Visas: Ineligibility Based on Public Charge, 60574-60583 [2023-19047]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 88, Number 170 (Tuesday, September 5, 2023)]
[Rules and Regulations]
[Pages 60574-60583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19047]



[[Page 60574]]

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DEPARTMENT OF STATE

22 CFR Part 40

[Public Notice: 11921]
RIN 1400-AE87


Visas: Ineligibility Based on Public Charge

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State (``Department'') has decided not to 
finalize the regulatory amendments made by the 2019 interim final rule 
entitled ``Visas: Ineligibility Based on Public Charge Grounds'' 
published in the Federal Register on October 11, 2019 (``2019 IFR''). 
The 2019 IFR implemented such amendments based on an intention to more 
closely align with the standards then applied by the U.S. Department of 
Homeland Security (``DHS'') to determine inadmissibility on public 
charge grounds. In 2022, DHS published a new Final Rule (``2022 DHS 
Final Rule''). As such, the 2019 IFR no longer meets the policy aim of 
consistency with DHS standards. In declining to finalize the regulatory 
amendments made by the 2019 IFR, the Department will instead revert to 
regulatory text that was in place prior to the publication of the 2019 
IFR and will continue to apply the guidance set out in the Foreign 
Affairs Manual (``FAM''). This regulatory text, together with the 
existing FAM guidance, more closely aligns with the current DHS 
standards, and the Department anticipates that it will subsequently 
initiate new notice-and-comment rulemaking in light of the 2022 DHS 
Final Rule.

DATES: This final rule is effective October 5, 2023.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory 
Coordinator, Visa Services, Bureau of Consular Affairs, Department of 
State; telephone: (202) 485-7586; email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

A. Legal Authority

    Under section 212(a)(4) of the Immigration and Nationality Act 
(``INA''), 8 U.S.C. 1182(a)(4), a noncitizen is inadmissible to the 
United States, and therefore ineligible for a visa, if, in the opinion 
of the consular officer at the time of the application for a visa, the 
applicant is likely at any time to become a ``public charge.'' \1\ The 
Department implements the public charge ground of inadmissibility with 
respect to visa ineligibility through regulations at 22 CFR 40.41.
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    \1\ DHS also applies section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), to noncitizens seeking admission to the United States at 
or between ports of entry, or in reviewing applications for 
adjustment of status. Additionally, the Department of Justice 
(``DOJ'') applies this statute with respect to noncitizens in 
immigration court proceedings before the Executive Office for 
Immigration Review, a DOJ agency. This final rule does not apply to 
the public charge inadmissibility standards applied by DHS or DOJ. 
This final rule will use the terms inadmissible to the United States 
and ineligible for a visa interchangeably.
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B. The Department's 2019 Interim Final Rule

    On August 14, 2019, DHS issued a final rule amending standards in 
its regulations for determining inadmissibility under public charge 
grounds. See Inadmissibility on Public Charge Grounds, 84 FR 41292, as 
amended on October 2, 2019, 84 FR 52357 (``2019 DHS Final Rule''). 
Among other changes to these regulations, the 2019 DHS Final Rule 
expanded DHS's definition of ``public charge'' and designated certain 
factors or factual circumstances that could be weighted positively or 
negatively, and some that would be ``heavily'' weighted, either 
positively or negatively, to consider whether an applicant was likely 
at any time to become a public charge.
    On October 11, 2019, the Department issued the 2019 IFR, which 
amended Department regulations at 22 CFR 40.41 to modify its standards 
for when a consular officer would determine that a noncitizen is 
ineligible for a visa under section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), because they are likely at any time to become a public 
charge.\2\ The Department issued the 2019 IFR largely to avoid 
situations when a consular officer would evaluate an applicant's 
circumstances and conclude that the applicant is not likely to become a 
public charge, only for DHS to evaluate the same applicant when seeking 
admission to the United States on a visa issued by the Department, and 
find that the applicant is inadmissible on public charge grounds under 
the same facts. Though the 2019 IFR included minor deviations from the 
2019 DHS Final Rule, its purpose was to align the Department's approach 
with that of DHS's.\3\
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    \2\ 84 FR 54996 (Oct. 11, 2019).
    \3\ See id. at 55002 (``The Department notes that this approach 
deviates somewhat from the [2019 DHS Final Rule], in that the 
Department's approach focuses on the alien's intended household in 
the United States, rather than any members of his foreign household 
he or she will leave behind. This difference in effect aligns the 
two Departments' approaches.'').
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    While the term ``public charge'' is not defined in the INA, the 
definition set forth in the 2019 IFR and the 2019 DHS Final Rule 
differed significantly from the definition applied for decades 
previously, and most notably from the 1999 Field Guidance on 
Deportability and Inadmissibility on Public Charge Grounds (``1999 
Interim Field Guidance'') \4\ issued by the former Immigration and 
Naturalization Service and related FAM guidance issued by the 
Department, as further described below. Similar to the 2019 DHS Final 
Rule, the 2019 IFR defined public charge to mean a noncitizen who 
receives one or more public benefits, as defined in the 2019 IFR, for 
more than 12 months in the aggregate within any 36-month period. 
Receipt of two benefits in one month would count as two months' worth 
of benefits.\5\ Public benefits under the 2019 IFR included any 
Federal, State, local, or Tribal cash assistance for income maintenance 
(other than tax credits), the Supplemental Nutrition Assistance 
Program, 7 U.S.C. 2011 et seq., the Housing Choice Voucher Program, as 
authorized under section 8(o) of the United States Housing Act of 1937 
(42 U.S.C. 1437f), Project-Based Rental Assistance (including Moderate 
Rehabilitation) authorized under section 8 of the United States Housing 
Act of 1937, Medicaid (with enumerated exclusions), and Public Housing 
under section 9 of the U.S. Housing Act of 1937 (42 U.S.C. 1437g).\6\ 
Further, the 2019 IFR included certain factors and factual 
circumstances that weighed heavily in determining whether a visa 
applicant was likely to become a public charge, including negative and 
positive factors.
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    \4\ Interim Field Guidance on Deportability and Inadmissibility 
on Public Charge Grounds, 64 FR 28689 (May 26, 1999).
    \5\ 84 FR 54996, 55014.
    \6\ Id.
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    On July 29, 2020, the U.S. District Court for the Southern District 
of New York granted a preliminary injunction against implementation of 
the 2019 IFR, holding that the plaintiffs were likely to succeed in 
their claim that the 2019 IFR did not comply with the requirements of 
the Administrative Procedure Act.\7\ The government filed a notice of 
appeal from this preliminary injunction, but the appeal was later 
dismissed at the government's request.\8\
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    \7\ Make the Road N.Y. v. Pompeo, 475 F. Supp. 3d 232, 262 
(S.D.N.Y. 2020).
    \8\ Make the Road N.Y. v. Pompeo, No. 20-3214 (S.D.N.Y. July 6, 
2021), ECF No. 118.
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    Following the preliminary injunction against enforcement of the 
2019 IFR, the Department issued FAM guidance to

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consular officers \9\ regarding compliance with the court order. The 
FAM guidance generally instructed consular officers adjudicating visas 
to apply the standards that had been in place prior to the 2019 IFR, 
standards which were based on the 1999 Interim Field Guidance.
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    \9\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited June 14, 
2023).
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C. Purpose of Not Finalizing the Regulatory Standards in the 2019 IFR

