibility for State
and local public benefits purposes).
152 See INA secs. 101(a)(15)(H)(ii)(a), 218, 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1188.
153 See 20 CFR 655.120(l). Employers must pay
H–2A workers and workers in corresponding
employment, unless otherwise excepted by the
regulations, at least the highest of the Adverse
Effect Wage Rate (AEWR), the prevailing hourly
wage rate, the prevailing piece rate, the agreed-upon
collective bargaining wage (if applicable), or the
Federal or State minimum wage in effect at the time
the work is performed.
154 See 20 CFR 655.100 through 655.185.
155 See 8 CFR 214.1(f)(1)(i)(B) (requiring that the
student presents documentary evidence of financial
support in the amount indicated on the SEVIS Form
I–20 (or the Form I–20A–B/I–20ID)); 8 CFR
214.2(m)(1)(i)(B) (requiring that student documents
financial support in the amount indicated on the
SEVIS Form I–20 (or the Form I–20M–N/I–20ID));
USCIS, ‘‘Adjudicator’s Field Manual (AFM),’’
Chapter 30.3(c)(2)(C) (applicants to change status to
a nonimmigrant student must demonstrate that they
have the financial resources to pay for coursework
and living expenses in the United States), https://
www.uscis.gov/sites/default/files/document/policymanual-afm/afm30-external.pdf (last visited Aug.
16, 2022); see also 22 CFR 41.61(b)(1)(ii) (requiring
that F and M nonimmigrants possess sufficient
funds to cover expenses while in the United States
or can satisfy the consular officer that other
arrangements have been made to meet those
expenses); 22 CFR 41.62(a)(2) (requiring that J–1
visa applicants possess sufficient funds to cover
expenses or have made other arrangements to
provide for expenses before a DOS consular officer
can approve the visa).
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provisions in this regard to the final
rule.
Comment: Several commenters
suggested that the proposed rule reflects
DHS’s intention to ignore its authority
with respect to public charge bonds
without adequate justification.
Response: DHS disagrees with
commenters’ assertion that it is ignoring
its bond authority without justification.
On the contrary, DHS acknowledged its
discretionary bond authority in the
NPRM,156 and DHS reiterates, in this
rule, that it has authority under section
213 of the INA, 8 U.S.C. 1183, to
consider whether to exercise its
discretion on a case-by-case basis to
admit noncitizens who are inadmissible
only under section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), upon the
submission of a suitable and proper
public charge bond.
However, as explained more fully in
the bond section below, after careful
consideration of public comments and
feedback, DHS has revised the bond
provisions to reflect DHS’s statutory
authority to consider offering public
charge bonds, in its discretion, to
adjustment of status applicants
inadmissible only under section
212(a)(4) of the INA, 8 U.S.C. 1183.157
These additional provisions will help
ensure that DHS adequately addresses
how DHS will exercise its discretion to
offer public charge bonds in the context
of adjustment of status applications and
will help ensure that public charge
bonds remain operationally feasible in
such cases. Under this rule, DHS will
consider offering adjustment of status
applicants who are inadmissible only
under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), the opportunity to
submit a bond as a condition of
adjustment of status.158 When USCIS
determines, in its discretion, to offer an
adjustment of status applicant the
opportunity to submit a public charge
bond, USCIS will set the bond amount
at an amount of no less than $1,000 and
provide instructions for the submission
of a public charge bond.159 USCIS will
also amend the other regulations
pertaining to public charge bonds.
USCIS will provide officers with
guidance and training to ensure that this
discretionary authority is exercised in a
fair, efficient, and consistent manner.
c. Allegations That the Proposed Rule Is
Inconsistent With the Statute
Comment: Commenters opposed to
the rule generally stated that the rule
156 87
FR at 10597 (Feb. 24, 2022).
CFR 213.1.
158 See 8 CFR 213.1(a) and (c).
159 See 8 CFR 213.1(a) and (c).
157 8
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markedly departs from the standards in
the 2019 Final Rule and is contrary to
law.
Response: Although DHS agrees that
this rule is different than the standards
set forth in the 2019 Final Rule, DHS
disagrees that this rule is contrary to
law. DHS noted that neither the statute
nor case law require DHS to interpret
the statute as was done in the 2019
Final Rule. On the contrary, when
Congress enacted the public charge
ground of inadmissibility without
defining what it meant to be a ‘‘public
charge’’ or ‘‘likely at any time to become
a public charge,’’ Congress authorized
the agencies administering this ground
of inadmissibility to determine and
specify what those terms meant and
how such inadmissibility
determinations would be made.160 DHS
has concluded, consistent with the
NPRM,161 that this rule is a permissible
and faithful implementation of the
public charge ground of inadmissibility.
With this rule, DHS is providing
important definitions and guidance to
implement the public charge ground of
inadmissibility, such as defining ‘‘likely
at any time to become a public charge,’’
that Congress left for DHS to implement.
Also as noted in the NPRM,162 this rule
provides a close connection to the
language used in the statute and reflects
the forward-looking subjective aspect of
the statutory standard. DHS has further
determined, consistent with the
NPRM,163 that this rule better balances
the overlapping policy objectives
established by Congress when it enacted
PRWORA 164 in close proximity to
enacting the current public charge
ground of inadmissibility, without
unnecessarily harming separate efforts
related to the health and well-being of
people whom Congress made eligible for
supplemental supports, let alone those
eligible for benefits and not subject to
the public charge ground of
inadmissibility.
Comment: One commenter stated that
the rule conflicts with section 101 of the
HSA, 6 U.S.C. 111, which requires DHS
to protect the economic security of the
United States. The commenter said that
providing public benefits, even with an
approved sponsor, bond or undertaking
approved by the Secretary, has the
potential to impede the economic
security of the United States and its
citizens.
160 See Public Law 104–208, div. C, sec. 531, 110
Stat. 3009–546, 3009–674 (1996) (amending INA
sec. 212(a)(4), 8 U.S.C. 1182(a)(4)).
161 87 FR at 10571, 10606–10610 (Feb. 24, 2022).
162 87 FR at 10606 (Feb. 24, 2022).
163 87 FR at 10610 (Feb. 24, 2022).
164 See Public Law 104–193, sec. 400, 110 Stat.
2105, 2260 (1996) (codified at 8 U.S.C. 1601).
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Response: DHS disagrees with this
commenter’s characterization of 6
U.S.C. 111(b)(1)(F), and further
disagrees that this rule conflicts with
that provision. 6 U.S.C. 111(b)(1)(F)
provides that among other primary
missions, DHS should ‘‘ensure that the
overall economic security of the United
States is not diminished by efforts,
activities, and programs aimed at
securing the homeland . . . .’’ 165
Consistent with this mission set forth in
the statute, DHS has determined that
this rule properly achieves the policy
objective set by Congress in ensuring
that those who are likely at any time to
become a public charge are not admitted
into the United States or permitted to
adjust status, without diminishing the
overall economic security of the United
States.
Moreover, to the extent that this
commenter suggests that this rule
provides public benefits to noncitizens
that will diminish the economic
security of the United States, DHS
strongly disagrees.
Neither the public charge ground of
inadmissibility nor this final rule govern
eligibility for public benefits. Rather, the
public charge ground of inadmissibility
and this final rule pertain to whether an
applicant for admission or adjustment of
status is likely at any time to become a
public charge. This final rule thus does
not determine which noncitizens are, or
should be, eligible to apply for and
receive public benefits. And in any
event, DHS disagrees that a contraction
of eligibility for public benefits (or a
change in incentives for or fear and
confusion about their use) would have
a positive effect on the economic
security of the United States. DHS has
determined that using the public charge
ground of inadmissibility to deter the
use of health and nutrition benefits
primarily among people who are not
subject to the public charge ground of
inadmissibility (such as U.S. citizen
children in mixed-status households)
would not further the nation’s economic
security. Accordingly, DHS declines to
make any changes in response to the
comment.
Comment: One commenter stated an
opposition to PRWORA and the
restriction for eligibility for federal
means-tested benefits within PRWORA.
Response: The comment is outside the
scope of the rulemaking. As explained
more fully above, this rule does not
govern eligibility for public benefits.
Rather, this final rule governs the
determination of whether an applicant
for admission or adjustment of status is
165 Public Law 107–296, sec. 101(b)(1)(F), 6 U.S.C.
111(b)(1)(F).
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likely at any time to become a public
charge.
E. Chilling Effects
1. Impacts of Previous Public Charge
Policies
Comment: Many commenters opposed
the previous public charge policy
enacted by the 2019 Final Rule due to
the confusion and fear it caused with
respect to the immigration
consequences of utilizing public
benefits, with some remarking that the
2019 Final Rule had a profound chilling
effect. One commenter noted that a
court decision concerning the 2019
Final Rule, Cook County v. Wolf,166
observed that much of the chilling effect
was a result of the 2019 Final Rule’s
complexity.
Several commenters stated generally
that the chilling effects caused older
adults and their families to forgo
benefits, including Medicaid and SNAP,
due to the feared immigration
consequences, with a disproportionate
impact on older adults and people with
disabilities. Commenters cited
published research and studies that
found that the mere announcement of a
public charge rule in 2018 led to
declines in safety-net participation, with
an analysis of State-reported data
showing that the announcement of
public charge regulations was associated
with a decrease in child enrollment in
Medicaid of approximately 260,000
from 2017 levels.167 Commenters
submitted studies that found evidence
that enrollment by all individuals in
Medicaid, SNAP, and CHIP, as well as
enrollment in WIC, even though CHIP
and WIC were not included in the 2019
Final Rule, declined.168 A different
commenter noted a study that found
that 30 percent of adults in low-income
immigrant families with children
166 962
F.3d 208 (7th Cir. 2020).
Barofsky et al., ‘‘Spreading Fear: The
Announcement of the Public Charge Rule Reduced
Enrollment in Child Safety-Net Programs,’’ Health
Affairs (Oct. 2020), https://www.healthaffairs.org/
doi/10.1377/hlthaff.2020.00763 (last visited Aug.
16, 2022).
168 Jeremy Barofsky et al., ‘‘Spreading Fear: The
Announcement of the Public Charge Rule Reduced
Enrollment in Child Safety-Net Programs,’’ Health
Affairs (Oct. 2020), https://www.healthaffairs.org/
doi/10.1377/hlthaff.2020.00763 (last visited Aug.
16, 2022),; Jeremy Barofsky et al., ‘‘Putting Out the
‘Unwelcome Mat:’ The Announced Public Charge
Rule Reduced Safety Net Enrollment among Exempt
Noncitizens,’’ J. of Behav. Pub. Admin. (Oct. 2021),
https://doi.org/10.30636/jbpa.42.200 (last visited
Aug. 16, 2022); Hamutal Bernstein et al., ‘‘Amid
Confusion over the Public Charge Rule, Immigrant
Families Continued Avoiding Public Benefits in
2019,’’ Urban Institute (May 2020), https://
www.urban.org/research/publication/amidconfusion-over-public-charge-rule-immigrantfamilies-continued-avoiding-public-benefits-2019
(last visited Aug. 16, 2022).
167 Jeremy
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reported that they or a family member
had avoided non-cash government
programs or other assistance with their
basic needs because of concerns about
the impact on their immigration status.
Another commenter cited research on
the impact of the 2019 Final Rule on
immigrant families, which they
described as showing that 48 percent of
immigrant families avoided the SNAP
program, 45 percent avoided Medicaid
and CHIP, and 35 percent avoided
housing subsidies because of the fear of
risking their ability to obtain a green
card.169 The commenter also cited a
2020 report by the Center for Law and
Social Policy stating that some parents
were also reluctant to send their
children to school or childcare,
although the report did not attribute that
claim to a specific study.170 Another
commenter stated that the Asian
American, Native Hawaiian, and Pacific
Islander population was especially
affected by the chilling effects of the
2019 Final Rule, and continues to be
affected in Medicaid and CHIP
enrollment and renewals. Some
commenters said that the 2019 Final
Rule also affected U.S. citizen children,
whose parents elected to disenroll or
not enroll them in CHIP due to fear of
immigration consequences.
One commenter cited a study showing
that from 2016 to 2019, U.S. citizen
children living in low-income
households with at least one noncitizen
saw:
• An 18 percent drop in Medicaid
participation compared to an 8 percent
drop in participation for U.S. citizen
children living in households with only
U.S. citizens;
• a 36 percent drop in SNAP
participation compared to a 17 percent
drop in participation for U.S. citizen
children living in households with only
U.S. citizens; and
• A 36 percent drop in TANF,
General Assistance, and similar cash
assistance programs compared to a 20
percent drop in participation for U.S.
citizen children living in households
with only U.S. citizens.171
169 Hamutal Bernstein et al., ‘‘Amid Confusion
over the Public Charge Rule, Immigrant Families
Continued Avoiding Public Benefits in 2019,’’
Urban Institute (May 2020), https://www.urban.org/
research/publication/amid-confusion-over-publiccharge-rule-immigrant-families-continued-avoidingpublic-benefits-2019 (last visited Aug. 16, 2022).
170 Rebecca Ullrich, ‘‘The Public Charge Rule &
Young Children: Q&A on the New Regulation,’’
Center for Law and Social Policy (Feb. 2020),
https://www.clasp.org/sites/default/files/
publications/2020/02/2020.02.24%20Public %20
Charge%20Young%20Children %20Final%20
Rule%20QA_update.pdf (last visited Aug. 16,
2022).
171 Randy Capps et al., ‘‘Anticipated ‘Chilling
Effects’ of the Public-Charge Rule Are Real: Census
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A commenter cited data suggesting
that the local SNAP program in the City
and County of San Francisco (known as
CalFresh) experienced a 15 percent
decline in the caseload associated with
households containing at least one
noncitizen, and a much smaller decline
associated with citizen-only
households.
One commenter cited stories from
survivors of domestic violence and
sexual assault who stated they did not
enroll in programs specifically designed
for them, including domestic violence
transitional housing, food pantry
assistance, and sexual assault nurse
examination and associated counseling
services due to fear of the impact of the
public charge ground of inadmissibility,
and that they also withdrew from
assistance programs that supported their
basic needs. The commenter urged DHS
to promptly publish a rule that advances
victim and public safety and health;
encourages victims to seek or utilize
safety net benefits that are crucial to
their ability to escape or recover from
abuse and trauma; does not serve to
punish victims for the violence they
have experienced; and strengthens their
ties to their families, who are essential
sources of support in escaping and
recovering from abuse.
Commenters wrote about the
particularly harmful effects on a number
of States, including California, New
York, Maryland, and Illinois, stating
that a rule similar to the 2019 Final Rule
would result in coverage losses,
decreased access to care, and worsened
health outcomes for entire families,
including children, many of whom are
U.S. citizens. They also wrote about
jeopardized access to health services for
legal immigrants across individual
States, affecting children, seniors,
people with disabilities, and those with
chronic conditions, which could
exacerbate medical conditions and lead
to sicker patients and greater reliance on
hospital emergency departments, which
would subsequently raise costs for all
residents. Several commenters stated
that the 2019 Final Rule deterred
eligible individuals from accessing
health care, particularly preventive care,
which harmed the community and
forced their county to shoulder the costs
of expensive, last-minute emergencydepartment interventions. This is in
agreement with another comment that
predicted that failing to guarantee
access to health care services for all
people, including immigrants, will
Data Reflect Steep Decline in Benefits Use by
Immigrant Families,’’ Migration Policy Institute
(Dec. 2020), https://www.migrationpolicy.org/news/
anticipated-chilling-effects-public-charge-rule-arereal (last visited Aug. 16, 2022).
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cause an increased use of emergency
rooms and emergency care as a method
of primary health care due to delayed
treatment.
Several commenters indicated that the
2019 Final Rule had chilling effects on
students from households with mixed
immigration and citizenship status, with
one commenter—a coalition of the
nation’s largest central city school
districts—stating that frequent
‘‘fluctuations in federal immigration
policy have resulted in significant
upheaval in the lives of many school
children and their families, and have
manifested in school absenteeism,
behavior incidents, mental health
issues, and declining academic
performance for many affected
students.’’ The commenter stated that
the 2019 Final Rule ‘‘exacerbated
disruptions for the families of tens of
thousands of school children with such
mixed immigration and citizenship
status affecting their financial,
emotional, and physical well-being.’’
Another commenter stated that a rule
similar to the 2019 Final Rule could
lead to emotional trauma resulting from
family separations due to denials of
admission or adjustment of status based
on public charge inadmissibility.
One commenter indicated that the
chilling effects of the 2019 Final Rule
will continue despite the publication of
a new rule due to fears of reinstatement
of the 2019 Final Rule as the result of
future election outcomes, with another
similarly stating that one aspect
contributing to the chilling effect is a
concern that a future administration
will adopt a new public charge policy
that penalizes people for using public
benefits that are not included in the
current public charge rule.
Response: DHS acknowledges that the
2019 Final Rule caused fear and
confusion among U.S. citizens and
noncitizens and had a significant
chilling effect on the use of public
benefits by noncitizens, even among
those who were not subject to the rule
and with respect to public benefits that
were not covered by the rule. DHS is
aware of evidence that the 2019 Final
Rule, and the rulemaking process that
preceded it, resulted in significant
disenrollment effects among noncitizens
and U.S. citizens in immigrant families.
DHS also acknowledges the challenges
associated with measuring chilling
effects with precision, and notes that
different studies use different data,
methodologies, and periods and
populations of analysis and therefore
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reach different estimates of chilling
effects.172
DHS appreciates the commenter’s
concerns regarding family unity, but
notes that the potential for a portion of
a family to be deemed inadmissible is
inherent in the concept of an individual
inadmissibility determination. As
compared to the 2019 Final Rule,
however, this rule likely strengthens
immigrant and mixed-citizenship
families by virtue of avoiding certain
chilling effects.
In this rule, given the significant
evidence of the deleterious collateral
effects of the 2019 Final Rule, DHS gives
more thorough consideration to the
potential chilling effects of
promulgating regulations governing the
public charge inadmissibility
determination. DHS believes that in
fashioning this rule, it is appropriate to
consider the widespread collateral
effects of the 2019 Final Rule, including
loss of nutrition and medical assistance
by, for instance, U.S. citizen children in
mixed-status households. Such effects
are not solely the consequence of the
policy contained in the 2019 Final Rule,
but they are attributable to the 2019
Final Rule at least in part and are
potentially very harmful for some
people, including U.S. citizen children,
and are not an inevitable consequence
of public charge policy. In fact, as DHS
has noted elsewhere, the public charge
ground of inadmissibility identifies a
range of relevant considerations, but
does not require DHS to consider past
or current receipt of any specific public
benefits; most noncitizens who are
subject to the public charge ground of
inadmissibility are not eligible for the
public benefits covered by either the
2019 Final Rule or this rule; and the
2019 Final Rule, notwithstanding its
broader construction of the term ‘‘public
charge’’ (which resulted in such chilling
effects) and various other policy features
(including a heavy paperwork burden),
ultimately did not result in any final
denials of adjustment of status based on
the totality of the circumstances public
charge inadmissibility determination
under section 212(a)(4)(A) and (B) of the
INA, 8 U.S.C. 1182(a)(4)(A) and (B).173
The 2019 Final Rule thus produced
significant adverse collateral effects
with no corresponding increase in the
number of noncitizens found to be
inadmissible on the public charge
ground.
172 At the same time, no commenters submitted
studies suggesting that there was no chilling effect.
173 As noted above, while the 2019 Final Rule was
in effect, DHS issued only three denials, which
were subsequently reopened and approved.
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In considering chilling effects, DHS
took into account the former INS’s
approach to chilling effects in the 1999
Interim Field Guidance and 1999
NPRM, the 2019 Final Rule’s discussion
of chilling effects, judicial opinions on
the role of chilling effects, evidence of
chilling effects following the 2019 Final
Rule, and public comments on chilling
effects following the August 2021
ANPRM and the 2022 NPRM. While
DHS cannot predict how future
administrations will act and what
policies will be put into place, with this
rule DHS commits itself to issuing
guidance in a manner that will be clear
and comprehensible for officers as well
as for noncitizens and their families and
that will lead to fair and consistent
adjudications, thereby mitigating the
risk of unequal treatment of similarly
situated individuals.
Comment: Commenters said that older
adults and people with disabilities,
particularly in low-income communities
and communities of color, have been
disproportionately impacted by the
COVID–19 pandemic. A national
association of children’s hospitals stated
that the COVID–19 pandemic created
significant pressures on health care
providers, which are only made worse
by policies that deter eligible
individuals from enrolling in coverage,
and said that any increase in
uncompensated care as a result of
increased uninsured rates exacerbates
the unprecedented strains faced by
children’s hospitals nationwide due to
the pandemic, the continuing mental
health crisis amongst our children and
youth, and an ongoing and worsening
workforce shortage. This commenter
stated that those strains threaten to
undermine our pediatric health care
system and the health of our children.
Two commenters particularly
emphasized the adverse health effects
that resulted from the 2019 Final Rule
during the pandemic when eligible
individuals did not access Medicaid due
to the chilling effects of the 2019 Final
Rule, noting a 2021 Kaiser Family
Foundation study that found that 35
percent of immigrants expressed
concern that getting the COVID–19
vaccine would negatively impact their
immigration status, and that the chilling
effects continued even after and despite
the fact that DHS issued guidance
excluding Medicaid coverage of COVID–
19 testing and treatment from the public
charge inadmissibility determination.174
174 Liz Hamel et al., ‘‘KFF COVID–19 Vaccine
Monitor: COVID–19 Vaccine Access, Information,
and Experiences Among Hispanic Adults in the
U.S.,’’ Kaiser Fam. Found. (May 2021), https://
www.kff.org/coronavirus-covid-19/poll-finding/kffcovid-19-vaccine-monitor-access-
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Commenters also cited a 2021 report by
Protecting Immigrant Families stating
that even after the beginning of the
COVID–19 pandemic, research shows
that immigrant families avoided noncash benefits or other assistance because
of public charge or other immigration
concerns.175 These commenters stated
that these alarming trends have
significant implications for the longterm health and well-being of children
in immigrant families and threaten our
nation’s future prosperity and ability to
recover from the pandemic. One
commenter similarly stated that COVID–
19 will be harder to control and
eradicate if people are afraid of seeking
medical benefits. Commenters said that
the impacts of the 2019 Final Rule
severely impair their city’s overall
ability to recover from the COVID–19
pandemic, particularly affecting older
adults and people with disabilities, that
the chilling effects have put public
health at risk during the pandemic, and
that the 2019 Final Rule undermined
some of the States’ most effective tools
for protecting the public’s health and
well-being during a crisis and
promoting our nation’s recovery. One
commenter cited a national survey of
adults primarily in families with mixed
immigration or citizenship status that
found that 46 percent of surveyed
families that needed assistance during
the COVID–19 pandemic did not apply
for it due to concerns over immigration
status.176
Response: DHS acknowledges that the
COVID–19 pandemic began to affect the
United States at the same time as DHS
began implementing the 2019 Final
Rule. As discussed in the NPRM, the
pandemic had widespread effects,
including on the population that
changed its behavior in response to the
2019 Final Rule—and this population
was largely not even subject to the 2019
Final Rule. DHS also fully understands
that although the COVID–19 pandemic
has evolved, the pandemic’s effects
continue, in a variety of ways, to this
day. DHS notes that some noncitizens in
the United States may be especially
vulnerable to the direct and indirect
informationexperiences-hispanic-adults/ (last
visited Aug. 16, 2022).
175 Protecting Immigrant Families, ‘‘Research
Documents Harm of Public Charge Policy During
the COVID–19 Pandemic,’’ (Jan. 2022), https://
protectingimmigrantfamilies.org/wp-content/
uploads/2022/01/PIF-Research-Document_PublicCharge_COVID-19_Jan2022.pdf (last visited Aug.
16, 2022).
176 No Kid Hungry, ‘‘Public Charge was
Reversed—But Not Enough Immigrant Families
Know’’ (Dec. 2021), https://www.nokidhungry.org/
sites/default/files/2021-12/NKH_Public%20Charge_
Micro-Report_English_0.pdf (last visited Aug. 15,
2022).
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effects of the pandemic due to higher
employment in high-risk occupations,
greater fear of seeking care and enrolling
in public benefit programs,
comparatively limited healthcare and
financial assistance options, limited
English proficiency, and higher levels of
poverty than U.S. citizens.177
Although DHS believes that the
approach contained in this rule would
be warranted, on both legal and policy
grounds, regardless of the effects of the
COVID–19 pandemic, this current
pandemic has shown that pandemics
are not a hypothetical concern and
illustrates the importance of policy
accounting for the possibility of similar
occurrences in the future.
Comment: Two commenters pointed
out that the 2019 Final Rule resulted in
few adverse actions, which suggests that
any public charge rule would only very
narrowly protect the country’s economic
security, but a rule like the 2019 Final
Rule would create widespread chilling
effects extending to individuals not
even subject to the public charge ground
of inadmissibility.
Response: DHS agrees with these
commenters that the 2019 Final Rule
was not very consequential, during its
period of implementation, in terms of
the number of denials of adjustment of
status applications. DHS acknowledges
that the 2019 Final Rule resulted in
widespread fear and confusion of being
denied admission or adjustment of
status, when in reality, as stated above,
during the time that the 2019 Final Rule
was in effect, of the 47,555 applications
for adjustment of status to which the
rule was applied, DHS issued only 3
denials (which were subsequently
reopened and approved) and 2 Notices
of Intent to Deny (which were
ultimately rescinded, and the
applications were approved). In
promulgating this rule, DHS has given
more thorough consideration to the
potential chilling effects of
promulgating regulations governing the
public charge inadmissibility
determination. DHS has concluded that
this rule is consistent with the nation’s
economic security and will help ensure
that public charge inadmissibility
determinations will be fair, consistent
with law, and informed by relevant data
and evidence.
Comment: One commenter remarked
that the 2019 Final Rule dramatically
177 DHS Office of Immigration Statistics and DHS
Countering Weapons of Mass Destruction Office,
‘‘COVID–19 Vulnerability by Immigration Status’’
(May 2021), https://www.dhs.gov/sites/default/files/
publications/immigration-statistics/research_
reports/research_paper_covid-19_vulnerability_by_
immigration_status_may_2021.pdf (last visited Aug.
15, 2022).
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increased the burden placed on
adjustment of status or admission
applicants. Other commenters,
including a trade association of home
builders and a nonprofit organization
serving farmworkers, similarly opposed
the 2019 Final Rule as significantly
discouraging lawful immigration by
requiring Form I–944, Declaration of
Self-Sufficiency, which created an
impediment for employers, particularly
small businesses, and negatively
affected industries that required
immigrant workers. Another commenter
remarked that the public charge formula
in the 2019 Final Rule was so complex
and layered that it was extraordinarily
difficult even for service providers to
understand whether and how it applied.
Response: The 2019 Final Rule
imposed a range of burdens separate
and apart from the chilling effects that
many commenters expressed their
concern about. DHS agrees with the
commenters who stated that the 2019
Final Rule was too burdensome on
applicants by requiring additional
information collection and evidence and
its complex requirements. For example,
Form I–944, together with its
instructions, spanned 30 pages and
requested a wide range of information
on the statutory minimum factors, some
of which was duplicative of other
filings.
DHS believes that, in contrast to the
2019 Final Rule, this rule will avoid
unnecessary burdens on applicants,
officers, and benefits-granting agencies.
In the 2019 Final Rule, DHS responded
to multiple comments on the thenproposed Form I–944. In response to
those comments, DHS revised certain
fields to eliminate some redundancies
or provide greater flexibility or clarity,
and acknowledged that the time
necessary to complete Form I–944
would vary by applicant (such that, for
instance, a child without assets would
not pose the same paperwork burden as
an adult with assets).178 DHS also
emphasized that it was required to
collect much of the information on the
form in order to consider the statutory
minimum factors. In the end, DHS
finalized a lengthy and complex form
that, according to the vast majority of
comments that addressed the issue in
that rulemaking and in this rulemaking,
took many hours to complete.
This rule also ensures that DHS
collects information regarding each of
the statutory minimum factors, but does
not require any additional forms and
imposes a comparatively smaller
paperwork burden. DHS has determined
178 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41483–41484 (Aug. 14, 2019).
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that the Form I–485, with some
amendments, will sufficiently collect
information regarding the factors that
will be considered in a public charge
inadmissibility determination. DHS
reviewed the current form and proposed
several additional questions regarding
the factors used to make a public charge
inadmissibility determination that were
not already included in the form’s
information collection, including
information about an applicant’s
household size, income, assets,
liabilities, an applicant’s education or
skills, an applicant’s use of public cash
assistance for income maintenance, and
any long-term institutionalization of the
applicant at government expense. The
form also informs applicants that
additional space is available if
applicants need to provide more
information. DHS did not include
additional questions or request
additional evidence from applicants that
is not related to a public charge
inadmissibility determination. In order
to reduce the burden on applicants not
subject to section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), DHS also included
a question asking applicants if they are
subject to the public charge ground of
inadmissibility and, if not, instructing
that they may skip the subsequent
related questions. DHS believes that
these updated questions to the Form I–
485 are necessary for DHS to make an
accurate inadmissibility determination
under the statutory public charge
ground and will not impose undue
burdens on applicants.
Comment: Consistent with many
comments stating the 2019 Final Rule
was discriminatory, one commenter
remarked that the 2019 Final Rule
contained no clear justifications beyond
discriminating against immigrants and
satisfying voters who expressed antiimmigrant sentiments, with other
commenters calling it a direct assault on
the health and well-being of low-income
immigrant households. One commenter
stated that the 2019 Final Rule stood as
a direct refutation of generations of
immigrants who built this nation by
dramatically broadening the classes of
public benefits that could trigger a
finding of public charge inadmissibility;
instituting a durational test for
measuring dependence on the
unprecedented, expanded set of
benefits; penalizing the mere
application for benefits, even for those
not subject to the public charge ground
of inadmissibility; and replacing the
totality of circumstances test with a
rigid formula. One commenter stated
that the 2019 Final Rule precluded
immigrants with disabilities from
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applying for adjustment of status; put
immigrant children with disabilities,
such as those with diagnoses of autism
spectrum disorder or failure to thrive,
substantially at risk of worse outcomes
due to limits in access to care; and
contributed to creating and exacerbating
life barriers, including timely medical
attention. One commenter stated that
the definition of ‘‘public charge’’ in the
2019 Final Rule resulted in almost all
immigrants becoming ineligible for U.S.
citizenship, and that people in America
should not be deterred from help due to
fear of deportation.
Response: DHS appreciates the
commenters’ concerns about the 2019
Final Rule and notes that comments
about the intention of the 2019 Final
Rule fall outside the scope of this
rulemaking. However, to the extent
these commenters intended to express
concern about this final rule
discriminating against low-income
immigrants, DHS notes that section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
requires DHS to consider how a
noncitizen’s age; health; family status;
assets, resources, and financial status;
and education and skills impact
whether the noncitizen is likely at any
time to become a public charge. Under
the statute, DHS may also consider an
applicant’s Affidavit of Support Under
Section 213A of the INA, if applicable.
Furthermore, to the extent that
commenters are suggesting that this rule
will make most noncitizens ineligible
for naturalization, DHS disagrees. This
rule addresses how DHS determines
inadmissibility based on the public
charge ground and does not apply to
individuals applying for
naturalization.179
Comment: Commenters stated that the
2019 Final Rule did not take into
account the contributions of immigrants
to the economy and that the cost of
issuing a rule similar to the 2019 Final
Rule would outweigh the potential
benefit to taxpayers because immigrants
are less likely to use government
benefits compared to people born in the
United States. The commenters stated
that the argument that taxpayers will be
supporting immigrants is unfair, as
179 See INA sec. 318, 8 U.S.C. 1429. DHS notes,
however, that USCIS assesses as part of the
naturalization whether the applicant was properly
admitted as a lawful permanent resident and
therefore was eligible for adjustment based upon
the public charge ground of inadmissibility at the
time of the adjustment of status. Additionally, an
individual may become removable on account of
public charge while in lawful permanent resident
status, which is a consideration which may be
assessed at the time of naturalization. See INA sec.
237(a)(5), 8 U.S.C. 1227(a)(5). However, the
assessment of removability for public charge is
different from the assessment of public charge
inadmissibility and is not a part of this rule.
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millions of citizens born in the United
States access public benefits and the
effect on individual taxpayers is
minimal. One commenter also stated
that portraying any group of people
solely as assets to the U.S. economy is
dehumanizing and that it is important to
consider human lives and basic human
needs.
One commenter quoted a report from
the National Immigration Law Center
stating that the 2019 Final Rule made it
harder for service providers to do their
jobs due to the need for service
providers and outreach workers to
research the rule, understand its
implications, and explain it to the
clients as well as overcome
misinformation from the media, social
networks, and immigration attorneys.180
Another commenter stated that the
2019 Final Rule was an unreasonable
and arbitrary interpretation of section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
and has burdened the States with
additional healthcare costs and harmed
the public health and economic wellbeing of residents, disproportionately
impacting communities of color and
people with disabilities, which only
intensified during the COVID–19
pandemic.
Response: Many commenters opposed
the 2019 Final Rule for economic
reasons. While the stated intent of the
2019 Final Rule was to ensure that
noncitizens subject to the public charge
inadmissibility ground are selfsufficient, the 2019 Final Rule had
many additional consequences that DHS
acknowledges in promulgating this rule.
DHS recognizes the burden on
applicants and the time spent by service
providers helping the public understand
the nuances of the 2019 Final Rule.
Furthermore, the burden on States and
the harm to public health and the wellbeing of residents has been welldocumented.181 In drafting this rule,
DHS has determined that it is issuing a
policy that is fully consistent with the
law; that reflects empirical evidence to
the extent relevant and available; that is
clear and comprehensible for officers as
well as for noncitizens and their
families; that will lead to fair and
consistent adjudications and, thus,
avoid unequal treatment of similarly
situated individuals; and that will not
otherwise impose undue barriers for
noncitizens seeking admission or
180 See Holly Straut-Eppsteiner, ‘‘Documenting
Harm through Service Provider Accounts Harm
Caused by the Department of Homeland Security’s
Public Charge Rule’’ (Feb. 2020), https://
www.nilc.org/wp-content/uploads/2020/02/dhspublic-charge-rule-harm-documented-2020-02.pdf
(last visited Aug. 16, 2022).
181 See 87 FR at 10589–10593 (Feb. 24, 2022).
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adjustment of status in the United
States.
Comment: A commenter stated that
noncitizens have been applying for and
receiving public benefits from Federal,
State, and local governments at
increasing rates, and in many cases
more often than U.S. citizens, since the
1960s. The commenter stated that
current eligibility rules for public
assistance and unenforceable financial
support agreements have not lived up to
the intent of the laws to prevent
individual noncitizens burdening the
public benefits system. The
commenter—a nationwide network of
attorneys, law students, and paralegals
who ‘‘support strong enforcement of
federal immigration law and protecting
the United States’ sovereignty’’—stated
that several of its members were
themselves immigrants, and that at the
time of their arrival, ‘‘it was both
written and understood that ‘selfreliance’ was required with the promise
of expulsion should an immigrant apply
and/or receive public benefits.’’ The
commenter supported the approach
taken in the 2019 Final Rule, which
allowed immigration officials to
consider noncash benefits such as
housing vouchers in a public charge
inadmissibility determination, stating
that previous guidelines only resulted in
a few hundred applicants being found
inadmissible and increased financial
burdens upon States and their residents.
This commenter went on to express its
support for the 2019 Final Rule as
aligning more closely with the intent of
Congress and policies of selfsufficiency.
Response: DHS respectfully disagrees
with the commenter’s assertions. The
commenter did not cite any sources to
support its claims regarding the
insufficiency of eligibility restrictions,
the insufficiency of the affidavit of
support, past increases in public
benefits use by noncitizens, or written
policies regarding the use of different
types of public benefits by noncitizens.
DHS notes that most noncitizens who
are eligible for public benefits are not
subject to the public charge ground of
inadmissibility.
2. Impacts of the 2022 Proposed Rule
Comment: Many commenters
supported the proposed rule as a means
to mitigate the chilling effects of prior
public charge policies. Commenters
stated that the rule will avoid
unnecessary burdens on applicants,
officers, and benefits-granting agencies
while mitigating the possibility of
widespread chilling effects with respect
to individuals disenrolling or declining
to enroll themselves or family members
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in public benefits programs for which
they are eligible. Commenters also
stated that the rule will allow
immigrants better access to nutritional
services and healthcare and in turn
lower mortality rates among immigrant
communities and improve the overall
U.S. economy. One commenter also
remarked that the rule would limit
negative impacts by reducing the
number of individuals who disenroll or
elect to not enroll in healthcare
programs and, due to the reduction of
disenrollment from these programs, no
longer shift the cost of care from less
costly preventive care to the more costly
emergency care.
Response: DHS agrees that this rule
will avoid some of the chilling effects of
prior public charge policies by ensuring
that the rules governing the application
of the public charge ground of
inadmissibility are clear and that public
charge inadmissibility determinations
will be fair, consistent with law, and
informed by relevant data and evidence.
DHS also agrees that the rule will avoid
unnecessary burdens on applicants,
officers, and benefits-granting agencies
while mitigating the possibility of
widespread chilling effects with respect
to individuals disenrolling or declining
to enroll themselves or family members
in public benefits programs for which
they are eligible. In this rulemaking
effort, DHS considered the former INS’s
approach to chilling effects in the 1999
Interim Field Guidance and 1999
NPRM, the 2019 Final Rule’s discussion
of chilling effects, judicial opinions on
the role of chilling effects, evidence of
chilling effects following the 2019 Final
Rule, and public comments on chilling
effects received in response to the
ANPRM and the NPRM.
Comment: Many commenters stated
that this rule will discourage
noncitizens from seeking needed public
assistance, with one commenter stating
that non-enrollment persists despite
those noncitizens helping to fund those
programs through income taxes.
Commenters who opposed the proposed
rule stated that regardless of the actual
definitions and text, it will only
exacerbate mass homelessness, poverty,
unemployment, hunger, and
deteriorating mental and economic
health, and lead to more of the chilling
effects that resulted from the 2019 Final
Rule, negatively impacting the health,
safety, and well-being of immigrants.
Another commenter stated that to
enforce a rule that prevents those in
need from obtaining necessary medical
and nutritional assistance is immoral,
particularly while in the midst of a
pandemic. One commenter feared that
this rule will disproportionately cause
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chilling affects among noncitizens with
disabilities, because people may not
apply for the services they need and to
which they are legally entitled because
they are afraid of the immigration
consequences. Another commenter also
said the chilling effect makes it more
difficult for community-based providers
to reach older adults and people with
disabilities most in need of support.
Some commenters generally
supported the approach taken in the
proposed rule as compared to the 2019
Final Rule, but expressed concern that
adding clarity to the public charge
definition will do little to eliminate
chilling effects and that the chilling
effects not only have an impact on
immigrants, but on communities as a
whole. They wrote that including State
and local benefits, current and past use
of public benefits, as well as Medicaid
for long-term institutionalization, still
increases fear and confusion, and the
chilling effects caused by the 2019 Final
Rule will not be alleviated and mixedstatus families will suffer.
Several commenters stated that the
best way to reduce the chilling effect is
to remove any consideration of public
benefits from the public charge
inadmissibility determination and to
conduct robust outreach and education
to explain the elimination of the 2019
Final Rule. One of those commenters
stated that the consideration of public
benefits creates an administrative
burden to local government to keep
immigrants informed and contributes to
the harmful misperception that
immigrants are present in the United
States only to take and receive, which
results in immigrants experiencing
mistreatment and even violence, and
harms overall public health and the
economy.
Response: DHS disagrees that this rule
will perpetuate the chilling effects of
prior rulemaking efforts. While DHS
acknowledges that that 2019 Final Rule
caused fear and confusion among U.S.
citizens and noncitizens, even among
those who were not subject to the rule
and with respect to public benefits that
were not covered by the rule, with this
rule DHS is working to mitigate the
effects of that prior rulemaking. In
drafting this rule, DHS endeavored to
give more thorough consideration to the
potential chilling effects of
promulgating regulations governing the
public charge ground of inadmissibility.
In considering such effects, DHS took
into account the former INS’s approach
to chilling effects in the 1999 Interim
Field Guidance and 1999 NPRM, the
2019 Final Rule’s discussion of chilling
effects, judicial opinions on the role of
chilling effects, evidence of chilling
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effects following the 2019 Final Rule,
and public comments on chilling effects
submitted in response to the ANPRM
and NPRM.
DHS appreciates that the
consideration of the past and current
receipt of certain benefits in public
charge inadmissibility determinations
has resulted and may continue to result
in chilling effects, notwithstanding that
few categories of noncitizens are subject
to the public charge ground of
inadmissibility and eligible for such
public benefits. However, DHS
nonetheless believes that it is important
to consider a noncitizen’s past or
current receipt of certain benefits, to the
extent that such receipt occurs, as part
of the public charge inadmissibility
determination, as such receipt can be
indicative of future primary dependence
on the government for subsistence. DHS
notes that Congress appears to have
recognized that past receipt of at least
some public benefits may be properly
considered in determining the
likelihood of someone becoming a
public charge, as evidenced by its
prohibition against considering the
receipt of public benefits that were
authorized under 8 U.S.C. 1641(c) for
certain battered noncitizens.182 As DHS
wrote in the 2019 Final Rule, DHS
believes that Congress’ prohibition of
consideration of prior receipt of public
benefits by a specific class of
noncitizens indicates that Congress
understood and accepted consideration
of past receipt of public benefits in other
circumstances. However, DHS has never
believed that this requires DHS to
consider receipt of all such benefits.
Comment: One commenter stated that
the proposed rule should be revoked, as
it is very similar to the 2019 Final Rule,
which was deemed unlawful and is
dangerous for the public at large, and
had harmful consequences for the U.S.
economy in the midst of a pandemic.
Response: DHS disagrees that this rule
is unlawful, dangerous to the public, or
harmful to the U.S. economy. DHS has
determined that, in contrast to the 2019
Final Rule, this rule would effectuate a
more faithful interpretation of the
statutory phrase ‘‘likely at any time to
become a public charge’’; avoid
unnecessary burdens on applicants,
officers, and benefits-granting agencies;
and mitigate the possibility of
widespread ‘‘chilling effects’’ with
respect to individuals disenrolling or
declining to enroll themselves or family
members in public benefits programs for
which they are eligible, especially with
respect to individuals who are not
182 See
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subject to the public charge ground of
inadmissibility.
Comment: One commenter stated that
the proposed rule has a chilling effect
on parents with children in U.S.
schools, and that school districts should
not forward household income
information used to determine
eligibility for critical school services
that can be later used to deport a parent
or caregiver based on current or past
financial status.
Response: As indicated elsewhere in
this rule, in making public charge
inadmissibility determinations, DHS
would consider the statutory minimum
factors, the affidavit of support (if
required), and receipt of cash assistance
for income maintenance and long-term
institutionalization at government
expense. DHS did not propose to collect
any information from schools and has
not imposed such a requirement here.
The specific suggestion, as it relates to
the actions of school districts, is outside
the scope of the rulemaking, particularly
because this rule does not apply to any
determinations regarding deportability.
3. General Suggestions for Addressing or
Limiting Chilling Effects
Comment: Commenters stated that
DHS should be aware that clear and
simple rules are the least likely to have
chilling effects and will benefit officers
and organizations. One commenter
wrote that while the 1999 Interim Field
Guidance was ‘‘indisputably superior’’
to the 2019 Final Rule, even the 1999
Interim Field Guidance ‘‘created
confusion and an unnecessary chilling
effect.’’ 183 They suggested DHS begin
the final rule with a simply worded
executive summary or prominently
displayed simple and clear description
of the limited circumstances in which
noncitizens already in the United States
are and are not subject to a public
charge inadmissibility assessment, and
the effective date of the new regulations
and proposed public charge
inadmissibility determination process.
Two commenters also recommended
that multiple government agencies that
administer public benefits issue public
letters annually clarifying which
programs that they administer are
considered in public charge
inadmissibility determinations and
which are not. Commenters stated that
the incorporation of clear language will
help service providers respond to
immigrant families’ concerns that they
will be penalized under some future
rule for receiving benefits that the
proposed rule does not take into
consideration because immigrants and
their families receive critical support
from a variety of programs funded by
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various entities. One commenter
emphasized the importance of clear
guidance for how to apply the rule and
prioritizing communication given that
any changes to public charge policy will
lead to misinformation about which
benefits will impact a noncitizen’s
ability to enter the United States or
adjust their immigration status. One
commenter stated that any lack of
clarity regarding the implementation of
the various elements of the rule permits
reviewing officers to exercise discretion
in a way that invites personal bias
against applicants.
Another commenter similarly
suggested that to mitigate the chilling
effects of the 2019 Final Rule and this
rule, DHS should expressly clarify in
this final rule that utilization of
Medicaid for healthcare, SNAP, and
public housing, whether past or current,
should never be considered in a public
charge inadmissibility determination.
Response: DHS appreciates and
understands commenters’ concerns
about using clear and clarifying
language in this rule. In drafting this
rule, DHS believes it provided
clarification in its definitions as well as
to which public benefits will be
considered in a public charge
inadmissibility determination. For
example, as noted in the NPRM,
defining ‘‘likely at any time to become
a public charge’’ as likely at any time to
become primarily dependent on the
government for subsistence provides a
clear connection between the exact
language used in section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), and the
regulatory definition.184 Additionally,
this rule establishes key regulatory
definitions for ‘‘public cash assistance
for income maintenance,’’ ‘‘long-term
institutionalization at government
expense,’’ ‘‘receipt (of public benefits),’’
‘‘government,’’ and ‘‘household.’’
DHS appreciates the suggestion that
chilling effects could be ameliorated by
public communications efforts,
including annual letters, by benefitsgranting agencies which clarify how the
programs that they administer interact
with this rule, if at all. Although such
communications materials are not part
of the rulemaking, DHS is planning a
robust communication effort in
conjunction with and immediately
following the publication of this rule
and notes the helpful suggestions of
commenters that such efforts involve
collaboration with agencies that
administer public benefits.
Some commenters suggested DHS
begin this rule with a simply worded
executive summary and DHS has
184 87
FR at 10607 (Feb. 24, 2022).
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obliged (see above Executive Summary
section). As for the comment suggesting
that DHS expressly clarify in the rule
that DHS will not consider the receipt
of SNAP, public housing, or Medicaid
for anything other than long-term
institutionalization in a public charge
inadmissibility determination, DHS has
added language to 8 CFR 212.22(a)(3)
stating that DHS will not consider
receipt of, or certification or approval
for future receipt of, public benefits not
referenced in 8 CFR 212.21(b) or (c),
such as Supplemental Nutrition
Assistance Program (SNAP) or other
nutrition programs, Children’s Health
Insurance Program (CHIP), Medicaid
(other than for long-term use of
institutional services under section
1905(a) of the Social Security Act),
housing benefits, any benefits related to
immunizations or testing for
communicable diseases, or other
supplemental or special-purpose
benefits. As for the suggestion that using
clear language about which benefits are,
and are not, considered under this rule
may help service providers respond to
immigrant families’ concerns that they
will be penalized under some future
rule for receiving such benefits, DHS
notes that it cannot affect the policy
decisions in future rules by the use of
such language but changes to the
clarifying regulatory text discussed
above would require an amendment to
the regulations.
As with any new regulation, the
regulated public may need to read and
become familiar with the regulation to
understand how it applies. DHS will
also issue guidance and may further
revise such guidance as necessary after
it has gained experience with the new
regulatory regime.
Comment: Commenters expressed
appreciation for DHS’s acknowledgment
of chilling effects and the attempts to
lessen their harm through this
rulemaking but expressed fear that the
chilling effects would continue unless
DHS engaged in a comprehensive
information campaign. Many
commenters suggested that DHS clearly
communicate to the public that the 2019
Final Rule is no longer in effect so that
the health and care of people in need
will be better sustained.
Commenters stated that DHS should
clearly and prominently list in all
communications about the final rule
and in the executive summary of the
final rule all the benefits that will be
considered as part of the public charge
inadmissibility determination and
emphasize that no other benefits will be
taken into account. One commenter
pointed out that a list, rather than a
technical definition, is more useful and
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comprehensible for those seeking to
understand the scope of the public
charge assessment. The commenter
cited a 2021 study by No Kid Hungry
that found that in a survey of adults
with family or friends who are
noncitizens, 50 percent of respondents
said that knowledge about changes to
public charge regulations would make
them more likely to use safety net
programs when necessary.185 One
commenter suggested DHS maintain a
streamlined mechanism for submitting
questions about benefits that may be
considered in a public charge
inadmissibility determination, which
will allow noncitizens to be more
confident and certain they can access
listed programs without endangering
their immigration status, result in fewer
calls to a State program, and make it
easier for the State to serve the
community by allowing them to
streamline training and
communications.
Several commenters recommended
that multiple government agencies draft
letters that distinguish SSI and TANF
from other ‘‘cash-related’’ programs that
their agencies oversee, to be posted on
DHS’s public charge resource page and
updated annually to include new
programs in order to reduce the chilling
effect of this rule and the previous 2019
Final Rule. Many commenters stated
that communication and outreach
efforts must be available in multiple
languages and have clear links to
translated versions on the web page.
Commenters suggested a variety of
communication strategies and materials,
emphasizing the importance of
multilingual outreach and diverse
methods of performing this outreach.
Commenters stated that immigration
policies should not discourage
immigrants and their family members
from seeking physical or mental health
care, nutrition, or housing benefits for
which they are eligible, and
recommended DHS make a concerted
effort to educate and affirm that an
individual’s temporary use of assistance
will not negatively impact their
immigration status.
Some commenters recommended that
in furtherance of the Biden
administration’s commitment to
promote equity and restore faith in our
immigration systems, DHS partner with
Federal and State agencies that operate
public health programs to implement a
nationwide outreach and education
185 No Kid Hungry, ‘‘Public Charge was
Reversed—But Not Enough Immigrant Families
Know’’ (Dec. 2021). https://www.nokidhungry.org/
sites/default/files/2021-12/NKH_Public%20charge_
Micro-Report_English_0.pdf (last visited Aug 15,
2022).
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effort to combat fear of utilization of
public assistance programs and restore
trust among immigrant families.
Commenters said that DHS should also
clearly communicate to parents of all
children, both noncitizen children and
U.S. citizen children, to reinforce that
benefits received by children are not
considered as part of any public charge
inadmissibility determination, because
both U.S. citizen children and
noncitizen children have been
detrimentally impacted by the false
belief that a child’s use of benefits
would have immigration consequences
for their parents or family members and
it is important that families understand
a child’s use of benefits will not have
immigration consequences. One
commenter recommended that DHS
clearly communicate to parents and
caregivers that their own use of benefits,
other than TANF and SSI, will not be
considered in a public charge
inadmissibility determination. For
example, they recommended that DHS
clarify that SNAP benefits and housing
benefits supporting the whole family
will not be taken into account so that
parents and caregivers can access these
programs without fear of immigration
consequences and children’s access to
critical benefits will not be impacted.
Commenters suggested DHS provide
sample language to or coordinate with
States and benefit granting agencies to
create easy-to-understand materials with
government agency logos to include on
forms and public-facing websites.
Response: DHS remains interested in
public input regarding ways to shape
public communications around the final
rule to mitigate chilling effects among
U.S. citizens and noncitizens, including
the great majority of noncitizens who
are either ineligible for the public
benefits covered by this rule prior to
admission or adjustment of status or are
exempt from the public charge ground
of inadmissibility. Although such
communications materials are not part
of the rulemaking, DHS is keenly aware
of the established effects of its actions
in this policy area and wishes to ensure
that the final rule faithfully applies the
public charge ground of inadmissibility
without causing undue confusion
among the public. To further this, DHS
is planning a robust communication
effort in conjunction with and
immediately following the publication
of this rule.
Comment: Many commenters
recommended that DHS provide
funding to trusted community
organizations, including health and
social services organizations, that will
provide outreach and education to
noncitizens and their families related to
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this rule such as ‘‘know your rights’’
presentations, hotline services, phone
banks, social media engagement, and
train the trainer presentations to
community leaders, because community
organizations are trusted by noncitizens.
Response: DHS appreciates the
recommendations made by commenters
to provide funding to community
organizations that provide outreach and
education related to this rule. As
discussed elsewhere in this preamble,
USCIS intends to conduct its own
robust outreach in advance of
implementing this final rule. Although
recommendations for new grant
programs are outside the scope of the
rulemaking, DHS will take them under
advisement as it implements and
monitors the effects of this rule.
Comment: Commenters indicated that
DHS should invest significantly in
training and retraining immigration
officers and case workers.
Response: USCIS plans to provide its
officers with a solid foundation on and
knowledge of public charge
inadmissibility determinations by
conducting training for officers to
ensure consistency in adjudications.
Additionally, USCIS plans to issue
policy guidance in its USCIS Policy
Manual (https://www.uscis.gov/policymanual), which will include
information from the NPRM, and this
final rule and can be accessed by
potential applicants, officers, and the
public.
Comment: Commenters stated that
despite previous alert boxes and
updates on the USCIS web page seeking
to clarify that testing, treatment, and
vaccination related to COVID–19 would
not be considered as part of a public
charge inadmissibility determination,
there remained widespread fear that
prevented many immigrants and their
family members from seeking medical
care, and the best way to ensure that
people are not afraid to access health
care is to provide a clear, concise
statement that receiving governmentfunded health care or insurance will
never have negative immigration
consequences for immigrants or their
family members. Another commenter
similarly stated that the rule and
outreach materials should also state that
public health assistance for
immunizations for any vaccinepreventable diseases and testing and
treatment of symptoms of
communicable diseases whether or not
such symptoms are caused by a
communicable disease are not included
in a public charge inadmissibility
determination.
Response: With respect to the
comment that the rule should state that
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public health assistance for
immunizations for any vaccinepreventable diseases and testing and
treatment of symptoms of
communicable diseases whether or not
such symptoms are caused by a
communicable disease are not
considered in a public charge
inadmissibility determination, DHS
notes that it has made clear in the
regulatory text that DHS will not
consider the receipt of, or certification
or approval for future receipt of, public
benefits not referenced in 8 CFR
212.21(b) or (c), such as SNAP, CHIP,
Medicaid (other than for long-term use
of institutional services under section
1905(a) of the Social Security Act),
housing benefits, benefits related to
immunizations or testing for
communicable diseases, or other
supplemental or special-purpose
benefits.186
Regarding providing information
about immunizations for any vaccinepreventable diseases and testing and
treatment of symptoms of
communicable diseases that are not
considered under this rule in outreach
materials, DHS notes that although such
communications materials are not part
of the rulemaking, DHS is keenly aware
of the established effects of its actions
in this policy area and wishes to ensure
that the final rule faithfully applies the
public charge ground of inadmissibility
without causing undue confusion
among the public. DHS previously
indicated in the NPRM, is reiterating
here, and will reiterate again in followon guidance, that it will not consider
receipt of treatments or preventative
services related to COVID–19, including
vaccinations, in a public charge
inadmissibility determination.
F. Applicability of the Public Charge
Ground of Inadmissibility
Comment: Some commenters agreed
that DHS should not consider the
receipt of public benefits when
adjudicating extension of stay and
change of status requests. However,
some commenters requested that DHS
amend the rule to include a requirement
that noncitizens seeking an extension of
stay or change of status demonstrate that
they have not, since obtaining their
existing status, become a public charge
or received public benefits sufficient to
be determined to be a public charge. A
commenter remarked that DHS has the
authority to impose conditions on
extension of stay and change of status
and that doing so ensures noncitizens
present in the United States are selfsufficient. The commenter suggested
186 8
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that DHS should require disclosure of
any public benefit on extension of stay
and change of status applications as
well as the submission of a Declaration
of Self Sufficiency by any noncitizen
who discloses the use of a public
benefit.
Response: Although DHS agrees that
it has the authority to set conditions on
requests for extension of stay and
change of status,187 as explained in
more detail in the Other Legal
Arguments section of this rule,
consistent with the NPRM,188 DHS has
concluded that it will not require, as a
condition of an application or petition
for extension of stay or change of status,
that a nonimmigrant disclose the use, if
any, of public benefits since obtaining
the nonimmigrant status that they wish
to extend or change. Because such
conditions would apply to very few, if
any nonimmigrants, DHS finds that the
burden of this inquiry outweighs any
possible benefit that could result. This
is, in part, because nonimmigrants are
generally barred from receiving many of
the public benefits considered in this
rule, such as SSI, TANF, and Medicaid
for long-term institutionalization.189
Additionally, to the extent that
commenters are concerned that a
nonimmigrant seeking an extension of
stay or change of status may not be selfreliant, these concerns are, for many
nonimmigrant categories, addressed
both by the requirements for obtaining
such status in the first instance 190 as
well as the requirements applicable to
their applications and petitions for
extension of stay and change of
status.191 In sum, DHS believes that it
has adequately explained its reasons for
187 INA secs. 214 and 248, 8 U.S.C. 1184 and
1258.
188 87 FR at 10600–10601 (Feb. 24, 2022).
189 8 U.S.C. 1641(b) and (c) (defining ‘‘qualified
aliens’’ for Federal public benefits purposes); 8
U.S.C. 1621 (describing eligibility for State and
local public benefits purposes).
190 See, e.g., 8 CFR 214.1(f)(1)(B) (requiring that
the student presents documentary evidence of
financial support in the amount indicated on the
SEVIS Form I–20 (or the Form I–20A–B/I–20ID)); 8
CFR 214.1(m)(1)(B) (requiring that student
documents financial support in the amount
indicated on the SEVIS Form I–20 (or the Form I–
20M–N/I–20ID).
191 See USCIS, ‘‘Adjudicator’s Field Manual,’’
Chapter 30.3(c)(2)(C) (applicants to change status to
a nonimmigrant student must demonstrate that they
have the financial resources to pay for coursework
and living expenses in the United States) https://
www.uscis.gov/sites/default/files/document/policymanual-afm/afm30-external.pdf (last visited Aug.
16, 2022); USCIS, ‘‘Adjudicator’s Field Manual,’’
Chapter 30.2(c)(3)(D) (DHS will consider an
applicant’s ‘‘financial ability to maintain the status
sought’’ when determining whether to grant change
of status in the exercise of discretion) https://
www.uscis.gov/sites/default/files/document/policymanual-afm/afm30-external.pdf (last visited Aug.
16, 2022).
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not imposing conditions related to the
receipt of public benefits on
nonimmigrants seeking an extension of
stay or change of status and, as a result,
declines to add provisions in this regard
to the rule.
G. Exemptions, Limited Exemption, and
Waivers
Comment: Some commenters
recommended excluding children and
teenagers from the public charge ground
of inadmissibility because of the
difficulty in accurately predicting a
child or teenager’s future likelihood of
becoming primarily dependent on the
government for subsistence.
Response: DHS disagrees that it
should not apply the public charge
ground of inadmissibility to children
because it is difficult to predict a child’s
likelihood of becoming primarily
dependent on the government for
subsistence. While DHS acknowledges
that the public charge inadmissibility
determination is a complex assessment,
the language of section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), requires that
this be a predictive assessment. This is
evidenced by Congress’ use of the terms
‘‘likely at any time’’ and ‘‘become,’’
which clearly indicate that the
assessment should be a prediction based
on the factors that Congress said must
be considered when determining the
likelihood of becoming a public charge.
These statutory mandatory factors
include considering an applicant’s age
when determining whether a noncitizen
is likely to become a public charge at
any time in the future.
While DHS understands that there are
many circumstances that may affect
whether a child ultimately is likely to
become primarily dependent on the
government for subsistence, DHS is
required to make this predictive
assessment when a child is applying for
admission or adjustment of status unless
the child is within one of the categories
expressly exempted by Congress. DHS
notes that Congress did not exclude
children from the public charge ground
of inadmissibility, and, therefore, DHS
must apply the ground to applications
for admission or adjustment of status by
a child unless the child is seeking
admission or adjustment of status in a
classification exempted from the public
charge ground of inadmissibility, for
example adjustment of status as a
special immigrant juvenile.192
Comment: Some commenters
recommended that DHS include in the
rule a presumption that children cannot
be a public charge, barring compelling
evidence to the contrary. One
192 INA
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commenter wrote that children are far
more likely than adults to be enrolled in
TANF (77 percent of total TANF
enrollees were children in FY 2021),193
that use of benefits by a child does not
indicate their likelihood to be a public
charge as an adult, and that children are
not accountable for their presence in the
United States nor any application for
public benefits on their behalf.
Response: DHS disagrees with the
suggestion that there should be a
presumption that children are not likely
at any time to become public charges
absent compelling evidence to the
contrary. Section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), neither permits DHS
to focus the public charge
inadmissibility determination solely on
the applicant’s age (specifically, the fact
that the applicant is a child), nor
supports a presumption that an
applicant who is a child is not likely at
any time to become a public charge. On
the contrary, an applicant’s age is but
one of the statutory minimum factors
that DHS must consider as part of a
public charge inadmissibility
determination.194 Regardless of an
applicant’s age, Congress mandated that
DHS, in every case except where there
is an insufficient Affidavit of Support
Under Section 213A of the INA when
required, consider all of the statutory
minimum factors in assessing whether
an applicant is likely at any time to
become a public charge.195
While DHS acknowledges that
children are far more likely than adults
to be enrolled in TANF, the HHS data
provided by the commenter does not
distinguish between TANF recipients
based on immigration or citizenship
status.196 DHS notes that the great
majority of noncitizens (including
children) are either ineligible for TANF
prior to admission or adjustment of
status or are exempt from the public
charge ground of inadmissibility. It is
unlikely that the children receiving
TANF are both noncitizens who are not
yet lawful permanent residents and
subject to the public charge ground of
inadmissibility. DHS understands that
according to the commenter, the study
and book cited by the commenter state
193 Administration for Children and Families,
‘‘Temporary Assistance for Needy Families (TANF)
Caseload Data—Fiscal Year (FY) 2021’’ (Dec. 20,
2021), https://www.acf.hhs.gov/sites/default/files/
documents/ofa/fy2021_tanf_caseload.pdf.
194 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
195 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
196 Administration for Children and Families,
‘‘Temporary Assistance for Needy Families (TANF)
Caseload Data—Fiscal Year (FY 2021)’’ (Dec. 20,
2021), https://www.acf.hhs.gov/sites/default/files/
documents/ofa/fy2021_tanf_caseload.pdf.
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that public benefit use by children may
lead to increased income throughout
their lifetimes.197 However, under
section 212(a)(4)(A) of the INA, 8 U.S.C.
1182(a)(4)(A), DHS must determine if a
noncitizen ‘‘is likely at any time to
become a public charge’’ (emphasis
added). ‘‘At any time,’’ certainly
includes the period soon after a
noncitizen’s potential admission or
adjustment of status. The questions that
DHS must consider, therefore, are not
only whether a child applicant is likely
to become a public charge at some point
during adulthood but, whether the child
applicant is likely to become a public
charge immediately after admission or
adjustment of status, while still a child.
Finally, Congress has provided
exemptions from the public charge
ground of inadmissibility for certain
groups, including groups to which
children belong, for example applicants
for adjustment of status based on special
immigrant juvenile classification.198
However, Congress has not created a
general exemption for children from the
public charge ground of inadmissibility,
nor has Congress indicated that this
ground of inadmissibility only applies
to noncitizens who are ‘‘accountable’’
for being in the United States or who
intended to immigrate. Similarly, the
statute does not suggest that Congress
intended DHS to consider whether an
applicant received public benefits
because someone applied for such
benefits on their behalf or whether the
applicant had any choice in someone
applying for a benefit on their behalf as
part of a public charge inadmissibility
determination.
Therefore, DHS declines to add a
provision to this rule that would direct
officers to treat an applicant’s age,
specifically the fact that an applicant is
a child, as either outcome-determinative
or as creating a presumption that the
applicant is not inadmissible under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). Instead, under this rule and
as noted in the NPRM, in making public
charge inadmissibility determinations,
DHS will consider the statutory
minimum factors as set forth in the rule
and the applicant’s current and past
receipt of public benefits in the totality
197 The commenter cites to Edwin Park, et al.,
‘‘Jeopardizing a Sound Investment: Why ShortTerm Cuts to Medicaid Coverage During Pregnancy
and Childhood Could Result in Long-Term Harm’’
(Dec. 2020), https://www.commonwealthfund.org/
sites/default/files/2020-12/Park_Medicaid_short_
term_cuts_long-term-effects_ib_v2.pdf and National
Academies of Sciences, Engineering, and Medicine,
‘‘A Roadmap to Reducing Child Poverty’’ (2019),
https://nap.nationalacademies.org/download/
25246 (last visited Aug. 16, 2022).
198 INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
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of the circumstances 199 as well as
favorably consider a sufficient Affidavit
of Support Under Section 213A of the
INA (i.e., a positive factor that makes an
applicant less likely at any time to
become a public charge in the totality of
the circumstances). Finally, DHS
acknowledges the unique position of
children and will provide guidance to
officers on how to faithfully apply the
statute and this final rule given the
circumstances particular to children.
Comment: Many commenters
expressed support for the proposed
rule’s listing of exemptions, limited
exemptions, and waivers, with some
requesting that DHS update publicfacing guidance quickly and regularly to
reflect this list and reduce the chilling
effect on the legitimate use of benefits
for those individuals who are exempt
from the public charge ground of
inadmissibility.
Response: In addition to including a
comprehensive list of exemptions from
the public charge ground of
inadmissibility, which includes a
‘‘catch-all’’ exemption in the event that
Congress adds other exemptions by
legislation,200 USCIS plans to issue
policy guidance in its Policy Manual
(https://www.uscis.gov/policy-manual),
which will include information from the
NPRM and this final rule regarding the
exemptions from the public charge
ground of inadmissibility and can be
accessed by potential applicants. USCIS
will update its Policy Manual as
appropriate to reflect any changes made
by Congress, if any, to the exemptions
from the public charge ground of
inadmissibility.
Comment: Several commenters also
recommended DHS add certain
categories to the list of exempt
categories, including withholding of
removal, parole, suspension of
deportation, Deferred Enforced
Departure, Deferred Action for
Childhood Arrivals, and deferred action.
These commenters recommended that
DHS clarify that the ‘‘catch all’’
exemption in proposed 8 CFR
212.23(a)(29) includes these categories
as well as all ‘‘categories of lawfully
present immigrants,’’ which are not
subject to the public charge ground of
inadmissibility but may qualify for
certain cash assistance programs. One
commenter noted that this
recommendation is aimed at helping to
prevent chilling effects and provide
‘‘protection against adverse
consideration of such benefits for as
many applicable categories of
immigrants as possible.’’ In the
alternative to adding these categories of
noncitizens to the exempt categories
listed in 8 CFR 212.23(a), some
commenters recommended that DHS
add provisions to 8 CFR 212.22 stating
that even though such noncitizens are
not exempt from the public charge
ground of inadmissibility, DHS would
not consider public benefits received by
such noncitizens while they were
present in the United States in such
immigration categories.
Response: The public charge ground
of inadmissibility applies to all
applicants for visas, admission, and
adjustment of status unless exempted
from the ground by Congress.201 The
exemptions that are listed in 8 CFR
212.23 reflect the classes of noncitizens
who are applicants for admission or
adjustment of status but who, as the
commenters acknowledged, Congress
has designated are exempt from the
public charge ground of inadmissibility.
DHS notes, however, that requests for
withholding of removal, parole,
Deferred Enforced Departure, Deferred
Action for Childhood Arrivals, and
deferred action are not applications for
visas, admission, or adjustment of
status, and, therefore, are not subject to
the public charge ground of
inadmissibility. Additionally, DHS
notes that it does not need to include
suspension of deportation under
sections 202(a) and 203 of the
Nicaraguan Adjustment and Central
American Relief Act (NACARA) 202 in
the list of exemptions in 8 CFR
212.23(a) because they are already
included in this rule, in 8 CFR
212.23(a)(7).
Furthermore, to the extent that these
commenters believe that DHS should
not consider in a public charge
inadmissibility determination any
benefits received during a period in
which the noncitizen was present in the
United States while benefiting from
withholding of removal, parole,
Deferred Enforced Departure, Deferred
Action for Childhood Arrivals, deferred
action generally, or in any of the
‘‘categories of lawfully present
immigrants to whom public charge
inadmissibility grounds are
inapplicable,’’ DHS notes that Congress
has not prohibited DHS from
considering any public benefits received
by such noncitizens. In the absence of
such instruction, DHS believes that to
not consider all benefit use by
noncitizens in such categories, which
would encompass all the categories of
noncitizens eligible for SSI, TANF, or
201 See
199 8
CFR 212.22(a)(2), (b).
200 8 CFR 212.23.
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INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
Public Law 105–100, 111 Stat. 2193
(1997), as amended, 8 U.S.C. 1255 note.
202 See
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Medicaid for long-term
institutionalization whose past or
current benefit use may be considered
in a public charge inadmissibility
determination, would be inconsistent
with Congressional intent.
Congress, in enacting PRWORA and
IIRIRA very close in time, made certain
public benefits available to a small
number of noncitizens who are also
subject to the public charge ground of
inadmissibility, even though receipt of
some such benefits could influence a
determination of whether the noncitizen
is inadmissible as likely at any time to
become a public charge.
Under the statute crafted by Congress,
noncitizens generally will not be issued
visas, admitted to the United States, or
permitted to adjust status if they are
likely at any time to become a public
charge. Congress nonetheless recognized
that certain noncitizens present in the
United States who are subject to the
public charge ground of inadmissibility
might reasonably find themselves in
need of public benefits that, if obtained,
could influence a determination of
whether they are inadmissible as likely
at any time to become a public charge.
Consequently, in PRWORA, Congress
allowed certain noncitizens to be
eligible for some public benefits even
though they may later seek a visa,
admission, or adjustment of status and
thereby be subject to the public charge
ground of inadmissibility. However,
Congress, except in very limited
circumstances,203 did not prohibit DHS
from considering the receipt of such
benefits in a public charge
inadmissibility determination under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). In other words, although a
noncitizen may obtain public benefits
for which they are eligible, DHS may
consider the receipt of those benefits for
the purposes of a public charge
inadmissibility determination.
It is consistent with Congressional
intent for DHS to not consider public
benefits received by noncitizens during
periods in which they were (1) present
in an immigration category that is
exempt from the public charge ground
of inadmissibility or (2) eligible for
resettlement assistance, entitlement
programs, and other benefits available to
refugees admitted under section 207 of
the INA, 8 U.S.C. 1157 as described in
this rule. The categories comprise a long
list of vulnerable populations or groups
of noncitizens of particular policy
significance for the United States.
Congress expressed a policy preference
that individuals in these categories
should be able to receive public benefits
203 See
INA sec. 212(s), 8 U.S.C. 1182(s).
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without risking adverse immigration
consequences. DHS believes that
Congress did not intend to later penalize
such noncitizens for using benefits
while in these categories because such
consideration would undermine the
intent of their exemption. Given the
nature of these populations and the fact
that, consistent with specific statutory
authority, they would be exempt from
the public charge ground of
inadmissibility if applying for
admission or, as permitted, adjustment
of status under those categories, it is
reasonable for DHS to exclude from
consideration those benefits that an
applicant received while in a status that
is exempt from the public charge ground
of inadmissibility. However, the same
Congressional intention has not been
expressed for other categories of
noncitizens. DHS therefore will
consider current and/or past benefit
receipt by these other categories of
noncitizens (i.e., parolees, granted
withholding of removal, or any other
categories of lawfully present
immigrants) who received those benefits
when they apply for admission or
adjustment in a category that is subject
to a public charge inadmissibility
determination. We note, however, that
many of those categories of noncitizens
would not be eligible for most public
benefits to begin with. For these
reasons, DHS declines to add the
suggested changes to 8 CFR 212.23.
Comment: Many commenters
recommended DHS strengthen the scope
of protection provisions for vulnerable
immigrants in certain categories by
adding clauses recognizing that the
exemption from the public charge
ground of inadmissibility attaches
regardless of their pathway to
adjustment of status. Specifically, they
recommended that DHS add such
provisions for Violence Against Women
Act (VAWA) self-petitioners and
‘‘qualified aliens’’ under 8 U.S.C.
1641(c), similar to provisions in the
NPRM for T-nonimmigrant and Unonimmigrant exemptions. The
commenters suggested that such
additions would remove unnecessary
barriers for adjustment of status of
noncitizens in these categories.
Response: Under section 212(a)(4)(E)
of the INA, 8 U.S.C. 1182(a)(4)(E),
certain ‘‘qualified alien’’ victims are
exempt from the public charge ground
of inadmissibility. This includes, as the
commenters note, a noncitizen who ‘‘is
a qualified alien described in’’ 8 U.S.C.
1641(c) and who is ‘‘a VAWA selfpetitioner,’’ or an applicant for or
recipient of U nonimmigrant status
under section 101(a)(15)(U) of the INA,
8 U.S.C. 1101(a)(15)(U).
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The commenters were under the
impression that because proposed 8 CFR
212.23(a)(18) and (19) specifically
mention ‘‘seeking an immigration
benefit for which admissibility is
required, including, but not limited to,
adjustment of status under section
245(a) of the Act,’’ that the absence of
such language in proposed 8 CFR
212.23(a)(20) and (21) suggested that the
statutory exemptions from the public
charge ground of inadmissibility for
VAWA self-petitioners and ‘‘qualified
aliens’’ described in 8 U.S.C. 1641(c)
were dependent upon the particular
pathway to LPR status being sought by
the noncitizen. However, DHS notes
that these commenters are mistaken in
their interpretation of the proposed
regulatory text. As they correctly stated,
a noncitizen who ‘‘is a VAWA selfpetitioner’’ or who ‘‘is a qualified alien
described in’’ 8 U.S.C. 1641(c) is exempt
from INA sec. 212(a)(4)(A)–(C), 8 U.S.C.
1182(a)(4)(A)–(C), and this exemption
does not depend on the particular
pathway to LPR status being sought by
the noncitizen.
The language that the commenters
praised in proposed 8 CFR 212.23(a)(18)
and (19) and recommended including in
8 CFR 212.23(a)(20) and (21) is present
due to statutory ambiguities unique to
the adjustment of status of T and U
nonimmigrants. Specifically, there is an
inconsistency between INA sec.
212(a)(4)(E)(iii), 8 U.S.C.
212(a)(4)(E)(iii), and INA sec. 245(l)(2),
8 U.S.C. 1255(l)(2), as the former
provides an exemption from INA sec.
212(a)(4)(A)–(C), 8 U.S.C. 1182(a)(4)(A)–
(C), while the latter states that the
public charge inadmissibility ground
applies to T nonimmigrants but a waiver
is available. This inconsistency is due to
Congress’ failure to amend INA sec.
245(l)(2), 8 U.S.C. 1255(l)(2), when it
created INA sec. 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E), in its current form.
Because the amendments to INA sec.
212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E),204
occurred later in time than the creation
of INA sec. 245(l), 8 U.S.C. 1255(l),205
DHS considers the text and exemption
in INA sec. 212(a)(4)(E)(iii), 8 U.S.C.
1182(a)(4)(E)(iii), controlling. Given the
conflicting statutory provisions, it is
important for DHS to clarify in the
regulatory text of 8 CFR 212.23(a)(18)
that despite INA sec. 245(l), 8 U.S.C.
1255(l), the exemption applies in the
adjustment of status context.
204 See, Sec. 803, Violence Against Women
Reauthorization Act of 2013, Public Law 113–4, 127
Stat. 54 (Mar. 7, 2013).
205 See, Sec. 107(f) of the Victims of Trafficking
and Violence Protection Act of 2000, Public Law
106–386, 114 Stat. 1464 (Oct. 8, 2000).
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While U nonimmigrants do not have
conflicting statutory provisions as just
described for T nonimmigrants, one
could read the exemption language in
INA sec. 212(a)(4)(E)(ii), 8 U.S.C.
1182(a)(4)(E)(ii), as limited to applying
for and being granted U nonimmigrant
status rather than being inclusive of
adjustment of status and any other
immigration benefit for which
admissibility is required. Due to this
potential ambiguity, DHS in this rule
(and in the 2019 Final Rule) clarified in
8 CFR 212.23(a)(19) that the exemption
applies to all immigration benefits for
which admissibility is required,
including, but not limited to,
adjustment of status.
Unlike the T and U nonimmigrants,
the statutory language relating to the
exemptions from INA sec. 212(a)(4)(A)–
(C), 8 U.S.C. 1182(a)(4)(A)–(C), for
VAWA self-petitioners and ‘‘qualified
aliens’’ described in 8 U.S.C. 1641(c)
(apart from the T nonimmigrants) is
straightforward and clear. If the
noncitizen ‘‘is’’ in one of those two
categories, INA sec. 212(a)(4)(A)–(C), 8
U.S.C. 1182(a)(4)(A)–(C), shall not apply
to them. There is no ambiguity in the
statutory language or a conflicting
statutory provision that requires DHS to
clarify the issue within the regulatory
text. For this reason, DHS declines to
make the proposed changes to the rule.
While not raised by the commenters,
DHS points out that the exemptions
found in INA sec. 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E), do not apply to INA sec.
212(a)(4)(D), 8 U.S.C. 1182(a)(4)(D).
Congress did not include paragraph (D)
among the exemptions in section
212(a)(4)(E) of the INA, 8 U.S.C.
1182(a)(4)(E). DHS must presume that
Congress acted intentionally in
requiring all noncitizens described in
paragraph (D) to file the requisite
Affidavit of Support Under Section
213A of the INA, even if they are
described in paragraph (E).206
Accordingly, in the unlikely event that
a noncitizen described in paragraph (E)
seeks admission or adjustment of status
based on an immigrant visa issued
under section 203(b) of the INA, 8
U.S.C. 1153(b), that individual must
comply with the affidavit of support
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206 See,
e.g., Lamie v. U.S. Tr., 540 U.S. 526, 538
(2004) (counseling against interpretative
methodologies that yield ‘‘not . . . a construction
of [a] statute, but, in effect, an enlargement of it by
the court, so that what was omitted, presumably by
inadvertence, may be included within its scope’’);
Yith v. Nielsen, 881 F.3d 1155, 1164 (9th Cir. 2018)
(‘‘It is never our job to rewrite a constitutionally
valid statutory text. Indeed, it is quite mistaken to
assume that whatever might appear to further the
statute’s primary objective must be the law.’’
(citations, quotation marks, and alterations
omitted)).
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requirement in section 213A of the INA,
8 U.S.C. 1183a. Such individuals,
however, would not need to
demonstrate, as set forth in paragraphs
212(a)(4)(A) and (B), 8 U.S.C. 1182(A)
and (B), that they are not likely at any
time to become a public charge.
Comment: One commenter suggested
that DHS clearly provide waivers for
individuals who would otherwise
qualify for protections provided for
victims of domestic violence, sexual
assault, and human trafficking afforded
under VAWA, the Trafficking Victims
Protection Act (TVPA), and other
humanitarian immigration provisions,
but who have not sought such
protections or benefits and are seeking
admission or adjustment of status under
another provision in the INA, such as
through family or employment
sponsorship, the diversity visa program,
or other programs. The commenter
explained that this waiver would
provide increased protection for
survivors and reduce burden on the
immigration system by decreasing
additional processing of immigration
applications and reducing pressure on
immigration court dockets.
Response: The waivers that are listed
in 8 CFR 212.23(c) reflect the classes of
noncitizens who are applicants for
admission or adjustment of status, and
therefore subject to the public charge
ground of inadmissibility, but who
Congress has designated as eligible to
seek a waiver of inadmissibility. DHS
notes that only Congress can establish a
waiver for this ground of
inadmissibility. Accordingly, to the
extent that this commenter believes that
DHS should expand the waivers of the
public charge ground of inadmissibility
to include victims of domestic violence,
sexual assault, and human trafficking
who might be eligible for certain
benefits under VAWA, the TVPA, and
other humanitarian immigration
provisions, but who have not sought
such benefits and who are seeking
admission or adjustment of status under
a category to which the public charge
ground of inadmissibility applies, DHS
disagrees.
Congress, through legislation, decides
to whom the public charge ground of
inadmissibility applies, which classes of
noncitizens are exempt from the ground,
and which can obtain a waiver of the
ground. Although DHS understands the
desire to expand waivers to be available
to victims of domestic violence, sexual
assault, and human trafficking, the only
waivers presently available are for
applicants for admission as
nonimmigrants under section
101(a)(15)(S) of the INA, 8 U.S.C.
1101(a)(15)(S), nonimmigrants admitted
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under that provision who are applying
for adjustment of status under section
245(j) of the INA, 8 U.S.C. 1255(j), and
the waiver under INA sec. 212(d)(3), 8
U.S.C. 1182(d)(3), for noncitizens
applying for a nonimmigrant visa or
admission as a nonimmigrant. DHS is
not authorized to expand the waivers
beyond those decided by Congress and
as a result, DHS declines to adopt this
commenter’s recommendation.
Comment: Several commenters
recommended removing the
requirement that T and U
nonimmigrants must be in valid T or U
visa status at the time of filing the
application for adjustment of status as
well as at the time of adjudication of the
adjustment of status application in order
to adjust under section 245(a) of the
INA, 8 U.S.C. 1255(a), or to seek another
immigration benefit for which
admissibility is required, as this
limitation is unnecessary and could
undermine the effectiveness of the
exemptions at protecting these
immigrants.
Response: As noted above, section
804 of VAWA 2013, which added
section 212(a)(4)(E)(iii) of the INA, 8
U.S.C. 1182(a)(4)(E)(iii), specifically
excludes noncitizens, such as ‘‘qualified
aliens’’ described in 8 U.S.C. 1641(c)
(including those granted T
nonimmigrant status and those with a
pending prima facie application for T
nonimmigrant status) and noncitizens
who are applicants for or have been
granted U nonimmigrant status, from
section 212(a)(4)(A), (B), and (C) of the
INA, 8 U.S.C. 1182(a)(4)(A), (B), and (C).
Additionally, T nonimmigrants seeking
to adjust status under section 245(a) of
the INA, 8 U.S.C. 1255(a) (with a limited
exception), and section 245(l) of the
INA, 8 U.S.C. 1255(l), are not subject to
the public charge ground of
inadmissibility for purposes of
establishing eligibility for adjustment of
status provided that the T
nonimmigrants are in valid T
nonimmigrant status at the time the
Form I–485 is properly filed in
compliance with 8 CFR 103.2(a)(7) and
throughout the pendency of an
application.207 As with the U
207 See 8 CFR 103.2(b)(1) (an applicant or
petitioner must establish that they are eligible for
the requested benefit at the time of filing the benefit
request and must continue to be eligible through
adjudication); see also Matter of Alarcon, 20 I&N
Dec. 557, 562 (BIA 1992) (‘‘an application for
admission to the United States is a continuing
application, and admissibility is determined on the
basis of the facts and the law at the time the
application is finally considered’’). DHS notes that
although VAWA 2013 did not amend section
245(l)(2) of the INA, 8 U.S.C. 1255(l)(2), which
provides that DHS may waive the application of the
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nonimmigrants discussed below, DHS
points out that Congress used present
tense language ‘‘is a qualified alien
described in’’ 8 U.S.C. 1641(c) in
describing the exemption for T
nonimmigrants. If a noncitizen was in
the past ‘‘a qualified alien described in’’
8 U.S.C. 1641(c) but no longer is such
a ‘‘qualified alien’’ at the time that their
benefit request is filed with USCIS or at
the time that the benefit request is
adjudicated, the noncitizen no longer
meets the requirements of INA sec.
212(a)(4)(E)(iii), 8 U.S.C.
1182(a)(4)(E)(iii), and INA sec.
