[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Proposed Rules]
[Pages 28676-28688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13188]



[[Page 28675]]

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Part IV





Department of Justice





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Immigration and Naturalization Service



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8 CFR Parts 212 and 237



Inadmissibility and Deportability on Public Charge Grounds; Field 
Guidance on Deportability and Inadmissibility on Public Charge Grounds; 
Proposed Rule and Notice

  Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / 
Proposed Rules  

[[Page 28676]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212 and 237

[INS No. 1989-99; AG Order No. 2225-99]
RIN 1115-AF45


Inadmissibility and Deportability on Public Charge Grounds

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule proposes to amend the Department of Justice's 
(Department's) regulations to establish clear standards governing a 
determination that an alien is inadmissible or ineligible to adjust 
status, or has become deportable, on public charge grounds. This 
proposed rule is necessary to alleviate growing public confusion over 
the meaning of the currently undefined term ``public charge'' in 
immigration law and its relationship to the receipt of Federal, State, 
or local public benefits. By defining ``public charge,'' the Department 
seeks to reduce the negative public health consequences generated by 
the existing confusion and to provide aliens with better guidance as to 
the types of public benefits that will and will not be considered in 
public charge determinations.

DATES: Written comments must be submitted on or before July 26, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 1989-99 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT: Sophia Cox or Kevin Cummings, 
Immigration and Naturalization Service, Office of Adjudications, 425 I 
Street, NW, Washington, DC 20536; telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

Background and Necessity for Definition of ``Public Charge''

    Recent immigration and welfare reform laws have generated 
considerable public confusion about whether the receipt of Federal, 
State, or local public benefits for which an alien may be eligible 
renders him or her a ``public charge'' under the immigration statutes 
governing admissibility, adjustment of status, and deportation. (See 8 
U.S.C. 1182(a)(4); 8 U.S.C. 1227(a)(5).) (See also Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-
208, Div. C, Title V, 110 Stat. 3009-670 (codified as amended in 
different sections of 8 U.S.C.) (1996); Personal Responsibility and 
Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. 104-193, 
Title IV, 110 Stat. 2260 (codified as amended generally at 8 U.S.C. 
1601, et seq.) (1996).)
    Under section 212(a)(4) of the Immigration and Nationality Act (the 
Act), the determination of whether an individual alien ``is likely at 
any time to become a public charge'' is made by a Department of State 
consular officer at the time the alien's visa application is 
adjudicated overseas, by an Immigration and Naturalization Service 
(Service) officer at the time an alien seeks admission into the United 
States, or by the Service at the time an alien applies for adjustment 
of status if he or she is already in the United States. 8 U.S.C. 
1182(a)(4). The statute further states that the decision shall be ``in 
the opinion of'' the consular officer or the Attorney General, who has 
delegated this authority to the Service. Id.; 8 CFR part 2.1. Under 
section 237(a)(5) of the Act, an alien is also deportable if he or she 
``has become a public charge'' within 5 years after his or her ``date 
of entry'' into the United States for causes not shown to have arisen 
since entry. 8 U.S.C. 1227(a)(5). An immigration judge will make the 
determination if any of these issues arise during removal proceedings 
for an alien.
    On August 22, 1996, the President signed PRWORA, known as the 
welfare reform law. The welfare reform law and its amendments imposed 
new restrictions on the eligibility of aliens, whether present in the 
United States legally or illegally, for many Federal, State, and local 
public benefits. 8 U.S.C. 1601-1646 (as amended). Despite these new 
restrictions, many legal aliens remain eligible for at least some forms 
of public assistance, such as Medicaid, Food Stamps, Supplemental 
Security Income (SSI), Temporary Assistance for Needy Families (TANF), 
the Children's Health Insurance Program (CHIP), and the Special 
Supplemental Nutrition Program for Women, Infants, and Children (WIC), 
among other benefits. Congress also chose not to apply the alien 
eligibility restrictions in the welfare reform law to emergency medical 
assistance; short-term, in-kind, non-cash emergency disaster relief; 
public health assistance related to immunizations and to treatment of 
the symptoms of a communicable disease; certain in-kind services (e.g., 
soup kitchens, etc.) designated by the Attorney General as necessary 
for the protection of life and safety; and assistance under certain 
Department of Housing and Urban Development (HUD) programs. 8 U.S.C. 
1611(b)(1).
    Numerous states and localities also have funded public benefits, 
particularly medical and nutrition benefits, for aliens who are now 
ineligible for certain Federal public benefits. Congress further 
authorized states to enact laws after August 22, 1996, that 
affirmatively provide illegal aliens who would otherwise be ineligible 
for certain State and local benefits under the welfare reform law with 
such benefits. 8 U.S.C. 1621(d). A complete overview of all the public 
benefits and programs that remain available to various categories of 
aliens under the welfare reform law, as amended, is beyond the scope of 
this discussion.
    Although Congress has determined that certain aliens remain 
eligible for some forms of medical, nutrition, and child care services, 
and other public assistance, numerous legal immigrants and other aliens 
are choosing not to apply for these benefits because they fear the 
negative immigration consequences of potentially being deemed a 
``public charge.'' This tension between the immigration and welfare 
laws is exacerbated by the fact that ``public charge'' has never been 
defined in statute or regulation. Without a clear definition of the 
term, aliens have no way of knowing which benefits they may safely 
access without risking deportation or inadmissibility.
    Additionally, the Service has been contacted by many State and 
local officials, Members of Congress, immigrant assistance 
organizations, and health care providers who are unable to give 
reliable guidance to their constituents and clients on this issue. 
According to Federal and State benefit-granting agencies, this growing 
confusion is creating significant, negative public health consequences 
across the country. This situation is becoming particularly acute 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 are not only causing them 
considerable harm, but are also jeopardizing the general public. For 
example, infectious diseases may spread as the numbers of immigrants 
who

[[Page 28677]]

decline immunization services increase. Concern over the public charge 
issue is further preventing aliens from applying for available 
supplemental benefits, such as child care and transportation vouchers, 
that are designed to aid individuals in gaining and maintaining 
employment. In short, the absence of a clear public charge definition 
is undermining the Government's policies of increasing access to health 
care and helping people to become self-sufficient. The Department seeks 
to remedy this problem with this proposed rule.

Overview of the Proposed Rule

    First, the proposed rule provides a definition for the ambiguous 
statutory term ``public charge'' that will be used for purposes of both 
admissibility and adjustment of status under section 212(a)(4) of the 
Act and for deportation under section 237(a)(5) of the Act. Second, the 
proposed rule describes the kinds of public benefits that, if received, 
could result in a finding that a person is a ``public charge.'' The 
proposed rule also provides examples of the types of public benefits 
that will not be considered in public charge determinations. Third, the 
proposed rule adopts long-standing principles developed by the case 
law. As discussed below, the cases have established prerequisites and 
factors to be considered in making public charge determinations. The 
rule makes clear that the mere receipt of public assistance, by itself, 
will not lead to a public charge finding without satisfaction of these 
additional legal requirements.

The Meaning of ``Public Charge'' and Public Benefits That 
Demonstrate Primary Dependence on the Government for Subsistence

    Following extensive consultation with benefit-granting agencies, 
the Department is proposing to define ``public charge'' to mean an 
alien who has become (for deportation purposes) or who is likely to 
become (for admission or adjustment purposes) ``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.'' 
Institutionalization for short periods of rehabilitation does not 
constitute such primary dependence. This interpretation of ``public 
charge'' is reasonable because it is based on the plain meaning of the 
word ``charge,'' the historical context of public dependency when the 
public charge immigration provisions were first enacted more than a 
century ago, and the expertise of the benefit-granting agencies that 
deal with subsistence issues. It is also consistent with factual 
situations presented in the public charge case law.
    When a word is not defined by statute and legislative history does 
not provide clear guidance, courts often construe it in accordance with 
its ordinary or natural meaning as contained in the dictionary. (See, 
e.g., Sutton v. United Air Lines, Inc., 130 F.3d 893, 898 (10th Cir. 
1997), cert. granted, 119 S. Ct. 790 (1999) (citations omitted).) The 
word ``charge'' has many meanings in the dictionary, but the one that 
can be applied unambiguously to a person and best clarifies the phrase 
``become a public charge'' is ``a person or thing committed or 
entrusted to the care, custody, management, or support of another.'' 
Webster's Third New International Dictionary of the English Language 
377 (1986). The dictionary gives the following apt sentence as an 
example of usage: ``[H]e entered the poorhouse, becoming a county 
charge.'' Id. (See also 3 Oxford English Dictionary 36 (2d ed. 1989) 
(definition #13 for ``charge''--``The duty or responsibility of taking 
care of (a person or thing); care, custody, superintendence'').)
    This language indicates that a person becomes a public charge when 
he or she is committed to the care, custody, management, or support of 
the public. The dictionary definition suggests a complete, or nearly 
complete, dependence on the Government rather than the mere receipt of 
some lesser level of financial support. Historically, individuals who 
became dependent on the Government were institutionalized in asylums or 
placed in ``almshouses'' for the poor long before the array of limited-
purpose public benefits now available existed. This primary dependence 
model of public assistance was the backdrop against which the ``public 
charge'' concept in immigration law developed in the late 1800s.
    Although no case has specifically identified the types of public 
benefits that can give rise to a public charge finding, a definition 
based on primary dependence on the Government is consistent with the 
facts found in the deportation and admissibility cases. (See, e.g., 
Matter of C-R-, 7 I. & N. Dec. 124 (BIA 1956) (deportation based on 
public mental hospital institutionalization); Matter of Harutunian, 14 
I. & N. Dec. 583 (R.C., Int. Dec. 1974) (receipt of old age assistance 
for principal financial support was an important factor in denying 
admission).)
    The Service has also sought the advice and relied on the expertise 
of various Federal agencies that administer a wide variety of public 
benefits. The Service consulted primarily with the Department of Health 
and Human Services (HHS), the Social Security Administration (SSA), and 
the Department of Agriculture (USDA). The HHS, which administers TANF, 
Medicaid, CHIP, and many other benefits, has advised that the best 
evidence of whether an individual is relying primarily on the 
Government for subsistence is either the receipt of public cash 
benefits for income maintenance purposes or institutionalization for 
long-term care at Government expense. (See letter to INS Commissioner 
Doris Meissner from HHS Deputy Secretary Kevin Thurm, dated March 25, 
1999) (hereinafter ``HHS Letter'' and appearing in an appendix to this 
document.) The USDA, which administers Food Stamps, WIC, and other 
nutrition assistance programs, and SSA, which administers SSI and other 
programs, and other benefit-granting agencies have concurred with the 
HHS advice to the Service that receipt of cash assistance for income 
maintenance is the best evidence of primary dependence on the 
Government. (See letter to INS Commissioner Doris Meissner from Shirley 
R. Watkins, USDA Under Secretary for Food, Nutrition and Consumer 
Services, dated April 15, 1999) (hereinafter ``USDA Letter'' and 
appearing in an appendix to this document); letter to Robert L. Bach, 
INS Executive Associate Commissioner for Policy and Planning from Susan 
M. Daniels, SSA Deputy Commissioner for Disability and Income Security 
Programs, dated May 14, 1999) (hereinafter ``SSA Letter'' and appearing 
in an appendix to this document.)
    Cash assistance for income maintenance includes (1) SSI, (2) cash 
TANF (other than certain supplemental cash benefits not defined as 
``assistance'' under TANF rules, as provided in Secs. 212.103 and 
237.13 of this proposed rule), and (3) State or local cash benefit 
programs for income maintenance (often called ``General Assistance'' 
programs, but which may exist under other names). Acceptance of these 
forms of public cash assistance is one factor that could be considered 
in determining whether a person is, or is likely to be, a public 
charge, provided the additional requirements for deportation or 
inadmissibility discussed later in this Supplementary Section and in 
the regulation are also met.
    According to HHS and other benefit-granting agencies consulted by 
the Service, non-cash benefits generally provide supplementary support 
in the form of vouchers or direct services to