    There have been significant developments related to the public 
charge ground of inadmissibility since the publication of the 2019 IFR. 
On February 2, 2021, President Biden issued Executive Order 14012, 
Restoring Faith in Our Legal Immigration System and Strengthening 
Integration and Inclusion Efforts for New Americans (``E.O. 
14012'').\10\ E.O. 14012 directed the Secretary, along with the 
Attorney General, the Secretary of Homeland Security, and other 
relevant agency heads, to ''review all agency actions related to 
implementation of the public charge ground of inadmissibility . . . and 
the related ground of deportability.'' \11\ The President ordered each 
of the agencies to submit a report ``identify[ing] appropriate agency 
actions, if any, to address concerns about the current public charge 
policies' effect on the integrity of the Nation's immigration system 
and public health'' and ``recommend[ing] steps that relevant agencies 
should take to clearly communicate current public charge policies and 
proposed changes, if any, to reduce fear and confusion among impacted 
communities.'' \12\
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    \10\ Executive Order 14012, 86 FR 8277 (Feb. 5, 2021).
    \11\ See Exec. Order No. 14012, sec. 4, 86 FR 8277, 8278 (Feb. 
5, 2021).
    \12\ Id. Sec.  4(a).
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    On November 17, 2021, the Department published a notice in the 
Federal Register, 86 FR 64070 (``Public Comment Reopening''), 
soliciting public comment on the 2019 IFR for an additional 60-day 
period, noting significant changes in circumstances since publication 
of the 2019 IFR.\13\ As described in the Public Comment Reopening, the 
changes in intervening circumstances included public health and 
economic conditions arising from the COVID-19 pandemic; a court's 
vacatur of the 2019 DHS Final Rule on a nationwide basis; and DHS's 
publication on August 23, 2021, of an Advance Notice of Proposed 
Rulemaking, soliciting public feedback on the DHS interpretation of the 
public charge ground of inadmissibility to inform a future rulemaking 
on the issue. In light of those developments, in the Public Comment 
Reopening, the Department specifically sought public feedback on 
whether: (1) the 2019 IFR should be rescinded or revised; and (2) if 
so, what final rule should be adopted regarding visa ineligibility on 
public charge grounds.
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    \13\ See Visas: Ineligibility Based on Public Charge Grounds, 86 
FR 64070 (Nov. 17, 2021).
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    As detailed below, following receipt of a range of public comments 
in response to the 2019 IFR and the 2021 Public Comment Reopening, the 
Department has decided not to finalize the regulatory amendments made 
by the 2019 IFR. Instead, the Department is removing from 22 CFR 40.41 
the regulations promulgated in the 2019 IFR and restoring the 
regulatory text as it appeared prior to the issuance of the 2019 IFR 
(``Prior Rule'').\14\ The Prior Rule was published in 1997, and, with 
non-substantive changes,\15\ remained in place until the publication of 
the 2019 IFR. The subsequently published 1999 Interim Field Guidance 
set forth a public charge rule substantially similar to the Prior Rule. 
The majority of public comments opposed the 2019 IFR or recommended 
substantial revisions, noting an array of public harms that they 
attributed to the overall public charge policy reflected in the 2019 
IFR, including a measurable decline in enrollment in assistance 
programs by children in families with noncitizen members, far more than 
the decline of enrollment in assistance programs by children in 
families with no noncitizen members.
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    \14\ Visas: Public Charge, 62 FR 67563 (Dec. 29, 1997).
    \15\ See Immigrant Visas; Change in the Schedule of Fees for 
Consular Services, 65 FR 78094 (Dec. 14, 2000); Nomenclature Changes 
Reflecting Creation of Department of Homeland Security, 71 FR 34519 
(Jun. 15, 2006).
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    In 2022, DHS promulgated the 2022 DHS Final Rule in which it 
explained why it believed its 2019 Final Rule did not represent the 
best interpretation of the public charge statute.\16\ The 2022 DHS 
Final Rule adopts a significantly different standard for determining 
whether an individual is likely at any time to become a public charge 
than the standard reflected in DHS's 2019 Final Rule and the 
Department's 2019 IFR. The 2022 DHS Final Rule promulgated a rule 
governing the public charge grounds of inadmissibility, which, while 
not identical, is substantially similar to the 1999 Interim Field 
Guidance.
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    \16\ See Public Charge Ground of Inadmissibility, 87 FR 55472 
(Sept. 9, 2022).
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    Accordingly, the 2019 IFR no longer meets the policy aim of 
consistency with DHS standards, which was the Department's principal 
reason for adopting the 2019 IFR. The Department therefore will not 
finalize the provisions in the 2019 IFR, which have been subject to a 
preliminary injunction since July 2020, and will instead return to the 
Prior Rule pending further rulemaking. The standards contained in the 
Prior Rule, together with the associated FAM guidance, align better 
with the 2022 DHS Final Rule than the 2019 IFR. After the instant rule 
is finalized, the Department anticipates that it will initiate new 
notice-and-comment rulemaking in light of the 2022 DHS Final Rule to 
pursue any further amendments to the Department's regulatory text on 
public charge ineligibility, as appropriate.

D. Alternatives Considered

    The Department considered alternatives to this final rule. For 
example, the Department considered promulgating a final rule, following 
the 2019 IFR, but taking into account comments received, that would 
amend significantly the standards of the 2019 IFR to more closely align 
with the 2022 DHS Final Rule. The Department declined to pursue this 
alternative, because, despite the two periods of public comment on the 
2019 IFR, it would not provide the public an opportunity to provide 
comment on the new standards, in the context of the Department's 
rulemaking. For that reason, the Department believes it is appropriate 
not to finalize the 2019 IFR with revised standards and instead to 
undertake new notice-and-comment rulemaking in light of the 2022 DHS 
Final Rule.
    The Department also considered publishing a proposed rule with new 
standards for visa ineligibility based on the public charge ground of 
inadmissibility, without first removing changes to the regulations 
promulgated under the 2019 IFR. The Department determined that this 
alternative would not best achieve the Department's policy objective of 
consistency in administration of the public charge grounds of 
inadmissibility with DHS, because amendments from the 2019 IFR would 
remain in Department regulations while the new standards underwent 
public notice and comment. Because the 2019 IFR was principally 
designed to align with the standards of the 2019 DHS Final Rule, the 
2019 IFR, if applied now, would create a pronounced inconsistency with 
the standards in the 2022 DHS Final Rule, and the Department determined 
that

[[Page 60576]]

neither retaining nor finalizing the regulatory amendments made by the 
2019 IFR while it undertook further rulemaking was appropriate.
    The Department also considered whether there might be policy 
alternatives to amending the 2019 IFR or removing changes to 
regulations from the 2019 IFR. The Department determined that there are 
no such viable alternatives because the standards promulgated under the 
2019 IFR are entirely inconsistent with the standards implemented by 
DHS in the 2022 DHS Final Rule with respect to inadmissibility under 
the public charge grounds.