212(a)(4)(A)–(C), 8 U.S.C. 1182(a)(4)(A)–
(C), would apply to the noncitizen.
Furthermore, consistent with section
804 of VAWA 2013,208 which, as noted
above, added new section 212(a)(4)(E) of
the INA, 8 U.S.C. 1182(a)(4)(E), an
individual who is an applicant for, or is
granted, U nonimmigrant status is
exempt from the public charge ground
of inadmissibility. However, DHS
believes that for this exemption from the
public charge ground of inadmissibility
to apply, the U nonimmigrant must hold
and be in valid U nonimmigrant status
at the time the Form I–485 is properly
filed in compliance with 8 CFR
103.2(a)(7) and throughout the
pendency of an application.209 U
nonimmigrant status is not indefinite
but rather is granted for a finite period
of time, generally not to exceed 4 years
in the aggregate.210 In addition, U
nonimmigrant status can be revoked.211
DHS believes that the most reasonable
interpretation of ‘‘or is granted,
nonimmigrant status under’’ INA sec.
101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U), is
that the exemption only applies while
the noncitizen has an active grant of U
nonimmigrant status given the present
tense of ‘‘is granted.’’ If Congress had
intended for the exemption to persist
even after the noncitizen was no longer
in U nonimmigrant status, they could
have indicated this in the statutory text
by choosing a different verb tense. The
law does not permit DHS to add
language to the statute.
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H. Definitions
Comment: One commenter stated that
the lack of enrollment in public benefits
due to ongoing fear and confusion in the
public charge ground of inadmissibility if it is in
the national interest to do so for a T nonimmigrant
seeking to adjust status to lawful permanent
residence under section 245(l) of the INA, 8 U.S.C.
1255(l), DHS concludes, however, that the VAWA
2013 amendments, which postdated the enactment
of section 245(l)(2) of the Act, 8 U.S.C. 1255(l)(2),
are controlling.
208 See Public Law 113–4, 127 Stat. 54 (2013).
209 See 8 CFR 212.23(a)(19)(ii).
210 See 8 CFR 214.14(g)(1).
211 See 8 CFR 214.14(h).
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immigrant community will not improve
without clear definitions of ‘‘public
charge,’’ ‘‘primarily,’’ ‘‘public cash
assistance,’’ and ‘‘long-term
institutionalization.’’
Response: Rather than defining the
term ‘‘public charge’’ separately, DHS
believes that defining ‘‘likely at any
time to become a public charge’’ to
mean ‘‘likely at any time to become
primarily dependent on the government
for subsistence, as demonstrated by
either the receipt of public cash
assistance for income maintenance or
long-term institutionalization at
government expense,’’ 212 as well as
defining the phrases ‘‘public cash
assistance for income maintenance’’ 213
and ‘‘long-term institutionalization at
government expense,’’ 214 achieves the
necessary clarity. Officers have been
applying a similar standard for over 20
years before and after the 2019 Final
Rule was in effect, and DHS does not
believe that further clarification is
necessary.
DHS again emphasizes that the intent
of this rule is to ensure fair public
charge inadmissibility determinations
consistent with section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4). DHS also
anticipates that this rule will help
alleviate the chilling effects caused by
the 2019 Final Rule.
1. Likely at Any Time To Become a
Public Charge
Comment: Several commenters
supported the definition of ‘‘likely at
any time to become a public charge’’
proposed by DHS in its entirety. One of
those commenters noted that case law
reflects that from the time the term
‘‘public charge’’ was first used by
Congress in 1882 until the 2019 Final
Rule, ‘‘public charge’’ was broadly
understood to mean a person primarily
or entirely dependent on the
government for subsistence.215
Response: DHS agrees that the
definition for ‘‘likely at any time to
become a public charge’’ in this rule is
consistent with the historical
understanding of the public charge
inadmissibility ground. This position is
reinforced by the cases cited by the
commenter, which highlight that the
historical understanding of ‘‘public
charge’’ has been one of ‘‘dependence
on public assistance for survival’’ 216
212 See
8 CFR 212.21(a).
8 CFR 212.21(b).
214 See 8 CFR 212.21(c).
215 The commenter cited to City and County of
San Francisco v. USCIS, 981 F.3d 756 (9th Cir.
2020) and New York v. DHS, 969 F.3d 42, 74 (2d
Cir. 2020).
216 City and County of San Francisco v. USCIS,
981 F.3d 756 (9th Cir. 2020).
213 See
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and a reliance ‘‘on the government for
subsistence.’’ 217
Comment: One commenter opposed
allowing officers to make a prospective
assessment in a public charge
inadmissibility determination, as it
invites officers’ subjective biases into
the determination.
Response: The public charge
inadmissibility determination is
necessarily prospective in nature based
on the language of the statute. Indeed,
through this rulemaking, DHS is
implementing the congressional
mandate to assess an applicant’s
likelihood at any time of becoming a
public charge based on, at a minimum,
the factors that Congress put into
place.218 As DHS noted in the NPRM,219
this rule is consistent with the statutory
wording, in that the statute uses the
phrase ‘‘likely at any time,’’ which
suggests that the public charge
inadmissibility determination is a
forward-looking, prospective
determination that is made at the time
of the application for a visa, admission,
or adjustment of status.
DHS also agrees, as noted in the
NPRM,220 that the public charge
inadmissibility determination is
inherently subjective in nature given the
express wording of section 212(a)(4)(A)
of the INA, 8 U.S.C. 1182(a)(4)(A),
which states that the public charge
inadmissibility determination is ‘‘in the
opinion of’’ DHS.221 Insofar as this rule
reflects the prospective nature of this
ground of inadmissibility and the
subjective nature of the determination
as set by Congress, DHS declines to
eliminate the prospective
determination.
Comment: One commenter
recommended DHS clarify the word
‘‘likely,’’ as the lack of specificity in the
definition creates an opportunity for
confusion or over-reach.
Response: To the extent that this
commenter suggests that DHS should
define the term ‘‘likely’’ to avoid officers
217 New York v. DHS, 969 F.3d 42, 74 (2d Cir.
2020).
218 See INA sec. 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B).
219 87 FR at 10606–10607 (Feb. 24, 2022).
220 87 FR at 10579 (Feb. 24, 2022).
221 See Matter of Harutunian, 14 I&N Dec. 583,
588 (Reg’l Cmm’r 1974) (‘‘[T]he determination of
whether an alien falls into that category [as likely
to become a public charge] rests within the
discretion of the consular officers or the
Commissioner . . . Congress inserted the words ‘in
the opinion of’ (the consul or the Attorney General)
with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial
review.’’ (citation omitted)); see also Matter of
Martinez-Lopez, 10 I&N Dec. 409, 421 (Att’y Gen.
1962) (‘‘[U]nder the statutory language the question
for visa purposes seems to depend entirely on the
consular officer’s subjective opinion.’’).
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applying the statute inconsistently or
abusing their discretion, DHS disagrees
that a separate definition is needed.
DHS has been applying the ‘‘likely to
become primarily dependent on the
government for subsistence’’ standard
for public charge inadmissibility
determinations for over 20 years (with
the exception of the period during
which the 2019 Final Rule was in effect)
and believes that the definitions in the
rule sufficiently explain to officers that
the focus of the inquiry is on whether
an applicant is likely to become
primarily dependent on the government
for subsistence. As explained in the
NPRM, DHS defined the term ‘‘likely’’
as ‘‘more likely than not’’ in the 2019
Final Rule.222 DHS continues to believe
that this interpretation is appropriate.
Therefore, DHS does not believe that it
needs to further define the term ‘‘likely’’
to ensure that officers properly exercise
the fact-specific, discretionary
determination required by Congress in
the statute,223 and declines to make
changes to the rule in this regard.
Comment: One commenter
recommended DHS adjust the definition
for ‘‘likely at any time to become a
public charge’’ to clearly indicate that
public charge inadmissibility
determinations are prospective, and to
include the relevant time for likelihood
of becoming a public charge is ‘‘at any
time in the future.’’ Another commenter
recommended that DHS clarify the
phrase ‘‘at any time’’ to avoid confusion.
Response: As noted above, section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
uses the term ‘‘at any time,’’ which
indicates that the public charge
inadmissibility determination is a
forward-looking, prospective
determination that is made at the time
of the application for a visa, admission,
or adjustment of status. Consistent with
the wording Congress used in enacting
the public charge ground of
inadmissibility, DHS has included a
provision in this final rule that makes it
clear that the public charge
inadmissibility determination is a
determination of a noncitizen’s
likelihood of becoming a public charge
at any time in the future, based on the
totality of the circumstances.224 Insofar
as DHS has already clarified that the
public charge inadmissibility
determination is forward-looking, DHS
222 87
FR at 10607–10608 (Feb. 24, 2022).
223 See INA sec. 212(a)(4)(A), 8 U.S.C.
1182(a)(4)(A) (‘‘Any alien, who in the opinion of the
consular officer at the time of application for a visa,
or in the opinion of the Attorney General at the time
of the application for admission or adjustment of
status, is likely at any time to become a public
charge is inadmissible.’’).
224 See 8 CFR 212.22(b).
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does not believe it is necessary to add
‘‘in the future’’ to the definition of
‘‘likely at any time to become a public
charge’’ and declines this commenter’s
suggestion.
Comment: One commenter suggested
that the final rule could be strengthened
by including a time limit for the
prospective test to create a clearer
standard for officers, which would lead
to more consistent adjudication. For
instance, DHS could limit the forwardlooking part of the test to 5 years, which
is the length of time it generally takes
for an LPR to be eligible to apply for
naturalization. The same commenter
suggested 3 years as an alternative,
based on the length of time it generally
takes for an LPR married to a U.S.
citizen to be eligible to apply for
naturalization, or to limit the forwardlooking period to any time prior to
naturalization. The commenter justified
the recommendation of a fixed time
limit to provide a clearer standard for
USCIS officers and increase the
likelihood that the standard would be
implemented consistently. The
commenter also noted that given an
indefinite window, almost anyone is at
risk of experiencing financial distress
that could lead to public benefit use.
Response: DHS disagrees with
limiting the forward-looking aspect of
the public charge ground of
inadmissibility to any specific period of
time, including five years or three years
as the commenter suggests. While
commenters are correct that lawful
permanent residents generally are
eligible to naturalize after five years,225
the public charge ground of
inadmissibility does not have such
specific temporal limits. Indeed,
Congress directed the agencies
administering the public charge ground
of inadmissibility to determine whether
the applicant is likely, at any time, to
become a public charge, without
explicit mention of the fact that the
applicant may ultimately naturalize.
While DHS appreciates the commenter’s
proposal and acknowledges that a fixed
time limit for the prospective
determination might be easier for DHS
to implement, DHS declines to adopt
this suggestion because Congress has
not authorized DHS to set specific
temporal limits on the prospective
public charge inadmissibility
determination.
a. Comments on ‘‘Primarily Dependent’’
Comment: Many commenters
supported the standard of primary
dependence, with some emphasizing
the supplementary nature of some
225 See
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public benefits and stating that the
definition allows for the possibility of
an applicant having and maintaining
their main source of income and being
assisted by non-cash benefits if needed,
without being primarily dependent on
the government. Commenters remarked
that the primarily dependent language
strikes an appropriate balance between
providing a definition in line with the
statutory intent without overly
confining definitions; and appropriately
avoids any numerical analysis or
threshold that is likely to be overinclusive.
Response: As explained in the NPRM
and throughout this final rule, DHS
believes that this rule’s ‘‘primarily
dependent on the government for
subsistence’’ standard, which is
evidenced by the receipt of public cash
assistance for income maintenance or by
long-term institutionalization at
government expense, is more consistent
with Congressional intent, as well as the
historical meaning of the term ‘‘public
charge,’’ than the definition contained
in the 2019 Final Rule.
Comment: One commenter
recommends that DHS define ‘‘likely at
any time to become a public charge’’ as
likely to become primarily dependent
on the government for subsistence, as
demonstrated by the long-term receipt
of Federal cash assistance for income
maintenance. This commenter indicated
that these modifications to the
definition would clarify that
dependence must be prolonged and
would limit the public benefits
considered to Federal cash assistance
for income maintenance. The
commenter stated that federal courts
have recognized that these definitions
and clarifications align with wellestablished legal and historical
understandings of ‘‘public charge.’’ 226
Response: DHS does not believe that
these modifications to the definition are
warranted. As explained elsewhere in
this preamble, DHS believes that the
standard in this rule is clear and
familiar to both the public and DHS
officers, as it was the standard that DHS
used for over 20 years before and after
the 2019 Final Rule was in effect. The
‘‘primary dependence’’ standard
identifies individuals who are
dependent on the government without
other sufficient means of support. DHS
226 Citing City and County of San Francisco v.
USCIS, 981 F. 3d 742, 756 (9th Cir. 2020). New York
v. DHS, 969 F.3d 42, 74 (2d Cir. 2020), cert
dismissed, 141 S. Ct. 1292 (2021). Cook County v.
Wolf, 962 F.3d 208, 216 (7th Cir. 2020) (quoting
‘‘Inadmissibility and Deportability on Public Charge
Grounds,’’ 64 FR 28676, 28677 (May 26, 1999)). See
also New York, 969 F.3d at 71 (determining
meaning of public charge based on ‘‘historical
administrative and judicial interpretations’’).
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believes that receipt of public cash
assistance for income maintenance,
even for a short period of time, may
reasonably be considered as part of the
totality of the circumstances analysis.
As the 1999 Interim Field Guidance
stated, the longer ago a noncitizen
received such cash benefits (or was
institutionalized on a long-term basis at
government expense), the less weight
these factors will have as a predictor of
future receipt. In addition, the longer a
noncitizen has received cash incomemaintenance benefits in the past and the
greater the amount of benefits, the
stronger the implication that the
noncitizen is likely to become a public
charge. Positive factors in the
noncitizen’s case demonstrating an
ability to be self-supporting may
overcome the negative implication of
past receipt of such benefits or past
institutionalization.227
Ultimately, DHS believes that the
‘‘primary dependence’’ standard
identifies individuals who are
dependent on the government without
other sufficient means of support, as
opposed to individuals whose
dependence on the government for
income or institutionalization is
transient or merely supplementary. So,
for example, institutionalization for a
short period of rehabilitation would not
constitute primary dependence.
However, dependence on public cash
assistance for income maintenance need
not be ‘‘prolonged’’ to constitute
primary dependence.
As DHS discusses in more detail
below, DHS does not believe that it is
reasonable to focus exclusively on the
receipt of Federal cash assistance for
income maintenance given that receipt
of State, Tribal, territorial, or local cash
assistance generally serves the same
purpose and can be similarly indicative
of future primary dependence on the
government for subsistence, depending
on the recency, amount, and duration of
receipt.
Comment: Commenters suggested that
receipt of public benefits to address
temporary situations, such as
pregnancy, should not be considered
primary dependence. The commenters
reasoned that accessing safety-net
programs when pregnant is important
for ensuring prenatal health, which can
prevent long-term health needs.
Commenters also stated that the receipt
of benefits during natural disasters or
other extraordinary circumstances, such
as the COVID–19 pandemic or in the
aftermath of hurricanes and wildfires, is
due entirely to external events and does
not provide any information on the
recipient’s likelihood of becoming
primarily reliant on government
assistance at a future date.
One commenter additionally
recommended advertising that
participation in basic nutrition
programs does not demonstrate primary
dependence on the government, because
school nutrition professionals serving
communities with large immigrant
populations have stated that families are
increasingly hesitant to apply for critical
nutrition benefits due to confusion on
the interpretation of public charge.
Response: Under this rule, DHS will
not consider receipt of non-cash
benefits, with the exception of long-term
institutionalization at government
expense (including Medicaid when used
for that purpose).228 Therefore, DHS
will not consider most Medicaid
benefits, as well as SNAP, CHIP, WIC,
or other non-cash, supplemental, or
special-purpose benefit programs. These
programs assist many low-income
individuals in remaining employed and
self-sufficient. As indicated in the
NPRM, DHS, and the INS before it, have
never considered free or subsidized
school lunches, home energy assistance,
childcare assistance, or special
nutritional benefits for children and
pregnant individuals to be the types of
public benefits that should be
considered in a public charge
inadmissibility determination,
notwithstanding that each could
conceivably have some nexus to future
primary dependence on the government
(or, in the case of the 2019 Final Rule,
some nexus to future receipt of
designated benefits above that rule’s
durational threshold).229
As indicated previously, DHS will
consider the recency, amount, and
duration of receipt of any cash
assistance for income maintenance, as
well as any long-term
institutionalization at government
expense, when determining whether a
noncitizen is likely to become primarily
dependent on the government for
subsistence. Given the list of public
benefits considered, and that most
noncitizens are not eligible for these
programs, however, these
considerations will not often be present.
As a result, DHS does not think that it
should exclude from consideration all
public benefits received by pregnant
persons during pregnancy and after,
although if a covered benefit was
228 See
227 See
‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28690 (May 26, 1999).
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8 CFR 212.22(a)(3).
‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28692–28693 (May 26, 1999).
229 See
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received during pregnancy, DHS could
take the surrounding circumstances into
account in the totality of the
circumstances.
In addition, DHS will not consider
disaster or pandemic assistance as those
benefits are for a specific purpose—
dealing with the natural disasters
(including hurricanes or wildfires) or
pandemics and their aftermath.
Comment: Several commenters
disagreed with the ‘‘primarily
dependent’’ definition as the standard of
determining whether a noncitizen is
likely at any time to become a public
charge. One commenter stated that
Congressional policy objectives are
reflected in more than a century of
statutes aimed at ensuring that
noncitizens do not rely on public
benefits, and the policies behind those
statutes are summed up in PRWORA.
Several commenters stated that the
proposed rule uses the guise of longstanding precedent to narrowly define
critical concepts, including public
charge and the types of public benefits
that could lead to such a determination.
Another commenter stated that the
narrow definitions distort the actual
cost of immigrants’ participation in
public assistance programs and ignore
the harm that such costs inflict on the
States. Several commenters stated that
Congress explicitly did not want
noncitizens drawn to the United States
by the promise of reliance on public
benefits at taxpayer expense. These
commenters stated that limiting the
determination of a public charge to a
noncitizen who is primarily dependent
on public benefits ignores the fact that
the noncitizen may still rely heavily on
public benefits, even if they do not rely
primarily on a benefit for subsistence,
would allow many noncitizens to
receive substantial public benefits
without being determined to be a public
charge. One of these commenters stated
that this will encourage the use of
public benefits while simultaneously
rendering useless the public charge
ground of inadmissibility.
Commenters disagreed with DHS’s
statement that the definition should not
include a person who receives benefits
from the government to help meet some
needs but is not primarily depending on
the government because the person also
has one or more sources of independent
income or resources upon which the
individual primarily relies. These
commenters stated that Congress’
express policy is to avoid reliance on
the government for support and
contended that it is unclear why a
noncitizen who relies on support,
regardless of the type or purpose,
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should not be determined to be a public
charge.
Response: DHS disagrees with these
commenters. As discussed in the section
dealing with Congressional intent, DHS
believes that the rule’s definition of
public charge is consistent with
Congressional intent. While DHS agrees
that Congress has stated that the
availability of public benefits should not
form an incentive for immigration, DHS
does not believe that Congress intended
the exclusion of individuals who merely
receive special-purpose benefits to
supplement existing income or bridge
temporary circumstances. In addition,
DHS believes that the policy contained
in this rule appropriately accounts for
other important congressional policy
objectives, such as protecting public
health, the wellbeing of U.S. citizen
children, and the stability of families
and communities.
For instance, under the 2019 Final
Rule, which the above commenters
favored, a noncitizen could be deemed
inadmissible if DHS found the
noncitizen likely to receive as little as
$20 a month in SNAP benefits for a
year. DHS does not believe that the term
‘‘public charge’’ necessarily
encompasses such a circumstance. In
addition, the past or current existence of
such a circumstance is of limited value
in determining whether a person is
likely at any time to become primarily
dependent on the government for
subsistence.230
In the 2019 Final Rule, DHS
acknowledged that some people might
receive the designated public benefits in
small amounts but noted that (at the
household level) this happened rarely
relative to circumstances in which the
household received over $150 a month.
DHS reasoned that the 2019 Final Rule’s
adverse treatment of low-level benefit
receipt was ‘‘to some extent a
consequence of having a bright-line rule
that (1) provides meaningful guidance to
aliens and officers, (2) accommodates
meaningful short-term and intermittent
access to public benefits, and (3) does
not excuse continuous or consistent
public benefit receipt that denotes a lack
of self-sufficiency during a 36-month
period.’’ 231 DHS ultimately concluded
that the standard in that rule
230 See Memorandum from Sasha Gersten-Paal,
Director, Program Development Division, Food and
Nutrition Service, U.S. Department of Agriculture,
to All State Agencies, ‘‘SNAP—Fiscal Year 2022
Cost-of-Living Adjustments’’ (Aug. 16, 2021),
https://www.fns.usda.gov/snap/fy-2022-cost-livingadjustments (last visited Aug. 15, 2022) (‘‘The
minimum benefit for the 48 states and DC will
increase to $20 and will also increase in Alaska,
Guam, Hawaii and the U.S. Virgin Islands.’’).
231 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41361 (Aug. 14, 2019).
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‘‘appropriately balance[d] the relevant
considerations, and that even an alien
who receives a small dollar value in
benefits over an extended period of time
can reasonably be deemed a public
charge, because of the nature of the
benefits designated by [that] rule.’’ 232
DHS has reconsidered its position on
this matter and does not believe that the
approach taken in the 2019 Final Rule
was necessary to achieve an
administrable rule or to effectuate a
policy consistent with the principle of
immigrant self-sufficiency. Moreover,
with respect to the specific point made
by the commenter, DHS observes that
this rule is far more consistent with
historical approaches to the public
charge ground of inadmissibility than a
rule that takes into consideration all or
nearly all use of formerly designated
public benefits, let alone a rule that
would define a person as a public
charge for having received benefits of
such little monetary value.
DHS also disagrees with the
comments stating that the definitions in
this rule distort the cost of immigrants’
participation in public benefit programs.
While the commenters wrote that the
2019 Final Rule ‘‘saved states money,’’
they did not adequately explain this
claim or provide evidence to support it.
Instead, they assert generally that the
disenrollment effects of the 2019 Final
Rule reduced both the costs for States to
administer the programs as well as the
States’ portion of the benefits
themselves, and alleged that the
proposed rule would increase those
costs. DHS notes that most applicants
for admission and adjustment of status
are not eligible for public benefits, and
most categories of noncitizens who are
eligible for such benefits are also
exempt, by statute, from the public
charge ground of inadmissibility.233
Reducing costs by causing confusion
among those who are not covered by the
rule, leading them to forgo benefits for
which they are eligible, would not be a
desirable effect even if the rule were
found to have that effect. This comment
is addressed in more detail in the Costs
232 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41361 (Aug. 14, 2019).
233 See, e.g., Cook County v. Wolf, 962 F.3d 208,
236–37 (7th Cir. 2020) (Barrett, J., dissenting) (‘‘The
upshot is that the [2019 Final Rule] will rarely
apply to a noncitizen who has received benefits in
the past. . . . Notwithstanding all of this, many
lawful permanent residents, refugees, asylees, and
even naturalized citizens have disenrolled from
government-benefit programs since the public
charge rule was announced. Given the complexity
of immigration law, it is unsurprising that many are
fearful about how the rule might apply to them.
Still, the pattern of disenrollment does not reflect
the rule’s actual scope.’’).
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and Impacts, Economic Analysis
Comments & Responses section.
Comment: Some commenters
suggested that DHS should modify the
‘‘primarily dependent’’ standard. One
commenter suggested an alternative
definition of ‘‘likely at any time to
become a public charge’’ by replacing
the word ‘‘primarily’’ with the words
‘‘exclusively and persistently.’’ This
commenter stated that ‘‘primarily’’ is a
vague formulation that lacks clear
standards to evaluate benefits received
and provides no guidance on concrete
time periods or objective elements to
assess the reasons why a person
obtained benefits. The commenter
further stated that the ‘‘primarily
dependent’’ standard invites arbitrary
and inconsistent public charge
adjudications. The commenter stated
that reliance on government benefits
should count negatively only in those
narrow situations where there is no
probability that the applicant would
ever be capable of self-support under
any scenario, independent of
government benefits, in a totality of
circumstances review. The commenter
stated that this approach would align
with the Second Circuit’s view that the
term public charge has a settled
meaning reflecting a persistent
dependence that goes beyond mere
receipt of public benefits.234 The
commenter further stated that DHS
should not penalize individuals for
obtaining benefits designed to help
people make ends meet when wages are
insufficient or nonexistent or to secure
adequate housing, nutrition, health
services, or even training and education
and that people should be able to
receive benefits for periods of time to
cover periods of illness, dislocation, etc.
until they are able to provide for
themselves.
One commenter said that using
‘‘exclusively’’ would accurately capture
DHS’s stated intention that a public
charge is a person who relies on
government support without other
means, while ‘‘primarily’’ is ambiguous,
invites discretion, is overly broad, and
is inconsistent with the stated intent.
Several other commenters
recommended the definition require
that reliance on the government be
necessary to avoid destitution. Another
commenter supported the longstanding
‘‘primary dependence’’ standard but
recommended that DHS further refine
the definition to require that
dependence on government support be
permanent. This commenter indicated
that DHS should not count short-term
234 New York v. DHS, 969 F.3d 42, 74 (2d Cir.
2020).
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reliance on public benefits against
individuals, particularly when such
reliance is due to job loss, illness, or
other temporary conditions.
Response: DHS disagrees with the
commenter’s statements that the
‘‘primarily dependent’’ standard is
vague and subject to inconsistent
application. DHS has been applying this
standard since the 1999 Interim Field
Guidance was published (with the
exception of the time period during
which the 2019 Final Rule was in
effect). To the extent that difficulties in
applying the standard arise, DHS may
issue interpretative guidance informed
by the terms of the statute and rule, as
well as the relevant data. DHS agrees
that evidence of persistent and/or
exclusive dependence on the
government for subsistence without any
countervailing evidence that a
noncitizen would be able to support
themselves in the future would likely
lead to the finding that a noncitizen is
likely at any time to be primarily
dependent on the government for
subsistence. In addition, while DHS
agrees that some degree of persistent
dependence is reflected in the primary
dependence standard (e.g., long-term
institutionalization suggests persistent
dependence), DHS does not agree that
such dependence must be exclusive
(i.e., that there must be evidence that a
noncitizen is unable to meet any of their
needs without government assistance).
Similarly, to the extent that
commenters are suggesting that when
looking at the likelihood of becoming
primarily dependent on the government
for subsistence, DHS should be
assessing the likelihood of becoming
primarily dependent on the government
solely on a permanent basis, DHS
disagrees. DHS notes, however, that
evidence establishing that an applicant
is primarily dependent on the
government for subsistence on a
permanent basis would lead to a finding
that an applicant is inadmissible on the
public charge ground.
DHS also disagrees that the statute
demands such a high standard. While
DHS acknowledges that the Second
Circuit issued the strongest
pronouncement regarding the statutory
meaning of the term ‘‘public charge,’’ 235
it was not the only court to consider the
235 New York v. DHS, 969 F.3d 42, 64, 74 (2d Cir.
2020) (‘‘We start our analysis below by considering
whether Congress has spoken to its intended
meaning of the statutory term ‘public charge’ and
conclude that it has done so. . . . The settled
meaning of ‘public charge,’ as the plain meaning of
the term already suggests, is dependency: being a
persistent ‘charge’ on the public purse. And as we
explain further below, the mere receipt of benefits
from the government does not constitute such
dependency.’’).
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meaning of the term. The Ninth Circuit
found that the agency departed from the
historical interpretation of the term,236
and the Fourth and Seventh Circuits
found the term to be ambiguous and
open to reasonable agency
interpretation, and the Supreme Court
stayed the injunctions that were upheld
by the Second (and Seventh) Circuits.237
As noted in the NPRM,238 although
the term ‘‘public charge’’ does not have
a single clear meaning, its basic thrust
is clear: significant reliance on the
government for support. This has been
the longstanding purpose of the public
charge ground of inadmissibility;
individuals who are unable or unwilling
to work to support themselves, and who
do not have other nongovernmental
means of support such as family
members, assets, or sponsors, are at the
core of the term’s meaning. Individuals
who are likely to primarily rely on their
own resources as well as some
government support—even if they could
be reliably identified—are less readily
characterized as likely to become public
charges. DHS does not believe that the
term is best understood to include a
236 City
and County of San Francisco v. USCIS,
981 F.3d 742, 756–58 (‘‘From the Victorian
Workhouse through the 1999 Guidance, the concept
of becoming a ‘public charge’ has meant
dependence on public assistance for survival. Up
until the promulgation of this Rule, the concept has
never encompassed persons likely to make shortterm use of in-kind benefits that are neither
intended nor sufficient to provide basic sustenance
. . . For these reasons we conclude the plaintiffs
have demonstrated a high likelihood of success in
showing that the Rule is inconsistent with any
reasonable interpretation of the statutory public
charge bar and therefore is contrary to law.’’).
237 See Cook County v. Wolf, 962 F.3d 208, 226
(7th Cir. 2020). (‘‘As the district court recognized,
there is abundant evidence supporting Cook
County’s interpretation of the public-charge
provision as being triggered only by long-term,
primary dependence. But the question before us is
not whether Cook County has offered a reasonable
interpretation of the law. It is whether the statutory
language unambiguously leads us to that
interpretation. We cannot say that it does. As our
quick and admittedly incomplete overview of this
byzantine law has shown, the meaning of ‘public
charge’ has evolved over time as immigration
priorities have changed and as the nature of public
assistance has shifted from institutionalization of
the destitute and sick, to a wide variety of cash and
in-kind welfare programs. What has been consistent
is the delegation from Congress to the Executive
Branch of discretion, within bounds, to make
public-charge determinations.’’); Casa de Maryland
v. Trump, 971 F.3d 220, 229 (4th Cir. 2020)
(rehearing granted) (‘‘[T]he public charge provision
has led for almost a century and a half a long and
varied life, with different administrations
advancing varied interpretations of the provision,
depending on the needs and wishes of the nation
at a particular point in time. To be sure, the public
charge provision ties alien admissibility to
prospective alien self-sufficiency. But within that
broad framework, Congress has charged the
executive with defining and implementing what
can best be described as a purposefully elusive and
ambiguous term.’’).
238 87 FR at 10606 (Feb. 24, 2022).
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person who receives benefits from the
government to help to meet some needs
but is not primarily dependent on the
government, and instead has one or
more sources of independent income or
resources upon which the individual
primarily relies.
As indicated in the NPRM, and this
final rule, when making public charge
inadmissibility determinations, DHS
intends to analyze the factors set forth
in this rule in the context of each
noncitizen’s individual
circumstances.239 When looking at past
or current receipt of public benefits as
potentially indicative of a likelihood of
primary dependence on the government
for subsistence, DHS will look at the
recency, amount, and duration of such
dependence. Finally, DHS plans to issue
guidance for officers and the public.
While not outcome determinative, this
guidance would be intended to better
ensure that the regulatory standard is
appropriately and consistently applied.
In conclusion, DHS is declining to
modify the standard in accordance with
the above suggestions.
b. General Comments on the Inclusion
or Exclusion of Specific Public Benefits
Comment: Several commenters stated
that DHS should exclude from
consideration all current or past receipt
of public benefits. Other commenters
focused on exclusion of all temporary
current or past receipt of public
benefits. Others asked DHS to exclude
all non-cash benefits, including longterm institutionalization. One of those
commenters stated that they opposed
consideration of public benefits because
nonimmigrant visa holders and
undocumented immigrants are
ineligible for Federal means-tested
public benefits and there should
therefore be no current or past public
benefit use for DHS to consider. Other
commenters similarly opposed the
inclusion of consideration of receipt of
any public benefits because of a concern
that people will avoid all benefits due
to the confusion regarding the scope of
the public charge inadmissibility
determination. Still other commenters
opposed such inclusion because the
consideration is not mandated by either
PRWORA or IIRIRA.
Response: DHS disagrees with
commenters that it should eliminate all
consideration of current or past receipt
of public benefits, or that it should not
consider temporary use of such benefits.
While DHS acknowledges that relatively
few noncitizens subject to the public
charge ground of inadmissibility are
eligible for the public benefits
239 See
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considered under this rule prior to
applying for a visa, admission or
adjustment of status, DHS believes that
when certain public benefits are
received, such receipt can be indicative
of future primary dependence on the
government for subsistence. Moreover,
Congress appears to have recognized
that past receipt of public benefits is
properly considered in determining
likelihood of someone becoming a
public charge, as evidenced by its
prohibition against considering the
receipt of public benefits that were
authorized under 8 U.S.C. 1641(c) for
certain battered noncitizens.240 DHS
believes that Congress’ prohibition of
consideration of prior receipt of public
benefits by a specific class of
noncitizens indicates Congress
understood and accepted consideration
of past receipt of public benefits in other
circumstances.
DHS notes that section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), only
designates statutory minimum factors
and otherwise grants discretion to the
Secretary to establish a regulatory
framework for making public charge
inadmissibility determinations. As part
of the exercise of that discretion, DHS
has added the consideration of past and
current receipt of certain public benefits
to the list of factors officers will
consider when making public charge
inadmissibility determinations. While
not required to do so, DHS has
determined that past or current receipt
of public cash assistance for income
maintenance or long-term
institutionalization at government
expense is probative for determining
whether a noncitizen will become
primarily dependent on the government
for subsistence in the future. As
discussed throughout this final rule,
DHS will take any such receipt into
consideration in the totality of the
circumstances including the recency,
duration, and amount of receipt.
Comment: One commenter
recommended that DHS not consider
direct cash assistance, SSI, or other
public benefits used by individuals with
disabilities who are using those benefits
specifically because they are individuals
with disabilities. The commenter
acknowledged that use of public
benefits is only one part of the public
charge inadmissibility determination,
but stated that because officers have
high caseloads and make decisions
using paper evidence, they may fail to
consider the relationship between using
one public benefit and another. The
commenter stated that eliminating the
consideration of public benefits would
240 See
INA sec. 212(s), 8 U.S.C. 1182(s).
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benefit immigrants with disabilities who
rely on these programs. The commenter
recommended instead that USCIS ‘‘limit
the discussion to an immigrant’s
financial circumstances sans their
receipt of public benefits, as is required
by law. In situations where the
immigrant’s only income is public
benefits, we recommend that this be
recorded neutrally without reference to
specific benefits (such as by stating that
the immigrant does not earn income and
having this fact, rather than the
individual benefits, be considered
relevant to the determination).’’
Response: As discussed in more detail
below, DHS disagrees that it should
exclude from consideration all public
benefits used by individuals with
disabilities. As for other applicants,
current or prior use of public cash
assistance for income maintenance or
long-term institutionalization at
government expense could, in
conjunction with other factors, be
predictive of primary dependence on
the government for subsistence. To be
clear, this final rule is unequivocal on
the point that DHS cannot use the very
fact of disability alone to conclude that
a noncitizen is likely at any time to
become a public charge.
It was not clear from these comments
why the commenter believed that
officers would have difficulty
considering the relationship between
different kinds of benefit use for this or
any other pool of applicants. However,
officers will only consider the receipt of
public cash assistance for income
maintenance and long-term
institutionalization at government
expense. As explained in the NPRM,
DHS will not consider the use of home
and community-based services (HCBS),
and will also take into consideration
any evidence that a person was longterm institutionalized at government
expense in violation of their rights. DHS
has clarified in this final rule that the
noncitizen’s household income does not
include income from public benefits
listed in 8 CFR 212.21(b).241 In addition,
relevant changes to the Form I–485
collect information regarding the
noncitizen’s household income, assets,
and financial status separately from
information about past or current
receipt of public benefits.
Comment: One commenter stated that
healthcare received by asylees, refugees,
and noncitizens without lawful status
should be considered in a public charge
inadmissibility determination until the
Biden Administration shifts funding
from USAID or the UN to reimburse
241 8
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U.S. taxpayers for funding short- and
long-term ‘‘charity’’ hospital care.
Response: Refugees and asylees are
exempt from the public charge ground
of inadmissibility by statute, and those
exemptions are reflected in new 8 CFR
212.23(a)(1) and (2). DHS will not
consider any public benefits received by
these populations. Some populations of
noncitizens who entered the United
States without inspection or are in the
United States without a lawful
immigration status may be subject to the
public charge ground of inadmissibility
if they seek to adjust status to that of a
lawful permanent resident. In instances
where the public charge ground of
inadmissibility applies, DHS will
consider such noncitizens’ past or
current receipt of public cash assistance
for income maintenance or long-term
institutionalization at government
expense. In addition, to the extent these
individuals are subject to the affidavit of
support requirement, benefit-granting
agencies can move to enforce such
affidavits of support in order to be
reimbursed for the cost of benefits
provided. However, DHS is not the
Federal agency tasked with the
enforcement of affidavits of support.
Similarly, DHS is not aware of any
initiatives whereby USAID or the UN
would cover the cost of medical care for
certain noncitizens.
Comment: One commenter
commended DHS for obtaining on-therecord letters from HHS and USDA
concerning the public charge ground of
inadmissibility and the benefits that
those agencies administer. The
commenter strongly encouraged DHS to
obtain similar letters from six other
federal agencies, implying that those
letters should similarly discuss the
benefits that the agencies administer
and the relationship of those benefits to
the public charge ground of
inadmissibility.
Response: DHS will not be including
any additional letters with this final
rule. In the published NPRM, DHS
included letters from both HHS and
USDA, and DHS believes those letters
continue to support issuance of this
final rule.
c. Comments on ‘‘Subsistence’’
Comment: One commenter expressed
agreement with DHS’s standard of
‘‘primarily dependent,’’ but
recommended replacing ‘‘for
subsistence’’ with ‘‘for a recent and
sustained amount of time with little
prospect for change.’’ The commenter
stated that the 1999 Interim Field
Guidance indicated that recency and
length are more predictive, and that
DHS should not define subsistence by
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reference to benefits that families use to
support work, such as health care,
nutrition, or housing assistance. The
commenter stated that this
recommended definition is aligned with
the longstanding interpretation of the
law.
Response: DHS agrees with the
commenter that it should consider the
recency and duration of public benefit
receipt when making a determination
regarding whether a noncitizen is likely
at any time to become primarily
dependent on the government.
However, DHS is also limiting the list of
public benefits considered as part of a
public charge inadmissibility
determination to those benefits most
indicative of primary dependence on
the government, namely public cash
assistance for income maintenance and
long-term institutionalization at
government expense. As explained
throughout this final rule, this approach
satisfies DHS’s objective to faithfully
administer this ground of
inadmissibility while also being
mindful of the potential indirect effects
of its actions on a wide range of
government programs. DHS is not
adopting the suggestion proposed by
this commenter, given that the
regulatory framework finalized in this
rule already takes into account the
recency and duration of public benefit
receipt.
d. Proposals for Specific Thresholds
Comment: One commenter
recommended that DHS further define
‘‘primarily dependent’’ to indicate cash
assistance for income maintenance
comprising 75 percent to 100 percent of
a person’s income, so as to clarify the
definition and reduce the chilling effect
of the use of common cash benefit
programs. Another commenter indicated
that DHS should avoid any numerical
analysis or threshold because an attempt
to find a one-size-fits all threshold is
likely to be over-inclusive and not
sufficiently nimble to account for the
myriad of ways in which older adults
access government benefits.
Response: DHS appreciates these
recommendations and has decided not
to define ‘‘primarily dependent’’ in
terms of a numerical threshold in this
final rule. DHS believes that setting a
numerical threshold in this context is
unnecessary and might in certain
respects or circumstances be viewed as
arbitrary. In addition, this approach
would be unnecessarily inflexible and
take away from the individualized
determinations that are contemplated by
the statutory language. DHS considers
the word ‘‘primarily’’ to have its
ordinary meaning—namely main, chief,
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principal, of first importance, or
foremost.242 The longstanding
‘‘primarily dependent’’ standard has
never been accompanied by a numerical
threshold, and the commenter did not
provide any examples of past standards
setting a numerical threshold in this
respect.
2. Public Cash Assistance for Income
Maintenance
Comment: Two commenters
supported the rule’s determination that
public cash assistance for income
maintenance includes SSI, TANF, or
State, Tribal, territorial, or local cash
benefit programs for income
maintenance because they are intended
to maintain a person at a minimum level
of income. One commenter stated that
by modifying the definition to ‘‘cash
assistance,’’ the rule mitigates the
impact of an applicant’s use of public
benefits and is a positive modification
to the public charge standard.
Most commenters supported DHS’s
proposal to exclude most noncash
benefits from consideration. Many
commenters agreed that noncash
benefits are supplemental benefits and
that DHS should exclude programs not
intended for income maintenance, such
as CHIP, SNAP, or Medicaid, other than
Medicaid for long-term
institutionalization at government
expense, from a public charge
inadmissibility determination.
Commenters added that numerous
public benefit programs and resources
are vital to foster healthy individuals
and communities, including public
assistance programs that provide
medical care and health insurance, food
and nutrition, and housing assistance.
One commenter stated that most
immigrants who receive benefits like
SNAP or Medicaid are employed or are
married to someone who works—a sign
that their family is working but workers
are in low-paid jobs. The commenter
described an analysis of Census data
showing that 77 percent of working-age
immigrants (18 to 64) who received one
or more of six benefits (TANF, SSI,
Medicaid, SNAP, housing assistance, or
General Assistance) during 2020 also
worked during the year or were married
to a worker. For half of working-age
immigrants who received benefits, the
work was year-round, that is, 50 weeks
242 See, e.g., Board of Governors v. Agnew, 329
U.S. 441, 446 (1947) (holding that the word
‘‘primarily’’ means ‘‘first,’’ ‘‘chief,’’ or ‘‘principal’’
but can also mean ‘‘essentially,’’ ‘‘fundamentally,’’
or ‘‘substantially’’ (such that more than one activity
could be principal)); Malat v. Riddell, 383 U.S. 569,
571–72 (1966) (holding that ‘‘primarily’’ means ‘‘of
first importance’’ or ‘‘principally’’).
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of the year or more.243 The share who
are working or married to a worker
would be higher if one looks over
multiple years. The commenter wrote
that because a large majority of people
who are immigrants and receive these
benefits are in families that include
people who work, the commenter
agreed that it is consistent with the
intent of the law not to include noncash
benefits including SNAP, housing
assistance, and Medicaid in the
definition of public benefits.
These commenters support not
including these benefits in the list of
public benefits considered in public
charge inadmissibility determinations.
Response: DHS agrees with these
commenters. As discussed in the NPRM,
the structure of means-tested benefits
programs—many of which were
changed significantly in 1996, one
month after the last amendment to the
public charge ground of
inadmissibility—supports the view that
predicted participation in non-cash
programs is not a good indicator that a
noncitizen is likely to become a public
charge. Many modern public assistance
programs take the form of payments or
in-kind benefits to help individuals
meet particular needs and are not
limited to individuals without a
separate primary means of support. The
Medicaid program, subsidized housing,
and SNAP provide benefits to millions
of individuals and families across the
nation, many of whom also work.244
One analysis of the 2019 Final Rule
found that ‘‘[i]n a single year, 24
percent—nearly 1 in 4—of U.S.-born
citizens receive one of the main benefits
in the [rule’s] definition . . . . Looking
at benefit receipt at any point over a 20year period, approximately 41 to 48
percent of U.S.-born citizens received at
least one of the main benefits in the
public charge definition.’’ 245 Although
243 The commenter reported that it analyzed the
March 2021 Current Population Survey and
considered participation in six forms of assistance
covered by the 2019 Final Rule and available in the
annual Census data: the individual’s Medicaid or
SSI participation and the family’s SNAP, housing,
TANF, or General Assistance participation.
244 For instance, in July 2021, over 76 million
individuals were enrolled in Medicaid, of whom
between 42 and 44 million were adults. See
Medicaid.gov, ‘‘July 2021 Medicaid & CHIP
Enrollment Trends Snapshot,’’ https://
www.medicaid.gov/medicaid/national-medicaidchip-program-information/downloads/july-2021medicaid-chip-enrollment-trend-snapshot.pdf (last
visited Aug. 18, 2022).
245 Danilo Trisi, ‘‘Administration’s Public Charge
Rules Would Close the Door to U.S. to Immigrants
Without Substantial Means,’’ Center on Budget and
Policy Priorities (Nov. 11, 2019), at 4, https://
www.cbpp.org/research/immigration/
administrations-public-charge-rules-would-closethe-door-to-us-to-immigrants (last visited Aug. 15,
2022). The analysis also observed that ‘‘[i]n
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the public charge ground of
inadmissibility does not apply to most
participants in these programs, and
notwithstanding that the 2019 Final
Rule took a different view as a
consequence of a different approach to
the concept of ‘‘self-sufficiency’’ and a
decision to cover a wider range of
public benefits, it would seem not to
comport with common usage to describe
so many Americans as being public
charges.246 Relatedly, all such non-cash
program participants require a separate
source of income to meet a number of
basic needs. Cash assistance programs,
on the other hand, are typically reserved
for individuals with few if any other
sources of income.247 In addition,
because cash assistance is not restricted
to particular uses, receipt of cash
assistance—which often coincides with
the receipt of other means-tested
benefits 248—allows an individual to
contrast, only about 5 percent of U.S.-born citizens
meet the [1999 Interim Field Guidance] benefitrelated criteria in the public charge
[inadmissibility] determination.’’ Ibid.
246 In the 2018 NPRM, DHS stated that ‘‘[c]ash aid
and non-cash benefits directed toward food,
housing, and healthcare account for significant
federal expenditure on low-income individuals and
bear directly on self-sufficiency,’’ and emphasized
the significant impact, in terms of overall
expenditures, of non-cash benefit programs such as
Medicaid and SNAP. See ‘‘Inadmissibility on Public
Charge Grounds,’’ 83 FR 51114, 51160 (Oct. 10,
2018). At the same time, DHS acknowledged that
‘‘receipt of noncash public benefits is more
prevalent than receipt of cash benefits’’ (ibid.), and
DHS cited data indicating that over 20 percent of
the U.S. population receives Medicaid, SNAP, or
Federal housing assistance, whereas 3.5 percent of
the U.S. population receives cash benefits (id. at
51162). DHS acknowledges that non-cash benefits
programs involve significant expenditures of
government funds, but the Department believes that
the term ‘‘public charge’’ is best interpreted by
reference to the degree of an individual’s
dependence on the government for support, rather
than the scale of overall government expenditures
for particular programs. And DHS has limited
consideration of past receipt of public benefits to
the benefits covered by this rule for the reasons
stated throughout this preamble.
247 See, e.g., HHS Office of Family Assistance,
‘‘Characteristics and Financial Circumstances of
TANF Recipients, FY 2010’’ (Aug. 8, 2012), https://
www.acf.hhs.gov/ofa/data/characteristicsandfinancial-circumstances-tanf-recipients-fiscalyear2010 (last visited Aug. 15, 2022) (‘‘In FY 2010,
about 17 percent of TANF families had non-TANF
income.’’); SSA, ‘‘Fast Facts & Figures About Social
Security’’ (2021), https://www.ssa.gov/policy/docs/
chartbooks/fast_facts/2021/fast_facts21.pdf (among
SSI recipients, ‘‘[e]arned income was most
prevalent (4.1%) among those aged 18–64’’); GAO,
GAO–17–558, ‘‘Federal Low-Income Programs:
Eligibility and Benefits Differ for Selected Programs
Due to Complex and Varied Rules’’ (June 2017), at
23–24 (illustrating income eligibility thresholds for
a hypothetical family of three, and showing lower
income eligibility thresholds for SSI ($1,551) and
TANF ($0 to $1,660, depending on the State) as
compared to SNAP ($2,184), Housing Choice
Vouchers ($1,613 to $4,925, depending on the
program and State), and Medicaid ($218 to $5,359,
depending on the beneficiary’s age and the State)).
248 See, e.g., Center on Budget and Policy
Priorities, ‘‘Policy Basics: Supplemental Security
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become dependent on the government
in a way that participation in one or
more non-cash benefits programs
cannot. For example, an individual who
receives only non-cash assistance would
need another source of income to
acquire various basic necessities like
clothing or household items, while an
individual who receives cash assistance
could rely on that assistance, potentially
combined with non-cash government
benefits, to the exclusion of any other
independent source of income or
support.
When deciding to limit consideration
to public cash assistance for income
maintenance and ‘‘institutionalization
for long-term care’’ at government
expense,249 both the former INS and
DHS consulted with benefit-granting
agencies. The former INS concluded
that cash assistance for income
maintenance and long-term
institutionalization at government
expense constituted the best evidence of
whether a noncitizen is primarily
dependent on the government for
subsistence.250 DHS’s general approach
to public benefits in this rule also better
advances the multiple policy objectives
established by Congress. This rule is an
effort to faithfully implement the public
charge ground of inadmissibility
without unnecessarily and at this point,
predictably, harming separate efforts
related to health and well-being of
people whom Congress has made
eligible for supplemental supports.
Comment: Many commenters
suggested explicitly including a list in
the regulatory text, not just the preamble
of the final rule, of public benefits that
would not be included in a public
charge inadmissibility determination, as
well as providing a non-exclusive list of
examples of public benefits not
included. These commenters explained
that this would clearly communicate to
entities administering these benefits,
recipients of benefits, and officers those
benefits which benefits are not covered.
Response: DHS has included such a
non-exclusive list in the final regulatory
text. DHS intends to further address this
issue in future guidance.
Income’’ (Feb. 8, 2021), https://www.cbpp.org/
research/social-security/supplemental-securityincome (‘‘Over 60 percent of SSI recipients also get
SNAP (food stamps) and about one-quarter receive
housing assistance.’’) (last visited Aug. 18, 2022).
249 As explained more fully below, for the
purposes of this rule, DHS is replacing the term
‘‘institutionalization for long-term care at
government expense’’ that was used in the 1999
NPRM and 1999 Interim Field Guidance with the
term ‘‘long-term institutionalization.’’
250 See ‘‘Inadmissibility and Deportability on
Public Charge Grounds,’’ 64 FR 28676, 28677 (May
26, 1999). The former INS consulted primarily with
HHS, SSA, and USDA in formulating the list of
public benefits that it would have considered. Ibid.
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a. Comments on Proposed Inclusion of
SSI and TANF
Comment: Many commenters
recommended limiting public charge
consideration to only the two listed
Federal cash-assistance programs, TANF
and SSI. Commenters stated limiting the
definition to include only two Federal
benefits is simpler to communicate and
understand, less likely to create
confusion among immigrants and their
families, and less likely to deter
participation in public benefit programs
that promote healthy communities. One
commenter stated that even if the rule
were amended to further define income
maintenance or provide exclusions in
regulation, there will always be too
much variety to clearly include and
exclude all programs. Thus, the
commenter said that DHS should
remove non-Federal cash assistance
programs from the rule.
Response: DHS is declining to
exclude the consideration of State,
Tribal, territorial, and local cash
assistance for income maintenance. DHS
believes that such programs serve
similar purposes to Federal programs
and are generally readily identifiable as
general assistance programs. DHS is
concerned about distinguishing between
benefits that serve the same basic
purpose, solely on the basis of funding
source or authority. If questions arise
about which cash benefits are
considered and not considered, DHS
may address the matter in interpretative
guidance. DHS believes that excluding
all such programs from consideration
would be inconsistent with
Congressional intent, because receipt of
cash assistance for income maintenance
from such State, Tribal, territorial, or
local governments is fairly indicative of
primary dependence on the government
for subsistence.
Comment: Several commenters
opposed the inclusion of SSI in a public
charge inadmissibility determination,
saying this targets people with
disabilities and older adults. The
commenters recommended DHS revise
the language to include only long-term
use of SSI. One commenter also
mentioned that short-term use of SSI
benefits may help individuals to
stabilize their living and employment
situation and should not prevent them
from adjusting status in the United
States.
Response: DHS thanks commenters
for these suggestions. While DHS
disagrees that it should exclude SSI
from consideration in public charge
inadmissibility determinations, DHS
notes that current or past receipt of SSI,
or any other covered public benefit, is
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not alone dispositive with respect to
whether a noncitizen will be found
likely at any time to become a public
charge. As proposed in the NPRM, and
retained in this final rule, DHS will
consider not only the fact of receipt in
the totality of the circumstances, but
also the recency, duration, and amount
of public benefits received when
determining whether a noncitizen is
likely at any time to become primarily
dependent on the government for
subsistence, and thus likely to become
a public charge. While DHS agrees that
SSI, by design, is reserved for specific
populations of individuals (namely
those who are over the age of 65, are
blind, or have disabilities), DHS notes
that SSI is included in the list of
considered public benefits not because
it is received by certain groups of
individuals sharing such characteristics,
but because of the degree of dependence
on the government for subsistence that
receipt of SSI may indicate. DHS is
separately tasked by section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), to consider
whether age and health could make a
noncitizen likely to at any time become
a public charge.
Comment: One commenter stated that
by including SSI in the consideration of
a public charge inadmissibility
determination, DHS is indirectly
including the receipt of Medicaidfunded long-term services and supports
into a public charge inadmissibility
determination, even when they are
supports delivered by the community.
The commenter stated that most people
with disabilities who rely on Medicaidfunded HCBS also rely on SSI and other
cash assistance programs, and that
including SSI in the public charge
inadmissibility consideration would
discriminate against people with
disabilities who require HCBS. Another
commenter stated that SSI and longterm institutionalization are factors that
solely apply to people with disabilities.
Response: As explained in the NPRM,
DHS is excluding the consideration of
HCBS in large part because HCBS help
older adults and persons with
disabilities live, work, and fully
participate in their communities,
promoting employment and decreasing
reliance on costly government-funded
institutional care. As indicated by HHS
in its letter to DHS supporting the
February 24, 2022 NPRM, HHS
distinguished HCBS from long-term
institutionalization at government
expense by stating that HCBS do not
provide ‘‘total care for basic needs’’
because HCBS do not pay for room and
board. To the extent HCBS are coupled
with receipt of cash assistance for
income maintenance, such as SSI, DHS
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believes that such receipt of SSI could
be indicative or predictive of primary
dependence on the government for
subsistence. Because SSI is similarly
situated to other cash assistance for
income maintenance programs, DHS
does not believe that it would be
reasonable to exclude SSI from
consideration. DHS disagrees that
considering SSI discriminates against
older adults or people with disabilities;
such consideration treats them on par
with other recipients of cash assistance
for income maintenance.
Comment: Several commenters
disagreed that cash-support programs,
such as TANF, are indicative of the
likelihood of an individual being
primarily dependent on the government
for subsistence and argued that DHS
should accordingly not consider these
programs. For example, commenters
explained that: TANF has its own builtin protections against abuse and longterm reliance; in at least some
jurisdictions TANF recipients receive a
low amount of funds compared to the
high costs of living; and TANF
recipients must comply with work
requirements and are limited to 60
months of receipt. One commenter also
stated that assessment of public charge
inadmissibility based on TANF receipt
is weak, given low-income noncitizen
immigrants are much less likely to
receive TANF benefits than similar U.S.born adults, their use of benefits
declines over time, and people generally
cannot receive TANF benefits for more
than five years.
Response: DHS disagrees that DHS
should exclude TANF from
consideration in public charge
inadmissibility determinations.
However, as DHS indicated in the
NPRM and in this final rule, the
consideration of prior or current receipt
of TANF, and other programs providing
cash assistance for income maintenance,
is not dispositive in a public charge
inadmissibility determination. Rather,
DHS will consider all the factors in new
8 CFR 212.22, including the
noncitizen’s household income and
assets, as well as liabilities, exclusive of
any income received from public
benefits or illegal activities or sources
and an Affidavit of Support Under
Section 213A of the INA if required, and
will also take into consideration the
recency, amount, and duration of
receipt of public benefits received,
including TANF, in the totality of the
circumstances. DHS believes that these
considerations are more relevant to
assessing the likelihood of becoming
primarily dependent on the government
for subsistence than overall statistics
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about costs of living in a particular
geographic area.
While DHS appreciates the study
analyzing the SIPP data cited by the
commenter comparing benefit use
among citizens versus noncitizens and
how noncitizen benefit use varies over
time,251 DHS does not think that a lower
rate of receipt of TANF by noncitizens
supports exclusion of TANF from
consideration. Although fewer
noncitizens than citizens may be
receiving TANF, especially prior to
applying for a visa, admission, or
adjustment of status, DHS finds that,
based on information provided by HHS
during this rulemaking, cash assistance
programs under TANF are much more
frequently used as a primary source of
subsistence. As a result, such past and
current receipt can still be indicative of
primary dependence on the government
for subsistence. Therefore, TANF is
properly considered in the totality of the
circumstances.
Comment: One commenter
specifically indicated agreement with
the exclusion of child-only TANF cases
from a public charge inadmissibility
determination because cash assistance
like TANF reduces child poverty and
improves children’s long-term health
and educational and economic
outcomes. The commenter stated that
immigration-related concerns should
not impede children from receiving
these critical benefits.
Response: DHS appreciates these
comments but is declining to exclude all
consideration of TANF received by
children from public charge
inadmissibility determinations. DHS did
propose and is finalizing the proposal in
this final rule to not attribute the receipt
of cash assistance for income
maintenance to a noncitizen if the
noncitizen is receiving a public benefit
(in this case TANF) solely on behalf of
another, such as a child. However, if the
applicant is a child and is subject to the
public charge ground of inadmissibility,
DHS would still consider the receipt by
the child of TANF or other covered
public benefits under new 8 CFR
251 Leighton Ku and Erin Brantley, ‘‘Immigrants’
Progress: Changes in Public Charge Policies Can
Promote The Economic Mobility of Immigrants and
Their Contribution to the U.S. Economy,’’ Social
Science Research Network (Apr. 18, 2022), https://
papers.ssrn.com/sol3/papers.cfm?abstract_
id=4086782 (‘‘Census Bureau data [] demonstrates
immigrants are often poor and in need when they
first arrive in the US, but rapidly improve their
economic status the longer they remain.
Longitudinal analysis further shows that lowincome non-citizen immigrants are less than half as
likely to receive cash assistance thru Temporary
Assistance for Needy Families (TANF) and less than
one-seventh as likely to receive Supplemental
Security Income (SSI) than similar low-income USborn citizens.’’) (last visited Aug. 15, 2022).
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212.21(b). Such consideration is not
outcome determinative given that it is
only one among a number of factors to
be considered, and that DHS would still
look at the recency, amount, and
duration of receipt when determining
whether a child noncitizen is likely at
any time to become primarily
dependent on the government for
subsistence. In addition, DHS is not
precluded from considering empirical
evidence that receiving public benefits
as a child could lead to better long-term
outcomes, and make a child less likely
at any time to become a public charge.
b. Comments on Proposed Inclusion of
Other Cash Benefit Programs for Income
Maintenance
Comment: Many commenters,
including a group of 13 United States
Senators, opposed the inclusion of
State, Tribal, territorial, or local
benefits, including programs providing
cash assistance for income maintenance,
as part of the public charge
inadmissibility determination and
recommended DHS delete this clause
from the regulatory text. Commenters
explained that programs funded by State
and local government are an exercise of
the powers reserved to the States
themselves and that counting programs
provided by Tribal governments is a
violation of Tribal sovereignty and selfdetermination.
Commenters specifically provided
examples of State-funded benefits that
provide rental assistance, medical
insurance, earned income tax credits,
nutrition programs, guaranteed income
pilots, and cash assistance that are
temporary and act as pathways to selfsufficiency and said that DHS should
not punish participants in these
programs by being subject to the public
charge inadmissibility determination.
One of these commenters specifically
referenced the New York Safety Net
Assistance program (SNA) that is
available to individuals not eligible for
TANF. The commenter stated that the
cash assistance portion of the benefit is
mandatory (even if insignificant) and
said that the program is aimed at
preventing homelessness and primarily
comprises rental and medical
assistance. The commenter
characterized the program as a proven
path to self-sufficiency. Some
commenters pointed to States that may
have elected to provide State-funded
coverage to immigrants who are in the
United States lawfully but who do not
qualify for Federal means-tested public
benefits, and said that some States may
provide veteran services benefits to
dependents who may not be eligible for
Federal veterans’ benefits. Those
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commenters also remarked that State
and local programs can be dynamic and
variable among States in name and
form, which makes the rule complicated
to explain to impacted individuals, as
well as complicated to administer and
which will contribute to confusion
among the public for public charge
inadmissibility determinations.
Commenters stated that public charge
concerns should not limit the ability of
States and localities to create support
programs and that the rule should not
penalize immigrants in any way for
accepting the benefits for which they are
eligible at the State and local level.
Some commenters additionally stated
that exempting State and local programs
would better allow local governments to
provide services and increase trust
within communities and improve
constituents’ quality of life, but not
exempting these programs would
require detailed policy and legal
assessments for appropriate messaging
and targeted outreach. One commenter
also wrote about the difficulties and
costs of constantly training staff and
community partners on the potential
immigration consequences of the receipt
of new State and local public benefits.
Response: While DHS appreciates
these comments, DHS is not excluding
State, Tribal, territorial, or local cash
assistance for income maintenance from
this final rule. As discussed previously,
DHS is concerned about distinguishing
between benefits that serve the same
basic purpose, solely on the basis of
funding source or authority. DHS
disagrees that considering benefits
interferes with State rights or Tribal
sovereignty. This final rule does not
regulate which benefits or programs
States and other governmental entities
may provide. DHS is taking into
consideration those programs that are
more indicative of primary dependence
on the government for subsistence in the
totality of the noncitizen’s
circumstances. As indicated in the
NPRM, these considerations exclude
any special-purpose or supplemental
programs, as well as disaster and similar
assistance. With respect to the New
York’s SNA program, if the program
provides a combination of non-cash and
cash benefits, DHS would only consider
the cash portion of the benefit in the
totality of the circumstances, and such
receipt would never alone be outcome
determinative. If an individual receives
a small amount of cash assistance for a
limited period of time, such receipt
would be unlikely to result in an
adverse public charge inadmissibility
determination. DHS also notes that
applicants who are uncertain whether a
benefit they are receiving is cash
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assistance for income maintenance can
include information about the program
to assist officers in determining whether
the benefit should be considered.
In addition, DHS is only considering
State, Tribal, territorial, or local
programs providing medical coverage in
narrow circumstances of long-term
institutionalization at government
expense. As with Medicaid, DHS is not
considering application for, or approval
to receive medical coverage or the fact
that the individual is getting medical
care or treatments through the State,
Tribal, territorial, or local program,
unless that care is long-term
institutionalization.
Comment: One commenter stated that
if DHS chooses to retain consideration
of State and local benefits, DHS should
explicitly distinguish State, local,
territorial, or Tribal tax credits and other
cash assistance programs from ‘‘cash
assistance for income maintenance.’’
One commenter indicated that while
USCIS has been clear that it will not
consider tax credits, including the child
tax credit, in public charge
inadmissibility determinations, there is
a concern that the rule would not
explicitly protect a future child
allowance that is not delivered through
the tax system from consideration in a
public charge inadmissibility
determination. The commenter also
noted that even when a child allowance
was delivered through the tax system,
focus groups and parents in mixed
status families reported concerns that
the CTC would have an impact on their
immigration status.
Response: DHS is not considering tax
credits as cash assistance for income
maintenance, whether they are Federal,
State, Tribal, territorial, or local,
because many people with moderate or
higher incomes are eligible for these tax
credits, and the tax system is structured
in such a way as to encourage taxpayers
to claim and maximize all tax credits for
which they are eligible. In addition, as
the Department of the Treasury has
noted, ‘‘[i]t can be challenging to
distinguish between the portion of a
credit that offsets an individual tax
liability versus the portion that is
refundable. Determining the impact of a
refundable tax credit depends on
multiple variables, including other
return elements and information the
taxpayer provides, some of which are
unrelated to the refundable tax credit in
question.’’ 252 DHS also has no interest
in any action that may cause fear or
252 See Dep’t of the Treasury, ‘‘Agency Financial
Report: Fiscal Year 2021’’ (2021), at 198, https://
home.treasury.gov/system/files/266/Treasury-FY2021-AFR.pdf (last visited Aug. 10, 2022).
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confusion in relation to the payment of
income taxes. Finally, these tax credits
may be combined with other tax credits
between spouses. One spouse may be a
U.S. citizen, and the couple may file the
tax return jointly. In such a case, DHS
would not be able to determine whether
the noncitizen or the U.S. citizen
received the tax credit.
In addition, while DHS is clear that it
will not consider the Child Tax Credit
(CTC), DHS would consider any other
general cash assistance that is available
to families with children, which is
similarly situated to programs like
TANF, to be cash assistance for income
maintenance, unless it could be
classified as a special-purpose program.
TANF, for example, is available to
pregnant individuals or those
responsible for one or more children
under the age of 19, but there are no
restrictions on the use of TANF cash
assistance. Therefore, if similar general
assistance is not provided as a tax credit
and is not restricted in how it may be
used, DHS would consider such
assistance cash assistance for income
maintenance. If, on the other hand, a
future allowance is restricted in how it
may be used—for example, cash or cash
equivalent that may only be used to pay
for daycare or school, then DHS would
consider such assistance specialpurpose and would not consider it in
public charge inadmissibility
determinations.
Comment: One commenter stated
generally that DHS should not include
cash assistance and that DHS should
instead treat it on par with general
health, nutrition, and housing programs,
among others. The commenter stated
that including cash assistance will only
confuse people who may assume that
COVID–19 stimulus checks, tax returns,
and credits are included, particularly
citing the need to specifically exclude
coverage for testing and treatment for
COVID–19. Another commenter stated
that the use of cash assistance for
designated purposes does not accurately
predict whether a person is likely to
become a public charge because
individuals who receive these benefits
can also independently earn income or
have resources.
Response: As discussed previously in
this final rule, DHS is not eliminating
the consideration of cash assistance for
income maintenance. However, such
cash assistance does not include
special-purpose benefits like disaster
assistance. Finally, DHS was very clear
in the NPRM, and is reiterating in this
final rule, that DHS will not consider
receipt of treatments or preventive
services related to COVID–19 for
purposes of public charge
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determinations. While COVID–19
vaccines, for example, are free to anyone
who desires to get one, DHS is not
considering healthcare coverage (except
for long-term institutionalization at
government expense), so DHS would
not consider medications to treat
COVID–19 or hospitalization in this
context.
Comment: Other commenters also
requested the explicit exclusion of
benefits used by survivors of domestic
violence or other serious crimes or
benefits used by anyone during natural
disasters, such as State-funded
emergency relief funds, or other
extraordinary circumstances, for
example COVID–19-related relief funds
that have been made available to
everyone, including noncitizens without
lawful status in the United States. They
stated that use of these benefits is due
entirely to external events and does not
provide any information on the
recipient’s likelihood of becoming
primarily reliant on government
assistance.
Response: As indicated throughout
this final rule, the only benefits DHS is
considering are Federal (SSI and TANF),
State, Tribal, territorial, and local cash
assistance for income maintenance and
any program (including Medicaid) that
provides or covers the costs of long-term
institutionalization at government
expense. DHS is not considering
disaster assistance, COVID–19 stimulus
payments, or other similarly situated
benefits. DHS notes that at least some
survivors of domestic violence are
exempt from the public charge ground
of inadmissibility. Where the ground
does not apply, DHS would not consider
any public benefits received by those
individuals. DHS is not adding a
separate exclusion for all victims of
crime and/or domestic violence because
such an exclusion may overlap with
existing exemptions and because an
exclusion for all victims of crime would
not take into account whether a
noncitizen is receiving benefits because
they were victimized or whether the
benefits had nothing to do with the
noncitizen’s victim status. An applicant
may always supplement their
application with an explanation of the
temporary circumstances that gave rise
to benefits receipt covered by the rule.
Comment: A commenter also raised
concerns with the consideration of
‘‘general assistance’’ and ‘‘guaranteed
income’’ programs in public charge
inadmissibility determinations. The
commenter stated that ‘‘[o]nly half of
the states in the nation provide any type
of general assistance, and it is only
available to very few of those in need,’’
noting that ‘‘[s]ome are only available to
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individuals with a disability, and have
maximum grant levels below the federal
poverty level in all but two states and
below one-quarter of the federal poverty
level in half the programs.’’ The
commenter said that these State- and
locally-funded programs are by
definition guided by State and local
priorities, and that DHS should not
include them in public charge
inadmissibility determinations because
they do not provide enough income for
‘‘income maintenance’’ that would
indicate ‘‘primary dependence’’ on the
government, and because they are not
funded nor guided by priorities set by
the federal government. The commenter
also flagged a ‘‘growing trend’’ around
the country known as ‘‘Guaranteed
Income’’ programs, which range
between $200 and $1,000 monthly to
households with eligibility and
prioritization chosen by the locality or
State implementing the program. The
commenter stated that ‘‘Guaranteed
Income’’ programs are not intended to
be the sole source of income for the
recipient households, but instead a
support to allow the households to meet
their other needs without creating
dependence on the programs due to
their time-limited nature. The
commenter also expressed concern that
looking at the amount and duration of
benefit receipt would create disparate
treatment among recipients given that
different jurisdictions have differing
resources available.
Response: As indicated previously,
DHS is declining to exclude from
consideration State, Tribal, territorial,
and local cash assistance for income
maintenance because such assistance
can be indicative of primary
dependence on the government for
subsistence. The definition of
government is not limited to the Federal
government, and, as indicated in other
comment responses, DHS has concluded
that it would not be reasonable to
distinguish between cash assistance
recipients solely because of the source
of the funds (i.e., solely because the
funds came from the Federal
government, as opposed to State, Tribal,
territorial, or local government). To the
extent that ‘‘guaranteed income’’
programs are not the same as cash
assistance for income maintenance in
that they typically do not provide the
primary source of income for recipients,
or are made available without incomebased eligibility rules, DHS would not
consider these programs.
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c. Suggestions That Other Benefit
Programs Be Included in Public Cash
Assistance for Income Maintenance
Comment: A commenter requested
that DHS include the Earned Income
Tax Credit (EITC) and Child Tax Credit
(CTC) programs in the definition of
public cash assistance for income
maintenance. The commenter stated
that although these payments are
employment-based subsidies, they are
still means-tested transfer payments for
which noncitizens must individually
qualify and are evidence that such
noncitizens are not self-sufficient
without a government subsidy. The
commenter stated that at a minimum,
DHS should exclude payments under
either program from the definition of
gross annual household income.
Response: DHS appreciates the
comments regarding the EITC and CTC
but is declining to add these to the
definition of public cash assistance for
income maintenance in new 8 CFR
212.21(b). Although EITC and the CTC
benefits provided could be considered a
particular form of cash assistance, DHS
is not including the consideration of tax
credits in this final rule because many
people with moderate or higher incomes
are eligible for these tax credits, and the
tax system is structured in such a way
as to encourage taxpayers to claim and
maximize all tax credits for which they
are eligible. In addition, as the
Department of the Treasury has noted,
‘‘[i]t can be challenging to distinguish
between the portion of a credit that
offsets an individual tax liability versus
the portion that is refundable.
Determining the impact of a refundable
tax credit depends on multiple
variables, including other return
elements and information the taxpayer
provides, some of which are unrelated
to the refundable tax credit in
question.’’ 253 DHS also has no interest
in any action that may cause fear or
confusion in relation to the payment of
income taxes. Finally, these tax credits
may be combined with other tax credits
between spouses. One spouse may be a
U.S. citizen, and the couple may file the
tax return jointly. Therefore, DHS would
not be able to determine whether the
noncitizen or the U.S. citizen received
the tax credit. DHS is also not including
the suggestion to exclude from the
household income any amounts
attributable to these tax credits, in part
because of the same practical
limitations.
253 See Dep’t of the Treasury, ‘‘Agency Financial
Report: Fiscal Year 2021’’ (2021), at 198, https://
home.treasury.gov/system/files/266/Treasury-FY2021-AFR.pdf (last visited Aug. 10, 2022).
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d. Requests That Non-Cash Benefits
Other Than Long-Term
Institutionalization at Government
Expense Be Considered
Comment: A commenter
recommended that DHS withdraw the
definition of public benefit and
promulgate a new NPRM that defines
public benefit in a manner that the
commenter believes would be more
commensurate with Congressional
intent and with the way States and the
Federal government distribute monies
for public benefits, as the commenter
does not believe it is appropriate to
exclude entire programs, like Medicaid,
that cost billions of dollars a year.
Another commenter wrote that that
PRWORA broadly defined federal
public benefits and indicated that the
proposed definition of public benefits in
the NPRM is too restrictive. Another
commenter wrote that in differentiating
between types of benefits, DHS ignores
Congressional intent in favor of an
interim guidance memorandum that was
never meant to be the equivalent of a
final agency rule. Several commenters
stated that by limiting the public charge
inadmissibility determination to only
cash benefits for income maintenance or
long-term institutionalization, the
definition improperly restricts the
benefits that DHS could consider in the
analysis. Several commenters stated that
distinguishing between cash and
noncash benefits is ‘‘contrary to our
national principle of self-sufficiency.’’
One commenter said that the proposed
rule’s removal of the consideration of
any supplemental or in-kind benefits is
not a permissible construction of the
statute, a claim they stated is supported
by history and Congress’s 1996 statutory
amendments and additions. That
commenter stated that many recognize
that the 1996 affidavit of support
provision reflects Congress’s
‘‘preference that the Executive consider
even supplemental dependence in
enforcing the public charge
exclusion.’’ 254 Another commenter
similarly recommended the rule require
officers to consider all means-tested
public benefits, including public
benefits provided by State, Tribal,
territorial, and local governments to
‘‘nonqualified aliens’’ under PRWORA,
consistent with Congress’s scheme in
limiting access to public benefits and
the provisions of the INA, which
according to the commenter state that
the law is intended to protect each of
these entities and allow them to recover
lost benefits they may have provided.
254 Cook County v. Wolf, 962 F.3d 208, 248 (7th
Cir. 2020) (Barrett, J., dissenting).
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Response: Congress itself previously
distinguished between cash and noncash benefits in the same manner as this
rule in the IRCA legalization provision,
which provided that ‘‘[a]n alien is not
ineligible for adjustment of status under
[that provision] due to being [a public
charge] if the alien demonstrates a
history of employment in the United
States evidencing self-support without
receipt of public cash assistance.’’ 255
Further, INS made this same distinction
in the 1999 Interim Field Guidance,
after which Congress amended the
applicability of section 212(a)(4) of the
INA multiple times, but only to limit the
application of the ground of
inadmissibility to certain populations or
to limit consideration of certain benefits
in certain circumstances.256 As noted
previously, Congress has long deferred
to the Executive to interpret the
meaning of ‘‘likely at any time to
become a public charge.’’ DHS is not
treading new ground by exercising that
discretion in the way presented in this
rule. DHS believes Congress’ prohibition
of consideration of prior receipt of
public benefits by a specific class of
noncitizens when making public charge
inadmissibility determinations 257
indicates that Congress believed that the
consideration of receipt of at least some
public benefits was relevant to
determining whether an applicant is
likely at any time to become a public
charge and that DHS should considered
the receipt in all other circumstances
when making a public charge
inadmissibility determination. However,
Congress left it to the agencies
administering the ground to specify
which public benefits should be
considered when defining key statutory
terms and standards, such as the
forward-looking and predictive ‘‘likely
at any time to become a public charge,’’
and the ‘‘factors to be taken into
account,’’ which entails assessing
current and past behavior in order make
the prediction of possible future
likelihood of becoming a public charge.
Comment: Some commenters stated
that that the distinction that DHS drew
between monetary and non-monetary
benefits is artificial. A few commenters
also stated that the proposed rule uses
semantics rather than facts to argue
255 Public Law 99–603, tit. II, sec. 201 (Nov. 6,
1986) (codified at section 245A(d)(2)(B)(ii)(IV) of
the INA, 8 U.S.C. 1255a(d)(2)(B)(ii)(IV)) (emphasis
added); see also id. at secs. 302, 303 (similar
provision for Special Agricultural Workers).
256 See, e.g., Public Law 113–4, sec. 804 (2013)
(codified as amended at section 212(a)(4)(E)(i)–(iii)
of the INA, 8 U.S.C. 1182(a)(4)(E)(i)–(iii)); Public
Law 106–386, sec. 1505(f).(2000) (codified as
amended at section 212(s) of the INA, 8 U.S.C.
1182(s)).
257 See INA sec. 212(s), 8 U.S.C. 1182(s).
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substantive differences between cash
and non-cash benefits. Commenters
stated that Congress was concerned
about noncitizens relying on all
government-funded welfare programs,
not only receiving income-deriving
benefits, and indicated that there is
simply no functional difference between
a cash and a non-cash benefit. Both stem
from public funds used for public
benefits that are equally relied on by
those who cannot afford to meet some
need. The commenter wrote that a
recipient of federal or State housing
assistance significantly relies on the
government, as do the recipients of
Medicaid or other State low or no-cost
medical benefits. Another commenter
also indicated that there is no difference
between being reliant on benefits for a
certain need, rather than reliant on
benefits for income. One commenter
stated that DHS relies on a flawed
premise that, for public charge
purposes, the analysis should rest on
how the benefit is used by the
individual, but instead DHS should only
look to whether an individual is, in fact,
relying on a public benefit. The
commenter said that if the goal is to
ensure that the noncitizen is not reliant
on the government, the focus should be
on how much the government spends
on the benefit, not whether the benefit
is income-deriving. A commenter
supporting the exclusion of noncash
benefits and advocating for exclusion of
cash benefits as well stated that the
distinction between cash and noncash
benefits is arbitrary and confusing, and
indicated that the assertion that cash
benefits allow individuals to become
dependent on the government in a way
that participation in non-cash benefit
programs did not was not supported by
DHS with statistics. The commenter
said that including this distinction
would risk perpetuating and
exacerbating disparities in access to
stability and opportunities.
Response: DHS disagrees that it is
drawing an artificial or arbitrary
distinction between cash and non-cash
benefits or that it is contradicting
Congress’ statements regarding selfsufficiency and dependence on public
benefits. In determining to exclude most
non-cash benefits as part of the
definition of ‘‘likely at any time to
become a public charge,’’ DHS has
concluded, based on feedback from
benefits-granting agencies, that non-cash
benefits generally are less indicative of
primary dependence on the government
for subsistence than those benefits
included in this rule for consideration.
During the development of the NPRM,
DHS consulted with benefits-granting
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agencies. In its on-the-record letter,258
USDA advised that participation in
nutrition programs, such as SNAP, ‘‘is
not an appropriate indicator of whether
an individual is likely to become
primarily dependent on the government
for subsistence.’’ The letter explained
that SNAP is supplementary in nature
as the benefits are calculated to cover
only a portion of a household’s food
costs with the expectation that the
household will use its own resources to
provide the rest. The letter also stated
that SNAP benefits are modest and
tailored based on the Thrifty Food Plan
(TFP), USDA’s lowest cost food plan,
and that an individual or family could
not subsist on SNAP alone. USDA
emphasized that a recipient can only
use SNAP benefits for the purchase of
food, such as fruits and vegetables, dairy
products, breads, and cereals, or seeds
and plants that produce food for the
household to eat. The recipient may not
convert SNAP benefits to cash or use
them to purchase hot foods or any
nonfood items. Receiving SNAP benefits
only pertains to a need for supplemental
food assistance and does not address all
food needs or other general needs such
as cooking equipment, hygiene items, or
clothing, for example. USDA also stated
that most SNAP recipients work and
that there is no research demonstrating
that receipt of SNAP benefits is a
predictor of future dependency.
Similarly, in its on-the-record
consultation letter,259 HHS evaluated
the Medicaid program within the
context of a public charge definition
based on primary dependence on the
government for subsistence. HHS stated
that ‘‘with the exception of long-term
institutionalization at government
expense, receipt of Medicaid benefits is
. . . not indicative of a person being or
likely to become primarily dependent
on the government for subsistence.’’
This conclusion was based on HHS’s
assessment that Medicaid, except for
long-term institutionalization, does not
provide assistance to meet basic
subsistence needs. In addition, HHS
highlighted developments since 1999
that ‘‘reaffirm Medicaid’s status as a
supplemental benefit.’’ These
developments include Congressional
action that has expanded Medicaid
coverage, such that in many States
individuals and families are eligible for
Medicaid despite having income
258 See Letter from USDA Deputy Under Secretary
on Public Charge (Feb. 15, 2022), https://
www.regulations.gov/document/USCIS-2021-00130199 (last visited July 12, 2022).
259 See Letter from HHS Deputy Secretary on
Public Charge (Feb. 16, 2022), https://
www.regulations.gov/document/USCIS-2021-00130206 (last visited July 12, 2022).
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substantially above the HHS poverty
guidelines. HHS also noted that among
working age adults without disabilities
who participate in the Medicaid
program, most are employed.260 HHS
also agreed with DHS that ‘‘receipt of
cash assistance for income maintenance,
in the totality of the circumstances, is
evidence that an individual may be
primarily dependent on the government
for subsistence.’’ HHS addressed the
TANF program, which it administers,
and stated that unlike Medicaid, cash
assistance programs under TANF have
remained limited to families with few
sources of other income and are much
more frequently used as a primary
source of subsistence. DHS
acknowledges the possibility of
opposing views,261 but believes that the
information in these letters provides
ample support for the distinction that
DHS has historically drawn between
cash and noncash benefits.
DHS also notes that, based on
experience with the 2019 Final Rule,
DHS knows that including non-cash
benefits as part of a public charge
inadmissibility determination, both in
the definition and in the factors
considered, predictably results in
widespread chilling effects based on a
misunderstanding of the law, while
ultimately not resulting in any denials
under that rule. As DHS explained in
the NPRM, the inclusion of non-cash
benefits in the 2019 Final Rule had a
significant chilling effect on enrollment
in Federal and State public benefits,
including Medicaid, resulting in fear
and confusion among both noncitizens
and U.S. citizens. Concerns over actual
and perceived adverse legal
consequences tied to seeking public
benefits have affected whether or not
immigrants seek to enroll in public
benefit programs, including Medicaid
and CHIP, and have resulted in a
decrease in health insurance rates
among eligible immigrants, particularly
Latinos.262 Medicaid provides critical
260 See Rachel Garfield, et al., ‘‘Work Among
Medicaid Adults: Implications of Economic
Downturn and Work Requirements,’’ Kaiser Family
Foundation (Feb. 11, 2021), https://www.kff.org/
coronavirus-covid-19/issue-brief/work-amongmedicaid-adults-implications-of-economicdownturn-and-work-requirements/ (last visited Aug.
15, 2022).
261 See, e.g., Cook County, 962 F.3d 208, 249 (7th
Cir. 2020) (Barrett, J., dissenting) (suggesting that
DHS might reasonably decline to distinguish
between ‘‘$500 for groceries or $500 worth of
food’’).
262 HHS, Assistant Secretary for Planning and
Evaluation, Office of Health Policy, ‘‘Health
Insurance Coverage and Access to Care for
Immigrants: Key Challenges and Policy Options’’
(Dec. 17, 2021), https://aspe.hhs.gov/sites/default/
files/documents/96cf770b168dfd45784cdcefd
533d53e/immigrant-health-equity-brief.pdf .