[[Page 28678]]

support nutrition, health, and living condition needs. (See HHS 
Letter.) These benefits are often provided to low-income working 
families to sustain and improve their ability to remain self-
sufficient. A few examples of these non-cash benefits that do not 
directly provide subsistence are Medicaid, Food Stamps, CHIP, and their 
related State analogues, WIC, housing benefits, transportation 
vouchers, and certain kinds of special-purpose non-cash benefits 
provided under the TANF program. These forms of benefits, and others 
discussed below and in the proposed regulation, will not be considered 
for public charge purposes. The HHS further stated that ``* * * it is 
extremely unlikely that an individual or family could subsist on a 
combination of non-cash support benefits or services alone. * * * HHS 
is unable to conceive of a situation where an individual, other than 
someone who permanently resides in a long-term care institution, could 
support himself or his family solely on non-cash benefits so as to be 
primarily dependent on the [G]overnment.'' (See HHS Letter.)
    The one exception identified by HHS to the principle that non-cash 
benefits do not demonstrate primary dependence is the instance where 
Medicaid or related programs pay for the costs of a person's 
institutionalization for long-term care (other than imprisonment for 
conviction of a crime). Such institutionalization costs, therefore, may 
be considered in public charge determinations. However, the proposed 
rule makes clear that a short period of institutionalization necessary 
for rehabilitation purposes does not demonstrate that an individual is, 
or is likely to become, primarily dependent on the Government for 
public charge purposes.
    This distinction between cash benefits that can lead to primary 
dependence on the Government and non-cash benefits that do not create 
such dependence is already applied by the State Department with regard 
to Food Stamps, a non-cash benefit program. The Foreign Affairs Manual 
(FAM) for consular officers excludes Food Stamps from public charge 
admissibility consideration because it is an essentially supplementary 
benefit that does not make recipients dependent on the Government for 
subsistence. (See 9 FAM section 40.41, N.9.1.) The proposed definition 
of ``public charge'' is consistent with this existing State Department 
policy and that agency's recognition that certain supplemental forms of 
public assistance should not be considered in a public charge 
determination.

Receipt of Non-cash Public Benefits That do not Demonstrate Primary 
Dependence on the Government for Subsistence

    It has never been Service policy that the receipt of any public 
service or benefit must be considered for public charge purposes. The 
nature of the program is important. For instance, attending public 
schools, taking advantage of school lunch or other supplemental 
nutrition programs, such as WIC, obtaining immunizations, and receiving 
public emergency medical care typically do not make a person 
inadmissible or deportable. Non-cash benefits, such as these and 
others, are by their nature supplemental and frequently support the 
general welfare. By focusing on cash assistance for income maintenance, 
the Service can identify those individuals who are primarily dependent 
on the Government for subsistence without inhibiting access to non-cash 
benefits that serve important public interests. Certain Federal, State, 
and local benefits are increasingly being made available to families 
with incomes far above the poverty level, reflecting broad public 
policy decisions about improving general health and nutrition, 
promoting education, and assisting working-poor families in the process 
of becoming self-sufficient. For example, many states provide CHIP to 
children in families with resources up to 200 percent of the poverty 
line and sometimes higher. (See HHS Letter at p. 3.) Thus, 
participation in such programs is not evidence of poverty or 
dependence.
    The proposed rule identifies the major forms of cash benefits that 
may be considered for public charge purposes and several examples of 
non-cash benefits that will not be considered. Due to the ever-changing 
character of the Federal, State, and local public benefits still 
available to aliens, it is not possible to name every benefit that will 
or will not be considered for public charge purposes. Aliens and their 
advisors should carefully consider the nature of the specific public 
benefits involved. If they could be construed as cash assistance for 
income maintenance, as distinguished from in-kind services, medical or 
nutrition benefits, vouchers or other forms of non-cash benefits, then 
a Service officer may consider their receipt in making a public charge 
decision, even if the benefit is not specifically addressed by name in 
the proposed rule. Again, receipt of SSI, cash TANF (except 
supplemental cash-TANF excluded in the rule), and State or local cash 
assistance programs for income maintenance (e.g., ``General 
Assistance'') will be considered as part of the public charge analysis. 
Although these benefits are the only examples of ``cash assistance for 
income maintenance'' that the Service and other Federal benefit-
granting agencies have been able to identify, public comment is 
requested on whether there are any other specific forms of public cash 
assistance for income maintenance that should be mentioned. The Service 
will also consider public benefits (including Medicaid) for supporting 
aliens who reside in an institution for long-term care (e.g., a nursing 
home or mental health institution).
    A person's mere receipt of any of these forms of cash assistance 
for income maintenance, or being institutionalized for long-term care, 
does not necessarily make him or her inadmissible, ineligible to adjust 
status, or deportable on public charge grounds. As discussed in detail 
in the next part of this Supplementary Information section, the law 
requires that a variety of other factors and prerequisites must be 
considered as well. These additional requirements have been carefully 
described in both the admissibility and deportation sections of this 
proposed rule at Secs. 212.104, 212.106, 212.108, 212.109, 237.11, 
237.15, 237.16, and 237.18. Every public charge decision will continue 
to be made on a case-by-case basis. In other words, the proposed rule 
does not create any blanket requirements that individuals who receive 
public cash assistance or who are institutionalized for long-term care 
must be removed from the United States or denied admission or 
adjustment.
    Some cash benefits received by aliens from the Government are not 
intended for income maintenance, and thus will not be considered for 
public charge purposes under this rule. Examples of such special-
purpose cash benefits that do not lead to primary dependence on the 
Government include the Low Income Home Energy Assistance Program 
(LIHEAP), 42 U.S.C. 8621, et seq.; the Child Care and Development Block 
Grant Program (CCDBGP), 42 U.S.C. 9858 et seq.; Food Stamp benefits 
issued in cash (see e.g., 7 U.S.C. 2026(b)); certain educational 
assistance programs, and non-recurrent, short-term crisis benefits 
funded in cash by TANF but excluded from the TANF program's definition 
of ``assistance.'' (See 64 FR 17720, 17880 (April 12, 1999) (codified 
at 45 CFR 260.31).) In addition, and consistent with existing Service 
practice, the proposed rule states that cash payments that have been 
earned, such as benefits under Title II of the Social Security Act, 42 
U.S.C. 401 et seq., Government pensions, veterans'

[[Page 28679]]

benefits, among other forms of earned benefits, do not support a public 
charge finding.
    Other non-cash public benefits that will not be considered and that 
are listed in the proposed rule include, but are not limited to: 
Medicaid; CHIP; emergency medical assistance; other health insurance 
and health services for the testing and treatment of symptoms of 
communicable diseases; emergency disaster relief; nutrition programs, 
such as Food Stamps and WIC; housing benefits; energy benefits; job 
training programs; child care; and non-cash benefits funded under the 
TANF program. State and local non-cash benefits of a similar nature 
also will not be considered. It is the underlying nature of the 
program, not the name adopted in a particular State, that will 
determine whether it is relevant for public charge consideration.

Additional Requirements for Public Charge Determinations

    After defining ``public charge,'' the separate admissibility and 
deportation sections of the proposed rule incorporate principles 
established by case law and statute for each of those public charge 
determinations.

