[Federal Register Volume 84, Number 157 (Wednesday, August 14, 2019)]
[Rules and Regulations]
[Pages 41292-41508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17142]
[[Page 41291]]
Vol. 84
Wednesday,
No. 157
August 14, 2019
Part III
Book 3 of 3 Books
41291-41594
Department of Homeland Security
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8 CFR Parts 103, 212, 213, et al.
Inadmissibility on Public Charge Grounds; Final Rule
Federal Register / Vol. 84 , No. 157 / Wednesday, August 14, 2019 /
Rules and Regulations
[[Page 41292]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212, 213, 214, 245 and 248
[CIS No. 2637-19; DHS Docket No. USCIS-2010-0012]
RIN 1615-AA22
Inadmissibility on Public Charge Grounds
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: This final rule amends DHS regulations by prescribing how DHS
will determine whether an alien applying for admission or adjustment of
status is inadmissible to the United States under section 212(a)(4) of
the Immigration and Nationality Act (INA or the Act), because he or she
is likely at any time to become a public charge. The final rule
includes definitions of certain terms critical to the public charge
determination, such as ``public charge'' and ``public benefit,'' which
are not defined in the statute, and explains the factors DHS will
consider in the totality of the circumstances when making a public
charge inadmissibility determination. The final rule also addresses
USCIS' authority to issue public charge bonds under section 213 of the
Act in the context of applications for adjustment of status. Finally,
this rule includes a requirement that aliens seeking an extension of
stay or change of status demonstrate that they have not, since
obtaining the nonimmigrant status they seek to extend or change,
received public benefits over the designated threshold, as defined in
this rule.
This rule does not create any penalty or disincentive for past,
current, or future receipt of public benefits by U.S. citizens or
aliens whom Congress has exempted from the public charge ground of
inadmissibility. This rule does not apply to U.S. citizens, even if the
U.S. citizen is related to an alien subject to the public charge ground
of inadmissibility. The rule also does not apply to aliens whom
Congress exempted from the public charge ground of inadmissibility
(such as asylees, refugees, or other vulnerable populations listed as
exempt in this final rule). Nor does this rule apply to aliens for whom
DHS has statutory discretion to waive this ground of inadmissibility,
if DHS has exercised such discretion.
In addition, this includes special provisions for how DHS will
consider the receipt of public benefits, as defined in this rule, by
certain members of the U.S. Armed Forces and their families; certain
international adoptees; and receipt of Medicaid in certain contexts,
especially by aliens under the age of 21, pregnant women (and women for
up to 60 days after giving birth), and for certain services funded by
Medicaid under the Individuals with Disabilities Education Act (IDEA)
or in a school setting. Aliens who might qualify for these exemptions
should study the rule carefully to understand how the exemptions work.
This final rule also clarifies that DHS will only consider public
benefits received directly by the alien for the alien's own benefit, or
where the alien is a listed beneficiary of the public benefit. DHS will
not consider public benefits received on behalf of another. DHS also
will not attribute receipt of a public benefit by one or more members
of the alien's household to the alien unless the alien is also a listed
beneficiary of the public benefit.
This final rule supersedes the 1999 Interim Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds.
DATES: This final rule is effective at 12:00 a.m. Eastern Time on
October 15, 2019. DHS will apply this rule only to applications and
petitions postmarked (or, if applicable, submitted electronically) on
or after the effective date. Applications and petitions already pending
with USCIS on the effective date of the rule (i.e., were postmarked
before the effective date of the rule and were accepted by USCIS) will
not be subject to the rule.
FOR FURTHER INFORMATION CONTACT: Mark Phillips, Residence and
Naturalization Division Chief, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts NW, Washington, DC 20529-2140; telephone 202-272-8377.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Proposed Rule
D. Summary of Changes in the Final Rule
1. Definitions
2. Public Benefits
3. Applicability to Nonimmigrants
4. Totality of the Circumstances Determination
5. Public Charge Bond for Adjustment of Status Applicants
6. Other Changes
E. Summary of Costs and Benefits
II. Background
A. Public Charge Inadmissibility and Public Charge Bonds
B. Current Public Charge Standards
C. Final Rule
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
B. Requests To Extend Comment Period
C. Comments Expressing General Support for the NPRM
D. Comments Expressing General Opposition to the NPRM
1. Purpose of the Rule and Self Sufficiency
2. Requests for Reconsideration and Withdrawal of NPRM
3. Alternatives to the Public Charge Rule
4. Discrimination and Disparate Impact
5. Potential Disenrollment Impacts
Choice Between Public Benefits and Immigration Status
General Assertions as to Effects
Housing Benefit-Related Effects
Food and Nutrition Benefit-Related Effects
Health Benefit-Related Effects
Effects on Vulnerable Populations
Effects on U.S. Citizens
Increased Costs to Health Care Providers, States, and
Localities
6. Inconsistent With American Values and Historic Commitment to
Immigrants
7. Contributions to American Society and Consideration of Self-
Sufficiency
8. Adjudication and Processing
9. Privacy Concerns
E. General Comments Regarding Legal Authority and Statutory
Provisions
1. Lack of Statutory Authority/Inconsistent With Congressional
Intent
2. Additional Legal Arguments
a. Allegations That the Rule Is Arbitrary and Capricious
b. Alternatives
c. Retroactivity
d. Due Process/Vagueness and Equal Protection
e. Coordination With Other Federal Agencies
f. International Law and Related Issues
g. Contract Law
F. Applicability of the Public Charge Ground of Inadmissibility,
and the Public Benefit Condition to Extension of Stay and Change of
Status
1. Applicability of the Public Charge Ground of Inadmissibility
Generally
2. Applicability and Content of the Public Benefits Condition
a. Nonimmigrant Students and Exchange Visitors
b. Workers
d. Compact of Free Association Migrants
3. Exemptions and Waivers With Respect to the Rule Generally
a. General Comments
b. Special Immigrant Juvenile
c. Certain Employment Based Preference Categories, or National
Interest Waiver
d. Violence Against Women Act, T, and U
4. Summary of Applicability, Exemptions, and Waivers
G. Definitions
1. Public Charge
a. Threshold Standard
``Primarily dependent'' Based on Cash Public Benefit Receipt or
Long-Term Institutionalization at Government Expense
b. Standards for Monetizable and Non-Monetizable Benefits
[[Page 41293]]
Numerical Percentage Threshold
Valuation
Alternatives to the Duration Standard
Combination Standard
2. Public Benefits
a. Specific Groups and Public Benefits
Individuals With Disabilities
Vulnerable Populations
Receipt of Public Benefits by Children
b. Supplemental Security Income
c. Temporary Assistance for Needy Families
d. State, Local and Tribal Cash Assistance
e. Supplemental Nutrition Assistance Program
CalFresh
f. Housing
g. Institutionalization
h. Medicaid
Individuals With Disabilities Education Act
Emergency Services Exclusion
Vaccinations
Substance Abuse
i. Medicare, Medicare Part D Low Income Subsidy
j. Additional Considerations
Exhaustive List
Additional Programs
Dependents
Tax Credits
Special Supplemental Nutrition Program for Women, Infants, and
Children
School Breakfast/Lunch Programs
State and Local Benefits
Head Start
Healthy Start, The Emergency Food Assistance Program, and
Similar Programs
Pell Grants
Children's Health Insurance Program
Disaster Supplemental Nutrition Assistance
Social Security Disability Insurance
3. Likely at Any Time To Become a Public Charge
4. Household
H. Public Charge Inadmissibility Determination Based on Totality
of Circumstances
I. Age
1. Standard
2. Age Discrimination
J. Health
1. Standard
2. Health and Disability Discrimination
K. Family Status
L. Assets, Resources, and Financial Status
1. Income Standard
2. Evidence of Assets and Resources
3. Public Benefits
4. Fee Waivers for Immigration Benefits
5. Credit Report and Score
6. Financial Means To Pay for Medical Costs
M. Education and Skills
1. Education
2. Language Proficiency
3. Skills
4. Employment
N. Affidavit of Support
O. Additional Factors To Consider
P. Heavily Weighted Factors General Comments
Q. Heavily Weighted Negative Factors
1. Lack of Employability
2. Current Receipt of One of More Public Benefit
3. Receipt of Public Benefits Within 36 Months Before Filing
4. Financial Means To Pay for Medical Costs
5. Alien Previously Found Inadmissible or Deportable Based on
Public Charge
R. Heavily Weighted Positive Factors
1. Proposed Standard
2. Additional Positive Heavily Weighted Factors
a. Affidavit of Support
b. Family Relationships
c. English Ability
d. Education
e. Private Health Insurance
f. Work History
g. Receipt of Grants, Contracts, and Licensures
h. Caregivers
i. Ability To Work in the Future
S. Public Charge Bonds for Adjustment of Status Applicants
1. Standard
2. Bond Amount
3. Public Charge Bond Cancellation
4. Breach of Public Charge Bond
T. Effective Date(s)
Benefits Received Before Effective Date and Previously Excluded
Benefits
U. Other Comments
V. Public Comments and Responses to the NPRM's Statutory and
Regulatory Requirements Section
1. Comments on Costs and Benefits
a. Population Seeking Extension of Stay or Change of Status
b. Other Comments on Affected Population
c. Determination of Inadmissibility Based on Public Charge
Grounds
d. Other Comments on Baseline Estimates
e. Costs to Applicants To Adjust Status
f. Lack of Clarity
g. Other Comments on Costs to Applicants
h. Costs Related to Public Charge Bond
i. Costs Related to Program Changes and Public Inquiries
j. Costs Related to States and Local Governments, and Public
Benefit-Granting Agencies
k. Regulatory Familiarization Costs
l. Costs to the Federal Government
m. Costs to Non-Citizens and Their Communities
n. Healthcare-Related Costs
o. Housing and Homelessness-Related Costs
p. Economic Costs
r. Economic Impact and Job Loss
s. Economic Impact on Healthcare System
t. Impact on U.S. Workforce
u. Economic Impacts Related to Nutrition Programs
v. Other Economic Impacts
w. DHS Estimates of Discounted Direct Costs and Reduced Transfer
Payments
x. Benefits of Proposed Regulatory Changes
y. Cost Benefit Analysis Issues
2. Federalism Comments
3. Family Assessment Comments
4. Paperwork Reduction Act Comments
IV. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs)
1. Summary
B. Regulatory Flexibility Act
1. Final Regulatory Flexibility Analysis
a. A Statement of the Need for, and Objectives of, the Rule
b. A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis,
a statement of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of
such comments.
c. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in
response to the proposed rule, and a detailed statement of any
change made to the proposed rule in the final rule as a result of
the comments.
d. A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no
such estimate is available.
e. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of
the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
f. Description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
C. Congressional Review Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 Consultation and Coordination With
Indian Tribal Governments
H. Family Assessment
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act
V. List of Subjects and Regulatory Amendments
Table of Abbreviations
AAO--Administrative Appeals Office
ACA--Affordable Care Act
ACTC--Additional Child Tax Credit
AFM--Adjudicator's Field Manual
ASEC--Annual Social and Economic Supplement of the Current
Population Survey
BIA--Board of Immigration Appeals
BLS--U.S. Bureau of Labor Statistics
CDC--Centers for Disease Control and Prevention
CBP--U.S. Customs and Border Protection
[[Page 41294]]
CFR--Code of Federal Regulations
CHIP--Children's Health Insurance Program
CNMI--Commonwealth of the Northern Mariana Islands
DACA--Deferred Action for Childhood Arrivals
DD Act--The Developmental Disabilities Assistance and Bill of Rights
Act of 2000
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
DOS--U.S. Department of State
EITC--Earned Income Tax Credit
E.O.--Executive Order
EOIR--Executive Office for Immigration Review
FAM--Foreign Affairs Manual FCRA--Fair Credit Reporting Act
FPG--Federal Poverty Guidelines
FPL--Federal Poverty Level
Form DS-2054--Medical Examination for Immigrant or Refugee Applicant
Form I-129--Petition for a Nonimmigrant Worker
Form I-129CW--Petition for a CNMI-Only Nonimmigrant Transitional
Worker
Form I-130--Petition for Alien Relative
Form I-140--Immigrant Petition for Alien Workers
Form I-290B--Notice of Appeal or Motion
Form I-356--Request for Cancellation of Public Charge Bond
Form I-407--Record of Abandonment of Lawful Permanent Resident
Status
Form I-485--Application to Register Permanent Residence or Adjust
Status
Form I-539--Application to Extend/Change Nonimmigrant Status
Form I-539A--Supplemental Information for Application to Extend/
Change Nonimmigrant Status
Form I-600--Petition to Classify Orphan as an Immediate Relative
Form I-601--Application for Waiver of Grounds of Inadmissibility
Form I-693--Report of Medical Examination and Vaccination Record
Form
I-800--Petition to Classify Convention Adoptee as an Immediate
Relative
Form I-864--Affidavit of Support Under Section 213A of the INA
Form I-864A--Contract Between Sponsor and Household Member
Form I-864EZ--Affidavit of Support Under Section 213A of the Act
Form I-864P--HHS Poverty Guidelines for Affidavit of Support
Form I-864W--Request for Exemption for Intending Immigrant's
Affidavit of Support
Form I-912--Request for Fee Waiver
Form I-94--Arrival/Departure Record
Form I-944--Declaration of Self-Sufficiency
Form I-945--Public Charge Bond
Form N-600--Application for Certificate of Citizenship
Form N-600K--Application for Citizenship and Issuance of Certificate
Under Section 322
GA--General Assistance
GAO--U.S. Government Accountability Office
HHS--U.S. Department of Health and Human Services
HOPWA--Housing Opportunities for Persons with AIDS
HCV--Housing Choice Voucher
ICE--U.S. Immigration and Customs Enforcement
IEFA--Immigration Examinations Fee Account
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRCA--Immigration Reform and Control Act of 1986
IRS--Internal Revenue Service
LIHEAP--Low Income Home Energy Assistance Program
LIS--Medicare Part D Low Income Subsidy
LPR--Lawful Permanent Resident
NEPA--National Environmental Policy Act of 1969
NHE--National Health Expenditure
NOID--Notice of Intent to Deny
NPRM--Notice of Proposed Rulemaking
PRA--Paperwork Reduction Act
PTC--Premium Tax Credit
PRWORA--Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
RFE--Request for Evidence
RFRA--Religious Freedom Restoration Act
SAVE--Systematic Alien Verification for Entitlements Secretary--
Secretary of Homeland Security
SIPP--Survey of Income and Program Participation
SNAP--Supplemental Nutrition Assistance Program
SORN--System of Records Notice
SSA--Social Security Administration
SSI--Supplemental Security Income
TANF--Temporary Assistance for Needy Families
TPS--Temporary Protected Status
USDA--U.S. Department of Agriculture
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
VAWA--Violence Against Women Act
VAWA 2013--Violence Against Women Reauthorization Act of 2013
WAP--Weatherization Assistance Program
WIC--Special Supplemental Nutrition Program for Women, Infants, and
Children
I. Executive Summary
A. Purpose of the Regulatory Action
This rule changes how the Department of Homeland Security (DHS)
interprets and implements the public charge ground of
inadmissibility.\1\ The Immigration and Nationality Act (INA or the
Act) renders inadmissible and therefore (1) ineligible for a visa, (2)
ineligible for admission and (3) ineligible for adjustment of status,
any alien \2\ who, in the opinion of the DHS (or the Departments of
State (DOS) or Justice (DOJ), as applicable),\3\ is likely at any time
to become a public charge.\4\ The statute does not define the term
``public charge,'' but in a related statute, Congress has articulated a
national policy that (1) ``aliens within the Nation's borders not
depend on public resources to meet their needs, but rather rely on
their own capabilities and the resources of their families, their
sponsors, and private organizations,'' and (2) ``the availability of
public benefits not constitute an incentive for immigration to the
United States.'' \5\ In addition, the public charge statute provides
that in making the inadmissibility determination, administering
agencies must ``at a minimum consider the alien's age; health; family
status; assets, resources, and financial status; and education and
skills.'' \6\ The agencies may also consider any affidavit of support
under section 213A of the Act, 8 U.S.C. 1183a, i.e., Form I-864,
Affidavit of Support Under Section 213A of the INA, submitted on the
alien's behalf.\7\
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\1\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\2\ Congress has by statute exempted certain categories of
aliens, such as asylees and refugees, from the public charge ground
of inadmissibility. See, e.g., INA sections 207(c)(3) and 209(c), 8
U.S.C. 1157(c)(3), 1159(c). A full list of exemptions is included in
this rule.
\3\ Three different agencies are responsible for applying the
public charge ground of inadmissibility, each in a different context
or contexts. DHS primarily applies the public charge ground of
inadmissibility at ports of entry and when adjudicating certain
applications for adjustment of status. This rule amends the
standards applicable to those contexts, and also sets forth
evidentiary requirements applicable to the adjustment of status
context.
DOS Consular officers are responsible for applying the public
charge ground of inadmissibility as part of the visa application
process and for determining whether a visa applicant is ineligible
for a visa on public charge grounds. This rule does not directly
revise DOS standards or processes. DHS is working with DOS to ensure
that the Foreign Affairs Manual appropriately reflects the standards
in this rule.
DOJ is responsible for applying the public charge ground of
inadmissibility in immigration court, where DHS may bring and
prosecute the charge against certain inadmissible aliens.
Immigration judges adjudicate matters in removal proceedings, and
the Board of Immigration Appeals and in some cases the Attorney
General adjudicate appeals arising from such proceedings. This rule
does not directly revise DOJ standards or processes. DHS understands
that the DOJ plans to conduct rulemaking to ensure that the
standards applied in immigration court are consistent with the
standards in this rule.
\4\ See INA section 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
\5\ See 8 U.S.C. 1601(2).
\6\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\7\ See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
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Since 1999, the prevailing approach to public charge
inadmissibility has been dictated primarily by the May 26, 1999, Field
Guidance on Deportability and Inadmissibility on Public Charge Grounds
(1999 Interim Field Guidance), issued by the former Immigration and
Naturalization Service (INS).\8\ Under
[[Page 41295]]
that approach, ``public charge'' has been interpreted to mean a person
who is ``primarily dependent on the Government for subsistence, as
demonstrated by either the receipt of public cash assistance for income
maintenance or institutionalization for long-term care at Government
expense.'' \9\ As a consequence, an alien's reliance on or receipt of
non-cash benefits such as the Supplemental Nutrition Assistance Program
(SNAP), or food stamps; Medicaid; and housing vouchers and other
housing subsidies are not currently considered by DHS in determining
whether an alien is deemed likely at any time to become a public
charge.
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\8\ See Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 FR 28689 (May 26, 1999). Due to a printing
error, the Federal Register version of the field guidance appears to
be dated ``March 26, 1999'' even though the guidance was actually
signed May 20, 1999, became effective May 21, 1999 and was published
in the Federal Register on May 26, 1999.
\9\ See Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 FR 28689, 28692 (May 26, 1999).
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DHS is revising its interpretation of ``public charge'' to
incorporate consideration of such benefits, and to better ensure that
aliens subject to the public charge inadmissibility ground are self-
sufficient, i.e., do not depend on public resources to meet their
needs, but rather rely on their own capabilities, as well as the
resources of family members, sponsors, and private organizations.\10\
This rule redefines the term ``public charge'' to mean an alien who
receives one or more designated public benefits for more than 12 months
in the aggregate within any 36-month period (such that, for instance,
receipt of two benefits in one month counts as two months). This rule
defines the term ``public benefit'' to include cash benefits for income
maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance
under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based
Rental Assistance, and certain other forms of subsidized housing. DHS
has tailored the rule to limit its effects in certain ways, such as for
active duty military members and their families, and children in
certain contexts.
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\10\ See 8 U.S.C. 1601(1), (2)(A).
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This rule also explains how DHS will interpret the minimum
statutory factors for determining whether ``in the opinion of'' \11\
the officer, the alien is likely at any time to become a public charge.
Specifically, the rule contains a list of negative and positive factors
that DHS will consider as part of this determination, and directs
officers to consider these factors in the totality of the alien's
circumstances. For instance, with respect to the statutory factor for
the alien's age, DHS would generally consider it to be a negative
factor if the alien is younger than 18 or older than 61, and a positive
factor if the alien is between the ages of 18 and 61. These positive or
negative factors operate as guidelines to help the officer determine
whether the alien is likely at any time to become a public charge,
i.e., is more likely than not at any time in the future to receive one
or more designated public benefits for more than 12 months in the
aggregate within any 36-month period. The rule also contains lists of
heavily weighted negative factors and heavily weighted positive
factors. For example, the rule includes a heavily weighted negative
factor for an alien who is not a full-time student and is authorized to
work, but is unable to demonstrate current employment, recent
employment history, or a reasonable prospect of future employment. DHS
believes that these circumstances should be accorded heavy negative
weight in a public charge inadmissibility determination because, as
discussed in the preamble to the NPRM and in the preamble to this final
rule, the presence of these circumstances suggests a greater likelihood
that the alien will become a public charge than other negative factors
suggest. The presence of a single positive or negative factor, or
heavily weighted negative or positive factor, will never, on its own,
create a presumption that an applicant is inadmissible as likely to
become a public charge or determine the outcome of the public charge
inadmissibility determination. Rather, a public charge inadmissibility
determination must be based on the totality of the circumstances
presented in an applicant's case.
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\11\ See INA section 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
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With respect to applications for adjustment of status in
particular, this rule also provides a more comprehensive evidentiary
framework under which U.S. Citizenship and Immigration Services (USCIS)
will consider public charge inadmissibility. Under this rule,
applicants for adjustment of status who are subject to the public
charge ground of inadmissibility must file a Declaration of Self-
Sufficiency (Form I-944) with their Application to Register Permanent
Residence or Adjust Status (Form I-485) to demonstrate they are not
likely to become a public charge. The Form I-944 only applies to
adjustment applicants and not applicants for admission at a port of
entry.
In addition, applicants required to submit Form I-864, Affidavit of
Support Under Section 213A of the INA, in accordance with section
212(a)(4)(C) or (D), must generally submit Form I-944 with the Form I-
485. Failure to submit each form, where required, may result in a
rejection or a denial of the Form I-485 without a prior issuance of a
Request for Evidence or Notice of Intent to Deny.\12\
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\12\ See 8 CFR 103.2(a)(7), (b)(8)(ii).
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This rule also revises DHS regulations governing the discretion of
the Secretary of Homeland Security (Secretary) to accept a public
charge bond under section 213 of the Act, 8 U.S.C. 1183, for those
seeking adjustment of status. Additionally, this rule contains
additional provisions that will render certain nonimmigrants ineligible
for extension of stay or change of status if she or he received one or
more public benefits for more than 12 months in the aggregate within
any 36-month period since obtaining the status he or she wishes to
extend or change.
Finally, DHS notes that the INA also contains a separate public
charge ground of deportability.\13\ This rule does not interpret or
change DHS's implementation of the public charge ground of
deportability.
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\13\ See INA section 237(a)(5), 8 U.S.C. 1227(a)(5).
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B. Legal Authority
DHS's authority for making public charge inadmissibility
determinations and related decisions is found in several statutory
provisions. Section 102 of the Homeland Security Act of 2002,\14\ 6
U.S.C. 112, and section 103 of the Act, 8 U.S.C. 1103, charge the
Secretary with the administration and enforcement of the immigration
and naturalization laws of the United States. In addition to
establishing the Secretary's general authority for the administration
and enforcement of immigration laws, section 103 of the Act, 8 U.S.C.
1103, enumerates various related authorities, including the Secretary's
authority to establish regulations and prescribe such forms of bond as
are necessary for carrying out such authority. Section 212 of the Act,
8 U.S.C. 1182, establishes classes of aliens that are ineligible for
visas, admission, or adjustment of status; paragraph (a)(4) of that
section establishes the public charge ground of inadmissibility,
including the minimum factors the Secretary must consider in making a
determination that an alien is likely to become a public charge.
Section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), also establishes the
enforceable affidavit of support requirement, as applicable, to certain
family-based and employment-based
[[Page 41296]]
immigrants, and exempts certain aliens from both the public charge
ground of inadmissibility and the affidavit of support requirement.
Section 213 of the Act, 8 U.S.C. 1183, provides the Secretary with
discretion to admit into the United States an alien who is determined
to be inadmissible as a public charge under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), but is otherwise admissible, upon the giving
of a proper and suitable bond. That section authorizes the Secretary to
establish the amount and conditions of such bond. Section 213A of the
Act, 8 U.S.C. 1183a, sets out requirements for the sponsor's affidavit
of support, including reimbursement of government expenses where the
sponsored alien received means-tested public benefits. Section 214 of
the Act, 8 U.S.C. 1184, addresses requirements for the admission of
nonimmigrants, including authorizing the Secretary to prescribe the
conditions of such admission through regulations and when necessary,
establish a bond to ensure that those admitted as nonimmigrants or who
change their nonimmigrant status under section 248 of the Act, 8 U.S.C.
1258, depart if they violate their nonimmigrant status or after such
status expires. Section 245 of the Act, 8 U.S.C. 1255, generally
establishes eligibility criteria for adjustment of status to lawful
permanent residence. Section 248 of the Act, 8 U.S.C. 1258, authorizes
the Secretary to prescribe conditions under which an alien may change
his or her status from one nonimmigrant classification to another. The
Secretary promulgates the changes in this rule under all of these
authorities.
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\14\ Public Law 107-296, 116 Stat. 2135, 2142-44 (Nov. 25,
2002).
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C. Summary of the Proposed Rule
On October 10, 2018, DHS published a Notice of Proposed Rulemaking
(NPRM) entitled Inadmissibility on Public Charge Grounds.\15\ The NPRM
identified the groups of individuals generally subject to, or exempt
from, the public charge inadmissibility ground. Further, DHS proposed
definitions for the terms ``public charge,'' ``likely at any time to
become a public charge,'' ``public benefit,'' and ``alien's
household.''
---------------------------------------------------------------------------
\15\ Inadmissibility on Public Charge Grounds, 83 FR 51114
(proposed Oct. 10, 2018).
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As part of the definition of public benefit, DHS proposed to
designate an exhaustive list of public benefits that would be
considered for purposes of a public charge inadmissibility
determination, as well as for purposes of extension of stay and change
of nonimmigrant status applications. DHS recognized that the universe
of public benefits is quite large, and that some benefits are more
commonly used, at greater taxpayer expense, than others. In seeking to
provide clear notice of the effects of the rule, and to limit certain
indirect costs that may be associated with the rule, DHS elected to
limit the number and types of non-cash public benefits that it would
designate. DHS therefore proposed to designate just a few means-tested
non-cash benefits related to food and nutrition, housing, and
healthcare, which bear directly on the recipient's self-sufficiency and
together account for significant federal expenditures on low-income
individuals. DHS's proposed list of public benefits included cash
benefits for income maintenance, institutionalization for long-term
care at government expense, SNAP, most forms of Medicaid, Premium and
Cost Sharing Subsidies for Medicare Part D (Medicare Part D LIS),
Section 8 Housing Assistance under the HCV Program, Section 8 Project-
Based Rental Assistance, and certain other forms of subsidized housing.
DHS also sought comment on the potential inclusion of other public
benefits programs. As noted below, this final rule designates each of
the above-referenced public benefits, except for institutionalization
for long-term care at government expense and Medicare Part D LIS. DHS
is not designating any additional programs.
DHS proposed to limit its consideration of an alien's receipt of
these designated public benefits in two main ways, each of which DHS
incorporated into the definition of public benefit. First, DHS proposed
to establish ``thresholds'' for the amount or duration of public
benefits that the alien must receive, before DHS will consider the
alien to have received a public benefit. In other words, DHS proposed
that it would not consider an alien's receipt of a given public benefit
at all, unless the alien received the benefit in an amount, or for a
duration, that met an applicable threshold. Specifically, DHS proposed
the following thresholds:
For public benefits that are ``monetizable'' (such as cash
benefits, SNAP, and housing vouchers and rental assistance), DHS
proposed a threshold of 15 percent of the Federal Poverty Guidelines
(FPG) for a household of one within a period of 12 consecutive months.