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health care services including
vaccination, testing and treatment for
communicable diseases; the importance
of these services has been demonstrated
during the COVID–19 pandemic.263
The final rule is guided by data and
input from expert agencies regarding the
nature of certain noncash benefits, as
well as a recognition of the predicted
and documented effects of the 2019
Final Rule’s chilling effects that reduced
noncitizens accessing critical benefits,
including health benefits.264 By
focusing on those public benefits that
are most indicative of primary
dependence on the government for
subsistence, DHS can faithfully
administer the public charge ground of
inadmissibility without exacerbating
challenges confronting individuals who
work, go to school, and contribute
meaningfully to our nation’s social,
cultural, and economic fabric. This
approach is consistent with the INA,
PRWORA, and this country’s long
history of welcoming immigrants
seeking to build a better life. By
focusing on cash assistance for income
maintenance and long-term
institutionalization at government
expense, DHS can identify those
individuals who are likely at any time
to become primarily dependent on the
government for subsistence, without
interfering with the administrability and
effectiveness of other benefit programs
that serve important public interests.
Importantly, as noted above receipt of
most non-cash public benefits by
applicants for visas, admission, and
adjustment of status who are subject to
the public charge ground of
inadmissibility is uncommon.265 It
would be exceedingly rare to encounter
a non-institutionalized person who is
primarily dependent on the government
263 See Centers for Medicare & Medicaid Services
(CMS), ‘‘Coverage and Reimbursement of COVID–19
Vaccines, Vaccine Administration, and CostSharing under Medicaid, the Children’s Health
Insurance Program, and Basic Health Program’’
(updated May 2021), https://www.medicaid.gov/
state-resource-center/downloads/covid-19-vaccinetoolkit.pdf; CMS State Health Official letter #12–
006, ‘‘Mandatory Medicaid and CHIP Coverage of
COVID–19-Related Treatment under the American
Rescue Plan Act of 2021’’ (issued Oct. 22, 2021),
https://www.medicaid.gov/federal-policy-guidance/
downloads/sho102221.pdf; CMS State Health
Official letter #21–003, ‘‘Medicaid and CHIP
Coverage and Reimbursement of COVID–19 Testing
under the American Rescue Plan Act of 2021 and
Medicaid Coverage of Habilitation Services’’ (issued
Aug. 30, 2021) https://www.medicaid.gov/federalpolicy-guidance/downloads/sho-21-003.pdf.
264 See Hamutal Bernstein et al., ‘‘Immigrant
Families Continued Avoiding the Safety Net during
the COVID–19 Crisis,’’ Urban Institute (2021), at 1,
https://www.urban.org/sites/default/files/
publication/103565/immigrant-families-continuedavoiding-the-safety-net-during-the-covid-19crisis.pdf (last visitedAug. 17, 2022).
265 See, e.g., 8 U.S.C. 1611; 8 U.S.C. 1621.
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for subsistence, but who does not
receive any degree of cash assistance for
income maintenance from the
government.
Comment: Some commenters stated
that drawing a distinction between cash
and noncash benefits does not make
economic sense. One commenter cited
estimates in the 2019 Final Rule that the
rule would ‘‘cumulatively save the
States $1.01 billion annually,’’ and also
stating that the federal government only
pays a portion of the costs.266 The
commenter stated that the States need
that savings in order to adequately
provide for the economically
disadvantaged. Another commenter also
remarked that the distinction between
cash and noncash benefits ignores costs
to the States. And another commenter
stated that it is not appropriate to
exclude whole programs where any
State is spending billions of dollars per
year, although they supported a de
minimis exception to certain benefit
programs.
Response: DHS disagrees that treating
non-cash benefits differently than cash
benefits is irrational. As discussed in
some detail above, DHS is drawing a
reasonable line between, on the one
hand, cash assistance for income
maintenance and long-term
institutionalization at government
expense (which DHS views as more
probative of primary dependence on the
government for subsistence) and, on the
other hand, supplemental and specialpurpose non-cash benefits (which are
less probative of such dependence). In
addition, DHS is taking into
consideration the impacts of the 2019
Final Rule on families, communities,
States, and localities that suffered
economically due to reduction in food
security, adverse impacts on public
health, and increase in uncompensated
medical care, including during the
COVID–19 pandemic, as a result of
chilling effects caused by the 2019 Final
Rule.267 DHS recognizes that a
regulatory alternative that would
consider a wider range of non-cash
benefits similar to the 2019 Final Rule
would likely result in a reduction of
payments by States to beneficiaries as a
result of disenrollment/forgone
enrollment. However, DHS notes that
this particular transfer effect may be
attributable to a very significant extent
to confusion and uncertainty among
populations that are not directly
regulated by this rule. In addition, a
266 See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292, 41301 (Aug. 14, 2019). City
& County of San Francisco v. U.S. Citizenship &
Immigr. Servs., 981 F.3d 742, 754 (9th Cir. 2020).
267 See generally, 87 FR at 10587–10597 (Feb. 24,
2022).
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range of downstream consequences for
the general public and for State and
local governments may accompany such
an effect (such as avoidance of
preventative medical care, children’s
immunizations, and nutrition programs,
primarily by persons not even subject to
the public charge ground of
inadmissibility). DHS therefore
disagrees that the line drawn in this rule
with regard to which benefits DHS will
consider for public charge purposes
ignores the economic effects on States;
DHS is aware of such effects, but in light
of the nature of the public charge
inquiry and the applicability of the
ground of inadmissibility, DHS has
chosen to address the problem
differently than some commenters
prefer. DHS also does not believe that
using this rule to deter those who are
not subject to the public charge ground
of inadmissibility from accessing
benefits for which they are eligible
would be an appropriate or valid
exercise of authority.
DHS acknowledges that the economic
analysis for the 2019 Final Rule
accounted for a 2.5 percent rate of
disenrollment/forgone enrollment from
public benefit programs for ‘‘individuals
who are members of households with
foreign-born non-citizens,’’ resulting in
an anticipated reduction in transfer
payments from both Federal and State
governments to individuals, and that it
referenced ‘‘the 10-year undiscounted
amount of state transfer payments of the
provisions of [the 2019] final rule [of]
about $1.01 billion annually.’’ However,
as DHS noted in the NPRM and
discusses later in this final rule, there
are challenges associated with
measuring chilling effects with
precision. With respect to the chilling
effects associated with the 2019 Final
Rule, different studies have used
different data, methodologies, and
periods and populations of analysis,
each with their own potential
advantages and disadvantages, yet all
found some degree of chilling effect.
As DHS noted in the NRPM, the
estimated rate of disenrollment/forgone
enrollment used in the 2019 Final Rule
was based on a potentially overinclusive
population sample, at least as it relates
to the population that would be directly
regulated by the 2019 Final Rule. 268 As
268 As discussed in the Regulatory Alternative
section, a 2.5 percent rate of disenrollment/forgone
enrollment from public benefit programs appears to
have resulted in an underestimate due to the
documented chilling effects associated with the
2019 Final Rule among other parts of the noncitizen
and citizen populations who were not included as
adjustment applicants or members of households of
adjustment applicants as well as other noncitizens
who were not adjustment applicants.
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discussed at length later in this
preamble, DHS has included estimates
of a similar disenrollment rate in the
economic analysis for this rule. DHS
developed the estimates following
consideration of a range of studies of the
effects of the 2019 Final Rule, and
cautions that any quantified estimate is
subject to significant uncertainty.
Despite this uncertainty as to its
precise magnitude, as DHS explained in
the NPRM, a variety of evidence
indicates that the inclusion of non-cash
benefits in the 2019 Final Rule had
significant chilling effect on enrollment
in Federal and State public benefits,
including Medicaid, resulting in fear
and confusion among both noncitizens
and U.S. citizens. Concerns over actual
and perceived adverse legal
consequences tied to seeking public
benefits have affected whether or not
immigrants seek to enroll in public
benefit programs, including Medicaid
and CHIP, and have depressed health
insurance uptake among eligible
immigrants.269 Medicaid provides
critical health care services including
vaccination, testing and treatment for
communicable diseases.270 By focusing
on those public benefits that are
indicative of primary dependence on
the government for subsistence, DHS
can faithfully administer the public
charge ground of inadmissibility
without exacerbating challenges
confronting individuals who work, go to
school, and contribute meaningfully to
our nation’s social, cultural, and
economic fabric. This approach is
consistent with the INA, PRWORA, and
this country’s long history of welcoming
immigrants seeking to build a better life.
269 See HHS, Assistant Secretary for Planning and
Evaluation, Office of Health Policy, ‘‘Health
Insurance Coverage and Access to Care for
Immigrants: Key Challenges and Policy Options’’
(Dec. 17, 2021), https://aspe.hhs.gov/sites/default/
files/documents/
96cf770b168dfd45784cdcefd533d53e/immigranthealth-equity-brief.pdf (last visited Aug. 18, 2022);
Kaiser Family Foundation, ‘‘Health Coverage of
Immigrants’’ (Apr. 6, 2022), https://www.kff.org/
racial-equity-and-health-policy/fact-sheet/healthcoverage-of-immigrants/ (last visited Aug. 18,
2022).
270 See CMS, ‘‘Coverage and Reimbursement of
COVID–19 Vaccines, Vaccine Administration, and
Cost-Sharing under Medicaid, the Children’s Health
Insurance Program, and Basic Health Program’’
(updated May 2021) https://www.medicaid.gov/
state-resource-center/downloads/covid-19-vaccinetoolkit.pdf; CMS State Health Official letter #12–
006, ‘‘Mandatory Medicaid and CHIP Coverage of
COVID–19–Related Treatment under the American
Rescue Plan Act of 2021’’ (issued Oct. 22, 2021),
https://www.medicaid.gov/federal-policy-guidance/
downloads/sho102221.pdf; CMS State Health
Official letter #21–003, ‘‘Medicaid and CHIP
Coverage and Reimbursement of COVID–19 Testing
under the American Rescue Plan Act of 2021 and
Medicaid Coverage of Habilitation Services’’ (issued
Aug. 30, 2021), https://www.medicaid.gov/federalpolicy-guidance/downloads/sho-21-003.pdf.
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By focusing on cash assistance for
income maintenance and long-term
institutionalization at government
expense, DHS can identify those
individuals who are likely at any time
to become primarily dependent on the
government for subsistence, without
interfering with the administrability and
effectiveness of other benefit programs
that serve important public interests.
As discussed in the NPRM, based on
the review of sources looking at the
impacts of the 2019 Final Rule, DHS
concluded that inclusion of non-cash
benefits in the definition of ‘‘likely at
any time to become a public charge’’ or
in the list of ‘‘factors to consider’’ is not
only unnecessary to faithfully
implement the INA but would lead to
predictably harmful chilling effects.271
DHS believes that this rule is consistent
with the goals set forth in 8 U.S.C.
1601.272 Indeed, the rule’s consideration
of receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense helps ensure that DHS focuses
its public charge inadmissibility
determinations on applicants who are
likely to become primarily dependent
on the government for subsistence and
therefore lack self-sufficiency. DHS
further notes that its administrative
implementation of the public charge
ground of inadmissibility is informed
not only by the policy goals articulated
in 8 U.S.C. 1601(2) with respect to selfsufficiency and the receipt of public
benefits but also by other relevant and
important policy considerations, such as
clarity, fairness, national resilience, and
administrability.273 Therefore, DHS
declines to adopt these suggestions.
3. Long-Term Institutionalization at
Government Expense
Comment: One commenter
recommended DHS provide officers
appropriate training to ensure public
charge inadmissibility determinations
support robust compliance with the
Americans with Disabilities Act, the
Rehabilitation Act, and the Supreme
Court’s decision in Olmstead v. L.C.,
particularly with respect to persons at
serious risk of institutionalization or
segregation but not limited to
individuals currently in institutional or
other segregated settings. Other
commenters stated that DHS should not
subject an individual institutionalized
in violation of federal law to a public
charge inadmissibility determination.
Commenters recommended that DHS
should direct officers not to assume the
271 84
FR at 10589–10591 (Feb. 24, 2022).
FR at 10611 (Feb. 24, 2022).
273 See, e.g., 6 U.S.C. 111(b)(1)(F).
lack of evidence that an applicant’s past
or current institutionalization violates
federal law means institutionalization
was voluntary or lawful. Two
commenters similarly stated that if the
final rule includes consideration of past
or current long-term institutionalization
as part of the public charge
inadmissibility determination, DHS
should include a presumption that the
institutionalization was improper
because Olmstead v. L.C.274 places the
burden on the government rather than
the individual to show that community
placement is improper and thus the
public charge inadmissibility
determination should do the same. One
commenter also stated that the lack of
evidence that past or current
institutionalization is in violation of
Federal law should never be construed
against the applicant, recommending
deleting the reference in the regulatory
text that evidence be ‘‘submitted by the
applicant.’’ Additionally, one
commenter added that there is no
simple way to establish that a person
was institutionalized in violation of
federal anti-discrimination laws or
because of a lack of access of services.
Another commenter said that DHS
should examine the impact on children
with special health care needs of the
inclusion of ‘‘long-term
institutionalization at government
expense’’ as grounds for inadmissibility
in public charge inadmissibility
determinations.
Response: DHS agrees that it will
need to provide training to officers on
all aspects of this final rule and
specifically on how it should consider
disability in the totality of the
circumstances analysis, as well as how
it should consider evidence that a
noncitizen’s rights were violated in
instances where the noncitizen was
eligible for but unable to obtain HBCS
in lieu of long-term institutionalization.
As proposed in the NPRM, DHS will not
consider disability as sufficient
evidence that an applicant for
admission or adjustment of status is
likely at any time to become a public
charge. For example, DHS will not
presume that an individual having a
disability in and of itself means that the
individual is in poor health or is likely
to receive cash assistance for income
maintenance or require long-term
institutionalization at government
expense. DHS will also not presume that
disability in and of itself negatively
impacts the analysis of the other factors
in new 8 CFR 212.22.
DHS also recognizes that there are
some circumstances where an
272 87
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individual may be institutionalized
long-term in violation of Federal
antidiscrimination laws, including the
Americans with Disabilities Act (ADA)
and Section 504. The ADA requires
public entities, and Section 504 requires
recipients of Federal financial
assistance, to provide services to
individuals in the most integrated
setting appropriate to their needs.275 As
discussed in the NPRM, the Supreme
Court in Olmstead v. L.C.,276 held that
unjustified institutionalization of
individuals with disabilities by a public
entity is a form of discrimination under
the ADA and Section 504. Given the
significant advancements in the
availability of Medicaid-funded HCBS
since the 1999 Interim Field Guidance
was issued,277 individuals who
previously experienced long-term
institutionalization may not need longterm institutionalization in the future.
The public charge ground of
inadmissibility is designed to render
inadmissible those persons who, based
on their own circumstances, would
need to rely on the government for
subsistence, and not those persons who
might be confined in an institution
without justification. The possibility
that an individual will be confined
without justification thus should not
contribute to the likelihood that the
person will be a public charge.
Therefore, while DHS will consider
current or past long-term
institutionalization as having a bearing
on whether a noncitizen is likely at any
time to become primarily dependent on
the government for subsistence, DHS
will also consider evidence that past or
current institutionalization is in
violation of Federal law, including the
275 See U.S. Department of Justice, Civil Rights
Division, Disability Rights Section, ‘‘Statement of
the Department of Justice on Enforcement of the
Integration Mandate of Title II of the Americans
with Disabilities Act and Olmstead v. L.C.,’’ https://
www.ada.gov/olmstead/q&a_olmstead.htm (last
updated Feb. 25, 2020) (last visited Aug. 16, 2022).
276 527 U.S. 581 (1999).
277 For example, Congress has expanded access to
HCBS as an alternative to long-term
institutionalization since 1999 by establishing a
number of new programs, including the Money
Follows the Person program and the Balancing
Incentive Program, and new Medicaid State plan
authorities, including Community First Choice (42
U.S.C. 1396n(k)) and the HCBS State plan option
(42 U.S.C. 1396n(i)). Most recently, Congress
provided increased funding to expand HCBS in the
American Rescue Plan. These programs are in
addition to the HCBS waiver program (42 U.S.C.
1396n(c)), first authorized in the Social Security Act
in the early 1980s. As a result of a combination of
these new HCBS programs and authorities and the
Supreme Court’s Olmstead decision in 1999, States
have expanded HCBS. See, e.g., CMS, ‘‘Long-Term
Services and Supports Rebalancing Toolkit’’ (Nov.
2020), https://www.medicaid.gov/medicaid/longterm-services-supports/downloads/ltss-rebalancingtoolkit.pdf.
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Americans with Disabilities Act or the
Rehabilitation Act.278 However, DHS
will not implement the commenter’s
suggestion to strike the reference in the
regulatory text that evidence that the
past or current institutionalization is in
violation of Federal law is to be
submitted by the applicant. DHS notes
that an applicant for admission or
adjustment of status bears the burden of
proof to establish eligibility for the
immigration benefit sought and DHS
declines to shift this burden of proof to
itself.
In addition, DHS again confirms in
this final rule that HCBS are not
considered long-term
institutionalization.
Comment: Several commenters
supported the change in language from
the 1999 Interim Field Guidance
‘‘institutionalization for long-term care
at government expense’’ to the rule’s
‘‘long-term institutionalization at
government expense,’’ because it
clarifies that short-term residential care
for rehabilitation or mental health
treatment is not included, as well as the
statement that long-term
institutionalization is the only category
of Medicaid-funded services that DHS
would consider in public charge
inadmissibility determinations.
One commenter supported adoption
of an objective metric for long-term
institutionalization, such as a stay of 30
or more days in a nursing facility or
other specifically listed type of
institutional setting. Another
commenter suggested that long-term be
defined as five or more years. Another
commenter also stated that if DHS does
continue to consider long-term
institutionalization, it should only
consider it if it is current and has lasted
for at least five years. A commenter
stated that it is important to define longterm in the rule because to one officer
it may mean six months and to another
six years. A commenter, who received
support from other commenters on this
point, stated that they did not support
a time-based definition of ‘‘long-term’’
because it is likely to be overly
inclusive. They stated that DHS should
define ‘‘long-term institutionalization’’
to refer to someone who is permanently
residing in an institution, an approach
that they stated aligns with HHS’s
recommendation during the 1999
rulemaking. They stated that HHS
defined ‘‘long-term institutionalized
care’’ as ‘‘the limited case of [a
noncitizen] who permanently resides in
a long-term care institution (e.g.,
nursing facilities) and whose
subsistence is supported substantially
278 See
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by public funds (e.g., Medicaid).’’
Another commenter recommended
clearly stating that long-term means
uninterrupted, extended periods of stay
in an institution. One commenter stated
that long-term care is hard to define
precisely, citing an article on the
National Institutes of Health website.279
Several commenters recommended
clarifying that ‘‘long-term’’ means
‘‘permanently’’ to narrow the definition
and limit confusion. One commenter
thought that a two- or three-tiered
medical evaluation is more helpful than
setting a time limit of ‘‘long-term’’ to the
institutional care.
Response: With respect to
commenters’ suggestions to set a
specific threshold for long-term
institutionalization, DHS appreciates
the comments that it received on this
topic. DHS is declining to adopt a
specific length of time to define ‘‘longterm’’ and is not aware of a definitional
standard in Medicaid or other benefit
programs that would support a specific
numerical threshold. However, DHS, in
collaboration with HHS, will develop
sub-regulatory guidance to help assess
evidence of institutionalization.
Relevant considerations in determining
whether a person is institutionalized on
a long-term basis may include the
duration of institutionalization and
(where applicable) whether the person
has been assessed and offered, and has
declined, comparable services and
supports such as HCBS, and availability
of such services in the geographic area
where the individual resides.
While DHS believes that permanent
institutionalization would be the most
likely to contribute to an inadmissibility
determination as part of the totality of
circumstances, DHS believes that
institutionalization of indefinite
duration, or shorter than indefinite
duration, may also qualify. As discussed
throughout this final rule, DHS will take
into consideration whether the
noncitizen’s rights were violated
because the noncitizen was eligible but
was not provided the opportunity to
receive care through HCBS rather than
long-term institutionalization. Lastly,
DHS is uncertain what the commenter
meant by a ‘‘two- or three-tiered medical
evaluation’’ or how such evaluation
would help DHS determine the
likelihood that an individual would
become long-term institutionalized at
government expense. As a result, DHS is
279 Penny Feldman and Robert Kane,
‘‘Strengthening Research to Improve the Practice
and Management of Long-Term Care,’’ The
Millbank Quarterly (June 2003), https://www.ncbi.
nlm.nih.gov/pmc/articles/PMC2690214/ (last
visited Aug. 18, 2022).
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not making any changes to the final rule
based on that comment.
Comment: One commenter stated that
allowing USCIS to incorporate into its
standard an assessment of whether the
institutionalization of any given
individual was consistent with the
Americans with Disabilities Act,
Olmstead v. L.C., and related authorities
for the prospect of obtaining
immigration relief would create
distorted incentives and needlessly
complicate both areas of law. The
commenter explained that the courts,
not USCIS, are best situated to elevate
such disputes.
Response: DHS concluded that
considering evidence that a noncitizen
was institutionalized in violation of
their rights is an important guardrail in
public charge inadmissibility
determinations. DHS understands that
services available to individuals may
not be in full compliance with disability
rights laws, depending on their place of
residence. For that reason, individuals
who might otherwise receive HCBS are
institutionalized at government expense
instead. Given this, DHS has expressly
stated in the regulatory text that DHS
will consider evidence submitted by the
applicant that their institutionalization
violates Federal law, in the totality of
the circumstances, and has updated the
instructions for Form I–485 to inform
applicants that they should submit such
evidence.
Comment: Several commenters
recommended DHS not include ‘‘longterm institutionalization’’ in the
definition of ‘‘likely at any time to
become a public charge.’’ One
commenter stated that long-term
institutionalization is a factor that only
applies to people with disabilities. The
commenter stated that if long-term
institutionalization is included, they
support the limitations that DHS has
proposed and that they urge as narrow
of a definition as possible that places
minimum weight on past
institutionalization. Some commenters
further stated that the inclusion of longterm institutionalization discriminates
against people with disabilities and
older people and disproportionately
affects people of color, with one
commenter stating that considering
long-term institutionalization negatively
in a public charge inadmissibility
determination is at odds with DHS’s
statement that disability will not alone
be a sufficient basis to determine
whether a noncitizen is likely to become
a public charge. One commenter stated
that DHS should not consider Medicaid
benefits, including the provision of
HCBS, and disagreed that long-term
institutionalization is a suitable
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exception in determining whether one is
likely to become a public charge. The
commenter added that if DHS does
continue to consider long-term
institutionalization, it should do so only
if DHS can demonstrate that the
individual had a meaningful, affordable,
and available option, known to them, to
receive HCBS instead of
institutionalization; and that
institutionalization is current and has
lasted for at least 5 years. One
commenter stated that including longterm institutionalization at government
expense would continue to discriminate
against people with developmental
disabilities by making them more likely
to be found to be public charges since
only people with disabilities and older
adults experience long-term
institutionalization. One commenter
stated that including long-term
institutional care in a public charge
inadmissibility determination
contributes to substantial opportunity
costs that are borne by immigrant
families, particularly women, who must
then provide the needed care
themselves, citing a study that found
family caregivers who leave the
workforce to care for a family member
experience an average of $303,880 in
lost income and benefits over their
lifetime. The commenter remarked that
including long-term institutional care
financed by Medicaid likely would
disproportionately and adversely impact
women economically and have ripple
effects throughout family structures and
help perpetuate disparities across
American society.280
Response: DHS appreciates these
comments but is declining to omit longterm institutionalization from
consideration in this final rule. DHS
disagrees that the provision
discriminates on the basis of disability,
race, or any other protected ground. In
a decision affirming a preliminary
injunction against the 2019 Final Rule,
the Seventh Circuit wrote that the
public charge statute’s ‘‘health’’
criterion and the Rehabilitation Act
‘‘can live together comfortably, as long
as we understand the ‘health’ criterion
in the INA as referring to things such as
contagious disease and conditions
requiring long-term institutionalization,
but not disability per se.’’ 281 This rule
is not inconsistent with that view.
As stated previously, considering the
past or current receipt of long-term
institutionalization at government
expense is a longstanding element of the
public charge inadmissibility analysis.
In DHS’s view, this scenario is at the
core of the public charge statute. Past or
current receipt of long-term
institutionalization at government
expense can be predictive of future
dependence on those same benefits.
However, such consideration is not
alone dispositive. In addition, as
indicated previously, DHS will take into
consideration any credible and
probative evidence that an individual
was institutionalized in violation of
disability laws.
Comment: Another commenter stated
that DHS should not include long-term
institutionalization in the public charge
assessment. They stated that the
preamble to the 1999 proposed
regulations lists ‘‘the historical context
of public dependency when the public
charge immigration provisions were first
enacted more than a century ago’’ as
support for the agency’s proposed
definition of public charge. However,
they stated that modern long-term
institutionalization is unlike the turn of
the century almshouses. Specifically,
the commenter stated that while only a
small portion of the population resided
in institutional settings at that time,
today long-term institutionalization is
more widespread. They also stated their
view that the need for long-term care is
expected to grow over time as the
population ages and medical advances
increase the lifespans of people with
disabilities or health challenges.282
Commenters stated that while
approximately 60 million Americans
receive taxpayer-funded health care
through Medicare, the program does not
cover the costs of custodial long-term
care. As a result, the commenters said,
Medicaid is the primary payer for longterm care in the United States, covering
over 60 percent of nursing home
residents.283 Given its pervasiveness,
the commenters wrote, Medicaid
funding for long-term care is more like
281 962
F.3d 208, 228 (7th Cir. 2020).
Administration for Community Living,
‘‘How Much Care Will You Need?,’’ https://acl.gov/
ltc/basic-needs/how-much-care-will-you-need (last
modified Feb. 18, 2020) (estimating that almost 70
percent of people turning 65 will require long-term
services and supports, with 37 percent requiring
care outside of their own homes) (last visited Aug.
18, 2022).
283 Medicaid and CHIP Payment and Access
Commission, ‘‘Nursing facilities: Long-Term
Services and Supports,’’ https://www.macpac.gov/
subtopic/nursing-facilities/ (last visited Aug. 18,
2022).
282 See
280 See Peter Arno et al., ‘‘The MetLife Study of
Caregiving Costs to Working Caregivers: Double
Jeopardy for Baby Boomers Caring for Their
Parents,’’ MetLife Mature Market Institute (June
2011), https://www.caregiving.org/wp-content/
uploads/2011/06/mmi-caregiving-costs-workingcaregivers.pdf. The study estimated ranges from a
total of $283,716 for men to $324,044 for women,
or $303,880 on average. The average figure breaks
down as follows: $115,900 in lost wages, $137,980
in lost Social Security benefits, and conservatively
$50,000 in lost pension benefits.
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a general public health program than
evidence of an individual’s dependency.
Response: While DHS acknowledges
that more individuals reside in
institutional facilities today than at the
turn of the century, the population of
the United States is also much larger,
and the portion of the overall
population residing in such facilities
remains very small. The study cited by
the commenter found 84,108 ‘‘paupers’’
residing in almshouses in 1910,284 out
of a total population of 92,228,496, or
0.09%.285 By contrast, the 2020 Census
found 1,697,989 286 individuals residing
in nursing facilities/skilled-nursing
facilities, or other institutional facilities
(excluding correction facilities for
adults and juvenile facilities) out of a
total population of 331,449,281, or
0.5%.287 While DHS acknowledges that
relatively larger percentage of U.S.
residents live in nursing facilities or
other institutional facilities today than
the population residing in almshouses
in 1910, that percentage is still very
small.
As this commenter and many others
have noted, the United States has made
significant advances both for older
adults and for individuals with
disabilities, since the publication of the
1999 Interim Field Guidance. This is
reflected in the decreasing population
(and percentage of the overall
population) residing in such facilities
during that time period. If, as the
commenter states, the need for certain
services is growing over time ‘‘as the
population ages and medical advances
increase the lifespans of people with
disabilities or health challenges,’’
Census data shows that U.S. residents
are increasingly receiving such services
outside of institutional settings. In the
2000 Census, 1,954,740 288 individuals
284 Department of Commerce, Bureau of the
Census, Bulletin 120, ‘‘Paupers in Almshouses:
1910’’ (1914), at 46, https://www2.census.gov/
prod2/decennial/documents/03322287no111121ch7.pdf (last visited July 21, 2022).
285 United States Census Bureau, ‘‘History
Through The Decades: 1910 Fast Facts,’’ https://
www.census.gov/history/www/through_the_
decades/fast_facts/1910_fast_facts.html (last visited
July 21, 2022).
286 United States Census Bureau, ‘‘Group Quarters
Population by Major Group Quarters Type’’ (Aug.
2021), https://data.census.gov/cedsci/table?q=
group%20quarter&tid=DECENNIALPL2020.P5 (last
visited July 21, 2022).
287 United States Census Bureau, ‘‘Apportionment
Population, Resident Population, and Overseas
Population: 2020 Census and 2010 Census’’ (Apr.
26, 2021), https://www2.census.gov/programssurveys/decennial/2020/data/apportionment/
apportionment-2020-tableA.pdf (last visited July 21,
2022).
288 United States Census Bureau, ‘‘Population in
Group Quarters by Type, Sex and Age, for the
United States: 2000’’ (Nov. 10, 2003), https://
www2.census.gov/programs-surveys/decennial/
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resided in nursing homes or other
institutional facilities, out of a total
population of 281,421,906,289 or 0.7%.
As a comparison to the 2020 figures
above shows, even with an increasing
population, an aging population, and
the medical advances noted by the
commenter, both the total number and
percentage over the overall population
residing in such facilities fell over that
two-decade period.
Since the population residing in
nursing facilities or other institutional
settings (both overall and as a
percentage of the total population)
remains small and has decreased over
the past two decades, even if Medicaid
is the primary source of funding for 62
percent of nursing home residents,290
such a small percentage of the overall
population is residing in nursing homes
and institutions providing long-term
care that Medicaid funding for longterm care cannot be said to be ‘‘a general
public health program.’’ Long-term
institutionalization at government
expense remains rare among the U.S.
population as a whole, and given DHS’s
conclusion that it is indicative of
primary dependence on the government
for subsistence, DHS declines to exclude
long-term institutionalization at
government expense from consideration
in public charge inadmissibility
determinations.
Comment: One commenter stated that
there is no bright line between longterm and short-term institutionalization
for rehabilitation purposes. The
commenter wrote that many people
return to their community after being
institutionalized for long-term care, but
their ability to do so can depend on the
availability of HCBS, other resources in
their area, their health status, and their
access to rehabilitative services while in
long-term care. As they and other
commenters have noted, the availability
of alternatives to institutionalization
varies greatly by geography and a
person’s disability, age, and wealth. The
commenter stated that these factors also
affect the availability of other resources
needed to transition from long-term care
into the community.291 A person’s
2000/phc/phc-t-26/tab01.pdf (last visited July 21,
2022).
289 United States Census Bureau, ‘‘Resident
Population of the 50 States, the District of
Columbia, and Puerto Rico: Census 2000’’ (Dec.
2000), https://www2.census.gov/programs-surveys/
decennial/2000/phc/phc-t-26/tab01.pdf (last visited
July 21, 2022).
290 Medicaid and CHIP Payment and Access
Commission, ‘‘Nursing facilities: Long-Term
Services and Supports,’’ https://www.macpac.gov/
subtopic/nursing-facilities/ (last visited Aug. 18,
2022).
291 The commenter referenced Julie Robinson et
al., ‘‘Challenges to community transitions through
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likelihood of transitioning from longterm care back to the community can
also depend on the characteristics of the
long-term care facility.292 The
commenter stated that DHS should not
penalize immigrants for the structural
deficiencies of the country’s healthcare
system. Finally, the commenter wrote
that inviting officers to forecast whether
an individual is likely to use
government programs to pay for future
long-term institutionalization is
particularly speculative given the
potential for medical advances and
changes in the healthcare delivery
system.
Response: As discussed in the NPRM,
DHS will not consider HCBS in public
charge inadmissibility determinations.
DHS will, however, consider evidence
that individuals were institutionalized
in violation of their rights. Where such
evidence is credible, it will have the
tendency of offsetting evidence of
current or past institutionalization. DHS
acknowledges that there may be
limitations on the resources and
services available to individuals, and
that many factors could have an impact
on whether an individual is
institutionalized for long-term care or
receives care through HCBS.
With respect to commenter requests to
exclude from public charge
inadmissibility determinations the
consideration of past or current longterm institutionalization, particularly
focusing on the prevalence of nursing
home care for older adults, and the
impacts on adult children who are
caregivers, DHS is not adopting this
request. As noted above, long-term
institutionalization at government
expense is at the core of the public
charge statute. Although some
individuals may ultimately enter
institutional care at government expense
because of problems associated with
local health care systems, at bottom, this
type of benefit tracks most closely to the
almshouse concept closely associated
with the public charge ground of
inadmissibility. DHS acknowledges the
difficulties associated with predicting
that an individual will be
institutionalized in the future, let alone
the difficulties associated with
predicting the funding source for such
institutionalization. DHS will ensure
that officers make predictive public
Money Follows the Person,’’ 55 Health Servs. Res.
3 (2020), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC7240761/ (last visited Aug. 16, 2022).
292 The commenter cited Amanda Holup et al.,
‘‘Community Discharge of Nursing Home Residents:
The Role of Facility Characteristics,’’ 51 Health
Servs. Res. 2 (2016), https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC4799895/ (last visited Aug. 16,
2022).
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charge inadmissibility determinations
on the basis of available evidence to the
extent appropriate, and without unduly
speculating as to an applicant’s future
circumstances.
Comment: Several commenters
supported including long-term
institutionalization at government
expense in the public charge
inadmissibility determination, with one
commenter reasoning that DHS should
account for immigrants who may come
to the United States for free medical
care. Another commenter similarly
emphasized that places like nursing
homes may take advantage of the use of
Medicaid, and policies should focus on
managing that concern.
Response: DHS agrees that it should
continue to consider long-term
institutionalization at government
expense. DHS does not agree that it
should include other forms of Medicaid
or other healthcare coverage at
government expense. With respect to
comments about Medicaid abuse, DHS
notes that it does not have authority to
regulate how Medicaid is used in
nursing homes. DHS is simply
considering in public charge
inadmissibility determinations whether
or not the noncitizen has been, is
currently, or is likely at any time to be
institutionalized long-term at
government expense. This approach is
consistent with long-standing
interpretation of section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4).
Comment: Many commenters stated
that they supported DHS’s decision not
to consider use of HCBS by a noncitizen
in a public charge inadmissibility
determination. One commenter
recommended DHS explicitly clarify in
the preamble of the final rule and in
sub-regulatory guidance that it will not
consider HCBS in a public charge
inadmissibility determination. One
commenter cited the material
differences between the use of HCBS
and reliance on institutional long-term
care, as well as the public health
interest of reducing the spread of
infection in congregate settings and the
national economic interest of reducing
the cost of long-term care and promoting
individuals’ independence, and
recommended DHS include clarification
in the preamble of the rule and subregulatory guidance and policies for
adjudicating officers to ensure that they
will not consider Medicaid HCBS in a
public charge inadmissibility
determination. The commenter also
requested clarification in the preamble
that HCBS are not included.
Response: DHS agrees with
commenters that HCBS and Medicaid
generally (with the exception of long-
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term institutionalization at government
expense) should not considered in
public charge inadmissibility
determinations. DHS is retaining this
clarification in this final rule. DHS
intends to also retain this clarification
in any sub-regulatory guidance issued
for officers and the public.
Comment: Some commenters stated
that there were issues with the inclusion
of long-term institutionalization at
government expense and the exclusion
of HCBS. One commenter stated that
due to an Indiana law that requires a
person to qualify for SSI in order to
remain in HCBS programs, the rule will
negatively affect every person receiving
HCBS who is 18 years or older in
Indiana. Other commenters also pointed
out that studies have found there is
unequal minority access to HCBS,
which adds to another layer of bias to
which this community is subject, and
stated that DHS should not punish
immigrants with disabilities because
their State does not offer HCBS. Another
commenter stated that, if the rule does
not exclude all of Medicaid, older
immigrants may be afraid to access any
type of HCBS or other health support.
One commenter disagreed with the
inclusion of long-term
institutionalization unless DHS can
demonstrate that the individual had a
meaningful, affordable, and available
option to receive HCBS instead and that
the institutionalization was current.
Some commenters similarly stated that
institutionalization for long-term care at
government expense should not be a
barrier to immigration unless DHS can
demonstrate that the individual had
access to HCBS rather than
institutionalization. The commenters
said that DHS should require officers to
assess the availability of alternatives to
institutionalization, including waiting
lists for HCBS, average time to be placed
into HCBS, and availability of transition
services. A commenter appreciated
DHS’s clarification in the preamble that
HCBS are not to be included. The
commenter stated that older adults
receive HCBS from a variety of
programs, including Medicaid,
Medicare, and Older Americans Act
programs.
Response: As noted above, consistent
with the NPRM, DHS will consider
evidence that long-term
institutionalization of an individual was
in violation of federal law. This would
include circumstances where the
individual has experienced long-term
institutionalization due to lack of HCBS
availability, and may include
consideration of evidence regarding
HCBS waiting lists, States’ compliance
with disability rights laws, etc. DHS
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declines, however, to shift the burden to
itself to demonstrate that long-term
institutionalization was not in violation
of an individual’s rights because the
applicant for admission or adjustment of
status has the burden of proof to
establish eligibility for the immigration
benefit sought. With respect to the
comment regarding eligibility for SSI
and HCBS, if a noncitizen is receiving
SSI, then they are receiving public cash
assistance for income maintenance.
While their receipt of HCBS would not
be considered in a public charge
inadmissibility determination, DHS
would consider their receipt of SSI.
Comment: A few commenters
suggested that DHS include guidance
directing the consideration of the role
an individual’s family would have in
overseeing the individual’s care, as well
as the impact the denial of an
individual’s application for permanent
resident status based on a public charge
inadmissibility determination would
have on a family.
Response: DHS will consider whether
the noncitizen is likely at any time to
become primarily dependent on the
government for subsistence by taking
into consideration the totality of the
circumstances. Where there is evidence
that a noncitizen has a medical
condition that impacts their ability to
care for themselves, DHS can also take
into consideration whether the
noncitizen is being cared for and/or
supported by their family or sponsor(s).
DHS does not believe that it should take
into consideration the impact of an
inadmissibility determination on a
family because the impact on the family
may not make a noncitizen more or less
likely to become primarily dependent
on the government for subsistence.
However, in the context of the assets,
resources, and financial status factor,
DHS is taking into consideration the
household assets and resources,
including income, rather than solely one
individual’s. DHS acknowledges that it
would take into consideration
insufficient assets and resources that
may be a direct result of, for example,
a member of a household no longer
being able to provide financial support
because they must depart the United
States due to an inadmissibility finding.
In addition, and similar to the approach
that DHS took in the 2019 Final Rule,
DHS could take into consideration in
the totality of the circumstances that a
noncitizen in the household subject to
the public charge ground of
inadmissibility is a primary caregiver to
another member of the household and
while not contributing income to the
household is providing an in-kind
contribution to the household. However,
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‘‘impact on the family’’ is not a relevant
factor in the public charge
inadmissibility determination, as the
assessment is related to the noncitizen’s
likelihood at any time to become a
public charge.
Comment: One commenter supported
the rule’s provision that use of Medicaid
alone does not render an individual
inadmissible on the public charge
ground, because the Department of
Health and Human Services has stated
that Medicaid ‘‘does not provide
assistance to meet basic subsistence
needs such as food or housing, with the
exception of long-term
institutionalization, and as such the
receipt of Medicaid is not indicative of
a person being or likely to become
primarily dependent on the government
for subsistence.’’ Another commenter
stated that the rule’s anticipated
positive effect on healthcare enrollment,
including in Medicaid and other
publicly funded and administered
health insurance programs, will leave
the States in a better position to assist
public health and relief efforts during
COVID–19 and future public health
crises. This increased access to
healthcare, as well as to nutritional
services, will reduce disruptions in
benefits and result in long-term net
benefits for States and their residents,
according to the commenter. The
commenter also noted the rule will
alleviate administrative costs to State
benefits-granting agencies, which were
forced to devote scarce time and
resources to attempt to counteract the
fear and confusion caused by the 2019
Final Rule. Another commenter
specifically pointed to the positive
effect Medicaid coverage has with
regular check-ups and access to
prescription medications and ultimately
mortality rates. This commenter cited
that deferring or delaying care will often
result in increased rates of poverty and
housing instability and reduced rates of
productivity and educational
attainment, and that the rule will help
alleviate the apprehension of
noncitizens from enrolling in Medicaid
and help maintain the financial viability
of the emergency care safety net.
Response: DHS agrees that enrollment
in Medicaid, compared with those
benefits considered under this rule, is
less indicative of primary dependence
on the government for subsistence, with
the exception of long-term
institutionalization at government
expense. DHS agrees that Medicaid and
other public health services provide
many socially beneficial services, and
also play an important role in public
health, as evidenced by the important
role it plays in combatting the spread
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and effects of COVID–19. Therefore,
DHS is not considering the receipt of
Medicaid in this final rule, with the
exception of Medicaid-funded long-term
institutionalization at government
expense.
Comment: Many commenters,
including a group of thirteen United
States Senators, stated that DHS should
exclude all Medicaid and Medicare
coverage, including long-term
institutionalization, from consideration.
An association wrote that its members
were over 300 hospitals that provide a
disproportionate share of the nation’s
uncompensated care—$56 million in
uncompensated care annually. The
commenter wrote that the 2019 Final
Rule hampered the public health
response to COVID–19 and that patients
forgoing public insurance programs and
seeking care at hospitals without
insurance strained the tight budgets of
essential hospitals. The commenter
wrote that the Medicaid program is an
integral part of the American health care
system, providing coverage of primary
care, prenatal care, mental health and
substance misuse services, specialty
care, prescription drug coverage, and a
variety of wraparound services. The
commenter also stated that Medicaid
also is a critical source of coverage for
children, paying for routine check-ups,
oral and vision care, and treatment for
chronic conditions. Citing studies, the
commenter stated that care reimbursed
by Medicaid drives improved outcomes;
reduces emergency department use and
unnecessary hospitalizations; and helps
decrease infant and child mortality
rates.293 The commenter also stated that
the benefits of Medicaid go beyond
health care—individuals who receive
Medicaid go on to become productive
members of the workforce and realize
better employment and educational
attainment, thus strengthening the
economy.
Several commenters, one citing
various studies, wrote about the chilling
effect of including any Medicaid, and
stated that families may forgo accessing
necessary healthcare because of fear of
affecting the whole family’s immigration
status.294 A commenter said that
293 Laura Wherry et al., ‘‘Childhood Medicaid
Coverage and Later Life Health Care Utilization’’
(Feb. 2015), https://www.nber.org/papers/w20929
(last visited July 21, 2022). Andrew GoodmanBacon, ‘‘Public Insurance and Mortality: Evidence
from Medicaid Implementation’’ (Nov. 2015),
https://www-personal.umich.edu/∼ajgb/medicaid_
ajgb.pdf (last visited July 21, 2022).
294 Randy Capps et al., ‘‘Anticipated ‘Chilling
Effects’ of the Public-Charge Rule Are Real: Census
Data Reflect Steep Decline in Benefits Use by
Immigrant Families,’’ Migration Policy Institute
(Dec. 2020), https://www.migrationpolicy.org/news/
anticipated-chilling-effects-public-charge-rule-are-
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insurance coverage helps keep families
stable and leads to a vibrant and strong
local economy. One commenter wrote
about the heavy burden State benefitgranting agencies will be put under to
fill gaps in Federal benefits for longterm institutionalization and care.
Commenters also stated that many
nursing home residents have qualified
for Medicaid only after having first
exhausted the maximum time covered
by Medicare, any private long-term care
insurance, and their savings, and that
DHS should not penalize older adults
who have no alternative to
institutionalization for the structural
limitations of the U.S. healthcare
system. One commenter said there
would be increased hospital costs and
unsustainable financial burdens on
healthcare systems if Medicaid is not
extended to all people, not just those
eligible under current immigration laws.
Some commenters also stated that there
is a growing number of older adults
with conditions that require some level
of care, and that who becomes
institutionalized and for how long has
changed over the years, with the result
that substantial portions of the U.S.
population will likely end up in an
institution on a long-term basis, such as
in a nursing facility, at some point in
their lifetime. Commenters also
remarked upon the variability of
availability of alternatives to
institutionalization by geography,
disability, age, and wealth.
Commenters also stressed the
importance of not including Medicaid
in a public charge inadmissibility
determination, with one stating that
discouraging access to proper mental
health care may put a patient at risk to
themselves or others and punishes these
people for having legitimate illnesses.
Another commenter stated that access to
Medicaid and other health care
programs provide a critical lifeline for
survivors of domestic violence, sexual
assault, and human trafficking to treat
significant health consequences of
abuse, as healthcare is a benefit that
many survivors cannot afford.
Commenters stated that the definition of
public charge should explicitly state
that any form of Medicaid and other
real (last visited Aug. 16, 2022). HHS, Assistant
Secretary for Planning and Evaluation, ‘‘Caring for
Immigrants: Health Care Safety Nets in Los Angeles,
New York, Miami, and Houston’’ (Jan. 31, 2001),
https://aspe.hhs.gov/reports/caring-immigrantshealth-care-safety-nets-los-angeles-new-yorkmiami-houston#main-content (last visited Aug. 18,
2022). Hamutal Bernstein et al., ‘‘Immigrant Serving
Organizations’ Perspectives on the COVID–19
Crisis,’’ Urban Institute (Aug. 2020), https://
www.urban.org/research/publication/immigrantserving-organizations-perspectives-covid-19-crisis
(last visited Aug. 17, 2022).
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health insurance and health care
services will not be considered for
public charge inadmissibility
determinations, particularly with an
extension of Medicaid and CHIP
eligibility for pregnant and postpartum
noncitizens. One commenter stated that
Medicaid covers almost half of
childbirths in the United States, and
agreed that including Medicaid in the
public charge inadmissibility
determination would contribute to a
chilling effect where immigrants of all
statuses are wary of seeking the
maternity care they need.
One commenter cited a Kaiser Family
Foundation finding that in the United
States one in three people turning 65
will require nursing facility care in their
lives. One commenter stated that DHS
should recognize that including longterm institutionalization is particularly
outdated, given the much larger and
different role than publicly founded
almshouses played in the early days of
the public charge doctrine. One
commenter also remarked that programs
like Medicaid allow intergenerational
households the ability to earn income
and contribute to their communities
without placing their loved ones at risk
of going without care for fear of
immigration consequences. Commenters
added that an inclusion of long-term
care creates confusion about the receipt
of Medicaid more broadly and it would
be far easier and clearer to exclude all
Medicaid coverage completely. One
commenter also remarked that reducing
access to healthcare for parents will
subsequently reduce access to their
children, putting families at greater risk
of medical debt, unpaid bills, and
bankruptcy. Commenters stated that
including any form of Medicaid
coverage in public charge
inadmissibility determinations will
introduce confusion for immigrants and
have measurable chilling effects, and
that immigrant women, who are more
likely to live in poverty than immigrant
men or U.S. citizens, would be
disproportionately harmed by the
resulting chilling effects. One
commenter stated that DHS should not
put access to Medicaid at risk or
discourage enrollment in any programs
that serve to keep older adults and
people with disabilities healthy,
together with their families, and
integrated in their communities. The
commenter stated that Medicaid is
particularly critical to helping people
with disabilities, including older adults,
live in the community because it covers
services and supports that private
insurance does not, such as personal
care, transportation, and home
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modifications. The commenter stated
that they are concerned that if the rule
does not exclude all of Medicaid that
older immigrants may be nonetheless
afraid to access any kind of HCBS or
other health support.
Response: DHS emphasizes that it
will generally not consider non-cash
public benefits, including governmentfunded healthcare coverage such as
Medicaid or Medicare. The only
healthcare service included in the
public charge inadmissibility
determination is long-term
institutionalization at government
expense (including when funded by
Medicaid). The regulatory text clearly
identifies the only benefits that DHS
considers both for the purposes of
‘‘defining likely at any time to become
a public charge’’ 295 and for making a
public charge determination.296
Moreover, DHS has provided regulatory
text that explains the types of
institutionalizations that do not qualify
as long-term institutionalization at
government expense as defined in 8
CFR 212.21—such as short-term
rehabilitation and imprisonment. DHS
is committed to mitigating chilling
effects and intends to also make this
point clear in guidance and any
communication materials stemming
from this final rule in order to ensure
that the public understands that DHS
does not consider other forms of
Medicaid in public charge
inadmissibility determinations.
With respect to long-term
institutionalization in a nursing home
for older individuals, DHS is aware of
the prevalence of nursing home care for
older individuals, both native-born and
intending immigrants who reach a
certain age. While the public charge
inadmissibility determination is based
on the statutory language ‘‘likely at any
time,’’ DHS acknowledges that the
further out in time an event may occur,
the more difficult it is for officers to
determine whether such an event is
likely to occur. For example, where an
applicant for admission or adjustment of
status is in the prime of their life,
healthy, and able to support themself,
DHS is unlikely to determine that the
noncitizen is inadmissible because they
may need long-term nursing home care
at government expense at a later point
in their life. However, where a
noncitizen is older, has one or more
serious health conditions, and limited
resources, DHS may conclude that such
noncitizen is likely at any time to
become primarily dependent on the
government for subsistence, based in
part on the likelihood that the
noncitizen may need nursing home care
at government expense.
Comment: One commenter suggested
that DHS create an internal structure to
expedite appeals and allow families an
easier way to clarify the status of their
loved ones who require long-term
services and supports for noncitizens
denied based on a public charge
inadmissibility determination.
Response: DHS is not adopting the
proposal to create a special appellate
process for public charge
inadmissibility determinations.
Although not specific to this rule, in
cases in which an applicant has not
submitted all required initial evidence
or the evidence submitted does not
demonstrate eligibility, USCIS has the
discretion to issue a Request for
Evidence (RFE) or Notice of Intent to
Deny (NOID) with respect to any basis
for ineligibility, including the public
charge ground of inadmissibility, in
accordance with 8 CFR 103.2(b)(8) and
USCIS policy in regard to RFEs, NOIDs,
and denials.
DHS notes that there is no
administrative appeal available from a
denial of an application for adjustment
of status issued by USCIS,297 but an
applicant may file a motion to reopen/
reconsider as set forth in 8 CFR 103.5,
and USCIS may certify any such case to
the Administrative Appeals Office
(AAO) if it involves an unusually
complex or novel issue of law or
factor.298 If the noncitizen is placed in
removal proceedings, they can renew
the denied adjustment of status
application before an immigration
judge.299 With respect to inadmissibility
determinations made by CBP, if found
inadmissible, CBP will generally place
the individual in removal proceedings
in which the individual can seek relief
or protection from removal.
Comment: One commenter stated that
including institutionalization for longterm care financed by Medicaid in a
public charge inadmissibility
determination likely contributes to
uncompensated care costs currently
borne by providers relating to
medication non-adherence and
accidental falls. The commenter
reasoned that long-term
institutionalization helps patients that
are vulnerable to missing their
medications and accidental falls by
having skilled professionals take care of
them and that, if they fear immigration
consequences, immigrant families may
avoid this professional care.
297 8
295 See
8 CFR 212.21(a).
296 See 8 CFR 212.21(b) and (c).
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CFR 245.2(a)(5)(ii).
CFR 103.4(a)(1).
299 8 CFR 245.2(a)(5)(ii).
298 8
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Response: DHS agrees with
commenters that long-term
institutionalization at government
expense provides relevant and
important services to individuals who
need such care. Nonetheless, DHS is
declining to exclude past or current
institutionalization from consideration,
or from the definition of ‘‘likely at any
time to become a public charge.’’ As
indicated elsewhere in this final rule,
DHS believes that past or current
institutionalization at government
expense, together with other factors, can
be indicative of future primary
dependence on the government for
subsistence. DHS recognizes that
individuals and families may need to
make decisions regarding reliance on
public benefits’ impact on their
immigration status; however, DHS does
not consider excluding the fact of such
institutionalization to be justified.
Comment: Some commenters stated
that if DHS decides to continue to
consider long-term institutionalization,
it should clarify that involuntary civil
commitment in criminal proceedings is
excluded from its definition.
Commenters also suggested to exclude
involuntary observation or commitment
to a civil psychiatric facility pursuant to
a judicial order pending or after a
finding of incompetence to stand trial in
a criminal proceeding for lack of
responsibility for criminal conduct by
reason of mental illness. The commenter
stressed that the standards and purposes
of civil commitment in criminal
proceedings differ from those of
voluntary admission to a care facility
and DHS should make clear to officers
that they should not equate the two.
Another commenter similarly supported
the rule’s clarification that
imprisonment for conviction of a crime
would not be considered in a public
charge inadmissibility determination.
Response: DHS notes that involuntary
observation or commitment to a
psychiatric facility pursuant to judicial
order pending or after a finding of
incompetence to stand trial in a
criminal proceeding may be considered
in the totality of the circumstances
under the health factor if the underlying
condition is identified on Form I–693,
and DHS is not adding an exception for
these circumstances. However,
commitment to a facility, rather than
prison, resulting from a criminal
proceeding would not be considered
long-term institutionalization at
government expense. Rather, under the
health factor, DHS could take into
consideration the underlying medical/
psychiatric condition in the totality of
the circumstances when making a
determination regarding whether the
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noncitizen is likely to be primarily
dependent on the government in the
future. In addition, DHS notes that
criminal activity may separately subject
a noncitizen to criminal grounds of
inadmissibility, even if the noncitizen is
determined not likely to become a
public charge at any time in the future.
DHS is not taking into consideration
current or past incarceration for a crime
in a public charge inadmissibility
determination, but notes that the fact of
such incarceration may lead the
noncitizen to be excluded and/or
removed from the United States based
on the criminal inadmissibility
standards.
Comment: One commenter
recommended that due to historical and
ongoing racism and xenophobia in the
United States health care system and
health policies resulting in low-income
immigrant women facing high rates of
maternal morbidity, all receipt of
Medicaid, including Medicaid for longterm institutionalization, by pregnant
people be excluded from a public charge
inadmissibility determination. The
commenter stated that pregnant
individuals have significantly higher
instances of COVID–19 hospitalization
and case fatality than similarly aged
adults and are at risk of severe or critical
disease and preterm birth,
complications that are heightened for
low-income immigrant women. The
commenter also recommended
Medicaid use, including Medicaid for
long-term institutionalization, for
children be excluded from a public
charge inadmissibility determination
because childhood institutionalization
is not an indicator of long-term
institutionalization and reliance on the
government, and because COVID–19 has
also affected children, with
hospitalization rates especially high for
children under 5 who were not at the
time of the comment eligible for
vaccinations. Another commenter
similarly stated that DHS should
exclude Medicaid for institutional longterm care for children because Medicaid
supports many children with special
health care needs, and Medicaid and
CHIP cover almost half of all children in
the United States with special health
needs, children who are more likely to
be low-income, from marginalized
communities, and younger than
children on private insurance only. The
commenter stated that considering
children’s use of Medicaid for long-term
institutionalization is likely to
discriminate against children with
disabilities and children from
marginalized communities. The
commenter expressed concern that
allowing any type of Medicaid coverage
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to be included in the rule will cause
confusion and perpetuate the chilling
effect caused by the 2019 Final Rule.
The commenter noted that it is also
important to realize that not all children
who receive long-term care may require
it into adulthood, and that considering
its use would discriminate against
children with disabilities. One
commenter also stated that many older
adults and individuals with disabilities
rely on Medicaid for long-term care, and
recommended that DHS exclude any
type of Medicaid benefit from
consideration because it discriminates
against this population. The commenter
also stated that it is difficult to provide
clear messages to people who need
Medicaid now that their use of
Medicaid for non-institutional purposes
will not be used to indicate that they
will rely on Medicaid should they need
long-term care in the future.
Response: DHS is not excluding past
or current long-term institutionalization
from consideration in this final rule, nor
is DHS adding exclusions for pregnant
individuals, children, or older adults.
DHS has made clear that considering
any receipt of public benefits, including
long-term institutionalization at
government expense, is not alone
dispositive in determining whether a
noncitizen is likely at any time to
become primarily dependent on the
government for subsistence. Instead,
DHS will perform a totality of the
circumstances analysis, and will also
look at the recency and duration of such
long-term institutionalization. In
addition, in the NPRM DHS
distinguished long-term
institutionalization at government
expense from periodic or intermittent
stays in an institution. Additionally,
receipt of Medicaid for the purpose of
obtaining preventive services or
treatment for COVID–19 will not be
considered under this final rule. Finally,
as indicated in the NPRM, the
population of individuals who are both
subject to the public charge ground of
inadmissibility and institutionalized for
long-term care at government expense is
anticipated to be very small.
With respect to the commenter’s
assessment that inclusion of long-term
institutionalization at government
expense will discriminate against
children and individuals from lowincome, marginalized communities,
DHS notes that Medicaid, for example,
provides long-term institutionalization
even for wealthier individuals if they
are determined to be ‘‘medically needy’’
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through spend-down programs.300 In
addition, given the purpose and history
of the public charge ground of
inadmissibility, DHS is not able to
exclude long-term institutionalization at
government expense from
consideration, given that such
institutionalization can provide the
most probative evidence of likely future
primary dependence on the government
for subsistence. That said, and as
discussed throughout this final rule,
such past or current institutionalization
will be taken into account in the totality
of the circumstances. With respect to
the institutionalization of children, DHS
notes that it can and will consider in the
totality of the circumstances any
evidence supplied by the applicant that
the child’s condition is not permanent,
or can be managed through HCBS,
rather than long-term
institutionalization, as well as any
evidence that the child was or is
institutionalized in violation of their
rights.
While DHS is concerned about
chilling effects that might have resulted
from the 2019 Final Rule and has taken
considerable efforts to reduce or reverse
such chilling effects, DHS believes that
the policy contained in this final rule
faithfully administers the public charge
ground of inadmissibility while taking
care to avoid potential chilling effects
that could arise as a result of the policy
reflected in this final rule. DHS is again
noting that it is not considering noncash benefits, including healthcare
coverage under this final rule, with the
narrow exception of long-term
institutionalization.
Comment: One commenter stated that
if DHS considers long-term
institutionalization in a public charge
inadmissibility determination, DHS
should consider only current
institutionalization, as the fact that a
person was institutionalized in the past
does not suggest a likelihood of future
institutionalization.
300 See Letty Carpenter, ‘‘Medicaid eligibility for
persons in nursing homes,’’ 10 Health Care
Financing Review 2, 67–77 (Winter 1988), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC4192916/
pdf/hcfr-10-2-67.pdf (last visited Aug. 16, 2022)
(‘‘Basically, there is no absolute upper limit on the
amount of income that a medically needy applicant
can start with. Anyone who is otherwise eligible
(e.g., who belongs to one of the groups that the State
has chosen to cover and whose assets are within
allowable ceilings) can potentially qualify, provided
their medical expenses are high relative to their
income . . . In the process known as spend down,
a medically needy person establishes eligibility
once income, after deducting expenses the person
has incurred for medical or remedial services, has
been reduced to welfare-related thresholds. In
spending down, the medically needy are assumed
to use income in excess of these thresholds to pay
their medical bills, including nursing home bills.’’).
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Response: DHS agrees with this
commenter in part. As indicated in the
NPRM and this final rule, DHS will
consider the duration and recency of
benefit receipt, which will also apply to
long-term institutionalization at
government expense. If such
institutionalization occurred many years
ago it is unlikely to affect the
inadmissibility determination in terms
of future institutionalization. If,
however, it was recent, or there is
evidence of repeat long-term
institutionalization, then it is more
likely to be probative evidence related
to future primary dependence at any
time.
4. Receipt of Public Benefits
Comment: Many commenters
supported the clarification that applying
for or receiving benefits on behalf of
another will not be considered in the
public charge inadmissibility
determination. The commenters stated
that this clarification is critical to
ensuring that children in immigrant
families continue to receive benefits for
which they are eligible. Some
commenters stated that this definition
will greatly assist States’ public benefits
program staff in effectively
communicating to families concerning
the public charge inadmissibility
determination.
Response: DHS agrees that the
clarification that the receipt of public
benefits occurs when a public benefitgranting agency provides public benefits
to a noncitizen, but only where the
noncitizen is listed as a beneficiary;
applying for a public benefit on one’s
own behalf or on behalf of another, and
receiving public benefits on behalf of
another, would not constitute receipt of
public benefits by the noncitizen
applicant. Similarly, approval for future
receipt of a public benefit on the
noncitizen’s own behalf or on behalf of
another would not constitute receipt of
public benefits by the noncitizen
applicant, though if information or
evidence of such approval is in the
record, DHS will consider it in the
totality of the circumstances. Any
evidence of approval for future receipt
of a public benefit on behalf of an
applicant, while not constituting receipt
of public benefits, would indicate a
probability of future receipt of public
benefits and be considered by DHS as
probative of being likely of becoming a
public charge in the future. Finally, the
noncitizen’s receipt of public benefits
solely on behalf of another, or the
receipt of public benefits by another
individual (even if the noncitizen assists
in the application process), would also
not constitute receipt of public benefits
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by the noncitizen. DHS believes that
this approach, which is similar to the
policy approach to ‘‘receipt’’ in the 2019
Final Rule, is appropriate.
Comment: Several commenters
suggested that DHS should clarify what
does not count as receipt of a public
benefit; for example, it should state that
an intending immigrant who is not
eligible for a particular benefit will not
be considered to have received that
benefit themselves, even if another
person in the household receives it or if
they are listed as a member of the
household by the benefits granting
agency to provide greater ease of
administration and mitigation of the
chilling effect. Commenters said that the
rule should also clearly state that
children in mixed-status families will
not impact a public charge
inadmissibility determination for their
families by accessing certain benefits to
which they are legally entitled because
data demonstrates that eligible children
miss out on essential benefits because of
their parents’ immigration concerns.
Commenters’ suggestions for
clarification of the definition included
citing the use of language such as ‘‘child
only’’ TANF benefits and ‘‘serving as
the representative payee’’ for someone
under the SSI program, and specifically
stating that recipients of a benefit do not
include those assisting with an
application for the benefit. Commenters
further suggested the definition of
receipt should include common words
that do not necessarily equate to receipt,
such as ‘‘payee,’’ ‘‘representative
payee,’’ ‘‘head of household,’’ and
receipt ‘‘on behalf of,’’ and should also
include that approval for long-term
institutional care without being the
resident of the designated care facility
does not count as receipt of public
benefits and other guidance on what
does not count as ‘‘receipt.’’ Several
commenters suggested the definition
should specifically state that issuance or
provision of service of the actual benefit
is essential to the definition of receipt
of a public benefit. One commenter
further stated that DHS should add
additional rules as to what is not
counted as receipt and add a nonexclusive list of examples of what does
not count as receipt of benefits by an
intending immigrant.
Response: DHS appreciates the
commenters’ thoughtful consideration
of the proposed definition of receipt of
public benefits and their corresponding
suggestions. DHS has determined that
receipt of public benefits occurs when a
public benefit-granting agency provides
public cash assistance for income
maintenance or long-term
institutionalization at government
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expense to a noncitizen, where the
noncitizen is listed as a beneficiary.
DHS included the clarifications that
applying for a public benefit on one’s
own behalf or on behalf of another does
not constitute receipt of public benefits
by such noncitizen, and approval for
future receipt of a public benefit on
one’s own behalf or on behalf of another
does not constitute receipt of public
benefits (although, as noted, approval
for future receipt on one’s own behalf
can be considered in the totality of the
circumstances). DHS also clarified that
a noncitizen’s receipt of public benefits
solely on behalf of another individual
does not constitute receipt of public
benefits, and if a noncitizen assists
another individual with the application
process, this assistance does not
constitute receipt for such
noncitizen.301 Further, DHS believes
that by indicating that ‘‘receipt of public
benefits occurs when a public benefitgranting agency provides public cash
assistance for income maintenance or
long-term institutionalization at
government expense to a
noncitizen,’’ 302 the rule sufficiently
indicates that a public benefits granting
agency must issue such benefit to the
noncitizen beneficiary to meet the
definition of receipt.
DHS believes this language clearly
indicates that a noncitizen who is not a
named beneficiary of a public benefit is
not considered to have received that
public benefit. Therefore, if a member of
the noncitizen’s household receives a
benefit, the noncitizen will not be
considered to have received a public
benefit if the noncitizen is not identified
as a named beneficiary of such benefit.
Due to the wide variety of programs that
provide or fund public cash assistance
for income maintenance and long-term
institutionalization at government
expense, and the varying requirements
and procedures for such programs,
individuals may be confused about
whether DHS would consider their or
their family members’ participation in
or contact with such programs in the
past, currently, or in the future to be
‘‘receipt’’ of such benefits. DHS believes
that this rule’s definition will help
alleviate such confusion and
unintended chilling effects that resulted
from the 2019 Final Rule by clarifying
that only the receipt of specific benefits
covered by the rule, only by the
noncitizen applying for the immigration
benefit, and only where such noncitizen
is a named beneficiary would be taken
into consideration. By extension, DHS
would not consider public benefits
301 See
302 See
8 CFR 212.21(d).
8 CFR 212.21(d) (emphasis added).
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received by the noncitizen’s relatives
(including U.S. citizen children or
relatives).
DHS disagrees that the regulatory
language requires additional clarifying
language to emphasize that only those
benefits 303 for which a noncitizen is the
named beneficiary and are actually
received by that noncitizen will be
considered in a public charge
inadmissibility determination. However,
DHS will consider providing more
extensive examples of what is and is not
considered receipt of public benefits
when issuing guidance related to this
rule.
Comment: An advocacy group
recommended DHS include a
noncitizen’s dependent’s receipt of
public benefits when making a public
charge inadmissibility determination,
stating that an analysis of a noncitizen’s
financial status and likelihood of
becoming a public charge is incomplete
without assessing any public benefits
that are used by the noncitizen’s
dependents because a noncitizen is not
self-reliant if required to depend upon
public benefits to support children or
other dependent family members.
Response: DHS disagrees that it
should consider a noncitizen’s
dependent’s receipt of public benefits in
a public charge inadmissibility
determination. DHS recognizes that past
policies, such as the 1999 Interim Field
Guidance and the rules implementing
IRCA legalization, allowed for
consideration of a dependent’s receipt
of public benefits. But the statute does
not require such a policy, and neither
the NPRM, nor the 2019 Final Rule,
provided for a scenario in which a
noncitizen is incentivized to disenroll a
dependent (such as a U.S. citizen child)
to avoid an adverse public charge
inadmissibility determination. DHS
expects that it would be quite rare for
a noncitizen to subsist primarily on
their dependents’ benefits, such that it
would be necessary to expand the
aperture of DHS’s inquiry in the manner
proposed by the commenter. DHS also
observes that a variety of programs
provide or fund public cash assistance
for income maintenance and long-term
institutionalization at government
expense, and that if DHS were to adopt
the policy proposed by the commenter,
individuals may be confused about
whether DHS would consider their or
their family members’ participation in
or contact with such programs in the
past, currently, or in the future to be
‘‘receipt’’ of such benefit. DHS believes
that this rule’s definition of receipt of
public benefits will help alleviate such
303 As
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confusion. Accordingly, under this final
rule, DHS will only consider the receipt
of the benefits listed in 8 CFR 212.21(b)
and (c), and only if received by the
noncitizen applying for the immigration
benefit as a named beneficiary of the
public benefit. DHS will not consider
public benefits received by the
noncitizen’s relatives (including U.S.
citizen children or relatives).
Comment: One commenter suggested
that DHS should expressly clarify in this
final rule that utilization of Medicaid for
healthcare, SNAP, and public housing,
whether past or current, should never be
considered in a public charge
inadmissibility determination.
Response: DHS appreciates the
commenter’s suggestion, and has added
language to 8 CFR 212.22(a)(3) stating
that DHS will not consider receipt of, or
certification or approval for future
receipt of, public benefits not referenced
in 8 CFR 212.21(b) or (c), such as
Supplemental Nutrition Assistance
Program (SNAP) or other nutrition
programs, Children’s Health Insurance
Program (CHIP), Medicaid (other than
for long-term use of institutional
services under section 1905(a) of the
Social Security Act), housing benefits,
any benefits related to immunizations or
testing for communicable diseases, or
other supplemental or special-purpose
benefits. While this was implicit in the
regulatory text of the NPRM that
identified only the benefits that DHS
would consider, and DHS was clear in
the NPRM that it would not consider
any benefits other than those referenced
in 8 CFR 212.22(a)(3) in making a public
charge inadmissibility determination,
DHS agrees with the commenter that
stating this explicitly within the
regulatory text will help clarify this
important point for the public and
potentially reduce uncertainty and
disenrollment effects from these
programs.
5. Government
Comment: Commenters stated that the
definition of government should only
include the Federal government,
eliminating references to State, Tribal,
or local cash benefit programs for
income maintenance, and clarify that
SSI and TANF are the specific programs
that may be considered in a public
charge inadmissibility determination as
this decision to provide this assistance
is constitutionally reserved by the
States. One of those commenters went
further in stating that rather than
defining ‘‘government,’’ if DHS would
clarify that the only public benefits to be
considered in a public charge
inadmissibility determination are cash
assistance for income maintenance
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received through SSI and TANF then
providing that specificity would obviate
any need to define the word
government.
A commenter noted that although the
1999 Interim Field Guidance and 1999
NPRM include State and local
governments in the definition of
government, neither explained the basis
for this conclusion. Another commenter
stated that the definition of government
should only include the Federal
government, because immigration is a
matter regulated by the Federal
government and because one
government agency should not penalize
anyone for appropriately accessing
services promoted and provided by
another government agency.
Response: DHS disagrees with the
commenters who stated that the
definition of government should only
include the Federal government and not
include State, Tribal, territorial, or local
government entity or entities of the
United States. DHS declines to exclude
the consideration of State, Tribal,
territorial, and local cash assistance for
income maintenance because excluding
those programs would unfairly
distinguish recipients of Federal aid
from those receiving aid from States,
Tribes, territories, and localities.
Furthermore, DHS believes that
excluding all such programs from
consideration would be contrary to
Congressional intent to the extent that
receipt of non-Federal benefits, such as
State, Tribal, territorial, or local
benefits, may be no less indicative of
primary dependence on the government
for subsistence than Federal benefits.
In this rule, DHS has chosen to
consider the same list of public benefits
that are considered under the 1999
Interim Field Guidance with certain
clarifications. These benefits are public
cash assistance for income maintenance
and long-term institutionalization at
government expense (including when
funded by Medicaid). DHS believes that
this approach is consistent with a more
faithful interpretation of the term
‘‘public charge’’ and has the additional
benefit of being more administrable and
consistent with long-standing practice
than the 2019 Final Rule. DHS also
believes this approach is less likely to
result in the significant chilling effects
and effects on State and local
governments and social service
providers (such as increases in inquiries
regarding the public charge implications
of receiving certain benefits and
increases in uncompensated care) that
were observed following promulgation
of the 2019 Final Rule.
As noted by one commenter, the 1999
NPRM defined government as any
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Federal, State, or local government
entity or entities of the United States but
did not explain the basis for the
definition.304 However, both the 1999
Interim Field Guidance and the 1999
NPRM suggest that the definition for
public charge is tied to the fact that the
types of benefits that are indicative of
primary dependence on the government
for subsistence are public cash
assistance for income maintenance
provided by Federal, State, and local
benefits-granting agencies as well as
institutionalization at Federal, State,
and local entities’ expense.305 Similarly,
DHS currently believes that it is
appropriate to use a definition of
government that includes all U.S.
government entities. For much of the
time that the concept of public charge
has been part of our immigration
statutes, States, Tribes, territories, and
localities provided much of the public
support available to noncitizens and
although the Federal government has
increased its role in providing benefits,
the social safety net in the United States
continues to consist of a variety of
Federal, State, Tribal, territorial, and
local programs that operate
collaboratively to provide support for
individuals. These non-Federal
programs play an important role and are
interwoven with Federal programs
(some programs are funded by the
Federal Government as well as States,
Tribes, territories, and localities).
Moreover, there are provisions of law
that demonstrate Congressional concern
not only with noncitizens’ receipt of
Federal public benefits, but also
noncitizens’ receipt of State, Tribal,
territorial, and local public benefits. For
example, in addition to codifying
Federal deeming provisions in 8 U.S.C.
1631, Congress included State
‘‘deeming’’ provisions in 8 U.S.C. 1632,
which allow States to consider the
income and resources of a noncitizen’s
sponsor and spouse in ‘‘determining the
eligibility and the amount of benefits’’
of a noncitizen. Consistent with
Congress’ focus on benefits provided by
Federal, State, Tribal, territorial, and
local entities, and its focus on
reimbursing and holding harmless those
entities, DHS believes that it is
appropriate and consistent with
Congressional purpose to define
government to ‘‘mean[] any Federal,
State, Tribal, territorial, or local
304 ‘‘Inadmissibility and Deportability on Public
Charge Grounds,’’ 64 FR 28676, 28681 (May 26,
1999).
305 ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28692 (May 26, 1999); ‘‘Inadmissibility and
Deportability on Public Charge Grounds,’’ 64 FR
28676, 28677 (May 26, 1999).
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government entity or entities of the
United States.’’ 306
Comment: Some commenters
supported the definition of government
including Federal, State, Tribal,
territorial, and local governments for
public charge inadmissibility
determination purposes. One of the
commenters stated further that to so
define government would clarify for
noncitizens that receipt of cash
assistance from private or nongovernmental entities will not have any
implication on their applications to
adjust their status.
Response: DHS agrees with the
commenters who stated that the term
DHS should define ‘‘government’’ as
any Federal, State, Tribal, territorial, or
local government entity or entities of the
United States, and this rule accordingly
retains the same definition proposed in
the NPRM. As stated in the NPRM, this
definition identifies which public cash
assistance and long-term
institutionalization programs DHS will
consider in a public charge
inadmissibility determination.307
6. Other Definitions
Comment: Two commenters suggested
using the definition of household size as
defined in connection with the Affidavit
of Support Under Section 213A of the
INA, with one commenter stating that
an additional definition is superfluous
and would add confusion and
inconsistency.
One commenter stated that DHS
should define a noncitizen’s household
and should use the definition of
household used in the 2019 Final Rule,
taking into account the number of
household members and the number of
individuals for whom a noncitizen or
noncitizen’s parent or guardians provide
at least 50 percent of financial support.
The commenter stated that DHS should
consider the noncitizen’s household
size as the primary element of the
family status factor.
Another commenter recommended
that household remain undefined, as it
does not appear in the statute or
elsewhere in the proposed regulations.
Several commenters remarked that
when household was given a distinct
definition in the 2019 Final Rule it
caused harm and confusion.
Response: DHS appreciates all of the
commenters who responded to DHS’s
request in the NPRM to comment on
how, if at all, DHS should define
‘‘household’’ for use in in applying the
statutory minimum factors, as it did in
the 2019 Final Rule. Because a
306 See
307 See
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definition of household provides
important clarity for the public and for
officers as to how DHS will be
considering both the family status and
assets, resources, and financial status
factors, DHS disagrees with the
commenter who suggested the
regulations should not define
household.
DHS considered the calculation used
to determine a sponsor’s household size
in connection with an Affidavit of
Support Under Section 213A of the INA,
but notes that the sponsor’s household
size calculation pertaining to Affidavit
of Support Under Section 213A of the
INA is designed to demonstrate that a
sponsor’s income and assets are
sufficient to support their household at
the corresponding HHS Poverty
Guideline. Because the intent for a
public charge inadmissibility
determination is not a direct
comparison of a noncitizen’s income
with a noncitizen’s household size, DHS
decided to use a simpler definition of
household in the public charge
inadmissibility determination that
would better reflect whether an
individual is likely at any time to
become a public charge in a totality of
the circumstances assessment.
Accordingly, this rule defines a
noncitizen’s household as ‘‘(1) The
alien; (2) The alien’s spouse, if
physically residing with the alien; (3) If
physically residing with the alien, the
alien’s parents, the alien’s unmarried
siblings under 21 years of age, and the
alien’s children as defined in section
101(b)(1) of the INA; (4) Any other
individuals (including a spouse or child
as defined in section 101(b)(1) of the Act
not physically residing with the alien)
who are listed as dependents on the
alien’s federal income tax return; and (5)
Any other individual(s) who list the
alien as a dependent on their federal
income tax return.’’ 308
DHS believes that the definition from
the 2019 Final Rule classifying people
as household members depending on a
threshold of either 50 percent or more
financial support from or to the
noncitizen places an unnecessary
burden of quantification and analysis on
applicants. As commenters to the 2019
Final Rule noted, such a definition
could also disadvantage larger
households who must show larger
incomes or resources to support the
larger numbers being counted,
regardless of the reality of the economic
benefits certain family members might
provide to such households, or such
households may be providing to
society.309 This could also disadvantage
members of families who provide
financial assistance to extended family
members in cases of emergencies or for
other short-term periods of time without
being legally required to do so because
counting those individuals as part of a
noncitizen’s ‘‘household’’ would
increase the household size and
decrease the household income even in
circumstances that may be temporary.
DHS recognizes that it could define
‘‘household’’ in ways that are
potentially more expansive (as in the
2019 Final Rule) or less expansive, but
DHS believes that this rule’s definition
of household provides officers with a
sufficiently accurate representation of
the assets and resources available to a
noncitizen, recognizing that multiple
household members may contribute to
the overall financial picture of the
household as a whole, without at the
same time creating a system that is
potentially unworkable or
overinclusive.
I. Factors
1. Statutory Minimum Factors
Comment: A number of commenters
stated that they supported the NPRM’s
proposed return to the statutory factors
and use of the Affidavit of Support
Under Section 213A of the INA over the
approach taken in the 2019 Final Rule.
Several of the commenters further stated
support for DHS forgoing defining the
statutory factors and merely relying on
the statutory language because the 2019
Final Rule created complicated
definitions that required USCIS officers
to review voluminous amounts of
documentation and assign negative or
positive weight to evidence and what
commenters stated led to inconsistent
results. Furthermore, some commenters
stated that defining the factors would
invite potential abuse by officers and
result in a more complicated and
discretionary determination that is
unnecessary and harmful.
Response: DHS acknowledges the
commenters’ concerns about
complicated and potentially harmful
interpretations of the statutory
minimum factors. In this rule, DHS is
maintaining the longstanding and
straightforward framework set forth in
the 1999 Interim Field Guidance, in
which officers consider the statutory
minimum factors, the Affidavit of
Support Under Section 213A of the INA,
where required, and current and/or past
receipt of public benefits, in the totality
of the circumstances, without separately
308 See
8 CFR 212.21(f).
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84 FR 41292, 41393–41396 (Aug. 14,
2019).
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codifying evidence required for each
factor as was done in the 2019 Final
Rule. DHS believes this will reduce
burdensome and unnecessary
evidentiary and information collection
requirements pertaining to the statutory
minimum factors, which in turn will
decrease the burdens on DHS when
reviewing and evaluating information
and evidence.
While DHS is neither codifying
specific evidentiary requirements for the
statutory minimum factors nor creating
a separate form to collect information
and evidence about those factors,
following receipt of public comments,
DHS has made changes to the provisions
addressing the following statutory
minimum factors to identify information
relevant to such factors: health, family
status; assets, resources, and financial
status; and education and skills. In
accordance with those changes, DHS
has made changes to Form I–485 to
effectuate the relevant information
collection. The identification and
collection of this relevant information
will help officers make public charge
inadmissibility determinations without
being unnecessarily burdensome for the
public and for DHS, and will provide
clarity to the public regarding what
information is relevant and needed to
make public charge inadmissibility
determinations.
DHS will make a public charge
inadmissibility determination based on
the totality of a noncitizen’s
circumstances.310 The rule explicitly
states that none of the statutory
minimum factors other than the lack of
a sufficient Affidavit of Support Under
Section 213A of the INA, if required,
‘‘should be the sole criterion for
determining if an alien is likely to
become a public charge.’’ 311 As noted in
the NPRM,312 this rule includes
elements consistent with the standard
previously in place for over 20 years.
In addition, consistent with 8 CFR
212.22(b), DHS plans to issue
subregulatory guidance to officers to
inform (but not dictate the outcome of)
the totality of the circumstances
assessment, which will address how the
factors identified in the rule may affect
the likelihood that a given noncitizen
will become primarily dependent on the
government for subsistence at any time
as informed by an empirical analysis of
the best-available data. DHS plans to
issue such guidance prior to the
implementation date of this rule, and
expects that this guidance will promote
consistency in adjudication as well as
310 See
309 See
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8 CFR 2 12.22(b).
8 CFR 212.22(b).
312 See 87 FR at 10621 (Feb. 24, 2022).
311 See
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transparency for applicants and other
stakeholders. DHS may periodically
update this guidance as needed to
reflect current data.
To illustrate the approach taken in
this rule, consider the following
hypothetical examples of noncitizens
applying for adjustment of status by
submitting to USCIS, for instance, the
Form I–485, Application to Register
Permanent Residence or Adjust Status;
a valid Form I–693, Report of Medical
Examination and Vaccination Record; a
sufficient Form I–864, Affidavit of
Support Under Section 213A of the INA,
if required; and all other required
supporting evidence. Note that the
following examples are meant as
illustrations only, and that in any
individual case, an officer’s
consideration of each factor identified
in the rule would entail a detailed
review and analysis.
(1) The officer considers the
noncitizen’s age; health; family status;
assets, resources, and financial status;
education and skills; past and current
receipt of public cash assistance of
income maintenance or long-term
institutionalization at government
expense; sufficient Affidavit of Support
Under Section 213A of the INA; and the
guidance. The guidance includes an
empirical analysis of how these factors
(except for the sufficient Affidavit of
Support Under Section 213A of the
INA) may affect the likelihood that a
noncitizen would at any time of
becoming primarily dependent on the
government for subsistence, based on
the best-available data. The officer
determines that the noncitizen’s
combination of factors does not contain
any adverse indications (such as past or
current receipt of public cash assistance
for income maintenance or inadequate
assets, resources, or financial status). As
a result, the officer finds in the totality
of the circumstances that the applicant
has met their burden of demonstrating
they are not inadmissible under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
(2) The officer considers the factors
and empirical evidence in the guidance
in the manner described above except
that the evidence reflects that the
noncitizen received public cash
assistance for income maintenance
several years ago, which comprised a
small portion of the noncitizen’s income
and did not last for an extended period
of time. The officer’s determination
therefore entails consideration of the
duration and recency of public cash
assistance for income maintenance,
which in this hypothetical case
occurred several years ago, comprised a
small portion of the individual’s income
and did not last for an extended period
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of time. The officer ultimately
determines, following consideration of
the guidance and the individual
circumstances presented by the
applicant (such as the applicant’s
health, education, and income), that the
applicant has met their burden of
demonstrating they are not inadmissible
under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4).
(3) The officer considers the factors
and empirical evidence in the manner
described above, except that the
evidence reflects that the noncitizen’s
receipt of public cash assistance for
income maintenance has occurred over
an extended period of time and
continues to this day, and the
noncitizen has almost no other sources
of income. Following consideration of
this information, together with the other
factors (such as the noncitizen’s
education and skills), the officer
determines in the totality of the
circumstances that the applicant is
inadmissible under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4).
Comment: One commenter disagreed
with considering statutory minimum
factors in a public charge
inadmissibility determination, stating
that the use of those factors may still be
discriminatory against individuals with
disabilities. The commenter stated that
having a disability can affect every
single aspect of one’s life, so the fact
that disability alone cannot lead to a
finding of inadmissibility does not
account for the ways in which the
individual’s disability may impact the
other factors considered. Another
commenter stated that many immigrants
come to the United States to improve
the factors used to make a public charge
inadmissibility determination and
encouraged DHS to remember the
inalienable rights of life, liberty, and the
pursuit of happiness.