Admission and Adjustment of Status

    The provisions that relate to admission and adjustment of status 
incorporate the ``totality of the circumstances'' analysis that 
officers must employ in making a prospective public charge decision. 
(See, e.g, Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974).) Under 
section 212(a)(4)(B) of the Act, officers are required to consider 
specific minimum factors in determining whether the alien's 
circumstances indicate that he or she is likely to become a public 
charge. These factors include the alien's age, health, family status, 
assets, resources, financial status, education, and skills. No single 
factor, other than the lack of an Affidavit of Support as described 
below, will determine whether an alien is likely to become a public 
charge, including past or current receipt of public cash benefits.
    In addition, most aliens intending to immigrate or adjust status in 
family-based and certain employment-based categories after December 19, 
1997, are required to file the new Form I-864, ``Affidavit of Support 
Under Section 213A of the Act,'' signed by their sponsor(s). 8 U.S.C. 
1182(a)(4)(C-D); 8 U.S.C. 1183a; 8 CFR part 213a.2. The new Affidavit 
of Support is legally binding and requires sponsors to maintain the 
sponsored alien at an annual income of not less than 125 percent of the 
Federal poverty line for the relevant family size. 8 U.S.C. 1183a(a); 8 
CFR part 213a.2. If an Affidavit of Support is not filed, the intending 
immigrant will be denied admission or adjustment on public charge 
grounds, unless he or she is exempt from the Affidavit of Support 
requirement under section 212(a)(4)(C-D) of the Act. As one of the 
circumstances considered in determining whether a person is likely to 
become a public charge, officers may also consider any Affidavit of 
Support filed by a sponsor on behalf of an alien under section 213A of 
the Act and are encouraged to do so. (See 8 U.S.C. 1182(a)(4)(B)(ii).) 
Certain categories of aliens seeking to become lawful permanent 
residents are exempt from the Affidavit of Support requirement--
including those who qualify as widows or widowers of citizens or as 
battered spouses, and their children. Id.
    In one significant respect, a public charge determination for 
purposes of inadmissibility differs from the context of deportability. 
As the next section describes in detail, deportation on public charge 
grounds requires the Service to prove that the alien or another 
obligated party has failed to repay a legal demand for the public 
benefits at issue. The proposed rule adopts the case-developed doctrine 
that this failure-to-reimburse prerequisite for deportation does not 
apply to public charge decisions for admissibility or adjustment of 
status. (See Matter of Harutunian, 14 I. & N. Dec. at 589-590.) 
Applicants for admission or adjustment of status, therefore, could be 
found inadmissible or ineligible to adjust status on public charge 
grounds even if there is no duty to reimburse the agency that provides 
the cash assistance. Again, this receipt of public cash benefits will 
result in such a finding only if the totality of the alien's 
circumstances, including the minimum factors in section 212(a)(4)(B) of 
the Act, indicate that he or she is likely to become a public charge.
    The provisions on admissibility and adjustment in the proposed rule 
conclude with a section that lists categories of aliens to whom the 
public charge ground contained in section 212(a)(4) of the Act does not 
apply. These categories include refugees, asylees, Amerasians, and 
certain Nicaraguans, Central Americans, Haitians, and Cuban/Haitian 
entrants. Although these statutory exemptions are codified throughout 
the Act and other laws, the rule collects them in one place for the 
public's ease of reference.

Deportation

    The provisions on deportation in the proposed rule incorporate the 
Attorney General's decision in the leading case, Matter of B-, 3 I. & 
N. Dec. 323 (AG and BIA 1948), that the Service can prove public charge 
deportability only if there has been a failure to comply with a legally 
enforceable duty to reimburse the assistance agency for the costs of 
care. In addition, the benefit agency's demand for repayment of the 
specific public benefit must have been made within the alien's initial 
5-year period after entry, unless it is shown that demand would have 
been futile because there was no one against whom payment could be 
enforced. Matter of
L-, 6 I. & N. Dec. 349 (BIA 1954). Under the proposed definition for 
public charge previously discussed, only the failure to meet an 
agency's demand for repayment of a cash benefit for income maintenance 
or for the costs of institutionalization for long-term care will be 
considered for deportation. If the alien can show that the causes for 
which he or she received one of these types of public cash benefits 
during his or her initial 5 years after entry arose after entry, he or 
she will not be deportable on public charge grounds. (See 8 U.S.C. 
1227(a)(5).) The requirements and procedures concerning the demand for 
the repayment of a public benefit are governed by the specific program 
rules established by law and administered by the benefit granting 
agencies, or by State or local governments, not by the Service. This 
rule does not alter those existing procedures. The Service does not 
make determinations about which public benefits must be repaid. The 
Federal, State, and local benefit-granting agencies are responsible for 
those decisions. The Service may only initiate removal proceedings 
based on the public charge ground after the benefit agency has chosen 
to seek repayment, obtained a final judgment, taken all steps to 
collect on that judgment, and been unsuccessful.
    The proposed rule also provides that the Affidavit of Support is 
relevant to the public charge inquiry for deportation purposes. Under 
the new Affidavit of Support rules, if a sponsored alien obtains 
Federal, State, or local means-tested public benefits, the sponsor is 
obligated to repay those benefits if the benefit-granting agency makes 
a demand for repayment. (See 8 U.S.C. 1183a(b); 8 CFR parts 213a.2, 
213a.4.) Various Federal agencies have designated certain assistance 
programs that they administer to be ``means-tested public benefits.'' 
For example, SSI, TANF, Medicaid, Food Stamps, and

[[Page 28680]]

CHIP have been designated as Federal means-tested public benefits and 
could give rise to a repayment obligation under the Affidavit of 
Support. If states designate means-tested public benefits in the 
future, such benefits also could give rise to such an obligation. 
However, only demands for the repayment of cash benefits for income 
maintenance purposes, such as SSI, cash TANF and State General 
Assistance programs, or the costs of institutionalization for long-term 
care, will be relevant for deportation determinations under the 
proposed definition of ``public charge.''
    The Department has determined that the existing three-part Matter 
of B- test for public charge deportations also applies to demands for 
repayment of means-tested benefits under the new Affidavit of Support. 
The Government entity providing the benefit must have a legal right to 
seek repayment under the Affidavit of Support; the agency must have 
made a demand for repayment; and the obligated party or parties must 
have failed to meet this demand. The rule also requires that, before a 
deportation action may be initiated, the agency seeking repayment must 
have taken all steps necessary to obtain and enforce a final judgment 
requiring the sponsor or other person responsible for the debt to pay. 
Without such a requirement, an alien could be wrongly deported as a 
public charge based on a debt that a court might later determine was 
not legally enforceable. Although the demand for repayment must be made 
within 5 years of the alien's admission, there is no time limit on 
obtaining a final judgment as long as it is obtained prior to the 
public charge proceedings.

Welfare Reform and Other Significant Factors That Limit Potential 
for Aliens to Become ``Public Charges''

    The proposed rule is not expected to alter substantially the number 
of aliens who will be found deportable or inadmissible as public 
charges. Deportations on public charge grounds have always been rare 
due to the strict Matter of B- requirements that agencies first must 
demand repayment, assuming they have a legal right to do so, and the 
obligated party or parties must have failed to pay. This is unlikely to 
change.
    Several recently enacted welfare and immigration reform measures 
have also contributed to reducing the possibility that aliens will be 
found likely to become public charges under section 212(a)(4) of the 
Act. Due to the increased restrictions of the welfare reform law, as 
amended, many aliens are no longer eligible to receive some public 
benefits formerly available to them. For example, one significant new 
restriction prohibits legal, ``qualified aliens'' from receiving 
Federal means-tested public benefits, with some exceptions, for 5 years 
if they arrive after August 22, 1996. 8 U.S.C. 1613. Combined with the 
5-year limitation in section 237(a)(5) of the Act, the welfare reform 
restriction means fewer aliens are likely to become deportable public 
charges. Under new ``deeming'' rules, some aliens who might otherwise 
have been able to obtain certain Federal, State, or local means-tested 
public benefits can no longer do so because their sponsors' resources 
may now count as resources available to the aliens (i.e., the sponsors' 
resources are ``deemed'' available to the alien), which would normally 
raise the alien's income over the benefit eligibility threshold. 8 
U.S.C. 1631, 1632. In addition, the requirement of a legally binding 
Affidavit of Support obligating sponsors to support their immigrating 
family members above the poverty level before they will be granted 
admission or adjustment has significantly raised the bar for people who 
might, in the past, have entered and become public charges. These new 
laws work together to limit the potential for immigrants to become 
dependent on the Government. The proposed rule defining ``public 
charge'' will not change or negatively affect the operation of these 
provisions.

Conclusion

    The Department believes that this rule will provide for better 
overall administration of the public charge provisions of the Act. It 
will also help alleviate the increasing, negative public health and 
nutrition consequences caused by the confusion over the meaning of 
``public charge.'' The rule will provide rules of decision that will 
apply in proceedings before the Executive Office for Immigration Review 
(EOIR), as well as proceedings before the Service. The Department 
anticipates, based on the Service's consultations, that the State 
Department will adopt the same view and will issue guidance to consular 
officers accordingly.
    At a later date, the Department plans to propose additional revised 
sections for part 212 concerning the other grounds of inadmissibility 
under section 212 of the Act. Sections 212.100 through 212.112 of this 
proposed rule are being issued in advance as Subpart G. The Department 
will amend the labeling of this subpart or section numbers, if 
necessary, at the time of final publication of any revised sections to 
this part.