For public benefits that cannot be monetized (such as
Medicaid, Medicare Part D LIS, subsidized housing, and
institutionalization for long-term care at government expense), DHS
proposed a threshold of receipt during more than 12 months in the
aggregate within a 36-month period.
DHS also proposed a threshold to address circumstances
where an alien receives a combination of monetizable benefits equal to
or below the 15 percent threshold, together with one or more benefits
that cannot be monetized. In such cases, DHS proposed that the
threshold for duration of receipt of the non-monetizable benefits would
be more than 9 months in the aggregate within a 36-month period.
DHS expressly sought comment on these proposed thresholds,
including whether DHS should consider an alien's receipt of benefits
below any given threshold, as part of DHS's totality of the
circumstances determination. As noted below, this final rule adopts a
single threshold for all designated public benefits (including those
that were considered ``monetizable'' under the proposed rule): More
than 12 months in the aggregate within a 36-month period. And this
final rule authorizes officers to consider receipt of benefits below
that threshold, to the extent relevant in the totality of the
circumstances.
Second, DHS proposed to tailor its rule to limit its effects in
certain ways, for a range of reasons. For instance, DHS proposed to not
consider the receipt of public benefits by certain aliens who, at the
time of receipt, filing, or adjudication, are enlisted in the U.S.
Armed Forces, serving in active duty or in the Ready Reserve, or if
received by such an individual's spouse or children. DHS also proposed
to not consider emergency Medicaid or Medicaid received for services
provided under the Individuals with Disabilities Education Act (IDEA),
and to not consider any school-based benefits provided to individuals
who are at or below the maximum eligible age for secondary education,
as determined under State law. Lastly, DHS proposed to exempt from
consideration Medicaid benefits received by children of U.S. citizens
whose lawful admission for permanent residence and subsequent residence
in the custody of U.S. citizen parents will result automatically in the
child's acquisition of citizenship, or upon finalization of adoption in
the United States by the U.S. citizen parents (or upon meeting
eligibility criteria) or children entering the United States for the
prime purpose of attending a citizenship interview under the Child
Citizenship Act of 2000.\16\ As noted below, this final rule revises
these
[[Page 41297]]
provisions in certain ways, and also includes an additional provision
exempting Medicaid receipt by aliens under the age of 21 and pregnant
women (including women for 60 days after the last day of pregnancy).
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\16\ See Public Law 106-395, 114 Stat. 1631, 1631-33 (Oct. 30,
2000) (codified at INA 320(a)-(b), 8 U.S.C. 1431(a)-(b)).
---------------------------------------------------------------------------
In addition to proposing new definitions, DHS proposed a regulatory
framework for analyzing the aforementioned statutory factors that must
be considered for purposes of the public charge inadmissibility
determination. DHS also proposed to amend its existing regulations
addressing public charge bonds. In addition, DHS proposed to require
applicants seeking an extension of stay or change of nonimmigrant
status to demonstrate that they have not received and are not currently
receiving, nor are they likely to receive public benefits, as defined
in the regulation, for the duration of their stay. Again, as noted
below, this final rule revises these provisions in certain ways.
DHS received 266,077 comments on the proposed rule, the vast
majority of which opposed the rule. The preamble to this final rule
includes summaries of the significant issues raised by the comments,
and includes responsive explanations, and policy changes.
D. Summary of Changes in the Final Rule
Following careful consideration of public comments received and
relevant data provided by stakeholders, DHS has made several changes to
the regulatory text proposed in the NPRM.\17\ As discussed in detail
elsewhere in this preamble, the changes in this final rule include the
following:
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\17\ See Inadmissibility on Public Charge Grounds, 83 FR 51114
(proposed Oct. 10, 2018).
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1. Definitions
Definitions of ``Public Charge'' and ``Public Benefit.''
DHS has revised the definition of ``public charge'' and ``public
benefit'' to clarify the threshold of public benefit receipt that
renders an alien a public charge. As noted above, the proposed rule
defined a public charge as an alien who receives one or more public
benefits as defined in the proposed rule. The proposed rule
incorporated the threshold concept into the definition of public
benefit, and proposed different thresholds for ``monetizable'' and
``non-monetizable'' benefits. Following receipt of public comments
regarding a variety of issues, including the complexity of the proposed
standard for monetizing certain public benefits, DHS has revised the
definitions for public charge and public benefits, and will now
evaluate all benefits with a single duration-based standard (i.e., the
proposed standard for non-monetizable benefits). DHS has also
incorporated the single duration standard into the definition of
``public charge,'' rather than the definition of ``public benefit.''
Consequently, under this simplified duration standard, a public charge
is an alien who receives one or more public benefit for more than 12
months in the aggregate within any 36-month period (such that, for
instance, receipt of two public benefits in one month counts as two
months).
Consideration of Receipt of Public Benefits below the
Threshold, in the Totality of the Circumstances. Under the proposed
rule, DHS would not have considered the receipt of benefits below the
applicable threshold in the totality of the circumstances. As a
consequence, USCIS would have been unable to consider an alien's past
receipt of public benefits below the threshold at all, even if such
receipt was indicative, to some degree, of the alien's likelihood of
becoming a public charge at any time in the future. Under this final
rule, adjudicators will consider and give appropriate weight to past
receipt of public benefits below the single durational threshold
described above in the totality of the circumstances.\18\
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\18\ As stated in the Benefits Received Before Effective Date
and Previously Excluded Benefits section of this rule, DHS will not
apply this rule to benefits received before the effective date of
the rule, except for those benefits that would have been considered
under the 1999 Interim Field Guidance.
---------------------------------------------------------------------------
Receipt of Public Benefits. DHS has added a definition of
``receipt'' of public benefits, consistent with the explanation in the
proposed rule preamble. The new definition clarifies that an
application or certification for benefits does not constitute receipt,
although it may serve as evidence of the alien's likelihood of
receiving public benefits in the future. It also clarifies that when an
alien receives, applies for, or obtains a certification for public
benefits solely on behalf of another person, DHS does not consider the
alien to have received the benefit.
Likely at Any Time to Become a Public Charge. DHS has
amended the definition of ``likely at any time to become a public
charge'' to clarify that an alien is likely at any time to become a
public charge if the alien is more likely than not at any time in the
future to become a public charge, as determined based on the totality
of the alien's circumstances.
Primary Caregiver. DHS has included a new definition of
``primary caregiver'' to account for a new consideration in the
totality of the circumstances for aliens who may not be currently
employed or have employment history but are nonetheless contributing to
their households by caring for others. DHS defines primary caregiver as
an alien who is 18 years of age or older and has significant
responsibility for actively caring for and managing the well-being of a
child or an elderly, ill, or disabled person in the alien's household.
2. Public Benefits
Medicaid Received by Aliens Under Age 21 and Pregnant
Women. Following receipt of public comments addressing the nature of
the Medicaid benefit for children and pregnant women. DHS has revised
provisions under which DHS would have considered an alien's receipt of
Medicaid, regardless of the alien's age. For purposes of this final
rule, DHS has excluded consideration of the receipt of Medicaid by
aliens under the age of 21 and pregnant women during pregnancy and
during the 60-day period after pregnancy.
Medicare Part D Low-Income Subsidy. The NPRM's definition
for public benefit included Medicare Part D LIS. Following receipt of
public comment regarding the nature of the Medicare Part D LIS, which
is part of an overall benefit scheme that contains extensive work
requirements, DHS has decided to exclude an alien's receipt of such
subsidies from the public benefit definition for purposes of the public
charge inadmissibility determination.
Benefits Received by Military Servicemembers and their
Spouses and Children. The NPRM's definition for public benefit excluded
the consideration of public benefits received by an alien who at the
time of receipt of the public benefit, filing, or adjudication, is
enlisted in the U.S. Armed Forces, serving in the active duty or in the
Ready Reserve component of the U.S. Armed Forces, or is the spouse or
child of such servicemember. The NPRM did not make clear what
immigration benefit types this provision applies to. DHS has revised
the public benefit definition to clarify that this provision applies
with respect to applications for admission, adjustment of status, and
extension of stay or change of status.
Benefits Received while in a Status that is Exempt from
the Public Charge Ground of Inadmissibility. DHS has revised the public
benefit definition to clarify that DHS will not consider any public
benefits received by an alien during periods in which the alien was
present in the United States in a classification that is exempt from
the public charge ground of inadmissibility or for which the alien
received a waiver
[[Page 41298]]
of the public charge inadmissibility ground.
Public Benefits Received by Children Eligible for
Acquisition of Citizenship. DHS has revised the proposed definition of
public benefit that excluded from consideration Medicaid received by
children of U.S. citizens whose lawful admission for permanent
residence and subsequent residence in the legal and physical custody of
their U.S. citizen parent will result automatically in the child's
acquisition of citizenship, or whose lawful admission for permanent
residence will result automatically in the child's acquisition of
citizenship upon finalization of adoption in the United States by the
U.S. citizen parent(s) or, upon meeting other eligibility criteria as
required.\19\ DHS has changed this provision to clarify that public
benefits, as defined in the rule, do not include any public benefits
that were or will be received by such children.
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\19\ See Child Citizenship Act of 2000, Public Law 106-395, 114
Stat. 1631, 1631-33 (Oct. 30, 2000) (codified at section 320(a)-(b)
of the Act, 8 U.S.C. 1431(a)-(b)), in accordance with 8 CFR part
320.
---------------------------------------------------------------------------
Benefits Provided for Institutionalization. The NPRM's
definition of public benefit included benefits for long-term
institutionalization at government expense. Following receipt of public
comment regarding specific benefits considered to provide for
institutionalization, DHS has removed the reference to long-term
institutionalization within the definition of public benefit, as the
long-term institutionalization benefits that DHS has in the past
considered, and intends to consider under this rule, are already part
of the public benefit definition, i.e., Temporary Assistance for Needy
Families (TANF), Supplemental Security Income (SSI), and Medicaid.
3. Applicability to Nonimmigrants
``Likely to Receive'' Public Benefits and ``Currently
Receiving'' Public Benefits Condition. Following receipt of public
comments addressing the public benefit condition for nonimmigrants
seeking extension of stay or change of status, DHS has revised this
provision. Under the proposal, DHS would have considered whether such
an alien has received, is currently receiving, or is likely to receive
public benefits in excess of the designated thresholds since obtaining
the nonimmigrant status the alien seeks to attend or from which the
alien seeks to change. DHS has modified the provision by removing the
future-looking requirement. DHS will only consider whether the alien
has received designated benefits for more than 12 months in the
aggregate within a 36-month period since obtaining the nonimmigrant
status they wish to extend or change, up until the time of adjudication
of the extension of stay or change of status request.
Victim of Severe Form of Trafficking in Persons (T)
Nonimmigrants Exemption. DHS has revised several regulatory provisions
relating to individuals who have a pending application setting forth a
prima facie case for eligibility for T nonimmigrant status, or who are
present in the United States in valid T nonimmigrant status. In the
proposed rule, DHS provided that T nonimmigrants applying for
adjustment of status were subject to the public charge inadmissibility
ground and could request a waiver of inadmissibility. DHS has modified
the provisions with respect to T nonimmigrants to accurately reflect
changes codified by Congress in the Violence Against Women
Reauthorization Act of 2013 (VAWA 2013).\20\ DHS has revised the public
charge inadmissibility exemption provision proposed in the NPRM and
created new provisions to align these regulations with the changes to
the law made by VAWA 2013. T nonimmigrants applying for adjustment of
status will no longer need to submit a waiver of inadmissibility for
public charge purposes.
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\20\ See Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013).
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Victims of Criminal Activity (U) Nonimmigrants Exemption.
DHS has revised the regulatory provisions relating to the exemption
from public charge inadmissibility for individuals who have a pending
application for U nonimmigrant status, or who are granted U
nonimmigrant status, to align these regulations with the changes to the
law made by VAWA 2013. In the proposed rule, U nonimmigrant petitioners
or those granted U nonimmigrant status were exempted from the public
charge inadmissibility ground for purposes of U nonimmigrant status or
for purposes of adjustment of status under section 245(m) of the Act, 8
U.S.C. 1255(m). DHS has clarified that, in general, U visa petitioners
and those granted U nonimmigrant status are exempt from a public charge
inadmissibility determination in any future immigration benefit request
that requires a finding of admissibility, not only adjustment of status
under section 245(m) of the Act, 8 U.S.C. 1255(m).
VAWA 2013 Public Charge Exemptions and the Affidavit of
Support Requirement for Certain Employment-Based Petitions. DHS has
revised several regulatory provisions relating to T nonimmigrants, U
nonimmigrants, VAWA self-petitioners, and qualified aliens as described
in 8 U.S.C. 1641(c). The proposed rule was silent on the applicability
of section 212(a)(4)(D) of the INA, 8 U.S.C. 1182(a)(4)(D), which
requires an affidavit of support as described in section 213A of the
INA, 8 U.S.C. 1183a, for certain employment-based immigrant petitions.
DHS has modified the exemption provisions at 8 CFR 212.23(a) with
respect to T nonimmigrants, U nonimmigrants, VAWA self-petitions, and
certain qualified aliens to accurately reflect changes codified by
Congress in VAWA 2013.\21\ An alien who falls under one of the VAWA
2013 exemptions from public charge inadmissibility would not need to
demonstrate that he or she is not likely at any time to become a public
charge, but would need to submit a sufficient affidavit of support
described in 213A of the INA, 8 U.S.C. 1183a, if adjusting under an
employed-based category that requires one by statute.
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\21\ See Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013).
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4. Totality of the Circumstances Determination
The Alien is a Primary Caregiver for Household Member as a
Consideration in the Education and Skills Factor: DHS has added a
provision that would take into consideration whether an alien is a
primary caregiver of another in the alien's household, for example a
child or elderly relative. This factor is intended to take into
consideration difficult-to-monetize contributions by aliens who may
lack current employment or an employment history due to their full
time, unpaid care of household members.
Heavily Weighted Negative Factor for Receipt of Public
Benefits above the Threshold. Under the proposed rule, in conducting
the public charge inadmissibility determination, there were two
separate heavily weighted factors related to the receipt of public
benefits: (1) The alien is currently receiving or is currently
certified or approved to receive one or more public benefits and (2) an
alien has received one or more public benefits above the applicable
threshold within the 36-months immediately preceding the alien's
application for a visa, admission or adjustment of status. DHS has
consolidated these factors within one
[[Page 41299]]
heavily weighted negative factor. The factor will apply in cases where
the alien has received or has been certified or approved to receive one
or more public benefits for more than 12 months within any 36-month
period, beginning no earlier than 36 months prior to the alien's
application for admission or adjustment of status.
Heavily Weighted Positive Factor for Private Health
Insurance. In this final rule DHS added a new heavily weighted positive
factor for when the alien has private health insurance appropriate for
the expected period of admission, and for which the alien does not
receive subsidies in the form of premium tax credits (including advance
premium tax credits) under the ACA. This heavily weighted positive
factor is in addition to the positive factor that would apply in
circumstances where an alien has sufficient household assets and
resources (including health insurance not considered to be a public
benefit under 8 CFR 212.22(b)) to cover reasonably foreseeable medical
costs, including costs related to a medical condition that is likely to
require extensive medical treatment or institutionalization or that
will interfere with the alien's ability to provide care for himself or
herself, to attend school, or to work.
Evidence of the Alien's Health. In response to concerns
regarding the qualifications of USCIS adjudicators to evaluate the
alien's health, DHS has revised the rule to clarify that, if the alien
is required to undergo an immigration medical examination from a civil
surgeon or panel physician, DHS will generally defer to the immigration
medical examination report when assessing whether the alien is more
likely than not at any time in the future to become a public charge on
account of a diagnosed medical condition unless there is evidence that
the report is incomplete. DHS, however, continues to permit the use of
other documentation regarding the alien's medical conditions, as
proposed in the NPRM, to assess whether the alien's health makes the
alien more likely than not to become a public charge at any time in the
future.
Household Assets. DHS has revised the rule to clarify that
DHS considers an alien's ownership of significant assets similar to the
standards in the affidavit of support regulations under 8 CFR
213a.2(c)(2)(iii)(B).
Household Income and Servicemembers of the Armed Forces.
DHS has revised the rule to clarify that if the applicant is on active
duty, other than training, in the Armed Forces of the United States,
the applicant's gross household income may be 100 percent of the most
recent FPG for the alien's household size, and not 125 percent of the
FPG for the alien's household size, as proposed in the NPRM, in order
to serve as a positive factor in the public charge inadmissibility
determination.
Household Income and Public Benefits. DHS has revised the
rule to clarify that the applicant's gross household income does not
include any household income from public benefits, as defined in this
rule.
Household Income from Illegal Activities. DHS has revised
the rule to clarify that household income from illegal activity or
sources will not be considered as part of the income, assets, or
resources factor in the public charge inadmissibility determination.
DHS has also consolidated the consideration of income from sources
other than household members into a single provision.
Household Income and Evidentiary Considerations. DHS
amended the rule to clarify that when assessing the alien's annual
gross household income, DHS considers the most recent federal tax-year
transcripts from the United States Internal Revenue Service (IRS) for
each household member whose income will be considered. Additionally,
DHS also clarified that if the most recent tax-year transcripts from
the IRS are unavailable, DHS will consider other credible and probative
evidence of the household member's income, including an explanation why
the evidence is not available.
Fee Waivers and Categories Excluded from Public Charge.
DHS has revised the rule to state that a fee waiver request or receipt
would not be considered for purposes of determining public charge
inadmissibility if the fee waiver was applied for, or granted, as part
of an application for which a public charge inadmissibility
determination was not required.
Public Benefit Disenrollment and Eligibility. DHS has
clarified in the rule how USCIS will consider past public benefits
receipt, in the totality of the circumstances. USCIS will consider
whether an alien has disenrolled or requested to be disenrolled from
the public benefit(s). USCIS will also consider, as part of the
totality of the circumstances, any evidence that the alien submits from
a Federal, State, local, or tribal agency administering a public
benefit, that the alien has specifically identified as showing that the
alien does not qualify or would not qualify for such public benefit by
virtue of, for instance, the alien's annual gross household income or
prospective immigration status, or length of stay. While an alien's
prospective ineligibility for a given benefit would not be outcome-
determinative, USCIS will consider the information in the totality of
the circumstances.
Education and Skills. To clarify additional types of
documentation that establish a steady employment history, DHS has
revised the evidentiary considerations for the education and skills
factor, to require that applicants submit, with their adjustment of
status applications, federal tax return transcripts for the previous
three years or, if such transcripts are unavailable, other credible and
probative evidence, including an explanation of the unavailability of
such transcripts.
5. Public Charge Bond for Adjustment of Status Applicants
Breach of Bonds and Threshold of Public Benefit Receipt.
In the NPRM, DHS proposed that a public charge bond is considered
breached if the bonded alien had used public benefits in the amount or
for the duration established as the threshold in the proposed public
benefits definition. In this final rule, DHS has modified the threshold
to a single duration-based threshold and has moved that threshold from
the proposed public benefits definition into the public charge
definition. To ensure that the bond breach conditions remain the same
in this final rule, DHS has revised the rule, and incorporated the
single duration threshold ``for more than 12 months in the aggregate
within any 36-month period (such that, for instance, receipt of two
benefits in one month counts as two months)'' in the bond breach
determination.
Substitution. DHS has revised proposed 8 CFR 213.1 to
indicate that DHS will only offer public charge bonds of unlimited
duration. Correspondingly, DHS has removed text that references bonds
of limited durations or provisions that addressed the substitution of a
bond of limited duration. DHS has retained, however, the general bond
substitution provision.
Cancellation on the basis of Permanent Departure from the
United States. DHS has clarified that an alien is only considered to
have voluntarily lost lawful permanent resident status for the purposes
of bond cancellation based on a permanent departure when the alien has
submitted a record of abandonment of lawful permanent resident status
on the form prescribed by DHS and in accordance with the form's
instructions, while the alien is outside of the United States.
Discretionary Cancellation. DHS has added language to this
final rule to clarify that DHS retains discretion to cancel a public
charge bond,
[[Page 41300]]
notwithstanding an absence of a written request from the obligor or
alien, if DHS determines that an alien otherwise meets the applicable
eligibility requirements.
Bond Amount. In response to public comment, DHS has
revised proposed 8 CFR 213.1 to reduce the minimum amount in which a
public charge bond may be offered to $8,100, annually adjusted for
inflation based on the Consumer Price Index for All Urban Consumers
(CPI-U), and rounded up to the nearest dollar.
Bond Breach and Public Benefits Received while in a Status
that is Exempt from the Public Charge Ground of Inadmissibility. DHS
has revised this rule to clarify that DHS will not consider, as part of
a public charge bond breach determination, any public benefits received
by an alien during periods for which the alien received a waiver of the
public charge inadmissibility ground. In the NPRM, DHS had already
proposed that public benefits received while in a public charge exempt
status following the initial grant of status as a lawful permanent
resident, and any public benefits received after the alien obtained
U.S. citizenship, would not be counted towards the bond breach
determination. These exemptions remain unchanged in this final rule.
6. Other Changes
Prospective Application of the Rule. DHS clarified in 8
CFR 212.20, 214.1, and 248.1 that this final rule applies prospectively
to applications and petitions postmarked (or, if applicable, submitted
electronically) on or after the effective date. (DHS retained and
further refined provisions addressing how it will consider receipt of
public benefits before the effective date of this rule.)
Technical Changes. DHS has also made miscellaneous
technical edits to reduce redundancy and improve readability and
clarity.
Changes to Form I-539A. DHS has made non-substantive
changes to Supplemental Information for Application to Extend/Change
Nonimmigrant Status (Form I-539A), which collects biographical
information about derivative beneficiaries named on an applicant's
Application to Extend/Change Nonimmigrant Status (Form I-539). Form I-
539A was published as a new form on March 8, 2019, to replace
Supplement A of Form I-539. In light of the creation of Form I-539A,
DHS has moved the information collection regarding public benefits
received by the derivative beneficiaries from Form I-539 to Form I-
539A. Each derivative beneficiary of a Form I-539 will need to complete
a separate Form I-539A, and provide information regarding the
derivative beneficiary's applications for, or receipt of, public
benefits, except where the nonimmigrant classification that the
derivative beneficiary seeks to extend, or to which the alien seeks to
change, is exempted from the public charge ground of inadmissibility.
E. Summary of Costs and Benefits
This rule will impose new costs on the population applying to
adjust status using Form I-485 that are subject to the public charge
ground of inadmissibility. DHS will now require any adjustment
applicants subject to the public charge ground of inadmissibility and
who are applying for adjustment of status on or after the effective
date of this final rule to submit a Form I-944 with their Form I-485 to
demonstrate they are not likely to become a public charge. Failure to
submit the form, where required, may result in a rejection or a denial
of the Form I-485 without a prior issuance of a Request for Evidence or
Notice of Intent to Deny.\22\ Additionally, the associated time burden
estimate for completing Form I-485 will increase.
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\22\ See 8 CFR 103.2(a)(7), (b)(8)(ii).
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The rule will also impose additional costs for those seeking
extension of stay or change of status by filing a Petition for a
Nonimmigrant Worker (Form I-129); Petition for a CNMI-Only Nonimmigrant
Transitional Worker (Form I-129CW); or Form I-539 and Form I-539A, as
applicable. The associated time burden estimate for completing these
forms will increase because these applicants will be required to
demonstrate that they have not received, since obtaining the
nonimmigrant status that they seek to extend or from which they seek to
change, and through the adjudication, public benefits as described in
final 8 CFR 212.21(b) for more than 12 months in the aggregate within
any 36-month period (such that, for instance, receipt of two benefits
in one month counts as two months). Moreover, the rule will impose new
costs associated with the new public charge bond process, including new
costs for completing and filing a Public Charge Bond (Form I-945), and
Request for Cancellation of Public Charge Bond (Form I-356).
DHS estimates that the additional total cost of the rule will be
approximately $35,202,698 annually. This cost includes the population
applying to adjust status who are also required to file Form I-944, the
opportunity costs of time associated with such filings, as well the
increased time burden estimates for completing Forms I-485, I-129, I-
129CW, and I-539, and for requesting or cancelling a public charge bond
using Form I-945 and Form I-356, respectively.
Over the first 10 years of implementation, DHS estimates the total
quantified new direct costs of the final rule will be about
$352,026,980 (undiscounted). In addition, DHS estimates that the 10-
year discounted total direct costs of this final rule will be about
$300,286,154 at a 3 percent discount rate and about $247,249,020 at a 7
percent discount rate.
Simultaneously, DHS is eliminating the use and consideration of the
Request for Exemption for Intending Immigrant's Affidavit of Support
(Form I-864W), currently applicable to certain classes of aliens. In
lieu of Form I-864W, the alien will indicate eligibility for the
exemption of the affidavit of support requirement on Form I-485.
The final rule will also potentially impose new costs on obligors
(individuals or companies) if an alien has been determined to be likely
at any time in the future to become a public charge and will be
permitted to submit a public charge bond, for which USCIS will use the
new Form I-945. DHS estimates the total cost to file Form I-945 will
be, at minimum, about $34,166 annually.\23\
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\23\ Calculation: $35.59 (cost per obligor to file Form I-945) *
960 (estimated annual population who would file Form I-945) =
$34,166.40 = $34,166 (rounded) annual total cost to file Form I-945.
---------------------------------------------------------------------------
Moreover, the final rule will potentially impose new costs on
aliens or obligors who submit Form I-356 as part of a request to cancel
the public charge bond. DHS estimates the total cost to file Form I-356
would be approximately $824 annually.\24\
---------------------------------------------------------------------------
\24\ Calculation: $33.00 (cost per obligor to file Form I-356) *
25 (estimated annual population who would file Form I-356) = $825.00
annual total cost to file Form I-356.
---------------------------------------------------------------------------
The final rule will also result in a reduction in transfer payments
from the Federal Government to individuals who may choose to disenroll
from or forego enrollment in a public benefits program. Individuals who
might choose to disenroll from or forego future enrollment in a public
benefits program include foreign-born non-citizens, as well as U.S.
citizens who are members of mixed-status households,\25\ who may
otherwise be eligible for public benefits. DHS estimates that the total
reduction in transfer payments from the Federal and State governments
will be
[[Page 41301]]
approximately $2.47 billion annually due to disenrollment or foregone
enrollment in public benefits programs by foreign-born non-citizens who
may be receiving public benefits. DHS estimates that the 10-year
discounted federal and state transfer payments reduction of this final
rule will be approximately $21.0 billion at a 3 percent discount rate
and about $17.3 billion at a 7 percent discount rate. However, DHS
notes there may be additional reductions in transfer payments that we
are unable to quantify.
---------------------------------------------------------------------------
\25\ DHS uses the term ``foreign-born non-citizen'' since it is
the term the Census Bureau uses. DHS generally interprets this term
to mean alien in this analysis. In addition, DHS notes that the
Census Bureau publishes much of the data used in this analysis.
---------------------------------------------------------------------------
There also may be additional reductions in transfer payments from
states to individuals who may choose to disenroll from or forego
enrollment in public benefits program. For example, the Federal
Government funds all SNAP food expenses, but only 50 percent of
allowable administrative costs for regular operating expenses.\26\
Similarly, Federal Medical Assistance Percentages (FMAP) in some U.S.