E. Consideration of Reliance Interests

    In preparing this final rule, the Department also considered 
whether there were any serious reliance interests that would be harmed 
by removing the 2019 IFR and returning to the Prior Rule.
    While no comments submitted in response to the 2019 IFR or Public 
Comment Reopening directly or indirectly identified reliance interests 
of any individuals or public or private entities that have relied on 
the policy articulated in the 2019 IFR, the Department's regulations, 
which can affect the interests of individuals and entities in the 
United States, could have potentially engendered degrees of reliance. 
The 2019 IFR may have engendered such an interest, for example, by 
individuals or public or private entities. For instance, public 
entities such as state or local governments may assert reliance on the 
enjoined rule given potential effects on noncitizens obtaining public 
benefits in the United States. The Department has considered those 
potential interests and taken them into consideration in formulating 
this final rule.
    The Department concludes that the reasons not to finalize the 
regulatory amendments made by the 2019 IFR outweigh any such reliance 
interests, which appear minimal, in light of a number of factors, 
including: (1) the limited period in which this policy was in effect 
prior to the preliminary injunction, as any reliance interests have 
been significantly reduced as compared to a longstanding rule or agency 
policy; (2) the significant time during which the Department has been 
enjoined from implementing the policy; (3) the Department's notice to 
the public in the Public Comment Reopening that it was considering 
removing the regulations promulgated under the 2019 IFR, and 
solicitation of public comments on whether to adopt, revise, or rescind 
it; (4) the explicitly ``interim'' nature of the 2019 IFR itself; and 
(5) the significant policy interests articulated in this rule that 
support removal of the regulations, specifically the interest in 
ensuring that the Department and DHS do not apply significantly 
different public charge standards to determine a given individual's 
visa eligibility and eligibility for admission to the United States.
    In reverting to the Prior Rule and in continuing to apply the FAM 
guidance, consular officers will continue to apply the Department's 
policy of implementing the public charge ground of inadmissibility 
consistently with current DHS standards and the Department's FAM 
guidance. As the nationwide preliminary injunction has been in place 
since July 2020, the Department has in practice reverted to the Prior 
Rule since that time. Compared with the standards set forth in the 2019 
IFR, the Prior Rule more closely aligns with the standards articulated 
by DHS in the 2022 DHS Final Rule.

F. Comments Received in Response to 2019 IFR and 2021 Public Comment 
Reopening

1. Summary of Comments
    In the 2019 IFR, the Department solicited public comments on the 
rule for a 30-day period following publication on October 11, 2019. 
During that period, the Department received 199 comments from 
individuals, local and state governments, public officials, and non-
governmental organizations. The Department reviewed these comments, of 
which 4 expressed support for the 2019 IFR; 19 were non-responsive to 
the 2019 IFR; and 34 did not clearly reflect support or opposition to 
the 2019 IFR. The remaining 142 comments expressed opposition to the 
2019 IFR.
    The Public Comment Reopening solicited public comments on the IFR 
for an additional 60-day period following publication of the notice on 
November 17, 2021. In response, the Department received 32 comments 
\17\ from individuals, local and state governments, public officials, 
and non-governmental organizations. The Department reviewed these 
comments, of which 3 expressed support for the 2019 IFR and 29 opposed 
the 2019 IFR and suggested rescission or substantial revision of the 
2019 IFR on a variety of bases, discussed below.
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    \17\ There were 33 total comments submitted, but one was an 
identical comment submitted by the same commenter. As the substance 
of the comments was identical, the Department considers both 
comments as one comment.
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    The below table provides a summary of the total comments received:

                    Table 1--Total Comments Received
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Support for the 2019 IFR...........................................    7
Opposition to 2019 IFR.............................................  171
Neither Clearly Supporting nor Opposing............................   34
Nonresponsive......................................................   19
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    Total..........................................................  231
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    The summary and discussion of comments below reflects the comments 
received in response to the 2019 IFR, including those received in 
response to the Public Comment Reopening. Of those comments expressing 
opposition to the 2019 IFR, the most common reasons expressed were 
opposition to policies first articulated in the 2019 DHS Final Rule; 
harmful effects of the overall public charge policy reflected in the 
2019 IFR on immigrant families; that the interpretation of the public 
charge ground of inadmissibility in the 2019 IFR was unlawful; that the 
2019 DHS Final Rule was enjoined; and that the overall public charge 
policy reflected in the 2019 IFR had a chilling effect that deterred 
families from receiving public benefits to which they were eligible. As 
detailed in Table 3, other comments in opposition to the 2019 IFR 
included objections to the rule's circumstantial eligibility factors 
and concerns that calculations related to the statutory factors were 
arbitrary. Several commenters opined that the 2019 IFR was 
discriminatory against immigrants from particular regions or that it 
would unduly burden the U.S. national economy. The two tables below 
describe the categories of comments submitted by the public both in 
favor of and in opposition to the 2019 IFR, noting that some comments 
expressed more than one basis for support or opposition to the rule.

          Table 2--Comments in Support of 2019 IFR, by Category
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Reduce Overall Immigration.........................................    3
Immigrants Should be Self-Sufficient...............................    2
Immigrants Should Not Go on Welfare................................    1
Immigrant Communities are Already Self-Sufficient..................    1
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    Total..........................................................    7
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      Table 3--Comments in Opposition to 2019 IFR, by Category \18\
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Oppose 2019 DHS Public Charge Rule.................................  105
IFR is Unlawful....................................................   80
2019 Harmful to Immigrant Families.................................   86
DHS Rule and IFR were under Injunction.............................   65