Response: Under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), officers are
required to consider specific factors, at
a minimum, in determining whether an
applicant seeking admission to the
United States or seeking to adjust status
to that of lawful permanent resident is
likely at any time to become a public
charge. These factors are the
noncitizen’s age; health; family status;
assets, resources, and financial status;
and education and skills.313 The statute
does not indicate the circumstances
under which any of these factors are to
be treated positively or negatively, how
313 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i). The statute also permits, but does
not require, the consideration of a sufficient
Affidavit of Support Under Section 213A of the
INA, if required. See INA sec. 212(a)(4)(B)(ii), 8
U.S.C. 1182(a)(4)(B)(ii).
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much weight the factors should be
given, or what evidence or information
is relevant to the each of the statutory
minimum factors. DHS may not alter or
dismiss the factors as set forth by
Congress in the statute. DHS is
maintaining the longstanding and
straightforward framework set forth in
the 1999 Interim Field Guidance, in
which officers consider the statutory
minimum factors and the Affidavit of
Support Under Section 213A of the INA,
where required, in the totality of the
circumstances, without separately
codifying initial supporting evidence
that must be submitted for each factor
as was done in the 2019 Final Rule.
DHS believes that this will reduce
burdensome and unnecessary
evidentiary and information collection
requirements pertaining to the statutory
minimum factors, which in turn will
decrease the burdens on DHS when
reviewing and evaluating information
and evidence. DHS also believes that
this focus on a totality of the
circumstances framework is the fairest
and most equitable way to apply the
public charge ground of inadmissibility.
a. Age
Comment: A number of commenters
disagreed that a person’s age may
impact their ability to work or is
relevant to the likelihood of becoming a
public charge. One commenter stated
that employers are prohibited from
discriminating against people who are
40 and over based on the Age
Discrimination in Employment Act of
1967 314 and, thus, DHS should caution
its officers to the potential for abuse of
this specific criterion. One commenter
noted that many older immigrants make
important contributions to their
households, including providing
income, caregiving, and other support
that enables other household members
to work outside the home. The
commenter further stated that these
contributions in turn benefit our
communities and our economy.
Response: Under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), officers are
required to consider specific minimum
factors in determining whether an
applicant seeking admission to the
United States or seeking to adjust status
to that of lawful permanent resident is
likely at any time to become a public
charge. These factors include the
noncitizen’s age.315 However, DHS
appreciates commenters’ concerns that a
person’s age may not determine their
likelihood of becoming a public charge.
314 Public
Law 90–202, 81 Stat. 602 (1967).
INA sec. 212(a)(4)(B)(i)(I), 8 U.S.C.
1182(a)(4)(B)(i)(I).
315 See
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For this reason, DHS notes that in this
rule DHS specifically indicates that the
determination of an individual’s
likelihood of becoming a public charge
must be based on the totality of the
individual’s circumstances and no one
factor, other than the lack of a sufficient
Affidavit of Support Under Section
213A of the INA, if required, should be
the sole criterion for determining if an
individual is likely to become a public
charge.316 Age is not the only factor
taken into account in a public charge
inadmissibility determination and does
not automatically determine if a
noncitizen is likely at any time to
become a public charge.
In order to ensure that DHS officers
are making clear, fair, and consistent
public charge inadmissibility
determinations, the regulations also
state that every written denial decision
issued by USCIS should reflect
consideration of each of the factors
outlined in this rule and specific
articulation of the reasons for the
officer’s determination.317 DHS believes
this will help ensure that public charge
inadmissibility determinations do not
reflect a misunderstanding of age
discrimination laws.
Comment: A few commenters
suggested that children should not be
penalized when considering age as a
factor, or that age for minor children
should not be a consideration, despite
the INA not containing an explicit
exemption for children. Other
commenters similarly suggested that
DHS positively interpret the statutory
factor of age for children and require
officers to apply a heightened standard
for finding that a child is likely at any
time to become a public charge.
Commenters urged that, if a child is
found to be inadmissible under the
public charge ground of inadmissibility,
officers should include specific
reasoning including the consideration of
this heightened standard.
Some commenters suggested
alternatively that DHS create a childspecific framework for the statutory
factors for cases that involve children in
guidance to officers, not ignoring or
exempting children from the statutory
minimum factors but acknowledging
that children are different from adults
and interpreting the factors in a childappropriate manner. For example,
children’s dependence on family is
normal and not an indication of their
likelihood of becoming a public charge
in the future. The commenters also
suggested that DHS view being in school
and having strong family support as
316 See
317 See
8 CFR 212.22(b).
8 CFR 212.22(c).
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factors in a child’s favor, as research
shows that the earlier a child has access
to strong social networks and
educational opportunities the better
their future earnings and outcomes.
Response: As noted previously, DHS
disagrees with commenters who
suggested that the public charge ground
of inadmissibility should not be applied
to children because it is difficult to
predict a child’s likelihood of becoming
primarily dependent on the government
for subsistence. While DHS
acknowledges that the public charge
inadmissibility determination is a
complex assessment, the language of
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), requires that this be a
predictive assessment, and only those
categories designated by Congress are
exempt from the public charge ground
of inadmissibility.318 DHS notes that
Congress did not exclude children from
the public charge ground of
inadmissibility and therefore, unless a
child is seeking admission or
adjustment of status in a classification
that Congress expressly exempted from
the public charge ground of
inadmissibility, for example adjustment
of status as a special immigrant
juvenile,319 DHS must apply the ground
to applications for admission or
adjustment of status.
DHS recognizes that it must apply the
statutory minimum factors to
individuals’ specific circumstances, and
as such, has made clear that a public
charge inadmissibility determination
should be based on the totality of a
noncitizen’s circumstances. These
factors include the noncitizen’s age;
health; family status; assets, resources,
and financial status; and education and
skills.320 As stated throughout this rule,
no one factor other than the lack of a
sufficient Affidavit of Support Under
Section 213A of the INA, if required,
‘‘should be the sole criterion for
determining if an alien is likely to
become a public charge’’ 321 and ‘‘DHS
may periodically issue guidance to
officers to inform the totality of the
circumstances assessment.’’ 322 DHS
believes that a public charge
inadmissibility determination that takes
into account the totality of a
noncitizen’s circumstances, including
their age, is consistent with a the
318 See
8 CFR 212.23.
sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
320 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i). The statute also permits, but does
not require, the consideration of a sufficient
Affidavit of Support Under Section 213A of the
INA, if required. See INA sec. 212(a)(4)(B)(ii), 8
U.S.C. 1182(a)(4)(B)(ii).
321 See 8 CFR 212.22(b).
322 See 8 CFR 212.22(b).
319 INA
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statute. While DHS will not create a
different standard for children, DHS
intends to issue guidance as appropriate
that will clarify considerations that are
relevant to considering a child’s receipt
of public benefits in the totality of the
circumstances.
To address the comment requesting
that officers be required to include
specific reasoning for a public charge
inadmissibility finding for children,
DHS notes that the regulations state that
every written denial decision issued by
USCIS should reflect consideration of
each of the factors outlined in this rule
and specific articulation of the reasons
for the officer’s determination, which
will help ensure that public charge
inadmissibility determinations will be
fair and consistent with the law.
b. Health
Comment: Some commenters
recommended that DHS not consider
health as a factor in public charge
inadmissibility determinations because
it unfairly hinders all immigrants,
especially those with disabilities and
chronic health conditions that face
heightened healthcare costs as well as
disproportionate barriers to education
and employment, making them unable
to show significant assets or resources.
Another commenter stated that a
person’s health status should never be
considered when evaluating whether
they are likely to become a public
charge because it unfairly discriminates
against individuals from communities
where preventive care and other
services are not widely accessible, as
well as against individuals who have
chronic health conditions or disabilities.
Some commenters stated that any
individual may become disabled due to
illness, injury, or the development of a
condition at any time and the rule does
little to protect immigrants who are
injured or disabled while working in the
United States, or those who may become
infected with COVID–19.
Response: DHS designed this rule to
adhere to, and implement, congressional
instructions. DHS did not issue this rule
to discriminate against applicants based
on their health, and moreover, did not
intend to single out or discriminate
against those with disabilities or chronic
health conditions or applicants who
come from communities where
preventive care and other services are
not widely accessible. Rather, as noted
in the NPRM 323 and above in this
preamble, this rule is intended to
articulate a policy with respect to the
public charge ground of inadmissibility
that that is fully consistent with law and
323 87
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that is clear, fair, and comprehensible
for officers as well as for noncitizens.
This rule, and in particular, the
consideration of the health factor, is
simply a reflection of and wholly
consistent with Congress’ mandate that
DHS consider an applicant’s health in
every public charge inadmissibility
determination.324
DHS disagrees with commenters’
suggestion that it has the authority to
ignore any of the statutorily mandated
factors, including the health factor, in
making a public charge inadmissibility
determination, even if an applicant has
a chronic medical condition, disability,
or lives in a community where
preventive care and other services are
not widely accessible. In fact, under the
plain language of the statute, Congress
requires DHS to review the applicant’s
health when determining whether the
applicant is likely at any time to become
a public charge.325 DHS will not
disregard the factors that Congress
mandated DHS consider, and DHS
therefore declines to adopt this
suggestion in this rule.
To the extent that commenters are
concerned that DHS, in considering an
applicant’s health, will treat an
applicant’s disability or particular
health conditions, such as chronic
health conditions, as outcome
determinative, DHS notes that it lacks
the authority to treat any of the statutory
minimum factors, including an
applicant’s health, as outcome
determinative. Simply put, DHS will not
treat any of the statutory minimum
factors as outcome determinative in this
rule,326 and, as reflected in the
NPRM,327 this rule already includes a
provision that prohibits treating any
factor, other than the lack of a required
Affidavit of Support Under Section
213A of the INA, as outcome
determinative.328 Indeed, under this
rule, the mere presence of any medical
condition would not, on its own, render
an applicant inadmissible as likely at
any time to become a public charge. On
the contrary, as required by Congress,329
in this rule, a noncitizen’s health is but
one factor that DHS must consider when
determining whether a noncitizen is
likely to become a public charge at any
time.330 Moreover, as noted in the
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324 INA
sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
325 See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
326 8 CFR 212.22(b).
327 87 FR at 10621 (Feb. 24, 2022).
328 See 8 CFR 212.22(b).
329 See INA sec. 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B).
330 8 CFR 212.22(a)(1)(ii).
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NPRM 331 and as reflected in this final
rule, the fact that an applicant has a
disability as defined by Section 504 of
the Rehabilitation Act will never alone
be a sufficient basis to determine
whether the noncitizen is likely at any
time to become a public charge.332
Comment: One commenter remarked
that being denied entry into the United
States based on a disability violates
noncitizens’ human rights. Another
commenter stated that ‘‘the regulation of
public charge goes beyond immigration
control and prevention of abuse of
public services . . . and is a threat to
the human rights of every human being
. . . .’’ This commenter provided
testimonials from members of the
Disability and Immigration Justice
Coalition to describe how the public
charge ground of inadmissibility
negatively affects their lives. The
commenter also stated that the proposed
rule encourages and supports social and
cultural ableism, destroying decades of
social justice work for disabled lives to
be included, and that no human being
is a public charge.
Response: The term ‘‘public charge’’
is a statutory term and part of a ground
of inadmissibility that DHS administers
pursuant to duly enacted laws. DHS
notes that while it is required to
administer the public charge ground of
inadmissibility to all noncitizens who
are subject to the ground, DHS does not
intend to suggest through this
rulemaking that a noncitizen’s worth or
value to society is in any way tied to a
noncitizen being determined to be likely
at any time to become a public charge.
With respect to comments and
testimonials opposing the regulation of
public charge as a threat to human
rights, DHS notes that it was not clear
from the comment whether the
commenter objects to the application of
the public charge ground of
inadmissibility, or DHS’s proposed
rule—the commenter did not
specifically address any aspect of the
proposed rule. Nevertheless, DHS
disagrees that this rule violates
noncitizens’ human rights, encourages
ableism, or would deny admission or
adjustment of status based on a
noncitizen’s disability. In fact, under
this rule, disability alone is not a
sufficient basis to determine that a
noncitizen is likely at any time to
become a public charge.333 Although the
statute requires DHS to consider an
applicant’s health when assessing the
applicant’s likelihood at any time of
331 87
FR at 10620 (Feb. 24, 2022).
CFR 212.22(a)(4).
333 See 8 CFR 212.22(a)(4) and (b).
332 8
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becoming a public charge,334 which may
include consideration of any disabilities
identified in the report of medical
examination in the record,335 there is no
presumption under the statute or in this
rule that having a disability in and of
itself means that the applicant is in poor
health or is likely at any time to become
a public charge. DHS will not, under
this rule, presume that an applicant’s
disability in and of itself negatively
impacts the applicant’s health or any of
the other statutory minimum factors that
DHS considers as part of the public
charge inadmissibility determination.336
For example, as noted in the NPRM,337
many disabilities do not impact an
individual’s health or require extensive
medical care, and the vast majority of
people with disabilities do not use
institutional care.
Simply put, under this rule, DHS will
not deny admission or adjustment of
status to any applicant solely based on
the applicant’s disability. As noted in
the NPRM 338 and above, under this
rule, no one factor, other than the lack
of a required Affidavit of Support Under
Section 213A of the INA, is outcome
determinative.339 Indeed, under this
rule, the fact that an applicant has a
disability as defined by Section 504 of
the Rehabilitation Act will never alone
be a sufficient basis to determine
whether an applicant for admission or
adjustment of status is likely at any time
to become a public charge.340 The final
rule also includes other provisions to
better ensure fair and consistent
treatment of individuals with
disabilities—for example, long-term
institutionalization in the context of
Medicaid is limited to ‘‘institutional
services under section 1905(a) of the
Social Security Act,’’ 341 which, as DHS
clarified in the proposed rule, does not
include HCBS.342 In addition, the final
rule includes a provision that allows
DHS to consider evidence submitted by
the applicant that the applicant’s longterm institutionalization violates federal
law, including the Americans with
Disabilities Act or the Rehabilitation
Act.343 As a result, DHS declines to
make any changes to the rule in
response to this comment.
Comment: One commenter
discouraged defining health in a way
334 INA sec. 212(a)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
335 See 8 CFR 212.22(a)(1)(ii).
336 8 CFR 212.22(a)(4).
337 87 FR at 10620 (Feb. 24, 2022).
338 87 FR at 10621 (Feb. 24, 2022).
339 See 8 CFR 212.22(b).
340 8 CFR 212.22(a)(4).
341 8 CFR 212.21(c).
342 87 FR at 10614 (Feb. 24, 2022).
343 8 CFR 212.22(a)(3).
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that would penalize individuals based
on the nature or conditions of their
work. This commenter remarked that
farmworkers, in particular, engage in
‘‘difficult, repetitive tasks, often in
uncomfortable positions, resulting in
musculoskeletal injuries . . . [as well as
o]ther dangerous conditions [that]
include handling heavy machinery,
working with large animals, and
working at heights . . . , ’’ which needs
to be accounted for in the definition of
health. This commenter also
discouraged defining health to include
consideration of an applicant’s health
insurance coverage in the definition, as
few farmworkers have access to
comprehensive health insurance. Some
commenters, with one pointing to
President Biden’s executive order
Advancing Racial Equality and Support
for Underserved Communities Through
the Federal Government,344 stated that
DHS should consider how social
determinants of health, such as social,
economic, and environmental factors,
contribute to an applicant’s health in a
public charge inadmissibility
determination. The commenter stated
that poor health and shorter life
expectancy concentrate among lowincome people of color residing in
certain places, including immigrants’
native countries in the global south that
have been disadvantaged by historical
and structural factors such as
colonization and racially discriminatory
immigration policies. Another
commenter similarly stated that when
officers weigh the health factor, they
should treat social determinants of
health only in a positive manner,
consider overall wellness without
reference to disability to the extent
possible, and should treat other ‘‘aspects
of health’’ as irrelevant to the health
factor, to avoid considering disability
alone as influencing the likelihood of an
immigrant being determined likely to
become a public charge.
Response: DHS notes that it is not, in
this rule, defining health to include an
assessment of whether an applicant has
health insurance coverage.345 DHS
further notes that it is not defining
health to specify that any aspect of an
applicant’s health, including
circumstances that might impact the
reasons why an individual has certain
health conditions, should be treated as
a positive or negative factor. Rather, in
response to public comments and
feedback received, DHS has amended
the rule to clarify that in considering an
344 E.O. 13985, ‘‘Advancing Racial Equity and
Support for Underserved Communities Through the
Federal Government,’’ 86 FR 7009 (Jan. 25, 2021).
345 8 CFR 212.22(a)(1)(ii).
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applicant’s health in the totality of the
circumstances, DHS will consider any
report of an immigration medical
examination performed by a civil
surgeon or panel physician in the
record.346 The report of the immigration
medical examination will include, as
required by HHS regulations, any Class
A or Class B medical conditions
diagnosed by the physician, as well as
‘‘the nature and extent of the
abnormality; the degree to which the
alien is incapable of normal physical
activity; and the extent to which the
condition is remediable . . . [as well as]
the likelihood, that because of the
condition, the applicant will require
extensive medical care or
institutionalization.’’ 347 The report of
medical examination will also include,
as required by the CDC Technical
Instructions for Civil Surgeons 348 and
the Technical Instructions for Panel
Physicians,349 a notation for any Class B
medical condition identified by the
physician that although it ‘‘does not
constitute a specific excludable
condition, [it] represents a departure
from normal health or well-being that is
significant enough to possibly interfere
with the person’s ability to care for himor herself, to attend school or work, or
that may require extensive medical
treatment or institutionalization in the
future.’’ 350 DHS would rely on any such
findings made by the civil surgeon or
panel physician as to whether any Class
A or Class B medical conditions were
identified in the report of medical
examination unless there is evidence
that the report is incomplete.
DHS believes that this will ensure that
DHS officers, who are not trained
medical professionals, are assessing the
applicant’s health, based on reports
from physicians designated to perform
immigration medical examinations.
DHS believes that the evidence it will
consider in assessing an applicant’s
health will ensure that applicants
understand what DHS will consider as
part of the health factor, while
minimizing burdensome information
collection associated with this factor.
346 8
CFR 212.22(a)(1)(ii).
CFR 34.4(b)(2) and (c)(2).
348 CDC, Civil Surgeons, ‘‘Medical History and
Physical Examination,’’ https://www.cdc.gov/
immigrantrefugeehealth/civil-surgeons/medicalhistory-and-physical-exam.html (last visited Aug.
16, 2022).
349 CDC, Panel Physicians, ‘‘Medical History and
Physical Examination,’’ https://www.cdc.gov/
immigrantrefugeehealth/panel-physicians/medicalhistory-physical-exam.html (last visited Aug. 16,
2022).
350 See CDC, ‘‘Technical Instructions for Civil
Surgeons,’’ https://www.cdc.gov/immigrant
refugeehealth/civil-surgeons.html (last visited Aug.
16, 2022). See 42 CFR 34.3(i).
347 42
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DHS further notes that it does not,
through considering any report of
medical examination in an applicant’s
file in this rule, intend the rule to
penalize or negatively affect any
particular group, including farmworkers
or other workers who may become
injured or sick due to job-related
conditions or socioeconomic
circumstances. Under this rule, being a
farmworker who has been or is more
likely to be injured on the job, or an
individual whose socioeconomic
circumstances may impact their health,
would not on its own result in a finding
that an applicant is inadmissible as
likely at any time to become a public
charge. As is the case with any of the
statutory minimum factors, in making a
public charge inadmissibility
determination in the totality of the
circumstances, the mere presence of any
medical condition, as diagnosed on a
report of medical examination in the
record, would not render a noncitizen
inadmissible under this rule; under this
rule, DHS will, in the totality of the
circumstances, take into account all of
the factors identified in 8 CFR 212.22,
including an applicant’s health.351 DHS
would consider the existence of any
medical condition and weigh such
evidence in the totality of the
circumstances.
As a result, DHS disagrees that it
would be appropriate to implement
commenters’ suggestion that DHS give
positive weight or favorably consider
the social, economic, and environmental
factors that go into the applicant’s
health. Indeed, as noted elsewhere in
this rule, each public charge
inadmissibility determination is
extremely fact-specific and the factors
that may weigh heavily in one case may
not have equal weight in another case
depending on those specific facts in the
totality of the applicant’s
circumstances.352 This is particularly
true when considering an applicant’s
health. Therefore, DHS declines to
implement any of the suggestions from
these commenters.
Comment: One commenter
recommended that evidence of
‘‘inadmissibility-creating’’ drug abuse or
addiction be explicitly included as a
heavily weighted negative factor in a
public charge inadmissibility
determination, as it would provide
information relevant to a noncitizen’s
ability to maintain employment,
income, and health, all of which are
relevant to the noncitizen’s ability to
demonstrate self-reliance.
351 8
CFR 212.22(b).
FR at 10620 (Feb. 24, 2022).
352 87
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Response: After considering public
comments and feedback, DHS is
amending the rule to include an express
provision that DHS will consider, as
part of the mandatory health factor, any
report of an immigration medical
examination performed by a civil
surgeon or panel physician where such
examination is required.353 Such a
report of an immigration medical
examination documents whether the
noncitizen has Class A medical
conditions, which include drug abuse or
addiction, and Class B medical
conditions, and whether the applicant
has complied with all vaccination
requirements, which DHS uses to
determine whether an applicant is
inadmissible on the health-related
grounds.354 This addition will ensure
that DHS officers consider, as part of the
totality of the circumstances analysis,
any health conditions, including drug
abuse or addiction, identified on the
report of medical examination.
To the extent that this commenter
suggests that DHS needs to assess
whether the applicant has demonstrated
self-reliance, DHS believes, as noted in
the NPRM, that this rulemaking reflects
that the long-standing intent of the
public charge ground of
inadmissibility—reaching noncitizens
with significant reliance on the
government for support.355 DHS
believes that this rule properly focuses
on applicants who are primarily
dependent on the government for
subsistence (i.e., noncitizens who are
unable or unwilling to work to support
themselves, and who do not have other
nongovernmental means of support
such as family members, assets, or
sponsors).356 DHS therefore disagrees
with this commenter that it needs to
amend the regulation to include any
heavily weighted negative (or positive)
factor in order to ensure that applicants
have demonstrated that they are selfreliant. DHS is not adding any heavily
weighted negative factors to this rule
because DHS believes, consistent with
the statute, that each public charge
inadmissibility determination is
extremely fact-specific and that
declaring factors to be ‘‘heavily
353 8 CFR 212.22(a)(1)(ii). Note, however, that
while this was not included in the proposed
regulatory text, the NPRM indicated that the report
would be considered. See 87 FR at 10617 (Feb. 24,
2022) (‘‘DHS will collect information relevant to the
statutory minimum factors from existing
information collections, e.g., information pertaining
to the health factor will be obtained from Form I–
693, Report of Medical Examination and
Vaccination Record’’).
354 42 CFR 34.3 and 34.4.
355 87 FR at 10620 (Feb. 24, 2022).
356 8 CFR 212.21(a). 87 FR at 10606 (Feb. 24,
2022).
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weighted’’ in all cases is not calculated
to yield fair or consistent results; the
factors that may weigh heavily in one
case may not have equal weight in
another case depending on those
specific facts in the totality of the
applicant’s circumstances.357 As a
result, DHS declines to add any heavily
weighted factors, including a heavily
weighted factor for drug abuse or
addiction.
Comment: One commenter suggested
that the health factor be given minimal
weight in the totality of the
circumstances.
Response: DHS disagrees that it
would be appropriate to give the health
factor minimal weight in every case for
the same reason that DHS disagrees that
it should treat health as a heavily
weighted factor. As noted above, each
public charge inadmissibility
determination is extremely fact-specific
and the factors that may weigh heavily
in one case may not have equal weight
in another case depending on those
specific facts in the totality of the
applicant’s circumstances.358 This is
particularly true when considering an
applicant’s health. Some applicants, as
reflected on a report of medical
examination, may not have been
diagnosed with any Class A or Class B
medical conditions, while others have
been diagnosed with Class A medical
conditions such drug abuse or addiction
or Class B conditions, such those that
require extensive medical care or
institutionalization. How much weight
DHS would give to any of these medical
conditions would depend on the exact
nature of the condition as well as all of
the other factors that DHS must consider
in every case under this rule. As a
result, DHS declines to add a provision
to the rule that instructs officers to give
minimal weight to the health factor in
every case.
Comment: One commenter stated that
DHS should narrow the consideration of
health in a public charge inadmissibility
determination to only include situations
in which a person’s health condition is
likely to permanently and irreversibly
make them primarily reliant on the
government, and that this determination
should only be made by qualified
medical professionals, not officers.
Another commenter appeared to suggest
that the health factor should be
narrowly defined as having a severe or
extreme condition that, in the presence
of circumstances where the person does
not have relatives or friends in the
United States indicating their
willingness to come to their assistance,
357 87
358 87
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FR at 10620 (Feb. 24, 2022).
Frm 00076
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would make the person more likely to
become a public charge.
Response: Congress requires DHS to
consider the applicant’s health when
determining whether the applicant is
likely at any time to become a public
charge.359 DHS disagrees that it should
narrowly define the health factor to only
include consideration of severe or
extreme conditions that in the absence
of having friends and family to provide
financial support make the applicant
more likely to become a public charge,
or to conditions, as determined by
qualified medical professionals, that
permanently and irreversibly make
applicants primarily reliant on the
government. That Congress determined
that an applicant’s health is one of the
mandatory factors that is relevant to
determining the applicant’s likelihood
at any time of becoming a public charge
suggests that Congress did not intend to
limit the health consideration to any
specific medical condition or
circumstances. Therefore, DHS declines
to narrow the health factor as
commenters suggest.
DHS notes, however, as explained
above, that it has amended the rule to
include an express provision that DHS
will consider, as part of the mandatory
health factor, any report of an
immigration medical examination
performed by a civil surgeon or panel
physician where such examination is
required.360 Such a report of an
immigration medical examination
documents whether the noncitizen has
any Class A medical conditions, which
include a current physical or mental
disorder (and behavior associated with
the disorder that may pose, or has
posed, a threat to the property, safety, or
welfare of the noncitizen or others) and
drug abuse or addiction, and Class B
medical conditions, including a
physical or mental health condition,
disease, or disability serious in degree
or permanent in nature, and whether the
applicant has complied with all
vaccination requirements, which DHS
uses to determine whether an applicant
is inadmissible on the health-related
grounds.361 This addition will ensure
that DHS officers consider, as part of the
totality of the circumstances analysis,
359 See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
360 8 CFR 212.22(a)(1)(ii). Note, however, that
while this was not included in the proposed
regulatory text, the NPRM indicated that the report
would be considered. See 87 FR at 10617 (Feb. 24,
2022) (‘‘DHS will collect information relevant to the
statutory minimum factors from existing
information collections, e.g., information pertaining
to the health factor will be obtained from Form I–
693, Report of Medical Examination and
Vaccination Record’’).
361 42 CFR 34.3 and 34.4.
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any health conditions identified on the
report of medical examination in the
totality of the circumstances. The
approach that DHS has taken in this rule
leverages evidence that will generally
already exist in the applicant’s record.
DHS acknowledges that some
information on such a report may not
bear significantly upon a determination
that a person is or not likely to become
a public charge, but in this instance,
DHS believes that the matter can be
appropriately addressed in guidance.
Comment: Many commenters
expressed support for the rule’s
recognition that a noncitizen should not
be considered likely at any time to
become a public charge simply because
the noncitizen has a disability and
instead it is only one factor to be
considered in the totality of
circumstances and cannot be the sole
basis for a denial. One of the
commenters stated that (1) many
disabilities do not impact an
individual’s health or require extensive
medical care (i.e., the presence of the
disability is a life condition rather than
a health condition); (2) many people
have disabilities that do not result in
either illness or long-term health
conditions (e.g., people with intellectual
and developmental disabilities may not
have a long-term health-related
condition); and (3) many immigration
officers are not trained to make
disability or health diagnoses and
should not assume that people who
present with a disability have severe
health issues.
Response: DHS agrees that officers
should not assume that applicants with
disabilities have health issues and that
DHS officers should not make health
diagnoses. After considering comments
and public feedback, DHS has included
a provision in this rule specifying that
when considering an applicant’s health,
DHS will consider any report of an
immigration medical examination
performed by a civil surgeon or panel
physician where such examination is
required, to which DHS will generally
defer absent evidence that such report is
incomplete.362 The report of the
immigration medical examination will
include, as required by HHS regulations,
any Class A or Class B medical
conditions diagnosed by the physician,
as well as ‘‘the nature and extent of the
362 8 CFR 212.22(a)(1)(ii). Note, however, that
while this was not included in the proposed
regulatory text in the NPRM, the NPRM indicated
that the report would be considered. See 87 FR at
10617 (Feb. 24, 2022) (‘‘DHS will collect
information relevant to the statutory minimum
factors from existing information collections, e.g.,
information pertaining to the health factor will be
obtained from Form I–693, Report of Medical
Examination and Vaccination Record’’).
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abnormality; the degree to which the
alien is incapable of normal physical
activity; and the extent to which the
condition is remediable . . . [as well as]
the likelihood, that because of the
condition, the applicant will require
extensive medical care or
institutionalization.’’ 363 The report of
medical examination will also include,
as required by the CDC Technical
Instructions for Civil Surgeons 364 and
the Technical Instructions for Panel
Physicians,365 a notation for any Class B
medical condition identified on the
form by the physician, that although it
‘‘does not constitute a specific
excludable condition, [it] represents a
departure from normal health or wellbeing that is significant enough to
possibly interfere with the person’s
ability to care for him- or herself, to
attend school or work, or that may
require extensive medical treatment or
institutionalization in the future.’’ 366
DHS would rely on any such findings
made by the civil surgeon or panel
physician as to whether any Class A or
Class B conditions were identified in
the report of medical examination
unless there is evidence that the report
is incomplete. DHS has amended the
regulatory text consistent with this
approach.
DHS notes, however, that in making a
public charge inadmissibility
determination in the totality of the
circumstances, the mere presence of any
Class A or Class B condition, diagnosed
on a report of medical examination,
including a ‘‘disability serious in degree
or permanent in nature . . .’’ 367 would
not alone render a noncitizen
inadmissible under this rule; under this
rule, DHS will, in the totality of the
circumstances, take into account all of
the factors identified in 8 CFR 212.22,
including an applicant’s health.368
Furthermore, under this rule, DHS
reiterates that an applicant with a
disability would not be found
inadmissible on the public charge
ground solely on account of that
disability.369 Instead, DHS would look
363 42
CFR 34.4(b)(2) and (c)(2).
Civil Surgeons, ‘‘Medical History and
Physical Examination,’’ https://www.cdc.gov/
immigrantrefugeehealth/civil-surgeons/medicalhistory-and-physical-exam.html (last visited Aug.
16, 2022).
365 CDC, Panel Physicians, ‘‘Medical History and
Physical Examination,’’ https://www.cdc.gov/
immigrantrefugeehealth/panel-physicians/medicalhistory-physical-exam.html (last visited Aug. 16,
2022)
366 See CDC, ‘‘Technical Instructions for Civil
Surgeons,’’ https://www.cdc.gov/immigrant
refugeehealth/civil-surgeons.html (last visited Aug.
16, 2022); See 42 CFR 34.3(i).
367 42 CFR 34.4(c).
368 8 CFR 212.22(b).
369 8 CFR 212.22(a)(4).
364 CDC,
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55547
at whether the individual had a medical
condition impacting their health and
weigh such evidence in the totality of
the circumstances.
Comment: Commenters stated that
disability and chronic health conditions
should not be considered in a public
charge inadmissibility determination
under any circumstances in order to
avoid unfair decisions by officers based
on misunderstanding or lack of
information about a noncitizen’s
disability or officers’ implicit bias.
Similarly, one commenter stated that
consideration of an applicant’s health
condition risks disqualifying applicants
based on disability.
Response: DHS agrees that disability
alone can never disqualify an individual
but disagrees that it should exclude
from consideration all disabilities.
Under this rule, USCIS’ approach to the
health factor will result in the
consideration of some health conditions
that are also disabilities. Specifically, in
each case, USCIS’ review of the Form I–
693 would result in consideration of a
Class A or Class B condition reported by
a civil surgeon or panel physician on a
report of medical examination. Some of
these conditions may relate to
disabilities. DHS agrees it is important
that decisions by its officers be based on
objective information and believes the
Form 1–693 will help. DHS will provide
further guidance for officers on how to
accurately consider whether a disability
reported by a civil surgeon or panel
physician impacts an applicant’s
likelihood of becoming a public charge.
Congress requires DHS to review the
applicant’s health when determining
whether the applicant is likely at any
time to become a public charge.370
Congress did not direct DHS to consider
disability as such, and DHS will not do
so under this rule. That said, Congress
also did not provide that DHS’s
consideration of an applicant’s health
should exclude consideration of any
aspect of an applicant’s health that also
constitutes a disability. Consistent with
the statute, DHS declines to exclude
consideration of an applicant’s
disability as part of the health factor in
the totality of the circumstances.
DHS further disagrees that
considering any disabilities that are
identified on a report of medical
examination completed by a civil
surgeon or panel physician disability
will disqualify such applicants from
immigration benefits based on their
disability. Under this rule, DHS will not
deny admission or adjustment of status
to any applicant solely based on the
370 See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
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applicant’s disability. As noted in the
NPRM and above, under this rule, no
one factor, other than the lack of a
required Affidavit of Support Under
Section 213A of the INA, is outcome
determinative.371 Indeed, under this
rule, the fact that an applicant has a
disability as defined by Section 504 of
the Rehabilitation Act will never alone
be a sufficient basis to determine
whether an applicant for admission or
adjustment of status is likely at any time
to become a public charge.372
In making a public charge
inadmissibility determination in the
totality of the circumstances, the mere
presence of a disability or of a particular
Class A or Class B condition diagnosed
on a report of medical examination
would not alone render a noncitizen
inadmissible under this rule; under this
rule, DHS will, in the totality of the
circumstances, take into account all of
the factors identified in 8 CFR 212.22,
including an applicant’s health.373
Furthermore, under this rule, DHS
reiterates that an applicant with a
disability would not be found
inadmissible on the public charge
ground solely on account of that
disability.374
Comment: A commenter stated that
DHS should not use the Report of
Medical Examination and Vaccination
Record, or evidence of a medical
condition, in a public charge
inadmissibility determination because
disability does not predict
employability and does not consider
that some disabilities or conditions are
temporary and individuals may recover.
Response: DHS disagrees that it
should not use a report of medical
examination in an applicant’s record as
part of its consideration of an
applicant’s health in the totality of the
circumstances. As noted in the
NPRM,375 consistent with DHS’s desire
to minimize burdensome and
unnecessary evidentiary and
information collection requirements
pertaining to the statutory minimum
factors, DHS believes it appropriate,
when considering an applicant’s health,
to consider evidence that would
generally already be in the applicant’s
record. A report of medical examination
would normally be in an adjustment of
status applicant’s record, either because
the adjustment applicant is required to
undergo an immigration medical
examination conducted by a USCISdesignated civil surgeon, which is
371 See
8 CFR 212.22(b).
CFR 212.22(a)(4).
373 8 CFR 212.22(b).
374 8 CFR 212.22(a)(4).
375 87 FR at 10617 (Feb. 24, 2022).
372 8
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documented on the Report of Medical
Examination and Vaccination record
(Form I–693) as part of the adjustment
of status process,376 or the applicant is
exempt from the Form I–693
requirement because they were
previously examined by a panel
physician prior to entering the United
States and has a report of medical
examination completed by a panel
physician overseas in their record.377 As
noted above, DHS added a provision in
this rule, after considering public
comments and feedback, to expressly
consider any report of medical
examination that is in an applicant’s
record, which DHS believes will ensure
that DHS officers consider, as part of the
totality of the circumstances analysis,
any health conditions that bears on an
applicant’s likelihood at any time of
becoming a public charge. DHS notes,
however, that any conditions identified
on a report of medical examination in
the record will be considered, along
with the other factors identified in this
rule, in the totality of the
circumstances.378 No condition
identified on a report of medical
examination is outcome
determinative.379
Comment: One commenter stated that
health factors that are not recorded as a
Class B certification by the civil surgeon
performing the medical screening
should be disregarded in a public charge
inadmissibility determination.
Response: As noted above, when
considering the applicant’s health, DHS
will consider any report of medical
examination in the applicant’s record as
part of a public charge inadmissibility
determination.380 DHS notes, however,
that any report of medical examination
in the record will only contain
diagnoses of Class A and Class B
medical conditions.381 While DHS will
not require applicants to submit initial
evidence other than any required report
of medical examination, an applicant is
free to submit any other evidence
relevant to the health factor for
consideration in the totality of the
circumstances.
Comment: One commenter
recommended that DHS provide further
examples to clarify what is meant by
‘‘disability alone’’ in order to confirm
376 INA
sec. 232(b), 8 U.S.C. 1222(b); 8 CFR 245.5.
e.g., OMB, ‘‘Medical Examination for
Immigrant or Refugee Applicant,’’ ‘‘Report of
Medical Examination by Panel Physician (Form DS
2054)’’ OMB Control No. 1405–0113, https://
omb.report/omb/1405-0113 (last visited Aug. 16,
2022).
378 8 CFR 212.22(b).
379 8 CFR 212.22(b).
380 8 CFR 212.22(a)(1)(ii).
381 42 CFR 34.3(b).
377 See,
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that enrollment in programs available to
working individuals with disabilities for
whom risk of institutionalization is an
eligibility criterion is not a sufficient
basis for an adverse public charge
inadmissibility determination.
Response: The provision stating that
disability alone is an insufficient basis
to determine whether the applicant is
likely at any time to become a public
charge means that evidence that the
applicant has a disability cannot by
itself be the basis to find that the
applicant is inadmissible. As explained
more thoroughly in the NPRM,382 DHS
will not presume that if an individual
has a disability then the applicant
necessarily is likely at any time to
receive cash assistance for income
maintenance or require long-term
institutionalization at government
expense, or otherwise presume that
their disability in and of itself
negatively impacts any of the statutory
minimum factors, such as the
applicant’s education and skills, or
assets, resources, and financial status.
For example, many disabilities do not
impact an individual’s health or require
extensive medical care and the vast
majority of disabilities do not require
institutional care at government
expense. DHS, in considering an
applicant’s health, will consider the
existence of any medical condition
diagnosed on the report of medical
examination and weigh such evidence
in the totality of the circumstances.
Moreover, as in every case, DHS will
consider all of the factors set forth in 8
CFR 212.22(a) in determining whether
an applicant is likely at any time to
become a public charge in the totality of
the circumstances.383
Comment: One commenter stated that
DHS must consider a noncitizen’s
disabilities or chronic health conditions
as part of the health factor, because an
analysis of a noncitizen’s health is
incomplete without evaluating whether
disabilities or chronic health conditions
are present, and DHS should consider
the existence of a medical condition in
light of the effect that condition is likely
to have on a person’s ability to attend
school or work in the totality of the
circumstances. The commenter further
stated that considering a noncitizen’s
disability is not unlawful or
discriminatory because Congress
requires DHS to consider a noncitizen’s
health as part of the public charge
inadmissibility determination and has
not prohibited the application of the
public charge ground of inadmissibility
to noncitizens with disabilities. The
382 87
FR at 10620 (Feb 24, 2022).
8 CFR 212.22(b).
383 See
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commenter also recommended DHS
consider whether the noncitizen has the
resources to pay for associated medical
costs.
Response: DHS believes that disability
is not necessarily indicative of poor
health. DHS agrees that Congress did
not specifically provide an exemption
from the public charge ground of
inadmissibility for individuals with
disabilities, and in fact, as noted above,
included health as a mandatory factor in
the public charge inadmissibility
determination.384 DHS will consider
health conditions identified in the
record as part of the health factor in the
totality of the circumstances. As noted
above, Congress requires DHS to review
the applicant’s health when determining
whether the applicant is likely at any
time to become a public charge.385
DHS declines to add a provision in
this rule that requires DHS to consider
whether the noncitizen has the
resources to pay for medical costs
associated with a disability. As DHS
noted above, DHS will not presume that
an applicant who has a disability will
require extensive medical care or
treatment as a result of their disability.
That said, DHS believes that its
consideration of any report of medical
examination in the record is adequate
evidence of the applicant’s health as it
relates to whether the applicant requires
extensive medical care. Indeed, as noted
above, the report of medical
examination will include, as required by
HHS regulations, any Class A or Class
B conditions diagnosed by the
physician, as well as ‘‘the nature and
extent of the abnormality; the degree to
which the alien is incapable of normal
physical activity; and the extent to
which the condition is remediable . . .
[as well as] the likelihood, that because
of the condition, the applicant will
require extensive medical care or
institutionalization.’’ 386 In diagnosing a
Class B condition on a report of medical
examination, civil surgeons and panel
physicians are required to note that that
although it ‘‘does not constitute a
specific excludable condition, [it]
represents a departure from normal
health or well-being that is significant
enough to possibly interfere with the
person’s ability to care for him- or
herself, to attend school or work, or that
may require extensive medical
treatment in the future.’’ 387 This
384 INA
sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
386 42 CFR 34.4(b)(2) and (c)(2).
387 CDC, Civil Surgeons, ‘‘Medical History and
Physical Examination,’’ https://www.cdc.gov/
immigrantrefugeehealth/civil-surgeons/medicalhistory-and-physical-exam.html (last visited Aug.
385 See
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information, coupled with the
noncitizen’s household’s income, assets,
and liabilities, which is considered as
part of the assets, resources, and
financial status factor in the totality of
the circumstances,388 will adequately
address whether or not the applicant
has sufficient resources to pay for
medical costs associated with a
disability or any other condition
diagnosed on the report of medical
examination. As such, DHS will not add
any provisions to this rule in response
to this comment.
Comment: Several commenters stated
that consideration of an applicant’s
health violates Section 504 of the
Rehabilitation Act.
Response: DHS disagrees with the
comments stating that consideration of
an applicant’s health, which includes
consideration of any disabilities that are
Class A or B conditions, as identified on
a report of medical examination,
violates the Rehabilitation Act. As noted
in the NPRM, in enacting section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
which applies to all noncitizens seeking
a visa, admission, or adjustment of
status unless exempted by Congress,
Congress required DHS to consider, as
part of the public charge inadmissibility
determination, a noncitizen’s health.
Although Congress has, over time,
significantly reduced the prohibitions
on immigration for noncitizens with
mental and physical disabilities and
also amended PRWORA to restore the
ability of certain noncitizens with
disabilities to receive certain public
assistance, such as SSI,389 Congress has
never prohibited consideration of a
noncitizen’s health as part of a public
charge inadmissibility determination if
the noncitizen has mental or physical
disabilities.
16, 2022); CDC, Panel Physicians, ‘‘Medical History
and Physical Examination,’’ https://www.cdc.gov/
immigrantrefugeehealth/panel-physicians/medicalhistory-physical-exam.html (last viewed Aug. 16,
2022).
388 See 8 CFR 212.22(a)(1)(iv). Note that an
applicant’s household income, assets, and liabilities
excludes income from public benefits listed in 8
CFR 212.21(b) as well as income or assets from
illegal activities or sources such as proceeds from
illegal gambling or drug sales.
389 See generally Mark Weber, ‘‘Opening the
Golden Door: Disability and the Law of
Immigration,’’ 8 Journal of Gender, Race and Justice
153 (2004), at 4–5, 8 (discussing historical changes
in 1986 and 1990 immigration laws that removed
various prohibitions on noncitizens with mental
and physical disabilities, unless they represented a
threat to themselves or others; describing
restoration of SSI disability benefits to noncitizens
who had been receiving them before August 22,
1996). See also John Stanton, ‘‘The Immigration
Laws from a Disability Perspective: Where We
Were, Where We Are, Where We Should Be,’’ 10
Geo. Immigr. L. J. 441 (Spring 1996) (pre-PRWORA
analysis).
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This rule is consistent with federal
statutes and regulations with respect to
discrimination against noncitizens with
disabilities. If a disability on a report of
medical examination in the record is
related to a noncitizen’s health, it is
therefore properly considered as part of
the public charge inadmissibility
determination. However, under this
rule, DHS will not presume that a
noncitizen having a disability is
necessarily in poor health. Furthermore,
a noncitizen’s health is never outcome
determinative—that is, a noncitizen’s
health cannot be the sole basis for a
finding that a noncitizen is inadmissible
as likely to become a public charge.390
As such, a disability alone will never
result in a public charge inadmissibility
finding, and, as noted in the NPRM,391
the rule expressly prohibits disability
being the sole basis for finding an
applicant is inadmissible on the public
charge ground.392 If a noncitizen’s
disability is a Class A or B condition
identified in the report of medical
examination, then as with any other
such condition, the noncitizen’s
disability will be considered along with
the other factors in the totality of the
circumstances. A noncitizen with a
disability will neither be treated
differently nor singled out, and the
disability itself would not be the sole
basis for an inadmissibility finding.393
DHS will look at each of the statutory
minimum factors, any current and/or
past receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense, and the favorably considered
sufficient Affidavit of Support Under
Section 213A of the INA, where
required, in the totality of the
circumstances. Therefore, DHS believes
that consideration of an applicant’s
disability in the context of the totality
of circumstances does not violate the
Rehabilitation Act’s prohibition on
denying a benefit ‘‘solely by reason of
[an applicant’s] disability.’’
Therefore, DHS will not prohibit the
consideration of an applicant’s
disability in the public charge
inadmissibility determination to the
extent is impacts their health. The final
rule also includes other provisions to
better ensure fair and consistent
treatment of individuals with
disabilities; for example, DHS will
direct officers to take into account any
evidence that the current or past
institutionalization violates the
390 8
CFR 212.22(b).
FR at 10620 (Feb. 24, 2022).
392 8 CFR 212.22(a)(4).
393 8 CFR 212.22(a)(4); 8 CFR 212.22(b).
391 87
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Rehabilitation Act or any other Federal
law.394
Comment: One commenter stated that
proposed 8 CFR 212.22(a)(4) is both a
reasonable and necessary
implementation of Section 504 of the
Rehabilitation Act.
Response: DHS agrees that the
regulation is consistent with Section
504 of the Rehabilitation Act. DHS notes
that under this rule, the fact that an
applicant has a disability as defined by
Section 504 of the Rehabilitation Act
will never alone be a sufficient basis to
determine whether an applicant for
admission or adjustment of status is
likely at any time to become a public
charge. As explained more in the
responses to comments about the health
factor, in making a public charge
inadmissibility determination in the
totality of the circumstances, the mere
presence of any disability or a medical
condition diagnosed on a report of
medical examination 395 would not
render a noncitizen inadmissible under
this rule.396 DHS will, in the totality of
the circumstances, take into account all
of the factors identified in 8 CFR
212.22(a), including an applicant’s
health.397 Also under this rule, an
applicant with a disability would not be
found inadmissible on the public charge
ground solely on account of that
disability.398
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c. Family Status
Comment: One commenter suggested
that ‘‘family status’’ be defined
expansively as ‘‘family unit’’ with the
end goal of keeping families together.
Furthermore this commenter stated that
USCIS should interpret the term ‘‘family
unit’’ to mean the noncitizen’s close
relatives that can care for the noncitizen
such as spouses, parents, siblings,
children, grandparents, aunts/uncles,
and cousins in keeping with the
Congressional goal and strong
presumption to interpret immigration
statutes in favor of keeping a family unit
together.
Response: While DHS supports family
unity, under section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), officers are
required to consider specific minimum
factors in determining whether an
applicant seeking admission to the
United States or seeking to adjust status
to that of lawful permanent resident is
likely at any time to become a public
charge, including the noncitizen’s
CFR 212.22(a)(3).
CFR 212.22(a)(1)(ii).
396 8 CFR 212.22(b).
397 8 CFR 212.22(b).
398 8 CFR 212.22(a)(4).
family status.399 DHS acknowledges that
the definition of a family may include
a variety of a noncitizen’s relatives and
close relations. Therefore, DHS has
decided that a noncitizen’s family status
will be determined using a noncitizen’s
household size, as defined in 8 CFR
212.21(f). This definition includes a
noncitizen; the noncitizen’s spouse (if
residing with the noncitizen); parents,
children, and unmarried siblings under
21 years of age (if residing with the
noncitizen); any other individuals not
physically residing with the noncitizen
but listed as a dependent on a
noncitizen’s Federal income tax return;
and any other individual who lists the
noncitizen as a dependent on that
individual’s Federal income tax return.
In order to account for the contributions
of these household members, DHS will
determine a noncitizen’s assets,
resources, and financial status based on
the household’s income, assets, and
liabilities.400 DHS believes this is the
best way to interpret the impact of a
noncitizen’s family status and its
relation to the noncitizen’s likelihood of
becoming a public charge at any time.
Comment: One commenter stated that
the applicant’s family status should
only be taken into consideration in
connection with reviewing the
noncitizen’s household size consistent
with current calculations utilized for the
Affidavit of Support Under Section
213A of the INA. Having household
members with ties to the United States
should be considered a positive factor.
Family status should not be regarded as
a negative factor except in consideration
of assets, resources, and financial status
and consistent with the requirements of
the Affidavit of Support Under Section
213A of the INA.
Response: DHS appreciates this
commenter’s thorough recommendation
for the approach to assessing an
applicant’s family status. DHS will not
be assigning any weight within this rule
regarding any of the statutory factors,
but will instead indicate what will be
considered in relation to each statutory
minimum factor and direct officers to
make a public charge inadmissibility
determination based on the totality of a
noncitizen’s circumstances. A
noncitizen’s family status will be
determined by that noncitizen’s
household size.401
DHS considered the calculation used
to determine a sponsor’s household size
in connection with an Affidavit of
Support Under Section 213A of the INA,
394 8
395 8
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399 See INA sec. 212(a)(4)(B)(i)(III), 8 U.S.C.
1182(a)(4)(B)(i)(III).
400 See 8 CFR 212.22(a)(1)(iv).
401 See 8 CFR 212.21(f).
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but notes that the sponsor’s household
size calculation is designed to
demonstrate that a sponsor’s income
and assets are sufficient to support their
household at the corresponding HHS
Poverty Guideline. Because the family
status factor is intended for a public
charge inadmissibility determination
and not a direct comparison of a
noncitizen’s income with a noncitizen’s
household size, DHS decided to clarify
a simpler definition of household size
for use in a public charge
inadmissibility determination that
would better reflect if an individual is
likely at any time to become a public
charge in a totality of the circumstances
assessment.
d. Assets, Resources, and Financial
Status
Comment: One commenter disagreed
with evaluating an applicant’s assets as
part of a public charge inadmissibility
determination because some life events
could negatively impact a family’s
finances at one point in time, and
therefore availability of assets and
resources is not a predictable factor.
Another commenter expressed
disapproval of using a noncitizen’s
limited assets or resources when such
an assessment is unlikely to
conceptualize the impact of low income
immigrants to communities in the
United States since noncitizens
contribute greatly to the health of the
U.S. economy and sometimes do so in
professions that do not traditionally
generate high income and therefore do
not allow for the accumulation of
wealth, assets, and resources, but
remain essential to the economy.
Response: DHS disagrees that an
applicant’s assets, resources, and
financial status should not be included
in a public charge inadmissibility
determination, and also disagrees that
considering this factor diminishes the
importance of certain low wage earners
and their contributions to the United
States. Under section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), officers are
required to consider specific minimum
factors in determining whether an
applicant seeking admission to the
United States or seeking to adjust status
to that of lawful permanent resident is
likely at any time to become a public
charge. These factors include the
noncitizen’s assets, resources, and
financial status.402 DHS appreciates that
some noncitizens may not hold
significant assets or resources, however,
and DHS agrees that this does not
necessarily indicate that such a
402 See INA sec. 212(a)(4)(B)(i)(IV), 8 U.S.C.
1182(a)(4)(B)(i)(IV).
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noncitizen is likely to become a public
charge. DHS notes that the public charge
inadmissibility determination is based
on a totality of the noncitizen’s
circumstances, and no one factor, other
than the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
if required, should be the sole criterion
for determining if a noncitizen is likely
to become a public charge.403 DHS will
review a noncitizen’s circumstances,
taking into account all of the statutory
minimum factors, the Affidavit of
Support Under Section 213A of the INA,
if required, current and past use of
public cash assistance for income
maintenance, and long-term
institutionalization at government
expense in order to make a complete
and fair public charge inadmissibility
determination.
Comment: A farmworker advocacy
organization discouraged DHS from
considering debts and other financial
obligations, stating that many
farmworkers, especially H–2A workers,
have accumulated significant debt even
though it is illegal for recruiters to
charge fees, however, debt does not
impact their ability to work and does
not create a reliance on the U.S.
government. The commenter noted that
H–2 workers are not eligible for most
public benefits. Other commenters
expressed concerns about the
consideration of debt and financial
liabilities given that some populations
are particularly vulnerable to unfair or
predatory debt practices. A commenter
raised the issue of debt in the context of
domestic or immigrant abuse—where
partners or others are accruing debt
without the consent of the noncitizen.
Response: DHS disagrees with
commenters that DHS should not
consider debts or other financial
obligations in a public charge
inadmissibility determination. Under
this rule, DHS is determining whether a
noncitizen is likely at any time to
become primarily dependent on the
government for subsistence. DHS also
notes that an individual’s financial
obligations and debts affect the financial
status of the individual, and an
evaluation of a noncitizen’s assets
without considering the noncitizen’s
financial obligations and debts would
result in an artificially inflated
calculation of the noncitizen’s financial
status, as those obligations and debts
would decrease the finances that are
actually accessible to the noncitizen.
DHS agrees that if a noncitizen has
financial obligations and debts that it
does not necessarily indicate that the
noncitizen is likely at any time to
403 See
8 CFR 212.22(b).
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become a public charge. DHS will use
a totality of the circumstances
framework so that officers may assess
the noncitizen’s circumstances as a
whole. DHS also notes that VAWA
noncitizens, T nonimmigrants and U
nonimmigrants are exempt from the
public charge ground of inadmissibility.
With respect to H–2 nonimmigrants,
DHS agrees that they are generally not
eligible for public benefits. DHS also
notes that these nonimmigrants can and
should report the charging of unlawful
recruitment fees.
Comment: One commenter stated that
credit history should not be used in a
public charge inadmissibility
determination because it is an
unreliable predictor of a person’s longterm financial stability or future
earnings. The same commenter also
stated that, absent a refusal to accept
work, a person’s history of
unemployment also should not be
considered.
Response: DHS agrees that a
noncitizen’s credit history is not
necessarily a predictor of a noncitizen’s
likelihood of becoming a public charge.
This rule will not require noncitizens to
submit evidence in relation to credit
history in order to make a public charge
inadmissibility determination.
DHS understands the commenter’s
concern that a person’s history of
unemployment may be considered
negatively. DHS notes that a public
charge inadmissibility determination
will be made based on the totality of a
noncitizen’s circumstances, in which a
noncitizen’s employment history may
be considered in light of the
noncitizen’s degrees, certifications,
licenses, skills obtained through work
experience or educational programs,
and educational certificates that the
noncitizen may have received or the
income and assets employment may
have generated. DHS understands that
some noncitizens will have periods of
unemployment and emphasizes that a
history of unemployment is not a
specific factor DHS has identified for a
public charge inadmissibility
determination but may be considered as
part of a review of a noncitizen’s assets,
resources, and financial status in the
totality of circumstances. In assessing a
noncitizen’s likelihood at any time of
becoming a public charge, DHS will
consider the statutory minimum factors,
the Affidavit of Support Under Section
213A of the INA, if required, current
and/or past receipt of public cash
assistance for income maintenance, and
long-term institutionalization at
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55551
government expense in the totality of
the circumstances.404
Comment: Several commenters made
suggestions about what DHS should
consider regarding the assets, resources,
and financial status factor. One
commenter stated that DHS should
consider the assets and resources of all
family members, including a sponsor, if
the noncitizen has one. Another
commenter suggested DHS only require
evidence of assets attained most
recently, for example during the past 1
to 2 years, to show sufficient assets for
the public charge inadmissibility
determination. One commenter
suggested that DHS make a fair
assessment of unpaid, volunteer, and
other activities individuals undertake
without paid compensation, based on
effective minimum wage or rates
consistent with those paid for similar
work in the applicant’s relevant labor
market, whichever is highest, and
including reasonable paid fringe
benefits.
Response: DHS agrees that it should
consider the assets and resources of all
family members, including a sponsor
who executed an Affidavit of Support
Under Section 213A of the INA, if
applicable, but only if such family
members are part of the applicant’s
household. As such, DHS specifies in
this rule that a noncitizen’s assets,
resources, and financial status are
demonstrated by the income, assets, and
liabilities (excluding any income from
public benefits listed in 8 CFR 212.21(b)
and income or assets from illegal
activities or sources such as proceeds
from illegal gambling or drug sales) of
the noncitizen’s household.405 The
exclusion of income from illegal
activities, including illegal gambling or
drug sales, is consistent with how
USCIS treats sponsors’ household
income, as it is defined in 8 CFR 213a.1,
in the context of the Affidavit of
Support Under Section 213A of the INA.
In that context, a sponsor may not
include any income from the intending
immigrant derived from ‘‘unlawful
sources’’ 406 or income from any
household member derived ‘‘from
illegal acts.’’ 407
404 See
8 CFR 212.22(b).
8 CFR 212.22(a)(1)(iv).
406 See 8 CFR 213a.1 (definition of household
income prohibits the sponsor including the
intending immigrant’s income from unlawful
sources as part of the sponsor’s household income).
407 See USCIS, ‘‘Instructions for Affidavit of
Support Under Section 213A of the INA,’’ OMB
Control No. 1615–0075 (expires Dec. 31, 2023),
https://www.uscis.gov/sites/default/files/document/
forms/i-864instr.pdf (last visited Aug. 16, 2022)
(prohibiting the sponsor from ‘‘rely[ing] on a
household member’s income from illegal acts, such
405 See
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A noncitizen’s household includes
the noncitizen as well as the
noncitizen’s spouse, children,
unmarried siblings under 21 years of age
and physically residing with the
noncitizen, any other individuals listed
as dependents on the noncitizen’s
Federal income tax return, and any
other individual who lists the
noncitizen as dependent on their
Federal income tax returns.408
If the applicant is required to submit
an Affidavit of Support Under Section
213A of the INA, and if the sponsor who
executed that affidavit is a member of
the applicant’s household as that term is
defined in new 8 CFR 212.21(f), then
such sponsor’s income would be
included in the applicant’s household
income when making a public charge
inadmissibility determination.409
However, if the sponsor who executed
the Affidavit of Support Under Section
213A of the INA is not a member of the
applicant’s household but nonetheless
provides some income to the applicant
or another member of the applicant’s
household, that portion of income
would be included in the applicant’s
household income when making a
public charge inadmissibility
determination.
DHS disagrees that recently acquired
assets should be the only assets
considered in a public charge
inadmissibility determination. DHS
recognizes that some assets are held
longer term than others and has not
included a time restriction on how long
noncitizens have maintained their
assets. While considering the assets,
resources, and financial status of a
noncitizen, DHS will consider the
noncitizen’s assets alongside the
noncitizen’s liabilities in order to
account for the effect of financial
liabilities on an individual’s overall
financial status in the totality of the
circumstances.
DHS recognizes the value of unpaid,
volunteer, and other activities
individuals undertake without paid
compensation. However, DHS is unable
to clearly and fairly establish a system
that would take into account the labor
market and fringe benefits associated
with comparable paid positions. DHS
acknowledges that some unpaid or
volunteer activities may equip a
as proceeds from illegal gambling or drug sales, to
meet the income requirement even if the household
member paid taxes on that income.’’). Cf. also 8 CFR
204.6(e) and (j)(3) (consistent with section
203(b)(5)(D)(ii) of the INA, 8 U.S.C.
1153(b)(5)(D)(ii), defining ‘‘capital’’ for purposes of
EB–5 immigrant petitions to exclude ‘‘[a]ssets
acquired, directly or indirectly, by unlawful means
(such as criminal activities)’’).
408 See 8 CFR 212.21(f).
409 See 8 CFR 212.22(a)(iv).
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noncitizen with occupational skills, and
DHS may therefore consider these skills
under the education and skills factor as
part of a public charge inadmissibility
determination.
Comment: One commenter indicated
that DHS should be flexible in the
criteria and evidence required to
demonstrate assets and income, as many
noncitizens are unbanked and lack a
credit history, and consider an
applicant’s particular circumstances
especially when considering
occupations with seasonal fluctuations,
historically low wages, and
unpredictable availability, such as
agricultural work. A different
commenter stated that individuals
should be able to provide tax returns,
even if filed with an ITIN, and should
be able to provide evidence of income
that resulted from unauthorized
employment.
Response: DHS agrees that
noncitizens should be able to present a
variety of evidence to demonstrate their
assets, resources, and financial status.
DHS has not established any required
evidence a noncitizen must submit to
establish the income, assets, and
liabilities of the noncitizen’s household,
and as such, will consider any evidence
a noncitizen chooses to submit
regarding this factor. If more
information is needed to make a public
charge inadmissibility determination,
DHS may request an applicant to submit
additional evidence prior to making a
decision. DHS also emphasizes that a
public charge inadmissibility
determination is based on the totality of
the noncitizen’s circumstances and no
one factor, other than the lack of a
sufficient Affidavit of Support Under
Section 213A of the INA, if required, is
the sole criterion for determining if a
noncitizen is likely at any time to
become a public charge.410
While DHS will review any evidence
a noncitizen chooses to submit to
support a finding that the noncitizen is
not likely at any time to become a
public charge, DHS will not consider
income or assets from illegal activities
or sources. As DHS stated in the 2019
Final Rule, income derived from illegal
activities or sources should be excluded
from consideration including, but not
limited to, income gained illegally from
drug sales, gambling, prostitution, or
alien smuggling both because of the
strong policy interest in excluding
consideration of this type of activity,
and because it would likely be
unwarranted to make a prospective
determination that assumes the
410 See
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noncitizen would continue to receive
such income in the future.
As to the suggestion that applicants
should be able to provide evidence of
income that resulted from unauthorized
employment, DHS agrees. Consistent
with the approach taken in the 2019
Final Rule, DHS believes that limiting
consideration of household income to
only income that is derived from
authorized employment would go
beyond the purpose of this rule, which
is aimed at determining whether a
noncitizen has the education, skills, or
other traits necessary to support
themselves in the future. DHS will
therefore consider any income derived
from employment in the public charge
inadmissibility determination in the
totality of the circumstances, regardless
of whether the household members had
employment authorization, as long as
the income is not derived from illegal
sources, such as illegal gambling. As
DHS noted in the 2019 Final Rule,
whether or not the applicant or a
member of the applicant’s household
engaged in unauthorized employment,
and any immigration consequences
flowing from such unauthorized
employment, is a separate
determination from the public charge
inadmissibility determination.411
Comment: One commenter stated that
DHS should prioritize consideration of
a noncitizen’s income, not just
employment, because, according to the
commenter, employment alone is not an
accurate indication of an individual’s
ability to self-support. The commenter
recommended that DHS should require
noncitizens to demonstrate an ability to
earn a wage equal to at least three times
the federal poverty level. This level was
suggested because section 213A of the
INA, 8 U.S.C. 1183a, requires sponsors
to demonstrate the means to maintain
income of at least 125 percent of the
Federal Poverty Guidelines, under
which individuals may qualify for many
means-tested public benefits, and
individuals who make below 250
percent of the poverty level typically
pay little to no Federal income tax.
Response: DHS has determined that
no one factor, and no one specific
element of a factor, will be prioritized
over another in a public charge
inadmissibility determination, other
than the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
if required.412 DHS will consider a
noncitizen’s household’s income, assets,
411 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41420 (Aug. 14, 2019).
412 See INA sec. 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D); INA sec. 213A(a)(1), 8 U.S.C.
1183a(a)(1).
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and liabilities when considering the
assets, resources, and financial status
factor of a public charge inadmissibility
determination. DHS has declined to
specify required evidence for each
factor, acknowledging that individuals
may present a variety of evidence to
support that they are not likely to
become a public charge, and will
consider a noncitizen’s circumstances in
their totality.
DHS disagrees with establishing a
minimum income requirement for
noncitizens to establish they are not
likely to become a public charge. As
stated previously, DHS will consider the
noncitizen’s household’s income, assets,
and liabilities. Income is not the sole
criterion for establishing noncitizens’
assets, resources, and financial status,
and noncitizens may include the
income, assets, and liabilities of their
household members for this factor. DHS
believes that considering the entire
household creates a more accurate
representation of the finances and
resources available to a noncitizen,
recognizing that multiple household
members may contribute to the financial
status of the household as a whole.
DHS also disagrees with the
commenter’s justification that DHS
should require individuals to show
income of at least 300 percent of the
poverty line because individuals who
make below 250 percent of the poverty
level typically pay little to no Federal
income tax. The public charge ground of
inadmissibility is not intended to
generate tax revenue, but to ensure that
an individual is not likely at any time
to become a public charge. DHS has
interpreted ‘‘likely at any time become
a public charge’’ as the likelihood of a
noncitizen becoming primarily
dependent on the government for
subsistence, as demonstrated by either
the receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense.413 This analysis requires a
consideration of multiple factors, of
which assets, resources, and financial
status is only one.
Finally, DHS does not administer the
vast majority of public benefits
programs and does not control the
income eligibility requirements of
public benefits programs, which vary
from program to program and which
may allow for individuals with an
income higher than 125 percent of the
Federal Poverty Guidelines (FPG) to
receive benefits. DHS does not find this
concern a persuasive reason to
implement a specific minimum income
threshold for the public charge
inadmissibility determination, however,
in part because of the reimbursement
requirements of the Affidavit of Support
under Section 213A of the INA, and in
part because a specific minimum
income threshold would be inconsistent
with the totality of the circumstances
approach taken in this rule. DHS notes
that whether a sponsored immigrant
ultimately receives public benefits for
which they are eligible under PRWORA
for which the sponsor should reimburse
the benefit-granting agency is an issue
addressed by the reimbursement
provisions of section 213A of the INA,
8 U.S.C. 1183a, rather than the public
charge ground of inadmissibility.
Additionally, to the extent that this
commenter is suggesting that DHS
require an applicant to demonstrate
income of at least 300 percent of the
FPG because the sponsor’s income,
which must be at least 125 percent of
the FPG, will be attributed to the
applicant for determining eligibility for
public benefits,414 DHS notes that such
a consideration is not warranted
because it is not directly related to the
public charge inadmissibility
determination.
Comment: One commenter stated that
where the immigrant’s only income is
public benefits, DHS should consider
this income neutrally, without reference
to specific benefits, such as by stating
that the immigrant does not earn income
rather than referencing the individual
benefits used.
Response: DHS disagrees with this
commenter’s suggestion. While DHS
agrees that income from public benefits
should not be considered as income for
the purposes of a public charge
inadmissibility determination, DHS
disagrees that the specific benefits a
noncitizen receives should not be
considered. DHS defines likely at any
time to become a public charge as likely
at any time to become primarily
dependent on the government for
subsistence, as demonstrated by either
the receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense.415 As discussed in the NPRM,
DHS believes the ‘‘primarily
dependent’’ standard is a reasonable
interpretation of the statute and
properly implements the policy
objectives established by Congress.416
DHS does not believe that the term is
best understood to include a person
who receives benefits from the
government to help to meet some needs
but is not primarily dependent on the
U.S.C. 1631(a)(1).
8 CFR 212.21(a).
416 See 87 FR at 10606 (Feb. 24, 2022).
413 See
8 CFR 212.21(a).
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government and instead has one or more
sources of independent income or
resources upon which the individual
primarily relies.
DHS defines public cash assistance
for income maintenance as SSI, TANF,
State, Tribal, territorial, or local cash
benefit programs for income
maintenance.417 When developing this
proposed rule, as in 1999, DHS
consulted with benefits-granting
agencies, including USDA, which
administers SNAP, and HHS, which
administers TANF and Medicaid. DHS
concluded that cash assistance for
income maintenance and long-term
institutionalization at government
expense constituted the best evidence of
whether a noncitizen is primarily
dependent on the government for
subsistence. By focusing on cash
assistance for income maintenance and
long-term institutionalization at
government expense, DHS can identify
those individuals who are likely at any
time to become primarily dependent on
the government for subsistence, without
interfering with the administrability and
effectiveness of other benefit programs
that serve important public interests.418
Comment: To simplify a
determination of whether a person is
likely to become a public charge, one
commenter recommended presuming a
noncitizen is not likely to become a
public charge if the noncitizen can
demonstrate a household income of at
least 125 percent of the FPG, or 100
percent of the FPG for noncitizens who
are, or have household members who
are, on active duty in the Armed Forces
of the United States (other than active
duty for training). The commenter
recommended an income and asset
calculation to account for the domestic
and international income of all members
of the household, including non-wage
income such as child support, alimony,
Social Security income, or investment
income. The commenter also
recommended taking into account
expected income based on a labor
certification and associated prevailing
wage or job offer and estimated salary.
Another commenter similarly agreed
that DHS should adopt a presumption of
admissibility for noncitizens based on
household income and the
corresponding FPG, or for noncitizens
who have submitted a sufficient
Affidavit of Support Under Section
213A of the INA. This commenter
proposed that if a noncitizen does not
meet the requirements for this
presumption, for example noncitizens
who are not required to submit an
414 8
415 See
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417 See
418 See
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87 FR at 10610 (Feb. 24, 2022).
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Affidavit of Support Under Section
213A of the INA, they may be allowed
to submit a Form I–134, Declaration of
Financial Support. The commenter said
this proposal will consider the
noncitizen’s employment or valid job
offer and strike the proper balance
between incorporating the outcomes
created by the 1999 Interim Field
Guidance and avoiding the overbreadth,
confusion, and chilling impacts of the
2019 Final Rule.
Response: With respect to the
proposal to establish a presumption that
a noncitizen at a specific income level
is not likely at any time to become a
public charge, DHS declines to make
this change. Under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), officers are
required to consider specific minimum
factors in determining whether an
applicant seeking admission to the
United States or seeking to adjust status
to that of lawful permanent resident is
likely at any time to become a public
charge. These factors include the
noncitizen’s age; health; family status;
assets, resources, and financial status;
and education and skills.419 DHS cannot
limit a public charge inadmissibility
determination to only one factor, but
instead must consider all the factors as
set forth by Congress. DHS believes that
the establishment of a presumption on
the basis of the single criterion proposed
by the commenter would be
unwarranted.
DHS agrees that considering the entire
household creates a more accurate
representation of the finances and
resources available to a noncitizen,
recognizing that multiple household
members may contribute to the financial
status of the household as a whole.
Therefore, DHS will consider the
income, assets, and liabilities (excluding
any income from public benefits listed
in 8 CFR 212.21(b) and income or assets
from illegal activities or sources such as
proceeds from illegal gambling or drug
sales) of their household members for
this factor.420 DHS did not specify
particular evidence noncitizens may
submit to support they are not likely to
become a public charge, and will
consider all evidence submitted in a
public charge inadmissibility
determination. Therefore, while DHS
will not independently assess a
noncitizen’s expected income based on
a labor certification and associated
prevailing wage, DHS may consider this
419 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i). The statute also permits, but does
not require, the consideration of a sufficient
Affidavit of Support Under Section 213A of the
INA, if required. See INA sec. 212(a)(4)(B)(ii), 8
U.S.C. 1182(a)(4)(B)(ii).
420 See 8 CFR 212.22(a)(1)(iv).
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evidence or evidence of a job offer and
estimated salary, if submitted, in the
totality of a noncitizen’s circumstances
in a public charge inadmissibility
determination. DHS will also not limit
the consideration of income to only
income that appears on United States
Federal income tax forms, and will
consider all evidence submitted of
income from lawful sources in order to
account for income such as child
support, alimony, Social Security
income, and investment income. DHS
will also consider any evidence
submitted pertaining to expected future
income.
To address the recommendation that
DHS accept Form I–134, Declaration of
Financial Support,421 as a substitute for
noncitizens who are not required to file
an Affidavit of Support Under Section
213A of the INA, DHS notes that the
Declaration of Financial Support is
intended to demonstrate financial
support during an individual’s
temporary stay in the United States, and
is therefore not a valid substitution. As
stated previously, DHS will consider all
evidence a noncitizen submits to
support that the noncitizen is not
inadmissible under the public charge
ground, but DHS will not create or
require a separate information collection
or form to establish admissibility. DHS
also notes that many commenters
recommended a similar presumption
that a sufficient Affidavit of Support
Under Section 213A of the INA would
establish that a noncitizen is not likely
at any time to become a public charge
and addresses that suggestion in more
detail in Section III.I.2, Affidavit of
Support Under Section 213A of the INA.
e. Education and Skills
Comment: One commenter disagreed
with the consideration of education and
skills in a public charge inadmissibility
determination.
Response: DHS disagrees that an
applicant’s education and skills should
not be included in a public charge
inadmissibility determination. Under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), officers are required to
consider specific minimum factors in
determining whether an applicant
seeking admission to the United States
or seeking to adjust status to that of
lawful permanent resident is likely at
any time to become a public charge.
These factors include the noncitizen’s
education and skills.422
421 DHS notes that Form I–134 was previously
titled ‘‘Affidavit of Support.’’
422 See INA sec. 212(a)(4)(B)(i)(V), 8 U.S.C.
1182(a)(4)(B)(i)(V).
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Comment: Two commenters wrote
that an applicant’s inability to speak
and understand English does not predict
whether an applicant can obtain
employment in the United States. One
of these commenters recommended DHS
consider the educational opportunities
available in noncitizens’ countries of
origin, skills should be broadly defined
and not limited to definitions of ‘‘high
skill’’ versus ‘‘low skill,’’ and
proficiency in English should not be
included in the determination of
education and skills, as a person’s
English proficiency or education level
does not necessarily predict their ability
to obtain employment in the United
States.
Response: DHS agrees that the
education and skills factor should be
broadly defined to include a variety of
abilities. Therefore, DHS has
determined that education and skills
can be evidenced by a noncitizen’s
degrees, certifications, licenses, skills
obtained through work experience
(including volunteer and unpaid
opportunities) or educational programs,
and educational certificates.423 DHS
believes this standard encompasses
many abilities that may affect a
noncitizen’s employability, and
therefore may decrease a noncitizen’s
likelihood of becoming a public charge.
DHS also notes that this definition does
not specifically define certain skills that
would positively or negatively impact a
public charge inadmissibility
determination, including English
language skills. DHS will consider such
skills in the context of a totality of the
circumstances determination.
Comment: One commenter
recommended a detailed framework that
would demonstrate qualifications
associated with gainful employment and
self-sufficiency, such as evidence of
employment, self-employment, or a job
offer, combined with educational
achievements or occupational skills and
experience. The commenter suggested
that this approach would provide
positive steps immigrants could follow
to be better prepared if subject to a
public charge inadmissibility
determination.
Another commenter mentioned the
education and work experience
standards for diversity visa applicants,
noting that this standard provides an
already accepted framework for
demonstrating that a noncitizen is likely
to succeed in the United States and that
such a showing should be considered a
positive factor, and could be applied to
a public charge inadmissibility
determination with some modification
423 See
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to account for experience in occupations
that do not require training or
experience.
Response: DHS agrees that a
noncitizen may demonstrate their
relevant education and skills through
the noncitizen’s degrees, certifications,
licenses, skills obtained through work
experience or educational programs,
and educational certificates. However,
given the differences in achievements
and skills in occupational fields, DHS
does not believe it can create a
comprehensive guide that noncitizens
should follow to prepare for a public
charge inadmissibility determination.
DHS acknowledges that certain
immigration categories may require a
separate determination of education or
work experience, but notes that those
specific eligibility requirements are
separate from an inadmissibility
determination. The public charge
inadmissibility determination involves
the consideration of a variety of factors,
including education and skills, that are
considered in the totality of a
noncitizen’s circumstances. Each
determination is unique, and DHS
cannot establish a specific framework
that would encompass every situation or
circumstance that would apply to all
noncitizens equally and equitably. DHS
believes that by identifying basic
information that DHS will collect for the
factors, including the education and
skills factor, and a consideration of the
totality of the circumstances accounts
for the diversity of noncitizens’
backgrounds in the clearest and fairest
manner.
DHS agrees with the commenter that
some occupations do not require
training or previous experience, and
accounts for this by including in the
standard for education and skills those
skills that noncitizens have obtained
through overall work experience. This
consideration will benefit those
noncitizens who hold occupations that
do not require official licenses or
certifications but whose occupations
impart skills that otherwise affect the
noncitizen’s overall employability. As
previously stated, DHS believes that a
broad interpretation of the statutory
minimum factors best encompasses the
diversity of noncitizens’ backgrounds
and declines to define specific skills
that would positively or negatively
impact a public charge inadmissibility
determination.
Comment: One commenter
recommended that DHS create
appropriate carve-outs for certain
groups of noncitizens who may be
adversely affected by their background,
including children, primary caregivers,
and certain retirees, and stated that it is
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not appropriate to apply equivalent
standards to these groups as they may
not have been able to attain an
equivalent educational background or
level of work experience due entirely to
no fault of their own.
Response: DHS disagrees that
different standards of the statutory
minimum factors should be applied to
different groups of people, as
determined by their work experience or
education background. Under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
officers are required to consider specific
minimum factors in determining
whether an applicant seeking admission
to the United States or seeking to adjust
status to that of lawful permanent
resident is likely at any time to become
a public charge. These factors include
the noncitizen’s education and skills.424
However, DHS appreciates commenters’
concerns that a person’s lack of
education or work experience should
not be determinative of their likelihood
of becoming a public charge. For this
reason, under this rule, determining a
noncitizen’s likelihood at any time of
becoming a public charge must be based
on the totality of the individual’s
circumstances.425 No one factor, other
than the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
if required, may be the sole criterion for
determining if an individual is likely to
become a public charge.426 Education
and skills is not the only factor taken
into account in a public charge
inadmissibility determination and does
not automatically determine if a
noncitizen is likely at any time to
become a public charge. Additionally,
DHS notes that some unpaid labor may
equip a noncitizen with occupational
skills, and DHS may therefore consider
these skills under the education and
skills factor as part of a public charge
inadmissibility determination.
Comment: One commenter stated that
considering statutory minimum factors
for the public charge ground of
inadmissibility is duplicative and
unnecessary for those applicants who
are subject to the public charge ground
but are not required to provide an
Affidavit of Support Under Section
213A of the INA, such as employmentbased immigrants who must establish
their work skills and diversity visa
applicants who must demonstrate that
they have a high school diploma (or the
equivalent) or work experience.
Another commenter similarly stated
that applicants who have previously
424 See INA sec. 212(a)(4)(B)(i)(V), 8 U.S.C.
1182(a)(4)(B)(i)(V).
425 See 8 CFR 212.22(b).
426 See 8 CFR 212.22(b).
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obtained an H–1B nonimmigrant visa or
an approved Form I–140, Petition for
Alien Worker, should not need to
provide additional information for the
education and skills factor because it
has already been documented and
considered.
Response: DHS disagrees that
considering the statutory minimum
factors for applicants who are not
required to provide an Affidavit of
Support Under Section 213A of the INA
is duplicative and unnecessary. Section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
specifically requires that DHS consider
specific minimum factors in
determining whether an applicant
seeking admission to the United States
or seeking to adjust status to that of
lawful permanent resident is likely at
any time to become a public charge,
which may include an Affidavit of
Support Under Section 213A of the INA.
The Affidavit of Support Under Section
213A of the INA is a contract between
a sponsor and the U.S. Government
under which the sponsor agrees that
they will provide support to the
sponsored immigrant at an annual
income not less than 125 percent of the
FPG during the period the obligation is
in effect, to be jointly and severally
liable for any reimbursement obligation
incurred as a result of the sponsored
immigrant receiving means-tested
public benefits during the period of
enforcement, and to submit to the
jurisdiction of any Federal or State court
for the purpose of enforcing the support
obligation.427 The Affidavit of Support
Under Section 213A of the INA does not
include a consideration of the statutory
minimum factors as they relate to a
noncitizen’s circumstances, and as such,
an exemption from this requirement
does not automatically indicate that a
noncitizen is not inadmissible under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4).
DHS acknowledges that some
noncitizens, including those who have
previously obtained nonimmigrant
employment visas or those who are
applying for adjustment of status based
on the diversity visa or employmentbased categories, may have previously
submitted evidence regarding their work
skills, employment history, and
education. Under this rule, DHS is
updating its information collection to
allow applicants for adjustment of status
to indicate specifics regarding their
education and skills, and will consider
all evidence submitted by these
noncitizens in order to make a final
public charge inadmissibility
determination. DHS also reviews the
427 INA
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noncitizen’s record, including previous
applications and petitions and the
associated evidence, while making a
public charge inadmissibility
determination. DHS will not specify
particular initial evidence that must be
submitted for a public charge
inadmissibility determination. However,
DHS also notes that the education and
skills factor is only one part of a public
charge inadmissibility determination
and, as such, disagrees that a
consideration of all the statutory
minimum factors for any noncitizen
subject to the public charge ground of
inadmissibility is duplicative and
unnecessary.
Comment: One commenter suggested
only requiring applicants to provide
evidence of their highest educational
degree attained to satisfy the education
and skills factor in a public charge
inadmissibility determination.
Response: While DHS agrees that
evidence of completed degrees is one
method of demonstrating a noncitizen’s
education and skills, DHS also
acknowledges that this factor not only
includes formal education, but also
encompasses other aspects that may be
demonstrated through other means.
DHS has therefore determined that,
while a noncitizen may submit the
highest degree achieved to support a
finding that the noncitizen is not likely
to become a public charge, a noncitizen
may also provide evidence of
certifications, licenses, skills obtained
through work experience or educational
programs, and educational
certificates.428
Comment: One commenter stated that
noncitizens with a high school
education or less should be required to
demonstrate that they hold a skill that
is in high demand and can be expected
to earn a high enough salary that would
largely eliminate the possibility of
qualifying for any welfare program, with
a skill that will earn at least three times
the FPG as the standard that would
show they will not need taxpayerfunded assistance. Citing an analysis of
SIPP data,429 the commenter indicated
that noncitizen households where the
head of household had only a high
school education or less received public
benefits at a higher rate than households
where the head of household had at
least some college education. The
commenter also stated that, of
households receiving public benefits
8 CFR 212.22(a)(1)(v).
Camarota and Karen Zeigler, Center for
Immigration Studies, ‘‘63% of Non-Citizen
Households Access Welfare Programs,’’ Table 3
(Nov. 20, 2018), https://cis.org/Report/63NonCitizen-Households-Access-Welfare-Programs
(last visited Aug. 16, 2022).
(defined as including the Earned Income
Tax Credit), 93 percent of noncitizenheaded households have at least one
working member, as do 76 percent of
households headed by a U.S.-born
citizen.430 The commenter urged that it
is important for DHS to consider both
employment and the noncitizen’s total
income, indicating that the primary
focus should be on whether or not an
immigrant can demonstrate an ability to
earn a wage equal to at least three times
the federal poverty level.
Response: DHS disagrees that it
should establish a specific standard
based on a noncitizen’s education or
particular skills or require that a
noncitizen demonstrate the ability to
earn income three times the Federal
Poverty Guideline (FPG). DHS
acknowledges that different occupations
may encompass a variety of skills that
may not be evidenced only through
educational degrees, licenses, or
certifications, but also through skills
obtained through work experience or
educational programs. DHS also notes
that an assessment of whether a skill is
in high demand and the corresponding
calculation of an expected salary is a
very complex assessment and would
require detailed analysis, and possibly
consultation with the Department of
Labor, for each individual case. This
suggested evaluation therefore presents
an increased evidentiary burden on
noncitizens, as well as an increased
adjudicative burden on the agency, with
no evidence of a corresponding benefit.