Department of Health and Human Services (HHS) programs, like Medicaid,
can vary from between 50 percent to an enhanced rate of 100 percent in
some cases.\27\ Since the state share of federal financial
participation (FFP) varies from state to state, DHS uses the average
FMAP across all states and U.S. territories of 59 percent to estimate
the amount of state transfer payments. Therefore, the 10-year
undiscounted amount of state transfer payments of the provisions of
this final rule is about $1.01 billion annually. The 10-year discounted
amount of state transfer payments of the provisions of this final rule
would be approximately $8.63 billion at a 3 percent discount rate, and
about $7.12 billion at a 7 percent discount rate. Finally, DHS
recognizes that reductions in federal and state transfers under federal
benefit programs may have impacts on state and local economies, large
and small businesses, and individuals. For example, the rule might
result in reduced revenues for healthcare providers participating in
Medicaid, companies that manufacture medical supplies or
pharmaceuticals, grocery retailers participating in SNAP, agricultural
producers who grow foods that are eligible for purchase using SNAP
benefits, or landlords participating in federally funded housing
programs.
---------------------------------------------------------------------------
\26\ Per section 16(a) of the Food and Nutrition Act of 2008,
Public Law 110-234, tit. IV, 122 Stat. 923, 1092 (May 22, 2008)
(codified as amended at 7 U.S.C. 2025). See also USDA, FNS Handbook
901, at p. 41 (2017). Available at: https://fns-prod.azureedge.net/sites/default/files/apd/FNS_HB901_v2.2_internet_Ready_Format.pdf,
(last visited July 26, 2019).
\27\ See Dep't of Health and Human Servs. Notice, Federal
Financial Participation in State Assistance Expenditures; Federal
Matching Shares for Medicaid, the Children's Health Insurance
Program, and Aid to Needy Aged, Blind, or Disabled Persons for
October 1, 2016 through September 30, 2017, 80 FR 73779 (Nov. 25,
2015).
---------------------------------------------------------------------------
Additionally, the final rule will have new direct and indirect
impacts on various entities and individuals associated with regulatory
familiarization with the provisions of the rule. Familiarization costs
involve the time spent reading the details of a rule to understand its
changes. A foreign-born non-citizen (such as those contemplating
disenrollment or foregoing enrollment in a public benefits program)
might review the rule to determine whether he or she is subject to the
provisions of the final rule and may incur familiarization costs. To
the extent that an individual or entity directly regulated by the rule
incurs familiarization costs, those familiarization costs are a direct
cost of the rule. In addition to those individuals or entities the rule
directly regulates, a wide variety of other entities would likely
choose to read and understand the rule and, therefore, would incur
familiarization costs. For example, immigration lawyers, immigration
advocacy groups, health care providers of all types, non-profit
organizations, non-governmental organizations, and religious
organizations, among others, may need or want to become familiar with
the provisions of this final rule. DHS believes such non-profit
organizations and other advocacy groups might choose to read the rule
to provide information to those foreign-born non-citizens that might be
affected by a reduction in federal and state transfer payments.
Familiarization costs incurred by those not directly regulated are
indirect costs.
DHS estimates the time that would be necessary to read this final
rule would be approximately 16 to 20 hours per person depending on an
individual's average reading speed and level of review, resulting in
opportunity costs of time. An entity, such as a non-profit or advocacy
group, may have more than one person that reads the rule. Using the
average total rate of compensation as $36.47 per hour for all
occupations, DHS estimates that the opportunity cost of time will range
from about $583.52 to $729.40 per individual who must read and review
the final rule.
The final rule will produce some quantified benefits due to the
regulatory changes DHS is making. The final rule will produce some
benefits for T nonimmigrants applying for adjustment of status based on
their T nonimmigrant status, as this population will no longer need to
submit Application for Waiver of Grounds of Inadmissibility (Form I-
601) seeking a waiver of the public charge ground of inadmissibility.
DHS estimates the total benefit for this population is $15,176
annually.\28\
---------------------------------------------------------------------------
\28\ Calculation: $14,880 (Filing fees for Form I-601) + $296.48
(Opportunity cost of time for Form I-601) = $15,176.48 = $15,176
(rounded) total current estimated annual cost for filing T
nonimmigrants filing Form I-601 seeking a waiver of grounds of
inadmissibility. Therefore, the estimated total benefits of the
final rule for T nonimmigrants applying for adjustment of status
using Form I-601 seeking a waiver on grounds of inadmissibility will
equal the current cost to file Form I-601 for this population.
---------------------------------------------------------------------------
The primary benefit of the final rule would be to better ensure
that aliens who are admitted to the United States, seek extension of
stay or change of status, or apply for adjustment of status will be
self-sufficient, i.e., will rely on their own financial resources, as
well as the financial resources of the family, sponsors, and private
organizations.\29\ DHS also anticipates that the final rule will
produce some benefits from the elimination of Form I-864W. The
elimination of this form will potentially reduce the number of forms
USCIS would have to process. DHS estimates the amount of cost savings
that will accrue from eliminating Form I-864W would be about $36.47 per
petitioner.\30\ However, DHS is unable to determine the annual number
of filings of Form I-864W and, therefore, currently is unable to
estimate the total annual cost savings of this change. Additionally, a
public charge bond process will also provide benefits to applicants as
they potentially will be given the opportunity for adjustment if
otherwise admissible, at the discretion of DHS, after a determination
that he or she is likely to become a public charge.
---------------------------------------------------------------------------
\29\ See 8 U.S.C. 1601(1), (2)(A).
\30\ Calculation of savings from opportunity cost of time for no
longer having to complete and submit Form I-864W: ($36.47 per hour *
1.0 hours) = $36.47.
---------------------------------------------------------------------------
Table 1 provides a more detailed summary of the final provisions
and their impacts.
[[Page 41302]]
Table 1--Summary of Major Provisions and Economic Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
Provision Purpose Expected impact of final rule
----------------------------------------------------------------------------------------------------------------
Revising 8 CFR 212.18. Application for To clarify that T Quantitative:
Waivers of Inadmissibility in nonimmigrants seeking Benefits:
connection with an application for adjustment of status are not Benefits of $15,176 annually to
adjustment of status by T subject to public charge T nonimmigrants applying for adjustment
nonimmigrant status holders. ground of inadmissibility. of status who will no longer need to
Revising 8 CFR 245.23. Adjustment of submit Form I-601 seeking a waiver on
aliens in T nonimmigrant public charge grounds of
classification. inadmissibility.
Costs:
None.
----------------------------------------------------------------------------------------------------------------
Adding 8 CFR 212.20. Purpose and To define the categories of Quantitative:
applicability of public charge aliens that are subject to Benefits:
inadmissibility. the public charge Benefits of $36.47 per
Adding 8 CFR 212.21. Definitions...... determination. applicant from no longer having to
Adding 8 CFR 212.22. Public charge To establish key definitions, complete and file Form I-864W.
determination. including ``public charge,'' Costs:
``public benefit,'' ``likely DHS anticipates a likely
to become a public charge,'' increase in the number of denials for
``household,'' and ``receipt adjustment of status applicants based
of public benefits.''. on public charge inadmissibility
Clarifies that evaluating determinations due to formalizing and
public charge is a standardizing the criteria and process
prospective determination for inadmissibility determinations.
based on the totality of the Quantitative:
circumstances.. Benefits:
Outlines minimum and Better ensure that aliens who
additional factors considered are seeking admission to the United
when evaluating whether an States or apply for adjustment of
alien immigrant is status are self-sufficient through an
inadmissible based on the improved review process of the
public charge ground. mandatory statutory factors.
Positive and negative factors
are weighed to determine an
individual's likelihood of
becoming a public charge at
any time in the future..
Adding 8 CFR 212.23. Exemptions and Outlines exemptions and
waivers for public charge ground of waivers for inadmissibility
inadmissibility. based on the public charge
ground.
----------------------------------------------------------------------------------------------------------------
Adding 8 CFR 214.1(a)(3)(iv) and To provide, with limited Quantitative:
amending 8 CFR 214.1(c)(4)(iv). exceptions, that an Costs:
Nonimmigrant general requirements. application for extension of $6.1 million annually for an
Amending 8 CFR 248.1(a) and adding 8 stay or change of increased time burden for completing
CFR 248.1(c)(4). Change of nonimmigrant status will be and filing Form I-129;
nonimmigrant classification denied unless the applicant $0.12 million annually for an
eligibility. demonstrates that he or she increased time burden for completing
has not received public and filing Form I-129CW;
benefits since obtaining the $2.4 million annually for an
nonimmigrant status that he increased time burden for completing
or she is seeking to extend and filing Form I-539.
or change, as defined in Quantitative:
final 8 CFR 212.21(b), for 12 Benefits:
months, in the aggregate, Better ensures that aliens who
within a 36 month period. are seeking to extend or change to a
status that is not exempt from the
section 212(a)(4) inadmissibility
ground who apply for extension of stay
or change of status continue to be self-
sufficient during the duration of their
nonimmigrant stay.
----------------------------------------------------------------------------------------------------------------
Amending 8 CFR 245. Adjustment of To outline requirements that Quantitative:
status to that of person admitted for aliens submit a declaration Direct Costs:
lawful permanent residence. of self-sufficiency on the Total annual direct costs of
form designated by DHS and the final rule will range from about
any other evidence requested $45.5 to $131.2 million, including:
by DHS in the public charge $25.8 million to applicants who
inadmissibility determination. must file Form I-944;
$0.69 million to applicants
applying to adjust status using Form I-
485 with an increased time burden;
$0.34 million to public
charge bond obligors for filing Form
I-945; and
$823.50 to filers for filing
Form I-356.
Total costs over a 10-year
period will range from:
$352.0 million for
undiscounted costs;
$300.1 million at a 3
percent discount rate; and
$247.2 million at a 7
percent discount rate.
Transfer Payments
Total annual transfer payments
of the final rule would be about $2.47
billion from foreign-born non-citizens
and their households who disenroll from
or forego enrollment in public benefits
programs. The federal-level share of
annual transfer payments will be about
$1.46 billion and the state-level share
of annual transfer payments will be
about $1.01 billion.
[[Page 41303]]
Total transfer payments over a
10-year period, including the combined
federal- and state-level shares, will
be:
$24.7 billion for
undiscounted costs;
$21.0 billion at a 3 percent
discount rate; and
$17.3 billion at a 7 percent
discount rate.
Quantitative:
Benefits:
Potential to make USCIS' in the
review of public charge inadmissibility
more effective.
Costs:
DHS anticipates a likely
increase in the number of denials for
adjustment of status applicants based
on public charge inadmissibility
determinations due to formalizing and
standardizing the criteria and process
for public charge determination.
Costs to various entities and
individuals associated with regulatory
familiarization with the provisions of
the final rule. Costs will include the
opportunity cost of time to read the
final rule and subsequently determine
applicability of the final rule's
provisions. DHS estimates that the time
to read this final rule in its entirety
would be 16 to 20 hours per individual.
DHS estimates that the opportunity cost
of time will range from about $583.52
to $729.40 per individual who must read
and review the final rule. However, DHS
cannot determine the number of
individuals who will read the final
rule.
----------------------------------------------------------------------------------------------------------------
Public Charge Bond Provisions
----------------------------------------------------------------------------------------------------------------
Amending 8 CFR 103.6. Public charge To set forth the Secretary's Quantitative:
bonds. discretion to approve bonds, Costs:
cancellation, bond schedules, $34,166 annually to obligors
and breach of bond, and to for submitting Public Charge Bond (Form
move principles governing I-945); and
public charge bonds to final $823.50 annually to filers for
8 CFR 213.1. submitting Request for Cancellation of
Public Charge Bond (Form I-356).
Amending 8 CFR 103.7. Fees............ To add fees for new Form I- Fees paid to bond companies to
945, Public Charge Bond, and secure public charge bonds. Fees could
Form I-356, Request for range from 1-15 percent of the public
Cancellation of Public Charge charge bond amount based on an
Amending 8 CFR 213.1. Admission or Bond. individual's credit score.
adjustment of status of aliens on In 8 CFR 213.1, to add Quantitative:
giving of a public charge bond. specifics to the public Benefits:
charge bond provision for Potentially enable an alien who
aliens who are seeking was found inadmissible only on the
adjustment of status, public charge ground to adjust his or
including the discretionary her status by posting a public charge
availability and the minimum bond with DHS.
amount required for a public
charge bond.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
DHS has prepared a full analysis of this rule according to
Executive Orders (E.O.) 12866 and 13563. This analysis can be found in
the docket for this rulemaking or by searching for RIN 1615-AA22 on
www.regulations.gov.
II. Background
A. Public Charge Inadmissibility and Public Charge Bonds
Under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), an alien
who is an applicant for a visa, admission, or adjustment of status is
inadmissible if he or she is likely at any time to become a public
charge. The public charge ground of inadmissibility, therefore, applies
to any alien applying for a visa to come to the United States
temporarily or permanently, for admission, or for adjustment of status
to that of a lawful permanent resident.\31\ Section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4) does not directly apply to nonimmigrants
seeking extension of stay or change of status,\32\ because extension of
stay and change of status applications are not applications for a visa,
admission, or adjustment of status.
---------------------------------------------------------------------------
\31\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\32\ See INA section 214 and 248, 8 U.S.C. 1184 and 1258.
---------------------------------------------------------------------------
The INA does not define ``public charge.'' It does specify that
when determining if an alien is likely at any time to become a public
charge, consular officers and immigration officers must consider the
alien's age; health; family status; assets, resources, and financial
status; and education and skills, at a minimum.\33\ Some immigrant and
nonimmigrant categories are exempt from the public charge
inadmissibility ground and other applicants may apply for a waiver of
the public charge inadmissibility ground.\34\
---------------------------------------------------------------------------
\33\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
\34\ See proposed 8 CFR 212.23.
---------------------------------------------------------------------------
Additionally, section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4),
permits the consular officer, immigration officer, or an immigration
judge to consider any affidavit of support submitted under section 213A
of the Act, 8 U.S.C. 1183a, on the applicant's behalf when determining
whether the applicant may become a public charge.\35\ In fact, with
[[Page 41304]]
very limited exceptions, aliens seeking family-based immigrant visas
and adjustment of status, and a limited number of employment-based
immigrant visas and adjustment of status, must have a sufficient
affidavit of support or will be found inadmissible as likely to become
a public charge.\36\
---------------------------------------------------------------------------
\35\ See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii). When required, the applicant must submit an
Affidavit of Support Under Section 213A of the INA (Form I-864).
\36\ See INA section 212(a)(4)(C), (D), 8 U.S.C. 1182(a)(4)(C),
(D). A sufficient affidavit of support is one in which the sponsor
has demonstrated that he or she has enough income and/or assets to
maintain the sponsored alien and the rest of the sponsor's household
at 125% of the FPG for that household size (or at 100 percent of the
FPG if the sponsor is active duty in the U.S. Armed Forces or U.S.
Coast Guard).
---------------------------------------------------------------------------
In general, if DHS has determined that an alien is inadmissible
based on public charge, but is otherwise admissible, DHS may admit the
alien at DHS's discretion upon the alien posting a suitable and proper
bond as determined by DHS.\37\ The purpose of issuing a public charge
bond is to ensure that the alien will not become a public charge in the
future.\38\
---------------------------------------------------------------------------
\37\ See INA section 213, 8 U.S.C. 1183; see also 8 CFR 103.6; 8
CFR 213.1.
\38\ Matter of Viado, 19 I&N Dec. 252, 253 (BIA 1985).
---------------------------------------------------------------------------
B. Current Public Charge Standards
As discussed in the NPRM,\39\ DHS currently makes public charge
determinations in accordance with the 1999 Interim Field Guidance.\40\
This guidance explains how the agency determines if a person is likely
at any time to become a public charge under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a), for admission and adjustment of status purposes,
and whether a person has become a public charge within five years of
entry from causes not affirmatively shown to have arisen since entry,
and therefore deportable under section 237(a)(5) of the Act, 8 U.S.C.
1227(a)(5).\41\ On May 26, 1999, INS issued a proposed rule that would
have codified these policies in regulation. Ultimately, however, INS
did not publish a final rule conclusively addressing these issues.\42\
DOS also issued a cable to its consular officers at that time,
implementing similar guidance for visa adjudications, and its Foreign
Affairs Manual (FAM) was similarly updated.\43\ USCIS has continued to
follow the 1999 Interim Field Guidance in its adjudications, and DOS
has continued following the public charge guidance set forth in the
FAM.\44\
---------------------------------------------------------------------------
\39\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51133 (proposed Oct. 10, 2018).
\40\ See 64 FR 28689 (May 26, 1999).
\41\ See 64 FR 28689 (May 26, 1999). In addition to the 1999
Interim Field Guidance, INS proposed promulgating these policies
through rulemaking, which was never concluded. See Inadmissibility
and Deportability on Public Charge Grounds, 64 FR 28676 (proposed
May 26, 1999).
\42\ See Inadmissibility and Deportability on Public Charge
Grounds, 64 FR 28676 (proposed May 26, 1999).
\43\ See Inadmissibility and Deportability on Public Charge
Grounds, 64 FR 28676, 28680 (proposed May 26, 1999).
\44\ See Children's Health Insurance Program Reauthorization Act
of 2009, Public Law 111-3, sec. 214, 123 Stat. 8, 56 (Feb. 4, 2009);
9 FAM 302.8-2(B)(2), Determining ``Totality of Circumstances,'' (g)
Public Charge Bonds, https://fam.state.gov/fam/09fam/09fam030208.html (last visited July 26, 2019). Note, on July 10,
2018, DOS amended 9 FAM 302.8.
---------------------------------------------------------------------------
In the 1999 Interim Field Guidance, public charge is defined to
mean an alien who is likely to become primarily dependent \45\ on the
government for subsistence, as demonstrated by either:
---------------------------------------------------------------------------
\45\ Former INS defined ``primarily dependent'' as ``the
majority'' or ``more than 50 percent.''
---------------------------------------------------------------------------
Receipt of public cash assistance for income maintenance;
or
Institutionalization for long-term care at government
expense.
Under the 1999 Interim Field Guidance, DHS did not consider receipt
of non-cash, supplemental and certain limited cash, and special purpose
benefits. Similarly, DHS did not consider institutionalization for
short periods of rehabilitation because it does not constitute primary
dependence.\46\ As discussed in the NPRM, the use of public charge
bonds has decreased since the introduction of enforceable affidavits of
support in section 213A of the Act, 8 U.S.C. 1183a.\47\
---------------------------------------------------------------------------
\46\ Similar to DHS, DOS has been making public charge
inadmissibility determinations using the same legal framework, as
reflected in the FAM. See 9 FAM 302.8, Public Charge--INA 212(a)(4),
https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited July
26, 2019).
\47\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51219 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
C. Final Rule
Following careful consideration of public comments received, DHS
has made modifications to the regulatory text proposed in the NPRM, as
described above. The rationale for the proposed rule and the reasoning
provided in the background section of that rule remain valid, except as
described in this regulatory preamble. Section III of this preamble
includes a detailed summary and analysis of the public comments.
Comments may be reviewed at the Federal Docket Management System (FDMS)
at http://www.regulations.gov, docket number USCIS-2010-0012.
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
On October 10, 2018, DHS, USCIS published a proposed rule in docket
USCIS-2010-0012. The comment period associated with the proposed rule
closed at the end of December 10, 2018. DHS received a total of 266,077
public comment submissions in Docket USCIS-2010-0012 in response to the
proposed rule. The majority of comment submissions were from individual
or anonymous commenters. Other commenters included healthcare
providers; research institutes and universities; law firms and
individual attorneys; federal, state, local, and tribal elected
officials; State and local government agencies; religious and community
organizations; advocacy groups; unions; Federal Government officials;
and trade and business organizations. While some commenters provided
support for the rule, the vast majority of commenters opposed the rule.
B. Requests To Extend Comment Period
Comment: Some commenters requested that DHS extend the comment
period. An individual commenter said the 60-day comment period is not
enough time for such a drastic policy and asserted it would be unfair
to American people to proceed with the proposed changes. Another
individual commenter asked USCIS to extend the notice and comment
period for an additional 90 days. A commenter wrote that the 60-day
comment period provided inadequate time for its members to meaningfully
comment on the proposed rule, and requested a further 60-day extension.
Another commenter urged that DHS consider extending the notice and
comment period for the docket until all interested individuals have the
opportunity to provide input. The commenter said it is standard
practice for an agency to extend a notice and comment period when
circumstance suggest that additional input may be beneficial.
Response: DHS believes that the 60-day comment period provided an
adequate opportunity for public input, and declines to extend the
comment period. The Administrative Procedure Act (APA) is silent
regarding the duration of the public comment period, and does not
establish a minimum duration.\48\ However, the 60-day comment period is
in line with E.O. 12866, which encourages agencies to provide at least
60 days for the public
[[Page 41305]]
to comment on economically significant rules. The sufficiency of the
60-day comment period provided in this rule is supported by the over
266,000 public comments received. The public, including attorneys;
federal, state, local, and tribal elected officials; and advocacy
organizations provided a great number of detailed and informative
comments. In addition, DHS notes that the proposed rule had been listed
in the publicly available Unified Agenda of Federal Regulatory and
Deregulatory Actions since the Fall 2017 publication. Given the
quantity and quality of comments received in response to the proposed
rule, and other publicly available information regarding the rule, DHS
believes that the 60-day comment period has been sufficient.
---------------------------------------------------------------------------
\48\ See 5 U.S.C. 553(c).
---------------------------------------------------------------------------
C. Comments Expressing General Support for the NPRM
Comment: Many commenters stated that immigrants should be self-
sufficient. Many commenters stated that aliens should not be permitted
to accept government benefits or depend on U.S. taxpayer money to
support themselves if they want to obtain green cards. Commenters
stated that immigrants should be productive members of society to gain
admission to the United States and should not be a burden on the state.
One commenter said that migrants should not be able to obtain welfare
unless they have a minimum working record in the United States. Another
commenter supported the rule and said that illegal immigration needs to
stop. One commenter said that this country does not need more poor
people. A commenter said that immigrants who cannot support themselves
should not come to the United States. Other commenters said that the
United States should not be responsible for taking care of people from
other countries. One commenter noted that this rule will address the
problem of public assistance use by unauthorized aliens seeking to
legalize their status, DACA recipients, and any other immigrants who
want to legalize their status but who are unable to support themselves
or their families. Another commenter indicated that the rule will
encourage immigrants to work hard and become self-sufficient.
Response: DHS agrees that applicants for admission and adjustment
of status who are subject to the public charge ground of
inadmissibility should be self-sufficient and should not depend on the
government to meet their needs, and this rule seeks to better ensure
self-sufficiency. DHS firmly believes that this was Congress' intent in
enacting section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), including
the changes to this ground made in 1996.\49\ DHS, however, disagrees
with comments suggesting that this rule addresses, or should address,
eligibility for government benefits programs. DHS also disagrees that
the rule addresses eligibility for public benefits by certain specified
groups, such as aliens unlawfully present, or DACA recipients. Neither
the public charge ground of inadmissibility nor this final rule govern
eligibility for public benefits; they govern which aliens are
inadmissible or ineligible for admission or adjustment of status. This
final rule does not address the government's responsibility to care for
foreign nationals and does not address which aliens are, or should be,
eligible to receive public benefits.
---------------------------------------------------------------------------
\49\ See IIRIRA, Public Law 104-208, div. C, sec. 531, 110 Stat.
3009-546, 3009-674 (Sept. 30, 1996) (amending INA section 212(a)(4),
8 U.S.C. 1182(a)(4)); H.R. Rep. No. 104-828 at 240-41 (1996) (Conf.
Rep.) (``This section amends INA section 212(a)(4) to expand the
public charge ground of inadmissibility. . . . Self-reliance is one
of the most fundamental principles of immigration law.'').
---------------------------------------------------------------------------
DHS also disagrees with suggestions that this rule is aimed at
making sure poor people are not able to enter the United States. As
noted previously, the rule aims to ensure that aliens subject to the
public charge ground of inadmissibility are self-sufficient. An alien's
assets, resources, and financial status is one factor that is
considered in the totality of the circumstances when making a public
charge inadmissibility determination and is not outcome determinative.
Comment: Some commenters stated that the rule will have a positive
impact on the U.S. economy and job creation, and will protect the
social safety net. Numerous commenters mentioned that public assistance
should be reserved for U.S. citizens who need help and not immigrants
who arrive unable to contribute to the nation's well-being.
Other commenters stated that as more immigrants look to come to the
United States, the proposed public charge rule is needed to preserve
the ``American Dream'' for future generations and to prevent the
current generation from having to shoulder the financial burden of
paying for foreign nationals who cannot provide for themselves.
Response: This rule does not aim to address the U.S. economy, job
creation, protection of the social safety net or the ``American
dream,'' curtail spending on public assistance, or ensure that public
assistance will be reserved for U.S. citizens. This rule also does not
attempt to curtail efforts to address broader economic and health
problems, including with respect to people outside the United States.
Rather, the purpose of this rule is to implement the public charge
ground of inadmissibility consistent with the principles of self-
sufficiency set forth by Congress, and to minimize the incentive of
aliens to attempt to immigrate to, or to adjust status in, the United
States due to the availability of public benefits.\50\ While the rule
may result in reductions in overall alien enrollment in certain public
benefit programs, improve the ability of U.S. citizens to obtain public
benefits for which they are eligible, or otherwise benefit the U.S.
economy, this rule does not directly regulate these matters.
---------------------------------------------------------------------------
\50\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Comment: Some commenters stated that there should be more stringent
immigration standards generally and reductions in the number of
immigrants in the United States. Some commenters stated that immigrants
are ``abusing'' the U.S. welfare system. Other commenters offered
general support for the NPRM without further explanation.
Response: DHS does not intend this rule to reduce overall
immigration levels to the United States. Instead, this rule is an
exercise of DHS's authority to interpret the public charge ground of
inadmissibility. Fraud or abuse in alien enrollment in public benefits
programs is of course problematic, but the public charge ground of
inadmissibility applies to an alien who is likely at any time to become
a public charge, regardless of whether such alien is likely to
fraudulently obtain public benefits or abuse the public benefits
system. With respect to comments about an alien receiving public
benefits for which he or she was not eligible, DHS notes that to the
extent that an alien obtains such a benefit by falsely claiming to be a
U.S. citizen, the alien may be inadmissible for falsely claiming U.S.
citizenship (section 212(a)(6)(C)(ii) of the Act, 8 U.S.C.
1182(a)(6)(C)(ii)), depending on the circumstances by which he or she
received the benefits improperly. Additionally, to the extent that an
applicant who has obtained public benefits through fraud or
misrepresentation subsequently applies for an immigration benefit for
which a favorable exercise of discretion is required, the fraud or
misrepresentation can be considered in deciding whether to favorably
exercise that discretion. However, public benefits that an alien
obtains unlawfully are outside of the scope of this rulemaking, which
only addresses inadmissibility based on the public charge ground of
inadmissibility.
[[Page 41306]]
D. Comments Expressing General Opposition to the NPRM
1. Purpose of the Rule and Self Sufficiency
Comment: Commenters stated that the proposed rule represented an
ineffective solution to a non-existent problem--a lack of self-
sufficiency among immigrants. A commenter indicated that the proposed
rule emphasized that the self-sufficiency of immigrants is a long-
standing congressional policy, yet did not provide sufficient data that
dependency on the government and/or government benefits is a problem
within immigrant communities, especially in light of data showing that
immigrants have been shown generally to make very strong economic
contributions to the country. The commenter stated that, for example,
in 2014 immigrant-led households in Massachusetts paid nearly $10
billion dollars in federal, state, and local taxes, and represented
nearly $28 billion dollars in spending power.