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Chilling Effect to Deter Receipt of Public Benefits................   65
IFR is Discriminatory or Racist....................................   41
Oppose Circumstantial Eligibility Factors..........................   39
Economically Burdensome on Families................................   39
Unfair Calculations under IFR......................................   34
Oppose Definition of Public Charge in IFR..........................   31
Private Health Insurance Concern...................................   19
Other..............................................................   40
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2. Comments Expressing Support for Finalizing the 2019 IFR
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    \18\ Several commenters expressed multiple reasons for 
opposition; each reason listed in this table shows the primary 
reasons for opposition to the IFR. Additionally, there may be some 
overlap between arguments raised by some commenters.
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    Comment: Three commenters expressed support for the 2019 IFR, 
because, in the commenters' opinion, levels of immigration to the 
United States are too high and finalizing the 2019 IFR would have the 
effect of restricting or lowering immigration levels overall.
    Response: The INA governs the standards regarding a noncitizen's 
admissibility to the United States, and the Department seeks to 
faithfully implement the statutory public charge ground of 
inadmissibility. The Department will continue to apply the public 
charge ground of inadmissibility to nonimmigrant and immigrant visa 
applicants in classifications that are subject to this ground, noting 
that, by statute, the ground does not apply to certain nonimmigrant 
visa classifications.\19\ The INA sets out worldwide levels of 
immigration for each fiscal year for certain family-sponsored, 
employment-based, and diversity immigrants, while excluding certain 
immigrants (notably the immediately relatives of U.S. citizens) from 
numerical limitations. Most nonimmigrant visa classifications are not 
subject to numerical limitations. Between FY 2016 and 2019, DOS issued 
approximately 543,000 immigrant visas and 9,458,000 nonimmigrant visas 
annually (on average). Considering the overall demand for visas and 
pre-pandemic trends in visa issuance, the Department does not expect 
that the 2019 IFR or this final rule would change the overall level of 
immigration.
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    \19\ Several classifications of nonimmigrant and immigrant visa 
applicants are expressly exempted from the public charge grounds of 
visa ineligibility. Such visa classifications include, without 
limitation, Special Immigrant Visa applicants who were Afghan or 
Iraqi nationals employed by or on behalf of the U.S. Government, and 
applicants for A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-
2, NATO-3, NATO-4, NATO-6, T, and U (with a limited exception) 
nonimmigrant visas. Applicants for S nonimmigrant visas may also 
obtain a waiver of the public charge grounds of visa ineligibility. 
A full list of exemptions and waivers from the public charge grounds 
of inadmissibility is contained in the 2022 DHS Final Rule, 87 FR 
55472, 55637-39 (Sept. 9, 2022).
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    This conclusion is supported by the immigrant and nonimmigrant visa 
statistics available for fiscal year 2020, which covers the time period 
when the 2019 IFR was in effect.\20\ In fiscal year 2020, consular 
officers made 6,541 inadmissibility findings based on public charge 
grounds when adjudicating immigrant visas, and 6,175 were overcome. For 
nonimmigrants, the Department made 343 inadmissibility findings based 
on public charge grounds, and 193 were overcome. When compared to the 
overall volume of immigrant and nonimmigrant visa issuances, the number 
of noncitizens found inadmissible who did not overcome that finding 
while the 2019 IFR was in effect was negligible. Consequently, the 
Department does not believe that reversion to the prior regulatory text 
will affect worldwide levels of immigration.
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    \20\ Department of State, Annual Report of the Visa Office 2020, 
Table XIX, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-Table%20XIX.pdf.
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    Comment: Two commenters expressed support for the 2019 IFR, stating 
that immigrants should be self-sufficient, and that visas should not be 
issued to individuals who will not be able to support themselves.
    Response: Even after the publication of this final rule, consular 
officers will continue to apply the public charge ground of 
inadmissibility to applicants for nonimmigrant and immigrant visas in 
classifications that are subject to this ground of inadmissibility. A 
consular officer who finds that an applicant for a visa is likely at 
any time to become a public charge is required to refuse the 
applicant's application on that basis.\21\ However, this refusal may be 
overcome by presenting additional evidence to the consular officer that 
the inadmissibility no longer applies, or by posting a ``suitable and 
proper bond or undertaking.'' \22\
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    \21\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited June 14, 
2023).
    \22\ 8 U.S.C. 1183.
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    Additionally, federal law generally prevents noncitizens who are 
subject to the public charge ground of inadmissibility from taking 
advantage of means-tested benefits programs by generally excluding them 
from participation for the five years after admission to the United 
States or adjustment of status.\23\
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    \23\ Public Law 104-193 tit. IV, 8 U.S.C. 1601 et seq.
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    Consular officers shall apply the grounds in accordance with the 
regulatory text that was in place prior to the publication of the 2019 
IFR. Additionally, they will be advised to continue applying FAM 
guidance that implements the public charge ground of inadmissibility, 
which generally is aligned with the current DHS standards. After the 
instant Final Rule takes effect, the Department anticipates that it 
will undertake new notice-and-comment rulemaking in light of the 2022 
DHS Final Rule.
    Comment: One commenter expressed support for the 2019 IFR, stating 
that visa applicants should be vetted to ensure they will not overstay 
their visas, have children in the United States, and then apply for 
welfare.
    Response: All visa applicants undergo a thorough screening and 
vetting process, and must establish to the satisfaction of the consular 
officer that they are eligible to receive a visa in accordance with 
U.S. law. Just as the Department will continue to faithfully administer 
the public charge ground of inadmissibility, it will also continue to 
administer the other wide-ranging grounds of inadmissibility in section 
212(a) of the INA, 8 U.S.C. 1182(a), that apply to nonimmigrant and 
immigrant visa applicants. However, whether an applicant is likely to 
overstay their visa within the United States or have children is 
outside the scope of a review of an applicant's admissibility on public 
charge grounds.
    Comment: One commenter expressed support for the 2019 IFR because, 
in the commenter's view, it would reduce levels of unauthorized 
presence of noncitizens in the United States. The commenter expressed 
their belief that many immigrants in the United States ``refuse to 
assimilate.''
    Response: Levels of unauthorized presence and ``assimilation'' are 
outside the scope of this rule. Consular officers apply the public 
charge ground of visa ineligibility with respect to visa applicants, 
and specifically those who are likely to become a public charge. This 
rule and policy have no direct bearing on whether noncitizens remain in 
lawful status in the United States.
    Comment: One commenter expressed support for the 2019 IFR, stating 
that according to some statistics, immigrants to the United States are 
more highly educated and seek public benefits less often than citizens 
born in the United States. For that reason, the commenter stated that 
finalizing the 2019 IFR would not harm immigrant communities.
    Response: The Department's policy goal of consistency with DHS 
standards

[[Page 60578]]

in applying the public charge ground of inadmissibility weighs against 
finalizing on a permanent basis amendments to regulations that were 
implemented as a result of the 2019 IFR.
3. Comments in Opposition to 2019 IFR
(a) Oppose 2019 DHS Final Rule
    Comment: 105 commenters expressed opposition to the Department's 
2019 IFR citing their opposition to the 2019 DHS Final Rule. The stated 
reasons for opposing the 2019 DHS Final Rule were varied and included 
many of the other reasons listed in Table 3 above.
    Response: The Department acknowledges the opposition expressed 
towards the 2019 DHS Final Rule. The Department issued the 2019 IFR in 
part to avoid situations when a consular officer would evaluate an 
applicant's circumstances and conclude that the applicant is not likely 
to become a public charge, only for DHS to reach a different conclusion 
under the 2019 DHS Final Rule when the applicant sought admission to 
the United States. In light of DHS's removal of the regulatory text 
promulgated in the 2019 DHS Final Rule, as well as DHS's subsequent 
issuance of the 2022 DHS Final Rule in which DHS explained its decision 
to not again pursue the policies contained in the 2019 DHS Final 
Rule,\24\ the Department's policy interest in ensuring that noncitizen 
travelers to the United States in similarly situated circumstances are 
subject to fair and consistent adjudications under U.S. law when 
applying for a visa and when seeking admission to the United States on 
that visa is not advanced by finalizing the regulatory amendments made 
by the 2019 IFR. Rather, reverting to the Prior Rule will better ensure 
that the Department maintains consistency with the 2022 DHS Final Rule 
because the Prior Rule aligns with the standards contemplated by the 
1999 Interim Field Guidance, which influenced the policy reflected in 
the 2022 DHS Final Rule. Additionally, following reversion to the Prior 
Rule, consular officers will apply the FAM guidance currently in place, 
which generally is aligned with the current DHS standards, and avoids 
treating visa applicants differently from similarly situated 
applications for admission or adjustment of status under the 2022 DHS 
Final Rule.
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    \24\ See, e.g., 87 FR 55472, 55504 (Sept. 9, 2022).
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(b) 2019 IFR Is Unlawful
    Comment: Many commenters suggested that the 2019 IFR should be 
rescinded because it was contrary to the statute and was unlawful. Many 
commenters had submitted their comments stating that the 2019 IFR was 
unlawful before it was preliminarily enjoined by a federal district 
court, but after the 2019 DHS Final Rule had been found unlawful and 
preliminarily enjoined or vacated by federal courts. Some commenters in 
2019 noted that federal district courts had issued injunctions against 
the 2019 DHS Final Rule. Some commenters in response to the Public 
Comment Reopening noted that on March 9, 2021, a federal district court 
order vacating the 2019 DHS Final Rule went into effect.
    Response: The judicial decision regarding the 2019 IFR that 
enjoined its application, and the judicial decisions enjoining or 
vacating the 2019 DHS Final Rule were considered in the Department's 
decision to reopen the public comment period on the 2019 IFR.\25\ In 
the 2019 IFR, the Department noted that, as a policy matter, 
coordination of the Department's and DHS's implementation of the public 
charge inadmissibility ground is critical to the Department's interest 
in preventing inconsistent adjudication standards and different 
outcomes between determinations of visa eligibility and determinations 
of admissibility at or between a port of entry or in an application for 
adjustment of status.\26\ Given DHS's adoption of the 2022 DHS Final 
Rule, the Department's interest in coordinating adjudication standards 
no longer favors retention of the regulatory amendments made by the 
2019 IFR and instead favors a return to the Prior Rule.
---------------------------------------------------------------------------