Furthermore, the commenter did not
present evidence that a higher education
level equates to high demand skills.
DHS also disagrees that lack of ‘‘high
demand’’ skills—which the commenter
defined as job skills that would enable
an individual to earn at least three times
the federal poverty rate—indicates that
a noncitizen is likely at any time to
become primarily dependent on the
government for subsistence. While the
commenter cited to an analysis of SIPP
data as support for the request to focus
the public charge analysis on
employment and income, the analysis
cited is methodologically flawed and
does not support the commenter’s
premise. For one, neither the
commenter, nor the analysis it cites,
makes any connection between the level
of education and ‘‘high demand’’ skills,
or between education level and
earnings, nor does the commenter
explain what it means by ‘‘high
demand’’ skills or how a noncitizen
would demonstrate that they possess
‘‘high demand’’ skills. While the
analysis cited by the commenter shows
the percentages of U.S.-born citizen
headed and noncitizen headed
households that receive benefits relative
to the head of household’s education
level, the analysis does not account for
earnings or family size. The analysis
also includes a much broader set of
public benefits than what would be
considered under this rule (e.g., it
includes EITC, WIC, school lunch
program, SNAP, public housing). For
example, rather than 81 percent of
noncitizen households headed by a
person with a high school degree or less
receiving public benefits, as the
commenter states, the analysis cited
indicates that only 8.9 percent of
noncitizen households headed by a
person with no more than a high school
degree received TANF and/or SSI.431 In
addition, the commenter does not offer
any support for the proposition that all
‘‘high demand’’ skills equate to high
pay, or that other factors that DHS must
examine under the totality of the
circumstances could not lead to a
determination that a highly skilled
individual is likely at any time to
become a public charge, for example
advanced age, or a health condition
preventing an applicant from working
and using the ‘‘high demand’’ skill. DHS
therefore disagrees that lack of a college
education or ‘‘high demand’’ skills
would justify a presumption that an
applicant would become primarily
dependent on the government for
subsistence. For that reason, DHS
declines to require that applicants
demonstrate that they have ‘‘high
demand’’ skills.
DHS also declines to include a
specific income threshold as part of a
public charge inadmissibility
determination. A public charge
inadmissibility determination is made
based on the totality of a noncitizen’s
circumstances. As stated previously,
income is not the sole criterion for
establishing noncitizens’ assets,
resources, and financial status, and
noncitizens may include the income,
assets, and liabilities of their household
members for this factor. DHS believes
that considering the entire household
and their income, assets, and liabilities
creates a more accurate representation
of the finances and resources available
to a noncitizen, recognizing that
430 Steven Camarota and Karen Zeigler, Center for
Immigration Studies, ‘‘63% of Non-Citizen
Households Access Welfare Programs,’’ Table 6
(Nov. 20, 2018), https://cis.org/Report/63NonCitizen-Households-Access-Welfare-Programs
(last visited Aug. 16, 2022).
431 Steven Camarota and Karen Zeigler, Center for
Immigration Studies, ‘‘63% of Non-Citizen
Households Access Welfare Programs,’’ Table 3
(Nov. 20, 2018), https://cis.org/Report/63NonCitizen-Households-Access-Welfare-Programs
(last visited Aug. 16, 2022).
428 See
429 Steven
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multiple household members may
contribute to the financial status of the
household as a whole.
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2. Affidavit of Support Under Section
213A of the INA
Comment: One commenter stated that
sponsors who execute an Affidavit of
Support Under Section 213A of the INA
on behalf of an intending immigrant
should be held accountable to pay
medical and other social welfare debts
incurred by those immigrants who use
public benefits prior to obtaining lawful
status in the United States.
Response: The comment is outside the
scope of the rulemaking. DHS did not
propose any changes to the Affidavit of
Support Under Section 213A of the INA,
and did not propose to impose such a
condition upon the public charge
inadmissibility determination. Under
section 213A of the INA, 8 U.S.C. 1183a,
most family-based immigrants and
certain employment-based immigrants
are required to submit an Affidavit of
Support Under Section 213A of the INA
to avoid being found inadmissible under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4).432 In most cases, the
individual who filed the immigrant
petition on behalf of the immigrant must
execute the Affidavit of Support Under
Section 213A of the INA.433 By
executing an Affidavit of Support Under
Section 213A of the INA, the sponsor is
creating a contract between the sponsor
and the U.S. Government under which
the sponsor agrees that they will
provide support to the sponsored
immigrant at an annual income not less
than 125 percent of the FPG during the
period of time in which the obligation
is in effect, be jointly and severally
liable for any reimbursement obligation
incurred as a result of the sponsored
immigrant receiving means-tested
public benefits during the period of
enforcement, and submit to the
jurisdiction of any Federal or State court
for the purpose of enforcing the support
obligation.434 These sponsorship
obligations, however, do not go into
effect until after the intending
immigrant’s application for admission
as an immigrant or application for
adjustment of status is granted.435
Because the comment is outside the
scope of the rulemaking, and because a
432 See INA sec. 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D); INA sec. 213A(a)(1), 8 U.S.C.
1183a(a)(1).
433 INA sec. 213A(f)(1)(D), 8 U.S.C. 1183a(f)(1)(D);
INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C)
and (D).
434 INA sec. 213A(f)(2), 8 U.S.C. 1183a(f)(2).
435 See INA sec. 213A, 8 U.S.C. 1183a; 8 CFR
213a.2(d); 8 CFR 213a.2(e)(1); 8 CFR 213a.1
(definition for sponsored immigrant).
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sponsor is not obligated to pay for
medical expenses and other social
welfare debts incurred by the noncitizen
before the noncitizen became a lawful
permanent resident, DHS declines to
add this suggestion to the final rule.
Comment: Many commenters
supported the favorable consideration of
an Affidavit of Support Under Section
213A of the INA in a public charge
inadmissibility determination. One such
commenter, citing Matter of MartinezLopez,436 noted that giving favorable
consideration to an Affidavit of Support
Under Section 213A of the INA is
consistent with case law and
longstanding practice, which recognizes
that individuals who are or will be able
to work, have adequate resources, or
have a sponsor or other person willing
to assist with their financial support
should be presumed to be unlikely to
become a public charge.
Response: As noted in the NPRM,
DHS believes that treating a sufficient
Affidavit of Support Under Section
213A of the INA favorably is consistent
with the statute and precedent,437 and is
supported by the fact that sponsored
noncitizens are less likely to turn to the
government first for financial support
because they can and have been known
to successfully enforce the statutory
requirement that sponsors provide
financial support to the sponsored
noncitizen at the level required by
statute for the period the obligation is in
effect.438 Additionally, as noted in the
NPRM, DHS believes that treating a
sufficient Affidavit of Support Under
Section 213A of INA favorably is
supported by the Federal and State
deeming provisions of 8 U.S.C. 1631
and 1632, which may reduce the
likelihood that a sponsored noncitizen
would be eligible for a means-tested
benefit, and therefore, less likely to
become a public charge at any time in
the future.439 As a result, under this
rule, DHS will favorably consider a
sufficient Affidavit of Support Under
Section 213A of the INA, along with the
statutory minimum factors, in the
totality of the circumstances when
436 10
I&N Dec. 409, 421 (BIA 1962).
Matter of Martinez-Lopez, 10 I&N Dec.
409, 421–22 (BIA 1962) (‘‘A healthy person in the
prime of life cannot ordinarily be considered likely
to become a public charge, especially where he has
friends or relatives in the United States who have
indicated their ability and willingness to come to
his assistance in case of emergency.’’).
438 See INA sec. 213A(a)(1)(A), 8 U.S.C.
1183a(a)(1)(A). See, e.g., Erler v. Erler, 824 F.3d
1173 (9th Cir. 2016); Belevich v. Thomas, 17 F.4th
1048 (11th Cir. 2021); Wenfang Liu v. Mund, 686
F.3d 418 (7th Cir. 2012).
439 See 87 FR at 10619 (Feb. 24, 2022).
437 See
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55557
assessing an applicant’s likelihood at
any time to become a public charge.
Comment: While some commenters
suggested that it would be nonsensical
to deem an Affidavit of Support Under
Section 213A of the INA alone as
sufficient to find an applicant is not
likely to become a public charge, many
other commenters, including a group of
13 United States Senators, stated that
the existence of a valid Affidavit of
Support Under Section 213A of the INA
should be deemed sufficient in itself to
overcome a public charge
inadmissibility determination except
when significant public charge factors
are present under the totality of the
circumstances. These commenters
stated that a presumption for
admissibility upon presentation of a
valid affidavit of support would be an
administratively neutral,
straightforward approach. Another
commenter said that the existence of a
valid Affidavit of Support Under
Section 213A of the INA should
normally tip the balance in the
applicant’s favor, supporting a finding
that an applicant is not likely at any
time to become a public charge. One
commenter stated that, consistent with
congressional intent, the rule should
only require officers to consider the five
statutory minimum factors if the
applicant failed to submit a sufficient
Affidavit of Support Under Section
213A of the INA.
Similarly, one group of commenters
suggested that DHS amend the rule to
create a rebuttable presumption that a
noncitizen is not likely at any time to
become a public charge where a
sufficient Affidavit of Support Under
Section 213A of the of the INA is
submitted. The presumption would only
be overcome, the commenters said, if, in
the totality of the circumstances, clear
and convincing evidence indicates that
the applicant’s age, health, family
status, assets, resources, financial status,
education, skills, and current or past
receipt of public benefits make the
noncitizen likely to become a public
charge. These commenters stated that
over the past two decades, the
submission of a sufficient Affidavit of
Support Under Section 213A of the INA
has generally been sufficient to avoid a
public charge inadmissibility
determination. These commenters also
wrote that their ‘‘[e]xtensive experience
indicates that where an applicant for an
immigrant visa or adjustment of status
has a sufficient Affidavit of Support
[Under Section 213A of the INA] or
equivalent income or assets, the
likelihood that such a person will
become a public charge is virtually
nonexistent.’’ These commenters said
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that creating this presumption provides
applicants with a clear standard against
which they can measure the likelihood
of success in overcoming the public
charge ground of inadmissibility,
facilitates streamlined adjudication of
applications, and allows officers to
focus their time and attention on cases
in which substantive issues may exist.
Response: DHS disagrees with the
suggestion that a sufficient Affidavit of
Support Under Section 213A of the INA,
alone, is enough to determine an
applicant is not inadmissible under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). DHS further disagrees that it
is appropriate to treat a sufficient
Affidavit of Support Under Section
213A of the INA as creating a rebuttable
presumption that an applicant is not
likely at any time to become a public
charge. Congress created the statutory
minimum factors that DHS must
consider as part of a public charge
inadmissibility determination, which do
not even include the Affidavit of
Support Under Section 213A of the
INA.440 Rather, Congress gave DHS the
discretion to consider any required
Affidavit of Support Under Section
213A of the INA in a public charge
inadmissibility determination.441
Regardless of the existence of a
sufficient Affidavit of Support Under
Section 213A of the INA, Congress
mandated that DHS, in every case,
consider all of the statutory minimum
factors in assessing whether an
applicant is likely at any time to become
a public charge without requiring the
same for an affidavit.442 Accordingly,
and as noted in the NPRM 443 and the
1999 Interim Field Guidance,444 DHS
believes that a sufficient Affidavit of
Support Under Section 213A of the INA
does not in and of itself create a
presumption that an applicant is not
likely at any time to become a public
charge or that it should determine the
outcome of the public charge
inadmissibility determination. Instead,
DHS believes a sufficient Affidavit of
Support Under Section 213A of the INA
should be considered in the totality of
the circumstances.445
DHS notes that although commenters
claim that a sufficient Affidavit of
Support Under Section 213A of the INA
440 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
441 See INA sec. 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
442 See INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
443 See 87 FR at 10619 (Feb. 24, 2022).
444 See ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28690 (May 26, 1999).
445 See 87 FR at 10619 (Feb. 24, 2022).
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indicates that the likelihood that such a
person will become a public charge is
virtually nonexistent, commenters
provided no data or evidence to support
this statement.
Therefore, DHS declines to add a
provision to this rule that directs
officers to treat a sufficient Affidavit of
Support Under Section 213A of the INA
as either outcome determinative or as
creating a presumption that the
applicant is not inadmissible under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). However, under this rule and
as noted in the NPRM, in making public
charge inadmissibility determinations,
DHS will consider the statutory
minimum factors as set forth in the rule
and favorably consider a sufficient
Affidavit of Support Under Section
213A of the INA (i.e., a positive factor
that makes an applicant less likely at
any time to become a public charge in
the totality of the circumstances), and
the applicant’s current and past receipt
of public benefits in the totality of the
circumstances.446
Comment: One commenter stated that
a legally sufficient Affidavit of Support
Under Section 213A of the INA should
overcome any public charge concerns
that arise from applicants whose health
conditions are recorded as a Class B
certification by the civil surgeon
performing the immigration medical
examination. Another commenter
suggested that the Affidavit of Support
Under Section 213A of the INA should
be used to mitigate issues arising under
the statutory factors within the totality
of the circumstances, such as the health
factor, which would consider an
applicant’s disability.
Response: DHS disagrees that a
sufficient Affidavit of Support Under
Section 213A of the INA, alone,
overcomes any individual factor present
in a noncitizen’s case, including the
health factor. As required under the
statute, DHS must consider all of the
statutory minimum factors in a public
charge inadmissibility determination,
including an applicant’s health.447 The
statutory minimum factors that must be
considered as part of the public charge
inadmissibility determination under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), do not include the Affidavit
of Support Under Section 213A of the
INA.448 Rather, Congress provided that
any Affidavit of Support Under Section
213A of the INA may be considered in
the public charge inadmissibility
446 8
CFR 212.22(a)(2), (b).
sec. 212(a)(4)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
448 INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
determination.449 As a result, under this
rule, a sufficient Affidavit of Support
Under Section 213A of the INA does
not, on its own, outweigh the presence
of any other factor, but instead, is
considered, along with the statutory
minimum factors and the receipt of
public benefits, as defined in the rule,
in the totality of the circumstances.450
DHS declines to mandate, as part of
this rule, that a sufficient Affidavit of
Support Under Section 213A of the INA,
alone, overcomes any statutory
minimum factor, including the health
factor, as this would be inconsistent
with the statute. The sufficient Affidavit
of Support Under Section 213A of the
INA should instead be considered in the
totality of the circumstances. As a
result, DHS declines to make any
changes to the rule in response to this
comment.
To the extent that these commenters
are concerned with this rule’s impact on
individuals with disabilities, DHS notes
that as reflected elsewhere in this rule,
the final rule includes other provisions
that are intended to better ensure fair
and consistent treatment of individuals
with disabilities—for example,
clarifying the definition for long-term
institutionalization at government
expense, and considering evidence
submitted by the applicant that the
applicant’s long-term
institutionalization violates federal law,
including the Americans with
Disabilities Act or the Rehabilitation
Act.451
Comment: Some commenters
recommended that the rule bar
immigration officers from questioning
the credibility or motives of a sponsor
who signs an Affidavit of Support
Under Section 213A of the INA, so that
officers look only at whether sponsors
adequately document their ability to
provide support for the sponsored
immigrants. Other commenters agreed,
arguing that similar to DOS consular
officers, USCIS officers should not be
permitted to introduce speculation by
inquiring about the sponsor’s or any
joint sponsors’ motives or intentions
with respect to carrying out their
support obligation because an Affidavit
of Support Under Section 213A of the
INA, is enforceable regardless of the
sponsor’s actual intent.
Response: DHS agrees with
commenters that this rule should not
require officers who are favorably
considering a sufficient Affidavit of
Support Under Section 213A of the INA
as part of a public charge
447 INA
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449 INA sec. 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
450 See 8 CFR 212.22(b).
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inadmissibility determination to
consider the sponsor’s credibility or
underlying motives in executing that
Affidavit. While the sponsor’s
credibility, intent, or underlying
motives in executing that Affidavit of
Support Under Section 213A of the INA
might be relevant to assessing the
sufficiency of the Affidavit of Support
Under Section 213A of the INA in the
first instance,452 DHS notes that the
sufficiency of an Affidavit of Support
Under Section 213A of the INA is a
separate threshold determination that
occurs before an officer determines,
under this rule, whether an applicant is
likely at any time to become a public
charge based on consideration of the
statutory minimum factors, a sufficient
Affidavit, and current or past receipt of
public benefits.453
As set forth in the statute, when an
applicant is required to submit an
Affidavit of Support Under Section
213A of the INA, DHS determines its
sufficiency by assessing whether the
sponsor has demonstrated the means to
maintain income at the required
level.454 In assessing the sufficiency of
an Affidavit of Support Under Section
213A of the INA, DHS will consider
whether the sponsor engaged in fraud or
material concealment or
misrepresentation in executing the
Affidavit.455 If DHS finds such fraud or
material concealment or
misrepresentation, including forgery,
counterfeiting, falsification of
documents, or the concealment or
misrepresentation of any facts material
to the Affidavit, DHS will determine
that the Affidavit of Support Under
Section 213A of the INA is
insufficient.456 If DHS determines that
an Affidavit of Support Under Section
213A of the INA, when required, is
insufficient, DHS will automatically
determine that the applicant is
inadmissible under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), without
consideration of the statutory minimum
factors.457
However, under this rule,458 once
DHS determines that the Affidavit of
Support Under Section 213A of the INA
is sufficient, DHS would not consider
the sponsor’s credibility or motives in
452 INA sec. 213A(f)(6)(A), 8 U.S.C. 1183a(f)(6)(A).
8 CFR 213a.2(c)(2)(ii).
453 INA sec. 212(a)(4)(A) and (B), 8 U.S.C.
1182(a)(4)(A) and (B); 8 CFR 213a.2(c)(2)(iv); 8 CFR
212.22(a), (b).
454 INA sec. 213A(f)(6)(A), 8 U.S.C. 1183a(f)(6)(A).
8 CFR 213a.2(c)(2)(ii).
455 8 CFR 213a.2(c)(2)(vi).
456 8 CFR 213a.2(c)(2)(vi).
457 INA sec. 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D); INA sec. 213A(a)(1), 8 U.S.C.
1183a(a)(1).
458 8 CFR 212.22(c).
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determining whether the applicant is
likely at any time to become a public
charge because, as explained more fully
in the NPRM,459 it would be duplicative
to evaluate these issues that would be
considered in assessing the sufficiency
of the Affidavit of Support Under
Section 213A of the INA in the first
instance. DHS believes that such a
reevaluation of a sponsor’s credibility or
underlying motives would create an
unnecessary burden for DHS officers
and the public and, accordingly, DHS
does not intend to separately consider
the sponsor’s credibility or motives in
executing the sufficient Affidavit of
Support Under Section 213A of the INA
as part of the totality of the
circumstances analysis.
Comment: Several commenters stated
that they believed that DHS should do
an evaluation of the sponsor’s Affidavit
of Support Under Section 213A of the
INA as part of the public charge
inadmissibility determination. One
commenter recommended that DHS
require officers to assess the likelihood
that a noncitizen’s sponsor will actually
provide financial support by looking at
the closeness of the relationship
between the noncitizen and sponsor to
ensure sponsors will live up to their
obligations in the Affidavit of Support
Under Section 213A of the INA. One
commenter suggested that DHS should
add additional considerations regarding
the evaluation of an Affidavit of Support
Under Section 213A of the INA due to
the ‘‘government’s longstanding history
of failure to hold sponsors accountable
and to, where appropriate, take legal
action to enforce those contracts.’’
Response: DHS disagrees that it
should evaluate whether the sponsor
who executed the Affidavit of Support
Under Section 213A of the INA
submitted a sufficient affidavit, i.e., has
demonstrated the means to maintain
income at the required level 460 again as
part of determining whether an
applicant is likely at any time to become
primarily dependent on the government
for subsistence. Because DHS already
determines that the sponsor has
demonstrated the means to maintain
income at the required level and,
therefore, that the Affidavit of Support
Under Section 213A of the INA is
sufficient, prior to favorably considering
459 87
FR at 10618–10619 (Feb. 24, 2022).
INA sec. 213A(f)(1)(E), 8 U.S.C.
1183a(f)(1)(E); 8 CFR 213a.2(c)(2)(ii). DHS notes that
a sponsor demonstrates the means to maintain
income by presenting Federal income tax returns or
by demonstrating significant assets of the sponsored
immigrant or of the sponsor, if such assets are
available for the support of the sponsored
immigrant. See INA sec. 213A(f)(6), 8 U.S.C.
1183a(f)(6); 8 CFR 213a.2(c)(2).
460 See
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55559
a sufficient Affidavit of Support Under
Section 213A of the INA as set forth in
this rule,461 it would be unnecessary
and duplicative to subsequently
consider whether or not the sponsor’s
legally binding Affidavit of Support
Under Section 213A of the INA is
sufficient when conducting the totality
of the circumstances analysis under this
rule.
Additionally, DHS disagrees that DHS
should evaluate whether a sponsor who
executed a sufficient Affidavit of
Support Under Section 213A of the INA
will actually provide financial support
by looking at the relationship between
the sponsor and the intending
immigrant as part of the totality of the
circumstances analysis. Whether a
sponsor will actually provide support to
the intending immigrant is relevant to
assessing the sufficiency of the Affidavit
of Support Under Section 213A of the
INA,462 but that is a separate
determination that occurs before an
officer determines, under this rule,
whether an applicant is likely at any
time to become a public charge based on
consideration of the statutory minimum
factors, a sufficient affidavit, and any
current and/or past receipt of public
benefits.463
Accordingly, DHS declines to require
its officers to consider whether the
sponsor who executed the Affidavit of
Support Under Section 213A of the INA
will actually carry out their legally
binding support obligation as part of the
totality of the circumstances analysis.
Comment: One commenter
recommended requiring that a
sponsored immigrant who has received
public benefits sue the sponsor for
reimbursement of the public benefits
received. The commenter noted that
current regulations give the beneficiary
this option but do not require it. This
commenter said such provisions would
incentivize noncitizens to promptly take
action to obtain reimbursement.
Response: DHS declines to add a
provision in this rule that requires a
sponsored immigrant to sue the sponsor
who executed the Affidavit of Support
Under Section 213A of the INA for
reimbursement of public benefits
received by the sponsored immigrant.
While DHS agrees that section 213A of
the INA, 8 U.S.C. 1183a, permits, but
does not require, the sponsored
immigrant to enforce the support
461 8
CFR 212.22(a)(2).
sec. 213A(f)(6)(A), 8 U.S.C. 1183a(f)(6)(A).
8 CFR 213a.2(c)(2)(ii).
463 INA sec. 212(a)(4)(A) and (B), 8 U.S.C.
1182(a)(4)(A) and (B); 8 CFR 213a.2(c)(2)(iv); 8 CFR
212.22(a) and (b).
462 INA
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obligations against the sponsor,464 this
rule is not intended to address
sponsorship obligations or enforcement
of those obligations. Rather, the purpose
of this rule is to prescribe how DHS
determines whether a noncitizen is
inadmissible to the United States under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), because they are likely at any
time to become a public charge.
Accordingly, DHS declines to include
the proposed provision in this rule,
which is outside the scope of the
current rulemaking.
To the extent that this commenter is
also recommending that DHS include a
provision that would require a
noncitizen subject to the rule to agree to
seek reimbursement as part of the public
charge inadmissibility determination,
DHS notes that the sponsorship
obligation and related reimbursement
requirements that arise from executing
an Affidavit of Support Under Section
213A of the INA are separate and
distinct from the public charge
inadmissibility determination, because
these obligations and requirements do
not go into effect until after the public
charge inadmissibility determination
has been made and the intending
immigrant has been admitted as an
immigrant or granted adjustment of
status. As a result, DHS declines to
include a provision that requires a
noncitizen subject to the rule to agree to
seek reimbursement as part of the public
charge inadmissibly determination.
Comment: One commenter stated that
if DHS is going to treat an Affidavit of
Support Under Section 213A of the INA
as sufficient evidence that the applicant
is not inadmissible, then DHS should
include provisions in this rule
pertaining to the enforceability of the
affidavit.
Response: First, as noted above, under
this rule, DHS does not treat an
Affidavit of Support Under Section
213A of the INA as sufficient evidence
on its own that an applicant is not
inadmissible as likely at any time to
become a public charge. Instead, as
required under the statute, DHS will
consider all of the statutory minimum
factors in a public charge
inadmissibility determination.465 As
Congress provided that DHS may
consider any Affidavit of Support Under
Section 213A of the INA in the public
charge inadmissibility determination,466
under this rule, DHS will favorably
consider a sufficient Affidavit of
464 See INA sec. 213A(a)(1)(B), 8 U.S.C.
1183(a)(1)(B).
465 INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
466 INA sec. 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
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Support Under Section 213A of the INA
and the receipt of public benefits, as
defined in the rule, in the totality of the
circumstances.467
Nevertheless, with respect to this
commenter’s suggestion that DHS
include provisions regarding the
enforcement of the support obligations,
DHS notes that this rulemaking is not
intended to address the enforcement of
the Affidavit of Support Under Section
213A of the INA. This is because
enforcement of the obligations that
attach once the application for an
immigrant visa or adjustment of status
is granted 468 is distinct from and occurs
after the actual public charge
inadmissibility determination under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4). Further, if a sponsor fails to
fulfil their support obligations, the
sponsored immigrant or any Federal,
state, local, or private agency that
provided any public benefit to the
sponsored immigrant may sue the
sponsor to enforce the Affidavit of
Support Under Section 213A of the
INA.469 Because the statute already
allows any interested parties to sue to
enforce an Affidavit of Support Under
Section 213A of the INA, and because
such changes would be outside the
scope of the rulemaking, DHS does not
believe that further updates to the
enforcement procedures for an Affidavit
of Support Under Section 213A of the
INA would be appropriate at this time.
Therefore, DHS will not, in adjudicating
an adjustment of status application,
consider the sponsor’s potential future
reimbursement in a public charge
inadmissibility determination when
there is not yet a reimbursement
obligation. As further explained above,
DHS declines to address sponsorship
obligations or enforcement of those
obligations in this rule.
3. Current and/or Past Receipt of Public
Benefits
Comment: Some commenters stated
that children should not be penalized
for previous or current receipt of
benefits by their adult caregivers or
other household members, because the
receipt of public benefits during periods
when children are vulnerable and
economically needy is economically
and socially helpful for their
development and contributes to
healthier adults with better employment
outcomes. Another commenter also
stated that children are generally not
responsible for immigrating to the
8 CFR 212.22(b).
INA sec. 213A, 8 U.S.C. 1183a.
469 See INA sec. 213A(a)(1)(B), 8 U.S.C.
1183a(a)(1)(B).
United States or enrolling in benefits
and should therefore not be subject to
the public charge ground of
inadmissibility. Some commenters also
recommended DHS state that the use of
benefits as a child should not be
included in a public charge
inadmissibility determination, as this
provides no evidence for future reliance
on government programs and access to
key supports by children has been
associated with improvements in future
economic outcomes.
Response: DHS appreciates the
comments expressing concern about the
consideration of past or current public
benefit use by children. Under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
DHS is required to make a predictive
assessment of whether a child is likely
at any time to become a public charge
when a child is applying for admission
or adjustment of status unless the child
is within one of the categories expressly
exempted by Congress. Only those
categories designated by Congress are
exempt from the public charge ground
of inadmissibility.470 DHS notes that
Congress did not exclude children from
the public charge ground of
inadmissibility and therefore, unless a
child is seeking admission or
adjustment of status in a classification
that Congress expressly exempted from
the public charge ground of
inadmissibility, for example adjustment
of status as a special immigrant
juvenile,471 DHS must apply the ground
to applications for admission or
adjustment of status and must take into
account the factors in the totality of the
circumstances. A public charge
inadmissibility determination takes into
account the totality of a noncitizen’s
circumstances, including the
noncitizen’s age.
While DHS will not create a different
standard for children, DHS intends to
issue guidance as appropriate that will
clarify considerations that are relevant
to a child’s receipt of public benefits in
the totality of the circumstances.
With respect to commenters’ concern
that children will be penalized for
benefits received by their adult
caregivers or household members, DHS
also notes that unless the child was a
named beneficiary for the public
benefits, those public benefits will not
be considered. DHS is defining ‘‘receipt
(of public benefits)’’ separately from its
definition of ‘‘likely at any time to
become a public charge.’’ 472 In this
definition, DHS makes clear that the
receipt of public benefits occurs when a
467 See
468 See
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470 See
8 CFR 212.23.
sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
472 See 8 CFR 212.21.
471 INA
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public benefits-granting agency provides
public benefits to a noncitizen, but only
where the noncitizen is listed as a
beneficiary. DHS recognizes that this
policy differs from the policy
announced under the 1999 Interim Field
Guidance and the IRCA legalization
regulations,473 but notes that the statute
does not require a determination that
includes benefits where only the
applicant’s relatives are listed as
beneficiaries, and that there are strong
public policy reasons to avoid chilling
effects in this context.
In addition, and similarly to the 2019
Final Rule, applying for a public benefit
on one’s own behalf or on behalf of
another would not constitute receipt of
public benefits by the noncitizen
applicant, nor would approval for future
receipt of a public benefit on the
noncitizen’s own behalf or on behalf of
another. If, however, a noncitizen has
been approved for future receipt of a
public benefit that would be considered
under this rule, that information may be
considered by an officer in the totality
of the circumstances. Any evidence of
approval for future receipt of a public
benefit on behalf of an applicant, while
not constituting receipt of public
benefits, would indicate a probability of
future receipt of public benefits and be
considered by DHS as probative of being
likely of becoming a public charge in
the future. Finally, this definition would
make clear that a noncitizen’s receipt of
public benefits solely on behalf of
another, or the receipt of public benefits
by another individual (even if the
noncitizen assists in the application
process), would also not constitute
receipt of public benefits by a
noncitizen. Therefore, under this rule,
noncitizens will not be penalized for
previous or current use of benefits by
their adult caregivers or other
household members where they were
not named beneficiaries.
Comment: Some commenters
recommended that DHS exclude from
consideration in public charge
inadmissibility determinations the
receipt of public benefits by active-duty
U.S. service members and their spouses
and children, as was done in the 2019
Final Rule. Although these commenters
alleged that the NPRM is generally too
lenient, they expressed concern that the
NPRM if finalized might operate to the
detriment of some active-duty service
members and their families. These
commenters stated that DHS should
provide a special dispensation for
service members and their families,
regardless of DHS’s belief that they
473 See discussion in Definitions—Receipt of
Public Benefits.
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would not generally be receiving the
benefits that would be considered, given
the expansive list of exemptions and
exclusions for a number of benefits and
classes of noncitizens. The commenters
did not provide data regarding the
receipt of public benefits by this
particular population.
Response: DHS appreciates the
commenters’ expression of concern for
U.S. service members and their spouses
and children and shares this concern.
The exclusion of consideration of public
benefits used by active-duty members of
the U.S. military in the 2019 Final Rule
relied significantly on the fact that that
rule included the consideration of noncash benefits, in particular SNAP, a
supplemental program that this rule
does not include in the public charge
inadmissibility determination.474 DHS
agrees that receipt of non-cash benefits
by U.S. service members and their
spouses and children does not provide
a good indication that those service
member and their families are likely at
any time to become public charges.
Unlike these commenters, however,
DHS believes that the same is also true
of other members of the public.
Because this rule generally excludes
consideration of non-cash benefits
(other than long-term
institutionalization at government
expense), DHS does not believe that
there is a need to create the sort of
specialized exception for service
members that it determined was
required under the 2019 Rule.
According to data provided by DOD, as
of April 30, 2022, a total of 99 activeduty personnel use TANF and 572 use
SSI, out of approximately 1.34 million
active-duty service members.475 Also
474 See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292, 41371 (Aug. 14, 2019); U.S.
Gov’t Accountability Office, GAO–16–561,
‘‘Military Personnel: DOD Needs More Complete
Data on Active-Duty Servicemembers’ Use of Food
Assistance Programs’’ (July 2016), https://
www.gao.gov/assets/680/678474.pdf (last visited
July 13, 2022) (reporting estimates ranging from
2,000 active duty servicemembers receiving SNAP
to 22,000 such servicemembers receiving SNAP).
Effective FY16, Congress implemented a
recommendation by the Military Compensation and
Retirement Modernization Commission to sunset
DOD’s Family Subsistence Supplemental
Allowance Program within the United States,
Puerto Rico, the U.S. Virgin Islands, and Guam;
SNAP receipt may have increased somewhat
following termination of the program. See Public
Law 114–92, div. A, sec. 602, 129 Stat. 726, 836
(Nov. 25, 2015); Military Comp. & Ret.
Modernization Comm’n, Final Report 187 (Jan.
2015) (‘‘The [Family Subsistence Supplemental
Allowance Program] should be sunset in the United
States, Puerto Rico, Guam, and other U.S. territories
where SNAP or similar programs exist, thereby
reducing the administrative costs of a duplicative
program.’’).
475 Benefit use data provided by the Defense
Manpower Data Center to DHS on July 12, 2022.
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according to DOD, as of April 30, 2022,
a total of 1 active-duty service member
who is not a U.S. citizen or U.S.
national uses TANF, and no active-duty
service members who are not U.S.
citizens or U.S. nationals use SSI.476
As a result, DHS does not believe that
it is necessary to specifically exclude
from consideration benefits received by
active-duty U.S. service members and
their spouses and children in the public
charge inadmissibility determination
because it does not believe that activeduty U.S. service members would
generally be affected by the public
benefits considered under this rule.
DHS is adopting a standard similar to
the one used in the 1999 Interim Field
Guidance and NPRM, which defined
‘‘public charge’’ based on primary
dependence on the government for
subsistence as demonstrated by the
receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense. DHS is not considering the
receipt of SNAP benefits, which are
frequently utilized by service members
and their families, in this rule.
USCIS notes that noncitizens must
generally be LPRs 477 in order to join the
United States military and LPRs only
are subject to the public charge ground
of inadmissibility in limited
circumstances.478 Further, under section
329 of the INA, 8 U.S.C. 1440, all
noncitizens honorably serving in the
U.S. military at the present time, which
is a specifically designated period of
hostilities, may be eligible to naturalize
(without spending a specific period of
time as an LPR or having been lawfully
admitted to the United States for
permanent residence) if they meet the
other eligibility requirements.479 In
The total number of active-duty service members is
publicly available at Defense Manpower Data
Center, ‘‘Active Duty Military Strength Summary,’’
https://dwp.dmdc.osd.mil/dwp/app/dod-datareports/workforce-reports (last visited July 12,
2022).
476 Benefit use data provided by the Defense
Manpower Data Center to DHS on July 14, 2022.
477 See USA.gov, ‘‘Join the Military,’’ https://
www.usa.gov/join-military (last visited July 12,
2022). However, under the Military Accessions
Vital to National Interest (MAVNI) program, certain
noncitizens who were asylees, refugees, TPS
beneficiaries, deferred action beneficiaries, or
nonimmigrants in certain categories could enlist.
DOD ceased recruiting service members through the
MAVNI program in 2016.
478 LPRs do not apply for adjustment of status and
they are generally not considered to be applicants
for admission when they return from a trip abroad.
However, in certain limited circumstances, an LPR
will be considered an applicant for admission and
subject to an inadmissibility determination upon
their return to the United States. See INA sec.
101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C).
479 See USCIS Policy Manual, Vol. 12, Part I, Ch.
3, ‘‘Military Service during Hostilities (INA 329),’’
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accordance with E.O. 14012, DHS and
DOD are working together diligently to
facilitate naturalization for eligible
noncitizen service members and are
dedicated to making naturalization
services available to all noncitizen
service members as soon as they are
eligible.480
In summary, noncitizens make up a
very small percentage of active duty
service members, those who are serving
are generally LPRs, those who are
serving are eligible to naturalize
immediately if they meet the other
eligibility requirements, and DHS/DOD
are taking steps to make naturalization
available to them as soon as they are
eligible, and even if not yet naturalized
the LPR service members are only
subject to the public charge ground of
inadmissibility in exceptionally limited
circumstances. Finally, as noted above,
only one active-duty service member
who is not a U.S. citizen or U.S.
national uses TANF, and no active-duty
service members who are not U.S.
citizens or U.S. nationals use SSI. Given
these facts, it is highly unlikely that any
active-duty noncitizen service member
would use SSI or TANF and also be
considered an applicant for admission
and subject to a public charge
inadmissibility determination prior to
their naturalization.
Moreover, in all cases, DHS is only
considering receipt of public cash
assistance for income maintenance
received by the applicant and not the
receipt of such assistance by the
applicant’s family members, including
the applicant’s spouse and children.
DHS is defining ‘‘receipt (of public
benefits)’’ separately from its definition
of ‘‘likely at any time to become a public
charge.’’ 481 In this definition, DHS
makes clear that the receipt of public
benefits occurs when a public benefit
granting agency provides public benefits
to a noncitizen, but only where the
noncitizen is listed as a beneficiary. In
addition, applying for a public benefit
on one’s own behalf or on behalf of
another would not constitute receipt of
public benefits by the noncitizen
applicant, nor would approval for future
https://www.uscis.gov/policy-manual/volume-12part-i-chapter-3 (last visited July 12, 2022).
480 See ‘‘Restoring Faith in Our Legal Immigration
Systems and Strengthening Integration and
Inclusion Efforts for New Americans,’’ 86 FR 8277
(Feb. 5, 2021). See ‘‘Oversight of Immigrant Military
Members and Veterans,’’ Subcomm. on Immigr. and
Citizenship, H. Comm. on the Judiciary, 117th
Cong. (2022) (statement of Debra Rogers, Director of
the Immigrant Military Members and Veterans
Initiative, DHS, and statement of Stephanie P.
Miller, Director, Office of Enlisted Personnel Policy,
DOD), https://judiciary.house.gov/calendar/
eventsingle.aspx?EventID=4935 (last visited July 13,
2022).
481 See 8 CFR 212.21(d) and (a), respectively.
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receipt of a public benefit on the
noncitizen’s own behalf or on behalf of
another. This definition for receipt (of
public benefits) makes clear that the
noncitizen’s receipt of public benefits
solely on behalf of another, or the
receipt of public benefits by another
individual (even if the noncitizen assists
in the application process), will also not
constitute receipt of public benefits by
the noncitizen. DHS believes that
including a further, explicit
confirmation that this definition applies
to active-duty U.S. military spouses and
children may create confusion, because
doing so could imply that those benefits
would be considered for other nonactive duty U.S. military spouses and
children when in fact that is not the
case.
Finally, to the extent that commenters
were suggesting that DHS should fully
exempt active-duty service members,
their spouses, and their children from
the public charge ground of
inadmissibility, DHS reiterates the
discussion above in section III.G in
response to other comments requesting
exemptions for certain categories of
noncitizens. Only those categories
designated by Congress are exempt from
the public charge ground of
inadmissibility,482 and although DHS
can and will issue guidance that will
clarify considerations that are relevant
to current and/or past receipt of public
benefits by active duty servicemembers
and their families, DHS declines to
exempt the whole category from the
public charge ground of inadmissibility.
Comment: One commenter expressed
concern about the DHS statement that
the longer a noncitizen had received
benefits in the past and the greater the
amount of benefits, the stronger the
implication that a noncitizen is likely to
become a public charge, because the
amount of benefits and length of time
benefits are available varies by locality
and State for TANF, General Assistance,
and Guaranteed Income pilots.
Furthermore, the commenter stated that
a calculation that considers these factors
would necessarily discriminate against
immigrants living in States or localities
with more generous benefits than those
with more limited programs available to
them, and setting guidelines based on
amount and time on aid creates a
disproportionate harm to immigrants
who live and receive support in States
and localities that prioritize their
wellbeing through more robust
programs. Other commenters also
recommended a clarification to the
regulatory text that institutionalization
at government expense for short periods
482 See
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of time for rehabilitation purposes
should not be considered in a public
charge inadmissibility determination,
and that only Medicaid section 1905(a)
institutional services will be considered.
Response: DHS notes and appreciates
the commenter’s concern about the
differences in availability and
guidelines pertaining to public benefit
programs in different localities and
States and how that could impact the
public charge inadmissibility
determination. DHS believes, however,
that consideration of public cash
assistance for income maintenance and
long-term institutionalization at
government expense should remain a
part of the public charge inadmissibility
determination. Even with the
differences that exist throughout the
country on the local and State level,
past public benefit receipt, including
long-term institutionalization at
government expense, has long been
considered in the public charge
inadmissibility determination. During
development of this rule, DHS
consulted with HHS, which administers
TANF and Medicaid. As part of that
consultation, HHS provided an on-therecord letter to DHS included with the
NPRM expressing their general support
for the approach to public charge
inadmissibility taken by INS in the 1999
Interim Field Guidance and 1999
NPRM, and specifically supported an
understanding of public charge linked
to being primarily dependent on the
government for subsistence as
demonstrated by the receipt of cash
assistance for income maintenance or
long-term institutionalization at
government expense. As suggested by
HHS in its on-the-record consultation
letter, DHS is replacing the term
‘‘institutionalization for long-term care
at government expense,’’ used in the
1999 Interim Field Guidance and 1999
NPRM, with ‘‘long-term
institutionalization at government
expense,’’ in order to better describe the
specific types of services covered and
the duration for receiving them.
Consistent with the 1999 Interim Field
Guidance and 1999 NPRM, and
included in regulation text at section
212.21(c), long-term institutionalization
does not include imprisonment for
conviction of a crime or
institutionalization for short periods or
for rehabilitation purposes.
The vast majority of public comments
received in response to the 2021
ANPRM and the 2022 NPRM supported
excluding past or current use of, or
eligibility for, HCBS from the public
charge inadmissibility determination.
This approach is also supported by
HHS. In its on-the-record consultation
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letter included with the NPRM, HHS
encouraged DHS to ‘‘consider
clarifications to its public-charge
framework that would account for
advancements over the last two decades
in the way that care is provided to
people with disabilities and in the laws
that protect such individuals.’’
Specifically, HHS suggested that HCBS
should not be considered in public
charge inadmissibility determinations.
HHS affirmed, as discussed above, that
‘‘HCBS help older adults and persons
with disabilities live, work, and fully
participate in their communities,
promoting employment and decreasing
reliance on costly government-funded
institutional care.’’ The HHS letter also
distinguished HCBS from long-term
institutionalization at government
expense by stating that HCBS do not
provide ‘‘total care for basic needs’’
because they do not pay for room and
board. In its letter, HHS also encouraged
DHS to take into account ‘‘legal
developments in the application of
Section 504 since 1999,’’ including
looking at whether a person might have
been institutionalized at government
expense in violation of their rights. As
a result of these considerations, DHS
believes that it is important to exclude
consideration of HCBS, but continue to
include consideration of long-term
institutionalization at government
expense, as well as public cash
assistance for income maintenance.
DHS further notes that ‘‘long-term
institutionalization’’ is the only category
of Medicaid-funded services to be
considered in public charge
inadmissibility determinations.483 The
1999 Interim Field Guidance indicates
that ‘‘short term rehabilitation services’’
are not to be considered for public
charge purposes, but it does not
otherwise describe the length of stay
that is relevant for a public charge
inadmissibility determination.
Generally, DHS considers ‘‘long-term
institutionalization’’ to be characterized
by uninterrupted, extended periods of
stay in an institution, such as a nursing
home or a mental health institution.
Under this approach, DHS, for example,
would not consider a person to be
institutionalized long term if that person
had sporadic stays in a mental health
institution, where the person was
discharged after each stay. On the other
hand, DHS would consider a person to
be institutionalized long-term if the
person remained in the institution over
a long period of time, even if that period
483 Defined
as institutional services under section
1905(a) of the Social Security Act.
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included off-site trips or visits without
discharge.
Comment: One commenter said that
receiving benefits for a period of time
allows people to get their health back on
track and can be beneficial to both the
individual and society. Commenters
also stated that receiving benefits for a
short period of time, or receiving
temporary benefits, does not show a
prospective likelihood of primary
dependence on governmental support
but did not provide a citation for that
statement. One commenter
recommended DHS impose a minimum
5-year window for past benefit usage in
the public charge inadmissibility
determination, which would be in line
with PRWORA’s 5-year waiting period
required for an individual to become a
‘‘qualified alien’’ to obtain eligibility for
most Federal public benefits, while
another commenter suggested a time
limit of 1 year.
Another commenter cited a 2017
survey of service providers that showed
85% of respondents said that TANF is
a very critical resource for a significant
number of domestic violence and sexual
assault victims, so the commenter
recommended the rule explicitly
exclude past benefits use that has been
short-term or time-limited, or for
emergent needs, including cash
assistance for survivors who need shortterm income maintenance. One
commenter recommended also that if
DHS considers past receipt of benefits,
the officer should consider whether the
assistance was used by survivors of
domestic violence, serious crimes,
disasters, an accident, pregnant or
recently pregnant persons, or children,
in that public benefits may have been
used to overcome hardships caused by
a temporary situation that no longer
applies and does not predict future use.
Some commenters emphasized that DHS
should not consider these benefits at all.
Response: DHS appreciates the
comment and concern for individuals
who use public benefits on a short-term,
set term, or temporary basis. DHS does
not believe that it would be fair or
equitable to set an arbitrary time frame
on the use of benefits (such as five
years); rather, DHS believes that shortterm or temporary use of benefits is best
considered under the totality of
circumstances framework that this rule
will promulgate and that has been used
by DHS (and the former INS) for over 20
years. With this rule, DHS makes clear
in the regulatory text that DHS will
consider the amount, duration, and
recency of receipt, and that the current
and/or past receipt of these public
benefits is not alone sufficient for
determining whether an individual is
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inadmissible because DHS would also
consider the statutory minimum factors
in each case before making a
determination under the totality of the
circumstances.484
Furthermore, as for the comment that
recommends not considering public
benefit use from certain vulnerable
populations, DHS clarifies, in this rule,
which classes of individuals are exempt
from the public charge ground of
inadmissibility or for whom a waiver is
available. DHS agrees that it is
important in this rule to make clear who
is exempted from the public charge
ground of inadmissibility, such as those
who are VAWA self-petitioners under
section 212(a)(4)(E)(i) of the Act. A list
of those who are exempted from
212(a)(4) of the Act can be found at 8
CFR 212.23. Additionally, in this rule
DHS has identified the following groups
for exclusion from consideration of
receipt of certain public benefits: (1)
receipt of public benefits when a
noncitizen is in a category exempt from
public charge; 485 and (2) receipt of
public benefits by those granted refugee
benefits.486 If an applicant is not exempt
from the public charge ground of
inadmissibility and no waiver is
available, the applicant can nonetheless
describe their temporary circumstances
to DHS, which DHS will consider in the
totality of the circumstances.
Comment: A commenter stated that
utilization of TANF and SSI alone
should not make someone likely to
become a public charge. Another
commenter stated that cash assistance
should not be more heavily weighted
than other types of assistance because
the totality of the individual’s
circumstances should be taken into
account. Other commenters stated that
DHS should explicitly state that use of
SSI or TANF alone is not determinative
in a public charge inadmissibility
determination. One comment also stated
that use of such benefits should be
considered in the context of why they
are received, along with any positive
factors under the forward-looking
totality of circumstances test.
Response: DHS reiterates, as stated in
the NPRM, that it intends to continue
the longstanding approach to the public
charge ground of inadmissibility that
does not rely on any one factor alone in
making a public charge inadmissibility
determination. DHS understands that
there is confusion about how receipt of
public benefits is considered as a result
of the concept of ‘‘heavily weighted
factors’’ that was included in the 2019
484 See
8 CFR 212.21(a).
8 CFR 212.22(d).
486 See 8 CFR 212.22(e).
485 See
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Final Rule. As noted elsewhere in this
preamble, that rule is no longer in effect
and DHS does not propose any heavily
weighted factors in this current rule.
DHS appreciates the commenter’s
suggestion that DHS should explicitly
state that use of SSI or TANF alone is
not determinative in a public charge
inadmissibility determination. Instead
of singling out SSI and TANF, however,
DHS is making clear in the regulatory
text that current and/or past receipt of
public cash assistance for income
maintenance (as well as long-term
institutionalization at government
expense) will not alone be a sufficient
basis to determine whether an applicant
is likely at any time to become a public
charge.487 As the rule defines ‘‘public
cash assistance for income
maintenance,’’ this provision already
includes SSI and TANF (as well as
State, Tribal, territorial, or local cash
benefit programs for income
maintenance). The regulatory text
further states that DHS will consider
such receipt in the totality of the
circumstances, along with the other
factors, and will consider the amount
and duration of receipt, as well as how
recently the noncitizen received the
benefits,488 to determine whether the
noncitizen is likely at any time to
become a public charge. This rule also
clearly states that no one factor,
including current or past receipt of
public benefits, apart from the lack of a
sufficient Affidavit of Support Under
Section 213A of the INA where
required, should be the sole criterion for
determining whether an applicant is
likely to become a public charge.
Comment: Many commenters stated
that DHS should only consider current
receipt of TANF and SSI in a public
charge inadmissibility determination, as
any consideration of past receipt of
benefits would create a chilling effect
that would harm immigrants and their
families and put public health at risk.
Similarly one commenter stated that the
ability to predict future public benefit
use based on past use of SSI is weak
because low-income noncitizen
immigrants are much less likely to
receive SSI benefits than similar U.S.born adults and their use of benefits
lessens over time. The commenter stated
that past receipt of public benefits is not
relevant in the prospective public
charge inadmissibility determination
because, generally, a person who has
received public benefits in the past and
is not receiving them currently has
experienced a change in circumstances.
For example, a person who previously
487 See
488 See
8 CFR 212.22(a)(3).
8 CFR 212.22(a)(3).
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relied on TANF may have secured
employment after completing a degree
or vocational program. Moreover, the
commenter stated that benefits are not
mentioned in the INA’s public charge
inadmissibility provisions and arguably
could be excluded from consideration
altogether. One of these commenters
stated that DHS should not consider any
past use of benefits in the prospective
public charge inadmissibility
determination and should strike
questions about past receipt of public
benefits from the I–485 form.
Response: DHS appreciates but
disagrees with the comments that stated
that past public benefit use should not
be considered in the public charge
inadmissibility determination. DHS
notes that it has limited which past
benefits are relevant to the
determination that an individual will be
likely at any time to become a public
charge. Past long-term
institutionalization at government
expense has long been considered in the
public charge inadmissibility
determination. DHS will consider past
or current long-term institutionalization
at government expense in the totality of
the circumstances. DHS further notes
that changes in an individual’s
circumstances, as well as changes in the
availability of different types of public
benefits, can impact an individual’s
public benefit usage. While DHS agrees
that past use is not determinative of
future use, it is a factor that DHS
believes is necessary to take into
account along with the other factors, in
the totality of the circumstances. To the
extent that the commenter above
describes an individual who at one
point in the past relied on TANF, but
now has steady employment that allows
them to support their needs after they
gained a degree or vocational program,
under the rule, those considerations
would be taken into account on a caseby-case basis considering those factors
as well as the others set forth in the
statute and these regulations in the
totality of circumstances. To the extent
that circumstances have changed since
the period of past long-term
institutionalization, those changed
circumstances will be considered.
Comment: Several commenters
recommended that DHS clarify that only
current long-term institutionalization be
considered, as past institutionalization
may reflect a medical issue that has
since been resolved, a lack of access to
community-based services that have
since been provided, a lack of accessible
housing, or other factors that do not
suggest a likelihood of future
institutionalization.
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Response: DHS disagrees that only
current long-term institutionalization
should be considered. Past long-term
institutionalization at government
expense has long been considered in the
public charge inadmissibility
determination. DHS notes that long-term
institutionalization is the only category
of Medicaid-funded services to be
considered in public charge
inadmissibility determinations.489
Although the 1999 Interim Field
Guidance indicated that ‘‘short term
rehabilitation services’’ are not to be
considered for public charge purposes,
it did not otherwise describe the length
of stay that is relevant for a public
charge inadmissibility determination. In
this rule, generally, DHS will consider
‘‘long-term institutionalization’’ to be
characterized by uninterrupted,
extended periods of stay in an
institution, such as a nursing home or
a mental health institution. Under this
approach, DHS, for example, would not
consider a person to be institutionalized
long-term if that person had sporadic
stays in a mental health institution,
where the person was discharged after
each stay. On the other hand, DHS
would consider a person to be
institutionalized long term if the person
remained in the institution over a long
period of time, even if that period
included off-site trips or visits without
discharge. DHS would also note that,
given advances in alternatives to
receiving care in institutional settings,
prior receipt of long-term institutional
services, even for extended periods of
time, is not necessarily determinative of
requiring institutional care in the future.
In this rule, DHS will consider past or
current receipt of long-term institutional
services in the totality of the
circumstances.
Comment: One commenter stated that
immigrants should be allowed to benefit
from the same assistance that citizens
benefit from, stating that it will be more
difficult for immigrants to integrate into
society if they are not able to access the
same benefits as citizens, imposing an
artificial barrier to success for the
immigrants. One commenter suggested
that consideration of receipt of public
benefits is dehumanizing. This
commenter said that immigrants are less
likely to use government benefits than
U.S. citizens and a law that only views
them as takers, not givers, is
dehumanizing.
Similarly, another commenter stated
that the current law punishes poor
immigrants by penalizing government
assistance usage, which leads to families
489 Defined as institutional services under section
1905(a) of the Social Security Act.
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not applying for benefits for which they
are eligible, making it harder for them
to integrate into society due to the
economic strain. Another commenter
stated that while some people will only
need public benefits for a short period,
others may need to rely on them
indefinitely, and it would be inhumane
and discriminatory to uphold
regulations that reject people in either
circumstance if they are in need of
public assistance.
Response: DHS appreciates the
comments about the importance of
public benefits to immigrants and that
taking into account past or current
benefit use in the immigration
admissibility determination can have
negative effects on immigrants subject to
the ground of inadmissibility. Congress,
however, created the public charge
ground of inadmissibility at section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
and the ground of inadmissibility must
be applied except where Congress
indicated otherwise. As discussed
elsewhere in this preamble, DHS
believes that it is important to consider
a noncitizen’s past or current receipt of
certain benefits, to the extent that such
receipt occurs, as part of the public
charge inadmissibility determination.
DHS opts for an approach in which DHS
considers past or current receipt of the
benefits most indicative of primary
dependence on the government for
subsistence but excludes from
consideration a range of benefits that are
less indicative of primary dependence,
and for which applicants for admission
and adjustment of status are likely
ineligible in any event. This rule is an
effort to faithfully implement the public
charge ground of inadmissibility
without unnecessarily and at this point,
predictably, harming separate efforts
related to health and well-being of
people whom Congress made eligible for
supplemental supports.
DHS understands that certain
individuals may be less likely to become
a public charge in the long term after a
certain duration of benefits use and that
individuals may use benefits for shorter
or longer periods of time. However, the
material question in a public charge
inadmissibility determination is
whether the person is likely to become
a public charge at some point in the
future. Thus, DHS has chosen not to
limit its definition of public charge
based on the potential that a noncitizen
who is currently a public charge may
not remain so indefinitely. Instead, the
appropriate way to address that nuance
is through the totality of the
circumstances prospective
determination.
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4. Long-Term Institutionalization in
Violation of Federal Law
Comment: One commenter stated that
USCIS decisionmakers who predict
institutionalization in the future for a
currently institutionalized person
would be incorrectly assuming that the
institution is a proper placement and
not in violation of Federal law when, in
fact, these individuals can and should
be receiving HCBS. The commenter
stated that the only situation in which
institutionalization would not violate
Federal law would be when it is directly
chosen by the person with a disability,
and thus recommends DHS remove the
consideration of long-term
institutionalization at government
expense from the public charge
inadmissibility determination.
Response: DHS disagrees that the only
institutionalization at government
expense that does not violate Federal
law would be institutionalization that is
directly chosen by the person with a
disability, as Federal law does not
impose this type of requirement with
respect to institutionalization.490
Indeed, as noted in the NPRM, Federal
law requires placement of individuals in
the most integrated setting appropriate
to their needs, which does not indicate
that only patient-requested
institutionalization complies with
Federal law. While some
institutionalization of individuals with
disabilities may occur in violation of
Federal law, commenters provided no
evidence that suggests that
institutionalization is almost always in
violation of Federal law.491 To the
extent that institutions, including
nursing homes and mental health
facilities, generally assume total care of
the basic living requirements of
individuals who are admitted, including
room and board,492 DHS believes that
such long-term institutionalization at
government expense (at any level of
government) is properly considered
under this rule because, as noted by
HHS in its consultation letter,493 it is
evidence of being or likely to become
primarily dependent on the government
for subsistence.
DHS notes that, consistent with the
NPRM,494 it has excluded Medicaidfunded HCBS that help older adults and
people with disabilities live, work, and
fully participate in their communities,
490 87
FR at 10613 (Feb. 24, 2022).
FR at 10613 (Feb. 24, 2022).
492 See Ctrs. for Medicare & Medicaid Services,
Medicaid.gov, ‘‘Institutional Long Term Care,’’
https://www.medicaid.gov/medicaid/ltss/
institutional/ (last visited Aug. 16, 2022).
See also 42 CFR 435.700 et seq.
493 87 FR at 10613 (Feb. 24, 2022).
494 See 87 FR at 10614 (Feb. 24, 2022).
491 87
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as HCBS do not include payments for
room and board, and therefore do not
provide the total care for basic needs
provided by institutions.
Comment: One commenter stated that
the provision that officers consider
whether a person’s current or past
institutionalization would violate
Federal law does not reflect the true
circumstances of institutionalized
people and incorrectly assumes there
are cases in which institutionalization is
ever required. The commenter further
stated that there is no reason any person
with a disability needs to be
institutionalized, citing a study that
shows even those with the highest
support needs and most significant
disabilities can live in the community
when the supports and services they
need are provided there. The
commenter opined that given this, there
is never a situation where
institutionalization is the most
integrated setting appropriate and
therefore all institutionalization at
government expense would violate the
Americans with Disabilities Act’s
integration mandate as required by
Olmstead v. L.C. and thus Federal law.
Response: DHS disagrees that all
institutionalization at government
expense is a per se violation of the
Americans with Disabilities Act (ADA)
and Section 504. As DHS noted in the
NPRM,495 although the ADA requires
public entities, and Section 504 requires
recipients of Federal financial assistance
to provide services to individuals in the
most integrated setting appropriate to
their needs, DHS understands that some
institutionalization of individuals with
disabilities may occur in violation of the
Federal laws. But DHS does not believe
that all institutionalization necessarily
violates the ADA and Section 504, and
the commenters have not provided
evidence that this is the case. As a
result, DHS continues to believe that
while it is appropriate to consider
current or past institutionalization along
with the other factors listed in 8 CFR
212.22(a) when determining the
likelihood at any time of becoming a
public charge in the totality of the
circumstances, the best way to ensure
that DHS is not considering
institutionalization that violates Federal
law is to ensure that applicants are
provided a meaningful opportunity to
provide evidence that current or past
institutionalization is in violation of
Federal law, including the ADA or the
Rehabilitation Act. DHS notes that the
fact that an applicant is or has been
long-term institutionalized at
government expense is not outcome
495 87
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determinative under this rule.496
Instead, under this rule, DHS will, in
the totality of the circumstances, take
into account all of the statutory
minimum factors, the applicant’s
current or past receipt of public benefits
considered in the rule, as well as the
sufficient Affidavit of Support Under
Section 213A of the INA, if required, in
determining the noncitizen’s likelihood
at any time of becoming a public
charge.497
5. Other Factors To Consider
Comment: One commenter suggested
DHS clearly indicate that it will not
consider any submission or receipt of a
fee waiver in the public charge
inadmissibility determination because
USCIS fee waivers are limited to certain
forms and applications and this chilling
effect punishes noncitizens not subject
to the public charge ground of
inadmissibility and that DHS should
include this information in an update to
the instructions for Form I–912, Request
for Fee Waiver.
Response: DHS understands the
commenter’s concern regarding the
chilling effects associated with a public
charge inadmissibility determination
that considers requesting or receiving a
fee waiver. Under this rule, DHS will
consider the five statutory minimum
factors,498 a sufficient Affidavit of
Support Under Section 213A of the INA,
when required, and a noncitizen’s
current and/or past receipt of public
cash assistance for income
maintenance 499 or long-term
institutionalization at government
expense,500 in the totality of the
circumstances.501 However, DHS notes
that the totality of the circumstances
analysis includes all information or
evidence in the record before the officer
that is relevant to a public charge
inadmissibility determination. DHS is
only collecting initial information from
applicants as related to the factors as
outlined in new 8 CFR 212.22(a) and the
accompanying application, which does
not ask for information regarding past
requests for and receipt of fee waivers.
However, DHS may generally consider
all evidence and information in the
record that is relevant to making a
public charge inadmissibility
determination, including evidence that
the noncitizen previously applied for
and received a fee waiver. Such
consideration is consistent with the
496 8
CFR 212.22(a)(3); 8 CFR 212.22(b).
CFR 212.22(b).
498 See 8 CFR 212.22(a)(1).
499 See 8 CFR 212.21(b).
500 See 8 CFR 212.21(c).
501 See 8 CFR 212.22(b).
497 8
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understanding of the totality of the
circumstances approach from the
administrative decisions, as well as with
the approach taken by the former INS
when it promulgated 8 CFR 245a.3.
Accordingly, DHS declines to adopt the
commenter’s suggestions regarding fee
waivers.
Comment: One commenter suggested
that whether a person has paid taxes
should be considered in a public charge
inadmissibility determination.
Response: DHS appreciates the
suggestion that paying taxes should be
considered in a public charge
inadmissibility determination. While
taxes are not a minimum factor
designated by Congress or contained in
the rule, a public charge inadmissibility
determination includes a review of a
noncitizen’s assets, resources, and
financial status. Noncitizens may
submit tax documents if they wish to
provide additional information about
their income or other financial
information, however, DHS will not
require specific evidence from
applicants to make a public charge
inadmissibility determination for
adjustment of status apart from the
questions on the Form I–485,
Application to Register Permanent
Residence or Adjust Status.
Additionally, as noted above, DHS may
generally consider all evidence and
information in the record that is
relevant to making a public charge
inadmissibility determination,
including evidence that the noncitizen
failed to file taxes.
Comment: One commenter stated that
country of origin should never be a
considered in a public charge
inadmissibility determination. Another
commenter stated that there are
shortcomings with assessing
immigration applicants based on race.
Response: DHS agrees that race and
country of origin should never be
considered in a public charge
inadmissibility determination and has
not included either as a factor to be
considered. DHS will make a public
charge inadmissibility determination in
the totality of circumstances,
considering the statutory minimum
factors, an Affidavit of Support Under
Section 213A of the INA, when
required, and current and/or past
receipt of public cash for income
maintenance and long-term
institutionalization at government
expense.502
Comment: One commenter stated that
even if a person is found to be at risk
of becoming a public charge,
opportunities in the United States may
502 See
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allow them to learn new skills and can
end their dependency on public
assistance and suggested this potential
for added value to the United States
should be considered.
Response: DHS understands that
opportunities in the United States may
give noncitizens new opportunities to
learn skills that may end their primary
dependence on public assistance.
However, DHS is required to determine
if an applicant for admission or
adjustment of status is likely at any time
to become a public charge, following
consideration of the minimum factors
established by Congress in section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
DHS determined that a reasonable
implementation of this statute is to
consider the statutory minimum factors,
a sufficient Affidavit of Support Under
Section 213A of the INA, where
required, and a noncitizen’s current
and/or past receipt of cash assistance for
income maintenance and long-term
institutionalization at government
expense. Noncitizens are inadmissible
to the United Sates if they are subject to
the public charge ground of
inadmissibility and are unable to
establish, in the totality of the
circumstances, that they are not likely at
any time to become primarily
dependent on the government for
subsistence based on a consideration of
these factors, and as noted above, any
other information or evidence in the
record that is relevant to a public charge
inadmissibility determination.
This means that DHS may take into
account a noncitizen’s potential in
certain circumstances, for example a
noncitizen’s education and skills may
suggest potential future employment
that would generate sufficient income
for that noncitizen to not be primarily
dependent on the government for
subsistence, but does not mean that
potential alone is determinative that a
noncitizen is not inadmissible under the
public charge ground.
J. Totality of the Circumstances
1. General Comments in Support of the
Totality of the Circumstances Language
Comment: One commenter
commended DHS on its return to the
totality of the circumstances standard,
which in their view better aligns with
congressional intent than what was
promulgated by the past administration
in the 2019 Final Rule. Another
commenter said that they supported the
focus on the totality of the
circumstances and favorable
consideration of the affidavit of support.
Another commenter stated that they
support and recommend that DHS retain
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the proposed rule’s language that an
applicant’s use of countable benefits
and any one statutory factor do not
automatically make an individual a
public charge. One commenter stated
that they support the proposed language
regarding the term, ‘‘totality of the
circumstances,’’ where no one factor
other than the failure to provide a
legally sufficient affidavit of support,
where one is required, should determine
whether the applicant is likely to
become a public charge. Commenters
stated that the totality of the
circumstances framework is
straightforward and has resulted in
efficient, consistent, and predictable
public charge inadmissibility
determinations in the past.
Response: DHS appreciates the
support for the totality of the
circumstances framework proposed in
the NPRM. DHS plans to maintain the
longstanding and straightforward
framework set forth in the 1999 Interim
Field Guidance, under which officers
consider the statutory minimum factors
and the Affidavit of Support Under
Section 213A of the INA, where
required, in the totality of the
circumstances, without separately
codifying the standard and evidence
required for each factor as was done in
the 2019 Final Rule. This proposal
received widespread support in the
comments in response to the NPRM and
DHS believes that including elements
consistent with the standard previously
in place for over 20 years, under which
officers will consider the statutory
minimum factors and the Affidavit of
Support Under Section 213A of the INA
(when required) in the totality of the
circumstances, along with other
elements of the rule, will lead to more
consistent and fair inadmissibility
determinations.
Comment: A commenter stated that it
is inequitable to distinguish between
long-term institutionalization and HCBS
because States differ in what they offer
to treat someone’s needs and that the
mere presence of someone long-term in
an institution should not weigh more
heavily than other factors in the public
charge inadmissibility determination.
That commenter stated that some States
are more likely to default to long-term
institutionalization even though HCBS
are shown to be more effective such as
for people with brain injuries, mental
illness, developmental disabilities,
autism, and older adults, because there
are not more appropriate options
available.
Response: DHS appreciates the
comment and reiterates, as stated in the
NPRM, that it intends to continue the
longstanding approach to the public
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charge ground of inadmissibility that
does not rely on any one factor alone in
making a public charge inadmissibility
determination. DHS understands that
there is confusion as a result of the
heavily weighted factors that were
included in the 2019 Public Charge
Final Rule. That rule, where heavily
weighted factors were included, is no
longer in effect and DHS does not
propose any heavily weighted factors in
this current rule. The fact that an
individual is long-term institutionalized
will not by itself establish that they are
likely to become a public charge.
Generally, DHS considers ‘‘long-term
institutionalization’’ to be characterized
by uninterrupted, extended periods of
stay in an institution, such as a nursing
home or a mental health institution.
Under this approach, DHS, for example,
would not consider a person to be
institutionalized long term if that person
had sporadic stays in a mental health
institution, where the person was
discharged after each stay. On the other
hand, DHS would consider a person to
be institutionalized long term if the
person remained in the institution over
a long period of time, even if that period
included off-site trips or visits without
discharge. Some public comments
received in response to the 2021
ANPRM supported excluding past or
current use, or eligibility for, HCBS from
the public charge inadmissibility
determination. In response to the
NPRM, many commenters, including
this commenter, noted that there is
inconsistent access to HCBS, which may
affect whether an individual is using
HCBS or institutional care. DHS made
the decision to exclude HCBS after
consultation with HHS. In its on-therecord consultation letter, HHS
encouraged DHS to ‘‘consider
clarifications to its public-charge
framework that would account for
advancements over the last two decades
in the way that care is provided to
people with disabilities and in the laws
that protect such individuals.’’
Specifically, HHS suggested that HCBS
should not be considered in public
charge inadmissibility determinations.
HHS affirmed, as discussed above, that
‘‘HCBS help older adults and persons
with disabilities live, work, and fully
participate in their communities,
promoting employment and decreasing
reliance on costly government-funded
institutional care.’’ The HHS letter also
distinguished HCBS from long-term
institutionalization at government
expense by stating that HCBS do not
provide ‘‘total care for basic needs’’
because they do not pay for room and
board. In its letter, HHS also encouraged
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DHS to take into account ‘‘legal
developments in the application of
Section 504 since 1999,’’ including
looking at whether a person might have
been institutionalized at government
expense in violation of their rights.
Comment: One commenter stated that
they support the elimination of the
provision in the 2019 Final Rule that
gave additional negative weight to
children under the age of 18 and to an
individual’s disability or health
condition in the ‘‘totality of
circumstances’’ test, as those additional
weights were discriminatory to children
who are vulnerable and require
specialized medical services.
Furthermore, the commenter stated that
the reversal of those provisions is a
critical and important step to securing
the health and well-being of millions of
children in immigrant families.
Response: DHS agrees that the rule
should not assign particular weight to
any individual factor in the totality of
the circumstances analysis. In addition
to the evidentiary and paperwork
burdens established by the 2019 Final
Rule and discussed above, DHS has
determined that the adjudicative
framework established by the 2019 Final
Rule was unduly prescriptive. As
reflected in Congress’s instruction that
several factors specific to the applicant
must be considered, each public charge
inadmissibility determination must be
individualized and based on the
evidence presented in the specific case,
and the relative weight of each factor
and associated evidence is necessarily
determined by the presence or absence
of specific facts. Consequently, the
designation of some factors as always
‘‘heavily weighted’’ suggested a level of
mathematical precision that would be
unfounded and inconsistent with the
long-standing standard of considering
the totality of the individual’s
circumstances. DHS may periodically
issue guidance that will help officers
determine how the different factors may
affect the likelihood that a noncitizen
will become a public charge at any time,
including an empirical analysis of the
best available data, as appropriate.
2. Recommendations To Improve the
Totality of the Circumstances
Framework
Comment: Several commenters stated
that DHS failed to recognize that the
2019 Final Rule standards better
instructed officers how to conduct
adjudications instead of providing
nothing more than a list of factors
absent additional guidance. These
commenters appear to suggest that DHS
should return to the standards set forth
in the 2019 Final Rule. Another
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commenter stated that by removing the
concept of weighted evidence, and
failing to justify any policy
determination or provide a reasoned
analysis, the proposed rule makes it
impossible for an adjudicator to
determine that a noncitizen is a public
charge. Commenters also stated that the
lack of clear guidance for officers led to
the underutilization of the public charge
ground of inadmissibility.
Response: DHS disagrees with the
commenters’ suggestion that it should
return to the 2019 Final Rule’s
standards, which codified a limited
number of heavily weighted negative
and positive factors, but did not provide
meaningful guidance as to how such
‘‘heavy weight’’ would be applied in the
context of an individual case, relative to
other factors that would also be assigned
weight in the analysis. As noted in the
NPRM,503 DHS believes that the
straightforward and clear approach
taken in this rule reflects the
longstanding approach to making public
charge inadmissibility determinations
and will reduce the burdensome and
unnecessary evidentiary and
information collection requirements
pertaining to the factors under the 2019
Final Rule. DHS believes the simplified
approach in this rule better ensures that
DHS officers making public charge
inadmissibility determinations make the
most efficient and fair decisions.
Therefore, DHS declines to adopt these
commenters’ suggestions.
Comment: One commenter
recommended explicit language that
warns of the degree to which implicit
bias and stereotypes about the quality of
life of people with significant
disabilities could color any assessment
of the total circumstances of a person
with a disability, including an
undervaluation of that person’s
education, skills, and present state of
health. One commenter further
encouraged DHS to incorporate into its
regulations or guidance instructions that
direct officers, where applicable, to
consider the circumstances underlying a
person’s use of the relevant benefits or
limited resources, including having
experienced domestic violence or other
crimes, a public health or natural
disaster or economic downturn, or being
pregnant, a child or having a new child.
Under these circumstances, the
temporary use of benefits can help
individuals and families regain stability,
health or safety, and does not predict
(and may even prevent) an individual’s
need for this assistance in the future.
One commenter further expressed
concern that since there is little
503 87
FR at 10617 (Feb. 24, 2022).
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guidance on how the statutory factors
interrelate, officers may bring the same
biases against people with disabilities as
shared by the general public. Another
commenter stated that DHS must make
sure to look at the totality of the
individual’s circumstances in a
nondiscriminatory manner. A couple of
commenters stated that the evaluation of
the likelihood at any time of becoming
a public charge is a prospective
determination based on the totality of
circumstances that requires an officer to
guess as to what may happen in the
future and guarantees that the officer’s
own subjective opinions will muddle
the analysis.
Response: DHS appreciates the
comments that express concern about
subjectivity, discrimination, and bias.
However, with this rule, DHS intends to
maintain the totality of the
circumstances framework that has been
in place for over 20 years with the 1999
Interim Field Guidance and has been
developed in several Service, BIA and
Attorney General decisions and codified
in INS regulations implementing the
legalization provisions of the
Immigration Reform and Control Act of
1986.504
The 1999 Interim Field Guidance
required officers to make public charge
inadmissibility determinations in the
totality of the circumstances and
indicated that no single factor, other
than the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
when required, would control the
decision.505 As a departure from the
1999 Interim Field Guidance and the
1999 NPRM, in this rule, DHS also
recognizes that there are some
circumstances where an individual may
be institutionalized on a long-term basis
in violation of Federal antidiscrimination laws, including the ADA
and Section 504. The possibility that an
individual will be confined without
justification thus should not contribute
to the likelihood that the person will be
a public charge, and to this end, the rule
provides that officers who are assessing
the probative value of past or current
institutionalization will take into
account, when applicable and in the
totality of the circumstances, any
evidence that past or current
504 See ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28690 (May 26, 1999); see also, e.g., Matter
of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (‘‘The
determination of whether an alien is likely to
become a public charge under section 212(a)(15) is
a prediction based upon the totality of the alien’s
circumstances at the time he or she applies for an
immigrant visa or admission to the United States.’’).
505 ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689, 28690 (May 26, 1999).
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institutionalization is in violation of
Federal law, including the ADA or the
Rehabilitation Act.506 In this rule, DHS
also clarifies that the presence of a
disability, as defined by section 504 of
the Rehabilitation Act, is not alone a
sufficient basis to determine that a
noncitizen is likely at any time to
become a public charge, including that
the individual is likely to require longterm institutionalization at government
expense. Instead, under this rule, DHS
will, in the totality of the circumstances,
take into account all of the statutory
minimum factors, including the
applicant’s health, as well as the
sufficient Affidavit of Support Under
Section 213A of the INA, if required, in
determining the noncitizen’s likelihood
at any time of becoming a public charge.
Furthermore, in regards to concerns
about bias by individual officers, DHS
notes that there is a general regulatory
requirement that USCIS officers
‘‘explain in writing the specific reasons
for a denial.’’ 507 This requirement
applies to all applications and petitions
adjudicated by USCIS, including denials
based on a public charge inadmissibility
determination.508 DHS is now codifying
the language set forth in the 1999
Interim Field Guidance that reiterated
more specifically the general
requirement that every written denial
decision issued by USCIS based on the
public charge ground of inadmissibility
include a discussion of each of the
factors. In this rule, DHS intends that
every written denial decision issued by
USCIS based on the totality of the
circumstances will ‘‘reflect
consideration of each of the factors . . .
and specifically articulate the reasons
for the officer’s determination.’’ 509
Although existing DHS regulations and
policy already require USCIS officers to
specify in written denials the basis for
the denial,510 DHS believes that a
provision explicitly requiring a
discussion of the factors considered in
506 See Olmstead v. L.C., 421 527 U.S. 581 (1999);
U.S. Department of Justice, Civil Rights Division,
Disability Rights Section, ‘‘Statement of the
Department of Justice on Enforcement of the
Integration Mandate of Title II of the Americans
with Disabilities Act and Olmstead v. L.C.,’’ Feb. 25,
2020, https://www.ada.gov/olmstead/q&a_
olmstead.htm (last visited Aug. 16, 2022).
507 INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
See ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
28689 (May 26, 1999). See ‘‘Inadmissibility on
Public Charge Grounds,’’ 84 FR 41292, 41502 (Aug.
14, 2019).
508 8 CFR 103.3(a)(1)(i).
509 See 8 CFR 212.22(c).
510 See 8 CFR 103.3(a)(1)(i). See also USCIS
Policy Manual, Vol. 7, Part A, Ch. 11, ‘‘Decision
Procedures,’’ https://www.uscis.gov/policy-manual/
volume-7-part-a-chapter-11 (last visited Aug. 16,
2022).
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the denial is consistent with the statute
and is necessary to ensure that any
denial based on this ground of
inadmissibility is made on a case-bycase basis in light of the totality of the
circumstances. DHS believes these
safeguards help ensure that the officer’s
decision is based on the statutory factors
and guidance.
Comment: One commenter stated that
age and health are statutory factors that
cannot be changed through rulemaking,
but that those factors, as well as SSI and
long-term institutionalization,
disproportionately impact older adults
and persons with disabilities, with
higher rates in communities of color.
Therefore, this commenter suggested
that to limit the discriminatory impact
of the rule, it is important that no one
factor be given determinative weight.
Response: DHS designed this rule to
adhere to, and implement, congressional
instructions. DHS notes that it does not
intend for this rule to have a
discriminatory effect on applicants with
disabilities, and emphasizes that
disability, as defined by section 504 of
the Rehabilitation Act, will not alone be
a sufficient basis to determine whether
a noncitizen is likely at any time to
become a public charge.511 Also, as
stated previously, for long-term
institutionalization at government
expense, DHS will consider evidence
submitted by noncitizens to support a
declaration that their
institutionalization violated Federal
law.512 DHS cannot rule out the
possibility of disproportionate impacts
on certain groups (whether as a
consequence of the policy contained in
this rule, the 1999 Interim Field
Guidance, or any other policy), but this
rule is neutral on its face and DHS in
no way intends that it will have such
impacts on any protected group. DHS is
committed to applying this rule
neutrally and fairly to all noncitizens
who are subject to it and has included
a provision requiring that USCIS denials
on public charge grounds be
accompanied by a written explanation
that specifically articulates the reasons
for the officer’s determination.513 In
addition, and as stated throughout this
rule, DHS requires the analysis of the
totality of the applicant’s circumstances,
taking into consideration all of the
factors, with no single factor being
outcome determinative.
Comment: One commenter
recommended that the final rule include
guidance that officers consider the
impact of domestic violence, sexual
511 See
8 CFR 212.22(a)(4).
8 CFR 212.22(a)(3).
513 See 8 CFR 212.22(c).
512 See
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assault, human trafficking, and other
gender-based violence in the totality of
the circumstances, and DHS should
provide guidance for limiting
consideration of factors that would
unfairly penalize survivors for the
violence they have experienced, or
make it more difficult for them to escape
abuse. The commenter also suggested
that the final rule consider the
supportive and protective effects of
access to secure legal status for
survivors, as recognized in VAWA, as
adjustment of status or admission
increases a survivor’s ability to escape
the violence or overcome trauma as well
as provide access to employment and
supportive networks.
Response: While DHS appreciates the
comments and suggestions as they relate
to survivors of domestic violence,
sexual assault, human trafficking, and
other gender-based violence, in general,
these survivors, and those applying for
immigration benefits who fall under
certain humanitarian categories, are
exempt from the public charge ground
of inadmissibility. With this rule, DHS
intends to clarify that these individuals
are exempt by specifically listing the
statutory and regulatory exemptions to
the ground of inadmissibility in the
regulation. For the most part, the
categories of individuals mentioned by
the commenter are included in the
listed exemptions found at 8 CFR
212.23.
Furthermore, Congress expressed a
policy preference that individuals in
certain categories should be able to
receive public benefits without risking
adverse immigration consequences.
DHS believes that Congress did not
intend to later penalize such
noncitizens for using benefits while in
these categories because doing so would
undermine the intent of their
exemption. Given the nature of these
populations and the fact that if they
were applying for admission or, as
permitted, adjustment of status under
those categories they would be exempt
from the public charge ground of
inadmissibility, it is reasonable for DHS
to exclude from consideration those
benefits that an applicant received
while in a status that is exempt from the
public charge ground of inadmissibility.
Therefore, DHS is setting forth a final
rule that states that, in any application
for admission or adjustment of status in
which the public charge ground of
inadmissibility applies, DHS will not
consider any public benefits received by
a noncitizen during periods in which
the noncitizen was present in the
United States in an immigration
category that is exempt from the public
charge ground of inadmissibility, as
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listed in 8 CFR 212.23(a), or for which
the noncitizen received a waiver of
public charge inadmissibility, as stated
in 8 CFR 212.23(c).514 However, under
this rule, any benefits received prior to
or subsequent to the noncitizen being in
an exempt status would be considered
in a public charge inadmissibility
determination in the totality of the
circumstances, including consideration
of any mitigating information that that
the applicant may wish to bring to
DHS’s attention.
Comment: Two commenters stated
that DHS should clarify the standards
for a public charge inadmissibility
determination and how officials will
employ them within the rule itself, not
in later guidance. One of the
commenters remarked that because the
rule proposes to issue guidance later as
to how the totality of the circumstances
should be assessed, those affected still
have no knowledge, clarity, or certainty
as to how the factors will be weighed,
and the use of future guidance to
determine who is likely to become a
public charge allows DHS to change the
standards without the use of the full
notice and comment rulemaking
process, avoiding accountability and
compromising consistency, and further
stating that the rule’s content regarding
the totality of the circumstances test is
vague. Another commenter similarly
stated that while a totality of the
circumstances standard gives USCIS
maximum flexibility, the commenter
expressed concern that this standard is
subject to extreme varying
interpretations in agency adjudications
and its implementation could subject to
the uncertainties of the political
process. The commenter stated that an
unmodified totality of the circumstances
standard is an invitation for policy
changes based on arbitrary political
interpretations rather than sound legal
analysis and established precedent.
Response: DHS appreciates
commenters’ concern regarding the
perceived lack of specificity concerning
how the factors will be applied in the
totality of the circumstances in the
proposed regulatory text. Following
receipt of public comments, DHS has
made changes to the provisions
addressing four out of the five statutory
minimum factors to identify information
relevant to such factors. In accordance
with those changes, DHS has made
changes to Form I–485 to implement
these provisions. The collection of this
relevant information will help officers
make public charge inadmissibility
determinations without being
unnecessarily burdensome for the
514 See
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public and for DHS, and will provide
clarity to the public regarding what
information is generally relevant and
needed to make public charge
inadmissibility determinations. In this
final rule, DHS also amended the
provisions relating to the consideration
of current and/or past receipt of public
benefits to provide additional clarity to
the public and to officers about what
will be considered when making a
public charge inadmissibility
determination in the totality of the
circumstances. In this final rule, DHS is
also retaining the regulatory content
stating that no one factor described in
this rule, other than the lack of a
sufficient Affidavit of Support Under
Section 213A of the INA, if required,
should be the sole criterion for
determining if a noncitizen is likely to
become a public charge.
DHS plans to issue guidance, as well
as periodically update guidance, that
will consider how these factors may
affect the likelihood at any time of
becoming a public charge based on an
empirical analysis of the best-available
data as appropriate.515 Furthermore,
USCIS plans to conduct robust training
for officers on the new regulations and
guidance. In general, officers receive
specialized training in every aspect of
the adjudicative process. Public charge
inadmissibility determinations are no
exception. Furthermore, there are
numerous levels of oversight and
quality control to provide guardrails and
ensure fair and consistent decisions.