Additionally, commenters expressed concern that the text of the
rule suggests that it is the main responsibility of our nation's
immigration system--and the agencies which run it--to cultivate or
maintain a national ethos of ``self-sufficiency.'' A commenter
indicated that immigration policies and systems are meant to achieve a
number of different goals, such as family unity, diversity,
humanitarian assistance, and ensuring sufficient labor. Commenters
stated that safeguarding our nation from individuals that may at some
point need government support is not the singular or even primary
purpose of our system of immigration.
Response: DHS disagrees with the commenters that ensuring the self-
sufficiency of immigrants is unnecessary, or that a lack of self-
sufficiency is a non-existent problem. As outlined in the NPRM,
Congress clearly declared, in its policy statement in PRWORA, that
self-sufficiency has been a basic principle of United States
immigration law since this country's earliest immigration statutes and
that it should continue to be a governing principle in the United
States.\51\ Congress also has maintained the public charge ground of
inadmissibility in law since 1882. DHS believes that applicants for
admission and adjustment of status who are subject to the public charge
ground of inadmissibility should be self-sufficient and should not
depend on the government to meet their needs, and DHS firmly believes
that this was Congress' intent in enacting section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), including as recently as 1996.\52\ DHS agrees
with the commenter that immigration laws and policies serve many
purposes, including goals such as family unity, diversity, humanitarian
assistance. However, U.S. immigration laws balance competing values.
For example, the criminal grounds of inadmissibility\53\ are designed
to protect the United States and its citizens from harm and threats to
public safety,\54\ while health-related grounds of inadmissibility are
intended to protect the health of the United States population.\55\
These grounds of inadmissibility are valid exercises of congressional
authority, notwithstanding that such grounds of inadmissibility may
sometimes impede family unity, and notwithstanding that in many
individual aliens' cases, such grounds of inadmissibility may not be
implicated. Similarly, here, Congress, though legislation, addressed
various policy considerations when determining whether a foreign
national should be admitted to the United States, including whether an
individual who is likely at any time in the future to become a public
charge should be admitted to the United States. Therefore, while self-
sufficiency may not be the primary purpose of U.S. immigration laws, it
is one consideration put into place by Congress.
---------------------------------------------------------------------------
\51\ See 8 U.S.C. 1601.
\52\ See IIRIRA, Public Law 104-208, div. C, sec. 531, 110 Stat.
3009-546, 3009-674 (Sept. 30, 1996) (amending INA section 212(a)(4),
8 U.S.C. 1182(a)(4)); H.R. Rep. No. 104-828 at 240-41 (1996) (Conf.
Rep.) (``This section amends INA section 212(a)(4) to expand the
public charge ground of inadmissibility. . . . Self-reliance is one
of the most fundamental principles of immigration law.'').
\53\ See INA section 212(a)(2), 8 U.S.C. 1182(a)(2).
\54\ See INA section 212(a)(2), 8 U.S.C. 1182(a)(2).
\55\ See INA section 212(a)(1), 8 U.S.C. 1182(a)(1).
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DHS is under no obligation to demonstrate that all or most aliens
in the United States are not self-sufficient. To the extent that an
alien is self-sufficient, the alien is unlikely to be affected by this
rule. In the NPRM, DHS did provide extensive data on the lack of self-
sufficiency among certain aliens, and showed how the minimum statutory
factors identified by Congress relate to the self-sufficiency of
individuals and their receipt of public benefits.\56\ DHS acknowledges
that immigrants provide significant contribution to the United States
as a whole and within their communities, as demonstrated by data and
information provided by many commenters. However, the focus of the
inquiry for public charge purposes is whether an individual alien, who
is seeking to be admitted to the United States or who is applying for
adjustment of status, is likely to become a public charge at any time
in the future. This determination is made following consideration of
the totality of the alien's individual circumstances and is a
predictive assessment.
---------------------------------------------------------------------------
\56\ See throughout the NPRM, Inadmissibility on Public Charge
Grounds, 83 FR 51114 (proposed October 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter stated that section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4) neither mentioned or discussed self-sufficiency nor
identified self-sufficiency as a criteria in the determination and
therefore disagreed with primary purpose of the rule outlined in the
NPRM. Given the close proximity in time when PRWORA and Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
passed, the commenter considered it significant that Congress
restricted an immigrant's eligibility for public benefits with PRWORA,
yet IIRIRA codified the minimum mandatory factors without PRWORA's
articulated self-sufficiency principles as relied on by DHS in the
NPRM. The commenter indicated that both PRWORA and IIRIRA, were
considered in the 1999 Interim Field Guidance because PRWORA and IIRIRA
had created widespread confusion about permissible public benefit
receipt in relation to public charge inadmissibility. The commenter
stated that the current rule failed to identify post-1999 laws, data,
or experience, such as congressional authorities or other information
not already taken into account by INS in developing the 1999 Interim
Field Guidance that informed DHS's development of the proposed rule.
The commenter therefore requested that DHS in its final rule identify
and describe legal authorities or information other than the
authorities which predated the 1999 Interim Field Guidance and that
were relied on by INS, which DHS considered in developing its proposed
definition of public charge. The commenter stated that if Congress had
wanted to achieve the self-sufficiency or cost-savings goals identified
by the NPRM it could alter the eligibility rules for the enumerated
programs, but has not changed the public benefit eligibility
requirements, and expanded eligibility for some programs following the
enactment of PRWORA and IIRIRA in 1996, such as in 2002, when Congress
restored SNAP eligibility for all qualified immigrant children.
Response: Although DHS agrees with the commenter that self-
sufficiency is not mentioned in section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), DHS maintains, as outlined in the NPRM,
[[Page 41307]]
that this principle, a congressional' policy objective, informs and has
informed public charge determinations. Based on the administrative and
legislative context discussed in the NPRM,\57\ including congressional
records relating to debates addressing self-sufficiency prior to
Congress' passing of IIRIRA,\58\ DHS's view of self-sufficiency and its
role in the public charge determination remains unchanged. In fact, DHS
considers the proximity of the passage of both PRWORA and IIRIRA as an
indication that Congress associated public charge closely with the
principles governing PRWORA, and that Congress must have recognized
that it made certain public benefits available to some aliens who are
also subject to the public charge grounds of inadmissibility, even
though receipt of such benefits could render the alien inadmissible as
likely to become a public charge. Additionally, as outlined in the
NPRM, DHS does not believe that the plain text of section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4), INS's discussion of PRWORA and IIRIRA,
and the case law cited by INS or DHS requires the adoption of the
legacy INS interpretations for purposes of public charge. As discussed
in detail throughout the NPRM and below, the term public charge is
ambiguous, and neither the statute nor case law prescribe the degree to
which an alien must be receiving public benefits to be considered a
public charge. DHS remains convinced that its interpretation is
permissible and reasonable.
---------------------------------------------------------------------------
\57\ See 83 FR 51114 (Oct. 10, 2018).
\58\ See 142 Cong. Rec. S4609 (May 2, 1996) (statement of Sen.
Byrd) (``[S]elf-sufficiency will be the watchword for those coming
to the United States. By making noncitizens ineligible for Federal
means-tested programs, and by `deeming' a sponsor's income
attributable to an immigrant, the American taxpayer will no longer
be financially responsible for new arrivals.''), available at
https://www.congress.gov/crec/1996/05/02/CREC-1996-05-02-pt1-PgS4592.pdf. (last visited July 26. 2019).
---------------------------------------------------------------------------
DHS disagrees with the commenter that the NPRM failed to identify
post-1999 laws, data, or experience, such as congressional authorities
or other information not already taken into account by INS in
developing current public charge policy that informed DHS's development
of the proposed rule. Post-PRWORA, Congress did restore some public
benefit eligibility for aliens. DHS acknowledged these developments in
the NPRM preamble.\59\ For example, DHS incorporated the discussion
that in 2002, the Farm Security and Rural Investment Act of 2002,
Public Law 107-17, (May 13, 2002), Section 4401, restored SSI benefits
for any person who was lawfully residing in the United States on August
22, 1996; restored SNAP for all children under 18; and provided that
``qualified aliens'' \60\ were eligible for SNAP after five years of
entry into the United States. In 2007, Section 525 of the Consolidated
Appropriations Act for Fiscal Year (FY) 2008 \61\ provided for Iraqi
and Afghan foreign nationals to obtain benefits.
---------------------------------------------------------------------------
\59\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51126-51133 (proposed October 10, 2018).
\60\ ``Qualified aliens'' generally includes lawful permanent
resident aliens, refugees/asylees, and other non-temporary legal
residents (such as Cuban/Haitian entrants).
\61\ Public Law 110-161 (Dec. 26, 2007).
---------------------------------------------------------------------------
These provision and others restoring or providing public benefit
access to immigrants are incorporated to the statutory provisions
governing PRWORA, 8 U.S.C. 1611. Therefore, this rule is informed by
all the documentation and data presented before the 1999 Interim Field
Guidance, as well as relevant subsequent legislation, and relevant case
law. DHS would note that precedential decisions and other materials
cited by DHS do not lose persuasive value for purposes of DHS's
interpretation simply because they were also addressed in the 1999
proposed rule and 1999 Interim Guidance.\62\ Further, although
subsequent legislation, such as Congress's expansion of SNAP, expanded
eligibility of public benefits to certain aliens, Congress has not
subsequently changed the section 212(a)(4) of the Act, 8 U.S.C. 1182,
which governs the public charge inadmissibility determination.\63\
---------------------------------------------------------------------------
\62\ For example, precedent decisions issued by the Executive
Office for Immigration Review (EOIR) and the Attorney General are
binding on DHS until overruled. See 8 CFR 103.3(c), 103.10(b),
1003.1(g); see, e.g., Matter of E-L-H-, 23 I&N Dec. 814, 817 (BIA
2005) (finding that a published Board decision has precedential
effect unless and until modified or overruled by the Attorney
General, the Board, Congress, or a Federal court.).
\63\ Cf. Cyan, Inc. v. Beaver Cty. Emp. Ret. Fund, 138 S. Ct.
1061, 1070 (2018) (explaining that, if Congress had wanted to
deprive state courts of jurisdiction over certain class actions, it
could have easily done so by inserting a provision).
---------------------------------------------------------------------------
Comment: A commenter stated that Congress, not DHS, may change
statutory eligibility requirements for federally-administered public
benefits programs, including the ones listed in the NPRM. The commenter
stated that DHS's regulatory framework was designed to achieve the same
effects as changing eligibility requirements--decreased and foregone
enrollment in public benefit programs by certain populations--and
therefore, usurped Congress' role.
Response: DHS strongly disagrees with the comment that that DHS's
regulatory framework was designed to achieve the same effects as
changing eligibility requirements--decreased and foregone enrollment in
public benefit programs by certain populations--and therefore, usurped
Congress' role. Although DHS acknowledges that the rule, once
effective, may lead individuals to disenroll or choose to forego
enrollment from public benefits, the rule does not change eligibility
requirements for public benefits. The rule only provides for whether an
alien is admissible into the United States, which is a matter of
immigration law for the Federal Government and delegated to DHS.
2. Requests for Reconsideration and Withdrawal of NPRM
Comment: Several commenters asked that DHS reconsider the rule and
withdraw it, stating that the rule is unnecessary and would place an
undue burden on DHS and immigrants. One commenter stated the proposed
rule's preamble does not establish a sufficient justification for the
proposed revisions. Another commenter stated that the NPRM was too long
and discouraged the public from commenting on the proposed rule. Some
commenters expressed concern that the rule conflicts with local, state,
and federal initiatives, including undermining community-based, non-
profit efforts, and making the immigration system inefficient. Several
commenters stated that DHS should focus on promoting a rule that
strengthens, rather than undermines, immigrants' ability to support
themselves. Some commenters requested that the rule be withdrawn in its
entirety, and that the 1999 Interim Field Guidance remain in effect.
Response: DHS will not retract the proposed rule and is concluding
the public charge inadmissibility rulemaking through the publication of
this final rule. DHS is committed to implementing section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4), consistent with the principles of self-
sufficiency set forth by Congress. As required by the statute and
reflected in this rule, DHS's public charge inadmissibility
determinations will involve an assessment of the mandatory factors as
they relate to the likelihood of an applicant becoming a public charge
at any time in the future.
Comment: Multiple commenters said the rule should be withdrawn, the
1999 Interim Field Guidance should remain in place, and that the
proposed rule is a drastic change from the 1999 Interim Field Guidance.
Many said that the 1999
[[Page 41308]]
Interim Field Guidance is consistent with congressional intent and case
law and should not be abandoned. One commenter noted that the 1999
Interim Field Guidance's exclusion of certain public health, nutrition,
and in-kind community service programs was consistent with the intent
of Congress as expressed in its 1996 Conference Report regarding PRWORA
and that rule was a departure from this intent.
Response: DHS disagrees that the 1999 Interim Field Guidance should
remain in place. DHS has chosen to define public charge more broadly
than in the 1999 NPRM and 1999 Interim Field Guidance. DHS believes
this broader definition is consistent with Congress' intention that
aliens should be self-sufficient. Self-sufficiency is, and has long
been, a basic principle of immigration law in this country.\64\ DHS
believes that this rule aligns DHS regulations with that principle.\65\
---------------------------------------------------------------------------
\64\ See 8 U.S.C. 1601(1).
\65\ See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 47 (1942)
(``Frequently the entire scope of Congressional purpose calls for
careful accommodation of one statutory scheme to another. . . .'').
---------------------------------------------------------------------------
Comment: A commenter urged DHS to either withdraw the proposed rule
or if moving to finalize it, to provide a full and complete analysis of
all public comments received on the proposed rule, including the total
number of comments, (and the number of those signing individual
comments), composition of, relative numbers of commenters supporting
and opposing the overall proposal, the volume and nature of comments
regarding specific provisions, and the rationale for specific choices
made by DHS in light of comments. The commenter stated that doing so
would provide transparency regarding the extent to which DHS considered
public input in accordance with the APA.
Response: DHS declines to withdraw the NPRM and will conclude
rulemaking with the publication of this final rule. DHS has responded
to public comments that raise substantive issues or offer significant
alternatives.\66\ In this final rule, DHS is providing both an overview
of public comments and commenters, and a complete analysis of public
comments including those addressing specific aspects of the proposed
rule. DHS has fully considered the public input on this rule in
accordance with the APA.
---------------------------------------------------------------------------
\66\ Reytblatt v. U.S. Nuclear Regulatory Comm'n, 105 F.3d 715,
722 (D.C. Cir. 1997); Northside Sanitary Landfill, Inc. v. Thomas,
849 F.2d 1516 (D.C. Cir 1988).
---------------------------------------------------------------------------
Comment: Commenters stated that DHS's position is inconsistent with
the 1999 NPRM.
Response: DHS agrees that this rule takes a different approach to
interpreting the public charge ground of inadmissibility than the 1999
NPRM, and withdrew the 1999 NPRM as part of the 2018 NPRM.\67\ The 2018
NPRM explained DHS's proposed change of position. DHS is not bound by a
twenty-year-old proposed rule, and believes that this rule represents a
permissible implementation of the public charge inadmissibility
standard that Congress provided when it enacted section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4). This public charge inadmissibility rule
provides long-absent guidance on how to interpret key statutory terms,
which have never been fully defined by Congress, and which the agency
has the authority and responsibility to define.
---------------------------------------------------------------------------
\67\ See Inadmissibility on Public Charge Grounds, 83 FR 51114
(proposed Oct. 10, 2018).
---------------------------------------------------------------------------
3. Alternatives to the Public Charge Rule
Comment: An individual commenter proposed creating a ``self-
sufficiency program'' in place of the proposed rule, modeled after the
Office of Refugee Resettlement's (ORR) Voluntary Agencies Matching
Grant Program that provides intensive case management, English language
and vocational training, and a variety employment services, which would
serve as an alternative to public benefits receipt by immigrants and
nonimmigrants. A commenter suggested that rather than creating this
rule to disincentivize receipt of public assistance by revoking or
denying citizenship status based on receipt of public assistance, DHS
should instead create classes or provide resources to aliens to help
them understand the importance of self-sufficiency.
Response: DHS notes that this rule does not address eligibility for
citizenship and neither the statute nor this final rule permit
revocation or denial of citizenship status based on the public charge
inadmissibility ground. This rule establishes guidelines for
determining whether aliens who are applicants for admission or
adjustment of status, and who are subject to section 212(a)(4) of the
Act, are inadmissible as likely to become a public charge at any time
in the future.\68\ DHS further notes that it will not create programs
in lieu of this rule that will help aliens attain self-sufficiency, as
DHS believes, consistent with Congress's intent set forth in PRWORA,
that aliens should be self-sufficient before they seek admission or
adjustment of status.
---------------------------------------------------------------------------
\68\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Comment: A commenter requested a national stakeholder workgroup be
convened to accomplish the Administration's goals rather than
proceeding with the public charge rule, which the commenter asserted
will have a negative impact on the health and financial security of
aliens.
Response: DHS disagrees that a stakeholder working group is an
alternative to this rulemaking. As indicated elsewhere in this rule,
DHS is exercising its authority to interpret the INA consistent with
its congressional mandate. This final rule provides necessary guidance
for purposes of implementing section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), including, by defining statutory terms that have never been
defined by Congress in the over 100 years since the public charge
inadmissibility ground first appeared in the immigration laws.
The rulemaking process allowed for ample public participation. DHS
notes that it received over 266,000 public comments. DHS also
participated in over 20 OMB E.O. 12866 meetings with public
stakeholders related to the proposed rule. Therefore, DHS does not
believe that national stakeholder group would work as substitute for
this rulemaking.
In addition, DHS notes that USCIS has a robust stakeholder
communication and engagement program that covers all aspects of the
agency's operations. This program will engage stakeholders when this
rule becomes final to help ensure that applicants for immigration
benefits and their representatives fully understand the new rule.
4. Discrimination and Disparate Impact
Comment: Several commenters stated that this rule discriminates
against both aliens and citizens and unduly affects certain
individuals. Commenters stated that the rule discriminates against
immigrants based on age, gender, income, race, health, and social
status. Some commenters expressed concerns that the proposed changes to
the definition of public charge are inhumane and discriminatory to
immigrants, particularly minors, the elderly, the poor, those will
chronic medical conditions and disabilities, immigrants with limited
English proficiency, Latinos, Black families, and other communities of
color, and goes against core American values. A number of commenters
stated this rule would discriminate against individuals with chronic
health conditions, such as heart disease. Some commenters stated that
the new definition of ``likely at any time in the future to become a
public charge'' in 8 CFR 212.21(c) would be discriminatory towards
blind individuals who rely on public
[[Page 41309]]
assistance to make ends meet, due to the 70 percent unemployment rate
for blind individuals. The commenters stated that the proposed
definition exhibits a clear and inherent bias against the blind and
other individuals with a disability and urged DHS to abandon the rule.
Commenters generally stated the rule creates an ageist system that
favors wealthy, healthy, and highly educated individuals. One commenter
said that this rule creates a ``merit-based'' system that punishes
immigrants and discriminates against them based on their race,
religion, and ethnicity. A commenter stated that the rule's
consideration of an applicant's English proficiency amounts to
discrimination.
Several commenters observed that U.S. born children often qualify
for and receive assistance, because their immigrant parents are
struggling. The commenters stated that DHS should not penalize the
parents or the children for accepting public benefits that were legally
available to them. One commenter questioned the legality of the rule
and stated that the Supreme Court in Plyler v. Doe \69\ held that
states cannot discriminate against children on the basis of
undocumented status. The commenter said numerous other cases have held
that children cannot be penalized for their parentage (e.g., Levy v.
Louisiana, 391 U.S. 68 (1968) and Clark v. Jeter, 486 U.S. 456 (1988)).
---------------------------------------------------------------------------
\69\ 457 U.S. 202 (1982).
---------------------------------------------------------------------------
Response: To the extent that this rule, as applied, may result in
negative outcomes for certain groups, DHS notes that it did not codify
this final rule to discriminate against aliens based on age, race,
gender, income, health, and social status, or to create an ``ageist''
system that selectively favors wealthy, healthy, and highly educated
individuals. Rather, this rule is intended to better ensure that aliens
subject to this rule are self-sufficient. To the extent that this rule
specifically or disproportionately affects those of a particular age or
those with lower incomes, less education, limited English proficiency,
or poor health, DHS notes that Congress requires DHS to consider, among
other factors, an applicant's age, assets, resources, financial status,
education, and skills as part of the public charge inadmissibility
determination.
Additionally, this rule does not create a merit-based system more
broadly or apply a wealth or poverty litmus test to make public charge
inadmissibility determinations. Instead, DHS has established a
systematic approach to implement Congress' totality of the
circumstances standard and has given the mandatory statutory factors
meaning, value, and weight strictly in relationship to determining
whether or not an alien who is otherwise admissible of eligible for
adjustment of status in the context of the existing system is likely at
any time in the future to become a public charge. DHS acknowledges that
one likely outcome of this change is that some individuals who would
may have been able to immigrate under the 1999 Interim Field Guidance
will now be deemed inadmissible as likely public charges.
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), sets forth the
public charge ground of inadmissibility that makes aliens ineligible
for visas, admission, and adjustment of status. Section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), also requires DHS to consider minimum
factors in the public charge inadmissibility analysis. The Federal
Government is responsible for ``regulating the relationship between the
United States and our alien visitors,'' which includes regulating the
manner and conditions of entry, as well as the residence of aliens.\70\
DHS is the federal agency with the authority to establish regulations
regarding the public charge inadmissibility determination.\71\ As
required by statute, DHS must consider how an alien's age, health,
family status, assets and resources, financial status, education, and
skills impact the alien's likelihood at any time of becoming a public
charge. Under the statute, DHS may also consider an applicant's
affidavit of support, if applicable. The statute does not direct DHS to
consider an alien's race, gender, or social status. Consequently, DHS
will not consider an alien's race, gender, or social status when making
a public charge inadmissibility determination. Other than an absent or
insufficient affidavit of support, where required, DHS will not find an
alien inadmissible based on any single factor without consideration of
all of the other factors and the totality of their effect on an
applicant's likelihood of becoming a public charge at any time in the
future.
---------------------------------------------------------------------------
\70\ Mathews v. Diaz, 426 U.S. 67, 81-82 (1976).
\71\ See Homeland Security Act of 2002, Public Law 107-296, sec.
102, 116 Stat. 2135, 2142-44 (Nov. 25, 2002) (codified at 6 U.S.C.
112); INA section 103, 8 U.S.C. 1103.
---------------------------------------------------------------------------
In addition, rational basis scrutiny generally applies to
immigration regulations applicable to aliens.\72\ As set forth in
NPRM,\73\ DHS's public charge rule is rationally related to the
government's interest to minimize the incentive of aliens to immigrate
to the United States because of the availability of public benefits and
to promote the self-sufficiency of aliens within the United States.\74\
---------------------------------------------------------------------------
\72\ See Korab v. Fink, 797 F.3d 572, 577-79 (9th Cir. 2014)
(``[F]ederal statutes regulating alien classifications are subject
to the easier-to-satisfy rational-basis review . . . Although aliens
are protected by the Due Process and Equal Protection Clauses, this
protection does not prevent Congress from creating legitimate
distinctions either between citizens and aliens or among categories
of aliens and allocating benefits on that basis . . . The difference
between state and federal distinctions based on alienage is the
difference between the limits that the Fourteenth Amendment places
on discrimination by states and the power the Constitution grants to
the federal government over immigration.'') (citation omitted);
Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir. 2001), citing Lake v.
Reno, 226 F.3d 141, 148 (2d Cir. 2000) (``We have recently
recognized that a `highly deferential' standard is appropriate in
matters of immigration . . . .''). Generally, laws and regulations
that neither involve fundamental rights nor include suspect
classifications are reviewed under rational basis scrutiny, under
which the person challenging the law must show that the government
has no legitimate interest in the law or policy or that there is no
rational link between the interest and the challenge law or
regulation. See also Heller v. Doe by Doe, 509 U.S. 312, 319 (1993).
\73\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51122-23 (proposed Oct. 10, 2018).
\74\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Equally important, the public charge inadmissibility rule does not
discriminate against or penalize U.S. citizens, including children. The
public charge inadmissibility rule does not directly regulate the
conduct of U.S. citizens because the grounds of inadmissibility do not
apply to U.S. citizens. Moreover, this rule does not regulate
eligibility for, or access to, public benefits. Neither the NPRM nor
this final rule take into consideration receipt of public benefits by
U.S. citizens who are part of the alien's household, including benefits
received by U.S. citizen children. The receipt of public benefits by
household members is not considered as part of an alien's application,
although such receipt is excluded from the alien's household income,
assets, and resources.
Furthermore, DHS disagrees that this rule is inconsistent with
Plyler v. Doe and the other cited cases. Plyler does not apply to this
rule. As courts have recognized, Plyler relates to distinctions made by
states rather than the Federal Government.\75\ Similarly, neither Levy
v. Louisiana nor Clark v. Jeter is applicable here. These cases did not
address the immigration status of children or Federal regulations.
Instead, both cases
[[Page 41310]]
dealt with impacts of state laws on illegitimate children.\76\
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\75\ See, e.g., Aleman v. Glickman, 217 F.3d 1191, 1198 (9th
Cir. 2000) (``Plyler [is] inapposite, however, because [it]
involve[s] state classifications of aliens.'' (emphasis in the
original)); Rodriguez ex rel. Rodriguez v. U.S., 169 F.3d 1342, 1350
(11th Cir. 1999) (``Plyler is inapposite because it deals with a
Fourteenth Amendment challenge to a state's classification of
aliens.'' (emphasis in the original).
\76\ Levy v. Louisiana, 391 U.S. 68 (1968); Clark v. Jeter, 486
U.S. 456 (1988).
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5. Potential Disenrollment Impacts
Numerous commenters raised concerns about the rule's asserted
``chilling effect.'' Commenters indicated that the rule would cause
aliens and citizens to either disenroll from public benefit programs or
forego enrollment in public benefit programs, which would negatively
impact the nation, states, local communities, families, vulnerable
populations, and health care providers. Because most of these comments
reflect the same theme, the discussion below provides a detailed
breakdown of public comments separated by topic, followed by a
consolidated DHS response.
Choice Between Public Benefits and Immigration Status
Commenters stated that the rule puts the country at risk by forcing
choices no family should have to make. Commenters noted that alien
parents will limit or forego their U.S. citizen children's receipt of
public benefits to avoid adverse immigration consequences. Commenters
stated that the rule would force eligible immigrants to withdraw their
families from assistance programs for fear of adverse immigration
consequences, which would undermine access to essential health,
nutrition, and other critical benefits and services. Several
commenters, expressing the view that no person in the United States
should be denied federal assistance programs or public benefits, said
that immigrants should not have to make impossible choices between
their health or providing for their family's immediate needs and
risking their immigration status or keeping their family together. Some
commenters said that the proposed rule would cause patients diagnosed
with cancer or HIV to choose between accessing needed health services
or suffering adverse consequences with respect to their immigration
status. A commenter stated that their state had the highest rate of
insurance coverage in the nation, and that it is vital that patients
and families continue to access care without fear of adverse
immigration consequences. A number of commenters expressed concerns
that families must choose between public housing or citizenship as a
result of this rule.
Many commenters provided studies or data related to the current or
potential number of individuals who will forego and/or disenroll from
public benefit programs, including specific groups of individuals, such
as children. Commenters involved in social services reported that they
were already seeing immigrants refraining from accessing services in
clinics, food banks, childcare centers, emergency shelters, and local
school districts, including immigrants who are exempt from public
charge inadmissibility. Several commenters said that the chilling
effect would not be limited to immigrants subject to the proposed rule
and would discourage many legal residents from utilizing services to
which they are legally entitled, leading to negative health and
economic outcomes. For example, a commenter said that refugees, who are
automatically enrolled in Medicaid upon arrival in its state, may
believe they will be deported if they re-enroll in Medicaid after their
initial resettlement period. Some commenters said the rule may provide
an incentive for U.S. citizens and lawful permanent residents to
terminate their subsidized health care in order to remain eligible to
petition for their family members living abroad.