    \25\ See 86 FR 64070.
    \26\ See 84 FR 54996.
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(c) 2019 IFR Is Harmful to Immigrant Families
    Comment: Some commenters expressed opposition to the overall public 
charge policy reflected in the 2019 IFR because of what they alleged to 
be its detrimental public health effect on immigrant families.
    Response: The Department understands these commenters' concerns 
about the relationship between public charge inadmissibility 
determinations under the standards set forth in the 2019 DHS Final Rule 
and the 2019 IFR and the willingness of immigrant families, including 
U.S. citizen children in immigrant families, to receive public benefits 
for which they were eligible. Following the reversion of regulations to 
those in place prior to the 2019 IFR, the public charge grounds of visa 
ineligibility have been and will be applied in a way that should 
ameliorate the concern of these commenters. This final rule will be 
accompanied by public outreach by the Department to ensure that 
immigrant communities understand this rule, including how it differs 
from the 2019 IFR.
(d) 2019 DHS Final Rule and 2019 IFR Were Enjoined
    Comment: A large number of commenters argued that the 2019 IFR 
should be rescinded because the 2019 DHS Final Rule, which was 
consistent in substance with the 2019 IFR, was vacated by a federal 
district court, and preliminarily enjoined by that court and multiple 
other federal district courts. In response to the Public Charge 
Reopening, several commenters also noted that the 2019 IFR itself was 
preliminarily enjoined by a federal district court.
    Response: As stated above, the judicial orders enjoining or 
vacating the 2019 DHS Final Rule were considered in the Department's 
decision to reopen the public comment period on the 2019 IFR.\27\ For 
the reasons stated above, the Department is not finalizing that 
regulatory text, and is instead reverting to the Prior Rule and 
continuing to apply current FAM guidance,\28\ while considering new 
rulemaking in light of the 2022 DHS Final Rule.
---------------------------------------------------------------------------

    \27\ See 86 FR 64070.
    \28\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited June 14, 
2023).
---------------------------------------------------------------------------

(e) 2019 IFR Is Discriminatory or Racially Biased
    Comment: 41 comments stated that the 2019 IFR was either racially 
biased or discriminatory in how it applied the public charge ground of 
inadmissibility. Commenters claimed that the 2019 IFR rendered certain 
visa applicants inadmissible on public charge grounds due to conditions 
in their countries of origin.
    Response: The 2019 IFR explained the Department's reasons for 
adopting the IFR, in particular as a means to ensure consistency with 
the 2019 DHS Final Rule. As noted, the Department will not finalize the 
regulatory amendments made by the 2019 IFR for the reasons stated 
previously and anticipates that it will undertake further rulemaking in 
light of the 2022 DHS Final Rule. In the development of any future 
rulemaking regarding the public charge ground of inadmissibility, the 
Department will continue to be faithful to the relevant statute and 
congressional directions, including developing a rule that can be 
applied fairly and consistently to applicants worldwide in a manner 
consistent with the laws and values of the United States.

[[Page 60579]]

(f) Opposition to Circumstantial Eligibility Factors in 2019 IFR
    Comment: 39 commenters expressed opposition to the 2019 IFR due to 
what were described as circumstantial eligibility factors to be 
considered in the totality of the circumstances analysis. The 2019 IFR 
listed a number of factors that an adjudicator would consider in the 
totality of the circumstances when determining whether a visa applicant 
is inadmissible on public charge grounds and listed a number of 
different benefits the receipt of which over a certain period of time 
could lead to a finding of inadmissibility. Some commenters argued that 
these factors were designed to increase the percentage of applicants 
who would be found inadmissible. Others argued that the factors were so 
complicated that public benefit administrators had difficulty advising 
potential recipients on a course of action they could take that would 
be consistent with the public charge policy set forth in the 2019 IFR.
    Response: The Department's consular officers will continue to apply 
a totality of the circumstances framework for the analysis of the 
public charge ground of inadmissibility consistent with the statute, 
the Prior Rule, and guidance published in the FAM. Under the FAM 
guidance, in making public charge inadmissibility determinations, 
consular officers will look at ``many factors . . . including age, 
health, family status, assets, resources, financial status, education, 
and skills. No single factor, other than the lack of a qualifying 
affidavit of support, in accordance with INA 213A, if required, will 
determine whether an individual is a public charge.'' \29\ Under this 
FAM guidance, these factors make up the ``totality of the 
circumstances'' framework that was in place prior to the publication of 
the 2019 IFR. This framework aligns more closely with the current DHS 
standards than the 2019 IFR.\30\ The FAM guidance clearly notes for 
adjudicators and the public that the application of the public charge 
ground of inadmissibility differs significantly from the heavily 
weighted positive and negative factors set forth in the 2019 IFR. The 
FAM guidance is also consistent with the Prior Rule, which along with 
the statute will govern adjudications.
---------------------------------------------------------------------------

    \29\ See 9 FAM 302.8-2(B)(1)--Definition of Public Charge 
https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited June 
14, 2023).
    \30\ 9 FAM 302.8-2(B)(2)--Public Charge--Applying INA 212(a)(4) 
to Immigrants, https://fam.state.gov/FAM/09FAM/09FAM030208.html 
(last visited June 14, 2023).
---------------------------------------------------------------------------

(g) 2019 IFR Is Economically Burdensome on Families
    Comment: 39 commenters stated that the overall public charge policy 
reflected in the 2019 IFR imposed economic burdens on immigrant 
families and other vulnerable populations within the United States, 
increasing healthcare costs on an aggregate basis and increasing food 
insecurity.
    Response: Neither the 2019 IFR nor this final rule address 
eligibility standards for the receipt of public benefits. However, the 
Department acknowledges the data provided by public commenters showing 
a measurable drop in receipt of public benefits by individuals who were 
eligible to receive such benefits during the time period after the 
publication of the 2019 DHS Final Rule and the 2019 IFR.\31\ Following 
the effective date of this Final Rule, the public charge 
inadmissibility ground will be applied as interpreted by the Prior Rule 
and FAM guidance, which generally are aligned more closely with the 
current DHS standards than the 2019 IFR. Reverting to the Prior Rule 
will reduce any unintended economic burdens among immigrant populations 
not subject to the public charge ground of inadmissibility, while not 
imposing undue burdens on the public.
---------------------------------------------------------------------------