Regulatory Flexibility Act

    The Attorney General has determined, in accordance with 5 U.S.C. 
605(b), that this rule would not have a significant economic impact on 
a substantial number of small entities. The factual basis for this 
determination is that this rule will apply to individual aliens, who 
are not within the definition of small entities established by 5 U.S.C. 
601(6).

Unfunded Mandates Reform Act

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 
658(7)(A)(ii).

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined in 5 U.S.C. 804. This 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 export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under section 3(f)(4) of E. O. 12866, 
Regulatory Planning and Review. Accordingly, this proposed rule has 
been submitted to the Office of Management and Budget for review.

Executive Order 12612

    This rule would 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. Therefore, in accordance with E. O. 12612, it is 
determined that this rule would not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988: Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
subsections 3(a) and 3(b)(2) of E. O. 12988.

[[Page 28681]]

Plain Language in Government Writing

    The President's June 1, 1998, Memorandum published at 63 FR 31885, 
concerning Plain Language in Government Writing, applies to this 
proposed rule.

Paperwork Reduction Act of 1995

    This proposed rule does not specifically impose an information 
collection burden on the public separate from existing provisions of 
the Act or other regulations. However, the Service anticipates revising 
the Form I-485, ``Application to Register Permanent Status or Adjust 
Status,'' as necessary, to make it consistent with the final public 
charge rule. The Department requests public comment on proposed 
revisions to the I-485, or any other immigration forms, that may be 
necessary as a result of this public charge rule.

List of Subjects

8 CFR Part 212

    Administrative practice and procedure, Aliens, Admission, 
Adjustment of status, Public charge determinations.

8 CFR Part 237

    Administrative practice and procedure, Aliens, Deportation, Public 
charge determinations.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations, is proposed to be amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1183, 1183a, 1184, 
1187, 1225, 1226, 1227, 1228, 1252, 8 CFR part 2, 8 CFR part 213A.

    2. Sections 212.1 through 212.15 are designated as Subpart A.
    3. The heading for Subpart A is added to read as follows:

Subpart A--General

    4. Part 212 is amended by adding and reserving Subparts B through 
F.
    5. Subpart G is added to read as follows:

Subpart G--Public Charge Inadmissibility

Sec.
212.100  What issues do Secs. 212.100 through 212.112 address?
212.101  What law governs a determination of whether I am 
inadmissible on public charge grounds?
212.102  What is the meaning of ``public charge'' for admissibility 
and adjustment of status purposes?
212.103  What specific benefits are considered to be ``public cash 
assistance for income maintenance''?
212.104  What factors will make me inadmissible or ineligible to 
adjust status on public charge grounds?
212.105  Are there any forms of public assistance that I can receive 
without becoming inadmissible as a public charge if I should later 
apply for a visa, admission, or adjustment of status?
212.106  If I have received public cash assistance for income 
maintenance, have been institutionalized for long-term care at 
Government expense, or have been deemed a public charge in the past, 
will I be inadmissible or ineligible to adjust status on public 
charge grounds now or in the future?
212.107  Will I be required to pay back any public benefits that I 
have received before an immigration officer or immigration judge 
will find me admissible or eligible to adjust status?
212.108  Are there any special requirements for aliens who are 
seeking to immigrate based on a family relationship or on 
employment?
212.109  Will I be considered likely to become a public charge 
because my spouse, parent, child, or other relative has become, or 
is likely to become, a public charge or has received public cash 
assistance?
212.110  Are there any individuals to whom the public charge ground 
of inadmissibility does not apply?
212.111  Are there any waivers for the public charge ground of 
inadmissibility?
212.112  Is it possible to provide a bond or cash deposit to ensure 
that I will not become a public charge?

Subpart G--Public Charge Inadmissibility


Sec. 212.100  What issues do Secs. 212.100 through 212.112 address?

    (a) Sections 212.100 through 212.112 of this part address the 
public charge grounds of inadmissibility under section 212(a)(4) of the 
Act. It applies to all aliens seeking admission to the United States or 
adjustment of status to lawful permanent residency, except for the 
categories of aliens described in Sec. 212.110 or other categories of 
aliens who may be exempted by law.
    (b) In Secs. 212.101 through 212.112 of this part, the terms ``I,'' 
``me'' and ``my'' in the section headings and ``you'' and ``your'' in 
the text of each section refer to an alien who may be inadmissible or 
ineligible to adjust status on public charge grounds.


Sec. 212.101  What law governs a determination of whether I am 
inadmissible on public charge grounds?

    The public charge grounds of inadmissibility are found under 
section 212(a)(4) of the Act. A Department of State (State Department) 
consular officer makes the public charge determination if you are 
applying for a visa overseas. A Service officer makes the public charge 
determination if you are applying for admission at a port-of-entry to 
the United States or for adjustment of status to that of a lawful 
permanent resident. Under section 212(a)(4) of the Act, you will be 
found inadmissible or ineligible to adjust status if, ``in the opinion 
of'' the consular officer or Service officer making the decision, you 
are considered ``likely at any time to become a public charge.'' If you 
have been placed in removal proceedings where issues of your 
admissibility or eligibility to adjust status arise, an immigration 
judge will decide whether you are likely to become a public charge.


Sec. 212.102  What is the meaning of ``public charge'' for 
admissibility and adjustment of status purposes?

    (a) (1) ``Public charge'' for purposes of admissibility and 
adjustment of status means an alien who is likely to become primarily 
dependent on the Government for subsistence as demonstrated by either:
    (i) The receipt of public cash assistance for income maintenance 
purposes, or
    (ii) Institutionalization for long-term care at Government expense 
(other than imprisonment for conviction of a crime).
    (2) Institutionalization for short periods for rehabilitation 
purposes does not demonstrate primary dependence on the Government.
    (b) For purposes of Secs. 212.100 through 212.112 of this part:
    (1) The term ``government'' refers to any Federal, State or local 
government entity or entities.
    (2) The term ``cash'' includes not only funds you receive in the 
form of cash from a government agency, but also funds received from a 
government agency by check, money order, wire transfer, electronic 
funds transfer, direct deposit, or any other form that can be legally 
converted to currency, provided that the funds are for purposes of 
maintaining your income.
    (c) As described in Secs. 212.103(c) and 212.105 of this part, some 
forms of public assistance will not be considered for public charge 
purposes because they do not result in primary dependence on the 
Government. Immigration officers and immigration judges must also 
consider many other factors, as described in Secs. 212.101-212.112 of 
this part, before making a final public charge determination.

[[Page 28682]]

Sec. 212.103  What specific benefits are considered to be ``public cash 
assistance for income maintenance''?

    (a) Public benefits considered to be ``public cash assistance for 
income maintenance'' include:
    (1) Supplemental Security Income (SSI), 42 U.S.C. 1381, et seq.;
    (2) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601, 
et seq., but not including supplemental cash benefits excluded from the 
term ``assistance'' under TANF program rules (see 45 CFR 260.31) or any 
non-cash benefits and services provided by the TANF program; and
    (3) State and local cash assistance programs for income maintenance 
(often called State ``General Assistance,'' but which may exist under 
other names).
    (b) Due to the constantly changing nature of the numerous Federal, 
State and local benefits for which you may be eligible, it is not 
possible to give a complete listing of such benefits that could be 
considered for public charge purposes. If you are receiving, or 
contemplate receiving, any public cash assistance (as ``cash'' is 
described in Sec. 212.102(b)(2)) for purposes of maintaining your 
income, an immigration officer or immigration judge may consider it as 
a factor in making a decision as to whether you are likely to become 
primarily dependent on the Government.
    (c) Some forms of cash benefits are not intended for income 
maintenance and, therefore, will not be considered for public charge 
purposes under Secs. 212.101 through 212.112. Examples of such cash 
benefits that are supplemental in nature include the Low Income Home 
Energy Assistance Program (LIHEAP), 42 U.S.C. 8621 et seq.; the Child 
Care and Development Block Grant Program (CCDBGP), 42 U.S.C. 9858 et 
seq.; Food Stamp benefits issued in cash (see, e.g., 7 U.S.C. 2026(b)); 
certain educational assistance benefits; and non-recurrent, short-term 
crisis benefits, and other services funded in cash by the TANF program 
that do not fall within the TANF program's definition of 
``assistance,'' as described in paragraph (a)(2) of this section.
    (d) Cash benefits that have been earned continue to be irrelevant 
to the public charge ground of inadmissibility. A few examples of such 
earned benefits that will not be considered include benefits under 
Title II of the Social Security Act, 42 U.S.C. 401 et seq., government 
pension benefits, and veterans' benefits.


Sec. 212.104  What factors will make me inadmissible or ineligible to 
adjust status on public charge grounds?

    (a) Under section 212(a)(4)(B) of the Act, the immigration officer 
or consular official must consider, ``at a minimum,'' your age, health, 
family status, assets, resources, financial status, education, and 
skills in making a decision on whether you are likely to become a 
public charge. The decision-maker may also consider any Affidavit of 
Support filed by your sponsor(s) on your behalf under section 213A of 
the Act and 8 CFR part 213a. The decision-maker will consider the 
``totality of circumstances'' before determining whether you are likely 
to become a public charge. No single factor, other than the lack of a 
sufficient Affidavit of Support as required by section 212(a)(4)(C) and 
(D) of the Act, will control this decision, including past or current 
receipt of public cash benefits, as described in paragraph (b) of this 
section.
    (b) You are inadmissible or ineligible to adjust status on public 
charge grounds if, after consideration of your case in light of all of 
the minimum factors in section 212(a)(4)(B) of the Act, any Affidavit 
of Support (Form I-864) filed on your behalf under 8 CFR part 213a, and 
any other facts that may be relevant, the immigration officer, consular 
officer, or immigration judge determines that it is likely that you 
will become primarily dependent for your subsistence on the Government, 
at any time, as demonstrated by:
    (1) Receipt of public cash assistance for income maintenance, 
including SSI, cash TANF (other than cash TANF benefits excluded in 
Sec. 212.103(a)(2)), or State or local cash benefit programs for income 
maintenance, such as ``General Assistance''; or
    (2) Institutionalization for long-term care (other than 
imprisonment for conviction of a crime) at Government expense. 
Institutionalization for short-term rehabilitation purposes does not 
demonstrate primary dependence on the Government.