General Assertions as to Effects
Commenters said that the rule's disenrollment effect would have
lasting impacts on the health and safety of our communities and that
immigrant families are experiencing significant levels of fear and
uncertainty that has a direct impact on the health and well-being of
children. Citing studies and research, many commenters asserted that
the chilling effect will increase hunger, food insecurity, homelessness
and poverty. They added that the chilling effect will also decrease
educational attainment and undermine workers' ability to acquire new
skills for in-demand occupations. Many commenters stated that negative
public health, social, and economic outcomes (e.g., hunger, food
insecurity, decreased nutrition, unmet physical and mental health
needs, unimmunized individuals, disease, decreased school attendance
and performance, lack of education, poverty, homelessness) collectively
damage the prosperity and health of our communities, schools, and
country. Several commenters said that the rule would drive up
uncompensated care costs, increase use of medical emergency
departments, increase healthcare costs, endanger maternal and infant
health and heighten the risk of infectious disease epidemics. One
commenter indicated that the rule would make child poverty worse and
harm communities as well as infrastructure that serves all of us.
Housing Benefit-Related Effects
Many commenters said some individuals will leave public housing as
a result of this rule and become homeless or face housing instability.
Commenter stated that the rule will cause disenrollment from subsidized
housing programs, which will create additional costs for local
governments. Commenters stated that the chilling effect on using HCVs
will cause the loss of ``wraparound services'' for residents, including
case management, mental healthcare, peer support, and child care.
Commenters raised concerns about the effects of housing insecurity in
specific cities, including health problems and downstream economic
impacts. One commenter stated that while the proposed public charge
rule does not directly count benefits received by the U.S. citizen
children of immigrant parents, it would still interfere with the
ability of U.S. citizens to receive housing assistance, because many
citizens live in mixed-status households with individuals who are
subject to the public charge ground of inadmissibility.
Food and Nutrition Benefit-Related Effects
Commenters noted that disenrollment from programs like SNAP would
worsen food insecurity in the United States. Some commenters provided
estimates of the number of children in certain states or cities
currently accessing SNAP benefits who could be affected by the rule.
Several commenters stated that the proposed rule would force millions
of children and families to disenroll from the SNAP program. For
example, one commenter cited a study that found that 2.9 million U.S.
citizen children would forego SNAP benefits as a result of the proposed
public charge rule. Another commenter stated that research shows that
immigrants' loss of eligibility reduced participation in the ``Food
Stamp Program'' among U.S.-born children of immigrants by 50 percent
and reduced the average benefits they received by 36 percent. Some
commenters stated that including SNAP in the public charge
determination would worsen food insecurity primarily among families
with older adults, children, and people with disabilities. Many
commenters opined that the inability of individuals in need to access
food assistance programs like SNAP would impact health outcomes and
those health outcomes would impact healthcare utilization rates and
costs. A few commenters emphasized that disenrollment from programs
such as SNAP and Special Supplemental Nutrition Program for Women,
Infants,
[[Page 41311]]
and Children, (WIC) would specifically put children at risk for
learning difficulties, increased emergency room visits, chronic asthma,
and other diseases and would cause a steep decline in the health and
well-being of pregnant women and infants.
Several commenters noted that the rule would increase the number of
individuals seeking help from state and local non-profit feeding
programs, which would burden local government facilities, volunteer-
lead organizations and food pantries and compromise the amount and
quality of nutritious food provided. Some commenters added that
restricting access to nutrition benefits could make things harder in
communities with high volumes of homeless residents.
Some commenters said decreased participation in SNAP or Medicaid
will likely have a profound impact on WIC's ability to serve all
eligible participants by introducing new barriers to access and heaping
additional costs on WIC agencies. A few commenters stated that
disenrollment from WIC could be as high as 20 percent. A commenter
stated that enrollment in WIC dropped from 7.4 million to 6.8 million
from January to May 2018, and the commenter stated that families feel
forced to decide between their safety as immigrants and the food and
services that their children need.
Health Benefit-Related Effects
A commenter opposed the rule, stating that DHS failed to present
anything in the proposed rule that would discredit, or justify
ignoring, the evidence in the 1999 Interim Field Guidance that aliens'
reluctance to receive benefits for which they are eligible will have a
negative impact on public health and general welfare. Commenters
expressed concern that the rule would undo historic gains in health
coverage and associated positive health outcomes over the past few
years. Some commenters stated that the proposed rule would result in
immigrants staying away from social service agencies and will
negatively impact health in many ways. Another commenter noted that the
rule will cause people to get sick or go hungry and indicated that
``penalizing'' immigrants who utilize benefits to support their family
only worsens racial, gender, and economic inequality.
A number of commenters cited the Kaiser Family Foundation study,
which provided estimates on Medicaid/Children's Health Insurance
Program (CHIP) disenrollment. The Kaiser Family Foundation estimated
that if the proposed rule leads to Medicaid disenrollment rates ranging
from 15 percent to 35 percent, then between 2.1 million and 4.9 million
Medicaid/CHIP enrollees living in a family with at least one noncitizen
would disenroll. Many commenters said that DHS vastly underestimates
the numbers of people who will disenroll from Medicaid and warned that
DHS was underestimating the ``negative consequences'' in the proposed
rule. Collectively, these commenters described the positive health and
economic benefits associated with health coverage through programs like
Medicaid. They also highlighted research findings about the dangers
associated with being uninsured. They warned that decreased
participation in Medicaid would lead to decreased utilization of
preventative services, worse health outcomes and financial standing for
families and children, increased health spending on preventable
conditions, and heightened strain on the healthcare system.
Other commenters said the inclusion of Medicare Part D in the rule
will cause affected individuals to disenroll or otherwise be restricted
from Medicare access, resulting in negative health outcomes for
individuals and communities (e.g., increased uninsured rated, decreased
access to prescriptions). Another commenter said that seniors who use
Medicare Part D will be deterred from filling prescriptions, which
could increase acute care and overall healthcare costs. Several
commenters stated that the sanctions associated with the use of
Medicaid and Medicare Part D benefits would result in reduced access to
medical care and medications for vulnerable populations, including
pregnant women, children, people with disabilities, and the elderly. A
couple of commenters said the inclusion of Medicare Part D would punish
immigrants for accessing healthcare services. Another commenter said
the proposed rule would dissuade thousands of low-income residents in
its state from seeking health coverage.
Effects on Vulnerable Populations
Many commenters said that reduced enrollment in federal assistance
programs would most negatively affect vulnerable populations, including
people with disabilities, the elderly, children, survivors of sexual
and domestic abuse, and pregnant women. Some of these commenters
suggested that the chilling effect associated with the proposed rule
would cause vulnerable individuals and families to avoid accessing
services, even if they are legally residing in the United States and
not subject to the proposed rule. Several commenters said the proposed
rule would adversely affect immigrant women, because they will be more
likely to forego healthcare and suffer worsening health outcomes. A
comment described the detrimental impact of reduced Medicaid enrollment
on maternal and infant health. Multiple commenters said the proposed
rule would lead to negative health outcomes in general, but especially
for pregnant and breastfeeding women, infants, and children. Another
commenter indicated that refugees and victims of trafficking, who are
exempt from public charge, would also disenroll because of fear and
gave the example that in 1996 the use of TANF fell 78 percent among the
refugee population despite the fact that refugees were not subject to
the public charge test.
Several commenters said the health of children is inextricably
linked to the health of their parents, asserting that parents who are
enrolled in health insurance are more likely to have children who are
insured. Some of these commenters went on to say that disenrollment
from health insurance by parents will result in a loss of coverage and
access to preventive healthcare for their children. A couple of
commenters said that they were already seeing these consequences due to
confusion over the proposed rule, including parents choosing to avoid
needed health services for their children. A couple of commenters said
every child in America should have access to quality, affordable
healthcare.
Many commenters, citing studies and research, stressed the chilling
effect of this rule will negatively affect the health and well-being of
children. Other commenters cited a study that predicted the numbers of
children who would disenroll from Medicaid and included figures on the
numbers of children with various medical conditions in need of medical
attention. Healthcare providers said uninsured children would be less
likely to receive preventative care and necessary treatment, and
generally would be less healthy compared to children with health
insurance. Several commenters said that fewer children with
disabilities would receive home and community based services, because
Medicaid covers these services. Another commenter said that many
children receive critical dental services through Medicaid and that a
lack of access to these services can cause oral diseases that impact
diet, emotional well-being, sleep, and the ability to work and study.
Several commenters voiced concern about the adverse impact on
Medicaid-funded health services in schools. A few commenters provided
data on the
[[Page 41312]]
funding school districts receive from Medicaid for school-based health
services and the numbers of students who benefit from these programs.
The commenters pointed out that this funding is tied to the number of
Medicaid-eligible students enrolled. Many commenters said the proposed
rule's exemption of school-based health services was insufficient given
the larger repercussions of the chilling effect and the likelihood that
many children would be disenrolled. Commenters said that schools would
need to provide healthcare and special education to children regardless
of whether the school could request payment from Medicaid for such
services. These commenters further stated that the school would need to
use local funds to cover the cost of services that Medicaid would
ordinary cover because parents would be unwilling to give consent to
the school to enroll the children in Medicaid. Some commenters said
special education administrators routinely engaged with families around
issues related to health, wellness and school attendance, and said the
proposed rule would diminish many students' chances for academic
success. A commenter said that it was important for schools to create
safe, supportive and inclusive communities, and that the proposed rule
could undermine efforts to accomplish this goal. One commenter said
Medicaid covers behavioral treatments for children and that providers
often partner with schools who are not equipped to provide these
targeted services. Two commenters said that the language of the
proposed rule was concerning for children who receive services through
the Early and Periodic Screening, Diagnostic and Treatment (EPSDT)
program, which is a federally mandated benefit that provides children
with the routine and preventive care services they need to grow into
healthy adults.
Effects on U.S. Citizens
Several commenters said that rule would cause the greatest harm to
U.S. citizen children of immigrant parents. Many commenters said that
U.S. citizen children need SNAP, CHIP, Medicaid, food stamps, and other
public benefits to survive if their immigrant parents cannot afford
such services, and U.S. citizen children have a right to these
benefits. A commenter said research demonstrates that barriers to
participation in public programs like Medicaid that affect immigrants
also have harmful spillover effects on U.S. citizens, because many U.S.
citizens live in mixed-status households. The commenter stated that in
these cases, research shows that U.S. citizens in the household are
less likely to obtain needed services such as health insurance through
Medicaid due to concerns about the immigration status of other family
members. A number of commenters said the rule would discourage U.S.
citizens who live in mixed-status households from accessing assistance
programs for which they are eligible, including Medicaid and CHIP, or
deprive them of the benefits of those programs entirely.
Increased Costs to Health Care Providers, States, and Localities
Many commenters particularly emphasized that disenrollment or
foregoing enrollment would be detrimental to the financial stability
and economy of communities, States, local organizations, hospitals,
safety net providers, foundations, and healthcare centers. Commenters
offering estimates on the number of people who would disenroll from
Medicaid under the proposed rule warned that the costs associated with
the resultant rise in uncompensated care would be borne by health
systems, hospitals, and insured patients. A commenter said that this
situation presents an ethical dilemma for physicians counseling
patients on treatment options, who are ``already beginning to field
questions from patients and are having to explain the immigration risks
of using healthcare services.'' A commenter citing research that found
a high percentage of emergency room visits could be managed in
physicians' offices warned that the proposed rule would increase costly
emergency room usage.
A couple of commenters said that Medicaid was the largest source of
funding for community health centers and provided estimates of
financial losses due to reduced Medicaid reimbursement. A commenter
said that Medicaid and CHIP were the underpinning for reimbursement for
pediatric subspecialists. Commenters stated that the proposed rule
would impact their reimbursements and would force them to cut patient
services. One of these commenters cited a study on the anticipated
reductions in services, which included an estimated $17 billion
reduction in hospital payments. Other commenters said that Medicaid
enables many individuals to access needed behavioral health services
and that a rise in uncompensated care will diminish providers' ability
to render these services. A commenter said reductions in federal
funding for Medicaid and Medicare resulting from decreased enrollment
would force States to increase funding levels, a challenge that could
potentially lead to increased wait list times, rolling enrollment
freezes, and other program cuts that would impact the broader health
system.
Response: With respect to the rule's potential ``chilling effects''
or disenrollment impacts, DHS notes that (1) the rule's overriding
consideration, i.e., the Government's interest as set forth in PRWORA,
is a sufficient basis to move forward; (2) it is difficult to predict
the rule's disenrollment impacts with respect to the regulated
population, although DHS has attempted to do so in the accompanying
Final Regulatory Impact Analysis; and (3) it is also difficult to
predict the rule's disenrollment impacts with respect to people who are
not regulated by this rule, although, again, DHS has attempted to do so
in the accompanying Final Regulatory Impact Analysis.
First, as discussed above, this rule is rationally related to the
Government's interest, as set forth in PRWORA, to: (1) Minimize the
incentive of aliens who attempt to immigrate to, or adjust status in
the United States due to the availability of public benefits; and (2)
Promote the self-sufficiency of aliens within the United States.\77\
DHS has defined public benefits by focusing on cash assistance programs
for income maintenance, and an exhaustive list of non-cash food,
housing, and healthcare, designed to meet basic living needs. This
definition does not include benefits related exclusively to emergency
response, immunization, education, or social services, nor does it
include exclusively state and local non-cash aid programs. DHS
acknowledges that individuals subject to this rule may decline to
enroll in, or may choose to disenroll from, public benefits for which
they may be eligible under PRWORA, in order to avoid negative
consequences as a result of this final rule. However, DHS has authority
to take past, current, and likely future receipt of public benefits
into account, even where it may ultimately result in discouraging
aliens from receiving public benefits.
---------------------------------------------------------------------------
\77\ See 8 U.S.C. 1601.
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Although individuals may reconsider their receipt of public
benefits as defined by this rule in light of future immigration
consequences, this rule does not prohibit an alien from obtaining a
public benefit for which he or she is eligible. DHS expects that aliens
seeking lawful permanent resident status or nonimmigrant status in the
United States will make purposeful and well-informed decisions
commensurate with the immigration status they are seeking. But
regardless,
[[Page 41313]]
DHS declines to limit the effect of the rulemaking to avoid the
possibility that individuals subject to this rule may disenroll or
choose not to enroll, as self-sufficiency is the rule's ultimate aim.
Second, DHS finds it difficult to predict how this rule will affect
aliens subject to the public charge ground of inadmissibility, because
data limitations provide neither a precise count nor reasonable
estimate of the number of aliens who are both subject to the public
charge ground of inadmissibility and are eligible for public benefits
in the United States. This difficulty is compounded by the fact that
most applicants subject to the public charge ground of inadmissibility
and therefore this rule are generally unlikely to suffer negative
consequences resulting from past receipt of public benefits because
they will have been residing outside of the United States and
therefore, ineligible to have ever received public benefits. For
example, most nonimmigrants and most immediate relative, family-
sponsored, and diversity visa immigrants seek admission to the United
States after issuance of a nonimmigrant or immigrant visa, as
appropriate.\78\ The majority of these individuals are likely to have
been ineligible for public assistance in the United States, because
they generally have resided abroad and are not physically present in
the United States.
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\78\ The United States admitted over 541 million nonimmigrants
between Fiscal Years 2015 and 2017. See DHS, Yearbook of Immigration
Statistics 2017, Table 25. Nonimmigrant Admissions by Class of
Admission: Fiscal Years 2015 to 2017, available at https://www.dhs.gov/immigration-statistics/yearbook/2017/table25. Among
immediate relative, family sponsored, and diversity visa immigrants
who acquired lawful permanent resident status between Fiscal Years
2015 and 2017, sixty-seven percent were admitted to the United
States and thirty-three percent adjusted their status in the United
States. See DHS, Yearbook of Immigration Statistics 2017, Table 6,
Persons Obtaining Lawful Permanent Resident Status by Type and Major
Class of Admission: Fiscal Years 2015 to 2017, available at https://www.dhs.gov/immigration-statistics/yearbook/2017/table6. The 2017
Yearbook of Immigration Statistics is a compendium of tables that
provide data on foreign nationals who are granted lawful permanent
residence (i.e., immigrants who receive a ``green card''), admitted
as temporary nonimmigrants, granted asylum or refugee status, or are
naturalized.
---------------------------------------------------------------------------
Aliens who are unlawfully present and nonimmigrants physically
present in the United States also are generally barred from receiving
federal public benefits other than emergency assistance.\79\ For
example, applicants for admission and adjustment of status--are
generally ineligible for SNAP benefits and therefore, would not need to
disenroll from SNAP to avoid negative consequences.\80\ Once admitted,
lawful permanent residents are generally prohibited from receiving SNAP
benefits for a period of five years.\81\ Notwithstanding the inclusion
of SNAP as a designated public benefit, DHS will not consider for
purposes of a public charge inadmissibility determination whether
applicants for admission or adjustment of status are receiving food
assistance through other programs, such as exclusively state-funded
programs, food banks, and emergency services, nor will DHS discourage
individuals from seeking such assistance.
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\79\ DHS understands that certain aliens may be eligible for
state-funded cash benefits. As there are multiple state, local, and
tribal programs that may provide cash benefits, DHS does not have a
specific list of programs or data on the number of aliens that may
be affected by the rule by virtue of their enrollment in such
programs.
\80\ See 8 U.S.C. 1611(a); 8 U.S.C 1612(a)(2)(D)(ii).
\81\ See 8 U.S.C. 1613(a).
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DHS recognizes a plausible connection between the NPRM and
reduction in alien enrollment in WIC to the extent that aliens who are
subject to public charge inadmissibility are also eligible to receive
WIC benefits. While DHS did not list WIC as a designated public benefit
under proposed 8 CFR 212.21(b), DHS also did not expressly exclude WIC
from consideration as a public benefit. Indeed, DHS sought public
comments on whether an alien's receipt of benefits other than those
proposed to be included in this rule as public benefits should
nonetheless be considered in the totality of circumstances, which
understandably could have given the impression that DHS was
contemplating the inclusion of WIC among other public benefits. This
final rule makes clear that WIC will not be an enumerated public
benefit under 8 CFR 212.21(b).
DHS also acknowledges that under the NPRM, certain lawfully present
children and pregnant women \82\ in certain states and the District of
Columbia might have chosen to disenroll from or forego enrollment in
Medicaid if they are otherwise eligible to maintain or pursue an
immigration benefit and are subject to public charge inadmissibility.
As noted above, however, this final rule exempts receipt of Medicaid by
such persons.
---------------------------------------------------------------------------
\82\ U.S. Department of Health and Human Services, Centers for
Medicaid and Medicare Services, Medicaid and CHIP Coverage of
``Lawfully Residing'' Children and Pregnant Women (July 1, 2010),
https://www.medicaid.gov/Federal-Policy-Guidance/downloads/SHO10006.pdf (last visited May 7, 2019).
---------------------------------------------------------------------------
Third, DHS finds it difficult to predict the rule's disenrollment
impacts with respect to people who are not regulated by this rule, such
as people who erroneously believe themselves to be affected. This rule
does not apply to U.S. citizens and aliens exempt from public charge
inadmissibility. In the proposed rule, DHS provided an exhaustive list
of immigration classifications that are exempt from the public charge
ground of inadmissibility, and this final rule retains those
exemptions. DHS is including in the Applicability section of this final
rule Tables 3 and 4 that are similar to those included in the NPRM,
which also reflect additional clarifications made in this final rule
with respect to T, U, and VAWA aliens. This rule does not prohibit or
otherwise discourage individuals who are not subject to the public
charge inadmissibility from receiving any public benefits for which
they are eligible.
Because DHS will not consider the receipt of public benefits by
U.S. citizens and aliens not subject to public charge inadmissibility,
the receipt of public benefits by these individuals will not be counted
against or made attributable to immigrant family members who are
subject to this rule. Accordingly, DHS believes that it would be
unwarranted for U.S. citizens and aliens exempt from public charge
inadmissibility to disenroll from a public benefit program or forego
enrollment in response to this rule when such individuals are not
subject to this rule. DHS will not alter this rule to account for such
unwarranted choices.
DHS appreciates the potential effects of confusion regarding the
rule's scope and effect, as well as the potential nexus between public
benefit enrollment reduction and food insecurity, housing scarcity,
public health and vaccinations, education health-based services,
reimbursement to health providers, and increased costs to states and
localities. In response to comments, DHS will also issue clear guidance
that identifies the groups of individuals who are not subject to this
rule, including, but not limited to, U.S. citizens, lawful permanent
residents returning from a trip abroad who are not considered
applicants for admission, and refugees.
In addition, as explained in greater detail elsewhere in this rule,
DHS has made a number of changes in the final rule that may mitigate
some of the concerns raised by the public regarding disenrollment
impacts. For example, DHS has excluded the Medicare Part D LIS from the
definition of public benefit because DHS has determined that Medicare
Part D benefits, including LIS, are earned by working or being credited
with 40 qualifying quarters of work and establishing eligibility for
Medicare. While children are not exempt from public charge
inadmissibility, DHS has decided against the inclusion of CHIP in the
definition of public benefit. DHS has
[[Page 41314]]
excluded from the public benefits definition, public benefits received
by children eligible for acquisition of citizenship, and Medicaid
benefits received by aliens under the age of 21 and pregnant women
during pregnancy and 60 days following the last day of pregnancy.
In sum, DHS does not believe that it is sound policy to ignore the
longstanding self-sufficiency goals set forth by Congress or to admit
or grant adjustment of status applications of aliens who are likely to
receive public benefits designated in this rule to meet their basic
living needs in an the hope that doing so might alleviate food and
housing insecurity, improve public health, decrease costs to states and
localities, or better guarantee health care provider reimbursements.
DHS does not believe that Congress intended for DHS to administer
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), in a manner that
fails to account for aliens' receipt of food, medical, and housing
benefits so as to help aliens become self-sufficient. DHS believes that
it will ultimately strengthen public safety, health, and nutrition
through this rule by denying admission or adjustment of status to
aliens who are not likely to be self-sufficient.
6. Inconsistent With American Values and Historic Commitment to
Immigrants
Comment: Several commenters said the rule puts immigration and/or
obtaining ``green cards'' out of reach for working class or poor
immigrant families and re-shapes, penalizes, or impedes legal
immigration. Many commenters said the rule goes against fundamental
American values and morality, including religious values and principles
of faith, upon which this nation was built. Many commenters stated the
importance of diversity and immigration to United States' history and
strength, and expressed that the rule would fundamentally change our
nation's historic commitment to welcoming immigrants where the United
States would no longer be the country that serves as a beacon for the
world's dreamers and strivers. Many commenters pointed out that many
immigrants here today would not have been able to enter the country
under the proposed rule. Several commenters said that the United States
should be receptive to those seeking a better life in the United States
and should not seek to penalize them, especially to those fleeing
violence. One commenter stated that the rule will force more people to
live in the shadows. Two commenters expressed that the rule is
scapegoating, is the result of Congress' failure to compromise on
immigration policy, and is not a solution to immigration reform. Two
other commenters said that the rule is motivated by fear and greed.
Response: While immigration and diversity have strengthened the
United States, DHS strongly disagrees that this rule is motivated by
fear or greed, or is un-American or immoral. DHS does not seek to
frustrate the United States' long-standing commitment to family unity,
humanitarian relief, and religious liberty through this rule. DHS also
disagrees that this rule re-shapes, penalizes, or impedes the overall
flow of legal immigration, and disagrees that the rule puts lawful
permanent resident status beyond the reach of working-class and poor
immigrant families. DHS reiterates that this rule does not and cannot
alter the process of obtaining immediate relative, family-sponsored,
employment-based, diversity, or nonimmigrant visas, as required and
permitted by law. Rather, this rule clarifies the standard by which DHS
will assess whether an alien subject to section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), is inadmissible as likely to become a public charge
at any time in the future. Through this final rule, DHS seeks to better
ensure that applicants are self-sufficient. Even if an applicant has a
low income, or belongs to a low-income family, that is only one
consideration in the totality of the circumstances. Even if an
applicant has household income that falls below 125 percent of FPG, DHS
must consider the applicant's age, health, family status, education,
and skills in determining whether the applicant is more likely than not
to become a public charge at any time in the future. DHS also notes
that the public charge inadmissibility ground does not apply to all
applicants who are seeking a visa, admission, or adjustment of status.
Congress specifically exempted certain groups, e.g., refugees and
asylees at the time of admission and adjustment of status, pursuant to
sections 207(c)(3) and 209(c) of the Act, 8 U.S.C. 1157(c)(3), 1159(c).
7. Contributions to American Society and Consideration of Self-
Sufficiency
Comment: Commenters stated that immigrants already significantly
contribute to the economy, citing IRS data showing how much income tax
the IRS received from immigrants and undocumented workers. Many
commenters said that DHS should evaluate immigrants based on their
contributions to communities in the United States and not based on
their income level or financial status. Many commenters stated that the
rule would negatively affect immigrants who contribute to the American
economy, including satisfying this country's need for younger workers.
Several commenters stated that immigrants take jobs that Americans are
not willing to perform (e.g., landscaping, construction, caregivers,
manufacturing) and that immigrants are hardworking and contributing
members that increase the diversity of our culture and communities.
Several commenters stated that use of public benefits in a manner
commensurate with their purpose should not be ``punishable.'' They
emphasized that immigrants want to work and be self-sufficient, but
that immigrants access public assistance programs to help them through
periods of temporary hardship on the path to self-sufficiency and
successfully contributes to society just as U.S. citizens do, if not
less so. They added that immigrants often need public assistance due to
insecure jobs, inadequate wages, lack of employer-sponsored health
insurance, the high cost of medical care and housing, inaccessibility
of health insurance, and other societal barriers. Multiple commenters
provided anecdotes about how they or their family member's receipt of
federal assistance helped them or their children go on to thrive and
become productive members of American society. Similarly, some
commenters told personal anecdotes about their interactions with
hardworking immigrants who rely on temporary public assistance to
survive and contribute to society. A few commenters added that a large
portion of U.S. born citizens would not meet the public charge
standards proposed by DHS.\83\
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\83\ USCIS-2010-0012-0151; USCIS-2010-0012-0264; USCIS-2010-
0012-1689; USCIS-2010-0012-13212 (Form Letter Master).
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Response: DHS believes that immigrants, in general, make
significant contributions to American society and enhance the culture
of American life and communities. DHS also recognizes that public
assistance programs provide food and nutrition, housing, and
healthcare, and other benefits that meet individual needs, serve the
public interest, and help people to become productive members of
society. The relevant inquiry that this rule aims to address, however,
is whether an applicant who is subject to the public charge ground of
inadmissibility is likely to become a public charge at any time in the
future. DHS believes that an alien who uses certain types of public
benefits for the more than 12 months
[[Page 41315]]
within a 36 month period of time can reasonably be said to lack self-
sufficiency because her or she cannot meet his or her basic living
needs. DHS has limited the type of public benefits to generally means-
tested benefits that provide cash for income maintenance or meet the
basic living needs of food and nutrition, housing, and healthcare. DHS
believes that receipt of these public benefits alone for more than 12
months in the aggregate within any 36-month period suggests a lack of
self-sufficiency, as such receipt exceeds what could reasonably be
defined as a nominal or temporary need.