    \31\ New American Economy, The New ``Public Charge Rule and its 
Negative Impact on the U.S. Economy, Feb. 2, 2021, https://research.newamericaneconomy.org/report/economic-impact-of-public-charge-rule/.
---------------------------------------------------------------------------

(h) Methods of Calculation in 2019 IFR Are Unfairly Derived
    Comment: Distinct from the opposition to the ``totality of the 
circumstances'' framework set forth in the 2019 IFR, a number of 
commenters argued that its methods of calculation of factors in public 
charge inadmissibility determinations, both positively and negatively 
weighted, with certain factors being heavily weighted in either 
direction, were themselves unfairly derived and applied. Specifically, 
commenters argued that the way in which factors were heavily weighted, 
either positively or negatively, would result in inconsistent 
adjudicatory results in applying the public charge grounds of 
inadmissibility.
    Response: Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
consular officers are required to consider specific factors, at a 
minimum, in determining whether an applicant for a nonimmigrant or 
immigrant visa is inadmissible because they are likely at any time to 
become a public charge. These factors are the applicant's age; health; 
family status; assets, resources, and financial status; and education 
and skills. Furthermore, a consular officer may also consider an 
Affidavit of Support Under Section 213A of the INA submitted on the 
noncitizen's behalf when such is required.\32\ The 2019 IFR sought to 
ensure the Department was consistent with the policy set forth in the 
2019 DHS Final Rule in how the Department considered such factors when 
applying the public charge ground. DHS promulgated a new rule in 2022 
that departs from the 2019 DHS Final Rule and the 2019 IFR's approach 
to consideration of such factors. Accordingly, as explained, the 
Department will not finalize the regulatory amendments made by the 2019 
IFR, including its approach to consideration of such factors, because 
doing so would create rather than avoid inconsistency with DHS. The 
Department is also inclined to agree with DHS's analysis regarding the 
issues posed by the weighing of factors in the 2019 DHS Final Rule. The 
Department anticipates that it will engage in further rulemaking in 
light of DHS's 2022 rule.
---------------------------------------------------------------------------

    \32\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------

    As the Department is not finalizing the regulatory amendments made 
by the 2019 IFR, the inadmissibility of applicants for nonimmigrant and 
immigrant visas subject to the public charge ground shall be reviewed 
on the basis of the totality of their circumstances, consistent with 
Department regulations and guidance in place prior to the promulgation 
of the 2019 IFR.
(i) Breadth of Definition of ``Public Charge'' in 2019 IFR
    Comment: 31 commenters opposed the definition of ``public charge'' 
set forth in the 2019 IFR. Commenters stated that the definition was 
too broad; asserted that it was inconsistent with congressional intent, 
historical practice, judicial decisions, and administrative guidance; 
and raised other objections to the definition listed therein.
    Response: While the term ``public charge'' is not defined in the 
text of the INA and the statute vests the Department with discretion in 
its administration, the Department acknowledges that the definition set 
forth in the 2019 IFR and the 2019 DHS Final Rule differed 
significantly from the definition applied for decades previously, most 
notably in the 1999 Interim Field Guidance and related FAM guidance 
issued by the Department. The 2019 IFR had

[[Page 60580]]

implemented this definition out of a desire to more closely align with 
the standards then applied by DHS in determining inadmissibility on 
public charge grounds. In 2022, DHS published a new Final Rule, 
implementing different standards. In the 2022 DHS Final Rule, DHS 
discussed in depth the definition that it used in the 2019 DHS Final 
Rule, and how it will not be applied in implementing the 2022 DHS Final 
Rule. As such, the 2019 IFR no longer meets the policy aim of 
consistency with DHS standards. The Department will instead restore the 
Prior Rule, and after the instant rule is finalized, anticipates that 
it will initiate new rulemaking in light of the 2022 DHS Final Rule.
(j) Private Health Insurance Concerns
    Comment: Some commenters, particularly those focused on healthcare, 
asserted that the overall public charge policy reflected in the 2019 
IFR had an adverse effect on the private health insurance industry. In 
particular, commenters stated that the increased numbers of immigrants 
not accepting public health benefits to which they would normally be 
eligible caused overall healthcare costs to increase, leading to an 
aggregate increase in private health insurance premiums for the public.
    Response: The Department appreciates these commenters' concerns 
about the relationship between public charge inadmissibility 
determinations and private health insurance. We acknowledge evidence 
provided by many commenters suggesting that perceptions about the 
overall public charge policy reflected in the 2019 IFR had unintended 
effects on the willingness of individuals outside the scope of the IFR, 
such as U.S. citizens with noncitizen family members, to enroll in 
health insurance programs for which they are eligible.\33\ The 
reversion to the Prior Rule will provide applicants with a clearer 
understanding of the application of the public charge grounds of 
inadmissibility, which should mitigate unintended consequences such as 
disenrollment in health insurance programs by U.S. citizens with non-
citizen family members.
---------------------------------------------------------------------------

    \33\ Department of Health and Human Services, ``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/immigrant-health-equity-brief.pdf.
---------------------------------------------------------------------------

(k) Inconsistent With Executive Order 14012
    Comment: Three commenters suggested that the 2019 IFR should be 
rescinded because it contradicts E.O. 14012,\34\ which called on 
government departments and agencies to review public charge policies 
and other current immigration policies, in order to consider their 
effect on the integrity of the national immigration system. E.O. 14012 
also called upon government departments to consider better methods of 
communicating its public charge policies and proposed changes, if any, 
with the public.
---------------------------------------------------------------------------

    \34\ Executive Order 14012, 86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------

    Response: Through the instant rulemaking, the Department is 
declining to make permanent the regulatory amendments made by the 2019 
IFR. The Department anticipates that it will engage in rulemaking in 
light of the 2022 DHS Final Rule, pursuant to the Executive Branch's 
policy as articulated in section 1 of E.O. 14012. Until a subsequent 
rule is developed and published, the Department will continue to 
instruct its consular officers to apply the public charge ground of 
inadmissibility consistent with the statute, Prior Rule, and guidance 
contained in the FAM.\35\
---------------------------------------------------------------------------

    \35\ See 9 FAM 302.8--PUBLIC CHARGE--INA 212(A)(4), https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited June 14, 
2023).
---------------------------------------------------------------------------

(l) Excessive Burden on State, Local, and Territorial Governments
    Comment: Some localities and states submitted comments, arguing 
that the overall public charge policy reflected in the 2019 IFR 
constituted a burden on state, local and territorial governments' 
ability to administer their own public health services and other 
benefits.
    Response: The Department acknowledges the uncertainty many state, 
local, Tribal, and territorial governments experienced due to the 
administrative changes caused by the overall public charge policy 
reflected in the 2019 IFR. According to a joint public comment by 
attorneys general from twenty states and the District of Columbia, 
immigrant parents of school aged children, whether citizens, LPRs, or 
noncitizens, were hesitant to participate in distance learning, accept 
loaned technology, or participate in food distribution programs such as 
the National School Lunch Program, School Breakfast Program, and the 
Summer Food Service Meal Program provided by state and local 
governments due to confusion regarding the overall public charge 
policy. Other public commenters have expressed concern that the 2019 
IFR dissuaded individuals in several communities, such as U.S. citizen 
family members of noncitizens overseas applying for visas, from 
applying for, collecting or retaining public benefits for which they 
would have been eligible. And some commenters representing local and 
state governments stated that they found a decline in enrollment in 
public benefit programs relating to the overall change in public charge 
policy, which resulted in unexpected changes to program usage. 
Following the reversion of regulations to those in place prior to the 
2019 IFR, the public charge ground of visa ineligibility has been and 
will be applied in a way that should ameliorate the concern of these 
commenters. This final rule will be accompanied by public outreach by 
the Department and other stakeholders to ensure that immigrant 
communities understand this rule, including how it differs from the 
2019 IFR.