Sec. 212.105  Are there any forms of public assistance that I can 
receive without becoming inadmissible as a public charge if I should 
later apply for a visa, admission, or adjustment of status?

    (a) The only benefits that are relevant to the public charge 
decision are public cash assistance for income maintenance and 
institutionalization for long-term care at Government expense. 
Institutionalization for short periods for rehabilitation purposes will 
not be considered. Non-cash public benefits are not considered because 
they are of a supplemental nature and do not demonstrate primary 
dependence on the Government.
    (b) Although it is not possible to list all of the non-cash public 
benefits that will not be considered, you will not risk being found 
inadmissible as an alien likely to become a public charge by receiving 
non-cash benefits under the following programs or benefit categories:
    (1) The Food Stamp program, 7 U.S.C. 2011, et seq.,
    (2) The Medicaid program, 42 U.S.C. 1396, et seq. (other than 
payments under the Medicaid program for long-term institutional care);
    (3) The Children's Health Insurance Program (CHIP), 42 U.S.C. 
1397aa, et seq.;
    (4) Health insurance and health services (other than public 
benefits for costs of institutionalization for long-term care), 
including, but not limited to, emergency medical services, public 
benefits for immunizations and for testing and treatment of symptoms of 
communicable diseases, and use of health clinics;
    (5) Nutrition programs, including, but not limited to, the Special 
Supplemental Nutrition Program for Women, Infants and Children (WIC), 
42 U.S.C. 1786; and programs that operate under the National School 
Lunch Act, 42 U.S.C. 1751 et seq.; the Child Nutrition Act, 42 U.S.C. 
1771 et seq.; and the Emergency Food Assistance Act, 7 U.S.C. 7501 et 
seq.;
    (6) Emergency disaster relief;
    (7) Housing benefits;
    (8) Child care services;
    (9) Energy benefits, such as LIHEAP, 42 U.S.C. 8621 et seq.;
    (10) Foster care and adoption benefits;
    (11) Transportation vouchers or other non-cash transportation 
services;
    (12) Educational benefits, including benefits under the Head Start 
Act and aid for elementary, secondary, or higher education;
    (13) Non-cash benefits or services funded by the TANF program;
    (14) Job training programs;
    (15) State and local supplemental, non-cash benefits that serve 
purposes similar to those of the Federal programs listed in this 
paragraph;
    (16) Any other Federal, State, or local public benefit program, 
under which benefits are provided in-kind, through vouchers, or any 
other medium of exchange other than payment of cash assistance for 
income maintenance to the eligible person.
    (c) Although the non-cash public benefits described in paragraph 
(b) of this section will not be considered for admissibility purposes, 
you may still be inadmissible or ineligible to adjust

[[Page 28683]]

status if, in the opinion of the officer making the decision, you are 
likely to become a public charge following his or her analysis of the 
totality of the circumstances, as described in Sec. 212.104. This 
includes consideration of all the minimum statutory factors described 
in section 212(a)(4)(B) of the Act.


Sec. 212.106  If I have received public cash assistance for income 
maintenance, have been institutionalized for long-term care at 
Government expense, or have been deemed a public charge in the past, 
will I be inadmissible or ineligible to adjust status on public charge 
grounds now or in the future?

    (a) Such past circumstances do not necessarily mean that you will 
be found inadmissible or ineligible to adjust status on public charge 
grounds based on a present application for admission or adjustment. The 
immigration officer, consular officer, or immigration judge who makes 
the decision must consider all of the relevant facts of your case. Past 
receipt of public cash assistance or institutionalization under 
circumstances that made you a public charge would support a finding 
that you are inadmissible only if, in light of all the factors listed 
in Sec. 212.104, it is likely that you will continue to be, or become 
again, a public charge in the future.
    (b) The length of time during which you previously received 
benefits or were institutionalized at Government expense, as well as 
the distance in time from your current application for admission or 
adjustment, are significant to the decision. Public cash benefits 
received in the recent past are more predictive of your likelihood to 
become a public charge in the future than benefits received in the more 
distant past. Similarly, public cash benefits received for longer time 
periods are more predictive than benefits received in the past for 
shorter periods. In addition, small amounts of public cash assistance 
for income maintenance received in the past are weighed less heavily 
than greater amounts under the ``totality of the circumstances'' 
analysis. The negative implication of your past receipt of public cash 
benefits for income maintenance or institutionalization for long-term 
care, however, may be overcome by positive factors in your case 
demonstrating that you are unlikely to become primarily dependent on 
the Government for subsistence.


Sec. 212.107  Will I be required to pay back any public benefits that I 
have received before an immigration officer or immigration judge will 
find me admissible or eligible to adjust status?

    Immigration officers and immigration judges do not have the 
authority to require that you reimburse public benefit-granting 
agencies for assistance that you have received. However, they may 
consider your receipt of public cash assistance for income maintenance 
purposes or your institutionalization for long-term care at Government 
expense as factors in deciding whether you are likely to become a 
public charge in the future, regardless of whether the agency granting 
the benefit has sought reimbursement from you or any other party 
obligated to pay back the benefit on your behalf. If there is a final 
judgment against you for failure to repay the costs of public cash 
benefits or institutionalization that has not been satisfied, 
immigration officers or judges may also consider this failure to repay 
as one of the relevant factors in deciding whether you are likely to 
become a public charge.


Sec. 212.108  Are there any special requirements for aliens who are 
seeking to immigrate based on a family relationship or on employment?

    Under section 212(a)(4)(C) and (D) of the Act, you must file an 
``Affidavit of Support Under Section 213A of the Act'' (Form I-864) 
from your sponsor(s) in accordance with section 213A of the Act and 8 
CFR part 213a if you are seeking to immigrate in certain family-based 
visa categories or as an employment-based immigrant who will work for a 
relative or a relative's firm. If you do not file the Affidavit of 
Support as required, you will be inadmissible or ineligible to adjust 
status on public charge grounds. Certain widows and widowers, battered 
spouses and children of U.S. citizens and lawful permanent residents 
are currently exempt under section 212(a)(4)(C) of the Act from filing 
an Affidavit of Support.


Sec. 212.109  Will I be considered likely to become a public charge 
because my spouse, parent, child, or other relative has become, or is 
likely to become, a public charge or has received public cash 
assistance?

    (a) The fact that one, or all, of your close relatives has become, 
or is likely to become, a public charge will not make you inadmissible 
as a public charge, unless the evidence shows that you, individually, 
are likely to become a public charge.
    (b) Public cash benefits for income maintenance received by your 
relatives will not be attributed to you for admission or adjustment 
purposes, unless they also represent your sole support. If such 
benefits are attributed to you because they are your sole support, they 
must be considered along with all of the other factors related to your 
case, as described in Sec. 212.104, before you may be found 
inadmissible as a public charge.


Sec. 212.110  Are there any individuals to whom the public charge 
ground of inadmissibility does not apply?

    (a) The Act and various other statutes contain exceptions to the 
public charge ground of inadmissibility for the following categories of 
aliens:
    (1) Refugees and asylees at the time of admission and adjustment of 
status to legal permanent residency according to sections 207(c)(3) and 
209(c) of the Act;
    (2) Amerasian immigrants at admission as described in the Foreign 
Operations, Export Financing, and Related Programs Appropriations Act 
of 1988, section 584, contained in section 101(e), Public Law 100-202, 
101 Stat. 1329-183 (1987) (as amended), 8 U.S.C. 1101 note;
    (3) Cuban and Haitian entrants at adjustment as described in the 
Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 
Title II, section 202, 100 Stat. 3359 (1986) (as amended), 8 U.S.C. 
1255a note;
    (4) Nicaraguans and other Central Americans who are adjusting 
status as described in the Nicaraguan Adjustment and Central American 
Relief Act (NACARA), Public Law 105-100, section 202(a), 111 Stat. 2193 
(1997)(as amended), 8 U.S.C. 1255 note;
    (5) Haitians who are adjusting status as described in the Haitian 
Refugee Immigration Fairness Act of 1998, section 902, Title IX, Public 
Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), 8 U.S.C. 1255 note;
    (6) 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.
    (b) Other categories of aliens may also be excepted from the public 
charge provisions in section 212(a)(4) of the Act by subsequent 
legislation. The list of such aliens in paragraph (a) of this section 
may not include every excepted category.
    (c) In addition, aliens who have been previously admitted for 
lawful permanent residence (``LPRs'') and who re-enter the United 
States are not applicants for admission and, therefore, are not subject 
to the grounds of inadmissibility, unless they are covered by one of 
the six categories described in

[[Page 28684]]

section 101(a)(13)(C) of the Act, including being absent from the 
United States for over 180 days.


Sec. 212.111  Are there any waivers for the public charge ground of 
inadmissibility?

    There are no waivers available for the public charge grounds of 
inadmissibility, except for the waiver for certain aged, blind, or 
disabled applicants for adjustment of status under section 245A of the 
Act. (See 8 U.S.C. 1255a(d)(2)(B)(ii)(IV).) However, various laws have 
exempted certain categories of aliens from the requirements of section 
212(a)(4) of the Act. Several of these categories are described in 
Sec. 212.110(a).