8. Adjudication and Processing
Comment: Multiple commenters stated that the rule would exacerbate
USCIS and immigration court processing backlogs. Other commenters
stated that the proposed rule outlined a process that was confusing at
best, and would increase the number of appeals and deepen nationwide
immigration processing delays. Similarly, several commenters said the
rule, while not binding on the immigration courts, would further
exacerbate an already record high case volume in the immigration
courts. They further expressed concerns that increased evidentiary
requirements, heightened scrutiny, and uncertainty as to what standard
to apply, will delay adjudications, add to the backlog and result in
inconsistent outcomes. One commenter said that this rule will further
delay visa processing. Some commenters asserted that the proposed
changes would greatly complicate the adjudication process by placing a
greater burden on individuals who will be required to provide more
evidence and paperwork to establish that they are not likely at any
time to become a public charge and will require adjudicators to spend
more time sifting through and verifying information. Several commenters
stated that the rule's heightened evidentiary requirements and totality
of the circumstances standard would exacerbate backlogs and cause
uncertainty in adjudications.
Several commenters provided data on current processing times and
estimated processing times under the proposed rule. Commenters stated
that families would suffer the consequences of case processing delays
such as job loss and food insecurity. Several commenters cited studies
and stated that the increased processing times would hinder immigrants'
ability to become or remain self-sufficient because the delays could
financially impair immigrants during the time they could not legally
work.
A commenter wrote that the backlog for adjustment of status reviews
was already significant, and new requirements in the proposed rules
would simply exacerbate those conditions. A commenter stated that
immigration officers and consular officers will have a limited amount
of time to properly review documents and employment letters, and will
not undertake an effective, case-by-case appraisal of applications.
Similarly, supervising officers will not have enough time to review
each denial thoroughly.
Response: As noted by commenters, this rule is not binding on the
immigration courts or the Board of Immigration Appeals (BIA). It is
DHS's understanding that DOJ is developing a public charge proposed
rule, which would address DOJ's standard for assessing public charge
inadmissibility and deportability. DHS will work with DOJ to ensure
consistent application of the public charge ground of inadmissibility.
DHS reiterates, however, that this final rule pertains only to public
charge inadmissibility determinations made by DHS for applicants
seeking admission or adjustment of status, public charge bonds, as well
the conditions DHS has set for nonimmigrants applying for an extension
of stay or change of status with USCIS. DHS believes that concerns
about DOJ's adjudication of cases pending before immigration courts,
including immigration court backlogs, are more appropriately addressed
by DOJ in the context of their public charge rulemaking.
With respect to commenters' concerns that the DHS final rule would
result in inconsistent outcomes, DHS disagrees with the assertion that
the rule will lead to inconsistent determinations, or that it creates
confusion, in a way that is at all inconsistent with congressional
intent. Given the wording of section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), which states that the public charge inadmissibility
determination is ``in the opinion of'' the Attorney General and based
on consideration of a range of circumstances particular to the alien,
DHS believes that the determination is inherently subjective in
nature.\84\ Because each case will be determined on its own merits, and
applicants' individual circumstances will vary, it is reasonable to
expect that public charge inadmissibility determinations will vary.
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\84\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l Cmm'r
1974) (``[T]he determination of whether an alien falls into that
category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421
(Att'y Gen. 1962) (``[U]nder the statutory language the question for
visa purposes seems to depend entirely on the consular officer's
subjective opinion.'').
---------------------------------------------------------------------------
Additionally, while the rule may increase USCIS processing times,
such is the burden of robust enforcement of the law. USCIS is committed
to timely, accurate, and lawful adjudications, and plans to increase
resources for affected applications as appropriate. USCIS, as a fee
funded agency, may set fees to support the additional workload
associated with adjudication of cases subject to section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4). USCIS officers will receive training on
the new standards set forth in this final rule, which will include
training on how to treat public benefits received before the effective
date of this rule. Any increases to adjudication time will not affect
an applicant's ability to apply for an employment authorization
document if otherwise eligible.\85\
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\85\ 8 CFR 274a.12(c)(9).
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Finally, with respect to comments regarding visa processing time
for consular officers, DHS believes that such matters are more
appropriately addressed by DOS. This rule only addresses DHS's public
charge inadmissibility determinations in applications for admission or
adjustment of status. However, it is DHS's understanding that DOS will
update its FAM to ensure consistency with the DHS rule.
Comment: Many commenters addressed concerns about the adjudication
of extension of stay and change of status applications, adjudication
delays, and the uncertainty of being able to obtain a future status
when seeking an extension of stay or change of status. Some commenters
stated that the proposed rule failed to identify the potential Request
for Evidence (RFE) and denial rate for applicants. Similarly,
commenters stated that the proposed rule's RFE provision would cause
significant uncertainty for employers, create obstacles to effective
business planning, and increase costs for employers because of
potential processing delays and backlogs. Many commenters raised
concerns about adjudication delays for workers and other nonimmigrant
categories, such as H-2A nonimmigrant workers and their employers, and
other categories.
[[Page 41316]]
Response: DHS does not anticipate any significant processing delays
in the adjudication of extension of stay and change of status requests
filed by or on behalf of nonimmigrants based on the new conditions
imposed in the rule relating to the past and current receipt of public
benefits. This is especially so in light of that fact that DHS is
removing the requirement that an officer assess the alien's likelihood
of receiving public benefits in the future and that USCIS will no
longer seek to request that the alien submit Form I-944. Overall, DHS
is committed to ensuring that USCIS has the necessary resources to
provide for the timely adjudication of immigration benefits.
Additionally, USCIS believes that the number of RFEs actually issued
relating to these rule changes will be relatively small as long as the
employers and petitioners/beneficiaries submit properly documented
petition.
9. Privacy Concerns
Comment: A commenter expressed concern about the lack of clarity on
how DHS plans to use, store, access and protect the health data it
receives. The commenter stated that copies of medical records provided
by applicants may contain highly sensitive information unrelated to the
immigration application or the likelihood of the person becoming a
public charge. A few commenters expressed concern that the proposed
rule's use of health insurance information and data raises data and
privacy concerns, stating USCIS would accumulate an overbroad body of
data, and this could violate the Health Insurance Portability and
Accountability Act (HIPAA).
Response: DHS rejects the comment that the rule raises data and
privacy concerns that could violate HIPAA. Congress mandated that DHS
consider an applicant's health as part of every public charge
inadmissibility determination.\86\ In order to assess an alien's health
in the totality of the circumstances, DHS will generally rely on
medical information provided by civil surgeons on the Report of Medical
Examination and Vaccination Record (Form I-693), or report of a panel
physician, to assess whether the alien has been diagnosed with a
medical condition that is likely to require extensive medical treatment
or institutionalization, or that will interfere with the alien's
ability to provide and care for himself or herself, to attend school,
or to work, upon admission or adjustment of status. DHS will also
consider whether the alien has resources to pay for reasonably
foreseeable medical costs.
---------------------------------------------------------------------------
\86\ See INA 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
In other words, DHS will be relying on existing medical reports and
information submitted with the alien's applications; such information,
once submitted by the alien, will become a part of the alien's
administrative record. Such data is collected and maintained consistent
with the Privacy Act of 1974 \87\ (Privacy Act) and the System of
Records Notice (SORN), which identifies the purpose for which
Personally Identifiable Information (PII) is collected, from whom and
what type of PII is collected, how the PII is shared externally
(routine uses), and how to access and correct any PII maintained by
DHS.\88\
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\87\ See 5 U.S.C. 552.
\88\ See generally Notice of Modified Privacy Act System of
Records, 82 FR 43556, 43564 (Sept. 18, 2017) (``DHS/USCIS safeguards
records in this system according to applicable rules and policies,
including all applicable DHS automated systems security and access
policies. USCIS has imposed strict controls to minimize the risk of
compromising the information that is being stored.'').
---------------------------------------------------------------------------
Additionally, while USCIS is generally not a covered entity bound
by HIPAA,\89\ USCIS complies with the Privacy Act in safeguarding
information in the applicable systems of records. Such information is
generally confidential and is used primarily for immigration
purposes.\90\ The data is collected and kept in an alien's
administrative record consistent with the Privacy Act,\91\ which
applies to information that is maintained in a ``system of records''
from which information is retrieved by the name of an individual or by
some identifying number, symbol, or other identifying particular
assigned to the individual.
---------------------------------------------------------------------------
\89\ See 45 CFR 160.103.
\90\ See also E.O. No. 13768, Enhancing Public Safety in the
Interior of the United States 82 FR 8799, 8802 (Jan. 30, 2017).
Section 14 of E.O. 13768 limits the rights and protections of the
Privacy Act, subject to applicable law, to U.S. citizens and lawful
permanent residents. See also DHS Privacy Policy Regarding
Collection, Use, Retention, and Dissemination of Personally
Identifiable Information (Apr. 25, 2017), https://www.dhs.gov/sites/default/files/publications/PPGM%202017-01%20Signed_0.pdf (last
visited May 8, 2019). The latter memorandum sets out DHS policy
requiring that decisions regarding the collection, maintenance, use,
disclosure, retention, and disposal of information being held by DHS
must be consistent with and take into consideration the Fair
Information Practice Principles: Transparency, Individual
Participation, Purpose Specification, Data Minimization, Use
Limitation, Data Quality and Integrity, Security, and Accountability
and Auditing.
\91\ See 5 U.S.C. 552.
---------------------------------------------------------------------------
E. General Comments Regarding Legal Authority and Statutory Provisions
1. Lack of Statutory Authority/Inconsistent With Congressional Intent
Comment: Several commenters said DHS lacks statutory authority to
promulgate the NPRM. Multiple commenters stated the rule is an over-
reach, requires congressional consideration, involvement, or approval,
and that only Congress can enact such specific policy changes. One
commenter stated that the rule's attempt to change public charge policy
in a regulation rather than in legislation is inconsistent with the
Administration's stated goal to reduce the power of administrative
agencies.
Response: The public charge inadmissibility rule is within DHS's
authority and does not require congressional action. The Secretary has
the authority to enforce and administer the immigration laws of the
United States.\92\ The Secretary is also authorized to prescribe
regulations, forms, and instructions necessary to carry out the
authority provided in section 103(a)(1) of the Act, 8 U.S.C.
1103(a)(1).\93\ Additionally, the Secretary is charged with
administering the public charge ground of inadmissibility. Therefore,
this rule does not exceed or overreach the Secretary's authority, and
further, does not require congressional involvement, consideration, or
approval.
---------------------------------------------------------------------------
\92\ INA section 103(a)(1), 8 U.S.C. 1103(a)(1).
\93\ INA section 103(a)(3), 8 U.S.C. 1103(a)(3).
---------------------------------------------------------------------------
This public charge inadmissibility rule is a permissible
implementation of the public charge inadmissibility statute enacted by
Congress.\94\ The public charge inadmissibility rule provides important
guidance for purposes of implementing the statute, including by
defining statutory terms that have never been defined by Congress in
the over 100 years since the public charge inadmissibility ground first
appeared in the immigration laws.
---------------------------------------------------------------------------
\94\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
DHS believes the terms set forth in the public charge
inadmissibility ground need clarification so that DHS can consistently
adjudicate applications subject to public charge inadmissibility
determinations in a manner that better ensures aliens are self-
sufficient and not reliant on the government (i.e., public benefits)
for assistance to meet their basic needs.\95\
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\95\ See 8 U.S.C. 1601.
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Finally, DHS disagrees that the public charge rule is inconsistent
with the Administration's goals to reduce the role of executive
agencies. The rule's
[[Page 41317]]
aims are consistent with the Administration's goal of rigorously
enforcing all grounds of inadmissibility.\96\
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\96\ See, e.g., Memorandum from the President to the Secretary
of State, the Attorney General, and the Secretary of Homeland
Security, Implementing Immediate Heightened Screening and Vetting of
Applications for Visas and Other Immigration Benefits, Ensuring
Enforcement of All Laws for Entry Into the United States, and
Increasing Transparency Among Departments and Agencies of the
Federal Government and for the American People, 82 FR 16279, 16280
(Apr. 3, 2017) (``I direct the Secretary of State, the Attorney
General, the Secretary of Homeland Security, and the heads of all
other relevant executive departments and agencies (as identified by
the Secretary of Homeland Security) to rigorously enforce all
existing grounds of inadmissibility and to ensure subsequent
compliance with related laws after admission. The heads of all
relevant executive departments and agencies shall issue new rules,
regulations, or guidance (collectively, rules), as appropriate, to
enforce laws relating to such grounds of inadmissibility and
subsequent compliance. To the extent that the Secretary of Homeland
Security issues such new rules, the heads of all other relevant
executive departments and agencies shall, as necessary and
appropriate, issue new rules that conform to them.'' (emphasis
added)).
---------------------------------------------------------------------------
Comment: A number of commenters stated that the rule is generally
inconsistent with Congress' intent and past policies. Commenters said
the proposed rule is a significant, unjustified change from the current
public charge policy. One commenter said that DHS should not re-
interpret a term that Congress had left undefined, and said that if
future administrations similarly revised policy based on their
understanding of congressional intent, such policy would ``change
wildly with every administration,'' and would result in ``vast
inconsistencies in the law.'' A commenter specifically stated that the
rule is an ``unlawful attempt to rewrite Congress's rules'' and that
DHS cannot ``exercise its authority in a manner that is inconsistent
with the administrative structure that Congress enacted into law'' and
needs to comply with Congress's intent in creating the public charge
inadmissibility ground. One commenter said the proposed rule would
effectively overturn decades of congressional and State decision-making
regarding alien access to public benefits with one unilateral executive
action. Multiple commenters said the rule is contrary to, or
inconsistent with, current law, congressional intent, and the
traditional interpretation of public charge, as well as inconsistent
with the history of how public charge has been understood. One
commenter noted that DHS's contention that ``Congress `must have
recognized that it made certain public benefits available to some
aliens who are also subject to the public charge ground of
inadmissibility, even though receipt of such benefits could render the
alien inadmissible as likely to become a public charge' . . . strains
credulity and is simply not a reasonable interpretation of the
statutes, as required by Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984).''
Response: This rule is not inconsistent with Congress' intent in
enacting the public charge ground of inadmissibility in IIRIRA, or in
enacting PRWORA. DHS believes that the policy goals articulated in
PRWORA and underlying the creation of the mandatory factors for public
charge inadmissibility determinations in IIRIRA inform DHS's
administrative implementation of the public charge ground of
inadmissibility. When passing IIRIRA, Congress added factors to
consider in public charge inadmissibility determinations in section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)), but left it to DHS and DOJ
to specify how and which public benefits should be considered in a
public charge inadmissibility determination.\97\ In the same year,
Congress passed PRWORA with the clear intent to promote self-
sufficiency of those entering the United States and to ensure that
public benefits do not provide an incentive for immigration to the
United States.\98\ This public charge inadmissibility rule, in
accordance with PRWORA, disincentivizes immigrants from coming to the
United States in reliance on public benefits.\99\ As explained in the
NPRM and this final rule, DHS agrees that this rule takes a different
approach to interpreting the public charge ground of inadmissibility
than the 1999 Interim Field Guidance. In the NPRM, DHS acknowledged
that it was making a change and provided a detailed explanation and
justification for that change. Therefore, DHS disagrees that these
changes are unjustified.
---------------------------------------------------------------------------
\97\ See Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-
546, 3009-674 (Sept. 30, 1996) (amending INA section 212(a)(4), 8
U.S.C. 1182(a)(4)).
\98\ See Public Law 104-193, section 400, 110 Stat. 2105, 2260
(Aug. 22, 1996) (codified at 8 U.S.C. 1601).
\99\ See Lewis v. Thompson, 252 F.3d 567, 583-84 (2d Cir. 2001)
(``it is reasonable for Congress to believe that some aliens would
be less likely to hazard the trip to this country if they understood
that they would not receive government benefits upon arrival . . .
.'')
---------------------------------------------------------------------------
With respect to commenter statements that the rule departs from the
historical and traditional understanding of what it means to be a
public charge, DHS disagrees. As an initial matter, this is the first
time that DHS is defining in regulation an ambiguous terms that
Congress itself left undefined. As discussed in greater detail in the
section addressing the regulatory definition of public charge, DHS
believes that its definition is consistent with what it means to be a
public charge--a lack of self-sufficiency and a need to rely on the
government for support. DHS believes that its rigorous and fair
regulatory framework will ensure that aliens coming to or opting to
stay in the United States permanently are self-sufficient. DHS explains
the basis for its interpretation of the term ``public charge'' more
fully below.
DHS also disagrees with commenters that this rule changes federal
and state decision-making regarding aliens' access to public benefits.
The rule itself does not prohibit any eligible alien or citizen from
accessing public benefits for which they qualify. As explained above,
DHS has the legal authority to promulgate the rule and believes the
rule provides needed guidance to determine whether an alien is
inadmissible as likely to become a public charge.
Comment: One commenter stated that ``[c]ontrary to DHS's
interpretation, the enactment of PRWORA and section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), close in time suggests that Congress assumed
that receipt of these public benefits would not be counted against a
person in determining whether the individual is likely to become a
public charge.'' A commenter stated that the rule is ``an intentional
attempt at using the specific language within PRWORA as justification
for a new, more restrictive rule which would override portions of
PRWORA.'' Other commenters stated that the proposed rule is unnecessary
in light of PRWORA's restrictions on access to benefits to certain
immigrants and their families. One commenter noted that in advancing
the Administration's goals, the rule undercuts Congress' original
intent in creating nutrition, health, and human services programs.
Response: The public charge inadmissibility rule is not
inconsistent with PRWORA, nor does it contravene PRWORA's requirements.
When passing IIRIRA in 1996, Congress added the mandatory factors to be
considered in public charge inadmissibility determinations to section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), but left discretion to the
relevant agencies, including DHS, to interpret those factors, including
how to incorporate a consideration of public benefit receipt into the
public charge inadmissibility determination. As discussed in the NPRM,
consideration of receipt of public benefits was part of the public
charge determination before Congress
[[Page 41318]]
passed IIRIRA and PRWORA.\100\ At the same time that Congress added
mandatory factors to be considered in the public charge inadmissibility
analysis, Congress passed PRWORA, establishing eligibility restrictions
for aliens receiving public benefits with the clear intent to promote
the self-sufficiency of those entering the United States and to ensure
that public benefits do not provide an incentive for immigrants to come
to the United States.\101\ Congress did nothing, however, to constrain
DHS (then INS) from considering the receipt of public benefits in a
public charge inadmissibility determination as INS had done previously.
In light of this history, DHS's proposed public charge rule is
consistent with the principles of PRWORA and aligns this regulation to
those principles. As such, this public charge rule is rationally
related to Congress' intent to create a disincentive for immigrants to
rely on public benefits if they are seeking admission to the United
States,\102\ and a permissible interpretation of section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4).
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\100\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51158 (proposed Oct. 10, 2018) (``In Matter of Martinez-Lopez, the
Attorney General indicated that public support or the burden of
supporting the alien being cast on the public was a fundamental
consideration in public charge inadmissibility determinations'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421 (Att'y Gen. 1964).
\101\ See 8 U.S.C. 1601.
\102\ See Lewis v. Thompson, 252 F.3d 567, 583-84 (2d Cir. 2001)
(``it is reasonable for Congress to believe that some aliens would
be less likely to hazard the trip to this country if they understood
that they would not receive government benefits upon arrival . . .
.'').
---------------------------------------------------------------------------
Comment: One commenter stated that the rule is inconsistent with
congressional intent set forth in the IIRIRA Conference Report, because
that report noted that certain benefits, such as public health,
nutrition, and in-kind community service programs, should not be
included in the prohibition on aliens receiving public benefits.\103\
Other commenters stated that when Congress expanded the definition of
``public charge'' in 1996, it rejected a definition of ``public
charge'' that would have included food and healthcare assistance; thus,
expanding the definition of ``public charge'' to include such
assistance would ignore Congress' legislative intent.
---------------------------------------------------------------------------
\103\ See H.R. Rep. No. 104-828, at 238 (1996) (Conf. Rep.).
---------------------------------------------------------------------------
Response: It is not clear what the commenters are referencing when
referring to Congress' rejection of a definition of public charge that
included food and healthcare assistance. It may be a reference to the
proposed ground of deportability in the version that passed the U.S.
Senate that included Medicaid and food stamps (now SNAP), among other
programs, in the list of public benefits that were considered one of
the grounds of deportability for public charge.\104\ DHS notes that the
Senate-passed bill would not have amended the public charge ground of
inadmissibility.\105\ Additionally, the administration of the public
charge inadmissibility ground under this rule is significantly
different from the public charge deportability provisions considered by
the Senate. The proposed ground of deportability, for instance, made
aliens automatically deportable (with certain exceptions) if they
received certain public benefits, including Medicaid and food stamps,
for 12 months within five years of admission. This rule, by contrast,
focuses on future receipt of public benefits for more than 12 months in
the aggregate in a 36-month period. The prospective nature of the
determination under this rule renders the definition significantly
different. With respect to past receipt, this rule requires DHS to
evaluate such receipt as one of several factors to be considered in the
totality of circumstances. This rule therefore does not impose the
provision included in the Senate-passed bill that Congress had
rejected.\106\
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\104\ H.R. 2202, 104th Cong. sec. 202 (as amended and passed by
Senate, May 2, 1996).
\105\ See H.R. 2202, 104th Cong. sec. 202 (as amended and passed
by Senate, May 2, 1996).
\106\ See Hamdan v. Rumsfeld, 548 U.S. 557, 579-80 (2006)
(``Congress' rejection of the very language that would have achieved
the result the Government urges here weighs heavily against the
Government's interpretation.''); see also Competitive Enterprise
Inst. v. U.S. Dep't of Transp., 863 F.3d 911, 917 (DC Cir. 2017)
(``Congressional inaction lacks persuasive significance because
several equally tenable inferences may be drawn from such inaction,
including the inference that the existing legislation already
incorporated the offered change.'' (citations and internal
quotations omitted)).
---------------------------------------------------------------------------
DHS notes that the quotation from IIRIRA Conference Report \107\
does not relate to public charge inadmissibility, but to PRWORA and
exceptions to the prohibition on aliens accepting certain public
benefits. While language in a Conference Report, especially when
discussing a separate piece of legislation, is not binding, the rule is
not inconsistent with the language in the report because the public
benefits covered by the rule do not include those excepted under
PRWORA.
---------------------------------------------------------------------------
\107\ See H.R. Rep. No. 104-828, at 238 (1996) (Conf. Rep.).
---------------------------------------------------------------------------
Comment: Commenters stated that reversing the policies set forth in
the 1999 Interim Field Guidance, which have allowed immigrants to rely
on the previously excluded benefits for decades, is contrary to
congressional intent. One commenter stated that the rule is
inconsistent with congressional intent, which ``recognizes the
importance of access to preventive care and nutrition benefits for all
people, including immigrants.''
Response: DHS acknowledges that this rule is a departure from the
1999 Interim Field Guidance. DHS also acknowledges that some aliens
subject to this rule will need to make decisions with respect to the
receipt of public benefits for which they are eligible. Ultimately,
however, DHS does not believe that its inclusion of previously-excluded
benefits is contrary to congressional intent, particularly with respect
to access to preventive care and nutrition benefits. In fact, DHS
believes it would be contrary to congressional intent to promulgate
regulations that encourage individuals subject to this rule to rely on
any of the designated public benefits, or to ignore their receipt of
such benefits, as this would be contrary to Congress's intent in
ensuring that aliens within the United States are self-sufficient and
rely on their own resources and capabilities, and those of their
family, sponsors, and private organizations.\108\
---------------------------------------------------------------------------
\108\ See 8 U.S.C. 1601(2)(A).
---------------------------------------------------------------------------
To the extent that commenters are concerned with the consequences
of receipt of previously-excluded public benefits, DHS notes that it is
not considering an alien's receipt of previously excluded public
benefits in the public charge inadmissibility determination, if such
receipt occurred before the effective date of this final rule and
receipt of such benefits was not considered under the 1999 Interim
Field Guidance.\109\ However, DHS is considering an alien's receipt of
public benefits that were included in the 1999 Interim Field Guidance
and received prior to the effective date of the rule as a negative
factor in the totality of the circumstances analysis. DHS also is not
considering past receipt of public benefits by an alien if such receipt
occurred while the alien was in a classification or status that was
exempt from public charge inadmissibility or for which a waiver of
public charge inadmissibility was received.
---------------------------------------------------------------------------
\109\ See 8 CFR 212.22(d).
---------------------------------------------------------------------------
Comment: Some commenters stated that DHS only has the authority to
administer individual reviews of an applicant's likelihood of becoming
dependent on the government in the future, and cannot consider
government expenditures on means-tested programs. One of these
commenters suggested that
[[Page 41319]]
to the extent DHS is considering aggregate costs of public benefits, it
also should consider aggregate benefits. This commenter suggested that
DHS abandon its effort to use public charge reform as a back door means
of realizing the political goals of reducing government expenditures on
means-tested programs authorized by Congress. Another commenter stated
that whether or not there is a large government expenditure on a
particular program is irrelevant to the assessment of whether a
particular individual may become a public charge.
Response: DHS believes that these commenters misunderstood DHS's
proposal. DHS is not taking expenditures on public benefit programs
into account for purposes of any single public charge inadmissibility
determination. Rather, DHS has taken into consideration expenditures on
public benefit programs in order to appropriately circumscribe, for the
purpose of administrative efficiency, the list of public benefits that
will be considered in public charge inadmissibility determinations.
Therefore, under this rule, DHS will take into consideration all of the
mandatory factors in the totality of the alien's circumstances,
including whether the alien received public benefits as defined in
212.21(b).
2. Additional Legal Arguments
a. Allegations That the Rule Is Arbitrary and Capricious
Comment: Many commenters stated that the proposed rule is arbitrary
and capricious. Commenters said that the rule would be struck down
under the APA. Commenters stated that DHS failed to provide a reasoned
or adequate explanation for the rule, including one based on facts and
data. Other commenters asserted that the public charge rule, as
proposed, is unnecessary, has no legal justification, and is overbroad.
Other commenters stated that the rule ``address[es] a problem that
doesn't even exist.'' One commenter stated that ``DHS has not cited any
evidence that the current statute is ineffective in promoting self-
sufficiency or that there is some need for increasing the pool of
inadmissibility. Without substantiating the need for this change, DHS
is simply proposing unnecessary and harsh restrictions against
immigrants.'' One commenter stated that current immigration policy
provides sufficient protection for the nation's interests, including
through existing eligibility limits for public benefits.
A few commenters stated that ``DHS offered inadequate reasoning for
rejecting the 1999 Interim Field Guidance and making a massive change
in the agency's interpretation of federal law.'' The commenter stated
that DHS failed to provide an explanation as to why the interpretation
used for the last 20 years is inappropriate, or to justify the
particular articulation of resource and health factors contained in the
rule. Many commenters stated that the rule failed to provide a
reasonable or rational nexus between the data cited and the policy
decisions made. One commenter claimed that the proposed rule did not
offer adequate justification that access to public benefits create an
incentive to migrate to the United States. The commenter also asserted
that the proposal is based on inaccurate and misleading data concerning
low-wage work, and thus fails to account for the societal benefit of
low-wage workers who depend on benefits to supplement their income.
Response: DHS believes that it has provided adequate justification
for the rule. DHS has interpreted its authorizing statute to clarify
the criteria for when an alien would be found inadmissible as likely at
any time to become a public charge, based on the consideration of
statutory factors. DHS provided an explanation for why and how the
proposed rule furthers congressional intent behind both the public
charge inadmissibility statute and PRWORA in ensuring that aliens being
admitted into and intending to settle permanently in the United States
be self-sufficient and not reliant on public resources. DHS also
explained the deficiencies of the current standard established by the
1999 Interim Field Guidance, including that the guidance assumed an
overly permissible definition of dependence on public benefits by only
including consideration of certain cash benefits, rather than a broader
set of benefits, whether cash or non-cash, that similarly denote
reliance on the government rather than the alien's own resources and
capabilities, or the resources and capabilities of the alien's family,
sponsors, and private organizations. In expanding the list of benefits
to be considered, DHS explained why a broader list should be
considered, and provided data to support the specific list proposed in
the proposed rule. For instance, DHS referenced Federal Government data
for the rates of participation in such benefit programs by non-citizens
across factors related to the public charge inadmissibility
determination, such as income. DHS disagrees that the data provided to
support these conclusions was either inaccurate or misleading, and
notes that DHS followed accepted practices for making inferences at a
95 percent confidence level.