However, because each noncitizen’s
individual circumstances constitute a
unique fact pattern, outcomes in public
charge determinations will
appropriately vary. USCIS continues its
ongoing data collection efforts on its
adjudications as well as other
information relevant to the adjudication,
to continually assess and improve the
adjudication processes, procedures, and
training.
Comment: Several commenters stated
that the five factors should be used
primarily as exculpatory or mitigating
considerations that help an applicant
overcome any potentially adverse public
charge issues. Another commenter
stated that the judicial and
administrative decisions that informed
the codification of the five factors in
1996 overwhelmingly found immigrants
not excludable based on one or more of
the factors when considering the totality
of circumstances. For example, the
commenter stated, in Matter of
Martinez-Lopez, the Attorney General
affirmed that the respondent was not
excludable as likely to become a public
515 See
8 CFR 212.22(b).
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charge because he was ‘‘an able-bodied
man in his early twenties, without
dependents; that he had no physical or
mental [disability] which might affect
his earning capacity, and that he had
performed agricultural work for nearly
10 years.’’ 516 In that case, the
respondent’s age, family, health,
employment, and support from a family
member were all favorable factors that
justified the finding that he was not
likely to become a public charge.517 The
commenter stated that in its review of
the legislative history of the public
charge ground of inadmissibility, the
Second Circuit confirmed that Congress
had ratified prior administrative and
judicial interpretations in 1996 when it
codified the five factors. The panel
explained: ‘‘. . . our review of the
historical administrative and judicial
interpretations of the ground over the
years leaves us convinced that there was
a settled meaning of ‘public charge’ well
before Congress enacted IIRIRA. The
absolute bulk of the case law, from the
Supreme Court, the circuit courts, and
the BIA interprets ‘public charge’ to
mean a person who is unable to support
herself, either through work, savings, or
family ties. See, e.g., [United States ex
rel. Iorio v. Day, 34 F.2d 920, 922 (2d
Cir. 1929)]; Harutunian, 14 I. & N. Dec.
at 588–89. Indeed, we think this
interpretation was established early
enough that it was ratified by Congress
in the INA of 1952. But the subsequent
and consistent administrative
interpretations of the term from the
1960s and 1970s remove any doubt that
it was adopted by Congress in
IIRIRA.’’ 518 The commenter stated that,
in other words, the five statutory factors
and totality of circumstances test
provided ways to demonstrate that an
applicant would not be inadmissible as
likely at any time to become a public
charge and were never intended to be a
list of negative and positive factors to be
weighed individually in every case.
Response: DHS believes that the
commenters’ suggested approach would
be inconsistent with the longstanding
approach to the public charge ground of
inadmissibility. The administrative
cases cited by the commenter do not
stand for the proposition that the factors
may only be used to mitigate adverse
circumstances. The adverse
circumstances themselves are part of the
totality of the circumstances
determination. DHS notes that the 2019
Final Rule, as one of the commenters
noted, had a list of negative and positive
516 10
I&N Dec. 409, 421 (BIA 1962).
I&N Dec. 409, 421 (BIA 1962).
518 New York v. DHS, 969 F.3d 42, 71 (2d Cir.
2020).
517 10
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factors, which the vast majority of
commenters found confusing and
which, in DHS’s experience, ultimately
did little to clarify the operation of the
totality of the circumstances analysis. In
the end, officers were still required to
assess the individual circumstances of
each case on their own merits. DHS has
not included such a list in this rule
because DHS believes that such an
approach would very likely result in
confusion, and because the statute does
not require it and does not indicate the
circumstances under which any of the
factors are to be treated positively or
negatively, how much weight the factors
should be given, or what evidence or
information is relevant to each of the
statutory factors. With this rule, DHS
intends to continue with the
longstanding approach set forth in the
1999 Interim Field Guidance, which is
a totality of the circumstances analysis.
Comment: One commenter stated that
officers should be directed to look at all
factors holistically, consistent with the
settled meaning of public charge and, on
balance, give due weight to all
circumstances that demonstrate an
individual would not be inadmissible as
likely at any time to become a public
charge.
Response: DHS appreciates the
commenter’s suggestion that officers
should be directed to review the factors
holistically and give due weight to all
circumstances that demonstrate an
individual would not be inadmissible
under the public charge ground. As
noted in the NPRM, a series of
administrative decisions have clarified
that a totality of the circumstances
review is the proper framework for
making public charge inadmissibility
determinations.519 In light of public
comments, DHS is clarifying what DHS
officers will consider in the totality of
the circumstances. The totality of the
circumstances includes all information
or evidence in the record before the
adjudicator relevant to a public charge
inadmissibility determination. DHS is
only collecting initial information from
applicants as related to the enumerated
factors as outlined in this rule and
accompanying form, and the only initial
supporting evidence required of
applicants is evidence that their
institutionalization violated Federal
law, if applicable. However, DHS may
generally consider all evidence and
information in the record that is
relevant to making a public charge
inadmissibility determination. Such
information or evidence may include
evidence that the noncitizen has been
certified or approved to receive public
519 See
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cash assistance for income maintenance
or long-term institutionalization. As
noted in response to the comment about
the past or current use of public benefits
by certain victims when not in an
immigration category exempt from the
public charge ground of inadmissibility,
such information or evidence may also
include mitigating information that the
applicant may wish to bring to DHS’s
attention. This approach is consistent
with the understanding of the totality of
the circumstances approach from the
administrative decisions, as well as with
the approach taken by the former INS
when it promulgated 8 CFR 245a.3.
3. Recommendations for the Creation of
Presumptions in the Totality of the
Circumstances Analysis
Comment: One commenter expressed
concern that the totality of the
circumstances standard would be
subject to extreme varying
interpretations in agency adjudications,
and that the implementation of the
standard could be subject to the
uncertainties of the political process.
Instead of using the totality of
circumstances standard, they proposed
that DHS create legal presumptions that,
barring extraordinary facts related to the
statutory factors, would simplify a
determination of whether a person is
likely to become a public charge. They
proposed that DHS create presumptions
regarding the Affidavit of Support
Under Section 213A of the INA and
assets and resources. The commenter
also suggested that, when a presumption
exists, a finding by DHS that a
noncitizen is likely to become a public
charge must explain the clear and
convincing factual evidence relevant to
the statutory factors that led to a
determination of inadmissibility.
Response: As addressed elsewhere in
this preamble, the plain language of
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), calls for the consideration of,
at a minimum, age, health, family status,
assets, resources and financial status,
and education and skills, and allows
DHS to also consider an Affidavit of
Support under Section 213A of the INA.
As DHS explained when responding to
comments suggesting that it create
weighted factors akin to those codified
in the 2019 Final Rule, DHS believes
that the totality of the circumstances
approach without assigning weight to
any particular facts or circumstance is
more effective than specific codified
presumptions (or weighted factors), as it
accounts for varying individual
circumstances of applicants. Such an
approach also enables officers to adapt
the public charge inadmissibility
determination to the specific facts of
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each case, and all relevant information
in the record. DHS has decided to
proceed without presumptions because
in many circumstances any specific
presumption (such as a presumption
with respect to assets and resources)
would likely be overcome in any event
(such as by an applicant’s age, health,
and/or education and skills). That said,
the NPRM and this final rule do state
that DHS will favorably consider in the
totality of the circumstances a sufficient
Affidavit of Support Under Section
213A of the INA, where such affidavit
is required. DHS believes that the longstanding totality of the circumstances
framework allows officers to adequately
consider the statutory minimum factors,
the Affidavit of Support Under Section
213A of the INA (when required), and
past and/or current receipt of public
benefits, in the totality of the
circumstances, while also allowing for
the consideration of empirical data,
where relevant and appropriate.
As indicated throughout this final
rule, DHS intends to issue guidance to
generally inform the predictive nature of
the factors set forth in this rule as an
objective aspect of the analysis,
declining to take a categorical approach
of weighing the relevant factors or
creating presumptions. DHS believes
this will best enable officers to fully
consider the applicant’s individual
circumstances and evidence presented,
thereby better achieving the goals of the
public charge inadmissibility
determination. Therefore, DHS declines
to codify specific regulatory
presumptions.
Comment: One commenter suggested
that DHS clearly state that incoming
international graduate students, medical
residents, physicians, scientists, and
researchers, with a letter from a
sponsoring institution stating that the
individual will meet federal income and
insurance requirements be given a
presumption that they are not likely to
become a public charge at any time
under the totality of circumstances.
Response: DHS believes that the longstanding totality of the circumstances
framework allows officers to consider
the statutory minimum factors and the
Affidavit of Support Under Section
213A of the INA (when required) in the
totality of the circumstances, while also
allowing for an empirical element as
appropriate. Even where an Affidavit of
Support Under Section 213A of the INA
is not required, DHS will consider the
other statutory factors concerning those
individuals, including education and
skills and assets, resources, and
financial status of those individuals.
DHS intends to issue guidance to
generally inform the predictive nature of
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the statutory factors as an objective
aspect of the analysis, declining to take
a categorical approach of weighting the
relevant factors or creating
presumptions. DHS believes this will
best enable officers to fully consider the
applicant’s individual circumstances
and evidence presented, thereby better
achieving the goals of the public charge
inadmissibility determination. However,
and as stated throughout this rule,
although DHS is not requiring the
submission of initial supporting
evidence (except in the case of disability
discrimination), and is not creating new
presumptions, DHS has the discretion to
consider relevant information in the
record in the totality of the
circumstances. Such information may
include a letter from a sponsoring
institution related to the applicant’s
income or benefits, since this
information would be relevant to the
public charge inadmissibility
determination, and the assets, resources,
and financial status factor, in particular.
Comment: One commenter suggested
DHS presume that a noncitizen applying
for an immigrant visa or adjustment of
status under section 203(c)(18) of the
INA, 8 U.S.C. 1153(c)(18), the Diversity
Visa Program, is unlikely to become a
public charge where the noncitizen
meets the educational and/or
employment experience requirements of
section 203(c)(2) of the INA, 8 U.S.C.
1153(c)(2).
Response: DHS believes that the longstanding totality of the circumstances
framework allows officers to consider
the statutory minimum factors and the
Affidavit of Support Under Section
213A of the INA (when required) in the
totality of the circumstances, while also
allowing for an empirical element as
appropriate. As stated previously, DHS
acknowledges that certain immigration
categories may require a separate
determination of education or work
experience, but notes that those specific
eligibility requirements are separate
from an inadmissibility determination.
The public charge inadmissibility
determination involves the
consideration of a variety of factors,
including education and skills, that are
considered in the totality of a
noncitizen’s circumstances, and DHS
will consider such factors for all
noncitizens subject to the public charge
ground of inadmissibility who are
applying for adjustment of status.
Comment: One commenter
recommended that DHS require officers
to give more weight to the education
and income factors in determining
whether a noncitizen is likely to become
a public charge, as a noncitizen’s
education and income levels are the
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most reliable predictors of whether a
noncitizen is likely to become a public
charge, according to an analysis of data
from the Survey of Income and Program
Participation (SIPP), from the U.S.
Census Bureau.
Response: DHS disagrees that the
education and income factors should be
given different weight than other factors
under the rule. DHS disagrees that the
SIPP data shows that a noncitizen’s
education and income level are the most
reliable predictors of whether a
noncitizen is likely to become a public
charge.
In support of their claims about the
relative significance of education in a
public charge inadmissibility
determination, the commenter pointed
to an analysis that examined SIPP data
to show welfare utilization by different
education levels. The analysis examined
benefit use by ‘‘non-citizen-headed
households’’ rather than by noncitizens
themselves.520 While that analysis
showed generally low use of SSI and
TANF by such households, even those
low rates of use are misleading in the
context of a public charge
inadmissibility determination. Under
both the 2019 Final Rule, favored by the
commenter, and this rule, only public
benefits received by the noncitizen,
where the noncitizen is listed as a
beneficiary, are considered in a public
charge inadmissibility determination.
Although the analysis cited by the
commenter attributes to the noncitizen
‘‘head of household’’ any receipt of
benefits by any member of the
household, including U.S. citizens, the
rates of SSI and TANF receipt by such
households, as such, does not
correspond to public charge
inadmissibility determinations under
both the 2019 Final Rule and this rule.
Since Congress sharply limited the
eligibility for public benefits for
noncitizens in PRWORA (and, as noted,
provided exceptions to the public
charge ground of inadmissibility for
most categories of noncitizens eligible
for benefits), the members of the ‘‘noncitizen-headed households’’ actually
receiving the SSI and TANF in this
analysis are most likely not the
noncitizen heading the household but
rather other members of the family, such
as U.S. citizen children. The analysis
cited by the commenter, however, only
looks at the education level of the head
of the household, rather than the
520 Steven Camarota and Karen Zeigler, Center for
Immigration Studies, ‘‘63% of Non-Citizen
Households Access Welfare Programs,’’ Table 6
(Nov. 20, 2018), https://cis.org/Report/63NonCitizen-Households-Access-Welfare-Programs
(last visited Aug. 16, 2022).
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education level of the person receiving
the benefits.
The analysis cited by the commenter,
in defense of the ‘‘household’’ approach,
argued that since eligibility for benefits
(or at least means-tested benefits) is
generally based on the income of the
entire household, and that since benefits
provided to a household member lessen
the need for other members of the
household to financially support them,
all benefit use in a household should be
attributed to all of the members. This is
in line with the suggestion of this
commenter that DHS should expand the
‘‘receipt (of public benefits)’’ definition
to attribute all benefit use by
dependents to a noncitizen applicant.
However, DHS largely rejected such an
approach to the attribution of benefit
use by others in the 1999 Interim Field
Guidance, wholly rejected it in the 2019
Final Rule, and has wholly rejected it
again in this rule. DHS responded to
those comments suggesting that benefit
use by other household members be
attributed to the applicant in the
Definitions section above. As other
analysts have noted, the ‘‘household’’ is
not the proper unit of analysis when
examining public benefits use,
particularly for households with a
mixture of native-born U.S. citizens,
naturalized or derived U.S. citizens, and
noncitizens.521
Since Congress sharply limited the
eligibility for public benefits for
noncitizens in PRWORA (and, as noted,
provided exceptions to the public
charge ground of inadmissibility for
most categories of noncitizens eligible
for benefits), the members of the ‘‘noncitizen-headed households’’ actually
receiving the SSI and TANF in this
analysis are most likely not the
noncitizen heading the household but
rather other members of the family, such
as U.S. citizen children. The analysis
cited by the commenter, however, only
looks at the education level of the head
of the household, rather than the
education level of the person receiving
the benefits.
Finally, although the commenter
recommended that DHS give significant
weight to education and income, the
commenter did not offer an analysis of
these factors relative to most of the other
521 See CATO Institute, ‘‘Center for Immigration
Studies Overstates Immigrant, Non-citizen, and
Native Welfare Use’’ (Dec. 6, 2018), https://
www.cato.org/blog/center-immigration-studiesoverstates-immigrant-non-citizen-native-welfare-use
(last visited Aug. 16, 2022). See also National
Academies of Sciences, Engineering, and Medicine,
‘‘The Economic and Fiscal Consequences of
Immigration’’ (2017), https://nap.national
academies.org/catalog/23550/the-economic-andfiscal-consequences-of-immigration (last visited
Aug. 16, 2022)
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statutory factors, or an analysis of the
actual likelihood that a noncitizen will
become a public charge based on these
factors.
In short, the analysis does not support
the commenter’s statement that
education is one of the most reliable
predictors (along with income) of
whether a noncitizen is likely at any
time to become a public charge.
As for the commenter’s statement that
income is one of the two reliable
predictors (alongside education) of
whether a noncitizen is likely to become
a public charge, the analysis cited by the
commenter did not contain any
quantitative evidence regarding the
connection between income and benefit
use.522
Finally, the commenter and the
analysis cited by the commenter does
not compare education and income to
other factors (such as age; health; skills;
and assets, resources, and financial
status) to predict a person’s likelihood
of becoming a public charge. While the
analysis cited by the commenter shows
that education might be important, it
does not show that it is more important
than any other factors, and as noted it
does not address income at all. In
summary, the analysis fails to support
the commenter’s conclusion that income
and education are the most reliable
predictors of public benefit use.
DHS does agree that evidence should
inform the public charge analysis and,
as indicated in the rule, DHS may
periodically issue guidance to officers to
inform the totality of the circumstances
assessment and such guidance will
consider how these factors affect the
likelihood that the noncitizen will
become a public charge at any time
based on an empirical analysis of the
best-available data as appropriate.523
4. Empirical Analysis of Best Available
Data
Comment: One commenter stated that
DHS could collect data on denials based
on the public charge ground of
inadmissibility, regularly analyze the
data for disproportionate negative
impacts, and use the data to better train
and supervise officers to avoid explicit
and implicit bias.
Response: USCIS adjudicative
systems do not currently allow the
agency to collect comprehensive data
concerning public charge
inadmissibility determinations in a fully
automated way, i.e., without at least
some manual review of administrative
522 The analysis included two tables examining
benefit use by households ‘‘with at least one
worker,’’ but did not include any analysis based on
household or individual income.
523 See 8 CFR 212.22(b).
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files. Only a portion of adjustment of
status applications are currently
adjudicated in our Electronic
Immigration System (ELIS), which
allows officers to indicate ‘‘212(a)(4)
Public Charge’’ as a denial reason. When
adjudicating applications in the older
CLAIMS3 system, officers are unable to
indicate whether a denial under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
was based on a review of the factors
identified in section 212(a)(4)(B) of the
INA, 8 U.S.C. 1182(a)(4)(B), as well the
receipt of any other factors identified in
a public charge rule, or was based on
the lack of a sufficient Affidavit of
Support Under Section 213A of the INA
without a manual review of the case.524
In addition, the CLAIMS3 system does
not track the race/ethnicity of applicants
(though other data points relevant to the
suggestion, including sex and country of
birth, are available). Once all varieties of
adjustment of status applications are
transitioned into ELIS, DHS will be able
to regularly analyze the data for
disproportionate negative impacts as the
commenter suggests.
Comment: Another commenter
emphasized that any analysis of various
statutory factors must include the
perspective of experts in those fields,
such as medical researchers for an
analysis of the health factor, and
cautioned against any approaches that
would consider a noncitizen as a
member of a specific group for purposes
of analysis, for example, noncitizens
with diabetes considered as an
aggregate. This commenter also
suggested DHS collect data on who is
determined to be a public charge so the
data can be examined by both DHS and
in collaboration with external scientific
collaborators. Another commenter
stated that DHS could adjust its
guidance and its standardized
procedures regarding the totality of the
circumstances based on the latest data
available and fine-tune the process as
needed.
Response: DHS appreciates the
support for using available data, as
appropriate, to guide the public charge
inadmissibility determination. DHS has
included a provision in the final rule
stating that DHS may periodically issue
guidance that will consider how these
factors affect the likelihood that the
noncitizen will become a public charge
524 DHS notes that the data presented in this rule
that reflects that no cases were ultimately denied
based on the totality of the circumstances analysis
under the 2019 Final Rule was obtained by
identifying cases denied under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), and manually
reviewing each of the cases to ascertain whether
they were denials based solely on the totality of the
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at any time based on an empirical
analysis of the best-available data as
appropriate.525 DHS also appreciates the
request to use external scientific
collaborators and notes that DHS has
internal economists that process both
internal and external data to determine
its utility for the public charge
inadmissibility determination, and may
engage the public in a variety of ways
in developing and seeking input on
guidance. Additionally, DHS
appreciates the suggestion that it use
external experts in particular regarding
the health factor. DHS notes that it will
collect information relevant to the
statutory minimum factors from existing
information collections (e.g.,
information pertaining to the health
factor will be obtained from Form I–693,
Report of Medical Examination and
Vaccination Record, which, when
completed in the United States, is
prepared by a civil surgeon). Civil
surgeons assess whether applicants have
any health conditions that could result
in exclusion from the United States.526
USCIS designates certain doctors (also
known as civil surgeons) to perform the
medical exam required for most
individuals applying for adjustment of
status in the United States; these
professionals, however, are not
employees of the U.S. government.
DHS also requested data and
information from the public during this
rulemaking process for consideration in
the development of this final rule. For
instance, as early as the ANPRM, DHS
solicited comment on a published
article that sought to use available data
and machine-learning tools to estimate
the probability of a noncitizen becoming
a public charge (as that term was
defined under the 2019 Final Rule).527
DHS also asked for any data and
information it should consider about the
direct and indirect effects of past public
charge policies in this regard. In
addition, DHS asked about data that it
could use to estimate any potential
direct and indirect effects, economic or
otherwise, of the public charge ground
of inadmissibility related to the 2019
Final Rule. DHS also specifically sought
information from State, territorial, local,
and Tribal benefit granting agencies
525 See
8 CFR 212.22(b).
Policy Manual, Vol. 8, Part C, Ch. 1,
‘‘Purpose and Background,’’ https://www.uscis.gov/
policy-manual/volume-8-part-c-chapter-1 (last
visited Aug. 16, 2022).
527 See ‘‘Public Charge Ground of
Inadmissibility,’’ 86 FR 47025, 47028 (Aug. 23,
2021) (citing Mitra Akhtari et al., ‘‘Estimating the
Empirical Likelihood of Becoming a ‘Public
Charge,’ ’’ N.Y.U. J. Legis. & Pub. Pol’y Quorum
(Aug. 2, 2021), https://nyujlpp.org/quorum/
estimating-the-empirical-likelihood-of-becoming-apublic-charge/ (last visited Aug. 17, 2022)).
526 USCIS
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regarding impacts of the 2019 Final Rule
on the application for or disenrollment
from public benefit programs. The
majority of the data received concerned
the chilling effects of the 2019 Final
Rule.
Regardless, DHS will consider the
request to collect and analyze data
concerning who is likely to become a
public charge. Once all varieties of
adjustment of status applications are
transitioned into ELIS, DHS may be able
to more easily analyze the data and
potentially share it with external
analysts to the extent appropriate and
consistent with law. DHS may also
consider adjusting its policy, if
appropriate, in response to new data
and analyses.
K. Receipt of Public Benefits While
Noncitizen Is in an Immigration
Category Exempt From Public Charge
Inadmissibility
Comment: One commenter did not
agree with this exemption and
recommended that DHS consider a
noncitizen’s past and current use of
public benefits, regardless of the
noncitizen’s previous or current
immigration status; the commenter
stated that not considering all benefits
received would require officers to ignore
relevant information with significant
evidentiary value for the determination
of whether the noncitizen will be able
to provide for their own needs in the
future.
Response: DHS disagrees that officers
should consider public benefits received
while a noncitizen is in an immigration
category exempt from the public charge
ground of inadmissibility. Although
many noncitizens who are eligible for
Federal, State, Tribal, territorial, or local
benefits receive those benefits while
present in an immigration classification
or category that is exempt from the
public charge ground of inadmissibility
or after the noncitizen obtained a waiver
of the public charge ground of
inadmissibility, such noncitizens may
later apply for an immigration benefit
that subjects them to the public charge
ground of inadmissibility. For example,
a noncitizen admitted as a refugee may
have received benefits on that basis but
may later apply for adjustment of status
based on marriage to a U.S. citizen and
will be subject to the public charge
ground of inadmissibility.
The 1999 Interim Field Guidance did
not expressly address how to treat an
applicant’s receipt of public benefits
while present in an immigration
category that is exempt from the public
charge ground of inadmissibility or for
which the noncitizen received a waiver
of the public charge ground of
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inadmissibility. The 2019 Final Rule,
however, excluded from consideration
the receipt of such public benefits in
public charge inadmissibility
determinations.528
Congress, not DHS, has specified
which categories of noncitizens are
subject to or are exempt from the public
charge ground of inadmissibility.
Congress did not exempt from the
public charge ground of inadmissibility
noncitizens who are applying for
admission or adjustment in a category
subject to the public charge ground but
who, in the past, were in a category of
noncitizen exempt from the ground.
However, as DHS concluded in 2019,
DHS believes that it has the authority,
in promulgating the public charge
inadmissibility framework, to determine
which public benefits should be
considered as part of a public charge
inadmissibility determination.529
A review of the categories of
noncitizens that are exempt from the
public charge ground of inadmissibility
or eligible for waivers provides an
indication of the concerns that Congress
had when establishing these exemptions
and waivers. The categories comprise a
long list of vulnerable populations or
groups of noncitizens of particular
policy significance for the United
States.530 Congress expressed a policy
preference that individuals in these
categories should be able to receive
public benefits without risking adverse
immigration consequences. DHS
believes that Congress did not intend to
later penalize such noncitizens for using
benefits while in these categories
because doing so would undermine the
intent of their exemption. Given the
nature of these populations and the fact
that if they were applying for admission
or, as permitted, adjustment of status
under those categories they would be
exempt from the public charge ground
of inadmissibility, it is appropriate for
DHS to exclude from consideration
those benefits that an applicant received
while in a status that is exempt from the
public charge ground of inadmissibility.
This rule will prohibit DHS from
considering any public benefits received
by a noncitizen during periods in which
the noncitizen was present in the
United States in an immigration
category that is exempt from the public
charge ground of inadmissibility, as set
528 See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292, 41501 (Aug. 14, 2019).
529 See INA sec. 103, 8 U.S.C. 1103; see also
‘‘Inadmissibility on Public Charge Grounds,’’ 84 FR
41292 (Aug. 14, 2019).
530 For example, refugees, asylees, Afghans and
Iraqis employed by the U.S. government, special
immigrant juveniles, Temporary Protected Status
recipients, and trafficking and crime victims.
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forth in proposed 8 CFR 212.23(a), or for
which the noncitizen received a waiver
of public charge inadmissibility, as set
forth in proposed 8 CFR 212.23(c).531
However, under the rule, any public
cash assistance for income maintenance
or long-term institutionalization at
government expense received prior to or
subsequent to the noncitizen’s being in
an exempt status would be considered
in a public charge inadmissibility
determination.
Comment: Many commenters
supported DHS’s proposal that benefits
received while in an exempt status will
not be considered in a public charge
inadmissibility determination. However,
a number of those commenters
recommended that DHS also include
other noncitizens such as those granted
withholding of removal or deportation,
Deferred Enforced Departure (DED),
deferred action, and parolees among
those for whom benefits received will
not be considered in a public charge
inadmissibility determination because
immigrants granted such humanitarian
relief are qualified immigrants for many
federal and State benefits. The
commenters also recommended DHS
clarify that officers may not consider
underlying reasons for which these
exempt groups receive benefits and
instead expressly state that these
benefits will not be considered in a
public charge inadmissibility
determination, to mitigate the risk of
officers misapplying this provision or
allowing the officers’ personal bias or
animus against applicants to affect the
determination.
Response: DHS agrees with the many
commenters who support exempting
consideration of the receipt of public
benefits while a noncitizen is in a
category exempt from a public charge
inadmissibility determination. However,
DHS disagrees with the
recommendation to expand this
exemption to other populations such as
those granted withholding of removal or
deportation, DED, deferred action or
other general parolees. Congress
expressly exempted certain vulnerable
populations from the public charge
ground of inadmissibility by statute
such as refugees, asylees, and applicants
for admission based on refugee or asylee
status.532 The categories comprise a long
list of vulnerable populations or groups
of noncitizens of particular policy
significance for the United States.533
531 See
8 CFR 212.22(a) and (c).
INA secs. 207, 208, and 209; 8 U.S.C.
1157, 1158, and 1159.
533 For example, refugees, asylees, Afghans and
Iraqis employed by the U.S. government, special
immigrant juveniles, Temporary Protected Status
recipients, and trafficking and crime victims.
532 See
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The examples of categories mentioned
by commenters are not populations that
Congress has chosen to expressly
exempt from the public charge ground
of inadmissibility. Thus, DHS will not
further expand the population of
noncitizens whose receipt of public
benefits will not be considered in a
public charge ground of inadmissibility.
DHS also disagrees with the
commenters who recommend a
clarification that officers may not
consider underlying reasons for which
these exempt groups receive benefits.
DHS does not believe that rule requires
any further clarification as the language
in 8 CFR 212.22(d) is clear, precise, and
absolute in stating that DHS will not
consider any public benefits received by
a noncitizen during periods in which
the noncitizen was present in the
United States in an immigration
category that is exempt from the public
charge ground of inadmissibility or for
which the noncitizen received a waiver
of public charge inadmissibility in a
public charge inadmissibility
determination.534 If benefits were
received by a noncitizen when they
were in one of the exempt categories or
categories eligible for an inadmissibility
waiver identified in 8 CFR 212.23,
USCIS will not consider the benefits
they received while in those categories.
When they apply for admission or
adjustment of status in a category to
which the public charge ground of
inadmissibility applies, DHS will still
consider the other factors set forth in
this rule in the totality of the
circumstances in order to determine
whether the noncitizen is likely at any
time to become a public charge. As
stated throughout this final rule, no
single factor alone will be dispositive,
and to the extent there is evidence of
temporary health issues USCIS
adjudicators will be able to take the
surrounding circumstances into
consideration.
L. Receipt of Public Benefits by Those
Granted Refugee Benefits
Comment: Many commenters
supported the exclusion of the receipt of
public benefits by those granted refugee
benefits from consideration under a
public charge inadmissibility
determination, as it will provide
vulnerable populations with safer access
to the benefits they may need to recover
from the conditions that qualified them
for humanitarian protection.
Response: DHS agrees that the receipt
of public benefits by those granted
refugee benefits should not be
considered in a public charge
534 See
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inadmissibility determination. Under
this rule, when making public charge
inadmissibility determinations, DHS
will not consider any public benefits
that were received by noncitizens who
are eligible for resettlement assistance,
entitlement programs, and other benefits
available to refugees admitted under
section 207 of the INA, 8 U.S.C. 1157,
including services described under
section 412(d)(2) of the INA, 8 U.S.C.
1522(d)(2), provided to an
‘‘unaccompanied alien child’’ as defined
under section 462(g)(2) of the HSA, 6
U.S.C. 279(g)(2).535 This provision
would only apply to those categories of
noncitizens who are eligible for all three
of the types of support listed
(resettlement assistance, entitlement
programs, and other benefits) typically
reserved for refugees.
As these commenters stated, DHS
believes that Congress intended to
encourage these vulnerable populations
to apply for and receive the benefits
they may need to recover from the
conditions that qualified them for
humanitarian protection. For example,
the U.S. government has resettled and
continues to resettle our Afghan allies.
This is a population invited by the
government to come to the United States
at the government’s expense in
recognition of their assistance over the
past two decades or their unique
vulnerability were they to remain in
Afghanistan.536 In recognition of the
unique needs of this population and the
manner of their arrival in the United
States, Congress explicitly extended
benefits normally reserved for refugees
to our Afghan allies. DHS serves as the
lead for coordinating the ongoing
efforts, across the Federal Government,
to support vulnerable Afghans under
Operation Allies Welcome (OAW). As
such, DHS has been actively
communicating and promoting the
various benefits that this vulnerable
population may be eligible for
depending on their admission, status in
the United States, or both, including
SSI, TANF, and various other public
benefits.
Similarly, the U.S. government has
expressed its strong concern for the
victims of severe forms of trafficking in
persons and a dedication to stabilizing
them. The Trafficking Victims
Protection Act (TVPA), part of the
Victims of Trafficking and Violence
Protection Act of 2000, was enacted to
strengthen the ability of law
535 See
8 CFR 212.22(e).
‘‘Operation Allies Welcome’’ (2021),
https://www.dhs.gov/sites/default/files/
publications/21_1110-opa-dhs-resettlement-of-atrisk-afghans.pdf (last visited Aug. 16, 2022).
enforcement agencies to detect,
investigate, and prosecute trafficking in
persons, while offering protections to
victims of such trafficking, including
temporary protections from removal,
access to certain federal and State
public benefits and services, and the
ability to apply for T nonimmigrant
status. With the passage of the TVPA,
Congress intended to protect victims of
trafficking and to take steps to try to
meet victim’s needs regarding health
care, housing, education, and legal
assistance.537
DHS strongly encourages these
populations to access any and all
services and benefits available to them
without fear of a future negative impact.
Thus, this rule will exempt from
consideration receipt of public benefits
by those granted refugee benefits by
Congress, even when those individuals
are not refugees admitted under section
207 of the INA, 8 U.S.C. 1157, such as
the Afghans that have been recently
resettled in the United States pursuant
to OAW and noncitizen victims of a
severe form of trafficking in persons.
M. Denial Decision
Comment: Many commenters
supported DHS’s proposed language
that every denial decision be in writing,
reflect consideration of each of the five
statutory minimum factors, as well as
the affidavit of support, and articulate a
reason for the determination, as it will
reduce the risk of officers applying the
wrong standards and provide sufficient
justification for the decision.
Response: DHS appreciates
commenters’ support and believes that
requiring every written denial decision
issued by USCIS reflect consideration of
each of the factors outlined in this rule
and specific articulation of the reasons
for the officer’s determination will help
ensure that public charge
inadmissibility determinations will be
fair, transparent, and consistent with the
law.
Comment: One commenter
recommended DHS maintain these
records in a way that allows public
access to the decision-making behind
the denials and tracking of outcomes
through Freedom of Information Act
requests.
Response: DHS will not be
establishing a mechanism in which the
public may request all denials related to
denials for adjustment of status under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), due to the privacy
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implications and potential
administrative burden.
Comment: One commenter stated that
DHS should consider including a
specific requirement that written denial
decisions include documentation that
age and health or disability status were
not unduly weighted to ensure that
denials are not discriminatory to
children, including those with special
health care needs or disabilities.
Another commenter recommended that
all denial decisions be written in plain
language or Easy Read format so that the
decisions may be read by immigrants
with significant cognitive disabilities or
who do not speak or read English well.
Response: DHS agrees that denial
decisions should include relevant
information that reflects consideration
of each of the factors outlined in this
rule and specific articulation of the
reasons for the officer’s determination.
DHS notes that, as discussed above,
public charge inadmissibility
determinations are based on the totality
of a noncitizen’s circumstances. No one
factor described in this rule, other than
the lack of a sufficient Affidavit of
Support Under Section 213A of the INA,
if required, should be the sole criterion
for determining if a noncitizen is likely
to become a public charge.538 Although
the commenter expressed concern that
an officer may unduly weigh age and
health or disability status unfairly for
children, including those with special
health care needs or disabilities, DHS
believes that the regulatory language
directing officers to demonstrate their
consideration of each factor, including
age and health, already addresses this
concern.
To the suggestion that DHS issue
denial decisions in a plain, easy to read
format, DHS notes that it is bound by
the Plain Writing Act of 2010,539 which
requires DHS, in issuing ‘‘any document
that is necessary for obtaining any
Federal Government benefit or service
. . .’’ 540 to use ‘‘writing that is clear,
concise, well-organized, and follows
other best practices appropriate to the
subject or field and intended
audience.’’ 541 Consistent with the Plain
Writing Act of 2010, USCIS has an
internal plain language program to help
improve the clarity of USCIS
communications. USCIS follows the
policies and procedures established by
the USCIS plain language program for
all of its denial decisions so that they
are easy to read and understand, and
includes citations to relevant sections of
538 See
536 DHS,
537 See
Victims of Trafficking and Violence
Protection Act of 2000, Public Law 106–386, sec.
102(b), 114 Stat. 1464, 1466 (2000).
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8 CFR 212.22(b).
Law 117–274 (Oct. 13, 2010).
540 Public Law 117–274 Sec. 3(2) (Oct. 13, 2010).
541 Public Law 117–274, Sec. 3(3) (Oct. 13, 2010).
539 Public
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law or court decisions to support
officers’ decisions.
Comment: One commenter
recommended that officers should be
required to provide a written
explanation that specifically articulates
each factor considered in the
determination and the reason for the
officer’s determination in all cases in
which the public charge ground of
inadmissibility applies, regardless of
whether the adjudicator finds that the
noncitizen is inadmissible under the
public charge ground or not. The
commenter reasoned that only requiring
a written analysis for cases where a
noncitizen is found to be inadmissible
under the public charge ground of
inadmissibility, coupled with USCIS’
initiatives to address the agency backlog
and impose new internal cycle time
goals,542 would incentivize officers to
provide positive public charge
inadmissibility determinations for
noncitizens who may not warrant such
determination.
Response: The commenter’s argument
that requiring a written analysis by an
officer for a determination that a
noncitizen is not inadmissible under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), coupled with USCIS’
internal goals, incentivizes officers to
fail to correctly apply the law is without
basis. The requirement that officers
write decisions explaining the specific
reasons for denials of adjustment of
status is a long-standing requirement
that has been in the regulation for
decades.543 This rule does not expand
or contract the circumstances when
officers are required to issue a written
decision explaining the specific reason
for a decision regarding the public
charge ground. This rule adds the
requirement that officers include a
discussion of each of the statutory
factors in the already required written
denial decision.
DHS does not agree that the longstanding requirement that officers
explain in writing the specific reasons
for denials inappropriately incentivizes
officers to issue approvals. First, a
requirement for an administrative
agency to provide notice and an
opportunity to respond is a common
feature of administrative practice, and is
intended to promote fairness and
consistency, not to incentivize
542 See USCIS, ‘‘USCIS Announces New Actions
to Reduce Backlogs, Expand Premium Processing,
and Provide Relief to Work Permit Holders’’ (Mar.
29, 2022), https://www.uscis.gov/newsroom/newsreleases/uscis-announces-new-actions-to-reducebacklogs-expand-premium-processing-and-providerelief-to-work (last visited Aug. 16, 2022).
543 8 CFR 103.3(a)(1)(i); see also ‘‘Oral Argument
and Appeals,’’ 31 FR 3062 (Feb. 24, 1966).
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particular outcomes. Second, USCIS
officers are dedicated to USCIS’ core
values of integrity, respect, innovation,
and vigilance, and, to that end, officers
strive to deliver fair decisions that are
consistent with the law, regardless of
internal cycle time goals. USCIS officers
receive specialized training and
regularly adjudicate a variety of
immigration benefit applications.
Further, requiring written decisions
stating the specific reasons for approvals
in all cases where a USCIS officer
determines that an applicant is not
inadmissible under the public charge
ground would be unnecessarily
burdensome and inconsistent with
USCIS practice for all other grounds of
inadmissibility. By granting a person
adjustment of status to lawful
permanent resident, the USCIS officer is
confirming that they have reviewed the
eligibility requirements and any
applicable grounds of inadmissibility,
including the public charge ground of
inadmissibility, where applicable, and
determined that the applicant is
admissible to the United States.
N. Information Collection (Forms)
Comment: Several commenters
recommended that DHS not change the
initial evidence adjustment of status
applicants currently provide on Form I–
485 and recommended against
additional questions being added to the
form, stating that all of the information
needed is already included in the
information collection.
Some commenters stated that if DHS
chooses to include any questions, DHS
should ensure that any additional
questions are on their face related to a
statutory ground and do not elicit
potentially extraneous information or
evidence, and recommended that
applicants be given an opportunity to
provide a substantive answer to explain
any additional circumstances. One of
those commenters also suggested that
the instructions to Form I–485 should
provide a detailed explanation related to
which noncitizen applicants are exempt
from the public charge ground for
inadmissibility.
Other commenters stated that asking
if a person has used public assistance
from any source is overly broad and
irrelevant and creates unnecessary work
for applicants, officers, and State benefit
granting agencies, as well as
contributing to the chilling effect.
Response: DHS disagrees that
additional questions are not required on
Form I–485. DHS reviewed the current
form and has decided to add several
additional questions regarding the
factors used to make a public charge
inadmissibility determination that were
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not already included in the form’s
information collection, including
information about an applicant’s
household size, income, assets,
liabilities, an applicant’s education or
skills, an applicant’s use of TANF or
SSI, and any long-term
institutionalization of the applicant at
government expense. The form also
informs applicants that additional space
is available if applicants need to provide
more information. Additionally, USCIS
policy instructs officers to issue
Requests for Evidence in cases involving
insufficient evidence before denying
such cases unless the officer determined
that there was no possibility that the
benefit requestor could overcome a
finding of ineligibility by submitting
additional evidence.544 DHS did not
include additional questions or request
additional evidence from applicants that
is not related to a public charge
inadmissibility determination. In order
to reduce the burden on applicants not
subject to section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), DHS also included
a question asking applicants if they are
subject to the public charge ground of
inadmissibility and, if not, directing
them that they may skip the subsequent
related questions.
DHS disagrees that a full list of
applicants who are not subject to
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), should be included in the
Form I–485 instructions. New 8 CFR
212.23 lists 29 classes of noncitizens
who are exempt from the public charge
ground of inadmissibility. Including this
full list in the form instructions would
impose a burden on all applicants
reviewing them. DHS instead included
the list in the regulations, and will
include a list of exemptions within subregulatory guidance.
DHS agrees that asking applicants
within the form if they have used any
public assistance is overly broad and
would contribute to chilling effects.
DHS therefore limited any additional
questions to the use of public benefits
that would be considered in a public
charge inadmissibility determination:
TANF; SSI; State, Tribal, territorial, or
local cash benefit programs for income
maintenance (which often are called
‘‘General Assistance’’ in the State
context but also exist under other
names); and long-term
institutionalization at government
expense. Due to the variety of State,
Tribal, territorial, or local noncash
benefit programs, DHS is unable to
544 See USCIS Policy Manual, Vol. 1, Part E, Ch.
6, Section F, ‘‘Requests for Evidence and Notices of
Intent to Deny,’’ https://www.uscis.gov/policymanual/volume-1-part-e-chapter-6 (last visited
Aug. 16, 2022).
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provide within the form or instructions
an exhaustive list of noncash public
benefits programs, but plans to issue
future guidance with some examples to
address widely used noncash programs
such as SNAP, CHIP, and Medicaid,
other than Medicaid for long-term
institutionalization.
Comment: One commenter
recommended that USCIS continue to
use the questions included in the
current Form I–864 and Form I–864A to
calculate household size, income from
the household, and, if needed, assets
from the household. The commenter
stated that this information should only
be collected in cases subject to the
public charge ground of inadmissibility
in which an Affidavit of Support is not
otherwise filed.
The commenter also stated that USCIS
should consider whether the creation of
a Form I–485 supplement form to
collect this information is warranted in
this specific scenario in order to provide
both the agency and applicants with a
simple, efficient, and familiar method of
providing required information and
achieves DHS’s goal of not unduly
imposing barriers on noncitizens
seeking adjustment of status or
admission to the United States as lawful
permanent residents.
Response: DHS notes that no changes
have been proposed to Form I–864,
Affidavit of Support Under Section
213A of the INA, or Form I–864A,
Contract Between Sponsor and
Household Member. DHS also notes that
the Affidavit of Support Under Section
213A of the INA and the Contract
Between Sponsor and Household
Member collect information regarding
the household size, income, and assets
of the sponsor and household members,
respectively. These forms do not collect
information regarding the intending
immigrant. DHS also notes that some
noncitizens applying to adjust status to
lawful permanent resident may not be
required to submit an Affidavit of
Support Under Section 213A of the INA
but are still subject to the public charge
ground of inadmissibility, for example,
applicants applying under the Diversity
Visa program.
In the NPRM, DHS proposed changes
to Form I–485 to include questions that
would collect public charge-related
information from applicants who are
subject to section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4). The first of these
questions asks applicants to indicate if
they are subject to the public charge
ground of inadmissibility, and if they
are not, directs that they may skip the
subsequent related questions. Therefore,
noncitizens who are not subject to a
public charge inadmissibility
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determination, which includes most
noncitizens not required to file an
Affidavit of Support Under Section
213A of the INA, will not need to
provide information specifically related
to making this determination.
DHS has determined that the Form I–
485 sufficiently collects information
regarding the factors that will be
considered in a public charge
inadmissibility determination. Further,
DHS believes the creation of a
supplement to Form I–485 would
increase the burden on the agency and
applicants, as it would require
additional consideration by
stakeholders and officers in order to
complete and submit any additional
evidence. Therefore, DHS believes that
not creating a supplement for Form I–
485 is reducing barriers on noncitizens
seeking adjustment of status.
DHS has reduced the estimated time
burden for completing the revised Form
I–485 from 7.92 hours to 7.16 hours.
Open-ended questions requiring
narrative-style responses that were
proposed in the information collection
instrument (Form I–485) associated with
the NPRM have been changed to
multiple-choice style questions that will
require less time for an applicant to
answer.
O. Bonds and Bond Procedures
Comment: One commenter stated that
if a sponsor on an Affidavit of Support
Under Section 213A of the INA cannot
meet the threshold amount for income/
assets and the applicant has no
qualifying joint sponsor, the applicant
should be permitted to post a negligible
bond amount of $100 in lieu of
providing tax returns or pay stubs in
order to overcome the public charge
ground of inadmissibility.
Response: DHS disagrees that it
should permit an applicant for
adjustment of status who has failed to
submit a required Affidavit of Support
Under Section 213A of the INA, and is
therefore per se inadmissible under
section 212(a)(4)(A) of the INA, 8 U.S.C.
1182(a)(4)(A), to post a negligible bond
of $100 to overcome inadmissibility. As
noted above, under section 213A of the
INA, 8 U.S.C. 1183a, most family-based
immigrants and certain employmentbased immigrants are required to submit
an Affidavit of Support Under Section
213A of the INA to avoid being found
inadmissible under section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4).545 Under
section 213 of the INA, 8 U.S.C. 1183,
subject to the requirement to submit an
Affidavit of Support Under Section
213A of the INA, a noncitizen who is
inadmissible under only section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
can be admitted at DHS’s discretion
upon the giving of a suitable and proper
bond, in the amount and conditions set
by DHS in its discretion. Additionally,
under this rule, and for consistency
with prior agency practice with respect
to the bond amount (with the exception
of the period in which the 2019 Final
Rule was in effect), the minimum bond
amount that DHS will set is $1,000,
which reflects the minimum amount to
ensure that Federal, State, local, and
tribal governments are held harmless
against the noncitizen becoming a
public charge.546 DHS believes that
setting the bond amount to a minimum
of $1,000 is a reasonable starting point.
Accordingly, DHS declines to set the
bond amount at $100.
Comment: One commenter appears to
suggest that immigration bonds should
be used to pay for such medical care
and other social welfare debts incurred
by those who enter the United States.
Response: To the extent that this
commenter is suggesting that DHS
utilize public charge bonds to ensure
that any medical expenses and benefits
paid by the government are reimbursed,
DHS notes that the purpose of a public
charge bond is to hold the United States,
States, territories, counties, towns, and
municipalities, and districts harmless
against bonded immigrants becoming
public charges.547 Consistent with this
purpose, under the rule, receiving
public cash assistance for income
maintenance or long-term
institutionalization at government
expense, would result in a breach
determination.548 This provision
ensures that the purpose of public
charge bonds is carried out.
Comment: One commenter agreed that
DHS should utilize its discretion to offer
bonds, noting that this would only
impact a small number of cases.
Response: DHS agrees that it should
exercise its bond authority under
section 213 of the INA, 8 U.S.C. 1183,
and has included a provision in this
rule that would permit officers to
consider offering public charge bonds,
in their discretion, to adjustment of
status applicants inadmissible only
under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4).549 To the extent that
this commenter suggests that DHS limit
offering bonds to a small number of
cases, DHS notes that the decision to
546 8
545 See
INA sec. 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D); INA sec. 213A(a)(1), 8 U.S.C.
1183a(a)(1).
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55577
CFR 213.1(c).
sec. 213, 8 U.S.C. 1183.
548 8 CFR 103.6(c).
549 8 CFR 213.1.
547 INA
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offer an adjustment of status applicant
a public charge bond is determined on
a case-by-case basis in the exercise of
discretion. Each decision is an
individualized determination and as a
result, DHS will not mandate that its
bond authority be limited only to a
specific number of cases, as DHS
believes that this would unreasonably
exclude from the possibility of a public
charge bond adjustment of status
applicants who might otherwise warrant
our discretion.
Comment: Some commenters
disagreed with DHS’s statement in the
NPRM that existing public charge bonds
are adequate and opposed DHS’s
decision against adding any public
charge bond provisions to existing
regulations. One commenter reasoned
that the existing bond regulations are
only adequate if DHS intends to never
issue public charge bonds. Other
commenters stated that public charge
bonds are tools to ensure compliance
with the immigration laws and that, by
not amending the regulations to include
public charge bond provisions, DHS is
ignoring its discretion under this
authority without justification, and in
the process, eviscerating the public
charge ground of inadmissibility. These
commenters requested that DHS
reconsider its position on public charge
bonds and amend the regulations in the
same manner as was found in the 2019
Final Rule.
Response: DHS disagrees that this rule
ignores its public charge bond authority
or eliminates a key part of public charge
ground of inadmissibility. On the
contrary, DHS acknowledged its
discretionary bond authority in the
NPRM,550 and DHS reiterates, in this
rule, that it has authority, under section
213 of the INA, 8 U.S.C. 1183, to
consider whether to exercise its
discretion on a case-by-case basis to
admit noncitizens who are inadmissible
only under section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), upon the
submission of a suitable and proper
public charge bond. But DHS
acknowledges that, as noted by
commenters, existing regulations that
implement the statutory public charge
bond provisions do not address the
manner in which USCIS will exercise
this discretion.
Accordingly, following consideration
of public comments received, DHS has
determined, similar to the 2019 Final
Rule, that it is appropriate to include
provisions in the rule pertaining to
USCIS’ exercise of its public charge
bond authority in adjustment of status
applications, as well as provisions
pertaining to public charge bond
cancellation and breach determination.
These provisions will ensure that USCIS
is exercising its discretionary public
charge bond authority in the context of
adjustment of status applications, and
will ensure that public charge bonds
remain operationally feasible in such
cases.
Under this rule, DHS will consider
offering adjustment of status applicants
who are inadmissible only under
section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), to submit a bond as a
condition of adjustment of status.551
When USCIS determines, in its
discretion, to offer an adjustment of
status applicant a public charge bond,
USCIS will set the bond amount at an
amount of no less than $1,000 and
provide instructions for the submission
of a public charge bond.552 USCIS will
provide officers with guidance and
training to ensure that this discretionary
authority is exercised in a fair, efficient,
and consistent manner.
P. Economic Analysis Comments &
Responses
Comment: One commenter remarked
that while the rule seems to have a high
cost for codifying a policy already in
place, the benefits of the rule outweigh
the costs. The commenter stated that
most changes do not appear to have an
associated cost, but in turn create
benefits for noncitizens without taking
away their rights, and that the benefits
of changes that do have associated costs
outweigh those costs.
Response: DHS acknowledges this
commenter’s support of the rule.
However, as explained at length in the
section below on E.O. 12866 (Regulatory
Planning and Review) and E.O. 13563
(Improving Regulation and Regulatory
Review), DHS is unable to provide a full
quantified estimate of the rule’s costs
and benefits due to data availability and
the qualitative nature of some of the
costs and benefits identified for this
final rule.
Comment: One commenter cited the
estimated savings to States’ socialwelfare budgets from the 2019 Final
Rule and stated that the proposed rule
ignores substantial effects on the States,
costing significant funds rather than
conserving Medicaid and related socialwelfare budgets. An advocacy group, a
State representative, and some State
Attorneys General stated that while DHS
focuses on a reduction of transfer
payments as a net negative, it fails to
explore the savings to State or Federal
taxpayers, and that the 2019 Final Rule
551 See
550 87
8 CFR 213.1(a) and (c).
552 8 CFR 213.1(a) and (c).
FR at 10597 (Feb. 24, 2022).
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estimated an approximate savings for
States of $1.01 billion annually. The
commenters remarked that any
reduction in payments due to a DHS
rule concerning implementation of the
public charge ground of inadmissibility
must result in a savings to taxpayers
that is quantifiable and should be
included to provide a more complete
analysis.
Response: As an initial matter, to the
extent the commenters suggest that the
2019 Final Rule is the existing baseline
against which the effects of this rule
should be evaluated, DHS disagrees.
The 2019 Final Rule is no longer in
effect. The 2019 Final Rule does not
represent the agency’s best assessment
of ‘‘the way the world would look
absent the proposed action,’’ which is
the OMB Circular A–4 553 definition of
an analysis’ baseline. Therefore, the
2019 Final Rule is not the baseline
against which DHS is directed to
compare the rule’s effects for purposes
of OMB Circular A–4.
The distinction does not affect DHS’s
analysis, however, because in both the
NPRM and Section IV.A.5.d of this Final
Rule, DHS has considered a similar rule
to the 2019 Final Rule as a regulatory
alternative (the Alternative) and
discussed its effects. Specifically, a
decrease in State public benefit
expenditures due to chilling effects was
discussed as a transfer payment in that
section. Transfer payments are
reallocations of money from one group
to another that do not affect total
resources. A reduction of transfer
payments is a reallocation of money
from individuals to Federal or State
governments.
The commenter stated that the 2019
Final Rule estimated an approximate
savings for States of $1.01 billion
annually. As discussed in the 2019
Final Rule, however, the $1.01 billion
was the estimated State-level share of
reduction in the annual transfer
payments, not an estimated net savings,
and represents a significantly broader
effect than any disenrollment that
would result among people actually
regulated by the rule.
DHS acknowledged in the 2019 Final
Rule that the reduction in transfer
payments due to disenrollment or
forgone enrollment in a public benefit
program would have lasting impacts on
the health and safety of our
communities. As described in Section
IV.A.5.d. of this rule, disenrollment or
forgone enrollment in public benefit
programs due to fear or confusion—i.e.,
553 See OMB, ‘‘Circular A–4’’ (Sept. 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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the chilling effect—could lead to
worsening health outcomes, increased
use of emergency rooms and emergency
care as a method of primary health care
due to delayed treatment, increased
prevalence of communicable diseases,
increased uncompensated care,
increased rates of poverty and housing
instability, and reduced productivity
and educational attainment. DHS also
recognized that reductions in Federal
and State transfers under Federal benefit
programs may have impacts on State
and local economies, large and small
businesses, and individuals. For
example, the chilling effect might result
in reduced revenues for healthcare
providers participating in Medicaid,
companies that manufacture medical
supplies or pharmaceuticals, grocery
retailers participating in SNAP,
agricultural producers who grow foods
that are eligible for purchase using
SNAP benefits, or landlords
participating in federally funded
housing programs.554
The commenter also stated that any
reduction in payments due to a DHS
rule concerning implementation of the
public charge ground of inadmissibility
must result in a savings to taxpayers.
DHS disagrees that any reduction in
public benefit payments must result in
a savings to taxpayers. Transfer
payments associated with disenrollment
or forgone enrollment in public benefit
programs represents only one of many
potential consequences for taxpayers.
The reduction in public benefit
payments could be reallocated in many
different ways. It is out of the scope of
this rule to determine how any
reduction in public benefit payments is
ultimately reallocated.
This public charge rule intends to
administer the statute faithfully and
fairly, while avoiding predictable
adverse and indirect consequences such
as disenrollment or forgone enrollment
by individuals who would not be
subject to the public charge ground of
inadmissibility in any event. The 2019
Final Rule was associated with
widespread indirect effects, primarily
with respect to those who were not
subject to the 2019 Final Rule in the
first place, such as U.S.-citizen children
in mixed-status households, longtime
lawful permanent residents who are
only subject to the public charge ground
of inadmissibility in limited
circumstances, and noncitizens in a
humanitarian status who would be
exempt from the public charge ground
554 See DHS, ‘‘Regulatory Impact Analysis:
Inadmissibility on Public Charge Grounds Final
Rule,’’ RIN 1615–AA22, at 6 (Aug. 2019), https://
www.regulations.gov/document/USCIS-2010-001263741 (hereinafter 2019 Final Rule RIA).
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of inadmissibility in the context of
adjustment of status. A rule similar to
the 2019 Final Rule would likely
produce similar adverse effects on
vulnerable populations not subject to
the public charge ground of
inadmissibility, and DHS has sought to
avoid such effects in this rulemaking
while remaining entirely faithful to the
statute and historical practice.
Comment: Other commenters stated
that the 2019 Final Rule increased the
administrative costs to the States and
caused economic harm to immigrant
families and the entities that serve them.
In particular, commenters stated that the
inclusion of core health, nutrition, and
housing assistance programs in the 2019
Final Rule caused a chilling effect, and
the subsequent disenrollment or
forgoing of benefits imposed significant
costs as families were deprived of
benefits from Medicaid and SNAP, and
costs on society from worsened health
outcomes, increased use of emergency
rooms, increased uncompensated health
care, increased rates of poverty and
homelessness, and reduced productivity
and educational attainment.
Commenters stated that the inclusion of
SNAP, Medicaid, and housing benefits
in the 2019 Final Rule and the
accompanying documentation
requirements for immigrants also
created a substantial administrative
burden on State staff and resulted in
significant costs in addressing the needs
of immigrant-serving community
organizations. One commenter added
that in fiscal year 2019, they provided
$1.3 million in grants to establish
capacity within community
organizations across their State to
conduct community education and
individual family counseling, and for
fiscal years 2020 and 2021, they funded
$2.1 million in grants to ensure
continued capacity to provide those
services related to the 2019 Final Rule.
Response: DHS acknowledges the
impact of the 2019 Final Rule. A
discussion of the impact of the 2019
Final Rule is described in Section
IV.A.5.d. as the Alternative. Although
DHS is not able to quantify all the
effects of the Alternative, for many of
the effects that are not quantifiable DHS
provides qualitative discussion. DHS
incorporated the detailed information
on the State administrative costs due to
the 2019 Final Rule provided by the
commenter into Section IV.A.5.d. Also,
DHS provided detailed information in
the 2019 Final Rule Regulatory Impact
Analysis on familiarization costs and
compliance costs as indirect effects of
the 2019 Final Rule.555 DHS believes
555 See
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55579
that under this rule, the types of effects
described by the commenter are likely
to decrease over time.
Comment: Multiple commenters,
writing separately but in substantially
similar language, stated that the
economic analysis provided in the
NPRM fails to consider the actual
administrative burdens placed on each
State, which undertake much of the
responsibility in administering the
public benefits considered in the
analysis. The commenters remarked that
the economic analysis focuses on the
chilling effect of implementing a public
charge definition more expansive than
what is proposed and contends that
disenrollment or forgoing enrollment
would have downstream economic
impacts that would negatively affect the
economy. The commenters stated that
DHS acknowledged that it is unable to
quantify the State portion of the transfer
payment due to a lack of data related to
State-level administration of these
public benefit programs. The
commenter stated that the economic
analysis performed by DHS was
therefore incomplete. The commenter
also stated that DHS failed to analyze
the effect of any alternative that in the
commenter’s opinion was more
consistent with Congressional intent
and ensures a noncitizen seeking
admission or other benefits does not
become a public charge. The commenter
stated that such an analysis should not
be limited to the chilling effect for
noncitizens already present in the
United States, but also consider the
benefit for the taxpayers and the
lessening burdens on already
overwhelmed systems of public
benefits. The commenter said that
DHS’s limited analysis belied its true
intent to facilitate mass migration and
ignored DHS’s charge to faithfully
execute U.S. immigration laws.
Response: DHS does not agree with
the commenter’s claim that its intent
with this rulemaking is to facilitate mass
migration. This final rule establishes
regulations to align public charge policy
with the statute and Congressional
purpose and collect the appropriate
information to make public charge
inadmissibility determinations. The rule
is designed, in part, to avoid the
unnecessary indirect effects that would
be associated with a rule similar to the
2019 Final Rule.
DHS does not agree with the
commenter’s claim that the NPRM’s
analysis is incomplete. DHS completed
the analysis consistent with OMB
standards—the same standards that
applied to the 2019 Final Rule—and the
analysis is informed by a range of
sources and information received in
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response to the 2021 ANPRM, NPRM
and otherwise collected in connection
with the rulemaking. DHS notes that
none of the above-referenced
commenters provided the data that
would be necessary to fully quantify the
administrative costs associated with this
or any other public charge rule, nor did
the commenters participate in the
comment period for the 2021 ANPRM.
It is not at all uncommon for a
regulatory analysis to address matters
quantitatively and where a quantitative
analysis is not possible, to address
matters qualitatively. This was the case
for the 2019 Final Rule as well. In the
NPRM and again in Section IV.A.5.d. of
this preamble, DHS estimates State
annual transfer payments for Medicaid
and the proportion of State
contributions for SNAP and TANF but
cannot estimate State contributions to
SSI and Federal Rental Assistance
because the proportion of State
contributions varies widely across
States and by year. DHS notes that the
analysis presented in the NPRM and
below represents DHS’s best effort to
assess the costs, benefits, and transfers
of the regulatory alternative.
The commenter stated that DHS failed
to analyze the effect of any alternative.
However, commenters did not provide
any actionable alternative with which
DHS could consider. DHS considered an
alternative similar to the 2019 Final
Rule, and also assessed the effects of the
rule against two baselines. DHS believes
that the analysis presented in this final
rule is more than sufficient.
As it relates to alternative contained
in the NPRM analysis, DHS considered
the costs, benefits, and transfer effects
associated with a potential rulemaking
similar to the 2019 Final Rule (the
Alternative). Like the 2019 Final Rule,
the Alternative would expand the
definition of ‘‘public charge’’ by
providing that receipt of the certain
designated benefits for more than 12
months in the aggregate within a 36month period would render a person a
public charge and designating a broader
range of public benefits for
consideration. Detailed analysis of the
Alternative is included in Section
IV.A.5.D.
Comment: A commenter asserted that
there is no functional or economic
difference between a cash benefit and a
non-cash benefit received in-kind such
as Medicaid benefits and that the rule
therefore wholly ignores State costs,
specifically the costs of States providing
Medicaid to low-income individuals.
The commenter stated that the analysis
should focus on how much the
government spends on benefits received
by noncitizens, not simply whether the
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benefit is income-deriving, and
emphasized that there is no practical or
economic distinction between the
simple provision of benefits in cash or
in-kind.
Response: DHS is drawing a
reasonable line between cash assistance
for income maintenance that alone can
be indicative of primary dependence on
the government for subsistence, and
supplemental and special-purpose noncash benefits that are less probative of
such dependence. As noted above,
Congress itself previously distinguished
between cash and non-cash benefits in
the same manner as this rule in the
IRCA legalization provision, which
provided that ‘‘[a]n alien is not
ineligible for adjustment of status under
[that provision] due to being [a public
charge] if the alien demonstrates a
history of employment in the United
States evidencing self-support without
receipt of public cash assistance.’’ 556
Further, INS made this same distinction
in the 1999 Interim Field Guidance,
after which Congress amended the
applicability of section 212(a)(4) of the
INA multiple times, but only to limit the
application of the ground of
inadmissibility to certain populations or
to limit consideration of certain benefits
in certain circumstances.557 As noted
previously, Congress has long deferred
to the Executive to interpret the
meaning of ‘‘likely at any time to
become a public charge.’’ DHS is not
treading new ground by exercising that
discretion in the way presented in this
rule.
As a technical matter, DHS disagrees
that the provision of Medicaid to lowincome individuals is a cost of the rule,
for two reasons. First, payments made
by State or Federal governments are
considered transfer payments rather
than costs or cost savings for the
purposes of the RIA.558 A reduction in
Medicaid enrollment is a reallocation of
money from individuals to State
governments. Second, the reduction in
transfers payments referred to by the
commenter represents the difference
between the commenters’ preferred
policy and the policy outlined here.
They are therefore presented in the
556 Public Law 99–603, tit. II, sec. 201 (Nov. 6,
1986) (codified at section 245A(d)(2)(B)(ii)(IV) of
the INA, 8 U.S.C. 1255a(d)(2)(B)(ii)(IV)) (emphasis
added); see also id. at sec. 302, 303 (similar
provision for Special Agricultural Workers).
557 See, e.g., Public Law 113–4, sec. 804 (2013)
(codified as amended at section 212(a)(4)(E)(i)–(iii)
of the INA, 8 U.S.C. 1182(a)(4)(E)(i)–(iii)); Public
Law 106–386, sec. 1505(f). (2000) (codified as
amended at section 212(s) of the INA, 8 U.S.C.
1182(s)).
558 See OMB, ‘‘Circular A–4’’ (Sept. 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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discussion of the Alternative, rather
than as an effect of the rule itself as
compared to the No Action Baseline or
the Pre-Guidance baseline.
In Section IV.A.5.d. of this rule, DHS
discussed the consequences of
individuals’ disenrollment or forgone
enrollment in Medicaid as distributional
effects. As DHS explained, the inclusion
of non-cash benefits in the 2019 Final
Rule had a chilling effect on enrollment
in State and Federal public benefits,
including Medicaid, resulting in fear
and confusion in the immigrant
community. Chilling effects in public
benefit programs could lead to
significant indirect effects on State and
local economies, large and small
businesses, and individuals. Although
the analysis quantifies transfer effects as
proposed by the commenter, it also
considers other downstream effects.
Such effects may include worsening
health outcomes, increased use of
emergency rooms and emergency care as
method of primary health care due to
delayed treatment, increased prevalence
of communicable diseases, increased
uncompensated care, increased rates of
poverty and housing instability, and
reduced productivity and educational
attainment. DHS also recognized that
reductions in federal and State transfers
under federal benefit programs may
have impacts on State and local
economies, large and small businesses,
and individuals. In light of the evidence
of the effects of the 2019 Final Rule,
DHS takes the prospect of such
outcomes seriously, particularly as it
relates to populations that this rule does
not regulate, such as U.S. citizen
children in mixed-citizenship
households.
1. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
Comment: Regarding methodology
and adequacy, some State Attorneys
General, and an advocacy group wrote
that DHS did not adequately analyze the
effect of alternative versions of the rule
that, in the commenters’ view, would be
consistent with congressional intent to
ensure noncitizens seeking admission
do not become public charges. They
stated that an analysis of the public
charge rule should not be limited to
chilling effects and suggested that the
analysis include the benefits for
taxpayers and reduction of burdens on
the public benefit systems.,
Response: In the analysis of the
Alternative referenced above, DHS
considers the reduction in transfer
payments and the potential reduction of
burdens on the public benefit system in
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Section IV.A.5.d. However, under OMB
Circular A–4, the reduction of burdens
on the public benefit system is not a
benefit, but rather appropriately
accounted for as transfer payments.
Transfer payments are neither costs nor
savings; they do not affect total
resources available to society. They are
payments from one group to another. A
decrease in transfer payments from the
Federal or State government reduces
burdens on the public benefit system
but at the same time increases burden to
the individuals. Therefore, the
reduction in transfer payments increases
indirect costs to the Federal or State
government. DHS considers the costs
and benefits of available regulatory
alternatives as discussed in Section
IV.A.5.d.
The Alternative would also impose
new costs on the population applying to
adjust status using Form I–485 that are
subject to the public charge ground of
inadmissibility who would be required
to file Form I–944, Declaration of SelfSufficiency, as part of the public charge
inadmissibility determination. In
addition, the Alternative would impose
additional costs for completing Forms I–
485, I–129, I–129CW, and I–539 as the
associated time burden estimate for
completing these forms would increase.
Moreover, the Alternative would impose
additional costs associated with the
public charge bond process, including
costs for completing and filing Forms I–
945 and I–356. DHS estimates the total
annual direct costs of the Alternative
would be approximately $62 million
compared to $6 million under the Final
Rule.
Under the Alternative, DHS estimates
that the total annual transfer payments
from the Federal Government to public
benefits recipients who are members of
households that include noncitizens
would be approximately $3.79 billion
lower due to disenrollment or forgone
enrollment of the public benefit
programs. DHS understands that some
commenters may view this outcome as
preferable, potentially due to its
implications for government spending
on public assistance programs. At the
same time, DHS notes that these transfer
payments largely affect populations that
are not subject to public charge
inadmissibility determinations, such as
U.S. citizen children in mixed-status
households. DHS also recognizes that
many of the indirect effects of the
Alternative could lead to worsening
health outcomes, increased use of
emergency rooms and emergency care as
method of primary health care due to
delayed treatment, increased prevalence
of communicable diseases, increased
uncompensated care, increased rates of
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poverty and housing instability, and
reduced productivity and educational
attainment. DHS also recognizes that,
under the Alternative, reductions in
federal and State transfers under federal
benefit programs may have impacts on
State and local economies, large and
small businesses, and individuals. Other
indirect costs of the Alternative include
administrative costs incurred by States.
DHS received a detailed comment on
State administrative costs. The
commenter stated that the State
incurred significant costs in addressing
the needs of immigrant-serving
community organizations, responding to
the fear and confusion caused by the
2019 Final Rule, conducting community
education and individual family
counseling, and planning and training
the State caseworkers related to 2019
Final Rule. Since the Alternative is
similar to the 2019 Final Rule, DHS
believes these administrative costs in
this comment are similar to
administrative costs that would be
imposed by the Alternative.
Comment: Citing numerous studies,
some of which DHS included in the
proposed rule, an advocacy group
described un-insurance trends fueled by
the 2019 Final Rule that reversed
substantial gains in insurance rates
leading up to 2019. The advocacy group
and a research organization cited
findings from a 2020 Urban Institute
survey,559 which indicated that
immigrant families avoided noncash
public benefit programs in 2020, despite
facing hardships resulting from the
COVID pandemic. The research
organization further remarked that a
variety of sources, including individual
surveys, reports from service providers,
and analyses of enrollment data
demonstrate the chilling effect of the
previous public charge rule on
participation across public benefit
programs. Citing data from a New York
City focus group and a Protecting
Immigrant Families Campaign and BSP
Research survey, the commenter
underscored the widespread and lasting
impact of the 2019 public charge rule on
families that include immigrants. Also
citing numerous studies, an advocacy
group provided data contextualizing the
impact of the 2019 Final Rule on Asian
American and Pacific Islander (AAPI)
communities, including Compact of
Free Association (COFA) migrants and
559 Hamutal Bernstein et al., ‘‘Amid Confusion
over the Public Charge Rule, Immigrant Families
Continued Avoiding Public Benefits in 2019,’’
Urban Institute (2020), https://www.urban.org/sites/
default/files/publication/102221/amid-confusionover-the-public-charge-rule-immigrant-familiescontinued-avoiding-public-benefits-in-2019_3.pdf
(last visited Aug. 16, 2022).
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survivors of violence. Relatedly, a
healthcare provider and an advocacy
group commented on the negative
impacts of the 2019 Final Rule on
eligible immigrants. They stated that the
2019 Final Rule harmed marginalized
immigrants and increased burdens on
the nation’s healthcare system.
Response: DHS acknowledges that the
2019 Final Rule caused fear and
confusion among U.S. citizens and
noncitizens and had chilling effects on
the use of public benefits by noncitizens
and U.S. citizens in mixed-status
families. As several commenters
mentioned, numerous studies have
discussed the impact of the 2019 Final
Rule on immigrants, families of
immigrants, and marginalized
immigrants.
Comment: An individual commenter
expressed concern with the increase in
costs for applicants affected by the
proposed rule, reasoning that the cost of
the application is already inflated and
that any additional increase would
prevent applicants from obtaining legal
status.
Response: DHS did not propose and is
not increasing the I–485 fee through this
final rule. Similarly, DHS does not
expect the number of applicants will
decrease due to the increase in time
burden to complete Form I–485. DHS
estimated the direct costs of the rule to
complete Form I–485 for applicants who
are subject to the public charge ground
of inadmissibility. The increase in cost
to the applicants is due to the 0.75 hour
increase in time burden to complete
Form I–485, not a fee increase. The time
burden includes the time for reviewing
instructions, gathering the required
documentation and information,
completing the application, preparing
statements, attaching necessary
documentation, and submitting the
application. Additionally, DHS does not
expect the increase in time burden to
complete the form will prevent
applicants from obtaining legal status.
The 2019 Final Rule imposed
additional costs on the population
applying to adjust status using Form I–
485 by requiring the applicants to file
Form I–944, Declaration of SelfSufficiency. The 2019 Final Rule also
imposed additional costs for completing
Forms I–485, I–129, I–129CW, and I–
539 as the associated time burden
estimate for completing each of these
forms was projected to increase. In
contrast to the 2019 Final Rule, this
final rule only increases the time burden
for completing Forms I–485 and does
not introduce a Form I–944 or change
the Forms I–129, I–129CW, or I–539 at
all.
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Comment: In response to DHS’s
request for comments on ways to
estimate the value of non-paid time, an
individual commenter stated that a fair
assessment of unpaid, volunteer, and
other non-paid activities individuals
undertake may be based on effective
minimum wage or rates consistent with
those paid for similar work in the
candidate’s relevant labor market,
whichever is highest. The commenter
further suggested that DHS include
‘‘reasonable’’ paid fringe benefits in the
valuation, reasoning that this approach
would be consistent with the Uniform
Administrative Requirements, Cost
Principles and Audit Requirements for
Federal Awards at 2 CFR 200.306(e).
Response: DHS uses the effective
minimum wage but declines to consider
in this analysis rates consistent with
those paid for similar work in the
candidate’s relevant labor market. DHS
uses the effective minimum wage rate as
a single objective measure since it is
difficult to estimate the value of the
time associated with the wide variety of
non-paid activities an individual could
pursue. In addition, DHS uses the
benefits-to-wage multiplier, which
incorporates the full cost of benefits,
including paid leave, supplemental pay,
insurance, retirement, and savings.
Comment: Multiple commenters,
including State governments, an
attorney, and an advocacy group, said
that the proposed rule’s narrow
definition of a public charge places
heavy costs on Federal, State, Tribal, or
local governments that administer
benefits to immigrants. These
commenters remarked that the proposed
rule’s economic analysis fails to
consider the administrative burdens
placed on each State that undertakes the
responsibility of administering the
public benefits. However, a legal
services provider said that the rule’s
detractors who focus on the savings to
State and local governments from being
able to avoid providing benefits to
eligible noncitizens and their families
make the inappropriate objection that
the NPRM should be revised to allow
State and local governments to reap the
benefits of frightening their residents
into forgoing benefits that those
governments are obligated to provide.
Response: In the proposed rule, DHS
gave more thorough consideration to the
potential chilling effects of
promulgating regulations governing the
public charge inadmissibility
determination. In considering such
effects, DHS took into account the
former INS’s approach to chilling effects
in the 1999 Interim Field Guidance and
the 1999 NPRM, the 2019 Final Rule’s
discussion of chilling effects, judicial
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opinions on the role of chilling effects,
evidence of chilling effects following
the 2019 Final Rule, and public
comments on chilling effects following
the August 2021 Advance Notice of
Proposed Rulemaking (ANPRM).
DHS acknowledges that the 2019
Final Rule caused fear and confusion
among U.S. citizens and noncitizens
and had a chilling effect on the receipt
of public benefits, even among those
who were not subject to the rule and
with respect to public benefits that were
not covered by the rule such as U.S.
citizen children in mixed-status
households, longtime lawful permanent
residents who are only subject to the
public charge ground of inadmissibility
in limited circumstances, and
noncitizens in a humanitarian status
who would be exempt from the public
charge ground of inadmissibility in the
context of adjustment of status. DHS
estimates the reduction in transfer
payments due to the chilling effects in
Section IV.A.5.d. Commenters stated
that this reduction in transfer payments
from the Federal and State government
to public benefit recipients are savings.
DHS recognizes the commenters’
observation that the reduction in
transfer payment will reduce State
expenditures on public benefit
programs. However, DHS analyzes this
effect as a transfer payment under OMB
Circular A–4.560 As OMB Circular A–4
prescribes, changes in transfer payments
are neither costs nor benefits of the rule
and are treated separately in the
analysis. The impacts to States of the
potential change in transfer payments is
also discussed in Section IV.A.5.d. Also,
disenrollment or forgone enrollment in
public benefit programs could lead to
worsening health outcomes, increased
use of emergency rooms and emergency
care as methods of primary health care
due to delayed treatment, increased
prevalence of communicable diseases,
increased uncompensated care,
increased rates of poverty and housing
instability, and reduced productivity
and educational attainment. DHS also
recognizes that reductions in federal
and State transfers under federal benefit
programs may have impacts on State
and local economies, large and small
businesses, and individuals.
Moreover, DHS emphasizes that
neither the statutory public charge
ground of inadmissibility nor this final
rule governs eligibility for public
benefits. This final rule does not address
which noncitizens are, or should be,
eligible to receive public benefits. DHS
560 See OMB, ‘‘Circular A–4’’ (Sept. 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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is committed to making clear in this rule
and in any communication materials
and implementing guidance who is and
is not subject to the public charge
ground of inadmissibility. With this
final rule, DHS intends to faithfully
apply the public charge ground of
inadmissibility without causing undue
confusion among the public. This final
rule implements the statute lawfully
while minimizing chilling effects in
order to avoid widespread societal
issues that result from food insecurity,
forgone medical care, and
uncompensated healthcare costs among
immigrant and mixed status families.
Comment: A State health department
said that while it expects some
additional costs to be incurred due to
additional changes in the proposed rule,
these costs are likely to be modest.
Overall, the commenter said State costs
would be minimized by a simple,
clearly understandable rule that
excludes all benefits and does not
require detailed analyses of which
programs are and are not considered in
a public charge assessment. Further, the
commenter expressed support for
language in the NPRM stating that the
only receipt that counts is the intending
immigrant being named as a beneficiary
for one or more of the countable benefits
themselves.
Response: DHS agrees that the direct
cost of the rule is relatively modest.
This is in part due to similarities
between the rule and the approach
taken in the 1999 Interim Field
Guidance. DHS agrees that a simple and
clearly understandable rule would
minimize familiarization costs as well
as administrative costs incurred by
planning and training caseworkers and
call center workers and by decreasing
the number of customers to the
caseworker services. However, as
discussed elsewhere in this rule, DHS is
declining to exclude from consideration
past or current receipt of all public
benefits.
Comment: A State government
remarked that the removal of
consideration of past receipt of public
benefits from the proposed rule would
save Federal, State, and local benefit
granting agencies significant funding
each year and allow for simpler and
more effective administration of public
benefit programs. The commenter stated
that in 2018, it awarded a State-fund
grant of $1.2 million to provide
technical assistance and training
materials for legal service providers and
community advocates on public charge.
An additional $1 million was issued in
2019, among other funding. The
commenter emphasized the complex
nature of immigration law and the
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difficulty encountered by the
commenter in developing public
engagement materials due to the
complex nature of immigration law and
repeated changes to public charge
policy.
Response: DHS acknowledges that
some States have chosen to engage in
outreach to social service providers and
the general public regarding public
charge matters. DHS agrees that the
removal of consideration of past receipt
of public benefits from the proposed
rule may mitigate the need for such
outreach. Such an approach could also
simplify the administration of public
benefit programs to the extent that
public benefit granting agencies would
not need to respond to recipient or
applicant inquiries regarding
immigration consequences of public
benefit receipt. DHS also acknowledges
that collecting information from
applicants for adjustment of status on
past or current benefit use has resulted
in an increase to the time burden for
completing the Form I–485. Also, the
revised Form I–485 may indirectly
increase administrative costs for benefit
granting agencies due to an increase in
workload to respond to some
beneficiaries who may inquire about
their history of public benefit receipts.
However, DHS notes that under this
final rule, it has streamlined this
information collection, and the increase
in time burden is less than the time
burden increase under the 2019 Final
Rule when applicants were required to
complete Form I–944 Declaration of Self
Sufficiency and provide supporting
evidence.
As explained in more detail earlier in
this preamble, DHS has determined that
it should continue to consider past and
current receipt of public cash assistance
for income maintenance and long-term
institutionalization at government
expense because these may be
indicative of primary dependence on
the government for subsistence. DHS
has consistently considered the past and
current receipt of such benefits in
making public charge inadmissibility
determinations and has consistently
considered such receipt in the totality of
the circumstances, taking into account
the amount, duration, and recency of
the receipt. DHS has also consistently
stated that the past or current receipt of
benefits alone is not a sufficient basis to
determine whether an applicant is likely
at any time to become a public charge.
Comment: A State government and a
local government commented that DHS
should remove all Medicaid coverage
and services from public charge
inadmissibility determinations,
reasoning that when patients lose
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coverage, overall costs to State or city
governments increase.
Response: DHS acknowledges that
when patients lose medical coverage,
overall costs to State or local
governments may increase, and there
may be long-term consequences for
patients and their families and
communities. As described in Section
IV.A.5.d., disenrollment or forgoing
enrollment in Medicaid due to a chilling
effect could lead to worse health
outcomes, increase use of emergency
rooms and emergent care as methods of
primary health care due to delayed
treatment, increase prevalence of
communicable diseases, increase
uncompensated care, and reduce
productivity and educational
attainment. DHS also recognizes that
reductions in Medicaid coverage might
result in reduced revenues for
healthcare providers participating in
Medicaid and companies that
manufacture medical supplies or
pharmaceuticals. DHS notes that it is
excluding from consideration nearly all
forms of Medicaid, except for long-term
institutionalization at government
expense.
DHS has determined that, like cash
assistance for income maintenance,
long-term institutionalization at
government expense is indicative of
primary dependence on the government
for subsistence. However, DHS also
recognizes that there may be instances
when individuals are institutionalized
in violation of federal law due to the
unavailability of alternative services,
such as HCBS. Recognizing that some
instances of institutionalization may
violate federal law, DHS will accept
evidence that institutionalization
violates the individual’s rights under
disability laws, including the ADA and
section 504. In addition, this final rule
retains a clarification that disability will
never alone form the basis for
determining that a noncitizen is likely at
any time to become a public charge.
DHS does not have data to assess how
many individuals are both subject to the
public charge ground of inadmissibility
and are institutionalized on a long-term
basis at government expense (including
when such services are covered by
Medicaid) so is unable to quantify the
impact of retaining this long-standing
policy in the final rule. However, DHS
believes that the impact is small.
Comment: A State government agency
stated that it had experienced the
immense administrative burden of the
2019 Final Rule and expressed concern
over staff and customers continuing to
be adversely affected by the
administrative burden of implementing
measures aimed at mitigating the
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chilling effect of a public charge rule, by
the need to counsel eligible enrollees
and recipients of their rights to receive
benefits, and by the expected loss of
enrollees and recipients.
Response: DHS acknowledges the
concerns over staff and customers
continuing to be adversely affected by
the administrative burden of
implementing measures aimed at
mitigating the chilling effect of a public
charge rule. DHS is keenly aware of the
established effects of its actions in this
policy area and wishes to ensure that
the final rule faithfully applies the
public charge ground of inadmissibility
without causing undue confusion
among the public.
Comment: An advocacy group
acknowledged that the ‘‘proposed rule
would not have a significant economic
impact on a substantial number of small
entities.’’
Response: DHS agrees that the rule
does not directly regulate small entities
and is not expected to have a direct
effect on small entities. It does not
mandate any actions or requirements for
small entities in the process of filing a
Form I–485 Adjustment of Status by a
requestor seeking immigration benefits.
This rule regulates individuals, who are
not defined as ‘‘small entities.’’
Comment: One commenter stated that
immigrants create economic growth and
increase tax revenue to better the nation,
and in general, having immigrants
become successful is better for the
country.
Response: DHS acknowledges the
economic impact of immigrants as many
researchers have discussed. While DHS
agrees that having immigrants become
successful is better for the country, DHS
does not expect that this rule would
change the overall level of immigration
as DHS does not expect the population
seeking adjustment of status or
admission at a port of entry would
change due to this rule.
Comment: An advocacy group
remarked that, given the positive impact
immigrants have on the U.S. economy,
the changes in the proposed rule are
sensible and would further support the
success of immigrants and their
contributions to the U.S. economy. An
anonymous commenter said the
proposed rule positively effects supply
and demand in the United States, as
‘‘. . . immigrants who increase the
supply of labor also demand goods and
services, causing the demand for labor
to increase.’’
Response: For the regulatory analysis,
DHS estimated the No Action Baseline
using existing policy and compared the
estimated costs and benefits of the
provisions set forth in the rule to this
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baseline. DHS estimated that the
projected average annual total
population of adjustment of status
applicants and applicants for admission
that would be subject to review for
inadmissibility on the public charge
ground would not change due to the
rule. DHS does not expect that the rule
would change the overall level of
immigration.