Sec. 212.112  Is it possible to provide a bond or cash deposit to 
ensure that I will not become a public charge?

    The Service may accept a suitable, legally binding public charge 
bond or cash deposit on your behalf that meets the conditions set forth 
in 8 U.S.C. 1183 and in 8 CFR part 213. Acceptance of such a bond or 
cash deposit is discretionary.
    6. Part 237 is added to read as follows:

PART 237--DEPORTABLE ALIENS

Subpart A--Public Charge Deportability

Sec.
237.10  What issues do Secs. 237.10 through 237.18 address?
237.11  What law governs whether I am deportable on public charge 
grounds?
237.12  What does it mean to be a ``public charge,'' for purposes of 
removal as a deportable alien?
237.13  What specific benefits are considered to be ``public cash 
assistance for income maintenance?''
237.14  Are there any forms of public benefits that I can receive 
without becoming deportable as a public charge?
237.15  What other conditions must be met for me to be deportable as 
a public charge?
237.16  Is the ``Affidavit of Support under Section 213A of the 
Act'' (Form I-864) relevant to removal on public charge grounds of 
deportation?
237.17  Does the 5 year period in section 237(a)(5) of the Act run 
only from my first entry into the United States?
237.18  Will I be considered a public charge because my spouse, 
parent, child, or other relative has accepted public benefits or has 
become a public charge?

Subpart B--[Reserved]

    Authority: 8 U.S.C. 1227(a)(5), 8 U.S.C. 1183a, 8 CFR part 213A.

Subpart A--Public Charge Deportability


Sec. 237.10  What issues do Secs. 237.10 through 237.18 address?

    (a) Sections 237.10 through 237.18 of this part address the public 
charge ground of deportation under section 237(a)(5) of the Act.
    (b) In Secs. 237.10 through 237.18 of this part, the terms ``I,'' 
``me'' and ``my'' in the section headings and ``you'' and ``your'' in 
the text of each section refer to an alien who may be deportable as a 
public charge.


Sec. 237.11  What law governs whether I am deportable on public charge 
grounds?

    (a) Section 237(a)(5) of the Act describes which aliens are 
deportable on public charge grounds. If the Service brings a removal 
proceeding against you charging that you are subject to deportation on 
public charge grounds, the Service must prove that you became a public 
charge within 5 years of your entry to the United States.
    (b) If you can prove that the causes that led to your becoming a 
public charge arose after your entry to the United States, you will not 
be deported.


Sec. 237.12   What does it mean to be a ``public charge'' for purposes 
of removal as a deportable alien?

    (a)(1) ``Public charge'' for purposes of removal as a deportable 
alien means an alien who has become primarily dependent on the 
Government for subsistence as demonstrated by either:
    (i) The receipt of public cash assistance for income maintenance 
purposes, or
    (ii) Institutionalization for long-term care at Government expense 
(other than imprisonment for conviction of a crime).
    (2) Institutionalization for short periods for rehabilitation 
purposes does not demonstrate primary dependence on the Government.
    (b) For purposes of Secs. 237.10 through 237.18 of this part:
    (1) The term ``government'' refers to any Federal, State or local 
government entity or entities.
    (2) The term ``cash'' includes not only funds you receive in the 
form of cash from a government agency, but also funds received from a 
government agency by check, money order, wire transfer, electronic 
funds transfer, direct deposit, or any other form that can be legally 
converted to currency, provided that the funds are for purposes of 
maintaining your income.
    (c) As described in Secs. 237.13(c) and 237.14 of this part, some 
forms of public assistance will not be considered for public charge 
purposes because they do not result in primary dependence on the 
Government. In addition, you will not be found deportable on public 
charge grounds unless the other conditions in Secs. 237.11, 237.15, and 
237.16 of this part (if Sec. 237.16 applies to your case) have been 
met.


Sec. 237.13  What specific benefits are considered to be ``public cash 
assistance for income maintenance''?

    (a) Public benefits considered to be ``public cash assistance for 
income maintenance'' include:
    (1) Supplemental Security Income (SSI), 42 U.S.C. 1381, et seq.;
    (2) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601, 
et seq., but not including supplemental cash benefits excluded from the 
term ``assistance'' under TANF program rules (see 45 CFR 260.31) or any 
non-cash benefits and services provided by the TANF program; and
    (3) State and local cash assistance programs for income maintenance 
(often called State ``General Assistance,'' but which may exist under 
other names).
    (b) Due to the constantly changing nature of the numerous Federal, 
State and local benefits for which you may be eligible, it is not 
possible to give a complete listing of such benefits that could be 
considered for public charge purposes. If, within 5 years of your entry 
into the United States, you have received any public benefit that is 
provided in the form of cash (as that term is described in 
Sec. 237.12(b)(2) of this part) for purposes of maintaining your 
income, it may serve as a basis for your deportation on public charge 
grounds, provided that all of the requirements of section 237(a)(5) of 
the Act and the other conditions for deportation described in 
Secs. 237.11, 237.15, and 237.16 of this part (if Sec. 237.16 applies 
to your case) have been satisfied.
    (c) Some forms of cash benefits are not intended for income 
maintenance, and therefore, will not be considered for public charge 
purposes under Secs. 237.10 through 237.18 of this part. Examples of 
such cash benefits that are supplemental in nature include the Low 
Income Home Energy Assistance Program (LIHEAP), 42 U.S.C. 8621 et seq.; 
the Child Care and Development Block Grant Program (CCDBGP), 42 U.S.C. 
9858 et seq.; Food Stamp benefits issued in cash (see, e.g., 7 U.S.C. 
2026(b)); certain educational assistance benefits; and non-recurrent, 
short-term crisis benefits, and other services funded in cash by the 
TANF program that do not fall within the TANF program's definition of 
``assistance,'' as described in paragraph (a)(2) of this section.
    (d) Cash benefits that have been earned continue to be irrelevant 
to the public charge ground of inadmissibility. A few examples of such 
earned benefits that will not be considered include benefits under 
Title II of the Social Security Act, 42 U.S.C. 401 et seq.,

[[Page 28685]]

government pension benefits, and veterans' benefits.


Sec. 237.14   Are there any forms of public benefits that I can receive 
without becoming deportable as a public charge?

    (a) The only benefits that are relevant to the public charge 
decision are public cash assistance for income maintenance and 
institutionalization for long-term care at Government expense. 
Institutionalization for short periods for rehabilitation purposes will 
not be considered. Non-cash public benefits are not considered because 
they are of a supplemental nature and do not demonstrate primary 
dependence on the Government for subsistence.
    (b) Although it is not possible to list all of the non-cash public 
benefits that will not be considered, you will not risk being found 
deportable as a public charge by receiving non-cash benefits under the 
following programs or benefit categories:
    (1) The Food Stamp program, 7 U.S.C. 2011, et seq.,
    (2) The Medicaid program, 42 U.S.C. 1396, et seq. (other than 
payments under the Medicaid program for long-term institutional care);
    (3) The Children's Health Insurance Program (CHIP), 42 U.S.C. 
1397aa, et seq.;
    (4) Health insurance and health services (other than public 
benefits for costs of institutionalization for long-term care), 
including, but not limited to, emergency medical services, public 
benefits for immunizations and for testing and treatment of symptoms of 
communicable diseases, and use of health clinics;
    (5) Nutrition programs, including, but not limited to, the Special 
Supplemental Nutrition Program for Women, Infants and Children (WIC), 
42 U.S.C. 1786; and programs that operate under the National School 
Lunch Act, 42 U.S.C. 1751 et seq.; the Child Nutrition Act, 42 U.S.C. 
1771 et seq.; and the Emergency Food Assistance Act, 7 U.S.C. 7501 et 
seq.;
    (6) Emergency disaster relief;
    (7) Housing benefits;
    (8) Child care services;
    (9) Energy benefits, such as LIHEAP, 42 U.S.C. 8621 et seq.;
    (10) Foster care and adoption benefits;
    (11) Transportation vouchers or other non-cash transportation 
services;
    (12) Educational benefits, including benefits under the Head Start 
Act and aid for elementary, secondary, or higher education;
    (13) Non-cash benefits or services funded by the TANF program;
    (14) Job training programs;
    (15) State and local supplemental, non-cash benefits that serve 
purposes similar to those of the Federal programs listed in this 
paragraph;
    (16) Any other Federal, State, or local public benefit program, 
under which benefits are provided in-kind, through vouchers, or any 
other medium of exchange other than payment of cash benefits for income 
maintenance to the eligible person.


Sec. 237.15  What other conditions must be met for me to be deportable 
as a public charge?

    (a) In addition to the requirements of section 237(a)(5) of the 
Act, and except as provided in paragraph (b) of this section, you are 
not deportable as a public charge unless the Service shows that:
    (1) The Government entity that provided, or is providing, either 
the public cash assistance for your income maintenance as described in 
Secs. 237.12 and 237.13 of this part or the costs of 
institutionalization for your long-term care as described in 
Sec. 237.12, has a legal right to seek repayment of those benefits 
against either you or another obligated party, such as a family member 
or a sponsor; and
    (2) Within 5 years of your entry to the United States, the public 
entity providing the benefit demanded that you or another obligated 
party repay the benefit; and
    (3) You or another obligated party failed to repay the benefit 
demanded;
    (4) There is a final administrative or court judgment obligating 
you or another party to repay the benefit. (As long as the demand for 
repayment under paragraph (a)(2) of this section occurred within 5 
years of your entry, the final judgment may be rendered against you or 
another obligated party at any time thereafter);
    (5) The benefit-granting agency, or other applicable Government 
entity, has taken all actions necessary to enforce the judgment, 
including all collection actions.
    (b) If a legal right to seek repayment of the public benefits 
described in Secs. 237.12 and 237.13 of this part is established, but 
the Service proves that there was no one against whom repayment could 
be enforced, thereby making a demand for repayment futile, then the 
Service need not show that a demand was made and a final judgment for 
repayment of the public benefits rendered.