DHS also explained that the 1999 Interim Field Guidance failed to
offer meaningful guidance for purposes of considering the mandatory
factors and was therefore ineffective in guiding adjudicators in making
a totality of the circumstances public charge inadmissibility
determinations. In response to this deficiency, DHS proposed to
establish definitive legal standards and evidentiary criteria for each
of the mandatory factors as relevant to the determination of whether an
alien will be more likely than not to become a public charge at any
time in the future.
DHS agrees with commenters that the public charge inadmissibility
rule constitutes a change in interpretation from the 1999 Interim Field
Guidance. Courts have long established that agencies are not bound
forever to maintain the same statutory interpretation.\110\ To change
its prior interpretation, an agency need not prove that the new
interpretation is the best interpretation, but should acknowledge that
it is making a change, provide a reasoned explanation for the change,
and indicate that it believes the new interpretation to be better.\111\
DHS has laid out the proposed changes from the 1999 Interim Field
Guidance in great detail and provided a justification for each. DHS
also explained why it believes the new rule to be a superior
interpretation of the statute to the 1999 Interim Field Guidance and
explained why such interpretation is desirable from a public policy
perspective. Moreover, as explained above, DHS is clearly authorized to
promulgate regulations interpreting the public charge inadmissibility
ground. DHS carefully considered the public comments on this rule and
made
[[Page 41320]]
adjustments based on the input it received. Accordingly, DHS believes
this rule has been issued in compliance with the APA.
---------------------------------------------------------------------------
\110\ See, e.g., Rust v. Sullivan, 500 U.S. 173, 186-87 (1991)
(acknowledging that changed circumstances and policy revision may
serve as a valid basis for changes in agency interpretations of
statutes); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 863-64 (1984) (``The fact that the agency has from
time to time changed its interpretation of the term `source' does
not, as respondents argue, lead us to conclude that no deference
should be accorded the agency's interpretation of the statute. An
initial agency interpretation is not instantly carved in stone. On
the contrary, the agency, to engage in informed rulemaking, must
consider varying interpretations and the wisdom of its policy on a
continuing basis.''); Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 42 (1983) (agencies ``must be given
ample latitude to `adapt their rules and policies to the demands of
changing circumstances' '' (quoting Permian Basin Area Rate Cases,
390 U.S. 747, 784 (1968))).
\111\ See generally FCC v. Fox Television Stations, Inc., 556
U.S. 502 (2009).
---------------------------------------------------------------------------
DHS acknowledges that its broader definitions for public benefits
and public charge may result in additional applicants being determined
to inadmissible and therefore ineligible for admission or adjustment of
status because they are likely at any time to become a public charge.
However, as noted elsewhere in this rule, DHS believes that expanding
the definitions of public benefits and public charge and any resulting
denials of applications based on section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4) are reasonable and are consistent with Congress' intent and
will better ensure that aliens seeking to come to the United States
temporarily or permanently are self-sufficient.\112\
---------------------------------------------------------------------------
\112\ See Nat'l Cable & Telecommunications Ass'n v. Brand X
internet Servs., 545 U.S. 967, 1001 (2005) (``the Commission is free
within the limits of reasoned interpretation to change course if it
adequately justifies the change.''); Competitive Enter. Inst. v.
United States Dep't of Transportation, 863 F.3d 911, 918 (D.C. Cir.
2017) (``The benefits of the regulation are also modest, but the
Department reasonably concluded that they justify the costs.'')
---------------------------------------------------------------------------
DHS also notes that as stated previously, available data neither
provides a precise count nor reasonable estimates of the number of
aliens who are both subject to the public charge ground of
inadmissibility and are eligible for public benefits in the United
States.
b. Alternatives
Comment: Commenters stated that, under E.O. 13563 and other
applicable authority, DHS should have considered other feasible
regulatory alternatives to its proposed rule. One commenter asserted
that the proposed rule failed to consider a less restrictive
alternative, specifically, enforcing affidavits of support. This
commenter stated that this failure makes the rule arbitrary and
capricious.
Response: DHS disagrees with commenters who argued that the
proposed rule failed to consider other alternatives to this rule, or
that the proposed rule was unnecessary because DHS can simply increase
enforcement of Form I-864. Under E.O. 13563, the agency must identify
available alternatives. In this case, DHS did just that and explained
the alternatives considered in the proposed rule, including a ``no-
action'' alternative--continuing to administer this ground of
inadmissibility under the 1999 Interim Field Guidance.\113\ DHS also
considered a more expansive definition of ``public benefit,'' that
would have potentially included a range of non-cash benefit programs
falling in specific categories (such as programs that provide
assistance for basic needs such food and nutrition, housing, and
healthcare). DHS rejected these alternatives for the reasons discussed
in the proposed rule.\114\
---------------------------------------------------------------------------
\113\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51276 (proposed Oct. 10, 2018).
\114\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51276 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
With respect to enforcing Form I-864 as an alternative to this
rule, DHS notes that this proposal is neither an adequate nor available
alternative to this rule. As explained in the proposed rule, DHS's
objective in promulgating this rule is to better ensure that aliens
seeking admission or adjustment of status do not rely on public
resources to meet their needs, but rather rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations. While Form I-864 serves a crucial function where
required to be submitted by section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), it is not an alternative to consideration of the mandatory
factors established by Congress in determining whether an alien is
likely at any time to become a public charge. As discussed elsewhere in
this rule, Form I-864 ensures that the sponsor is available to support
the sponsored alien in the event the sponsored alien is unable or
unwilling to support himself or herself and is also intended to provide
a reimbursement mechanism for the government to recover from the
sponsor the amount of public benefits distributed to the sponsored
alien. In fact, the plain language of the statute permits sponsored
aliens to sue to enforce the support obligation, if necessary.\115\ In
addition, Form I-864 may also be taken into consideration in the
totality of the circumstances public charge inadmissibility
determination.\116\ Had Congress intended enforcement of Form I-864 to
be the sole mechanism by which DHS could ensure that an alien does not
become a public charge after admission or adjustment of status,
Congress would have included it as the sole mandatory factor to be
considered when making public charge inadmissibility determinations.
Instead, Congress required DHS to consider the mandatory factors to
assess whether the alien is likely at any time to become a public
charge based on his or her present circumstances and relevant past
actions (e.g., any past receipt of public benefits, employment history,
etc.), even if a sufficient Form I-864 is submitted on behalf of an
alien.\117\
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\115\ See INA section 213A(a)(1)(B), 8 U.S.C. 1183a(a)(1)(B); 71
FR 35732, 35743 (Jun. 21, 2006).
\116\ See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
\117\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
In addition, if the sponsor does not provide financial support to
the sponsored alien, the sponsored alien may bring a suit in the court
of law.\118\ In the event a sponsored alien receives public benefits,
seeking reimbursement pursuant to the agreement made in Form I-864
requires deployment of relevant resources by the agency that granted
the benefit and/or use of judicial resources.
---------------------------------------------------------------------------
\118\ See, e.g., Wenfang Lieu v. Mund, 686 F.3d 418 (7th Cir.
2012) (the sponsored immigrant is a third party beneficiary whose
rights exist apart from whatever rights she might or might not have
under Wisconsin divorce law, and she has no legal obligation to
mitigate damages).
---------------------------------------------------------------------------
Simply put, the affidavit of support is not a substitute for the
assessment of the mandatory factors. For these reasons, DHS determined
that simply enforcing the affidavit of support under section 213A of
the Act was not an adequate legal or practical alternative to ensuring
that DHS appropriately applies mandatory factors established by
Congress to assess whether the alien is likely at any time in the
future to become a public charge. Furthermore, considering a sufficient
affidavit of support under section 213A of the Act does not, alone,
achieve Congress' goal to limit the incentive to immigrate to the
United States for the purpose of obtaining public benefits.
c. Retroactivity
Comment: A commenter stated that, despite the apparent attempt to
draft the proposed rule appropriately, its plain language would allow
it to be applied retroactively. The commenter stated that because not
all sections specifically exempt benefits received prior to the rule's
effective date, DHS could apply the rule retroactively. For example,
under 8 CFR 212.22(c), an alien's receipt of SNAP within 36 months
preceding application for adjustment of status would weigh heavily in
favor of a finding of public charge inadmissibility, but that paragraph
does not specifically limit DHS's consideration of SNAP receipt to
benefits received on or after the effective date of the rule. This
commenter also stated that the proposed rule violated reasonable
reliance law and violates the APA.
Response: DHS disagrees that the rule will be applied retroactively
to aliens subject to the public charge ground of inadmissibility. As
stated in the DATES section of this final rule, this rule will become
effective 60 days after it is
[[Page 41321]]
published in the Federal Register, and the rule will be applied to
applications and petitions postmarked (or if applicable, electronically
submitted) on or after that date. Thus, for instance, the public charge
inadmissibility determination factors and criteria will apply only to
applications that are postmarked (or if applicable, electronically
submitted) on or after that date; applications that were postmarked
before the effective date and accepted by USCIS pursuant to 8 CFR
103.2(a)(1) and (a)(2), and are pending on the effective date will be
adjudicated under the criteria set forth in the 1999 Interim Field
Guidance. For the purposes of determining whether a case was postmarked
before the effective date of the rule, DHS will consider the postmark
date for the application or petition currently before USCS, not the
postmark date for any previously-filed application or petition that
USCIS rejected pursuant to 8 CFR 103.2(a)(7)(ii).
Similarly, the condition related to public benefit receipt in the
context of extensions of stay and change of status will only apply to
petitions and applications postmarked (or if applicable, submitted
electronically) on or after the effective date of this rule.
In addition, and as stated in this final rule, DHS will not apply
the new expanded definition of public benefit to benefits received
before the effective date of this final rule. Therefore, any benefits
received before that date will only be considered to the extent they
would have been covered by the 1999 Interim Field Guidance. In the
commenter's example, SNAP benefits received by an alien prior to the
effective date of the final rule would not be considered as part of the
alien's public charge inadmissibility determination, because SNAP was
not considered in public charge inadmissibility determinations under
the 1999 Interim Field Guidance. By contrast, as explained in more
detail later in this preamble, for applications postmarked (or if
applicable, electronically submitted) on or after the effective date of
this final rule, an applicant's receipt of cash assistance for income
maintenance prior to the effective date of this rule will be treated as
a negative factor in the totality of the circumstances. However,
regardless of the length of time such benefits were received before the
effective date of this rule, for the purposes of public charge
inadmissibility determinations made for applications postmarked (or if
applicable, submitted electronically) on or after the effective date,
DHS will not treat the receipt of these benefits as a heavily weighted
negative factor.
Comment: One commenter noted that the rule punishes noncitizens for
past conduct and therefore violates the ex post facto clause and is
unconstitutionally retroactive.''
Response: DHS rejects the comment that the public charge
inadmissibility rule violates that ex post facto clause of the U.S.
Constitution. The ex post facto clause prohibits changes to the legal
consequences (or status) of actions that were committed before the
enactment of the law.\119\ The ex post facto clause would generally
only apply to laws that impose criminal penalties.\120\ Although
inadmissibility determinations are not criminal penalties, and so are
generally not subject to the ex post facto clause,\121\ this rule, in
any event, is not impermissibly retroactive in application, as noted in
the immediately preceding response.
---------------------------------------------------------------------------
\119\ U .S. Const. art. I, sec. 9, cl. 3; see Calder v. Bull, 3
Dall. 386, 390-391, 1 L.Ed. 648 (1798) (opinion of Chase, J.).
\120\ See, e.g., Rhines v. Young, 899 F.3d 482, 495 (8th Cir.
2018) (``A criminal or penal law has a prohibited ex post facto
effect if it is ``retrospective, that is, it must apply to events
occurring before its enactment, and it must disadvantage the
offender affected by it.'') (citations omitted), cert. denied, No.
18-8030, 2019 WL 826426 (U.S. Apr. 15, 2019); Bremer v. Johnson, 834
F.3d 925, 932 (8th Cir. 2016);
\121\ Galvan v. Press, 347 U.S. 522, 531 (1954) (Frankfurter,
J.) (``[W]hatever might have been said at an earlier date for
applying the ex post facto Clause, it has been the unbroken rule of
this Court that it has no application to deportation.''); Alvarado-
Fonseca v. Holder, 631 F.3d 385, 391-92 (7th Cir. 2011); Montenegro
v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).
---------------------------------------------------------------------------
d. Due Process/Vagueness and Equal Protection
Comment: Commenters stated that the public charge inadmissibility
determination called for by the proposed rule is too open-ended and
unpredictable. Some commenters pointed to likely confusion about which
benefits will be included or excluded for purposes of a public charge
determination. These commenters further stated that failing to define
the term ``likely,'' as that term is used in the phrase ``likely to
become a public charge,'' would grant too much discretion to
adjudicators in an complex weighing system that would lead to arbitrary
outcomes. Another commenter recommended that the determination system
be scored. Another commenter stated that that the vagueness of the
proposed framework would lead to inconsistent and unfair
determinations.
Response: DHS disagrees that the rule is vague or unpredictable.
Some commenters who alleged that the rule is vague did not provide
specific details to identify which provisions of the rule they were
referring and DHS is therefore unable to specifically address those
claims other than stating general disagreement. In the NPRM, DHS
provided specific examples of various concepts and laid out in great
detail the applicability of the rule to different classes of aliens,
and clearly identified the classes of aliens that would be exempt from
the rule. DHS also provided an exhaustive list of the additional non-
cash public benefits that would be considered, including receipt
thresholds for all designated benefits. DHS explained that it would
make public charge inadmissibility determinations in the totality of
the circumstances, and following consideration of the minimum statutory
factors. The ``vagueness'' associated with a totality of the
circumstances determination is to a significant extent a byproduct of
the statute's requirement that DHS consider a range of minimum factors
as part of the public charge inadmissibility determination. DHS
recognizes that the statutory multi-factor framework will likely result
in more inadmissibility determinations when combined with the standard
in this rule (as compared to the 1999 Interim Field Guidance), but
fundamentally, as it relates to vagueness, the commenters' quarrel is
with Congress, not with DHS.
In any case, in response to public comments, the list of public
benefits has been revised in this final rule, and the threshold has
been simplified such that there is only a single, objective duration-
based threshold applicable to the receipt of all included public
benefits. And DHS has determined, consistent with public commenter
suggestions, that it will not consider the receipt of any benefits not
listed in the rule, therefore removing potential uncertainty. In
addition, DHS remains committed to providing clear guidance to ensure
that there is adequate knowledge and understanding among the regulated
public regarding which benefits will be considered and when, as well as
to ensure that aliens understand whether they are or are not subject to
the public charge ground of inadmissibility.
DHS has also further defined ``likely'' as more likely than not.
While DHS agrees with commenters that the regulation must be
sufficiently clear so that the regulated public can comply with it, DHS
notes that some adjudicator discretion must exist where determinations
are based on a totality of the circumstances examination that is highly
fact-specific. Congress specifically called for a fact-specific,
[[Page 41322]]
discretionary determination in the public charge context.\122\ As is
the case with most regulations, over the course of adjudications, new
fact patterns arise that may require additional guidance to
adjudicators; however this does not make the regulation impermissibly
vague.\123\
---------------------------------------------------------------------------
\122\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4) (``Any
alien, who in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the Attorney General at
the time of the application for admission or adjustment of status,
is likely at any time to become a public charge is inadmissible.'')
(emphasis added).
\123\ Cf., e.g., Freeman United Coal Mining Co. v. Fed. Mine
Safety & Health Review Comm'n, 108 F.3d 358, 362 (D.C. Cir. 1997)
(``Regulations generally satisfy due process so long as they are
sufficiently specific that a reasonably prudent person, familiar
with the conditions the regulations are meant to address and the
objectives the regulations are meant to achieve, would have fair
warning of what the regulations require.'').
---------------------------------------------------------------------------
DHS does not believe that a scoring system would be appropriate for
this analysis, namely because of the wide variations between individual
circumstances of aliens. Both the proposed rule and this final rule
adequately explain how the criteria are to be applied and what evidence
should be considered. USCIS will provide training to its adjudicators
and will engage with the regulated public to the extent necessary to
foster a better understanding and compliance with the regulation.
Comment: One commenter stated that although the Federal Government
has great leeway to enact immigration laws, its actions are still
subject to review for constitutionality. The commenter stated that
proposed rule restricts the rights of non-citizens to access crucial
healthcare benefits, housing vouchers, and other government benefits by
using ``heavily weighted factors,'' such as English proficiency, and
``exorbitant'' bond measures, and that the proposed rule would
disproportionately impact women and people of color. The commenter
stated that the Supreme Court has struck down state laws that
restricted public benefits based on alienage and noted that in one such
case, the Court reviewed the law under intermediate scrutiny. The
commenter suggested that this rule could similarly be subject to
intermediate scrutiny. The commenter stated that even if a heightened
scrutiny argument loses, the rule would fail rational basis scrutiny
because is not rationally related to a legitimate public interest since
``there is no legitimate government interest furthered by the proposed
rule, as 212(a)(4) [of the Act, 8 U.S.C. 1182(a)(4)] is already in
place and effective.'' The commenter stated that the proposed measures
will disparately impact female immigrants and immigrants of color and
is not rationally related to a legitimate public interest. The
commenter indicated that the ``legitimate public interest (which in and
of itself is contestable) is already served by the current provision.''
Another commenter similarly stated that the rule would have a disparate
impact on immigrants of color and women. The commenter cited to a
Manatt, Phelps & Phillips independent analysis of the U.S. Census
Bureau's (Census Bureau) American Community Survey Data 5-year 2012-
2016 data. The commenter stated that the application of the public
charge rule would be unequally distributed along racial lines.
According to the commenter, the effects of the proposed rule are
expected to have a disparate impact on communities of color, affecting
as many as 18.3 million members (or one-third) of the Hispanic and
Latino community in the United States. The commenter stated that the
DHS's proposed ``250-percent-FPG threshold'' would have
disproportionate effects based on national origin and ethnicity,
blocking 71 percent of applicants from Mexico and Central America, 69
percent from Africa, and 52 percent from Asia--but only 36 percent from
Europe, Canada and Oceania. The commenter stated that ``because the
proposed rule facially implicates national origin, strict scrutiny
applies.''
Response: DHS disagrees that this rule would fail any level of
scrutiny (i.e., strict, intermediate, or rational basis scrutiny).\124\
As discussed previously, DHS is not changing rules governing which
aliens may apply for or receive public benefits, nor is this rule
altering any eligibility criteria for such benefits. Instead, DHS is
exercising its authority to administer the public charge ground of
inadmissibility in a way that better ensures that aliens being admitted
into the United States, or seeking to remain here permanently, are
self-sufficient and not reliant on the government for support. While
this rule may influence an alien's decision to apply for, or disenroll
from, public benefits, it does not constitute a restriction on
accessing such benefits. However, even if the rule did place additional
restrictions on aliens, the Supreme Court, even prior to PRWORA,
determined that the equal protection analysis of Federal action that
differentiates between citizens and aliens in the immigration context
is different from the equal protection analysis of State actions that
differentiate between citizens of another state and citizens of another
country. In Mathews v. Diaz, the Court specifically distinguished
between state statutes that deny welfare benefits to resident aliens,
or aliens not meeting duration residence requirements, from similar
actions taken by the political branches of the Federal Government that
are specifically empowered to regulate the conditions of entry and
residence of aliens. 426 U.S. 67, 85-86 (1976). In that case, the court
found that the enforcement of a 5-year residency requirement against
aliens applying for a supplemental medical insurance program did not
deprive the aliens of life, liberty or property without due process of
law under the Due Process Clause of the Fifth Amendment.\125\
---------------------------------------------------------------------------
\124\ See Korab v. Fink, 797 F.3d 572, 577-79 (9th Cir. 2014)
(``[F]ederal statutes regulating alien classifications are subject
to the easier-to-satisfy rational-basis review . . . Although aliens
are protected by the Due Process and Equal Protection Clauses, this
protection does not prevent Congress from creating legitimate
distinctions either between citizens and aliens or among categories
of aliens and allocating benefits on that basis.'') (citation
omitted); Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir. 2001)
(describing the level of scrutiny owed under the constitution to
federal regulation of immigration and naturalization as ``highly
deferential'') (citing Lake v. Reno, 226 F.3d 141, 148 (2d Cir.
2000).) Generally, laws and regulations that neither involve
fundamental rights nor include suspect classifications are reviewed
under rational basis scrutiny, under which the person challenging
the law must show that the government has no legitimate interest in
the law or policy or that there is no rational link between the
interest and the challenge law or regulation. Heller v. Doe by Doe,
509 U.S. 312, 319 (1993).
\125\ ``The fact that all persons, aliens and citizens alike,
are protected by the Due Process Clause does not lead to the further
conclusion that all aliens are entitled to enjoy all the advantages
of citizenship . . .'' 426 U.S. at 79-80.
---------------------------------------------------------------------------
DHS agrees that if this rule were regulating eligibility for public
benefits outside of the immigration context, heightened scrutiny might
apply.\126\ As explained above, however, the rule places no obstacles
to aliens' eligibility for public benefits. Furthermore, the rule is
not facially discriminatory and DHS does not intend a discriminatory
effect based on race, gender, or any other protected ground.
---------------------------------------------------------------------------
\126\ See, e.g., Personal Administrator of Mass v. Feeney, 442
U.S. 256, 272 (1996) (Classifying persons according to their race is
more likely to reflect racial prejudice than legitimate public
concerns.), McLaughlin v. Florida, 379 U.S. 184, 196 (1964) (``Such
classifications are subject to the most exacting scrutiny; to pass
constitutional muster, they must be justified by a compelling
governmental interest and must be `necessary . . . to the
accomplishment' of their legitimate purpose.' ''); United States v.
Virginia, 518 U.S. 515 (1996) (ruling that the Virginia Military
Institute's gender-based admission policy violated the Equal
Protection Clause).
---------------------------------------------------------------------------
Finally, the commenter misstated the proposed rule's income
threshold as 250 percent of the FPG. While USCIS will generally
consider 250 percent of the FPG to be a heavily weighted positive
factor in the totality of the
[[Page 41323]]
circumstances, the minimum income threshold to be considered a positive
factor in the totality of the circumstances is generally 125 percent of
the FPG. More specifically, if the alien has income below that level,
it will generally be a heavily weighed negative factor in the totality
of the circumstances.
As set forth in NPRM,\127\ DHS's public charge rule is rationally
related to the government's interest in ensuring that aliens entering
the United States or seeking to settle here permanently are not likely
to become public charges, consistent with the requirements of section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). The regulation minimizes the
incentive of aliens to immigrate to the United States because of the
availability of public benefits and promotes the self-sufficiency of
aliens within the United States.\128\ Finally, DHS does not understand
commenters' statements about the ``unequal application'' of the public
charge inadmissibility rule and disagrees that the public charge
inadmissibility rule would be unequally applied to different groups of
aliens along the lines of race or gender.
---------------------------------------------------------------------------
\127\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51122-23 (proposed Oct. 10, 2018).
\128\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Comment: Several commenters objected that the rule violates due
process and equal protection rights. One commenter said that aliens
seeking adjustment of status should be granted due process rights
closer to those of United States citizens, and this rule should be
subject to stricter standards for judicial review to ``ensure that more
immigrants are protected from the detrimental effects of this
proposal.'' The commenter stated that such a review ``would require
that Congress ha[ve] a dual review process.'' Another commenter stated
that the DHS rule could be challenged on the grounds that it affords
nonimmigrants inside the United States less due process rights than
they should be afforded. The commenter stated that USCIS should
construct an appeals process that satisfies due process and gives
applicants the opportunity to present evidence of admissibility. The
commenter also stated that a person should not have ``their status as a
resident revoked'' prior to a full review of the case.
Response: DHS disagrees with comments asserting that this rule
violates aliens' due process or equal protection rights. Although
aliens present in the United States are protected by the due process
and equal protections clauses, federal immigration laws and their
implementing regulations generally enjoy a highly deferential standard
of review, even where the federal laws and regulations treat aliens
differently from citizens and create distinctions between different
classes of aliens (i.e., lawful permanent residents vs. nonpermanent
residents).\129\ DHS's public charge inadmissibility rule falls within
the agency's broad authority, granted by Congress, to regulate
immigration matters, and therefore, if challenged on equal protection
grounds as discriminating based on alienage, would be subject to
rational basis scrutiny.\130\ The public charge inadmissibility rule is
indeed rationally related to the government's interest, as set forth in
IIRIRA and PRWORA, to determine which aliens are inadmissible on public
charge grounds in accordance with section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), minimize the incentive of aliens to immigrate to the
United States due to the availability of public benefits, and promote
the self-sufficiency of aliens within the United States.\131\ This is
true even if this rule results in a disincentive for aliens to avail
themselves of public benefits for which they are eligible under
PRWORA.\132\ Moreover, although the rule could impact an alien's
decision to access public benefits for which he or she is eligible
under PRWORA and state and local laws, it does not directly regulate
the right to apply for or receive public benefits, and the Due Process
Clause would not be implicated by whether, due to the rule, an alien
chooses not to access benefits for which he or she qualifies.\133\ The
Due Process Clause of the Fifth Amendment ``has never been supposed to
have any bearing upon, or to inhibit laws that indirectly work harm and
loss to individuals.'' \134\ Similarly, and as discussed in greater
detail above, any potential chilling impacts of the rule would not
violate the equal protection guarantee of the Fifth Amendment's Due
Process Clause \135\ because this rule is not facially discriminatory
nor does DHS intend a discriminatory effect.\136\
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\129\ See Korab v. Fink, 797 F.3d 572, 579 (9th Cir. 2014);
Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir. 2001) (citing Lake v.
Reno, 226 F.3d 141, 148 (2d Cir. 2000)); Brooks v. Ashcroft, 283
F.3d 1268, 1274 (11th Cir. 2002) (``Classifications that distinguish
among groups of aliens are subject to rational basis review, and
will be found valid if not arbitrary or unreasonable'').
\130\ See Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976).
\131\ See 8 U.S.C. 1601.
\132\ See Lewis v. Thompson, 252 F.3d 567, 583-84 (2d Cir. 2001)
(``[I]t is reasonable for Congress to believe that some aliens would
be less likely to hazard the trip to this country if they understood
that they would not receive government benefits upon arrival . . .
Although it seems likely that many alien women will illegally
immigrate to obtain the benefit of citizenship for their children,
undeterred by ineligibility for prenatal care in the event of
pregnancy, Congress is entitled to suppose that the denial of care
will deter some of them. In the realm of immigration, where
congressional discretion is extremely broad, this supposition, even
if dubious, satisfies rational basis review.'') (citations omitted).
\133\ In O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 789
(1980), the Supreme Court concluded, consistent with long-standing
precedent that ``the due process provision of the Fifth Amendment
does not apply to the indirect adverse effects of governmental
action.''
\134\ O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 789
(1980) (quoting The Legal Tender Cases, 79 U.S. 457, 551 (1870)).
\135\ Although the Equal Protection Clause of the Fourteenth
Amendment does not apply to the Federal government, the Supreme
Court in Bolling v. Sharpe, 347 U.S.497, 500 (1954), held that while
```equal protection of the laws' is a more explicit safeguard of
prohibited unfairness than `due process of law,' . . .
discrimination may be so unjustifiable as to be violative of due
process.'' In the case of racial discrimination in DC public
schools, the Court found that no lesser Constitutional protections
apply to the Federal government through the application of the Due
Process Clause in the Fifth Amendment than by application of the
Equal Protection Clause of the Fourteenth Amendment.