Comment: A few commenters,
including a group of Attorneys General,
State governments, and an anonymous
commenter, said that compared to the
2019 Final Rule, the proposed rule
would increase access to health care and
nutritional services, resulting in longterm net benefits for the States and their
residents. Similarly, a local government
remarked that broad access to public
benefits by eligible individuals leads to
better health outcomes for individuals
and communities, while minimizing
costs of emergency care often borne by
local governments.
Response: This final rule would
implement a different policy from the
2019 Final Rule. DHS believes that, in
contrast to the 2019 Final Rule, this rule
would effectuate a more faithful
interpretation of the statutory phrase
‘‘likely at any time to become a public
charge’’; avoid unnecessary burdens on
applicants, officers, and benefitsgranting agencies; and mitigate the
possibility of widespread ‘‘chilling
effects’’ with respect to individuals
disenrolling or declining to enroll
themselves or family members in public
benefits programs for which they are
eligible, especially with respect to
individuals who are not subject to the
public charge ground of inadmissibility.
2. Family Assessment
Comment: One commenter stated that
DHS must issue an assessment
explaining the benefits of the proposed
rule on family well-being, stating that
section 654 of the Treasury and General
Government Appropriations Act, 1999
directs federal agencies to issue a family
policymaking assessment for any rule
that may affect family well-being and
that, under the law, the agency must
evaluate a regulatory action’s impact on
the stability or safety of the family, on
the family’s ability to perform its
function, and on disposable income,
poverty, or any other financial impact
for families and children. This
commenter stated that DHS incorrectly
assumed that a family well-being
assessment must only be issued if a rule
negatively impacts family well-being,
but that the legislative language makes
clear that agencies’ assessment should
look at both positive and negative
impacts.
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Response: Section 654 of the Treasury
and General Government
Appropriations Act, 1999 requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being.
Agencies must assess whether: (1) The
action strengthens or erodes the stability
or safety of the family and, particularly,
the marital commitment; (2) the action
strengthens or erodes the authority and
rights of parents in the education,
nurture, and supervision of their
children; (3) the action helps the family
perform its functions, or substitutes
governmental activity for the function;
(4) the action increases or decreases
disposable income or poverty of families
and children; (5) the proposed benefits
of the action justify the financial impact
on the family; (6) the action may be
carried out by State or local government
or by the family; and (7) the action
establishes an implicit or explicit policy
concerning the relationship between the
behavior and personal responsibility of
youth, and the norms of society.
In the NPRM, DHS stated that ‘‘DHS
has analyzed this proposed regulatory
action in accordance with the
requirements of section 654 and
determined that this proposed rule does
not affect family well-being, and
therefore DHS is not issuing a Family
Policymaking Assessment.’’ 561 In the
NPRM and in this Final Rule, DHS has
focused on all of the effects of the rule,
not just the negative effects, nor does
DHS misunderstand the requirements
applicable to this assessment. DHS
agrees that not generally considering
non-cash benefits in public charge
inadmissibility determinations may
reduce chilling effects for low-income
individuals enrolling or remaining
enrolled in such programs and may
indirectly support children and
families’ access to health care, nutrition,
and housing assistance by excluding
those benefits from consideration for a
public charge inadmissibility
determination. This final rule also
includes a definition of receipt of public
benefits that clarifies that only public
cash assistance for income maintenance
and long-term institutionalization at
government expense received by a
noncitizen applying for admission or
adjustment of status will be considered
in a public charge inadmissibility
determination, but not if received by a
noncitizen’s family members. The final
rule similarly clarifies that applying for
these public benefits on behalf of
another would not be considered as
561 87
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receiving the public benefit unless the
noncitizen is also a named recipient.
When issuing the 2019 Final Rule,
DHS determined that the 2019 Final
Rule might result in decreased
disposable income and increased the
poverty of certain families and children,
including U.S. citizen children, and that
the rule would likely increase the
number of noncitizens found
inadmissible on the public charge
ground. DHS ultimately decided that it
was justified in issuing the 2019 Final
Rule notwithstanding the potential
financial impact on the family and
increase in the number of
inadmissibility determinations.
In contrast, the determination
reflected in the NPRM that no Family
Policy Assessment is required was
based on the fact that DHS proposed a
rule that, as it relates to the potential
effects on the family, is substantively
similar to how DHS is currently
administering the public charge ground
of inadmissibility under section
212(a)(4) of the INA, consistent with the
1999 Interim Field Guidance. Therefore,
DHS determined that this rule would
not affect family well-being.
Comment: One commenter disagreed
that the proposed rule does not affect
family well-being due to the
documented chilling effects and
families subsequently choosing to not
enroll eligible children into public
benefits programs.
Response: DHS acknowledges the
documented chilling effects described
by the commenter. However, the
documented chilling effects are impacts
of previous public charge policies
enacted by the now vacated 2019 Final
Rule. This final rule is similar to the
approach outlined in the 1999 Interim
Field Guidance, which is the basis for
USCIS’ current operations regarding
public charge. Relative to the No Action
Baseline of this final rule, DHS does not
believe this new rule would have a
substantial chilling effect. Therefore,
DHS determined that this rule will not
have a deleterious effect on family wellbeing.
Q. Out-of-Scope Comments
Comment: Several commenters
provided comments outside the scope of
this rulemaking. These included
support for increasing the capacity of
the Executive Office for Immigration
Review (EOIR). Another commenter
stated that immigrants who come to the
United States have lower delinquency
and are better behaved than individuals
who are raised in the United States. One
commenter indicated that benefitgranting agencies should improve their
systems to better detect fraud used to
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obtain benefits. This commenter also
indicated that the FPG should be
adjusted to account for current inflation.
Response: The comments are outside
the scope of the rulemaking.
Comment: One commenter stated the
rule punishes victims of the United
States’ historical economic and
immigration policies with respect to
Mexico, which, according to the
commenter, damaged the Mexican
economy and encouraged Mexicans to
leave their country and seek assistance
in the United States.
Response: To the extent that the
comment seeks changes in U.S. policy
towards Mexico or an assessment of
historical policies, it is outside the
scope of the rulemaking.
Comment: One commenter suggested
a range of outreach activities to educate
immigrants and their families about this
rulemaking, including joint grant
initiatives between multiple federal
agencies.
Response: Comments about such
implementation activities are outside
the scope of the rulemaking, but DHS
has taken the comment under
advisement as it relates to post-rule
implementation and outreach activities.
Comment: Two commenters suggested
allowing immigrants to apply for
citizenship at the U.S. border, with one
commenter proposing the rule allow
immigrants to file for citizenship as a
family group, rather than individually,
in order to slow the separation of
families at the border and allow families
to enter the United States together.
Another commenter suggested a
program through which noncitizens
could obtain citizenship through
volunteering in communities. Similarly,
one commenter stated that systemic
changes in the immigration system are
needed and stated that DHS should
consider the disadvantages of returning
to a system created in the 1990s and
consider creating a path for
undocumented immigrants to become
full citizens to improve the efficiency of
the labor market, allow for creation of
new businesses, and the filling in of less
desirable labor positions.
Response: The comments are outside
the scope of the rulemaking.
Comment: One commenter suggested
immigrants be provided easier access to
jobs that accept non-English speaking
workers. Similarly, a commenter stated
that the solution to allow immigrants to
help with the economy is to give
immigrants access to governmentfunded job opportunities such as
community service.
Response: The commenters’ proposals
are outside the scope of the rulemaking.
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Comment: One commenter questioned
why DHS is making immigration more
difficult when many terrorist plots and
attacks in the United States are
committed by white supremacists and
other like-minded extremists born in the
United States. This commenter also
stated that the U.S. economy will be
negatively impacted if immigrant
workers feel that their livelihoods are in
jeopardy. Another commenter also
stated that immigration regulations were
too strict, and described a family
circumstance involving a completely
different provision of the immigration
laws.
Response: To the extent that the
comments suggest that DHS should
avoid enforcing the public charge
ground of inadmissibility entirely, DHS
has addressed them earlier in the
preamble. To the extent that the
comments suggest revising
implementation of other provisions of
the INA or providing a greater sense of
security to immigrants in their work,
they are outside the scope of the
rulemaking.
Comment: One commenter suggested
DHS work with the Rehabilitation
Services Administration to ensure
immigrants with disabilities applying
for admission can access vocational
rehabilitation services that will help
them support themselves.
Response: While interagency
discussions are a part of the internal
deliberative process associated with the
rulemaking, this suggestion is outside
the scope of this rule.
Comment: One commenter indicated
that any changes made to a public
charge inadmissibility determination by
DHS should be made in an identical
manner by DOS in the Foreign Affairs
Manual. Another commenter similarly
requested DOS also participate in
rulemaking to establish a consistent
public charge inadmissibility
determination process and reduce
burdens on applicants.
Response: This rule only pertains to
DHS operations, and regulates
noncitizens who seek admission into
the United States as a nonimmigrant, or
as an immigrant, or who seek
adjustment of status.
IV. Statutory and Regulatory
Requirements
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
E.O. 12866 and E.O. 13563 direct
agencies to assess the costs and benefits
of available regulatory alternatives and,
to the extent permitted by law, to
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proceed only if the benefits justify the
costs. They also direct agencies to select
regulatory approaches that maximize
net benefits while giving consideration,
to the extent appropriate and consistent
with law, to values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts. In particular, E.O.
13563 emphasizes the importance of not
only quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility, but also
considering equity, fairness, distributive
impacts, and human dignity.
The Office of Information and
Regulatory Affairs (OIRA) in the Office
of Management and Budget (OMB) has
determined that this final rule is an
economically significant regulatory
action under section 3(f)(1) of E.O.
12866. Accordingly, OMB has reviewed
this regulation.
1. Summary of the Final Rule
The final rule describes how DHS will
determine whether a noncitizen is
inadmissible because they are likely at
any time to become a public charge (i.e.,
likely to become primarily dependent
on the government for subsistence). The
final rule also clarifies the types of
public benefits that are considered in
public charge inadmissibility
determinations. This rule will limit
such consideration to public cash
assistance for income maintenance and
long-term institutionalization at
government expense.562 563 Public cash
assistance for income maintenance
would include cash assistance provided
under TANF, SSI, and general
assistance. This is the same list of
public benefits that are considered
under the 1999 Interim Field Guidance,
which served as the operative standard
for nearly 20 years until the 2019 Final
Rule (no longer in effect) was
promulgated. This rule also defines key
terms and codifies a list of categories of
noncitizens who are statutorily exempt
from the public charge ground of
inadmissibility, or eligible for a waiver.
The final rule uses a framework
similar to the one set forth in the 1999
Interim Field Guidance, under which
officers consider past or current receipt
of certain public benefits, as well as the
statutory minimum factors (the
noncitizen’s age; health; family status;
assets, resources, and financial status;
562 See
8 CFR 212.21(a).
noted in the public benefits section above,
DHS is replacing the term ‘‘institutionalization for
long-term care at government expense’’ with ‘‘longterm institutionalization,’’ which better describes
the specific types of services covered and the
duration for receiving them. The terms are not
meant to be substantively different.
563 As
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and education and skills) and the
Affidavit of Support Under Section
213A of the INA, where required, as part
of a totality of the circumstances
framework. The final rule maintains the
language set forth in the 1999 Interim
Field Guidance that reiterated more
specifically the general requirement that
every written denial decision issued by
USCIS based on the public charge
ground of inadmissibility include a
discussion of each of the statutory
factors.
The final rule establishes three
exclusions from consideration of public
benefits received by certain noncitizens.
First, the final rule clarifies that, in any
application for admission or adjustment
of status in which the public charge
ground of inadmissibility applies, DHS
will not consider any public benefits
received by a noncitizen during periods
in which the noncitizen was present in
the United States in an immigration
category that is exempt from the public
charge ground of inadmissibility.
Second, when making a public charge
inadmissibility determination under the
final rule, DHS also will not consider
any public benefits that were received
by noncitizens who are eligible for
resettlement assistance, entitlement
programs, and other benefits available to
refugees admitted under section 207 of
the INA, 8 U.S.C. 1157, including
services described under section
412(d)(2) of the INA, 8 U.S.C.
1522(d)(2), provided to an
‘‘unaccompanied alien child’’ as defined
under section 462(g)(2) of the HSA, 6
U.S.C. 279(g)(2). This exclusion would
only apply to those categories of
noncitizens who are eligible for all three
of the types of support listed
(resettlement assistance, entitlement
programs, and other benefits) typically
reserved for refugees. Third, applying
for a public benefit on one’s own behalf
or on behalf of another would not
constitute receipt of public benefits by
the noncitizen applicant. This definition
would make clear that the noncitizen’s
receipt of public benefits solely on
behalf of another, or the receipt of
public benefits by another individual
(even if the noncitizen assists in the
application process), would also not
constitute receipt of public benefits by
the noncitizen.
Summary of Changes From the NPRM to
the Final Rule
In light of public comments, DHS is
making several changes from the NPRM
to the final rule. DHS does not expect
these changes will affect the population
consisting of individuals who are
applying for adjustment of status using
Form I–485 as these changes are
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additional provisions to include a
public charge bond process, additional
definitions, and clarifications pertaining
to the statutory minimum factors and
consideration of receipt of public
benefits. The rest of this section
discusses these changes in detail.
DHS is adding a provision in this rule
that would permit officers to consider
offering public charge bonds, in its
discretion, to adjustment of status
applicants inadmissible only under
section 212(a)(4) of the INA, 8 U.S.C.
1183.564 DHS is including provisions in
the rule pertaining to public charge
bond cancellation and breach
determination. These provisions will
ensure that DHS is exercising its
discretionary public charge bond
authority in the context of adjustment of
status applications and will ensure that
public charge bonds remain
operationally feasible in such cases.
Also, these provisions will enable a
noncitizen who was found inadmissible
on public charge grounds to be admitted
by posting a public charge bond with
DHS. With the creation of a form
designated by USCIS for the purpose of
public charge bond and using the Form
I–356, Request for Cancellation of
Public Charge Bond, DHS expects that
there will be a cost to bond applicants
associated with completing the forms.
However, DHS expects the population
of using the public charge bond form
designated by USCIS and Form I–356 to
be de minimis. DHS expects the
population of using these forms to be de
minimis because while the 2019 Final
Rule was in effect DHS did not receive
any filings of the public charge bond
form and I–356 form.
Following review of public
comments, DHS is also modifying
provisions related to statutory minimum
factors (health, family status, assets,
resources, and financial status, and
education and skills) from the NPRM.
DHS will consider the noncitizen’s
health using the Report of Medical
Examination and Vaccination record
(Form I–693). This report of medical
examination would normally be in an
adjustment of status applicant’s record
because an adjustment applicant is
required to undergo an immigration
medical examination conducted by a
USCIS-designated civil surgeon or the
applicant is exempt from the Form I–
693 requirement because they were
previously examined by a panel
physician prior to entering the United
States and has a report of medical
examination completed by a panel
physician overseas in their record. Since
the Form I–693 is already required for
564 8
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filers of Form I–485, using the Form I–
693 as evidence for the noncitizen’s
health condition does not impose
additional direct cost to the public. This
change will provide direct benefits to
the public by reducing uncertainty over
what DHS will consider as part of the
health factor, while minimizing
burdensome information collection
associated with this factor. DHS will
consider the noncitizen’s family status
using household size. DHS will consider
the noncitizen’s assets, resources, and
financial status using household’s
income, assets, and liabilities (excluding
any income from public benefits listed
in 8 CFR 212.21(b) and income or assets
from illegal activities or sources such as
proceeds from illegal gambling or drug
sales). DHS will consider the
noncitizen’s education and skills using
degrees, certifications, licenses, skills
obtained through work experience or
educational programs, and educational
certificates. DHS is adding a definition
of household to be used in connection
with the family status and assets,
resources, and financial status factors.
For the changes to provisions
addressing these statutory minimum
factors to identify information relevant
to such factors, DHS made changes to
Form I–485 to effectuate the relevant
information collection. In the final rule
compared to the NPRM, DHS has
reduced the estimated increase in the
time burden for completing the revised
Form I–485 from 1.5 hours to 0.75 hours
(thereby reducing the estimated total
time burden for completing the revised
Form I–485 from 7.92 hours to 7.17
hours). Open-ended questions requiring
narrative-style responses that were
proposed in the information collection
instrument (Form I–485) associated with
the NPRM have been changed to
multiple-choice style questions that will
require less time for an applicant to
answer. Therefore, the final rule cost
estimate has changed since the NPRM
cost estimate. DHS estimates the annual
direct cost of the final rule will be
approximately $6,435,755, rather than
$12,856,152, based on the change in the
opportunity cost for the I–485.
Finally, in the final rule, DHS
clarified in the regulatory text that DHS
will not consider the receipt of, or
certification or approval for future
receipt of, public benefits not referenced
in 8 CFR 212.21(b) or (c), such as
Supplemental Nutrition Assistance
Program (SNAP) or other nutrition
programs, Children’s Health Insurance
Program (CHIP), Medicaid (other than
for long-term use of institutional
services under section 1905(a) of the
Social Security Act), housing benefits,
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any benefits related to immunizations or
testing for communicable diseases, or
other supplemental or special-purpose
benefits. This clarification will reduce
uncertainty and confusion for those who
make decisions on whether to adjust
status or to enroll or disenroll in public
benefit programs.
This final rule makes important
clarifications and changes as compared
to the 1999 Interim Field Guidance.
This rule clarifies DHS’s approach to
consideration of disability and longterm institutionalization at government
expense; states a bright-line rule against
considering the receipt of public
benefits by an applicant’s dependents
(such as a U.S. citizen child in a mixedstatus household); and changes the
Form I–485 to collect additional
information relevant to the public
charge inadmissibility determination.
DHS also added streamlined provisions
to clarify acceptance, form, and amount
of USCIS public charge bonds, as well
as cancellation of public charge bonds.
Finally, later in this preamble, in
response to public comments, DHS
further clarifies that primary
dependence connotes significant
reliance on the government for support
and means something more than
dependence that is merely transient or
supplementary.
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2. Summary of the Costs and Benefits of
the Final Rule
The final rule will result in new costs,
benefits, and transfers. To provide a full
understanding of the impacts of the
final rule, DHS considers the potential
impacts of this final rule relative to two
baselines, as well the potential impact
of a regulatory alternative. The No
Action Baseline represents a state of the
world under the 1999 Interim Field
Guidance, which is the policy currently
in effect. The second baseline is the PreGuidance Baseline, which represents a
trajectory established before the
issuance of the 1999 Interim Field
Guidance (i.e., a state of the world in
which the 1999 Interim Field Guidance
did not exist). The alternative analysis
presented below relates to an alternative
consistent with the 2019 Final Rule.
Relative to the No Action Baseline,
the primary source of quantified new
direct costs for the final rule is the
increase in the time required to
complete Form I–485. DHS estimates
that the final rule will impose
additional new direct costs of
approximately $6,435,755 annually to
applicants filing Form I–485. In
addition, the final rule results in an
annual savings for a subpopulation of
affected individuals: T nonimmigrants
applying for adjustment of status will no
longer need to submit Form I–601 to
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seek a waiver of the public charge
ground of inadmissibility. DHS
estimates the total annual savings for
this population will be approximately
$15,359. DHS estimates that the total
annual net costs will be approximately
$6,420,396.565
Over the first 10 years of
implementation, DHS estimates the total
net costs of the final rule will be
approximately $64,203,960
(undiscounted). In addition, DHS
estimates that the 10-year discounted
total net costs of this final rule will be
approximately $54,767,280 at a 3percent discount rate and approximately
$45,094,175 at a 7-percent discount rate.
DHS expects the primary benefit of
this final rule to be the non-quantified
benefit of increased clarity in the rules
governing public charge inadmissibility
determinations. By codifying into
regulations, the current practice under
the No Action Baseline (the 1999
Interim Field Guidance) with some
changes, the final rule reduces
uncertainty and confusion.
The following two tables provide a
more detailed summary of the
provisions and their impacts relative to
the No Action Baseline and PreGuidance Baseline, respectively.
565 Calculations: Total annual net costs
($6,420,396) = Total annual costs
($6,435,755)Â¥Total annual savings ($15,359).
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In addition to the impacts
summarized above, and as required by
OMB Circular A–4, the following two
tables present the prepared accounting
statement showing the costs associated
with this final rule.566
566 See OMB, ‘‘Circular A–4’’ (Sept. 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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As discussed in the preamble, DHS
seeks to administer the public charge
ground of inadmissibility in a manner
that will be clear and comprehensible
and will lead to fair and consistent
adjudications. Under the INA, a
noncitizen who, at the time of
application for a visa, admission, or
adjustment of status, is deemed likely at
any time to become a public charge is
ineligible for a visa, inadmissible, or
ineligible for adjustment of status.567
While the INA does not define public
charge, Congress has specified that,
when determining if a noncitizen is
likely at any time to become a public
charge, immigration officers must, at a
minimum, consider certain factors,
namely the noncitizen’s age; health; and
family status; assets, resources, and
financial status; and education and
skills.568 Additionally, DHS may
567 See
INA sec. 212(a)(4); 8 U.S.C. 1182(a)(4).
INA sec. 212(a)(4)(B)(i); 8 U.S.C.
1182(a)(4)(B)(i).
568 See
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consider any affidavit of support
submitted under section 213A of the
INA, 8 U.S.C. 1183a, on behalf of the
applicant when determining whether
the applicant may become a public
charge.569 For most family-based and
some employment-based immigrant
visas or adjustment of status
applications, applicants must have a
sufficient affidavit of support or they
will be found inadmissible as likely to
become a public charge.570
The estimation of costs and benefits
for this final rule focuses on individuals
applying for adjustment of status with
USCIS using Form I–485. Such
individuals would be applying from
within the United States, rather than
applying for a visa from a DOS consular
officer at a U.S. embassy or consulate
abroad. Moreover, DHS notes that CBP
may incur costs pursuant to this final
569 See INA sec. 212(a)(4)(B)(ii). When required,
the applicant must submit Form I–864, Affidavit of
Support Under Section 213A of the INA.
570 See INA sec. 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D).
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rule, but it is unable to determine this
potential cost at this time due to data
limitations. DHS is not able to quantify
the number of noncitizens who would
possibly be deemed inadmissible at or
between the ports of entry based on a
public charge determination pursuant to
this final rule. DHS is qualitatively
acknowledging this potential impact.
4. Population
This final rule will affect individuals
who are present in the United States
who are seeking adjustment of status to
that of a lawful permanent resident. By
statute, an individual who is seeking
adjustment of status and is at any time
likely to become a public charge is
ineligible for such adjustment, unless
the individual is exempt from or has
received a waiver of the public charge
ground of inadmissibility.571 The
grounds of inadmissibility set forth in
section 212 of the INA, 8 U.S.C. 1182,
also apply when certain noncitizens
571 See
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3. Background and Purpose of the Rule
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seek admission to the United States,
whether for a temporary purpose or
permanently. However, the public
charge inadmissibility ground
(including ineligibility for adjustment of
status) does not apply to all applicants
since there are various categories of
applicants that Congress expressly
exempted from the public charge
inadmissibility ground. Within USCIS,
this final rule will affect individuals
who apply for adjustment of status
because these individuals would be
required to be reviewed for a
determination of inadmissibility based
on public charge grounds as long as the
individual is not in a category of
applicant that is exempt from the public
charge ground of inadmissibility. DHS
notes that the population estimates are
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based on noncitizens present in the
United States who are applying for
adjustment of status and, due to data
limitations, does not include
individuals seeking admission at or
between a port of entry. These
limitations could result in
underestimation of the cost, benefit, or
transfer payments of the final rule.
However, DHS is unable to quantify the
magnitude.
a. Population Seeking Adjustment of
Status
The population affected by this rule
consists of individuals who are applying
for adjustment of status using Form I–
485. Under the final rule, a subset of
these individuals (i.e., those who are not
exempt from the public charge ground
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of inadmissibility) will undergo review
for determination of inadmissibility
based on public charge grounds, unless
an individual is in a category of
applicant that is exempt from the public
charge ground of inadmissibility. The
following table shows the total number
of Form I–485 applications received for
FY 2014 to FY 2021. DHS selects the
period FY 2014–FY 2018 to project the
number of applications to be filed for
the next 10 years for the reasons
discussed below. Between FY 2014 and
FY 2018, the population of individuals
applying for adjustment of status ranged
from a low of 637,138 in FY 2014 to a
high of 763,192 in FY 2017. In addition,
the average population of individuals
who applied for adjustment of status
over this period was 690,837.
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For this analysis, DHS projects the
affected population for the 10-year
period from the beginning of FY 2022.
DHS bases its population projection on
the historical number of Form I–485
applications received over the period
FY 2014–FY 2018.572
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572 USCIS excluded data from FY 2019–FY 2021
due to data anomalies similar to trends that affected
other form types during this timeframe (such as
Form I–765, Form N–400, Form I–130, and Form I–
131). Generally, the trend for these forms is a peak
in receipts in FY 2016–2018, followed by a decrease
in FY 2019, a sharp reduction at the beginning of
the pandemic, and a recovery to previous levels
since that time. As shown in the table, the
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population of adjustment of status applicants in FY
2019 and FY 2020 decreased significantly, followed
by an increase beginning at the end of FY 2020 and
beginning of FY 2021. By far the most significant
increase in FY 2021 occurred in October 2020,
during which receipts reached 184,779, as
compared to 86,911 in October 2019, and 55,483 in
October 2018. The level of receipts in October 2020
was substantially higher than the level of receipts
for any other month since FY 2014. This increase
in receipts appears to have been driven in part by
the publication of the October 2020 Visa Bulletin
by DOS, which allowed many noncitizens to apply
for adjustment of status in the employment-based
categories. Source: USCIS analysis of data provided
by USCIS, Policy and Research Division (Jan. 10,
2022); USCIS analysis of data provided by USCIS,
Office of Performance and Quality (Aug. 15, 2022).
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i. Exemptions From Determination of
Inadmissibility Based on Public Charge
Ground
There are exemptions and waivers for
certain categories of noncitizens that are
not subject to a determination of
inadmissibility based on the public
charge ground. The following table
shows the classes of applicants for
admission, adjustment of status, or
registry according to statute or
regulation that are exempt from
inadmissibility based on the public
charge ground.
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To estimate the annual total
population of individuals seeking to
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adjust status who would be subject to
review for inadmissibility based on the
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public charge ground, DHS examined
the annual total population of
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55607
individuals who applied for adjustment
of status for FY 2014–FY 2018. As noted
above, the most recent fiscal years, FY
2019–FY 2021, are not considered for
this analysis because they may include
data anomalies.
For each fiscal year, DHS removed
individuals from the population whose
category of applicants is exempt from
review for inadmissibility on the public
charge ground, as shown in Table 9
below, leaving the total population that
would be subject to such review.
Further discussion of these exempt
categories can be found in the preamble.
Table 10 shows the total estimated
population of individuals seeking to
adjust status under a category of
applicant that is exempt from review for
inadmissibility on the public charge
ground for FY 2014–FY 2018 as well as
the total estimated population that
would be subject to public charge
review.573 In FY 2018, for example, the
total number of persons who applied for
adjustment of status across various
classes of admission was 704,407. After
removing individuals from this
population whose category of applicant
is exempt from review for
inadmissibility on the public charge
ground, DHS estimates the total
population of adjustment of status
applicants in FY 2018 who would be
subject to review for inadmissibility on
the public charge ground is 524,228.574
DHS estimates the projected annual
average total population of adjustment
of status applicants that would be
subject to review for inadmissibility on
the public charge ground is 501,520.
This estimate is based on the 5-year
average of the annual estimated total
population subject to review for
inadmissibility on the public charge
ground from FY 2014–FY 2018. Over
this 5-year period, the estimated
population of individuals who applied
for adjustment of status subject to
review for inadmissibility on the public
charge ground ranged from a low of
459,131 in FY 2014 to a high of 541,563
in FY 2017. DHS notes that the
population estimates are based on
noncitizens present in the United States
who are applying for adjustment of
status, rather than noncitizens who
apply for an immigrant visa through
consular processing at a U.S. embassy or
consulate abroad.
Certain noncitizens seeking
immigrant visas or adjustment of status
are required to submit an Affidavit of
Support Under Section 213A of the INA
executed by a sponsor on their behalf.
This requirement applies to most
family-sponsored immigrants and some
employment-based immigrants.575 Even
within the family-sponsored and
employment-based classes of admission,
some noncitizens are not required to
submit an Affidavit of Support Under
Section 213A executed by a sponsor on
their behalf. A failure to meet the
requirement for a sufficient Affidavit of
Support Under Section 213A of the INA
will result in the noncitizen being found
inadmissible under the public charge
ground of inadmissibility without
review of the statutory minimum factors
discussed above.576 When a sponsor
executes an Affidavit of Support Under
Section 213A of the INA on behalf of an
applicant, they establish a legally
enforceable contract between the
sponsor and the U.S. Government with
an obligation to financially support the
applicant and reimburse benefit
granting agencies if the sponsored
573 Calculation of total estimated population that
would be subject to public charge review: (Total
Population Applying for Adjustment of Status) ¥
(Total Population Seeking Adjustment of Status that
is Exempt from Public Charge Review for
Inadmissibility) = Total Population Subject to
Public Charge Review for Inadmissibility.
574 Calculation of total population subject to
public charge review for inadmissibility for fiscal
year 2018: 704,407Â¥180,179 = 524,228.
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ii. Requirement To Submit an Affidavit
of Support Under Section 213A of the
INA
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575 See INA sec. 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D).
576 See INA secs. 212(a)(4)(C) and (D), 213A(a), 8
U.S.C. 1182(a)(4)(C) and (D), 1183a(a).
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immigrant receives certain benefits
during the period of enforceability.577
Table 11 shows the estimated total
population of individuals seeking
adjustment of status who were required
or not required to have a sponsor
execute an Affidavit of Support Under
Section 213A of the INA on their behalf
over the period FY 2014–FY 2018. The
estimated annual average population of
individuals seeking to adjust status who
were required to have a sponsor submit
an affidavit of support on their behalf
over the 5-year period was 297,998.
Over this 5-year period, the estimated
total population of individuals required
to submit an affidavit of support from a
sponsor ranged from a low of 268,091 in
FY 2014 to a high of 329,011 in FY
2017.
5. Cost-Benefit Analysis
DHS expects this final rule to produce
costs and benefits associated with the
procedures for administering the public
charge ground of inadmissibility.
For this final rule, DHS generally uses
the effective minimum wage plus
weighted average benefits of $17.11 per
hour ($11.80 effective minimum wage
base plus $5.31 weighted average
benefits) as a reasonable proxy of the
opportunity cost of time for individuals
who are applying for adjustment of
status.578 DHS also uses $17.11 per hour
to estimate the opportunity cost of time
for individuals who cannot or choose
not to participate in the labor market as
these individuals incur opportunity
costs, assign valuation in deciding how
to allocate their time, or both. This
analysis uses the effective minimum
wage rate since approximately 80
percent of the total number of
individuals who applied for lawful
permanent resident status were in a
category of applicant under the familysponsored categories (including
immediate relatives of U.S. citizens) and
other non-employment-based
classifications such as diversity,
refugees and asylees, and parolees.579
Even when an individual is not working
for wages, their time has value. For
example, if someone performs childcare,
housework, or other activities without
paid compensation, that time still has
value. Due to the wide variety of nonpaid activities an individual could
pursue, it is difficult to estimate the
value of that time. DHS requested
comments on this issue and received
one comment. The commenter
suggested that DHS consider rates
consistent with those paid for similar
work in the candidate’s relevant labor
market. However, the commenter did
not provide any more detailed
suggestions on such rates. DHS elected
to use the effective minimum wage rate
for this time as a general measure since
it is difficult to estimate the value of the
time associated with the wide variety of
activities an individual could pursue.
The effective minimum wage of
$11.80 is an unweighted hourly wage
that does not account for worker
benefits. DHS accounts for worker
benefits when estimating the
opportunity cost of time by calculating
a benefits-to-wage multiplier using the
most recent Department of Labor,
Bureau of Labor Statistics (BLS) report
detailing the average employer costs for
employee compensation for all civilian
workers in major occupational groups
and industries. DHS estimates that the
benefits-to-wage multiplier is 1.45,
which incorporates employee wages and
salaries and the full cost of benefits,
such as paid leave, insurance, and
retirement.580 DHS notes that there is no
requirement that an individual be
employed in order to file Form I–485
and many applicants may not be
employed. Therefore, in this final rule,
DHS calculates the total rate of
compensation for individuals applying
for adjustment of status as $17.11 per
hour in this final rule using the benefitsto-wage multiplier, where the mean
577 See INA sec. 213A(a) and (b), 8 U.S.C.
1183a(a) and (b).
578 See Ernie Tedeschi, ‘‘Americans Are Seeing
Highest Minimum Wage in History (Without
Federal Help),’’ New York Times (Apr. 24, 2019),
https://www.nytimes.com/2019/04/24/upshot/whyamerica-may-already-have-its-highest-minimumwage.html (last visited Aug. 17, 2022).
579 USCIS analysis of data provided by USCIS,
Policy and Research Division (Dec. 2021).
580 The benefits-to-wage multiplier is calculated
as follows: (Total Employee Compensation per
hour)/(Wages and Salaries per hour) = $39.55/
$27.35 = 1.446 = 1.45 (rounded). See BLS,
Economic News Release, ‘‘Employer Cost for
Employee Compensation,’’ Table 1. Employer costs
per hour worked for employee compensation and
costs as a percent of total compensation: Civilian
workers, by major occupational and industry group,
(September 2001) https://www.bls.gov/
news.release/archives/ecec_09162021.pdf (viewed
Aug. 17, 2022).
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hourly wage is $11.80 per hour worked
and average benefits are $5.31 per
hour.581
a. Establishing the Baselines
DHS discusses the potential impacts
of this final rule relative to two
baselines. The first baseline is a No
Action Baseline that represents a state of
the world in which DHS is
implementing the public charge ground
of inadmissibility consistent with the
1999 Interim Field Guidance.
The second baseline is a Pre-Guidance
Baseline, which represents a state of the
world in which the 1999 NPRM,582 the
1999 Interim Field Guidance,583 and the
2019 Final Rule were not enacted.
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581 The calculation of the weighted Federal
minimum hourly wage for applicants: $11.80 per
hour * 1.45 benefits-to-wage multiplier = $17.11
(rounded) per hour.
582 See ‘‘Inadmissibility and Deportability on
Public Charge Grounds,’’ 64 FR 28676 (May 26,
1999).
583 See ‘‘Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,’’ 64 FR
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b. No Action Baseline
The No Action Baseline represents the
current state of the world in which DHS
applies the public charge ground of
inadmissibility consistent with the 1999
Interim Field Guidance. For this final
rule, DHS estimates the No Action
Baseline according to current operations
and requirements and compares the
estimated costs and benefits of the
provisions set forth in this final rule to
this baseline. DHS notes that costs
detailed as part of the No Action
Baseline include all current costs
associated with completing and filing
Form I–485, including required
biometrics collection and medical
examination (Form I–693), as well as
any affidavits of support (Forms I–864,
I–864A, I–864EZ, and I–864W) or
28689 (May 26, 1999). Due to a printing error, the
Federal Register version of the Field Guidance is
dated ‘‘March 26, 1999,’’ even though the guidance
was signed May 20, 1999, became effective May 21,
1999, and was published in the Federal Register on
May 26, 1999.
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55609
requested fee waivers (Form I–912).
These costs are part of the baseline costs
and are not attributable to the rule.
As noted previously in this analysis,
DHS estimates the projected average
annual total population of adjustment of
status applicants that would be subject
to review for inadmissibility on the
public charge ground is 501,520. This
estimate is based on the 5-year average
of the annual estimated total population
subject to review for inadmissibility on
the public charge ground from FY 2014–
FY 2018. Table 12 shows the estimated
population and annual costs of filing for
adjustment of status for the final rule.
These costs primarily result from the
process of applying for adjustment of
status, including filing Form I–485 and
Form I–693 as well as filing an affidavit
of support or Form I–912 or both, if
necessary.
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i. Forms Relevant to This Final Rule
Form I–485, Application To Register
Permanent Residence or Adjust Status
The basis of the quantitative costs
estimated for this final rule is the cost
of filing for adjustment of status using
Form I–485, the opportunity cost of time
for completing this form, any other
required forms, and the cost for any
other incidental costs (e.g., travel costs)
an individual must bear that are
required in the filing process. DHS
reiterates that costs examined in this
section are not additional costs that the
final rule will impose; rather, they are
costs applicants incur as part of the
current application process to adjust
status. The current filing fee for Form I–
485 is $1,140. The fee is set at a level
to recover the processing costs to DHS.
As previously discussed in the
population section, the estimated
average annual population of
individuals who apply for adjustment of
status using Form I–485 is 501,520.
Therefore, DHS estimates that the
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annual filing fee costs associated for
Form I–485 is approximately
$571,732,800.584
DHS estimates the time burden of
completing Form I–485 is 6.42 hours per
response, including the time for
reviewing instructions, gathering the
required documentation and
information, completing the application,
preparing statements, attaching
necessary documentation, and
submitting the application.585 Using the
total rate of compensation for minimum
wage of $17.11 per hour, DHS estimates
the opportunity cost of time for
completing and submitting Form I–485
584 Calculation: Form I–485 filing fee ($1,140) *
Estimated annual population filing Form I–485
(501,520) = $571,732,800 annual cost for filing
Form I–485.
585 USCIS, ‘‘Instructions for Application to
Register Permanent Residence or Adjust Status
(Form I–485),’’ OMB No. 1615–0023 (expires Mar.
31, 2023), https://www.uscis.gov/sites/default/files/
document/forms/i-485instr.pdf (last visited Aug. 17,
2022).
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will be $109.85 per applicant.586
Therefore, using the total population
estimate of 501,520 annual filings for
Form I–485, DHS estimates the total
opportunity cost of time associated with
completing Form I–485 is
approximately $55,091,972 annually.587
USCIS requires applicants who file
Form I–485 to submit biometric
information (fingerprints and signature)
by attending a biometrics services
appointment at a designated USCIS
Application Support Center (ASC). The
biometrics services processing fee is
$85.00 per applicant. Therefore, DHS
estimates that the annual cost associated
with biometrics services processing for
the estimated average annual population
of 501,520 individuals applying for
586 Calculation for opportunity cost of time for
filing Form I–485: ($17.11 per hour * 6.42 hours)
= $109.85 (rounded) per applicant.
587 Calculation: Form I–485 estimated
opportunity cost of time ($109.85) * Estimated
annual population filing Form I–485 (501,520) =
$55,091,972 (rounded) annual opportunity cost of
time for filing Form I–485.
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adjustment of status is approximately
$42,629,200.588
In addition to the biometrics services
fee, the applicant will incur the costs to
comply with the biometrics submission
requirement as well as the opportunity
cost of time for traveling to an ASC, the
mileage cost of traveling to an ASC, and
the opportunity cost of time for
submitting their biometrics. While
travel times and distances vary, DHS
estimates that an applicant’s average
roundtrip distance to an ASC is 50 miles
and takes 2.5 hours on average to
complete the trip.589 Furthermore, DHS
estimates that an applicant waits an
average of 1.17 hours for service and to
have their biometrics collected at an
ASC,590 adding up to a total biometricsrelated time burden of 3.67 hours. Using
the total rate of compensation of the
effective minimum wage of $17.11 per
hour, DHS estimates the opportunity
cost of time for completing the
biometrics collection requirements for
Form I–485 is $62.79 per applicant.591
Therefore, using the total population
estimate of 501,520 annual filings for
Form I–485, DHS estimates the total
opportunity cost of time associated with
completing the biometrics collection
requirements for Form I–485 is
approximately $31,490,441 annually.592
In addition to the opportunity cost of
providing biometrics, applicants will
incur travel costs related to biometrics
collection. The cost of travel related to
biometrics collection is approximately
$29.25 per trip, based on the estimated
average 50-mile roundtrip distance to an
ASC and the General Services
Administration’s (GSA) travel rate of
$0.585 per mile.593 DHS assumes that
588 Calculation: Biometrics services processing fee
($85) * Estimated annual population filing Form I–
485 (501,520) = $42,629,200 annual cost for
associated with Form I–485 biometrics services
processing.
589 See ‘‘Employment Authorization for Certain
H–4 Dependent Spouses,’’ 80 FR 10284 (Feb. 25,
2015); and ‘‘Provisional and Unlawful Presence
Waivers of Inadmissibility for Certain Immediate
Relatives,’’ 78 FR 536, 572 (Jan. 3, 2013).
590 Source for biometric time burden estimate:
USCIS, ‘‘Instructions for Application to Register
Permanent Residence or Adjust Status (Form I–
485),’’ OMB No. 1615–0023 (expires Mar. 31, 2023),
https://www.uscis.gov/sites/default/files/document/
forms/i-485instr.pdf (last visited Aug. 17, 2022).
591 Calculation for opportunity cost of time to
comply with biometrics submission for Form I–485:
($17.11 per hour * 3.67 hours) = $62.79 (rounded)
per applicant.
592 Calculation: Estimated opportunity cost of
time to comply with biometrics submission for
Form I–485 ($62.79) * Estimated annual population
filing Form I–485 (501,520) = $31,490,441
(rounded) annual opportunity cost of time for filing
Form I–485.
593 See U.S. General Services Administration,
‘‘Privately Owned Vehicle (POV) Mileage Rates
(Archived),’’ Previous automobile rates (January 1,
2022) https://www.gsa.gov/travel/plan-book/
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each applicant will travel
independently to an ASC to submit their
biometrics, meaning that this rule will
impose a travel cost on each of these
applicants. Therefore, DHS estimates
that the total annual cost associated
with travel related to biometrics
collection for the estimated average
annual population of 501,520
individuals applying for adjustment of
status is approximately $14,669,460.594
In sum, DHS estimates the total
current annual cost for filing Form I–
485 is $715,613,873, which includes
Form I–485 filing fees, biometrics
services fees, opportunity cost of time
for completing Form I–485 and
submitting biometrics information, and
travel cost associated with biometrics
collection.595 DHS notes that a medical
examination is generally required as
part of the application process to adjust
status. Costs associated with the
medical examination are detailed in the
next section. Moreover, costs associated
with submitting an affidavit of support
and requesting a fee waiver are also
detailed in subsequent sections since
such costs are not required for every
individual applying for an adjustment of
status.
Form I–693, Report of Medical
Examination and Vaccination Record
USCIS requires most applicants who
file Form I–485 seeking adjustment of
status to submit Form I–693 as
completed by a USCIS-designated civil
surgeon. Form I–693 is used to report
results of an immigration medical
examination to USCIS. For this analysis,
DHS assumes that all individuals who
apply for adjustment of status using
Form I–485 will also submit Form I–
693. DHS reiterates that costs examined
in this section are not additional costs
that the final rule will impose, but costs
that applicants currently incur as part of
the application process to adjust status.
Form I–693 is required for adjustment of
status applicants to establish that they
are not inadmissible to the United States
on health-related grounds. While there
is no filing fee associated with Form I–
693, the applicant is responsible for
transportation-airfare-pov-etc/privately-ownedvehicle-mileage-rates/pov-mileage-rates-archived
(last visited Aug. 17, 2022).
594 Calculation: (Biometrics collection travel
costs) * (Estimated annual population filing Form
I–485) = $29.25 * 501,520 = $14,669,460 annual
travel costs related to biometrics collection for Form
I–485.
595 Calculation: $571,732,800 (Annual filing fees
for Form I–485) + $55,091,972 (Opportunity cost of
time for filing Form I–485) + $42,629,200
(Biometrics services fees) + $31,490,441
(Opportunity cost of time for biometrics collection
requirements) + $14,669,460 (Travel costs for
biometrics collection) = $715,613,873 total current
annual cost for filing Form I–485.
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paying all costs of the immigration
medical examination, including the cost
of any follow-up tests or treatment that
is required, and must make payments
directly to the civil surgeon or other
health care provider. In addition,
applicants bear the opportunity cost of
time for completing the applicant
portions of Form I–693, as well as
sitting for the immigration medical
exam and the time waiting to be
examined.
USCIS does not regulate the fees
charged by civil surgeons for the
completion of an immigration medical
examination. In addition, immigration
medical examination fees vary widely
by civil surgeon, from as little as $20 to
as much as $1,000 per applicant
(including vaccinations, additional
medical evaluations, and testing that
may be required based on the medical
conditions of the applicant).596 DHS
estimates that the average cost for these
activities is $493.75 and that all
applicants will incur this cost.597 Since
DHS assumes that all applicants who
apply for adjustment of status using
Form I–485 must also submit Form I–
693, DHS estimates that based on the
estimated average annual population of
501,520 the annual cost associated with
filing Form I–693 is approximately
$247,625,500.598
DHS estimates the time burden
associated with filing Form I–693 is 2.5
hours per applicant, which includes
understanding and completing the form,
setting an appointment with a civil
surgeon for a medical exam, sitting for
the medical exam, learning about and
understanding the results of medical
tests, allowing the civil surgeon to
report the results of the medical exam
on the form, and submitting the medical
596 Source for immigration medical examination
cost range: Paperwork Reduction Act (PRA) Report
of Medical Examination and Vaccination Record
(Form I–693) (OMB control number 1615–0033).
The PRA Supporting Statement can be found at
Reginfo.gov, ICR Documents, I693–009EMG
Supporting Statement, Question 13, (Sept. 7, 2021)
https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=202108-1615-004 (last
visited Aug. 17, 2022).
597 Source for immigration medical examination
cost estimate: Paperwork Reduction Act (PRA)
Report of Medical Examination and Vaccination
Record (Form I–693) (OMB control number 1615–
0033). The PRA Supporting Statement can be found
at Reginfo.gov, ICR Documents, I693–009EMG
Supporting Statement, Question 13, (Sept. 7, 2021)
https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=202108-1615-004 (last
visited Aug. 17, 2022).
598 Calculation: (Estimated immigration medical
examination cost for Form I–693) * (Estimated
annual population filing Form I–485) = $493.75 *
501,520 = $247,625,500 annual estimated medical
exam costs for Form I–693.
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exam report to USCIS.599 DHS estimates
the opportunity cost of time for
completing and submitting Form I–693
is $42.78 per applicant based on the
total rate of compensation of minimum
wage of $17.11 per hour.600 Therefore,
using the total population estimate of
501,520 annual filings for Form I–485,
DHS estimates the total opportunity cost
of time associated with completing and
submitting Form I–693 is approximately
$21,455,026 annually.601
In sum, DHS estimates the total
current annual cost for filing Form I–
693 is $260,805,446, including medical
exam costs, the opportunity cost of time
for completing Form I–693, and cost of
postage to mail the Form I–693 package
to USCIS.602
Some applicants seeking an
adjustment of status may be eligible for
a fee waiver when filing Form I–485. An
applicant who is unable to pay the filing
fees or biometric services fees for an
application or petition may be eligible
for a fee waiver by filing Form I–912. If
an applicant’s Form I–912 is approved,
USCIS, as a component of DHS, will
waive both the filing fee and biometric
services fee. Therefore, DHS assumes for
the purposes of this economic analysis
that the filing fees and biometric
services fees required for Form I–485 are
waived if an approved Form I–912
accompanies the application. Filing
Form I–912 is not required for
applications and petitions that do not
have a filing fee. DHS also notes that
costs examined in this section are not
additional costs that will be imposed by
the final rule but costs that applicants
currently could incur as part of the
application process to adjust status.
Table 13 shows the estimated
population of individuals that requested
a fee waiver (Form I–912), based on
receipts, when applying for adjustment
of status in FY 2014–FY 2018, as well
as the number of requests that were
approved or denied each fiscal year.
During this period, the number of
individuals who requested a fee waiver
when applying for adjustment of status
ranged from a low of 49,292 in FY 2014
to a high of 95,476 in FY 2017. In
addition, the estimated average
population of individuals applying to
adjust status who requested a fee waiver
for Form I–485 over the 5-year period
FY 2014–FY 2018 was 69,194. DHS
estimates that 69,194 is the average
annual projected population of
individuals who will request a fee
waiver using Form I–912 when filing
Form I–485 to apply for an adjustment
of status.603
To provide a reasonable proxy of time
valuation for applicants, as described
previously, DHS assumes that
applicants requesting a fee waiver for
Form I–485 earn the total rate of
compensation for individuals applying
for adjustment of status as $17.11 per
hour, where the value of $10.51 per
hour represents the effective minimum
599 Source for immigration medical examination
time burden estimate: USCIS, ‘‘Instructions for
Report of Medical Examination and Vaccination
Record (Form I–693),’’ OMB No. 1615–0033
(expires Mar. 31, 2023), https://www.uscis.gov/
sites/default/files/document/forms/i-693instr.pdf
(last visited Aug. 17, 2022).
600 Calculation for immigration medical
examination opportunity cost of time: ($17.11 per
hour * 2.5 hours) = $42.78 per applicant.
601 Calculation: (Estimated immigration medical
examination opportunity cost of time for Form I–
693) * (Estimated annual population filing Form I–
485) = $42.78 * 501,520 = $21,455,026 (rounded)
annual opportunity cost of time for filing Form I–
485.
602 Calculation: $247,625,500 (Medical exam
costs) + $21,455,026 (Opportunity cost of time for
Form I–693) = $269,080,526 total current annual
cost for filing Form I–693.
603 DHS notes that the estimated population of
individuals who would request a fee waiver for
filing Form I–485 includes all visa classifications
for those applying for adjustment of status. DHS is
unable to determine the number of fee waiver
requests for filing Form I–485 that are associated
with specific visa classifications that are subject to
public charge review.
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Form I–912, Request for Fee Waiver
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wage with an upward adjustment for
benefits.
DHS estimates the time burden
associated with filing Form I–912 is 1
hour and 10 minutes per applicant (1.17
hours), including the time for reviewing
instructions, gathering the required
documentation and information,
completing the request, preparing
statements, attaching necessary
documentation, and submitting the
request.604 Therefore, using $17.11 per
hour as the total rate of compensation,
DHS estimates the opportunity cost of
time for completing and submitting
Form I–912 is $20.02 per applicant.605
Using the total population estimate of
69,194 requests for a fee waiver for
Form I–485, DHS estimates the total
opportunity cost of time associated with
completing and submitting Form I–912
is approximately $1,385,264
annually.606
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Form I–864, Affidavit of Support Under
Section 213A of the INA, and Related
Forms
As previously discussed, submitting a
Form I–864 is required for most familybased immigrants and some
employment-based immigrants to show
that they have adequate means of
financial support and are not likely to
become a public charge. Additionally,
Form I–864 can include Form I–864A,
which may be filed when a sponsor’s
income and assets do not meet the
income requirements of Form I–864 and
the qualifying household member
chooses to combine their resources with
the sponsor’s income, assets, or both to
meet those requirements. Some
sponsors for applicants filing
applications for adjustment of status
may be able to execute Form I–864EZ
rather than Form I–864, provided
certain criteria are met. Moreover,
certain classes of immigrants currently
are exempt from the requirement to file
Form I–864 or Form I–864EZ and
therefore must file Form I–864W,
Request for Exemption for Intending
Immigrant’s Affidavit of Support.
There is no filing fee associated with
filing Form I–864 with USCIS. However,
DHS estimates the time burden
604 Source for fee waiver time burden estimate:
USCIS, ‘‘Instructions for Fee Waiver Request (Form
I–912),’’ OMB No. 1615–0116 (expires Sept. 30,
2024), https://www.uscis.gov/sites/default/files/
document/forms/i-912instr.pdf (last visited Aug. 17,
2022).
605 Calculation for fee waiver opportunity cost of
time: ($17.11 per hour * 1.17 hours) = $20.02
(rounded).
606 Calculation: (Estimated opportunity cost of
time for Form I–912) * (Estimated annual
population of approved Form I–912) = $20.02 *
69,194 = $1,385,264 (rounded) annual opportunity
cost of time for filing Form I–912 that are approved.
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associated with a sponsor executing
Form I–864 is 6 hours per adjustment
applicant, including the time for
reviewing instructions, gathering the
required documentation and
information, completing the affidavit,
preparing statements, attaching
necessary documentation, and
submitting the Form I–864.607
To estimate the opportunity cost of
time associated with filings of I–864,
this analysis uses $39.55 per hour, the
total compensation amount including
costs for wages and salaries and benefits
from the BLS report on Employer Costs
for Employee Compensation detailing
the average employer costs for employee
compensation for all civilian workers in
major occupational groups and
industries.608 DHS uses this wage rate
because DHS expects that sponsors who
file affidavits of support have adequate
means of financial support and are
likely to be employed.
Using the average total rate of
compensation of $39.55 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
864 will be $237.30 per petitioner.609
DHS assumes that the average rate of
total compensation used to calculate the
opportunity cost of time for Form I–864
is appropriate since the sponsor of an
immigrant, who is agreeing to provide
financial and material support, is
instructed to complete and submit the
form. Using the estimated annual total
population of 297,998 individuals
seeking to adjust status who are
required to submit an Affidavit of
Support Under Section 213A of the INA
using Form I–864, DHS estimates the
opportunity cost of time associated with
completing and submitting Form I–864
$70,714,925 annually.610 DHS estimates
this amount as the total current annual
cost for filing Form I–864, as required
when applying to adjust status.
607 Source for Form I–864 time burden estimate:
USCIS, ‘‘Instructions for Affidavit of Support Under
Section 213A of the INA (Form I–864),’’ OMB No.
1615–0075 (expires Dec. 31, 2023), https://
www.uscis.gov/sites/default/files/document/forms/
i-864instr.pdf (last visited Aug. 17, 2022).
608 See BLS, Economic News Release, ‘‘Employer
Cost for Employee Compensation,’’ Table 1.
Employer costs per hour worked for employee
compensation and costs as a percent of total
compensation: Civilian workers, by major
occupational and industry group (Sept. 16, 2021)
https://www.bls.gov/news.release/archives/ecec_
12162021.pdf (last visited Aug. 17, 2021).
609 Calculation for opportunity cost of time for
completing and submitting Form I–864, Affidavit of
Support Under Section 213A of the INA: ($39.55
per hour * 6.0 hours) = $237.30 per applicant.
610 Calculation: (Form I–864 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–864) = $237.30 * 297,998
= $70,714,925 (rounded) total annual opportunity
cost of time for filing Form I–864.
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There is also no filing fee associated
with filing Form I–864A with USCIS.
However, DHS estimates the time
burden associated with filing Form I–
864A is 1 hour and 45 minutes (1.75
hours) per petitioner, including the time
for reviewing instructions, gathering the
required documentation and
information, completing the contract,
preparing statements, attaching
necessary documentation, and
submitting the contract.611 Therefore,
using the average total rate of
compensation of $39.55 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
864A will be $69.21 per petitioner.612
DHS assumes the average total rate of
compensation used for calculating the
opportunity cost of time for Form I–864
since both the sponsor and another
household member agree to provide
financial support to an immigrant
seeking to adjust status. However, the
household member also may be the
intending immigrant. While Form I–
864A must be filed with Form I–864,
DHS notes that it is unable to determine
the number of filings of Form I–864A
since not all individuals filing I–864
need to file Form I–864A with a
household member.
As with Form I–864, there is no filing
fee associated with filing Form I–864EZ
with USCIS. However, DHS estimates
the time burden associated with filing
Form I–864EZ is 2 hours and 30
minutes (2.5 hours) per petitioner,
including the time for reviewing
instructions, gathering the required
documentation and information,
completing the affidavit, preparing
statements, attaching necessary
documentation, and submitting the
affidavit.613 Therefore, using the average
total rate of compensation of $39.55 per
hour, DHS estimates the opportunity
cost of time for completing and
submitting Form I–864EZ will be $98.88
per petitioner.614 However, DHS notes
611 Source for I–864A time burden estimate:
USCIS, ‘‘Instructions for Contract Between Sponsor
and Household Member (Form I–864A),’’ OMB No.
1615–0075 (expires Dec. 31, 2023), https://
www.uscis.gov/sites/default/files/document/forms/
i-864ainstr.pdf (last visited Aug. 17, 2022).
612 Calculation for opportunity cost of time for
completing and submitting Form I–864A, Contract
Between Sponsor and Household Member: ($39.55
per hour * 1.75 hours) = $69.21 (rounded) per
petitioner.
613 Source for I–864EZ time burden estimate:
USCIS, ‘‘Instructions for Affidavit of Support Under
Section 213A of the INA (Form I–864EZ),’’ OMB
No. 1615–0075 (expires Dec. 31, 2023), https://
www.uscis.gov/sites/default/files/document/forms/
i-864ezinstr.pdf (last visited Aug. 17, 2022).
614 Calculation for opportunity cost of time for
completing and submitting Form I–864EZ, Affidavit
of Support Under Section 213A of the INA: ($39.55
per hour * 2.5 hours) = $98.88 (rounded).
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ii. Costs of Final Regulatory Changes
In this section, DHS estimates costs of
the final rule relative to No Action
Baseline. The primary source of
quantified new costs for the final rule
will be from an additional 0.75 hours
increase in the time burden estimate to
complete Form I–485 for applicants who
are subject to the public charge ground
of inadmissibility.617 The additional
time burden is required to collect
information based on factors such as
age; health; family status; assets,
resources, and financial status; and
education and skills, so that USCIS
could determine whether an applicant
would be inadmissible to the United
States based on the public charge
ground.
The final rule will include additional
instructions as well as additional
questions for filing Form I–485 for
applicants who are subject to the public
charge ground of inadmissibility and, as
a result, those applicants would spend
additional time reading the instructions
increasing the estimated time to
complete the form. The current
estimated time to complete Form I–485
is 6 hours and 25 minutes (6.42 hours).
For the final rule, DHS estimates that
the time burden for completing Form I–
485 will increase by 45 minutes (0.75
hours). As explained above, DHS
reduced the estimated time burden for
completing the revised Form I–485 from
7.92 hours to 7.17 hours. Open-ended
questions requiring narrative-style
responses that were included in the
information collection instrument
associated with the NPRM have been
changed to multiple-choice style
questions that will require less time for
an applicant to answer.
Therefore, in the final rule, the time
burden to complete Form I–485 will be
7 hours and 10 minutes (7.17 hours).
The following cost is a new cost that
would be imposed on the population
applying to adjust status using Form I–
485 for applicants who are subject to the
public charge ground of inadmissibility.
Table 14 shows the estimated new
annual costs that the final rule will
impose on individuals seeking to adjust
status using Form I–485 for applicants
who are subject to the public charge
ground of inadmissibility with a 0.75
hour increase in the time burden
estimate for completing Form I–485.
The time burden includes the time for
reviewing instructions, gathering the
required documentation and
information, completing the application,
preparing statements, attaching
necessary documentation, and
submitting the application.618 Using the
total rate of compensation for minimum
wage of $17.11 per hour, DHS currently
estimates the opportunity cost of time
for completing and filing Form I–485
will be $12.83 per applicant.619
Therefore, using the total population
estimate of 501,520 annual filings for
Form I–485 for applicants who are
subject to the public charge ground of
inadmissibility, DHS estimates the
current total opportunity cost of time
associated with completing Form I–485
is approximately $6,435,755
annually.620
615 Source for I–864W time burden estimate:
USCIS, ‘‘Instructions for Request for Exemption for
Intending Immigrant’s Affidavit of Support (Form I–
864W),’’ OMB No. 1615–0075 (expires Dec. 31,
2023), https://www.uscis.gov/sites/default/files/
document/forms/i-864winstr.pdf (last visited Aug.
17, 2022).
616 Calculation for opportunity cost of time for
completing and submitting Form I–864W: ($39.55
per hour * 1.0 hours) = $39.55.
617 To be clear, these form changes will not affect
applicants who are exempt from the public charge
ground of inadmissibility listed in new 8 CFR
212.23.
618 Source: USCIS, ‘‘Instructions for Application
to Register Permanent Residence or Adjust Status
(Form I–485),’’ OMB No. 1615–0023 (expires Mar.
31, 2023), https://www.uscis.gov/sites/default/files/
document/forms/i-485instr.pdf (last visited Aug. 17,
2022).
619 Calculation for opportunity cost of time for
filing Form I–485: ($17.11 per hour * 0.75 hours)
= $12.83 (rounded) per applicant.
620 Calculation: Form I–485 estimated
opportunity cost of time ($17.11 per hour * 0.75
hours) * Estimated annual population filing Form
I–485 (501,520) = $17.11 * 0.75 * 501,520 =
$6,435,755 (rounded) annual opportunity cost of
time for filing Form I–485.
jspears on DSK121TN23PROD with RULES2
that it is unable to determine the
number of filings of Form I–864EZ and,
therefore, rely on the annual cost
estimate developed for Form I–864.
There is also no filing fee associated
with filing Form I–864W with USCIS.
However, DHS estimates the time
burden associated with filing this form
is 60 minutes (1 hour) per petitioner,
including the time for reviewing
instructions, gathering the required
documentation and information,
completing the request, preparing
statements, attaching necessary
documentation, and submitting the
request.615 Therefore, using the average
total rate of compensation of $39.55 per
hour, DHS estimates the opportunity
cost of time for completing and
submitting Form I–864EZ will be $39.55
per petitioner.616 However, DHS notes
that it is unable to determine the
number of filings of Form I–864W and,
therefore, rely on the annual cost
estimate developed for Form I–864.
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iii. Cost Savings of the Final Regulatory
Changes
DHS anticipates that the final rule
will produce some quantitative cost
savings relative to both baselines. With
this rule, T nonimmigrants applying for
adjustment of status will no longer need
to submit Form I–601 seeking a waiver
on public charge grounds of
inadmissibility. The existing regulations
at 8 CFR 212.18 and 8 CFR 245.23
stating that T nonimmigrants are
required to obtain waivers are not in
line with the Violence Against Women
Act Reauthorization Act of 2013 (VAWA
2013).621 T nonimmigrants are exempt
from public charge inadmissibility
under the statute, and therefore never
should have required a waiver in order
to adjust status. The final rule will align
the regulation with the statute. DHS
estimates the cost savings for this
population will be approximately
$15,359 annually.
Table 15 shows the total population
between FY 2014 and FY 2018 that filed
form I–601. Over the 5-year period the
population of individuals who have
applied for adjustment of status ranged
from a low of 6 in FY 2018 to a high
of 35 in FY 2014. On average, the
annual population of individuals over
five fiscal years who filed Form I–601
and applied for adjustment of status
with a T nonimmigrant status is 16.
DHS considers the historical data
from FY 2014 to FY 2018 as the basis
to form an estimated population
projection of receipts for Form I–601 for
T nonimmigrants who are adjusting
status for the 10-year period beginning
in FY 2022. Based on the average annual
population of I–601 filers between FY
2014 and FY 2018, DHS projects that 16
T nonimmigrants who are applying for
adjustment of status will no longer need
to file Form I–601. DHS uses the
effective minimum wage base plus
weighted average benefit of $17.11 per
hour to estimate the opportunity cost of
time for these individuals since they are
not likely to be participating in the labor
market. DHS estimated the time burden
to complete the Form I–601 as 1.75
hours, including the time for reviewing
instructions, gathering the required
documentation and information,
completing the application, preparing
statements, attaching necessary
documentation, and submitting the
application.622 Thus, DHS estimates the
opportunity cost of time for completing
Form I–601 to be $479.08.623 Based on
the population estimate and the filing
fee of $930 for Form I–601, the total
estimated cost for filing fees for the all
16 estimated filers will be
approximately $14,880.624 The sum of
the filing fee results in an estimated
total annual savings of approximately
$15,359 resulting from the final rule,
including the opportunity cost of time
and filing fees.625
spent reviewing a rule. A noncitizen
might review the rule to determine
whether they are subject to the final
rule. To the extent an individual who is
directly regulated by the rule incurs
familiarization costs, those
familiarization costs are a direct cost of
the rule.
In addition to those being directly
regulated by the rule, a wide variety of
other entities would likely choose to
read the rule and incur familiarization
costs. For example, immigration
lawyers, immigration advocacy groups,
benefits-administering agencies,
nonprofit organizations,
nongovernmental organizations, and
religious organizations, among others,
may want to become familiar with the
provisions of this final rule. DHS
believes such nonprofit organizations
and other advocacy groups might
choose to read the rule to provide
621 See
Public Law 113–4, 127 Stat. 54 (2013).
USCIS, ‘‘Instructions for Application
for Waiver of Grounds of Inadmissibility (Form I–
601),’’ OMB No. 1615–0029 (expires July. 31, 2023),
https://www.uscis.gov/sites/default/files/document/
forms/i-601instr.pdf (last visited Aug. 17, 2022).
622 Source:
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iv. Familiarization Costs
A likely impact of the final rule
relative to both baselines is that various
individuals and other entities will incur
costs associated with familiarization
with the provisions of the rule.
Familiarization costs involve the time
623 Calculation: (Form I–601, time burden) *
(Estimated annual applicants for Form I–601) *
(Hourly wage) = 1.75 * 16 * $17.11 = $479.08
(rounded) per applicant.
624 Calculation: Filing fee * Estimated annual
applicants for Form I–601 = $930 * 16 = $14,880.
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625 Calculation: Total savings ($15,359) = $479.08
+ $14,880 = $15,359 (rounded).
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information to noncitizens and
associated households who may be
subject to the rule. Familiarization costs
incurred by those not directly regulated
are indirect costs. Indirect impacts are
borne by entities that are not
specifically regulated by this rule but
may incur costs due to changes in
behavior related to this rule.
DHS estimates the time that will be
necessary to read the rule is
approximately 8 to 9 hours per person,
resulting in opportunity costs of time.
DHS assumes the average professional
reads technical documents at a rate of
about 250 to 300 words per minute. An
entity, such as a nonprofit or advocacy
group, may have more than one person
who reads the final rule. Using the
average total rate of compensation as
$39.55 per hour for all occupations,
DHS estimates that the opportunity cost
of time will range from about $316.40to
$355.95 per individual who must read
and review the final rule.626 However,
DHS is unable to estimate the number
of people that will familiarize
themselves with this rule. As such, DHS
is unable to quantify this cost. DHS
requested comments on other possible
indirect impacts of the rule and
appropriate methodologies for
quantifying these non-monetized
potential impacts. DHS received several
comments on the indirect impact of the
rule at the State level. The discussion is
included in the following section.
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v. Transfer Payments and Indirect
Impacts of the Final Regulatory Changes
DHS also considers transfer payments
from the Federal and State governments
to certain individuals who receive
public benefits that may be more likely
to occur under the final regulatory
changes as compared to the No Action
Baseline. While the final rule follows
closely the approach taken in the 1999
Interim Field Guidance, it contains
three changes that may have an effect on
transfer payments. First, the final rule
626 Calculation: (Average total compensation for
all occupations) * (Time to read rule ¥ lower
bound) = (Opportunity cost of time [OCT] to read
rule) = $39.55 * 8 hours = $316.40 OCT per
individual to read rule, 8 hours (rounded) =
(approximately 140,000 words/300)/60.
Calculation: (Average total compensation for all
occupations) * (Time to read rule ¥ upper bound)
= (Opportunity cost of time [OCT] to read rule) =
$39.55 * 9 hours = $355.95 OCT per individual to
read rule, 9 hours = (approximately 140,000 words/
250)/60.
Average total compensation for all occupations
($39.55): See BLS, Economic News Release,
‘‘Employer Cost for Employee Compensation,’’
Table 1. Employer costs per hour worked for
employee compensation and costs as a percent of
total compensation: Civilian workers, by major
occupational and industry group (September 16,
2021), https://www.bls.gov/news.release/archives/
ecec_09162021.pdf (last viewed Aug. 17, 2022).
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provides that, in any application for
admission or adjustment of status in
which the public charge ground of
inadmissibility applies, DHS will not
consider any public benefits received by
a noncitizen during periods in which
the noncitizen was present in the
United States in an immigration
category that is exempt from the public
charge ground of inadmissibility.
Second, under the final rule, when
making a public charge inadmissibility
determination, DHS will also not
consider any public benefits that were
received by noncitizens who are eligible
for resettlement assistance, entitlement
programs, and other benefits available to
refugees admitted under section 207 of
the INA, 8 U.S.C. 1157, including
services described under section
412(d)(2) of the INA, 8 U.S.C.
1522(d)(2), provided to an
‘‘unaccompanied alien child’’ as defined
under section 462(g)(2) of the HSA, 6
U.S.C. 279(g)(2). Individuals covered by
these exclusions may be more likely to
participate in public benefit programs
for the limited period of time that they
are in such status or eligible for such
benefits. Third, applying for a public
benefit on one’s own behalf or on behalf
of another would not constitute receipt
of public benefits by the noncitizen
applicant. This definition would make
clear that the noncitizen’s receipt of
public benefits solely on behalf of
another, or the receipt of public benefits
by another individual (even if the
noncitizen assists in the application
process), would also not constitute
receipt of public benefits by the
noncitizen. These clarifications could
lead to an increase in public benefit
participation by certain persons (most of
whom will likely not to be subject to the
public charge ground of inadmissibility
in any event). This change could
increase transfer payments from the
Federal, State, Tribal, territorial, and
local governments to certain
individuals. DHS is unable to quantify
the effects of these changes.
DHS acknowledges that an increase in
transfer payments due to this final rule
would produce other indirect impacts.
For example, administrative costs to the
State and local benefits-granting
agencies associated with public benefit
program enrollments would likely
increase. When public benefit program
enrollments increase, the processing of
more enrollees results in an increase in
costs to those agencies. However, DHS
is unable to quantify the increase in
administrative costs. DHS received a
comment from one State regarding
administrative costs for Medicaid
participants and SNAP recipients. The
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State noted that it incurred
administrative costs of $103 million and
$63 million, respectively in fiscal year
2020, but did not explain how
administrative costs might scale up or
down as a consequence of enrollment
decisions by beneficiaries. DHS notes
that these costs represent the State’s
total annual administrative costs
associated with Medicaid and SNAP,
not the total direct costs of providing
the actual benefit to a recipient (which
the commenter also provided with
respect to Medicaid), or costs from
which a per-enrollee marginal cost to
that State could be calculated. DHS also
notes that these administrative costs
cannot be reliably applied to every U.S.
State. Finally, DHS is unable to quantify
the increase in enrollees due to the lack
of data.
Another example of an indirect
impact of this final rule is that it is
likely to increase access to public
benefit programs by some eligible
individuals, including noncitizens and
U.S. citizens in mixed-status
households, with a range of downstream
indirect effects for public health and
community stability and resilience.
vi. Benefits of Final Regulatory Changes
The primary benefit of the final rule
will be time savings of individuals
directly and indirectly affected by the
final rule. By clarifying standards
governing a determination that a
noncitizen is inadmissible or ineligible
to adjust status on the public charge
ground, the final rule will reduce time
spent by the affected population who
are making decisions to apply for
adjustment of status or enrolling or
disenrolling in public benefit programs.
For example, when noncitizens make
decisions on whether to adjust status or
to enroll or disenroll in public benefit
programs, they may spend time
gathering information or consulting
attorneys. The final rule will reduce the
time spent making these decisions.
Specifically, the final rule provides
clarity on inadmissibility on the public
charge ground by codifying certain
definitions, standards, and procedures.
Listing the categories of noncitizens
exempt from the public charge
inadmissibility ground adds clarity as to
which noncitizens are subject to the
public charge determination and will
help to reduce uncertainty and
confusion. However, DHS is unable to
quantify the reduction in time spent
gathering information or consulting
attorneys. DHS does not have data on
how much time individuals would
spend in making a decision on whether
to adjust status or to enroll or disenroll
in public benefit programs. DHS
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To compare costs over time, DHS
applied a 3 percent and a 7 percent
discount rate to the total estimated costs
and savings associated with the final
rule.627 Table 16 presents a summary of
the total direct costs, savings, and net
costs in the final rule.
Over the first 10 years of
implementation, DHS estimates the
undiscounted direct costs of the final
rule will be approximately $64,357,550,
the cost savings $153,590, and the net
costs $64,203,960. In addition, as seen
in Table 17, DHS estimates that the 10year discounted net cost of this final
rule to individuals applying to adjust
status who would be required to
undergo review for determination of
inadmissibility based on public charge
will be approximately $54,767,280 at a
3 percent discount rate and
approximately $45,094,175 at a 7
percent discount rate.
viii. Costs to the Federal Government
adjudication burden and use of USCIS
resources. Fees are established at an
amount that is necessary to recover
these assigned costs, such as salaries
and benefits for clerical positions,
officers, and managerial positions, plus
an amount to recover unassigned
overhead (e.g., facility rent, IT
equipment and systems) and
immigration benefits provided without a
fee charge. Consequently, since USCIS
immigration fees are based on resource
expenditures related to the service in
question, USCIS uses the fee associated
with an information collection as a
reasonable measure of the collection’s
costs to USCIS. Therefore, DHS has
established the fee for the adjudication
of Form I–485, Application to Register
Permanent Residence or Adjust Status.
Time required for USCIS to review the
additional information collected in
Form I–485 when the final rule is
finalized includes the additional time to
adjudicate the underlying benefit
request. DHS notes that the final rule
The INA provides for the collection of
fees at a level that will ensure recovery
of the full costs of providing
adjudication and naturalization
services, including administrative costs
and services provided without charge to
certain applicants and petitioners. See
section 286(m) of the INA, 8 U.S.C.
1356(m). DHS notes that USCIS
establishes its fees by assigning costs to
an adjudication based on its relative
627 See OMB, ‘‘Circular A–4’’ (Sept. 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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vii. Total Estimated and Discounted
Costs
ER09SE22.034
requested public comments on this
issue but did not receive any.
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may increase USCIS’ costs associated
with adjudicating immigration benefit
requests. DHS estimates that the
increased time to adjudicate the benefit
request will result in an increased
employee cost of approximately $14
million per year.628 USCIS currently
does not charge a filing fee for other
forms affected by this final rule do not
currently charge a filing fee, including
Form I–693, Medical Examination and
Vaccination Record; Affidavit of
Support forms (Form I–864, Form I–
864A, Form I–864EZ, and I–864W);
Form I–912, Request for Fee Waiver,
and Form I–407, Record of
Abandonment of Lawful Permanent
Resident Status. While filing fees are not
charged for these forms, the cost to
USCIS is captured in the fee for I–485.
Future adjustments to the fee schedule
may be necessary to recover the
additional operating costs and will be
determined at USCIS’ next
comprehensive biennial fee review.
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c. Pre-Guidance Baseline
As noted above, the Pre-Guidance
Baseline represents a state of the world
in which the 1999 NPRM, 1999 Interim
Field Guidance, and the 2019 Final Rule
were not enacted. The Pre-Guidance
Baseline is included in this analysis in
accordance with OMB Circular A–4,
which directs agencies to include a
‘‘pre-statutory’’ baseline in an analysis if
substantial portions of a rule may
simply restate statutory requirements
that would be self-implementing, even
in the absence of the regulatory
action.629 DHS previously has not
performed a regulatory analysis on the
regulatory costs and benefits of the 1999
Interim Field Guidance and, therefore,
includes a Pre-Guidance Baseline in this
analysis for clarity and completeness.
DHS presents the Pre-Guidance Baseline
to provide a more informed picture on
the overall impacts of the 1999 Interim
Field Guidance since its inception,
while recognizing that many of these
impacts have been realized already.
The final rule will affect individuals
who apply for adjustment of status
because these individuals would be
subject to inadmissibility
determinations based on the public
charge ground as long as the individual
is not in a category of applicant that is
exempt from the public charge ground
628 Office of Performance and Quality data
received on December 30, 2021. The increase in
employee cost is based on estimates of additional
adjudication time due to the rule, at compensation
rates approximated by General Schedule wage data
for USCIS employees.
629 See OMB. Circular A–4, pp. 15–16, (Sept. 17,
2003) https://www.whitehouse.gov/sites/
whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
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of inadmissibility. In order to estimate
the effect of the final rule relative to PreGuidance baseline, DHS revisits the
state of the world for both the PreGuidance baseline and the No Action
baseline. The state of the world in the
Pre-Guidance baseline is one in which
the 1999 Interim Field Guidance was
never issued. The state of the world in
the No Action baseline is one in which
the 1999 Interim Field Guidance was
issued and has been in practice. In order
to estimate the effect of the 2022 final
rule relative to the Pre-Guidance
baseline, DHS considers the effect of the
1999 Interim Field Guidance relative to
the Pre-Guidance baseline as well as the
changes in this final rule relative to the
No Action Baseline. Since the latter has
already been discussed in the No Action
Baseline Section, the rest of this section
focuses on estimating the effect of the
1999 Interim Field Guidance relative to
the Pre-Guidance baseline.
PRWORA and IIRIRA generated
considerable public confusion about
noncitizen eligibility for public benefits
and the related question of whether the
receipt of Federal, State, or local public
benefits for which a noncitizen may be
eligible renders them likely to become a
public charge. According to the
literature, these laws led to sharp
reductions in the use of public benefit
programs by immigrants between 1994
and 1997. This phenomenon is referred
to as a chilling effect, which describes
immigrants disenrolling from or
forgoing enrollment in public benefit
programs due to fear or confusion
regarding: (1) the immigration
consequences of public benefit receipt;
or (2) the rules regarding noncitizen
eligibility for public benefits.630 631 632
The state of the world before the 1999
NPRM and 1999 Field Guidance
reflected growing public confusion over
the meaning of the term ‘‘public charge’’
in immigration law, which was
undefined, and its relationship to the
receipt of Federal, State, or local public
benefits.
The U.S. Department of Agriculture
(USDA) published a study shortly after
630 Michael Fix and Jeffrey Passel, ‘‘Trends in
noncitizens’ and citizens’ use of public benefits
following welfare reform,’’ Urban Institute (Mar. 1,
1999), https://webarchive.urban.org/publications/
408086.html (last visited Aug. 17, 2022).
631 Stephen Bell, ‘‘Why are welfare caseloads
falling?,’’ Urban Institute (March 2001), https://
www.urban.org/research/publication/why-arewelfare-caseloads-falling (last visited Aug. 17,
2022).
632 Magnus Lofstrom and Frank Bean, ‘‘Assessing
immigrant policy options: Labor market conditions
and post-reform declines in immigrants’ receipt of
welfare,’’ Demography 39(4), 617–63 (Nov. 2002),
https://read.dukeupress.edu/demography/articlepdf/39/4/617/884758/617lofstrom.pdf (last visited
Aug. 17, 2022).
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PRWORA took effect. The study found
that the number of people receiving
food stamps fell by over 5.9 million
between summer 1994 and summer
1997.633 The study notes that
enrollment in the food stamps program
was falling during this period, possibly
due to strong economic growth, but the
decline in enrollment was steepest
among legal immigrants. Under
PRWORA, legal immigrants were facing
significantly stronger restrictions under
which most of them would become
ineligible to receive food stamps in
September 1997. The study found that
enrollment of legal immigrants in the
food stamps program fell by 54 percent,
accounting for 14 percent of the total
decline. USDA also observed that
Restrictions on participation by legal
immigrants appear to have deterred
participation by their children, many of
whom retained their eligibility for food
stamps. Participation among U.S. born
children living with their legal immigrant
parents fell faster than participation among
children living with native-born parents. The
number of [participating] children living
with legal immigrants fell by 37 percent,
versus 15 percent for children living with
native-born parents.634
Another study found evidence of a
‘‘chilling effect’’ following enactment of
PRWORA and IIRIRA where noncitizen
enrollment in public benefits programs
declined more steeply than U.S. citizen
enrollment over the period 1994
through 1997.635 The study found that
‘‘[w]hen viewed against the backdrop of
overall declines in welfare receipt for all
households, use of public benefits
among noncitizen households fell more
sharply (35 percent) between 1994 and
1997 than among citizen households (14
percent). These patterns hold for welfare
(defined here as TANF, SSI, and General
Assistance), food stamps, and
633 See Jenny Genser, ‘‘Who is leaving the Food
Stamps Program: An analysis of Caseload Changes
from 1994 to 1997,’’ U.S. Department of
Agriculture, Food and Nutrition Service, Office of
Analysis, Nutrition, and Evaluation (1999), https://
www.fns.usda.gov/snap/who-leaving-food-stampprogram-analysis-caseload-changes-1994-1997 (last
visited Aug. 17, 2022).
634 Jenny Genser, ‘‘Who is leaving the Food
Stamps Program: An analysis of Caseload Changes
from 1994 to 1997,’’ U.S. Department of
Agriculture, Food and Nutrition Service, Office of
Analysis, Nutrition, and Evaluation (Mar. 1999), at
2–3 (internal table citation omitted), https://
www.fns.usda.gov/snap/who-leaving-food-stampprogram-analysis-caseload-changes-1994-1997 (last
visited Aug. 17, 2022).
635 See Michael Fix and Jeffrey Passel, ‘‘Trends in
Noncitizens’ and Citizens’ Use of Public Benefits
Following Welfare Reform: 1994–1997,’’ Urban
Institute (1999) (Fix and Passel (1999)), https://
www.urban.org/research/publication/trendsnoncitizens-and-citizens-use-public-benefitsfollowing-welfare-reform (last visited Aug. 17,
2022).
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Medicaid.’’ 636 The study authors
concluded that rising incomes did not
explain the relatively high
disenrollment rate and suggested that
the steeper declines in noncitizens’ use
of benefits was attributable more to the
chilling effects of PRWORA and public
charge, among other factors. The study
authors expected that, over time,
eligibility changes would become more
important because, under PRWORA,
most immigrants admitted after August
22, 1996, would be ineligible for most
means-tested public benefits for at least
5 years after their entry to the
country.637
As described in the 1999 NPRM, the
1999 NPRM sought to reduce the
negative public health and nutrition
consequences generated by the existing
confusion and to provide noncitizens
with better guidance as to the types of
public benefits that would be
considered or not considered in reviews
for inadmissibility on the public charge
ground.
By providing a clear definition of
‘‘likely at any time to become a public
charge’’ and identifying the types of
public benefits that would be
considered in public charge
inadmissibility determinations, the final
rule could alleviate confusion and
uncertainty with respect to the
provision of emergency and other
medical assistance, children’s
immunizations, and basic nutrition
programs, as well as the treatment of
communicable diseases. Immigrants’
fears of obtaining these necessary
medical and other benefits not only
causes considerable harm, but also can
have a range of downstream
consequences for the general public. By
describing the kinds of public benefits,
if received, that could result in a
determination that a person is likely at
any time to become a public charge,
immigrants would be able to maintain
available supplemental benefits that are
designed to aid individuals in gaining
and maintaining employment. The final
rule also lists the factors that must be
considered in making public charge
determinations. The final rule makes
clear that the past or current receipt of
public assistance, by itself, would not
lead to a determination of being likely
to become a public charge without also
considering the minimum statutory
factors.
The primary economic impact of the
final rule relative to the Pre-Guidance
Baseline will be an increase in transfer
payments from the Federal and State
governments to individuals. As
636 Fix
637 Fix
and Passel (1999), at 1–2.
and Passel (1999), at 1–2.
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discussed above, the chilling effect due
to PRWORA and IIRIRA resulted in a
decline in participation in public
benefit programs among noncitizens and
foreign-born individuals and their
families. The final rule will alleviate
confusion and uncertainty, as compared
to the Pre-Guidance Baseline, by
clarifying the ground of public charge
inadmissibility. This clarification will
lead to an increase in public benefit
participation by certain persons (most of
whom would likely not be subject to the
public charge ground of inadmissibility
in any event).638 Due to the increase in
transfer payments, DHS believes that the
rule may also have indirect effects on
businesses in the form of increased
revenues for healthcare providers
participating in Medicaid, companies
that manufacture medical supplies or
pharmaceuticals, grocery retailers
participating in SNAP, and agricultural
producers who grow foods that are
eligible for purchase using SNAP
benefits. However, DHS is unable to
quantify this indirect effect due to the
significant passage of time between the
1999 Interim Field Guidance and this
final rule.