Sec. 237.16  Is the ``Affidavit of Support Under Section 213A of the 
Act'' (Form I-864) relevant to removal on public charge grounds of 
deportation?

    (a) The ``Affidavit of Support Under Section 213A of the Act'' 
(Form I-864) required under section 213A of the Act and 8 CFR part 213a 
is relevant to removal on the public charge grounds for deportation in 
certain circumstances. Section 213A of the Act provides that the 
Affidavit of Support may support a legally enforceable claim against 
your sponsor(s) for repayment of certain Federal, State, or local 
means-tested public benefits provided to you. You may be found 
deportable on public charge grounds if the Service proves that:
    (1) An Affidavit of Support under Section 213A of the Act and 8 CFR 
part 213a was filed on your behalf and is currently in effect; and
    (2) Within 5 years after your admission to the United States, you
    (i) Obtained SSI, cash TANF benefits, or other Federal, State, or 
local public benefits that were cash assistance for income maintenance 
purposes and that, at the time the Affidavit of Support was signed, had 
been designated as ``means-tested public benefits'' by the Government 
entity responsible for administering the benefit; or
    (ii) Were institutionalized for long-term care at Government 
expense (other than imprisonment for conviction of a crime); and
    (3) Such benefits have not been repaid as provided in Sec. 237.15.


Sec. 237.17  Does the 5-year period in section 237(a)(5) of the Act run 
only from my first entry into the United States?

    (a) The 5-year period begins again each time you enter the United 
States, unless you are a returning alien lawfully admitted for 
permanent residency (an ``LPR'') who is not considered an applicant for 
admission as described in paragraph (b) of this section.
    (b) If you have been lawfully admitted for permanent residence (LPR 
status), you are not considered an applicant for admission upon return 
to the United States after a trip abroad unless you are covered by one 
of the categories specified in section 101(a)(13)(C) of the Act, 
including an absence of 180 days or more from the United States. If you 
are not covered by one of the categories listed in section 
101(a)(13)(C) of the Act, the 5-year period for public charge 
deportation purposes would still be counted from your last entry to the 
United States.


Sec. 237.18  Will I be considered a public charge because my spouse, 
parent, child, or other relative has accepted public benefits or has 
become a public charge?

    (a) The fact that one, or all, of your close relatives has received 
public cash benefits for income maintenance, or has become a public 
charge, will not make you deportable as a public charge, unless the 
evidence shows that you,

[[Page 28686]]

individually, have become a public charge.
    (b) Public cash benefits for income maintenance received by your 
relatives will not be attributed to you for deportation purposes, 
unless they also represent your sole support. If such benefits are 
attributed to you because they are your sole support, all of the 
requirements of Secs. 237.11, 237.15, and 237.16 of this part (if 
Sec. 237.16 is applicable to your case) must also be met before you may 
be found deportable as a public charge.

Subpart B--[Reserved]

    Dated: May 20, 1999.
Janet Reno,
Attorney General.

Appendix to Preamble

    The following are the texts of letters received by Immigration 
and Naturalization Service officials from officials from the 
Department of Health and Human Services, the Social Security 
Administration, and the Department of Agriculture.

BILLING CODE 4410-10-U

The Deputy Secretary of Health and Human Services

Washington, D.C. 20201

March 25, 1999.
Commissioner Doris Meissner,
Immigration and Naturalization Service, Department of Justice, 425 
Eye Street NW., Washington, D.C. 20536

    Dear Commissioner Meissner: According to my colleagues at the 
U.S. Department of Health and Human Services (HHS), I understand 
that the Immigration and Naturalization Service (INS) plans to issue 
some form of guidance explaining the public charge ground of 
inadmissibility to and deportation from the United States. The 
guidance is critical to clarifying for immigrant families and 
communities what the potential immigration consequences are of 
receiving certain government benefits.
    Over the past several years, there has been a significant 
decline in the receipt of welfare, health, and nutrition benefits by 
immigrant families and their citizen children, even though many of 
these families (or individuals within these families) are eligible 
for such benefits. HHS has received numerous reports from state and 
local government officials, program administrators, and community 
leaders around the country that a significant factor contributing to 
this decline in participation is the confusion and fear that 
immigrant families have in relation to public charge policies. There 
is particularly concern that this lack of access to critical 
services may lead to negative health outcomes for immigrant families 
and children, as well as potentially undermining public health.
    HHS supports the efforts of INS and the Department of Justice to 
clarify the meaning of ``public charge'' in a way that meets the 
objectives of both the immigration laws and the Administration's 
health policies. The INS, as we understand it, is proposing to 
define ``public charge'' to mean an alien who has, or is likely to 
become, ``primarily dependent on the government for subsistence.'' 
An important issue that has arisen is receipt of which benefits is 
evidence of this dependency. HHS agrees that in making such an 
assessment about an individual, it is important to articulate a 
principle that distinguishes clearly those public benefits that 
should be relevant to public charge determinations from those that 
should not be of any consequence. We further understand that under 
immigration law, receipt of benefits is only one of many factors 
that INS and Department of State officers consider in making public 
charge determinations.
    This letter responds to your request for advice from benefit-
granting agencies with expertise in subsistence matters about which 
types of benefit receipt would demonstrate that an individual is 
primarily dependent on the government for his or her support. The 
best available evidence of whether someone is primarily dependent on 
government assistance for subsistence is whether that individual is 
receiving cash assistance for income maintenance purposes, (i.e., 
cash assistance under the Temporary Assistance to Dependent Families 
program (TANF)), the Supplemental Security Income (SSI), and state 
general assistance programs), or is institutionalized in a long-term 
care facility at government expense.\1\
---------------------------------------------------------------------------

    \1\ Note that SSI is administered by the Social Security 
Administration, and general assistance programs are administered by 
the several states. However, we believe these are the relevant cash 
assistance programs that support the analysis in this letter.
---------------------------------------------------------------------------

    The receipt of cash benefits or long-term care 
institutionalization are the most effective proxies for identifying 
an individual as one who is primarily dependent on government 
assistance for subsistence.
    First, nearly all individuals or families receiving cash 
assistance for purposes of income maintenance are also receiving 
other non-cash support benefits and services as well, (e.g., 
Medicaid, Food Stamps, housing assistance, child care, energy 
assistance), and they are likely not to be receiving any income from 
other sources. For example, virtually all of those receiving AFDC 
cash assistance in 1995 were also receiving Medicaid (97 percent) 
and Food Stamps (89 percent), (1998 Green Book). By the end of 1997, 
82 percent of families receiving TANF reported having no earned 
income. (AFDC/TANF Quality Control Data). In these cases, the 
individuals or families receiving cash assistance would meet the 
standard of ``primarily dependent on government assistance for 
subsistence.''
    Second, it is extremely unlikely that an individual or family 
could subsist on a combination of non-cash support benefits or 
services alone. Without cash assistance, it is extremely unlikely 
that the individual or family could meet the basic subsistence 
requirements related to food, clothing and shelter. These non-cash 
assistance programs typically provide only supplemental and marginal 
assistance, (e.g., Food Stamps, housing assistance, energy 
assistance) or services, (e.g., health insurance coverage, medical 
care and child care) that do not directly provide subsistence and 
together are insufficient to provide primary support to an 
individual or a family absent additional income. Moreover, programs 
such as Child Care enable parents to work and earn income in order 
to be self-sufficient. In addition, depending on eligibility rules, 
some programs such as Medicaid, may or may not be available to all 
family members or for all periods of time. HHS is unable to conceive 
of a situation where an individual, other than someone who 
permanently resides in a long-term care institution, could support 
himself or his family solely on non-cash benefits so as to be 
primarily dependent on the government. Thus, virtually all families 
receiving non-cash support benefits, but not receiving cash 
assistance, must rely on other income (usually earned income) in 
order to meet their subsistence needs.
    Finally, non-cash support benefits and services are generally 
designed to supplement and support the diet, health, and living 
conditions of recipients, many of whom are low- to middle-income 
working families, and are generally provided as vouchers or direct 
services.\2\ Also, these non-cash services often have a primary 
objective of supporting the overall community or public health, by 
making services generally available to everyone within a community, 
providing infrastructure development and support, or providing 
stable financing for services and systems that benefit entire 
communities. Compared to cash benefit programs, non-cash support 
programs generally have more generous eligibility rules so as to be 
available to individuals and families with incomes well above the 
poverty line. For example, states have a great deal of flexibility 
to set income eligibility rules under Medicaid and the Children's 
Health Insurance Program, and many states cover certain populations, 
such as children and pregnant women, up to 200 percent of the 
poverty line and sometimes higher. Moreover, in 1997 nearly half (49 
percent) of Medicaid recipients were not receiving any cash 
assistance (SSI or AFDC/TANF), and two-thirds (64 percent) of adult 
recipients reported working full or part time. (March 1998 Current 
Population Survey). Similarly, about one-third of Food Stamp 
recipients in 1997 did not receive cash assistance and