G. Contents of This Final Rule

    In continuing to apply the interpretation of the public charge 
ground of inadmissibility that existed prior to the 2019 IFR, this 
final rule removes the amendments to the regulation made by the 2019 
IFR and restores the regulatory text of the Prior Rule. The Department 
finds, following its review of the public comments and the changes in 
circumstances following publication of the 2019 IFR, that the 
Department's policy of ensuring consistency with DHS no longer supports 
the 2019 IFR and that the Department should conduct further notice-and-
comment rulemaking in light of the 2022 DHS Final Rule.
    The Public Comment Reopening solicited comments on (1) whether the 
2019 IFR should be rescinded or revised, and (2) what final rule should 
be adopted, if any. In reviewing the public comments submitted in 
response to it, along with public comments provided in response to the 
2019 IFR, together with E.O. 14012 and the standards set forth in the 
2022 DHS Final Rule, the Department has concluded that reverting to the 
Prior Rule is the most appropriate path forward.
    The Department is therefore not finalizing the regulatory 
amendments made by the 2019 IFR and is instead reverting to the Prior 
Rule. This does not represent any change from the policies the 
Department has applied since 2020, when the preliminary injunction of 
the 2019 IFR took effect. This final rule restores the Prior Rule, with 
the exception of a technical change

[[Page 60581]]

made to remove an outdated reference to a particular portion of the 
Schedule of Fees for Consular Services.\36\
---------------------------------------------------------------------------

    \36\ The Department also notes that the 2019 IFR found that the 
description of a procedure relating to the posting of a bond or 
undertaking was obsolete. See 84 FR 54996, 55010. While some of the 
specific steps to posting a bond, as described in 22 CFR 40.41(d), 
have changed since the original publication of the Prior Rule, the 
posting of a bond by a visa applicant is still authorized by 
sections 213 and 221(g) of the INA, 8 U.S.C. 1183, 1201. Revisions 
to this rule to update the bond procedure and other provisions would 
be considered in the development of any future rule governing the 
public charge ground of inadmissibility but are not addressed by 
this final rule.
---------------------------------------------------------------------------

    The interpretation of the public charge ground of inadmissibility 
in the Prior Rule more closely aligns with the standards articulated in 
the 2022 DHS Final Rule. There is a significant policy interest in 
ensuring that similarly situated noncitizen travelers to the United 
States are subject to fair and consistent adjudications under U.S. law 
when applying for a visa and when seeking admission to the United 
States on that visa. While the Prior Rule differs in some respects from 
the 2022 DHS Final Rule (for example, while the 2022 DHS Final Rule 
amends an existing information collection, the Department is not 
implementing any changes to its information collections in reverting to 
the Prior Rule), the change will greatly decrease the potential for 
unequal treatment and undue barriers for noncitizens applying for 
visas.
    Following publication of this final rule, the Department intends to 
commence new rulemaking, which will have the goal of publishing and 
implementing a more comprehensive public charge regulation. For the 
reasons discussed in this rule, the Department has removed the 
regulations promulgated under the 2019 IFR and reverted to the prior 
text of 22 CFR 40.41.

II. Regulatory Findings

A. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (``UMRA''), 
generally requires agencies to prepare a statement before proposing any 
rule that may result in an annual expenditure of $100 million or more 
(adjusted for inflation) by State, local, territorial, or Tribal 
governments, or by the private sector. This rule will generally 
continue consular practices that had been in place prior to 2019, and 
that have been applied since the 2019 IFR was preliminarily enjoined by 
a District Court in 2020. This rule does not require the Department to 
prepare a statement because it is not anticipated that it will result 
in an annual expenditure of $100 million or more (adjusted for 
inflation) by State, local, territorial, or Tribal governments, or by 
the private sector.\37\ Additionally, this rule does not contain any 
Federal mandate (as defined in UMRA) because it does not impose any 
enforceable duty upon any level of government or private sector entity.
---------------------------------------------------------------------------

    \37\ 2 U.S.C. 1532(a).
---------------------------------------------------------------------------

B. Executive Order 12866--Regulatory Planning and Review

    The Department has reviewed this rule to ensure its consistency 
with the regulatory philosophy and principles set forth in Executive 
Order 12866. The Office of Management and Budget (OMB) has determined 
that this is a significant regulatory action under Executive Order 
12866. As such, OMB has reviewed this regulation accordingly.
    In comparison to the 2019 IFR, which was previously published and 
put into effect, this rule may result in new costs, benefits, and 
transfers. The Department does not believe there are any quantifiable 
new direct costs for this final rule, as the Department is not 
proposing to add additional information collection burdens on visa 
applicants. As such, visa applicants will see no increase in the time 
it takes to complete either the immigrant visa application or the 
nonimmigrant visa application or associated opportunity costs.
    The Department believes that this final rule may have indirect 
effects on State, local, territorial, and/or Tribal governments, 
primarily in the form of increased transfer payments from federal, 
state, territorial and Tribal governments to individuals. According to 
OMB Circular A-4, transfer payments are payments of money from one 
group to another for which no goods or services are exchanged, and do 
not affect the total resources available to society.\38\ Changes in 
transfer payments are considered neither costs nor benefits of a rule. 
While acknowledging the potential chilling effects caused by the 2019 
IFR, the Department emphasizes that neither the public charge statute 
nor this final rule directly regulates eligibility for public benefits 
for any population. While the removal of the 2019 IFR from the 
regulations may result in increased transfer payments, the Department 
is unable to concretely quantify these effects. This final rule is 
being published after DHS published the 2022 DHS Final Rule, which may 
have a more significant impact on the willingness of noncitizens to 
accept transfer payments than the removal of the 2019 IFR.
---------------------------------------------------------------------------

    \38\ See OMB, ``Circular A-4'' (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    Further, the 2019 IFR was only in effect between October 15, 2019, 
when it was published in the Federal Register,\39\ and July 29, 2020, 
when the United States District Court for the Southern District of New 
York issued a preliminary injunction enjoining the Department from its 
application.\40\ In addition, on March 20, 2020, in response to the 
worldwide COVID-19 pandemic the Department temporarily suspended 
routine visa services at all U.S. Embassies and Consulates.\41\ A 
phased resumption of services began on July 15, 2020, just two weeks 
before the preliminary injunction was issued.\42\
---------------------------------------------------------------------------