DHS believes that the rule may have
indirect effects on State, local, and/or
Tribal government as compared to the
Pre-Guidance baseline. There may be
costs to various entities associated with
familiarization of and compliance with
the provisions of the rule, including
salaries and opportunity costs of time to
monitor and understand regulation
requirements, disseminate information,
and develop or modify information
technology (IT) systems as needed. It
may be necessary for many government
agencies to update guidance documents,
forms, and web pages. It may be
necessary to prepare training materials
and retrain staff at each level of
government, which will require
additional staff time and will generate
associated costs. However, DHS is
unable to quantify these effects.
Due to the passage of a significant
amount of time between the 1999
Interim Field Guidance and this final
rule, DHS cannot quantify the effects
that this final rule will have as
compared to the Pre-Guidance baseline.
For instance, although DHS could
estimate the chilling effects of PRWORA
and IIRIRA and the countervailing
effects of the 1999 Interim Field
Guidance, it would be challenging to
apply such estimates to the 20-plus
years since that time. A wide number of
638 Relatively few noncitizens in the United States
are both subject to INA sec. 212(a)(4) and eligible
for public benefits prior to adjustment of status (see
Table 3 above).
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changes in the economy and Federal
laws occurred during that time period
that might have affected public benefits
usage among the population most likely
to be affected by the final rule. Thus,
DHS is unable to quantify these effects.
d. Regulatory Alternative
Consistent with E.O. 12866, DHS
considered the costs and benefits of an
available regulatory alternative. The
alternative that DHS considered was a
rulemaking similar to the rulemaking
that comprised the 2018 NPRM and the
2019 Final Rule (the Alternative). DHS
considered both the effects of the 2018
NPRM and the 2019 Final Rule because
the indirect disenrollment effects
associated with the rulemaking began
prior to the publication of the Final
Rule. DHS sought to avoid
underestimating the full impact the
rulemaking had on the public.
As compared to the 1999 Interim
Field Guidance, the 2019 Final Rule
expanded the criteria used in public
charge inadmissibility determinations.
The 2019 Final Rule broadened the
definition of ‘‘public charge,’’ both by
adding new public benefits for
consideration and by expanding the
definition of public charge to mean ‘‘an
alien who receives one or more public
benefits for more than 12 months in the
aggregate within any 36-month period.’’
The additional public benefits in the
2019 Final Rule were non-emergency
Medicaid for non-pregnant adults,
federally funded nutritional assistance
(SNAP), and certain housing assistance,
subject to certain exclusions for certain
populations. In addition, the 2019 Final
Rule required noncitizens to submit a
declaration of self-sufficiency on a new
form designated by DHS and required
the submission of extensive initial
evidence relating to the public charge
ground of inadmissibility.
The 2019 Final Rule also provided,
with limited exceptions, that certain
applicants for extension of stay or
change of nonimmigrant status would
be required to demonstrate that they
have not received, since obtaining the
nonimmigrant status they seek to extend
or change and through the time of filing
and adjudication, 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 1 month counts as 2 months).
In order to estimate the effect of the
Alternative relative to the Pre-Guidance
baseline, DHS sums the effect of the
1999 Interim Field Guidance relative to
the Pre-Guidance baseline with the
effect of the Alternative relative to the
No Action Baseline. Detailed discussion
of the costs, benefits, and transfer
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payments of the Alternative relative to
the No Action baseline is provided
below. The effect of the 1999 Interim
Field Guidance relative to the PreGuidance baseline under the Alternative
is the same as discussed in the
assessment of the final rule. This effect
is discussed in the Pre-Guidance
Baseline Section. Although DHS is not
able to quantify all the effects of the
Alternative, for those effects that are not
quantifiable DHS provides qualitative
discussion.
The primary objective of the
Alternative would be to ensure that
noncitizens who are admitted to the
United States or apply for adjustment of
status have not received one or more
public benefits for longer than the
threshold duration established by the
rule, and to thereby allow the admission
only of noncitizens expected to rely on
their own financial resources, and those
of family members, sponsors, and
private organizations. DHS expects that
effects under the Alternative would be
similar to those under the 2019 Final
Rule. The 2019 Final Rule was
associated with widespread indirect
effects, primarily with respect to those
who were not subject to the 2019 Final
Rule in the first place, such as U.S.citizen children in mixed-status
households, longtime lawful permanent
residents who are only subject to the
public charge ground of inadmissibility
in limited circumstances, and
noncitizens in a humanitarian status
who would be exempt from the public
charge ground of inadmissibility in the
context of adjustment of status.
This final rule would implement a
different policy than that of the
alternative described here. DHS believes
that, in contrast to the Alternative, this
rule would effectuate a more faithful
interpretation of the statutory phrase of
‘‘likely at any time to become a public
charge’’; avoid unnecessary burdens on
applicants, adjudicators, and benefitsgranting agencies; mitigate the
possibility of widespread ‘‘chilling
effects’’ with respect to individuals
disenrolling or declining to enroll
themselves or family members in public
benefits programs for which they are
eligible, especially with respect to
individuals who are not subject to the
public charge ground of inadmissibility;
and reduce States’ administrative costs
by alleviating confusion and simplifying
administrative burdens due to the final
rule’s clarification concerning public
benefits.
i. Direct Costs
Total direct costs resulting from the
2019 Final Rule were estimated to be
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approximately $35.4 million per year.639
Total annual transfer payment decreases
due to the 2019 Final Rule were
estimated to be about $2.47 billion
resulting from individuals (most of
whom would likely not have been
subject to the 2019 Final Rule)
disenrolling from or forgoing enrollment
in public benefit programs. The federallevel share of the annual transfer
payments decrease was approximately
$1.46 billion, and the state-level share of
the annual transfer payments decrease
was $1.01 billion.640 For purposes of
estimating the costs and benefits of the
Alternative, DHS updated its estimates
of the total annual direct cost of and
change in the total annual transfer
payment increases related to the 2019
Final Rule.
After updating the costs from the 2019
Final Rule, DHS estimates the total
annual direct costs of the Alternative
would be approximately $62 million, as
detailed below. The update in direct
costs from the 2019 Final Rule includes
an increase in the number of average
receipts of form I–485, application to
register permanent residence or adjust
status and an increase in the average
total rate of compensation. These costs
would include about $48,639,917 to the
public to fill out and submit a new form
I–944,641 Declaration of SelfSufficiency, which would require
noncitizens to declare self-sufficiency
and provide a range of evidence that
DHS required for making public charge
inadmissibility determinations under
the 2019 Final Rule. There is also an
estimated additional time burden cost of
$1,458,771 to applicants who would be
required to fill out and submit Form I–
485; 642 $40,426 to public charge bond
639 See ‘‘Inadmissibility on Public Charge
Grounds,’’ 84 FR 41292 (Aug. 14, 2019), as
amended by ‘‘Inadmissibility on Public Charge
Grounds; Correction,’’ 84 FR 52357 (Oct. 2, 2019).
640 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292 (Aug. 14, 2019).
641 Cost to file form I–944: Form I–944 Time
burden estimated in the 2019 Final Rule (4.5 hour)
*Average total rate of compensation discussed in
Section VI.A.5 using the effective minimum wage
($17.11) * Total Population Subject to Review for
Inadmissibility on the Public Charge Ground from
Table 10 (501,520) = $38,614,532 (rounded), Cost of
obtaining credit report and score cost from Experian
($19.99) * Total Population Subject to Review for
Inadmissibility on the Public Charge Ground from
Table 10 (501,520) = $10,025,385 (rounded). Total
cost to file form I–944 = $38,614,532 + $10,025,385
= $48,639,917. DHS uses this burden hour estimate
for consistency with the analysis in the 2019 Final
Rule.
642 Cost to file form I–485: Form I–485 Time
burden increase estimated in the 2019 Final Rule
(0.17 hour) * Average total rate of compensation
discussed in Section VI.A.5 using the effective
minimum wage ($17.11) * Total Population Subject
to Review for Inadmissibility on the Public Charge
Ground from Table 10 (501,520) = $1,458,771
(rounded).
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obligors for filing Form I–945, Public
Charge Bond; 643 $946 to filers for
submitting Form I–356, Request for
Cancellation of Public Charge Bond; 644
and $7,201,007 to applicants for
completing and filing forms I–129,
Petition for a Nonimmigrant Worker; 645
$151,338 for I–129CW, Petition for a
CNMI-Only Nonimmigrant Transitional
Worker; 646 and $4,045,372 for I–539,
Application to Extend/Change
Nonimmigrant Status 647 to demonstrate
that the applicant has not received
public benefits since obtaining the
nonimmigrant status that they are
seeking to extend or change.
ii. Transfer Payments
As noted above, the 2019 Final Rule
was also associated with widespread
indirect effects, primarily with respect
to those who were not subject to the
2019 Final Rule in the first place, such
as U.S.-citizen children in mixed-status
households, longtime lawful permanent
residents who are only subject to the
public charge ground of inadmissibility
in limited circumstances, and
noncitizens in a humanitarian status
who would be exempt from the public
charge ground of inadmissibility in the
context of adjustment of status.648 DHS
643 Cost to file form I–945: Form I–945 Time
burden estimated in the 2019 Final Rule (1 hour)
*Average total rate of compensation discussed in
Section VI.A.5 using the effective minimum wage
($17.11) * Estimated annual population in the 2019
Final Rule who would file Form I–945 (960) =
$16,426 (rounded).
644 Cost to file form I–356: (Form I–356 Time
burden estimated in the 2019 Final Rule (0.75 hour)
*Average total rate of compensation discussed in
Section VI.A.5 using the effective minimum wage
($17.11) + Filing fee estimated in the 2019 Final
Rule ($25)) * Estimated annual population in the
2019 Final Rule who would file Form I–356 (25) =
($12.83 + $25) * 25 = $946 (rounded).
645 Cost to file form I–129: Form I–129 Time
burden increase estimated in the 2019 Final Rule
(0.5 hour) * the total compensation from BLS
discussed in Section VI.A.5 ($39.55) * Estimated
annual population who would file Form I–129
using FY2014–FY2018 data from USCIS (364,147)
= $7,201,007 (rounded).
646 Cost to file form I–129CW: Form I–129 CW
Time burden increase estimated in the 2019 Final
Rule (0.5 hour) * the total compensation from BLS
discussed in Section VI.A.5 ($39.55) * Estimated
annual population who would file Form I–129CW
using FY2014–FY2018 data from USCIS (7,653) =
$151,338 (rounded).
647 Cost to file form I–539: Form I–539 Time
burden increase estimated in the 2019 Final Rule
(0.5 hour) * the total compensation from BLS
discussed in Section VI.A.5 ($39.55) * Estimated
annual population who would file Form I–539
using FY2014–FY2018 data from USCIS (204,570)
= $4,045,372 (rounded).
648 Hamutal Bernstein et al., ‘‘Immigrant Families
Continued Avoiding the Safety Net during the
COVID–19 Crisis,’’ Urban Institute (2021), https://
www.urban.org/research/publication/immigrantfamilies-continued-avoiding-safety-net-duringcovid-19-crisis (Bernstein et al. (2021)) (last visited
Aug. 17, 2022). Several additional studies are cited
in the discussion below, repeatedly finding that it
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expects that similar effects would occur
under the Alternative. DHS estimates
that the total annual transfer payments
from the Federal Government to public
benefits recipients who are members of
households that include noncitizens
would be approximately $3.79 billion
lower. DHS also estimates that the total
annual transfer payments from the State
Government to public benefits
recipients would be approximately
$2.63 billion lower.649 DHS notes that as
a formal matter, the estimated reduction
in annual transfer payments is a
transfer, which is a monetary payment
from one group to another that does not
affect total resources. In addition, the
transfers estimated in this analysis
relate predominantly to enrollment
decisions made by those who are not
subject to the public charge ground of
inadmissibility. The consequences of
reduction in transfer payments
represents significantly broader effects
than any disenrollment that would
result among people actually regulated
by this Alternative.
As noted below, DHS is unable to
estimate the downstream effects that
would result from such decreases. DHS
expects that in some cases, a decrease in
transfers associated with one program or
service would include an increase in
transfers associated with other programs
or services, such as programs or services
delivered by nonprofits.
In the 2019 Final Rule, DHS estimated
the reduction in transfer payments by
multiplying a disenrollment/forgone
enrollment rate of 2.5 percent by an
estimate of the number of public
benefits recipients who are members of
households that include noncitizens
(i.e., the population that may disenroll)
and then multiplying the estimated
population by an estimate of the average
annual benefit received per person or
household for the covered benefits.
In the 2019 Final Rule, DHS estimated
the 2.5 percent disenrollment/forgone
enrollment rate by dividing the annual
number of approved noncitizens who
was those individuals not subject to INA sec.
212(a)(4) who typically chose to disenroll or refrain
from enrolling in public benefits, due to fear of
adverse consequences from the 2019 Final Rule
throughout its rulemaking process. Relatively few
noncitizens in the United States are both subject to
INA sec. 212(a)(4) and eligible for public benefits
prior to adjustment of status (see Table 3 above).
649 Total annual Federal and State reduction in
transfer payment = (Estimated Reduction in
Transfer Payments Based on the Federal
government from Table 21)/(average Federal
Medical Assistance Percentages (FMAP) across all
States and U.S. territories) = $3,786,574,510/0.59 =
$6.42 billion (rounded). The State portion of
reduction in transfer payments is Total annual
Federal and State reduction in transfer payment
minus the Federal portion. Calculation: $2.63
billion = $6.42 billion¥$3.79 billion.
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adjusted status annually by the
estimated noncitizen population of the
United States.650 DHS estimated this
disenrollment rate as the five-year
average annual number of persons
adjusting status as a percentage of the
estimated noncitizen population in the
United States (2.5 percent). This
estimate reflected an assumption that
100 percent of such noncitizens and
their household members are either
enrolled in or eligible for public benefits
and will be sufficiently concerned about
potential consequences of the policies
in this final rule to disenroll or forgo
enrollment in public benefits. The
resulting transfer estimates would
therefore have had a tendency toward
overestimation, at least as it relates to
the population that would be directly
regulated by the 2019 Final Rule.
In the 2019 Final Rule, DHS assumed
that the population likely to disenroll
from or forgo enrollment in public
benefits programs in any year would be
public benefits recipients who were
members of households (or in the case
of rental assistance, households as a
unit) including foreign-born noncitizens who were adjusting status
annually. But as discussed below, this
approach may have resulted in an
underestimate due to the documented
chilling effects associated with the 2019
Final Rule among other parts of the
noncitizen and citizen populations who
were not included as adjustment
applicants or members of households of
adjustment applicants as well as other
noncitizens who were not adjustment
applicants. For the low estimate, DHS
uses the same methodology, but with
updated data, to estimate that the low
rate of disenrollment or forgone
enrollment due to the Alternative would
be 3.1 percent.651 652
Since the publication of the 2019
Final Rule, several studies have been
published that discuss the impact of the
2019 Final Rule on the rate of public
benefit disenrollment or forgone
650 ‘‘Inadmissibility on Public Charge Grounds,’’
83 FR 41292, 41463 (Aug. 14, 2019).
651 Calculation, based on 5-year averages over the
period fiscal year 2014–2018: (690,837 receipts for
I–485, adjustments of status/22,289,490 estimated
noncitizen population) * 100 = 3.1 percent
(rounded). 22,289,490 (estimated noncitizen
population): U.S. Census Bureau American
Database, ‘‘S0501: Selected Characteristics of the
Native and Foreign-born Populations 2018
American Community Survey (ACS) 5-year
Estimates,’’ https://data.census.gov/cedsci (last
visited Aug. 17, 2022).
652 In the 2019 Final Rule, the rate of
disenrollment or forgone enrollment was calculated
using number of I–485 approvals rather than
receipts. For this analysis DHS elected to use I–485
receipts because the public charge inadmissibility
ground is applied to all those who file the
application for adjustment of status not just those
who are approved.
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enrollment (i.e., a chilling effect).
Studies conducted between 2016 and
2020 show reductions in enrollment in
public benefits programs due to a
chilling effect ranging from 4.1 percent
to 48 percent.653 654 The results of these
studies depend on several factors, such
as the sample examined or the period or
method of analysis. The Public Charge
NPRM was published in late 2018 and
the 2019 Final Rule was finalized in
August 2019. The 2019 Final Rule
became effective in February 2020.
However, after subsequent legal
challenges to the 2019 Final Rule, it was
vacated in March 2021. Given this
timeline, several studies show that the
largest observed disenrollment from or
forgone enrollment in public benefit
programs occurred between 2018 and
2019.655 Capps et al. (2020) looked at
benefits usage across all groups and
observed that enrollment was declining
over this time period for all groups
(albeit with consistently more
significant reductions in enrollment
among noncitizens or those in mixedstatus households than among the
public at large). Capps et al. (2020)
attributed the reduction in enrollment
in the overall U.S. population to the
improving economic conditions
between 2016 and 2019, although other
factors may also have influenced these
rates.656
Some studies examined different
samples such as low-income
noncitizens,657 low-income citizens,658
adults in immigrant families,659
immigrant families with children,660 or
653 Randy Capps et al., ‘‘Anticipated ‘‘Chilling
Effects’’ of the public-charge rule are real: Census
data reflect steep decline in benefits use by
immigrant families,’’ Migration Policy Institute
(2020), https://www.migrationpolicy.org/news/
anticipated-chilling-effects-public-charge-rule-arereal (Capps et al. (2020)) (last visited Aug. 17, 2022).
Note: This study finds a 4.1-percent decrease in
Medicaid/CHIP enrollment from 2016 to 2017 for
low-income noncitizens.
654 Bernstein et al. (2021).
655 Capps et al. (2020).
656 See, e.g., Capps et al. (2020).
657 Capps et al. (2020).
658 Benjamin Sommers, ‘‘Assessment of
Perceptions of the Public Charge Rule Among LowIncome Adults in Texas,’’ JAMA Network (July 15,
2020), https://jamanetwork.com/journals/
jamanetworkopen/fullarticle/2768245 (last visited
Aug. 17, 2022).
659 Hamutal Bernstein et al., ‘‘One in Seven
Adults in Immigrant Families Reported Avoiding
Public Benefit Programs in 2018,’’ Urban Institute
(May 2019), https://www.urban.org/sites/default/
files/publication/100270/one_in_seven_adults_in_
immigrant_families_reported_avoiding_publi_8.pdf
(last visited Aug. 17, 2022).
660 Jennifer Haley et al., ‘‘One in Five Adults in
Immigrant Families with Children Reported
Chilling Effects on Public Benefit Receipt in 2019,’’
Urban Institute (2020), https://www.urban.org/sites/
default/files/publication/102406/one-in-five-adults-
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low-income immigrant adults.661 The
studies show that the 2019 Final Rule
directly or indirectly affected adult
noncitizens and indirectly affected
adults in immigrant families who are
lawful permanent residents or
naturalized citizens.662 One study
shows that immigrant families with
children reported a greater reduction in
public benefit enrollment (20.4 percent)
compared to immigrant families without
children (10 percent) in 2019.663
Another study shows the reduction in
public benefit program enrollment also
differs by the type of the public benefit
program examined.664 This study found
reduced enrollment in SNAP, Medicaid/
CHIP, and TANF and General
Assistance (TANF/GA), but noted that
the reduction was relatively larger for
TANF/GA (12 percent annualized
reduction among low-income
individuals from 2016 to 2019) and
SNAP (12 percent annualized
reduction), as compared to Medicaid/
CHIP (7 percent annualized
reduction).665 The study observed that
participation in all three programs fell
about twice as fast over the 2016 to 2019
period for U.S.-citizen children with
noncitizens in the household as for
those with only citizens in the
household.
Due to the uncertainty of the rate of
disenrollment or forgone enrollment in
public benefits programs related to the
2019 Final Rule, DHS uses a range of
in-immigrant-families-with-children-reportedchilling-effects-on-public-benefit-receipt-in2019.pdf.
661 Susan Babey et al., ‘‘One in 4 Low-Income
Immigrant Adults in California Avoided Public
Programs, Likely Worsening Food Insecurity and
Access to Health Care,’’ UCLA Center for Health
Policy Research (2021), https://
healthpolicy.ucla.edu/publications/Documents/
PDF/2021/publiccharge-policybrief-mar2021.pdf.
662 Hamutal Bernstein et al., ‘‘One in Seven
Adults in Immigrant Families Reported Avoiding
Public Benefit Programs in 2018,’’ Urban Institute
(May 2019), https://www.urban.org/sites/default/
files/publication/100270/one_in_seven_adults_in_
immigrant_families_reported_avoiding_publi_8.pdf
(last visited Aug. 17, 2022).
663 Jennifer Haley et al., ‘‘One in Five Adults in
Immigrant Families with Children Reported
Chilling Effects on Public Benefit Receipt in 2019,’’
Urban Institute (June 2020), https://www.urban.org/
sites/default/files/publication/102406/one-in-fiveadults-in-immigrant-families-with-childrenreported-chilling-effects-on-public-benefit-receiptin-2019.pdf.
664 Capps et al. (2020).
665 Capps et al. (2020). See Figure 1 for changes
in participation by low-income noncitizens from
2016 to 2019 (37 percent decrease in SNAP, 37
percent decrease in TANF/GA, and 20 percent
decrease in Medicaid/CHIP), which are not adjusted
to account for other variables. DHS calculates
annualized reduction among low-income
noncitizen from 2016 to 2019: for TANF/GA (12
percent) = 37 percent/3 years = 12 (rounded), for
SNAP (12 percent) = 37 percent/3 years = 12
(rounded), and Medicaid/CHIP (7 percent) = 20
percent/3 years = 7 (rounded).
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rates to estimate the change in Federal
Government transfer payments that
would be associated with the
Alternative. For estimating the lower
bound of the range, DHS uses a 3.1
percent rate of disenrollment or forgone
enrollment in public benefits programs
based on the estimation methodology
from the 2019 Final Rule (as discussed
above).
DHS bases the upper bound of the
range on the results of studies by
Bernstein, Gonzalez, Karpman, and
Zuckerman (Bernstein et al. [2019] 666
and Bernstein et al. [2020] 667), which
provided an average of 14.7 percent rate
of disenrollment or forgone enrollment
in public benefits programs. These
studies observed reductions in the
public benefit participation rate for
adults in immigrant families in 2018
and 2019. Bernstein et al. (2019; 2020)
uses a population of nonelderly adults
who are foreign born or living with a
foreign-born relative in their
household—this matches the population
of mixed-status households for which
DHS estimates for the Alternative the
rate of disenrollment from or forgone
future enrollment in a public benefits
program. Other studies such as Capps et
al. (2020) examined a chilling effect
among low-income families, which only
covers a subset of the population of
interest. One study showed that in 2020,
more than one in six adults in
immigrant families (17.8 percent)
reported avoiding a noncash
government benefit program or other
help with basic needs because of green
card concerns or other worries about
immigration status or enforcement, and
more than one in three adults in
families in which one or more members
do not have a green card (36.1 percent)
reported these broader chilling
effects.668 Looking at the subset of the
noncitizen population, however, shows
a larger chilling effect as this smaller
group likely experienced a larger
disenrollment rate. However, this small
population does not capture other
noncitizen groups that might have also
disenrolled in public benefits. DHS
chose to use the two Bernstein studies
666 Hamutal Bernstein et al., ‘‘One in Seven
Adults in Immigrant Families Reported Avoiding
Public Benefit Programs in 2018,’’ Urban Institute
(May 2019), https://www.urban.org/sites/default/
files/publication/100270/one_in_seven_adults_in_
immigrant_families_reported_avoiding_publi_8.pdf
(last visited Aug. 17, 2022).
667 Hamutal Bernstein et al., ‘‘Amid Confusion
over the Public Charge Rule, Immigrant Families
Continued Avoiding Public Benefits in 2019,’’
Urban Institute (May 2020), https://www.urban.org/
sites/default/files/publication/102221/amidconfusion-over-the-public-charge-rule-immigrantfamilies-continued-avoiding-public-benefits-in2019_3.pdf (last visited Aug. 16, 2022).
668 Bernstein et al. (2021).
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described below, because the studies
analyze the impact on the broader
population of noncitizens, which
includes the smaller subsets identified
in the other studies.
Bernstein et al. (2019; 2020) examined
beneficiaries of SNAP, Medicaid, and
housing subsidies, which are public
benefits programs considered for public
charge inadmissibility determinations
under the Alternative. However,
Bernstein et al. (2019; 2020) does not
include other public benefit programs
considered for public charge
inadmissibility determinations under
the Alternative, such as TANF or SSI.
Since DHS estimates the change in
transfer payments for Medicaid, SNAP,
TANF, SSI, and housing subsidies, DHS
uses an overall average rate of chilling
effect, based on the chilling effects
reported by Bernstein et al. (2019; 2020).
Bernstein et al. (2019) showed that
13.7 percent of adults in immigrant
families reported that they (i.e., the
respondent) or a family member avoided
a noncash government benefit program
in 2018. Bernstein et al. (2020) showed
that 15.6 percent of adults in immigrant
families reported that they (the
respondent) or a family member avoided
a noncash government benefit program
in 2019. DHS calculates a simple
average of these two percentages (13.7
percent and 15.6 percent) from the
Bernstein et al. (2019; 2020) studies to
arrive at the estimated annual decrease
of 14.7 percent described above.
As with the lower estimate discussed
above, DHS acknowledges that this
upper estimate could be an
underestimate or an overestimate. The
upper bound estimate of a 14.7 percent
rate of disenrollment or forgone
enrollment may result in an
underestimate since the Bernstein et al.
(2019; 2020) studies did not include all
the public benefit programs such as
TANF and SSI. As shown in Capps et
al. (2020), cash assistance public benefit
programs TANF/GA, as well as SNAP
experienced a greater rate in
disenrollment relative to Medicaid/
CHIP. On the other hand, the upper
estimate of a 14.7 percent rate of
disenrollment or forgone enrollment
may result in an overestimate. While
Capps et al. (2020) noted that during the
period between 2016 and 2019
participation in public benefits was
declining for both U.S. citizens and
noncitizens (albeit at significantly
different rates), the disenrollment rates
produced in the Bernstein et al. (2019;
2020) studies did not control for overall
trends in the U.S. population at large.
Bernstein et al. (2019; 2020)
population estimates are based on a
nationally representative survey of
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nonelderly adults who are foreign born
or living with a foreign-born relative in
their household. From there, Bernstein
et al. (2019; 2020) compare the
disenrollment year over year for
Medicaid/CHIP, SNAP, or housing
subsidies to arrive at an overall
disenrollment rate of 13.7 percent in
2018 and 15.6 percent in 2019. Many
studies discussed earlier in this section
similarly attempted to measure the
disenrollment or forgone enrollment
rate due to the 2019 Final Rule. These
studies show reductions in enrollment
in public benefits programs due to a
chilling effect ranging from 4.1 percent
to 36.1 percent. DHS uses the estimates
of the chilling effect by Bernstein et al.
(2019; 2020) as a proxy because their
population closely matches the
population of interest for this analysis
whereas the other studies looked at a
smaller subset of the population.
Compared to other studies, Bernstein et
al. (2019; 2020) also measures the
chilling effect as either not applying for
or stopping participation in public
benefit program.
DHS uses 8.9 percent as the primary
estimate in order to estimate the annual
reduction in Federal Government
transfer payments associated with the
Alternative, which is the midpoint
between the lower estimate (3.1 percent)
and the upper estimate (14.7 percent) of
disenrollment or forgone enrollment in
public benefits programs. DHS chose to
provide a range due to the difficulty in
estimating the effect on various
populations.
Using the primary estimate rate of
disenrollment or forgone enrollment in
public benefits programs of 8.9 percent,
DHS estimates that the total annual
reduction in transfer payments from the
Federal Government to individuals who
may choose to disenroll from or forgo
enrollment in public benefits programs.
Based on the data presented below, DHS
estimates that the total annual reduction
in transfer payments paid by the Federal
Government to individuals who may
choose to disenroll from or forgo
enrollment in public benefits programs
would be approximately $3.79 billion
for an estimated 819,599 individuals
and 31,940 households across the public
benefits programs examined.
To estimate the reduction in transfer
payments under the Alternative, DHS
must multiply the estimated
disenrollment/forgone enrollment rate
of 8.9 percent by: (1) the population of
analysis (i.e., those who may disenroll
from or forgo enrollment in Medicaid,
SNAP, TANF, SSI, and Federal rental
assistance, the programs that would be
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covered under the Alternative); 669 and
(2) the value of the forgone benefits.
Table 17 shows the estimated
population of public benefits recipients
who are members of households that
include noncitizens. DHS assumes that
this is the population of individuals
who may disenroll from or forgo
enrollment in public benefits under the
Alternative. The table also shows
estimates of the number of households
with at least one noncitizen family
member that may have received public
benefits.670 671 Based on the number of
households with at least one noncitizen
family member, DHS estimates the
number of public benefits recipients
who are members of households that
include at least one noncitizen who may
have received benefits using the U.S.
Census Bureau’s estimated average
household size for foreign-born
households.672 673
669 DHS recognizes that the rule would create a
similar disincentive to receipt of TANF and SSI by
certain noncitizens, although DHS expects that the
scope and relative simplicity of this rule, and the
fact that these benefits have been considered in
public charge inadmissibility determinations since
1999, would mitigate chilling effects to some extent.
Note that the Medicaid enrollment does not include
child enrollment because the 2019 Final Rule did
not include Medicaid or CHIP for children.
670 See U.S. Census Bureau, ‘‘American
Community Survey and Puerto Rico Community
Survey 2020 Subject Definitions,’’ https://
www2.census.gov/programs-surveys/acs/tech_docs/
subject_definitions/2020_ACSSubjectDefinitions.
pdf (last visited Aug. 17, 2022). The foreign-born
population includes anyone who was not a U.S.
citizen or a U.S. national at birth, which includes
respondents who indicated they were a U.S. citizen
by naturalization or not a U.S. citizen. The ACS
questionnaires do not ask about immigration status
but uses responses to determine the U.S. citizen and
non-U.S.-citizen populations as well as to
determine the native and foreign-born populations.
The population surveyed includes all people who
indicated that the United States was their usual
place of residence on the survey date. The foreignborn population includes naturalized U.S. citizens,
lawful permanent residents, noncitizens with a
nonimmigrant status (e.g., foreign students),
noncitizens with a humanitarian status (e.g.,
refugees), and noncitizens present without a lawful
immigration status.
671 To estimate the number of households with at
least 1 foreign-born noncitizen family member that
have received public benefits, DHS calculated the
overall percentage of total U.S. households that are
foreign-born noncitizen as 6.9 percent. Calculation:
[22,289,490 (Foreign-born noncitizens)/322,903,030
(Total U.S. population)] * 100 = 6.9 percent. See
U.S. Census Bureau American Database, ‘‘S0501:
Selected Characteristics of the Native and Foreignborn Populations 2018 American Community
Survey (ACS) 5-year Estimates,’’ https://
data.census.gov/cedsci (last visited Aug. 17, 2022).
672 See U.S. Census Bureau American Database,
‘‘S0501: Selected Characteristics of the Native and
Foreign-born Populations 2018 American
Community Survey (ACS) 5-year Estimates,’’
https://data.census.gov/cedsci (last visitedAug. 17,
2022). The average foreign-born household size is
reported as 3.31 persons. DHS multiplied this figure
by the estimated number of benefits-receiving
households with at least 1 foreign-born noncitizen
receiving benefits to estimate the population living
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55623
In order to estimate the population of
public benefits recipients who are
members of households that include at
least one noncitizen DHS uses a 5-year
average of public benefit recipients’ data
from FY 2014 to FY 2018. Although data
from FY 2019 to FY 2021 were
available, DHS opted not to use data
from these years because the
populations of public benefit recipients
in those years were affected by both the
2019 Final Rule and the COVID–19
pandemic.
Consistent with the approach DHS
took in the 2019 Final Rule, DHS’s
methodology was as follows. First, for
most of the public benefits programs
analyzed, DHS estimated the number of
households with at least one person
receiving such benefits by dividing the
number of people that received public
benefits by the U.S. Census Bureau’s
estimated average household size of
2.63 for the U.S. total population.674
Second, DHS estimated the number of
such households with at least one
noncitizen resident. According to the
U.S. Census Bureau population
estimates, the noncitizen population is
6.9 percent of the U.S. total
population.675 While there may be some
variation in the percentage of
noncitizens who receive public benefits,
including depending on which public
benefits program one considers, DHS
assumes in this economic analysis that
the percentage holds across the
populations of the various public
benefits programs. Therefore, to
estimate the number of households with
at least one noncitizen who receives
public benefits, DHS multiplies the
estimated number of households for
each public benefits program by 6.9
percent. This step may introduce
uncertainty into the estimate because
the percentage of households with at
least one noncitizen may differ from the
in benefits-receiving households that include a
foreign-born noncitizen.
673 In this analysis, DHS uses the American
Community Survey (ACS) to develop population
estimates along with beneficiary data from each of
the benefits program. DHS notes that the ACS data
were used for the purposes of this analysis because
it provided a cross-sectional survey based on a
random sample of the population each year
including current immigration classifications. Both
surveys reflect use by noncitizens of the public
benefits included in the Alternative.
674 See U.S. Census Bureau Database, ‘‘S0501:
Selected Characteristics of the Native and Foreignborn Populations 2018 American Community
Survey (ACS) 5-year Estimates,’’ https://
data.census.gov/cedsci (last visited Aug. 17, 2022).
675 See U.S. Census Bureau Database, ‘‘S0501:
Selected Characteristics of the Native and Foreignborn Populations 2018 American Community
Survey (ACS) 5-year Estimates,’’ https://
data.census.gov/cedsci. Calculation: [22,289,490
(Foreign-born noncitizens)/322,903,030 (Total U.S.
population)] * 100 = 6.9 percent.
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percentage of noncitizens in the
population. However, if noncitizens
tend to be grouped together in
households, then an overestimation of
households that include at least one
noncitizen is more likely.
DHS then estimates the number of
noncitizens who received benefits by
multiplying the estimated number of
households with at least one noncitizen
who receives public benefits by the U.S.
Census Bureau’s estimated average
household size of 3.31 for those who are
foreign-born.676
676 See U.S. Census Bureau Database, ‘‘S0501:
Selected Characteristics of the Native and Foreign-
born Populations 2018 American Community
Survey (ACS) 5-year Estimates,’’ https://
data.census.gov/cedsci (last visited Aug. 17, 2022).
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In order to estimate the economic
impact of disenrollment or forgone
enrollment from public benefits
programs, it is necessary to estimate the
typical annual public benefits a person
receives for each public benefits
program included in this economic
analysis. DHS estimated the annual
benefit received per person for each
public benefit program in Table 19. For
each benefit but Medicaid, the benefit
per person is calculated for each public
benefit program by dividing the average
annual program payments by the
average annual total number of
recipients.677 For Medicaid, DHS uses
Centers for Medicare & Medicaid
Services’ (CMS) median per capita
expenditure estimate across all States
for 2018. To the extent that data are
available, these estimates are based on
5-year annual averages for the years
between FY 2014 and FY 2018.
677 DHS notes that the amounts presented may
not account for overhead costs associated with
administering each of these public benefits
programs. The costs presented are based on
amounts recipients have received in benefits as
reported by benefits-granting agencies.
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As discussed earlier, using the
midpoint reduction rate of 8.9 percent,
Table 20 shows the estimated
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population that would be likely to
disenroll or forgo enrollment in a
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program under the Alternative.
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Table 20 shows the estimated
population that would be likely to
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federally funded public benefits
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programs due to the Alternative’s
indirect chilling effect. The table also
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presents the previously estimated
average annual benefit per person who
received benefits for each of the public
benefits programs.678 Multiplying the
estimated population that would be
likely to disenroll from or forgo
enrollment in public benefit programs
due to the Alternative by the average
annual benefit per person who received
benefits for each of the public benefit
programs, DHS estimates that the total
annual reduction in transfer payments
paid by the Federal Government to
individuals who may choose to
disenroll from or forgo enrollment in
public benefits programs would be
approximately $3.79 billion for an
estimated 819,599 individuals and
31,927 households across the public
benefits programs examined. As these
estimates reflect only Federal financial
participation in programs whose costs
are shared by U.S. States, there may also
be additional reductions in transfer
payments from U.S. States to
individuals who may choose to
disenroll from or forgo enrollment in a
public benefits program.
Since the Federal share of Federal
financial participation (FFP) varies from
State to State, DHS uses the average
Federal Medical Assistance Percentages
(FMAP) across all States and U.S.
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678 As previously noted, the average annual
benefits per person amounts presented may not
account for overhead costs associated with
administering each of these public benefits
programs since they are based on amounts
recipients have received in benefits as reported by
benefits-granting agencies. Therefore, the costs
presented may underestimate the total amount of
transfer payments to the Federal Government.
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territories of 59 percent to estimate the
total reduction of transfer payments for
Medicaid.679 DHS acknowledges that
the estimate of 59 percent might be an
underestimate because it does not
include higher percentage of FMAP for
States that were provided enhanced
FMAP by the Affordable Care Act’s
Medicaid expansion nor any additional
increase in FMAP due to the Families
First Coronavirus Relief Act. Table 21
shows that Federal annual transfer
payments for Medicaid would be
reduced by about $2.4 billion under the
Alternative. From this amount and the
average FMAP of 59 percent, DHS
calculates the total reduction in transfer
payments from Federal and State
governments to individuals to be about
$4.07 billion.680 From that total amount,
DHS estimates State annual transfer
payments would be reduced by
approximately $1.67 billion due to the
disenrollment or forgone enrollment of
foreign-born noncitizens and their
households from Medicaid.681
679 See ‘‘Federal Financial Participation in State
Assistance Expenditures; Federal Matching Shares
for Medicaid, the Children’s Health Insurance
Program, and Aid to Needy Aged, Blind, or
Disabled Persons for October 1, 2016 Through
September 30, 2017,’’ 80 FR 73779 (Nov. 25, 2015).
680 Total annual Federal and State reduction in
transfer payment for Medicaid = (Estimated
Reduction in Transfer Payments Based on a 8.9%
Rate of Disenrollment or Forgone Enrollment for
Medicaid from Table 21)/(average Federal Medical
Assistance Percentages (FMAP) across all States and
U.S. territories) = $2,403,360,488/0.59 = $4.07
billion (rounded).
681 State annual reduction in transfer payment for
Medicaid =Total annual Federal and State
reduction in transfer payment for Medicaid—
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For the purpose of this analysis DHS
conservatively assumes that, for SNAP,
TANF and Federal Rental Assistance,
the Federal Government pays 100
percent of benefits values included in
Table 18 and Table 19 above. Therefore,
Table 20 shows the Federal share of
annual transfer payments would be
about $0.96 billion for SNAP, TANF,
and Federal Rental Assistance.682 For
SSI, the maximum Federal benefit
changes yearly. Effective January 1,
2022, the maximum Federal benefit was
$841 monthly for an individual and
$1,261 monthly for a couple. Some
States supplement the Federal SSI
benefit with additional payments,
which make the total SSI benefit levels
higher in those States.683 Moreover, the
estimates of expenditures for Federal
Rental Assistance relate to purely
Federal funds, although housing
programs are administered by State and
local public housing authorities, which
may supplement program funding.
However, DHS is unable to quantify the
State portion of the transfer payment
due to a lack of data related to Statelevel administration of these public
benefit programs.
Federal annual reduction in transfer payment for
Medicaid = $4.07 billion¥$2.40 billion = $1.67
billion.
682 From Table 21, transfer payment reduction for
SNAP is $661,704,855, for TANF is $29,678,326,
and for Federal Rental Assistance is $ 269,176,537.
Calculation of the sum: $960,559,718 ($0.96
billion).
683 See SSI information available at https://
www.ssa.gov/policy/docs/statcomps/supplement/
2021/ssi.html.
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As shown in Table 21, applying the
same calculations using the low
estimate of 3.1 percent, DHS estimates
that the total annual reduction in
transfer payments paid by the Federal
government to individuals who may
choose to disenroll from or forgo
enrollment in public benefits programs
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would be approximately $1.32 billion
for an estimated 285,479 individuals
and 11,121 households across the public
benefits programs examined. For the
high estimate of 14.7 percent DHS
estimates that the total annual reduction
in transfer payments paid by the Federal
government to individuals who may
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55631
choose to disenroll from or forgo
enrollment in public benefits programs
would be approximately $6.25 billion
for an estimated 1,353,720 individuals
and 52,733 households across the public
benefits programs examined.
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In the 2019 Final Rule, DHS
anticipated that USCIS’ review of public
charge inadmissibility would
substantially increase the number of
denials for adjustment of status
applicants because of the rule’s
provisions and process for public charge
determinations. However, USCIS data
show that the 2019 Final Rule did not
result in the anticipated increase in
denials of adjustment of status
applications based on the public charge
ground of inadmissibility during the
period it was in effect between February
2020 and March 2021. During the year
the 2019 Final Rule was in effect, DHS
issued only 3 denials (which were
subsequently reopened and approved)
and 2 Notices of Intent to Deny (which
were ultimately rescinded and the
applications were approved) based on
the totality of the circumstances public
charge inadmissibility determination
under section 212(a)(4)(A) and (B) of the
INA, 8 U.S.C. 1182(a)(4)(A) and (B). The
2019 Final Rule thus ultimately did not
result in any adverse determinations in
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the 47,555 applications for adjustment
of status to which it was applied.684
Comparison of the total direct annual
cost between the current final rule and
the Alternative show that the direct cost
of the Alternative is greater than that of
the final rule. Although the Alternative
would indirectly have the effect of a
larger reduction of transfer payments
than the final rule, likely primarily
among those not regulated by the
Alternative, transfer payments are not
considered to be costs or benefits of a
rule. Rather, they are transfers from one
group to another group that do not
themselves entail a net gain or loss to
society.
For instance, Bernstein et al. (2020)
found that the chilling effect on public
benefits associated with the 2019 Final
Rule is partially attributable to
confusion and misunderstanding. That
study finds that two-thirds of adults in
immigrant families (66.6 percent) were
aware of the 2019 Final Rule, and 65.5
684 USCIS Field Operations Directorate (June
2021); USCIS Office of Performance and Quality
(June 2021); USCIS Field Office Directorate (Oct.
2021).
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percent were confident in their
understanding about the rule. Yet only
22.7 percent knew it does not apply to
applications for naturalization, and only
19.1 percent knew children’s enrollment
in Medicaid would not be considered in
their parents’ public charge
determinations. These results suggest
that under the Alternative, parents
might pull their eligible U.S.-citizen
children out of crucial benefit programs,
and current lawful permanent residents
might choose not to enroll in safety net
programs for which they might be
eligible for fear of risking their
citizenship prospects.685
iii. Additional Indirect Effects
DHS notes that there would likely be
additional indirect effects related to
increased disenrollment or forgone
enrollment in public benefit programs.
As individuals disenroll or forgo public
benefit program enrollment, costs
associated with administration of public
benefit programs might decrease insofar
685 Bernstein
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as administration costs are correlated
with enrollment.686
DHS received comments from several
States regarding administrative costs
due to the disruptions in access to
public benefit programs. The
disruptions result in increased ‘‘churn’’
as eligible individuals and families
cycle on and off public benefit program
more frequently (enrolling at times of
great need and disenrolling to avoid risk
or due to confusion), which will
increase States’ administrative costs.
States will also incur additional
administrative costs in order to allocate
resources for consistent and targeted
outreach and education, available in the
individuals’ native languages and
shared through their social networks, in
order to allay fears about the public
charge rule. One State provided
comment on administrative costs it
incurred due to the 2019 Final Rule. For
the fiscal year 2019, the State funded
$1.3 million in grants to establish
capacity within community
organizations across the State to
conduct community education and
individual and family counseling,
including focusing on public charge
education and outreach to address the
misinformation and fear in
communities. For fiscal years 2020 and
2021, the State funded $2.1 million in
grants to ensure continued capacity
within community organizations across
the State to conduct community
education and individual and family
counseling on the 2019 Final Rule. State
employees dedicated hundreds of hours
to planning and training State
caseworkers and call center workers
related to 2019 Final Rule. According to
the State, the estimated administrative
cost associated with the State
caseworkers is over $3 million.
DHS also notes that there would
likely be additional downstream
indirect effects related to increased
686 DHS notes that Federal, State, and local
governments share administrative costs (with the
Federal Government contributing approximately 50
percent) for SNAP. See USDA, ‘‘Characteristics of
Supplemental Nutrition Assistance Program
Households: Fiscal Year 2019,’’ at 1, https://fnsprod.azureedge.net/sites/default/files/resourcefiles/Characteristics2019.pdf, (Mar. 2021) (last
visited Aug. 17, 2022). DHS notes that because State
participation in these programs may vary
depending on the type of benefit provided, it was
unable to fully or specifically quantify the impact
of State transfers. For example, the Federal
Government funds all of SNAP food expenses, but
only 50 percent of allowable administrative costs
for regular operating expenses (per section 16(a) of
the Food and Nutrition Act of 2008). See also
USDA, ‘‘FNS Handbook 901,’’ at 41 (Jan 2020),
https://fns-prod.azureedge.net/sites/default/files/
apd/FNS_HB901_v2.2_internet_Ready_Format.pdf).
Federal TANF funds can be used for administrative
TANF costs, up to 15 percent of a State’s family
assistance grant amount. See 45 CFR 263.13(a)(i).
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disenrollment or forgone enrollment in
public benefit programs, such as:
• Worse health outcomes, including
increased prevalence of obesity and
malnutrition, especially for pregnant or
breastfeeding women, infants, or
children, and reduced prescription
adherence;
• Increased use of emergency rooms
and emergent care as a method of
primary health care due to delayed
treatment;
• Increased prevalence of
communicable diseases, including
among members of the U.S. citizen
population who are not vaccinated;
• Increases in uncompensated care in
which a treatment or service is not paid
for by an insurer or patient;
• Increased rates of poverty and
housing instability; and
• Reduced productivity and
educational attainment.687
DHS also
recognize[d] that reductions in federal and
state transfers under federal benefit programs
may have impacts on state and local
economies, large and small businesses, and
individuals. For example, the rule might
result in reduced revenues for healthcare
providers participating in Medicaid,
companies that manufacture medical
supplies or pharmaceuticals, grocery retailers
participating in SNAP, agricultural producers
who grow foods that are eligible for purchase
using SNAP benefits, or landlords
participating in federally funded housing
programs.688
In another section of the 2019 Final
Rule, DHS stated that it had
‘‘determined that the rule may decrease
disposable income and increase the
poverty of certain families and children,
including U.S. citizen children.’’ 689
At the time of the 2019 Final Rule’s
issuance, one study estimated that as
many as 3.2 million fewer persons
might receive Medicaid due to fear and
confusion surrounding the 2019 Final
Rule, which could lead to as many as
4,000 excess deaths every year.690 The
same study estimated that 1.8 million
fewer people would use SNAP benefits,
even though many of them are U.S.
citizens. In addition, loss of Federal
housing security would likely lead to
worse health outcomes and dependence
on other elements of the social safety
net for some persons. As noted above,
E.O. 12866 and E.O. 13563 direct
2019 Final Rule RIA at 109.
Final Rule RIA at 6.
689 ‘‘Inadmissibility on Public Charge Grounds,’’
84 FR 41292, 41493 (Aug. 14, 2019).
690 Leighton Ku, ‘‘New Evidence Demonstrates
That the Public Charge Rule Will Harm Immigrant
Families and Others,’’ Health Affairs (Oct. 9, 2019),
https://www.healthaffairs.org/do/10.1377/
hblog20191008.70483/full (last visited Aug. 12,
2022).
55633
agencies to select regulatory approaches
that maximize net benefits while giving
consideration, to the extent appropriate
and consistent with law, to values that
are difficult or impossible to quantify,
including equity, human dignity,
fairness, and distributive impacts. In
addition, E.O. 13563 emphasizes the
importance of not only quantifying both
costs and benefits, reducing costs,
harmonizing rules, and promoting
flexibility, but also considering equity,
fairness, distributive impacts, and
human dignity. DHS recognizes that
many of the indirect effects discussed in
this section implicate values such as
equity, fairness, distributive impacts,
and human dignity. DHS acknowledges
that although many of these effects are
difficult to quantify, they would be an
indirect cost of the Alternative.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA),691 as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA),692
requires Federal agencies to consider
the potential impact of regulations on
small businesses, small governmental
jurisdictions, and small organizations
during the development of their rules.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.693
The final rule does not directly
regulate small entities and is not
expected to have a direct effect on small
entities. It does not mandate any actions
or requirements for small entities in the
process of a Form I–485 Adjustment of
Status requestor seeking immigration
benefits. Rather, this final rule regulates
individuals, and individuals are not
defined as ‘‘small entities’’ by the
RFA.694 Based on the evidence
presented in this analysis and
throughout this preamble, the Secretary
of Homeland Security certifies that this
final rule would not have a significant
economic impact on a substantial
number of small entities.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
687 See
688 2019
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691 5
U.S.C. ch. 6.
Law 104–121, tit. II, 110 Stat. 847 (5
U.S.C. 601 note).
693 A small business is defined as any
independently owned and operated business not
dominant in its field that qualifies as a small
business per the Small Business Act (15 U.S.C.
632).
694 5 U.S.C. 601(6).
692 Public
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other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and Tribal governments.
Title II of UMRA requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed or final agency
rule that may directly result in a $100
million or more expenditure (adjusted
annually for inflation) in any one year
by State, local, and Tribal governments,
in the aggregate, or by the private
sector.695 The inflation-adjusted value
of $100 million in 1995 is
approximately $177.8 million in 2021
based on the Consumer Price Index for
All Urban Consumers (CPI–U).696
The term ‘‘Federal mandate’’ means a
Federal intergovernmental mandate or a
Federal private sector mandate.697 The
term ‘‘Federal intergovernmental
mandate’’ means, in relevant part, a
provision that would impose an
enforceable duty upon State, local, or
Tribal governments (except as a
condition of Federal assistance or a duty
arising from participation in a voluntary
Federal program).698 The term ‘‘Federal
private sector mandate’’ means, in
relevant part, a provision that would
impose an enforceable duty upon the
private sector (except as a condition of
Federal assistance or a duty arising from
participation in a voluntary Federal
program).699
This final rule does not contain such
a mandate, because it does not impose
any enforceable duty upon any other
level of government or private sector
entity. Any downstream effects on such
entities would arise solely due to their
voluntary choices, and the voluntary
choices of others, and would not be a
consequence of an enforceable duty
imposed by this rule. Similarly, any
costs or transfer effects on State and
local governments would not result
from a Federal mandate as that term is
695 2
U.S.C. 1532(a).
BLS, ‘‘Historical Consumer Price Index for
All Urban Consumers (CPI–U): U.S. City Average,
All Items’’ (Dec 2021), https://www.bls.gov/cpi/
tables/supplemental-files/historical-cpi-u202112.pdf. Steps in calculation of inflation: (1)
Calculate the average monthly CPI–U for the
reference year (1995) and the most recent current
year available (2021); (2) Subtract reference year
CPI–U from current year CPI–U; (3) Divide the
difference of the reference year CPI–U and current
year CPI–U by the reference year CPI–U; (4)
Multiply by 100. Calculation of inflation: [(Average
monthly CPI–U for 2021¥Average monthly CPI–U
for 1995)/(Average monthly CPI–U for 1995)] * 100
= [(270.970Â¥152.383)/152.383] * 100 = (118.587/
152.383) * 100 = 0.7782 * 100 = 77.82 percent =
77.8 percent (rounded). Calculation of inflationadjusted value: $100 million in 1995 dollars * 1.778
= $177.8 million in 2021 dollars.
697 See 2 U.S.C. 1502(1), 658(6).
698 2 U.S.C. 658(5).
699 2 U.S.C. 658(7).
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defined under UMRA.700 The
requirements of title II of UMRA,
therefore, do not apply, and DHS has
not prepared a statement under UMRA.
DHS has, however, analyzed many of
the potential effects of this action in the
RIA above.
D. Small Business Regulatory
Enforcement Fairness Act of 1996
The Office of Management and Budget
has designated this final rule as a major
rule as defined by 5 U.S.C. 804.701 This
final rule likely will result in an annual
effect on the economy of $100 million
or more; a major increase in costs or
prices; or significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based companies to compete
with foreign-based companies in
domestic and export markets.
Accordingly, absent exceptional
circumstances, this final rule must be
effective no earlier than 60 days after
the date on which Congress receives a
report submitted by DHS as required by
5 U.S.C. 801(a)(1). This final rule will be
effective December 23, 2022, which
meets this requirement.
E. Executive Order 13132 (Federalism)
E.O. 13132 was issued to ensure the
appropriate division of policymaking
authority between the States and the
Federal Government and to further the
policies of the Unfunded Mandates Act.
This final rule would not have
substantial direct effects on the States,
on the relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. DHS does not
expect that this rule would impose
substantial direct compliance costs on
State and local governments or preempt
State law. Therefore, in accordance with
section 6 of E.O. 13132, this final rule
does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
F. Executive Order 12988 (Civil Justice
Reform)
This final rule was drafted and
reviewed in accordance with E.O.
12988, Civil Justice Reform. This final
rule was written to provide a clear legal
standard for affected conduct and was
carefully reviewed to eliminate drafting
errors and ambiguities, so as to
minimize litigation and undue burden
on the Federal court system. DHS has
determined that this final rule meets the
700 See
701 See
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5 U.S.C. 804(2).
Frm 00164
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applicable standards provided in
section 3 of E.O. 12988.
G. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This final rule does not have ‘‘tribal
implications’’ because, if finalized, it
would not have substantial direct effects
on one or more Indian Tribes, 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,
although there are references to Indian
Tribes in this final rule. Accordingly,
E.O. 13175, Consultation and
Coordination with Indian Tribal
Governments, requires no further
agency action or analysis.
H. Family Assessment
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being.
Agencies must assess whether the
regulatory action: (1) impacts the
stability or safety of the family,
particularly in terms of marital
commitment; (2) impacts the authority
of parents in the education, nurture, and
supervision of their children; (3) helps
the family perform its functions; (4)
affects disposable income or poverty of
families and children; (5) financially
impacts families, if at all, only to the
extent such impacts are justified; (6)
may be carried out by State or local
government or by the family; and (7)
establishes a policy concerning the
relationship between the behavior and
personal responsibility of youth and the
norms of society. If the determination is
affirmative, then the agency must
prepare an impact assessment to address
criteria specified in the law.
DHS has analyzed this final regulatory
action in accordance with the
requirements of section 654 and
determined that this final rule does not
affect family well-being, and therefore
DHS is not issuing a Family
Policymaking Assessment.
I. National Environmental Policy Act
DHS and its components analyze
proposed actions to determine whether
the National Environmental Policy Act
(NEPA) applies to them and, if so, what
degree of analysis is required. DHS
Directive 023–01 Rev. 01 and
Instruction Manual 023–01–001–01 Rev.
01 (Instruction Manual) establish the
procedures that DHS and its
components use to comply with NEPA
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and the Council on Environmental
Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500
through 1508.
The CEQ regulations allow Federal
agencies to establish, with CEQ review
and concurrence, categories of actions
(‘‘categorical exclusions’’) that
experience has shown do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an environmental assessment or
environmental impact statement. 40
CFR 1507.3(e)(2)(ii) and 1501.4. The
Instruction Manual, Appendix A, Table
1 lists categorical exclusions that DHS
has found to have no such effect. Under
DHS NEPA implementing procedures,
for an action to be categorically
excluded, it must satisfy each of the
following three conditions: (1) The
entire action clearly fits within one or
more of the categorical exclusions; (2)
the action is not a piece of a larger
action; and (3) no extraordinary
circumstances exist that create the
potential for a significant environmental
effect. Instruction Manual, section
V.B.2(a–c).
This final rule applies to applicants
for admission or adjustment of status as
long as the individual is applying for an
immigration status that is subject to the
public charge ground of inadmissibility.
As discussed in detail above, this final
rule establishes a definition of public
charge and specifies the types of public
benefits that DHS would consider as
part of its public charge inadmissibility
determinations. This list of benefits is
the same as under the 1999 Interim
Field Guidance that governed public
charge inadmissibility determinations
for over 20 years. This list of public
benefits is narrower than under the 2019
Final Rule. This final rule codifies a
totality of the circumstances framework
for the analysis of the factors, including
statutory minimum factors, used to
make public charge inadmissibility
determinations. This final rule makes
changes to the regulations governing
public charge bonds.
Given the similarity between this final
rule and the 1999 Interim Field
Guidance with respect to public charge
inadmissibility determinations, DHS
does not anticipate any change in the
number of individuals admitted to the
United States or adjusting status under
this final rule. DHS does not expect that
this final rule would change the level of
immigration as compared to the No
Action Baseline.
DHS believes this final rule will not
result in any meaningful, calculable
change in environmental effect. This
final rule implements the public charge
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ground of inadmissibility in a way that
is consistent with how DHS has applied
the statute since 1999, and the
differences between the policies in this
final rule and the 1999 Interim Field
Guidance do not change the
environmental effect of DHS’s current
approach. DHS has therefore
determined that this final rule clearly
fits within Categorical Exclusion A3(d)
in DHS Instruction Manual 023–01–
001–01, the Department’s procedures for
implementing NEPA issued November
6, 2014 (available at https://
www.dhs.gov/sites/default/files/
publications/DHS_
Instruction%20Manual%20023-01-00101%20Rev%2001_
508%20Admin%20Rev.pdf), because it
interprets or amends a regulation
without changing its environmental
effect. This final rule will not result in
any major Federal action that will
significantly affect the quality of the
human environment. The new
regulations are not a part of any larger
action, and present no extraordinary
circumstances creating the potential for
significant environmental effects.
Therefore, this action is categorically
excluded and no further NEPA analysis
is required.
DHS explicitly requested comments
on NEPA in the NPRM, and only one
commenter addressed it by expressing
their understanding that DHS has
determined that the rule fits within the
Categorical Exclusions.
J. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 through 3512,
DHS must submit to OMB, for review
and approval, any reporting
requirements inherent in a rule unless
they are exempt. In this final rule, DHS
invites written comments and
recommendations for the proposed
information collection outlined below
within 30 days of publication of this
notice to https://www.reginfo.gov/
public/do/PRAMain. Find this
particular information collection by
selecting ‘‘Currently under Review—
Open for Public Comments’’ or by using
the search function.
DHS and USCIS invited the general
public and other Federal agencies to
comment on the impact to the proposed
collection of information. In accordance
with the PRA, the information
collection notice was published in the
Federal Register to obtain comments
regarding the proposed edits to the
information collection instrument.
Comments were accepted for 60 days
from the publication date of the
proposed rule. See Section III.N of this
preamble for summaries of and
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55635
responses to the comments received
regarding the information collection.
Overview of information collection:
(1) Type of Information Collection:
Revision of a Currently Approved
Collection.
(2) Title of the Form/Collection:
Application to Register Permanent
Residence or Adjust Status.
(3) Agency form number, if any, and
the applicable component of DHS
sponsoring the collection: I–485,
Supplement A, and Supplement J;
USCIS.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. The information on Form I–
485 will be used to request and
determine eligibility for adjustment of
permanent residence status.
Supplement A is used to adjust status
under section 245(i) of the Immigration
and Nationality Act. Supplement J is
used by employment-based applicants
for adjustment of status who are filing
or have previously filed Form I–485 as
the principal beneficiary of a valid Form
I–140 in an employment-based
immigrant visa category that requires a
job offer.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection I–485 is 690,837 and the
estimated hour burden per response is
7.17 hours. The estimated total number
of respondents for the information
collection Supplement A is 29,213 and
the estimated hour burden per response
is 1.25 hour. The estimated total number
of respondents for the information
collection Supplement J is 37,358 and
the estimated hour burden per response
is 1 hour. The estimated total number of
respondents for the information
collection of Biometrics is 690,837 and
the estimated hour burden per response
is 1.17 hour.
(6) An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 5,835,455 hours.
(7) An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is
$236,957,091.
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Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations
V. List of Subjects and Regulatory
Amendments
List of Subjects
8 CFR Part 103
Administrative practice and
procedure, Authority delegations
(Government agencies), Freedom of
information, Privacy, Immigration,
Immigration and Naturalization Service,
Reporting and recordkeeping
requirements, Surety bonds.
8 CFR Part 212
Administrative practice and
procedure, Aliens, Immigration,
Passports and visas, Reporting and
recordkeeping requirements.
8 CFR Part 213
Immigration, Surety bonds.
8 CFR Part 245
Aliens, Immigration, Reporting and
recordkeeping requirements.
Accordingly, DHS amends chapter I of
title 8 of the Code of Federal
Regulations as follows:
PART 103—IMMIGRATION BENEFIT
REQUESTS; USCIS FILING
REQUIREMENTS; BIOMETRIC
REQUIREMENTS; AVAILABILITY OF
RECORDS
PART 212—DOCUMENTARY
REQUIREMENTS: NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN
INADMISSIBLE ALIENS; PAROLE
3. The authority citation for part 212
continues to read as follows:
â–
Authority: 6 U.S.C. 111, 202(4) and 271; 8
U.S.C. 1101 and note, 1102, 1103, 1182 and
note, 1184, 1187, 1223, 1225, 1226, 1227,
1255, 1359; section 7209 of Pub. L. 108–458
(8 U.S.C. 1185 note); Title VII of Pub. L. 110–
229 (8 U.S.C. 1185 note); 8 CFR part 2; Pub.
L. 115–218.
Section 212.1(q) also issued under section
702, Pub. L. 110–229, 122 Stat. 754, 854.
â–
1. The authority in part 103 continues
to read:
â–
Authority: 5 U.S.C. 301, 552, 552a; 8
U.S.C. 1101, 1103, 1304, 1356, 1365b; 31
U.S.C. 9701; Pub. L. 107–296, 116 Stat. 2135
(6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part
2; Pub. L. 112–54; 125 Stat. 550; 31 CFR part
223.
§ 212.18 Application for Waivers of
inadmissibility in connection with an
application for adjustment of status by T
nonimmigrant status holders
2. Section 103.6 is amended by
revising the paragraph (c) heading and
paragraph (c)(1) to read as follows:
â–
§ 103.6
Immigration Bonds
*
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following the fifth anniversary of the
admission or adjustment of status of the
alien, provided that the alien has filed
Form I–356, Request for Cancellation of
Public Charge Bond, and USCIS finds
that the alien did not receive either
public cash assistance for income
maintenance or long-term
institutionalization at government
expense prior to the fifth anniversary. If
Form I–356 is not filed, the public
charge bond will remain in effect until
the form is filed and USCIS reviews the
evidence supporting the form, and
renders a decision regarding the breach
of the bond, or a decision to cancel the
bond.
*
*
*
*
*
*
*
*
*
(c) Cancellation and breach—(1)
Public charge bonds. A public charge
bond posted for an alien will be
cancelled when the alien dies, departs
permanently from the United States, or
is naturalized, provided the alien did
not breach such bond by receiving
either public cash assistance for income
maintenance or long-term
institutionalization at government
expense prior to death, permanent
departure, or naturalization. USCIS may
cancel a public charge bond at any time
after determining that the alien is not
likely at any time to become a public
charge. A bond may also be cancelled in
order to allow substitution of another
bond. A public charge bond will be
cancelled by USCIS upon review
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4. Amend § 212.18 by revising
paragraph (b)(2) and (3) to read as
follows:
*
*
*
*
*
(b) * * *
(2) If an applicant is inadmissible
under section 212(a)(1) of the Act,
USCIS may waive such inadmissibility
if it determines that granting a waiver is
in the national interest.
(3) If any other applicable provision of
section 212(a) renders the applicant
inadmissible, USCIS may grant a waiver
of inadmissibility if the activities
rendering the applicant inadmissible
were caused by or were incident to the
victimization and USCIS determines
that it is in the national interest to waive
the applicable ground or grounds of
inadmissibility.
■5. Add §§ 212.20 through 212.23 to
read as follows:
Sec.
*
*
*
*
*
212.20 Applicability of public charge
inadmissibility.
212.21 Definitions.
212.22 Public charge inadmissibility
determination.
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212.23 Exemptions and waivers for public
charge ground of inadmissibility.
§ 212.20 Applicability of public charge
inadmissibility.
8 CFR 212.20 through 212.23 address
the public charge ground of
inadmissibility under section 212(a)(4)
of the Act. Unless the alien requesting
the immigration benefit or classification
has been exempted from section
212(a)(4) of the Act as listed in
§ 212.23(a), the provisions of §§ 212.20
through 212.23 of this part apply to an
applicant for admission or adjustment of
status to that of a lawful permanent
resident.
§ 212.21
Definitions.
For the purposes of §§ 212.20 through
212.23, the following definitions apply:
(a) Likely at any time to become a
public charge means likely at any time
to become primarily dependent on the
government for subsistence, as
demonstrated by either the receipt of
public cash assistance for income
maintenance or long-term
institutionalization at government
expense.
(b) Public cash assistance for income
maintenance means:
(1) Supplemental Security Income
(SSI), 42 U.S.C. 1381 et seq.;
(2) Cash assistance for income
maintenance under the Temporary
Assistance for Needy Families (TANF)
program, 42 U.S.C. 601 et seq.; or
(3) State, Tribal, territorial, or local
cash benefit programs for income
maintenance (often called ‘‘General
Assistance’’ in the State context, but
which also exist under other names).
(c) Long-term institutionalization at
government expense means government
assistance for long-term
institutionalization (in the case of
Medicaid, limited to institutional
services under section 1905(a) of the
Social Security Act) received by a
beneficiary, including in a nursing
facility or mental health institution.
Long-term institutionalization does not
include imprisonment for conviction of
a crime or institutionalization for short
periods for rehabilitation purposes.
(d) Receipt (of public benefits). An
individual’s receipt of public benefits
occurs when a public benefit-granting
agency provides either public cash
assistance for income maintenance or
long-term institutionalization at
government expense to the individual,
where the individual is listed as a
beneficiary of such benefits. An
individual’s application for a public
benefit on their own behalf or on behalf
of another does not constitute receipt of
public benefits by such individual.
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Approval for future receipt of a public
benefit that an individual applied for on
their own behalf or on behalf of another
does not constitute receipt of public
benefits by such an individual. An
individual’s receipt of public benefits
solely on behalf of a third party
(including a member of the alien’s
household as defined in paragraph (f) of
this section) does not constitute receipt
of public benefits by such individual.
The receipt of public benefits solely by
a third party (including a member of the
alien’s household as defined in
paragraph (f) of this section), even if an
individual assists with the application
process, does not constitute receipt for
such individual.
(e) Government means any Federal,
State, Tribal, territorial, or local
government entity or entities of the
United States.
(f) Household: The alien’s household
includes:
(1) The alien;
(2) The alien’s spouse, if physically
residing with the alien;
(3) If physically residing with the
alien, the alien’s parents, the alien’s
unmarried siblings under 21 years of
age, and the alien’s children as defined
in section 101(b)(1) of the Act;
(4) Any other individuals (including a
spouse or child as defined in section
101(b)(1) of the Act not physically
residing with the alien) who are listed
as dependents on the alien’s federal
income tax return; and
(5) Any other individual(s) who lists
the alien as a dependent on their federal
income tax return.
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§ 212.22 Public charge inadmissibility
determination.
(a) Factors to consider—(1)
Consideration of minimum factors: For
purposes of a public charge
inadmissibility determination, DHS will
consider the alien’s:
(i) Age;
(ii) Health, as evidenced by a report
of an immigration medical examination
performed by a civil surgeon or panel
physician where such examination is
required (to which DHS will generally
defer absent evidence that such report is
incomplete);
(iii) Family status, as evidenced by
the alien’s household size, based on the
definition of household in § 212.21(f);
(iv) Assets, resources, and financial
status, as evidenced by the alien’s
household’s income, assets, and
liabilities (excluding any income from
public benefits listed in § 212.21(b) and
income or assets from illegal activities
or sources such as proceeds from illegal
gambling or drug sales); and
(v) Education and skills, as evidenced
by the alien’s degrees, certifications,
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licenses, skills obtained through work
experience or educational programs,
and educational certificates.
(2) Consideration of affidavit of
support. DHS will favorably consider an
Affidavit of Support Under Section
213A of the INA, when required under
section 212(a)(4)(C) or (D) of the Act,
that meets the requirements of section
213A of the Act and 8 CFR part 213a,
in making a public charge
inadmissibility determination.
(3) Consideration of current and/or
past receipt of public benefits: DHS will
consider the alien’s current and/or past
receipt of public cash assistance for
income maintenance or long-term
institutionalization at government
expense (consistent with § 212.21(c)).
DHS will consider such receipt in the
totality of the circumstances, along with
the other factors. DHS will consider the
amount and duration of receipt, as well
as how recently the alien received the
benefits, and for long-term
institutionalization at government
expense, evidence submitted by the
alien that the alien’s institutionalization
violates federal law, including the
Americans with Disabilities Act or the
Rehabilitation Act. However, current
and/or past receipt of these benefits will
not alone be a sufficient basis to
determine whether the alien is likely at
any time to become a public charge.
DHS will not consider receipt of, or
certification or approval for future
receipt of, public benefits not referenced
in § 212.21(b) and (c)), such as
Supplemental Nutrition Assistance
Program (SNAP) or other nutrition
programs, Children’s Health Insurance
Program (CHIP), Medicaid (other than
for long-term use of institutional
services under section 1905(a) of the
Social Security Act), housing benefits,
any benefits related to immunizations or
testing for communicable diseases, or
other supplemental or special-purpose
benefits.
(4) Disability alone not sufficient. A
finding that an alien has a disability, as
defined by Section 504 of the
Rehabilitation Act, will not alone be a
sufficient basis to determine whether
the alien is likely at any time to become
a public charge.
(b) Totality of the circumstances. The
determination of an alien’s likelihood of
becoming a public charge at any time in
the future must be based on the totality
of the alien’s circumstances. No one
factor outlined in paragraph (a) of this
section, other than the lack of a
sufficient Affidavit of Support Under
Section 213A of the INA, if required,
should be the sole criterion for
determining if an alien is likely to
become a public charge. DHS may
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55637
periodically issue guidance to
adjudicators to inform the totality of the
circumstances assessment. Such
guidance will consider how these
factors affect the likelihood that the
alien will become a public charge at any
time based on an empirical analysis of
the best-available data as appropriate.
(c) Denial Decision. Every written
denial decision issued by USCIS based
on the totality of the circumstances set
forth in paragraph (b) of this section will
reflect consideration of each of the
factors outlined in paragraph (a) of this
section and specifically articulate the
reasons for the officer’s determination.
(d) Receipt of public benefits while an
alien is in an immigration category
exempt from public charge
inadmissibility. In an adjudication for
an immigration benefit for which the
public charge ground of inadmissibility
applies, DHS will not consider any
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, as set forth in
§ 212.23(a), or for which the alien
received a waiver of public charge
inadmissibility, as set forth in
§ 212.23(c).
(e) Receipt of benefits available to
refugees. DHS will not consider any
public benefits that were received by an
alien who, while not a refugee admitted
under section 207 of the Act, is eligible
for resettlement assistance, entitlement
programs, and other benefits available to
refugees admitted under section 207 of
the Act, including services described
under section 412(d)(2) of the Act
provided to an unaccompanied alien
child as defined under 6 U.S.C.
279(g)(2).
§ 212.23 Exemptions and waivers for
public charge ground of inadmissibility.
(a) Exemptions. The public charge
ground of inadmissibility under section
212(a)(4) of the Act does not apply,
based on statutory or regulatory
authority, to the following categories of
aliens:
(1) Refugees at the time of admission
under section 207 of the Act and at the
time of adjustment of status to lawful
permanent resident under section 209 of
the Act;
(2) Asylees at the time of grant under
section 208 of the Act and at the time
of adjustment of status to lawful
permanent resident under section 209 of
the Act;
(3) Amerasian immigrants at the time
of application for admission as
described in sections 584 of the Foreign
Operations, Export Financing, and
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Related Programs Appropriations Act of
1988, Public Law 100–202, 101 Stat.
1329–183, section 101(e) (Dec. 22,
1987), as amended, 8 U.S.C. 1101 note;
(4) Afghan and Iraqi Interpreters, or
Afghan or Iraqi nationals employed by
or on behalf of the U.S. Government as
described in section 1059(a)(2) of the
National Defense Authorization Act for
Fiscal Year 2006 Public Law 109–163
(Jan. 6, 2006), as amended, and section
602(b) of the Afghan Allies Protection
Act of 2009, Public Law 111–8, title VI
(Mar. 11, 2009), as amended, 8 U.S.C.
1101 note, and section 1244(g) of the
National Defense Authorization Act for
Fiscal Year 2008, as amended, Public
Law 110–181 (Jan. 28, 2008);
(5) Cuban and Haitian entrants
applying for adjustment of status under
section 202 of the Immigration Reform
and Control Act of 1986 (IRCA), Public
Law 99–603, 100 Stat. 3359 (Nov. 6,
1986), as amended, 8 U.S.C. 1255a note;
(6) Aliens applying for adjustment of
status under the Cuban Adjustment Act,
Public Law 89–732 (Nov. 2, 1966), as
amended, 8 U.S.C. 1255 note;
(7) Nicaraguans and other Central
Americans applying for adjustment of
status under section 202(a) and section
203 of the Nicaraguan Adjustment and
Central American Relief Act (NACARA),
Public Law 105–100, 111 Stat. 2193
(Nov. 19, 1997), as amended, 8 U.S.C.
1255 note;
(8) Haitians applying for adjustment
of status under section 902 of the
Haitian Refugee Immigration Fairness
Act of 1998, Public Law 105–277, 112
Stat. 2681 (Oct. 21, 1998), as amended,
8 U.S.C. 1255 note;
(9) Lautenberg parolees as described
in section 599E of the Foreign
Operations, Export Financing, and
Related Programs Appropriations Act of
1990, Public Law 101–167, 103 Stat.
1195, title V (Nov. 21, 1989), as
amended, 8 U.S.C. 1255 note;
(10) Special immigrant juveniles as
described in section 245(h) of the Act;
(11) Aliens who entered the United
States prior to January 1, 1972, and who
meet the other conditions for being
granted lawful permanent residence
under section 249 of the Act and 8 CFR
part 249 (Registry);
(12) Aliens applying for or
reregistering for Temporary Protected
Status as described in section 244 of the
Act in accordance with section
244(c)(2)(A)(ii) of the Act and 8 CFR
244.3(a);
(13) Nonimmigrants described in
section 101(a)(15)(A)(i) and (ii) of the
Act (Ambassador, Public Minister,
Career Diplomat or Consular Officer, or
Immediate Family or Other Foreign
Government Official or Employee, or
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Immediate Family), in accordance with
section 102 of the Act and 22 CFR
41.21(d);
(14) Nonimmigrants classifiable as C–
2 (alien in transit to U.N. Headquarters)
or C–3 (foreign government official), 22
CFR 41.21(d);
(15) Nonimmigrants described in
section 101(a)(15)(G)(i), (ii), (iii), and
(iv), of the Act (Principal Resident
Representative of Recognized Foreign
Government to International
Organization, and related categories), in
accordance with section 102 of the Act
and 22 CFR 41.21(d);
(16) Nonimmigrants classifiable as
NATO–1, NATO–2, NATO–3, NATO–4
(NATO representatives), and NATO–6
in accordance with 22 CFR 41.21(d);
(17) Applicants for nonimmigrant
status under section 101(a)(15)(T) of the
Act, in accordance with § 212.16(b);
(18) Except as provided in paragraph
(b) of this section, individuals who are
seeking an immigration benefit for
which admissibility is required,
including but not limited to adjustment
of status under section 245(a) of the Act
and section 245(l) of the Act and who:
(i) Have a pending application that
sets forth a prima facie case for
eligibility for nonimmigrant status
under section 101(a)(15)(T) of the Act,
or
(ii) Have been granted nonimmigrant
status under section 101(a)(15)(T) of the
Act, provided that the individual is in
valid T nonimmigrant status at the time
the benefit request is properly filed with
USCIS and at the time the benefit
request is adjudicated;
(19) Except as provided in paragraph
(b) of this section:
(i) Petitioners for nonimmigrant status
under section 101(a)(15)(U) of the Act,
in accordance with section
212(a)(4)(E)(ii) of the Act; or
(ii) Individuals who are granted
nonimmigrant status under section
101(a)(15)(U) of the Act in accordance
with section 212(a)(4)(E)(ii) of the Act,
who are seeking an immigration benefit
for which admissibility is required,
including, but not limited to,
adjustment of status under section
245(a) of the Act, provided that the
individuals are in valid U nonimmigrant
status at the time the benefit request is
properly filed with USCIS and at the
time the benefit request is adjudicated;
(20) Except as provided in paragraph
(b) of this section, any aliens who are
VAWA self-petitioners under section
212(a)(4)(E)(i) of the Act;
(21) Except as provided in paragraph
(b) of this section, qualified aliens
described in section 431(c) of the
Personal Responsibility and Work
Opportunity Reconciliation Act of 1996,
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Fmt 4701
Sfmt 4700
8 U.S.C. 1641(c), under section
212(a)(4)(E)(iii) of the Act;
(22) Applicants adjusting status who
qualify for a benefit under section 1703
of the National Defense Authorization
Act, Public Law 108–136, 117 Stat. 1392
(Nov. 24, 2003), 8 U.S.C. 1151 note
(posthumous benefits to surviving
spouses, children, and parents);
(23) American Indians born in Canada
determined to fall under section 289 of
the Act;
(24) Texas Band of Kickapoo Indians
of the Kickapoo Tribe of Oklahoma,
Public Law 97–429 (Jan. 8, 1983);
(25) Nationals of Vietnam, Cambodia,
and Laos applying for adjustment of
status under section 586 of Public Law
106–429 under 8 CFR 245.21;
(26) Polish and Hungarian Parolees
who were paroled into the United States
from November 1, 1989 to December 31,
1991, under section 646(b) of the
IIRIRA, Public Law 104–208, Div. C,
Title VI, Subtitle D (Sept. 30, 1996), 8
U.S.C. 1255 note;
(27) Applicants adjusting status who
qualify for a benefit under Section 7611
of the National Defense Authorization
Act for Fiscal Year 2020, Public Law
116–92, 113 Stat. 1198, 2309 (December
20, 2019) (Liberian Refugee Immigration
Fairness), later extended by Section 901
of Division O, Title IX of the
Consolidated Appropriations Act, 2021,
Public Law 116–260 (December 27,
2020) (Adjustment of Status for Liberian
Nationals Extension);
(28) Certain Syrian nationals adjusting
status under Public Law 106–378; and
(29) Any other categories of aliens
exempt under any other law from the
public charge ground of inadmissibility
provisions under section 212(a)(4) of the
Act.
(b) Limited Exemption. Aliens
described in paragraphs (a)(18) through
(21) of this section must submit an
Affidavit of Support Under Section
213A of the INA if they are applying for
adjustment of status based on an
employment-based petition that requires
such an affidavit of support as described
in section 212(a)(4)(D) of the Act.
(c) Waivers. A waiver for the public
charge ground of inadmissibility may be
authorized based on statutory or
regulatory authority, for the following
categories of aliens:
(1) Applicants for admission as
nonimmigrants under 101(a)(15)(S) of
the Act;
(2) Nonimmigrants admitted under
section 101(a)(15)(S) of the Act applying
for adjustment of status under section
245(j) of the Act (witnesses or
informants); and
E:\FR\FM\09SER2.SGM
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Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations
(3) Any other category of aliens who
are eligible to receive a waiver of the
public charge ground of inadmissibility.
PART 213—PUBLIC CHARGE BONDS
6. The authority citation for part 213
is revised to read as follows:
â–
Authority: 8 U.S.C. 1103; 1183; 8 CFR part
2.
â–
7. Revise § 213.1 to read as follows:
§ 213.1 Admission under bond or cash
deposit.
jspears on DSK121TN23PROD with RULES2
(a) Public charge bonds for
adjustment of status applicants. If, in
the course of adjudicating an
application for adjustment of status to
that of a lawful permanent resident,
USCIS determines that the alien is
inadmissible only under section
212(a)(4) of the Act, and that the
application for adjustment of status is
otherwise approvable, USCIS may invite
the alien to submit a public charge bond
as a condition of approval of the
adjustment of status application. Subject
to the requirements of paragraph (c) of
this section and 8 CFR 103.6, USCIS
will set the bond amount and provide
instructions for the submission of a
public charge bond. Public charge bonds
may be in the form of a surety bond or
an agreement covering cash deposits.
(b) Public charge bonds requested by
consular officers. USCIS may accept a
public charge bond before the issuance
of an immigrant visa to the alien upon
receipt of a request directly from a
United States consular officer or upon
presentation by an interested person of
a notification from the consular officer
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19:24 Sep 08, 2022
Jkt 256001
requiring such a bond. The consular
officer will set the amount of any such
bond subject to paragraph (c) of this
section and will provide instructions for
the submission of a public charge bond.
Upon acceptance of such a bond, USCIS
will notify the U.S. consular officer who
requested the bond, giving the date and
place of acceptance and the amount of
the bond.
(c) Form and amount of public charge
bonds. All bonds and agreements
covering cash deposits given as a
condition of admission or adjustment of
status of an alien under section 213 of
the Act must be executed on a form
designated by USCIS for that purpose
and be in the sum set by USCIS under
paragraph (a) of this section for
adjustment of status applicants or the
consular officer under paragraph (b) of
this section for immigrant visa
applicants but not less than $1,000.
USCIS will provide a receipt to the alien
or an interested person acting on the
alien’s behalf on a form designated by
USCIS for such purpose. All public
charge bonds are subject to the
procedures established in 8 CFR 103.6
relating to bond riders, acceptable
sureties, cancellation of bonds, and
breach of bonds.
PART 245—ADJUSTMENT OF STATUS
TO THAT OF A PERSON ADMITTED
FOR PERMANENT RESIDENCE
8. The authority citation for part 245
continues to read as follows:
â–
Authority: 8 U.S.C. 1101, 1103, 1182,
1255; Pub. L. 105–100, section 202, 111 Stat.
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Frm 00169
Fmt 4701
Sfmt 9990
55639
2160, 2193; Pub. L. 105–277, section 902, 112
Stat. 2681; Pub. L. 110–229, tit. VII, 122 Stat.
754; 8 CFR part 2.
9. In § 245.23, revise paragraph (c)(3)
to read as follows:
â–
§ 245.23 Adjustment of aliens in T
nonimmigrant classification.
*
*
*
*
*
(c) * * *
(3) The alien is inadmissible under
any applicable provisions of section
212(a) of the Act and has not obtained
a waiver of inadmissibility in
accordance with 8 CFR 212.18 or
214.11(j). Where the alien establishes
that the victimization was a central
reason for the alien’s unlawful presence
in the United States, section
212(a)(9)(B)(iii) of the Act is not
applicable, and the alien need not
obtain a waiver of that ground of
inadmissibility. The alien, however,
must submit with the Form I–485
evidence sufficient to demonstrate that
the victimization suffered was a central
reason for the unlawful presence in the
United States. To qualify for this
exception, the victimization need not be
the sole reason for the unlawful
presence but the nexus between the
victimization and the unlawful presence
must be more than tangential,
incidental, or superficial.
*
*
*
*
*
Dated: August 26, 2022.
Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2022–18867 Filed 9–8–22; 8:45 am]
BILLING CODE 9111–97â