[[Page 28687]]

reported earnings in 1997. (Characteristics of Food Stamp 
Recipients, 1998). In these cases the individual or family receiving 
non-cash benefits, but not receiving cash assistance, would not meet 
the standard of ``primarily dependent on government assistance for 
subsistence.''
---------------------------------------------------------------------------

    \2\ Although most support programs provide vouchers or direct 
services, it should be noted that at HHS some of these programs can 
also provide cash for the reimbursement of specific costs. For 
example, the Low Income Home Energy Assistance Program (LIHEAP) and 
the Child Care Development Fund (CCDF) are authorized to make cash 
payments, but these payments are for specific purposes other than 
income maintenance. LIHEAP is authorized to provide cash payments 
for energy costs, and providers do so in very limited circumstances 
such as when a vendor (such as a log supplier) does not have an 
agreement with the administering entity, (i.e., state, county, or 
nonprofit organization). In the case of CCDF, in FY 1997 that 
program gave cash payments to recipients in 7% of all cases 
specifically for the reimbursement of beneficiaries' child care 
costs. Under the proposal articulated here, cash payments in these 
programs would not give rise to a public charge determination since 
such payments are not provided for income maintenance purposes.
---------------------------------------------------------------------------

    The one circumstance in which receipt of non-cash benefits would 
indicate that an individual is primarily dependent on government 
assistance for subsistence, and therefore potentially a public 
charge, is the case of an individual permanently residing in a long-
term care institution and relying on government assistance for those 
long-term care services. In this case, all of the individual's basic 
subsistence needs are assumed by the institution, and the individual 
has no need for cash assistance. Aside from this narrow instance, 
the receipt of a non-cash support benefits and services should not 
be relevant to a public charge determination under INS' proposed 
definition.
    Based on these considerations, HHS recommends that benefit 
receipt should only be relevant to public charge determinations when 
an individual receives the benefits defined below:
    1. Cash-Assistance for Income Maintenance: Cash assistance under 
TANF, SSE, and state/local equivalents (including state-only TANF).
    2. Long-Term Institutionalized Care: The limited case of an 
alien who permanently resides in a long-term care institution (e.g., 
nursing facilities) and whose subsistence is supported substantially 
by public funds (e.g., Medicaid).
    Thank you for your time and consideration. Please let me know if 
I or HHS staff can be of any further assistance regarding this 
important policy issue.

      Sincerely,
Kevin Thurm,
Deputy Secretary of Health and Human Services.

Social Security

May 14, 1999.
Dr. Robert L. Bach,
Executive Associate Commissioner for Office of Policy and Planning, 
Immigration and Naturalization Service, 425 I Street, Washington, DC 
20536

    Dear Dr. Bach: We understand that the Immigration and 
Naturalization Service (INS) is planning to publish proposed 
regulations on the definition of ``public charge'' for purposes of 
determining who can be admitted to and who can be deported from the 
United States under the provisions in sections 212(a)(4) and 
237(a)(5) of the Immigration and Nationality Act (INA). More 
specifically, INS plans to define ``public charge'' to mean an 
individual who ``has become'' or is ``likely to be primarily 
dependent on the government for subsistence.'' You have asked the 
Federal agencies that administer public benefit programs whether a 
noncitizen's receipt of the benefits might indicate that the 
noncitizen primarily relied on these benefits for subsistence. This 
letter is in response to that request.
    We agree that the receipt of Supplemental Security Income (SSI) 
could show primary dependence on the government for subsistence 
fitting the INS definition of public charge provided that all of the 
other factors and prerequisites for admission or deportation have 
been considered or met. We believe, however, that many mitigating 
factors discussed below, coupled with specific public charge 
exemptions under immigration law, also discussed, would result in a 
minimal impact of the public charge provisions on the SSI noncitizen 
population.
    The SSI program is a nationwide Federal means-tested income 
maintenance program administered by the Social Security 
Administration (SSA). SSI guarantees a minimum level of income for 
needy aged, blind, and disabled individuals. The program is designed 
to provide assistance for individuals' basic needs of food, 
clothing, and shelter. Individuals eligible for SSI are among the 
most vulnerable people in the United States. For them, SSI is truly 
the program of last resort and is the safety net that protects them 
from complete impoverishment.
    Lawful permanent residents and noncitizens permanently residing 
in the United States under color of law were eligible for SSI when 
the program began in 1974. The 1996 welfare reform legislation 
(Public Law 104-193) restricted SSI eligibility for qualified 
noncitizens to those who were in specific, limited categories, such 
as refugees and asylees, individuals who served in the U.S. 
military, and lawful permanent residents who worked in the United 
States for at least 40 quarters. Subsequent legislation in 1997 and 
1998 expanded the categories to include individuals who had received 
SSI or were in the United States prior to enactment of welfare 
reform and who are disabled or blind. These later laws added other 
discrete classes of noncitizens as well. Still, the categories of 
noncitizens eligible for SSI are limited.
    Under INS' proposed rule, the receipt of SSI could lead to a 
determination that a person is or is likely to be a public charge. 
As mentioned earlier, only limited, specified categories of 
noncitizens are eligible for SSI. Our analysis of the proposed INS 
public charge rule leads us to conclude that many of these SSI-
eligible noncitizen categories would either be exempt from the 
public charge provisions by law, or would not be deemed public 
charges because of the operation of other factors required under the 
proposed rule. For example, aged, blind, and disabled refugees, 
asylees, Amerasian immigrants, Cubans and Haitians may be eligible 
for SSI benefits after they have been in the United States for 30 
consecutive days. We understand that the first three categories and 
certain Cuban/Haitians are exempt from the proposed public charge 
policy under other provisions in immigration law. In addition, the 
public charge provision for deportation under section 237(a)(5) of 
the INA, applies only in cases in which a noncitizen became a 
``public charge from causes not affirmatively shown to have arisen 
since entry.'' Many individuals who are eligible for SSI are healthy 
when they first come to the United States but become aged, blind or 
disabled after they enter. If these conditions occurred after entry 
giving rise to the use of the public benefits, we understand that 
they would not be deportable on public charge grounds.
    Another mitigating factor in the proposed public charge rule as 
it applies to SSI beneficiaries involves reimbursement of SSI 
benefits received. As we understand the proposed rule, in order for 
a noncitizen to be determined deportable on public charge grounds, 
there must in part be a legal obligation for the individual or his 
or her sponsor to repay the benefits received during the first 5 
years after entry into the United States. SSA has no authority to 
require the individual to repay the benefits for which they are 
entitled. Thus, nonsponsored noncitizens would not be required to 
reimburse, and the public charge provision for deportation would not 
apply to them. However, sponsors who have signed a new affidavit of 
support under section 213A of the INA are required to reimburse SSA 
for SSI benefits paid to the sponsored noncitizen. Only if the 
sponsor refuses to repay would the SSI beneficiary potentially be 
subject to deportation.
    Even for those individuals who do not come under one of the 
exempted categories, the draft rules state that the mere receipt of 
SSI does not automatically make a noncitizen inadmissible, 
ineligible to adjust status, or subject to deportation. In the 
admission context, the INS plans to apply a ``totality of 
circumstances'' test which includes the consideration of several 
mandatory statutory factors. Examples of such factors include an 
alien's age, health, family status, assets, resources, financial 
status, education and skills. No single factor, other than the lack 
of a sufficient affidavit of support, if required, will determine 
whether a noncitizen is likely to be a public charge, including past 
or current receipt of SSI. In the deportation context, mere receipt 
of benefits also will not make a person deportable. There must also 
have been a demand for repayment by the benefit agency, failure to 
meet that demand by the alien or other obligated party, a final 
judgment, and all steps taken to enforce that judgment. Without the 
satisfaction of these prerequisites, the alien is not deportable.
    Further, we understand that INS will take into account the 
specific circumstances surrounding the past or current receipt of 
SSI. For example, if a noncitizen received SSI in a past period of 
unemployment, but he or she is currently working and is self-
supporting, a public charge determination may not be made. Every 
admission decision is made on a case-by-case basis carefully 
balancing the totality of the circumstances. We also understand that 
INS will accord less significance to the receipt of SSI if a 
noncitizen received SSI sometime ago or a noncitizen received or is 
receiving a small amount of SSI.
    INS' proposed rule concerning deportations on public charge 
grounds indicates that such deportations are rare since the 
standards are very strict. We believe that these strict criteria 
would result in the deportation provision rarely being applied 
against a noncitizen SSI beneficiary.

[[Page 28688]]

    Thank you for the opportunity to comment on this important 
matter.

        Sincerely,
Susan M. Daniels,
Deputy Commissioner for Disability and Income Security Programs.

Department of Agriculture

Office of the Secretary, Washington, D.C. 20250

April 15, 1999.
Honorable Doris M. Meissner,
Commissioner, Immigration and Naturalization Service, 425 I Street, 
NW, Room 7100, Washington, D.C. 20536

    Dear Commissioner Meissner: This is in reference to a letter 
that the Department of Health and Human Services recently sent you 
suggesting that the receipt of public benefits should only be 
relevant to a public charge determination when an individual 
receives cash assistance for income maintenance or long-term 
institutionalized care. We have reviewed the letter and are in 
agreement with its contents.
    We believe that neither the receipt of food stamps nor nutrition 
assistance provided under the Special Nutrition Programs 
administered by this Agency should be considered in making a public 
charge determination for purposes of admission, deportation, or 
adjustment of an alien's status.
    Please let us know if we can be of any assistance regarding this 
matter.

        Sincerely,
Shirley R. Watkins,
Under Secretary, Food, Nutrition and Consumer Services.

[FR Doc. 99-13188 Filed 5-25-99; 8:45 am]
BILLING CODE 4410-10-M