    \39\ 84 FR 54996 (Oct. 11, 2019).
    \40\ See Make the Road N.Y v. Pompeo, 475 F.Supp. 3d 232 
(S.D.N.Y. 2020).
    \41\ Department of State, Suspension of Routine Visa Services 
(Mar. 20, 2020), https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
    \42\ Department of State, Phased Resumption of Visa Services, 
(July 15, 2020), https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html.
---------------------------------------------------------------------------

    Consistent with E.O. 12866, the Department considered the costs and 
benefits of available regulatory alternatives. One alternative that the 
Department considered was finalizing the regulatory amendments made by 
the 2019 IFR. However, as noted above, the Department adopted the 2019 
IFR largely to conform with the 2019 DHS Final Rule, which has been 
supplanted by the 2022 DHS Final Rule. In publishing this final rule, 
the public charge grounds of inadmissibility will be applied using the 
Prior Rule and FAM Guidance, as they were applied prior to 2019. The 
Department believes that, to the extent practicable, standards for the 
enforcement of the public charge ground of inadmissibility should be 
consistent in order to ensure consistent application among similarly 
situated noncitizens. As such, the Department does not believe that 
finalizing the regulatory amendments made by the 2019 IFR would be the 
best course of action.

C. Executive Orders 13563 and 14094--Improving and Modernizing 
Regulation and Regulatory Review

    Along with Executive Order 12866, Executive Order 13563 directs 
agencies to assess costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributed impacts, 
and equity).

[[Page 60582]]

The Department has reviewed the final rule under Executive Order 13563 
and has determined that this rulemaking is consistent with the 
principles therein.
    Additionally, the Department has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 14094 and confirms this rulemaking is consistent with 
the principles therein.

D. Executive Orders 12372 and 13132--Federalism

    This final rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Nor will the final rule have federalism 
implications warranting the application of Executive Orders 12372 and 
13132.

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

    The Department has determined that this rulemaking will not have 
Tribal implications, will not impose substantial direct compliance 
costs on Indian Tribal governments, and will not preempt Tribal law. 
Accordingly, the requirements of Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

F. Executive Order 12988--Civil Justice Reform

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

G. Paperwork Reduction Act

    This final rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501-
3520. The 2019 IFR imposed a new information collection requirement. 
OMB subsequently granted an emergency approval for the use of a new 
form by the Department, DS-5540, Public Charge Questionnaire (``DS-
5540'').\43\ The emergency approval was granted only until August 31, 
2020, and expired after that date. OMB has not approved the information 
collection under the DS-5540 since that time, and on March 26, 2021, 
the Department published a notice stating that visa applicants are not 
required to complete and should not present a DS-5540.\44\
---------------------------------------------------------------------------

    \43\ Notice of OMB Emergency Approval of Information Collection: 
Public Charge Questionnaire, 85 FR 13694 (Mar. 9, 2020).
    \44\ Update on Public Charge, https://travel.state.gov/content/travel/en/News/visas-news/update-on-public-charge.html (Mar. 26, 
2021).
---------------------------------------------------------------------------

H. Regulatory Flexibility Act/Executive Order 13272: Small Businesses

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires 
agencies to perform an analysis of the potential impact of regulations 
on small businesses, small governmental jurisdictions, and small 
organizations during the development of their rules. ``Small entities'' 
comprises small business, not-for-profit organizations that are 
independently owned and operated and not dominant within their fields, 
or governmental jurisdictions with populations under 50,000. This final 
rule would not regulate ``small entities'' as that term is defined in 5 
U.S.C. 601(6) and as such does not have a significant economic impact 
on a substantial number of small entities. This final rule only applies 
to individual visa applicants, which are not defined as a ``small 
entity'' by the RFA.

I. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this final rule is not a ``major rule'' as defined by Subtitle E 
of the Small Business Regulatory Enforcement Fairness Act of 1996, also 
known as the Congressional Review Act, 5 U.S.C. 804(2). This final rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and import markets. 
The Department will send this final rule to Congress and to the 
Comptroller General pursuant to the Congressional Review Act, 5 U.S.C. 
801.

List of Subjects in 22 CFR Part 40

    Administrative practice and procedure, Aliens, Foreign relations, 
Passports and visas.

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

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

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

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


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


Sec.  40.41  Public charge.

    (a) Basis for determination of ineligibility. Any determination 
that an alien is ineligible under INA 212(a)(4) must be predicated upon 
circumstances indicating that, notwithstanding any affidavit of support 
that may have been filed on the alien's behalf, the alien is likely to 
become a public charge after admission, or, if applicable, that the 
alien has failed to fulfill the affidavit of support requirement of INA 
212(a)(4)(C).
    (b) Affidavit of support. Any alien seeking an immigrant visa under 
INA 201(b)(2), 203(a), or 203(b), based upon a petition filed by a 
relative of the alien (or in the case of a petition filed under INA 
203(b) by an entity in which a relative has a significant ownership 
interest), shall be required to present to the consular officer an 
affidavit of support (AOS) on a form that complies with terms and 
conditions established by the Secretary of Homeland Security. 
Petitioners for applicants at a post designated by the Deputy Assistant 
Secretary for Visa Services for initial review of and assistance with 
such an AOS will be charged a fee for such review and assistance 
pursuant to the Schedule of Fees for Consular Services (22 CFR 22.1).
    (c) Joint sponsors. Submission of one or more additional affidavits 
of support by a joint sponsor/sponsors is required whenever the 
relative sponsor's household income and significant assets, and the 
immigrant's assets, do not meet the Federal poverty line requirements 
of INA 213A.
    (d) Posting of bond. A consular officer may issue a visa to an 
alien who is within the purview of INA 212(a)(4) (subject to the 
affidavit of support requirement and attribution of sponsor's income 
and resources under section 213A), upon receipt of a notice from DHS of 
the giving of a bond or undertaking in accordance with INA 213 and INA 
221(g), and provided further that the officer is satisfied that the 
giving of such bond or undertaking removes the likelihood that the 
alien will become a public charge within the meaning of this section of 
the law and that the alien is otherwise eligible in all respects.
    (e) Prearranged employment. An immigrant visa applicant relying on 
an offer of prearranged employment to establish eligibility under INA 
212(a)(4), other than an offer of employment certified by the 
Department of Labor

[[Page 60583]]

pursuant to INA 212(a)(5)(A), must provide written confirmation of the 
relevant information sworn and subscribed to before a notary public by 
the employer or an authorized employee or agent of the employer. The 
signer's printed name and position or other relationship with the 
employer must accompany the signature.
    (f) Use of Federal poverty line Where INA 213A not applicable. An 
immigrant visa applicant, not subject to the requirements of INA 213A, 
and relying solely on personal income to establish eligibility under 
INA 212(a)(4), who does not demonstrate an annual income above the 
Federal poverty line, as defined in INA 213A(h), and who is without 
other adequate financial resources, shall be presumed ineligible under 
INA 212(a)(4).

Hugo Rodriguez,
Principal Deputy Assistant Secretary, Bureau of Consular Affairs, 
Department of State.
[FR Doc. 2023-19047 Filed 9-1-23; 8:45 am]
BILLING CODE 4710-06-P