\136\ See Pers. Adm'r v. Feeney, 442 U.S. 256, 272 (1979).
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The standards of judicial review are established by statute and
judicial interpretation \137\ and are therefore beyond the scope of
this rulemaking. The proposal to institute a review by Congress is also
beyond the scope of this rulemaking because only the legislative branch
can create a role for itself.\138\ DHS rejects the proposal to create
an appellate process to allow applicants to present evidence of their
admissibility since there is an existing process to present such
evidence. Although not specific to this rule, USCIS will notify
applicants of deficiencies in their applications with respect to any
ineligibility including public charge in accordance with the principles
outlined in 8 CFR 103.2 and USCIS policy in regard to notices, RFEs, or
notices of intent to deny (NOIDs), and denials.\139\ Likewise, DHS will
not accept the proposal to decline to revoke a lawful permanent
resident's status pending any appeals of a public charge
[[Page 41324]]
finding. Revocation of existing status is generally distinct from the
process of adjudicating applications for immigration benefits. For
example, a person maintaining a valid nonimmigrant status whose
adjustment of status application is denied because he or she is
inadmissible on public charge grounds would not lose his or her
nonimmigrant status based on the denial of adjustment.\140\ To the
degree the commenter's concerns relate to the loss of lawful permanent
resident status, such status generally terminates upon the entry of a
final order of removal \141\ unless the alien voluntarily abandons
lawful permanent resident status.
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\137\ See, e.g., INA section 242(b)(4), 8 U.S.C. 1252(b)(4)
(providing the scope and standard of judicial review of removal
orders); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493
(1991) (discussing the appropriate standard of review for challenges
to the Special Agricultural Worker program).
\138\ See generally Trans Ohio Sav. Bank v. Director, Office of
Thrift Supervision, 967 F.2d 598, 620 (DC Cir. 1992) (agency promise
to bind Congress would be ultra vires and unenforceable).
\139\ DHS notes that the failure to submit a completed Form I-
944 and Form I-864 with the Form I-485, when required, may result in
a rejection or a denial of the Form I-485 without a prior RFE or
NOID. See 8 CFR 103.2(a)(7), (b)(8)(ii).
\140\ It is possible that the basis for the denial could also
make the alien deportable under the different requirements for
deportability at section 237(a)(5) of the Act, 8 U.S.C. 1227(a)(5).
Aliens placed in removal will be afforded al due process rights
accorded to aliens in removal proceedings. See INA section
240(b)(4), 8 U.S.C. 1229a(b)(4).
\141\ See 8 CFR 1.2, definition of ``lawfully admitted for
permanent residence.''
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e. Coordination With Other Federal Agencies
Comment: Several commenters said the proposed definition of public
charge conflicts with the definition of public charge used by DOS,
which focuses on an alien's primary dependence on public benefits.
Other commenters noted that the inconsistency with DOS's definition of
public charge would lead to delays and denials of Application for
Provisional Unlawful Presence Waiver (Form I-601A).
Response: DHS is working and will continue to work with DOS to
ensure consistent application of the public charge ground of
inadmissibility. As noted in the NPRM, DHS expects that DOS will make
any necessary amendments to the FAM in order to harmonize its approach
to public charge inadmissibility determinations with the approach taken
in this final rule.\142\ As previously, indicated, DHS does not believe
that the rule would unduly increase the delays or denials of
provisional unlawful presence waivers filed on Form I-601A, as such
waivers are unrelated to the public charge ground of
inadmissibility.\143\
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\142\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51135 (proposed Oct. 10, 2018).
\143\ Form I-601A is filed by aliens inside the United States to
request a provisional waiver of the unlawful presence grounds of
inadmissibility section 212 (a)(9)(B) of the Act, 8 U.S.C.
1182(a)(9)(B), before departing the United States to appear at a
U.S. Embassy or Consulate for an immigrant visa interview.
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Comment: Several commenters stated that in the absence of DOJ
regulations on public charge inadmissibility, U.S. Immigration and
Customs Enforcement (ICE) attorneys will be compelled to argue in
removal proceedings that DHS's public charge inadmissibility standard
should be applied. And because there would not be binding precedent on
DHS's interpretation of public charge inadmissibility, some immigration
judges would adopt DHS's rule while others would not. This would result
in inconsistent determinations and burden the immigration court system.
Response: DOJ has acknowledged ongoing work on a proposed public
charge rule, which would propose to change how adjudicators within the
Executive Office for Immigration Review (EOIR) determine whether an
alien is inadmissible to the United States as a public charge
consistent with section 212(a)(4) of the INA.\144\ According to DOJ,
the rule is intended to make certain revisions to more closely conform
EOIR's regulations with the DHS public charge inadmissibility rule. DHS
will work with DOJ to ensure consistent application of the public
charge ground of inadmissibility. DHS reiterates, however, that this
final rule pertains only to public charge inadmissibility
determinations made by DHS for applicants seeking admission or
adjustment of status, public charge bonds, as well the conditions DHS
has set for applicants applying for an extension of stay or change of
status before DHS.
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\144\ See Unified Agenda of Regulatory and Deregulatory Actions,
DOJ, Inadmissibility on Public Charge Grounds, RIN 1125 AA74 (Spring
2019), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1125-AA84 (last visited June 11,
2019).
---------------------------------------------------------------------------
If USCIS denies an adjustment of status application after
determining that the applicant is likely at any time to become a public
charge at any time, and the alien is not lawfully present in the United
States, USCIS will generally issue a Notice to Appear (NTA),\145\ which
may charge the alien as inadmissible under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), if the alien is an alien is an arriving alien
or an alien present in the United States without having been admitted
or paroled. Under section 240(c)(2)(A) of the Act, 8 U.S.C.
1229a(c)(2)(A), an applicant for admission in removal proceedings has
the burden of establishing that he or she is clearly and beyond doubt
entitled to be admitted and is not inadmissible under section 212 of
the Act, 8 U.S.C. 1182. The alien may renew the adjustment of status
application before an immigration judge unless the immigration judge
does not have jurisdiction over the adjustment application.\146\
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\145\ INA sections 103(a) and 239, 8 U.S.C. 1103(a) and 1229; 8
CFR 2.1 and 239.1.
\146\ 8 CFR 245.2(a)(5)(ii) and 1245.2(a)(1).
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Additionally, when encountering an alien, who is an arriving alien
or an alien present in the United State without admission or parole,
ICE will use the criteria set forth in this rule with respect to
determining whether to charge such an alien under section 212(a)(4), 8
U.S.C. 1182(a)(4).
DHS notes that it has no general authority over the EOIR
inadmissibility determinations in removal proceedings and believes such
matters are more appropriately addressed by DOJ in the context of its
public charge rulemaking.
f. International Law and Related Issues
Comment: One commenter suggested, but did not explicitly state,
that the rule would violate international refugee law. Another
commenter suggested that the rule would discriminate against
individuals waiting for their asylum applications to be adjudicated.
Other commenters noted that the rule would be a violation of, or is
inconsistent with, various international agreements such as the
Universal Declaration of Human Rights (UDHR), the 1959 Declaration of
the Rights of the Child, the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD), and the
International Covenant on Civil and Political Rights (ICCPR). A
commenter stated that treaties that have been ratified ``should be
considered as being Constitutional Amendments under the Supremacy
Clause.''
Response: DHS rejects the comment that this rule would violate the
United States' international treaty obligations relating to refugees or
that the rule discriminates against individuals in the United States
who have asylum applications pending on the effective date of this
rule. As noted in the NPRM, this rule does not apply to asylum
applicants, those granted asylum (asylees), and those seeking to adjust
their status to that of a lawful permanent resident based on their
asylee or refugee status. Applicants for asylum are not required to
demonstrate admissibility as part of demonstrating their eligibility
for asylum.\147\ Additionally, while asylees who travel outside of the
United States are examined for admissibility upon returning to the
United States with a refugee travel document and are admitted as such
if admissible, asylees are not subject to the public charge
inadmissibility ground when seeking readmission as an asylee.\148\
Similarly,
[[Page 41325]]
asylees and refugees who are applying for adjustment of status are not
subject to the public charge inadmissibility ground under section
209(c) of the Act, 8 U.S.C. 1159(c).\149\ Because the rule does not
apply to or otherwise impact asylum applicants, asylees, and applicants
for asylee or refugee adjustment, the rule does not violate
international treaty obligations relating to refugees, to the extent
those obligations are applicable.\150\
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\147\ See INA section 208, 8 U.S.C. 1158.
\148\ See 8 CFR 223.3(d)(2).
\149\ ``The provisions of paragraphs (4), (5), and (7)(A) of
section 212(a) shall not be applicable to any alien seeking
adjustment of status under this section . . . .''
\150\ Asylum is a discretionary benefit implementing Article 34
of the 1951 Convention Relating to the Status of Refugees (as
incorporated in the 1967 Protocol Relating to the Status of
Refugees), which is ``precatory,'' INS v. Cardoza-Fonseca, 480 U.S.
421, 441 (1987), and the 1967 Protocol is not self-executing, e.g.,
Cazun v. U.S. Att'y Gen., 856 F.3d 249, 257 n.16 (3d Cir. 2017).
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DHS also disagrees that the rule would violate international
treaties such as the CERD \151\ and the ICCPR \152\ or that it would be
inconsistent with non-binding instruments such as the UDHR \153\ and
the 1959 Declaration of the Rights of the Child.\154\ First, the rule
is not inconsistent with those treaties and instruments. As discussed
above, the rule does not prevent anyone subject to the public charge
ground of inadmissibility from applying for and receiving any benefits
for which they are eligible, including benefits related to food and
nutrition, housing, and healthcare, and basic social services.
Additionally, to the extent that this rule does have a negative effect
on those from particular groups, it is not DHS's intent, in issuing
this final rule, to target aliens from certain countries or of a
particular race. Instead, DHS's intent in codifying the public charge
inadmissibility rule is to better ensure the self-sufficiency of aliens
who seek to come to or remain in the United States.
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\151\ 660 U.N.T.S. 195, U.N. Doc. A/6014 (1965).
\152\ Dec. 16, 1966, 999 U.N.T.S. 171.
\153\ G.A. Res. 217A (III), U.N. Doc. A/810 (1948).
\154\ G.A. Res. 1386 (XIV), U.N. Doc. A/4354 (1959).
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Second, the two referenced declarations do not bind DHS as a matter
of U.S. domestic law. As the Supreme Court has held, the UDHR ``does
not of its own force impose obligations as a matter of international
law.'' \155\ The Declaration of the Rights of the Child, like the UDHR
is a U.N. Declaration rather than a binding treaty. Moreover, the CERD
and the ICCPR, were both ratified on the express understanding that
they are not self-executing and therefore do not create judicially
enforceable obligations.\156\ DHS disagrees with the comment that
ratified treaties should be considered as constitutional amendments as
this is legally inaccurate.\157\
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\155\ Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004).
\156\ U.S. Reservations, Declarations, and Understandings,
International Convention on the Elimination of All Forms of Racial
Discrimination, 140 Cong. Rec. S7634-02 (1994) (``[T]he United
States declares that the provisions of the Convention are not self-
executing.''); U.S. Reservations, Declarations and Understandings,
International Covenant on Civil and Political Rights, 138 Cong. Rec.
8071 (1992) (``[T]he United States declares that the provisions of
Articles 1 through 27 of the Covenant are not self-executing.'');
see also Alvarez-Machain, 542 U.S. at 735 (``[T]he United States
ratified the Covenant [on Civil and Political Rights] on the express
understanding that it was not self-executing and so did not itself
create obligations enforceable in the federal courts.''); Johnson v.
Quander, 370 F. Supp. 2d 79, 101 (D.D.C. 2005) (same--CERD), aff'd,
440 F.3d 489 (D.C. Cir. 2006).
\157\ See Reid v. Covert, 354 U.S. 1, 18 (1957) (``This Court
has also repeatedly taken the position that an Act of Congress,
which must comply with the Constitution, is on a full parity with a
treaty, and that when a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of conflict
renders the treaty null.''); La Abra Silver Min. Co. v. United
States, 175 U.S. 423, 460 (1899) (``Congress by legislation, and so
far as the people and authorities of the United States are
concerned, could abrogate a treaty made between this country and
another country which had been negotiated by the President and
approved by the Senate.'' (citation omitted)).
---------------------------------------------------------------------------
g. Contract Law
Comment: A commenter said that it would contradict principles of
contract law to hold a child responsible for the public benefits they
receive before the age of majority.
Response: DHS rejects the suggestion that DHS would be precluded,
under contract law principles, from considering the receipt of public
benefits in a public charge inadmissibility determination by an alien
under the age of 18. With the exception of the affidavit of support
statute, section 213A of the Act, 8 U.S.C. 1183a, which requires a
sponsor to be at least 18 years of age, decisions as to the
admissibility of aliens subject to section 212(a))(4) of the Act, 8
U.S.C. 1182(a)(4), are questions regarding the burden the alien will
place on the government in the future, and does not implicate contract
law. While individuals under the age of 18 generally lack the capacity
under most States' laws to enter into a contract, such considerations
are inapposite to this rulemaking. Aliens under the age of 18 are
subject to the provisions of section 212(a))(4) of the Act, 8 U.S.C.
1182(a)(4), except where Congress has specifically provided an
exemption of public charge inadmissibility, or otherwise provided the
possibility of a waiver of the public charge inadmissibility ground. By
its very nature, the public charge ground of inadmissibility frequently
affects people who lack the capacity or competence to enter into
contracts. Contract law does not limit DHS's ability to enforce the
public charge ground of inadmissibility.
However, as noted elsewhere in this rule, DHS has decided, as a
matter of policy, to exclude consideration of the receipt of Medicaid
by aliens under the age of 21, as well as services or benefits funded
by Medicaid but provided under the IDEA or school-based benefits
provided to children who are at or below the oldest age of children
eligible for secondary education as determined under State law. DHS
also has excluded consideration of the receipt of all public benefits
received by children of U.S. citizens whose lawful admission for
permanent residence and subsequent residence in the legal and physical
custody of their U.S. citizen parent(s) will result automatically in
the child's acquisition of citizenship; or whose lawful admission for
permanent residence will result automatically in the child's
acquisition of citizenship as described in the rule.
F. Applicability of the Public Charge Ground of Inadmissibility, and
the Public Benefit Condition to Extension of Stay and Change of Status
1. Applicability of the Public Charge Ground of Inadmissibility
Generally
Comment: A commenter opposed the application of the rule to
applicants for admission because, according to the commenter, it is
impossible for DHS to make a prediction about future circumstances
based upon the totality of the alien's circumstances at the time of the
application for admission; the commenter said that life circumstances
cannot be predicted. Many commenters said the proposed rule would
directly affect a large number of individuals (some commenters cited
1.1 million individuals seeking to obtain lawful permanent resident
status), half of whom already reside in the United States and would be
subject to a public charge inadmissibility determination. Another
commenter stated that the proposed rule would dramatically alter which
immigrants are permitted to enter and stay in the United States. This
commenter stated that quantitative and qualitative data, including the
DHS Yearbook of Immigration Statistics, show that increases in
restrictions to the legal means to immigration over the last hundred
years are responsible for increases in unauthorized border crossings,
visa overstays, and increases in an international network of private
and public profiteers. Another
[[Page 41326]]
commenter indicated that the new regulation would adversely affect
immigrants and nonimmigrants alike and discourage people from lawfully
entering the United States through visas offered by the DOS.
Response: DHS disagrees that the rule cannot apply to applicants
for admission because it is impossible to make a prediction about
future circumstances based upon the totality of the alien's
circumstances at the time of the application for admission. As mandated
by Congress under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4),
any alien applying for admission to the United States is inadmissible
if he or she is likely at any time to become a public charge. DHS must
make a public charge inadmissibility determination unless the applicant
for admission is within one of the exempted categories. Only those
categories of aliens designated by Congress are exempt from the public
charge ground of inadmissibility.\158\ Additionally, although it will
impact all aliens subject to the public charge ground of
inadmissibility under section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), the goal of this rule is to implement the public charge
inadmissibility ground as established by Congress. DHS rejects the
notion that there is a relationship between the implementation of the
congressionally-mandated ground of inadmissibility through this
rulemaking and any increase in the number of illegal border crossings
or other illegal behavior.
---------------------------------------------------------------------------
\158\ See 8 CFR 212.23.
---------------------------------------------------------------------------
Comment: Multiple commenters stated that the proposed rule would
negatively affect those seeking a ``green card'' (lawful permanent
residence) and would notably affect family-based immigration.
Response: Although this rule will impact those seeking lawful
permanent resident status based on an approved family-based petition,
only aliens who are subject to the public charge ground of
inadmissibility will be required to demonstrate that they are not
likely to become a public charge at any time in the future, as
prescribed in the rule.
Comment: Another commenter indicated that current green card
holders and other aliens lawfully present in the United States, like
recipients of Deferred Action for Childhood Arrivals (DACA), could see
their status jeopardized, as they may not meet the income standard in
the proposed rule.
Response: DHS notes that a person who is already a lawful permanent
resident has already undergone a public charge inadmissibility
determination, unless she or he was exempt from such a determination at
the time of application for such status. Such a person would not
undergo another public charge inadmissibility determination unless U.S.
Customs and Border Protection (CBP) determines, upon the alien's return
from a trip abroad, that the returning lawful permanent resident is an
applicant for admission based on one of the criteria set forth in
section 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C), such as the
alien has been absent from the United States for more than 180 days.
Aliens who are lawfully present in the United States as nonimmigrants
have also undergone a public charge inadmissibility determination,
where applicable, and this rule does not impact their status unless
they are seeking an immigration benefit for which admissibility is
required or if they are seeking an extension of stay or change of
status.
With respect to DACA recipients, DHS notes that an alien is not
required to demonstrate that he or she is not inadmissible on the
public charge ground when requesting DACA. A DACA recipient would only
be subject to this rule when applying for a benefit for which
admissibility is required.
Comment: A commenter indicated that the NPRM excludes too many
applicants for admission from public charge review. The commenter
stated that the category of ``applicants for admission'' is clearly
defined in section 235(a) of the Act, 8 U.S.C. 1225(a) as ``aliens
present in the United States who have not been admitted'' \159\ and
``all aliens'' who have not been ``inspected by immigration officers.''
The commenter indicated that although most of these categories of
aliens are barred from most of the public benefits designated under the
proposed rule, the commenter's research indicates that the very high
use of welfare programs by noncitizens cannot be explained unless at
least half of the non-citizens surveyed in the Survey of Income and
Program Participation (SIPP) data are in the country illegally. The
commenter further stated that the NPRM fails to provide any guidance on
how this population will be assessed for public charge inadmissibility.
---------------------------------------------------------------------------
\159\ See INA section 235(a) and (b), 8 U.S.C. 1225(a) and (b).
---------------------------------------------------------------------------
Response: DHS disagrees that the rule excludes too many aliens from
the public charge inadmissibility determination and disagrees that DHS
failed to provide adequate guidance with respect to how DHS would apply
the public charge inadmissibility determination with respect to the
population identified by the commenter. Congress identified which
aliens are subject to the public charge ground of inadmissibility and
specified which aliens are exempt from, or can obtain a waiver of,
public charge inadmissibility. DHS does not have the authority to add
additional categories of aliens that must establish admissibility based
on public charge. This rule only applies to those categories of aliens
that Congress has designated as subject to the public charge ground of
inadmissibility.\160\
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\160\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4) (Any alien
who, . . . in the opinion of the Attorney general at the time of
application for admission . . . is likely to become a public charge,
is inadmissible). See 8 CFR 212.20.
---------------------------------------------------------------------------
In addition, although the commenter indicated that DHS fails to
specify how to determine that aliens illegally present in the United
States are inadmissible on the public charge ground, this determination
is only made when aliens subject to this ground of inadmissibility
apply for an immigration benefit for which admissibility is required,
such as adjustment of status, or when determining what charges to lodge
on an NTA when initiating removal proceedings under section 240 of the
Act, 8 U.S.C. 1229a.\161\ DHS notes that the SIPP data on receipt of
public benefits by noncitizens includes asylees and refugees and lawful
permanent residents who are lawfully present in the United States.
---------------------------------------------------------------------------
\161\ For example, to be eligible for adjustment of status under
INA section 245(a) and (c), 8 U.S.C. 1255(a) and (c), an applicant
must generally have been, among other requirements, inspected and
admitted or paroled, and in legal immigration status. Therefore, in
most cases, the applicant must have been legally entered the United
States and be legally present in the United States. In contrast,
under INA section 244(a), 8 U.S.C. 1154a, an alien cannot be denied
Temporary Protected Status on account of his or her immigration
status or lack thereof.
---------------------------------------------------------------------------
Comment: Some commenters stated that the regulation would be
arbitrary and capricious because DHS would apply it to lawful permanent
residents who were abroad for a trip exceeding 180 days, but DHS did
not estimate the size of this population in the proposed rule. These
commenters further stated that if the returning lawful permanent
resident is placed in removal proceedings, the burden of proof of
inadmissibility should remain on the government to establish by ``clear
and convincing evidence'' \162\ that he or she is lawfully present in
the United States pursuant to a prior admission. This burden, per the
commenters, should not be transferred to the lawful permanent
[[Page 41327]]
resident through completion of the Form I-944 or similar forms that CBP
may request. The commenter stated that doing so, would violate the
lawful permanent resident's due process rights as a permanent resident
by shifting the burden of proof to returning lawful permanent
residents, contrary to Woodby v. INS, 385 U.S. 276 (1966), Landon v.
Plasencia, 459 U.S. 21 (1982), and Matter of Rivens, 25 I&N Dec. 623
(BIA 2011).
---------------------------------------------------------------------------
\162\ See INA section 240(a)(3), 8 U.S.C. 1229a(a)(3).
---------------------------------------------------------------------------
Response: DHS does not believe such a quantitative estimate is
necessary. DHS further disagrees that the rule impermissibly shifts the
government's burden of proof onto the returning lawful permanent
residents, that the applicability of inadmissibility grounds to
returning lawful permanent residents is unlawful, or that it would
violate an alien's due process rights. Congress specified when lawful
permanent residents returning from a trip abroad will be treated as
applicants for admission, and also specified who bears the burden of
proof in removal proceedings when such an alien is placed in
proceedings. In general, the grounds of inadmissibility set forth in
section 212(a) of the Act, 8 U.S.C. 1182(a), including public charge
inadmissibility, do not apply to lawful permanent residents returning
from a trip abroad.\163\ Congress set forth the circumstances under
which lawful permanent residents returning from a trip abroad are
considered applicants for admission, and therefore, are subject to
admissibility determinations, including an assessment of whether the
alien is inadmissible as likely at any time to become a public
charge.\164\ If CBP determines that the returning lawful permanent
resident is an applicant for admission based on one of the criteria set
forth in section 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C),
including that the alien has been absent for more than 180 days, and
that the alien is inadmissible under one of the grounds set forth in
section 212(a) of the Act, 8 U.S.C. 1182(a), the law requires that the
alien be placed into removal proceedings.\165\ In such removal
proceedings, DHS bears the burden of proof to demonstrate by clear and
convincing evidence that the lawful permanent resident is properly
considered an applicant for admission based on being outside of the
United States for more than 180 days, or any of the grounds set forth
in 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C).\166\ And, if the
lawful permanent resident is not an applicant for admission, but is
removable from the United States for any reason, DHS may charge the
alien under section 237 of the INA, 8 U.S.C. 1227.
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\163\ Although Congress did not subject those admitted as lawful
permanent residents to grounds of inadmissibility under INA section
212(a), 8 U.S.C. 1182(a), it did codify that an alien's certain
conduct or conditions will lead to the alien's removal from the
United States, including inadmissibility on public charge. See INA
section 237, 8 U.S.C. 1227, generally, and INA section 237(a)(5), 8
U.S.C. 1227(a)(5). One basis of removal is an alien's
inadmissibility at the time of admission or adjustment of status,
including being inadmissible for public charge under INA section
212(a)(4), 8 U.S.C. 1182(a)(4). See INA section 237(a)(1)(A), 8
U.S.C. 1227(a)(1)(A). If the alien is charged as a deportable alien,
the burden of proof is on the government to show by clear and
convincing evidence that the alien, who has been admitted, is not
deportable. See INA section 240(c)(3), 8 U.S.C. 1229a(c)(3).
\164\ See INA section 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C).
According to this provision, lawful permanent residents are regarded
as an applicant for admission when they: (1) Have abandoned or
relinquished that status; (2) have been outside the United States
for a continuous period in excess of 180 days; (3) have engaged in
illegal activity after departing the United States; (4) have
departed the United States while under legal process seeking removal
of the alien from the United States, including removal proceedings
and extradition proceedings; (5) have committed an offense
identified in INA section 212(a)(2), 8 U.S.C. 1182(a)(2), unless
granted a waiver of inadmissibility for such offense or cancellation
of removal; and (6) are attempting to enter at a time or place other
than as designated by immigration officers or who have not been
admitted to the United States after inspection and authorization by
an immigration officer.
\165\ As explained above, lawful permanent resident s are not
subject to grounds of inadmissibility after being properly admitted
to the United States as an lawful permanent resident within the
meaning of INA section 101(a)(20), 8 U.S.C. 1101(a)(20). See INA
sections 235(b)(2)(A) and 240, 8 U.S.C. 1225(b)(2)(A) and 1229a.
\166\ See Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).
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For these reasons, DHS disagrees that the rule impermissibly places
the burden on returning lawful permanent residents in violation of
their rights under Woodby v. INS,\167\ Landon v. Plasencia,\168\ and
Matter of Rivens as alleged by the commenters.\169\ Specifically, in
Woodby and Landon, which predate IIRIRA, the Court addressed the
government's burden in deportation proceedings against a lawful
permanent resident and indicated that the government would bear the
burden to demonstrate that the alien is a returning resident seeking
admission. Subsequently, with IIRIRA, Congress specified the
circumstances under which a lawful permanent resident will be treated
as an applicant for admission, and provided that when an alien is an
applicant for admission that the alien has the burden to establish that
he or she is clearly and beyond doubt entitled to be admitted and is
not inadmissible; however, Congress remained silent with respect to the
burden and standard of proof required to determine whether an alien is
an applicant for admission.\170\ The BIA in Matter of Rivens,\171\ did
not deviate from longstanding case law on this question \172\ and
affirmed that DHS continues to bear the burden of proving by clear and
convincing evidence that a returning lawful permanent resident should
be treated as an applicant for admission.\173\ This rule does not alter
DHS's burden of proof with respect to the treatment of returning lawful
permanent residents as applicants for admission in any way, i.e., the
only burden DHS bears is establishing that the retuning lawful
permanent resident should be treated as an applicant for
admission.\174\ The BIA, in Matter of Rivens, did not reach the issue
of who then bears the burden of showing admissibility, or a lack of
inadmissibility, once it has been determined that an alien is an
applicant for admission.\175\
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\167\ See Woodby v. INS, 385 U.S. 276 (1966).
\168\ See Landon v. Plascencia, 459 U.S. 21 (1982).
\169\ Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).
\170\ See INA sections 235 and 240, 8 U.S.C. 1225 and 1229a; see
Matter of Rivens, 25 I&N Dec. 623, 625 (BIA 2011). See INA sections
101(a)(13)(C), 240(c)(2), and 291, 8 U.S.C. 1101(a)(13)(C),
1229a(c)(2), and 1361.
\171\ 25 I&N Dec. 623, 626 (BIA 2011).
\172\ See Matter of Rivens, 25 I&N Dec. 623, 625 (BIA 2011)
(citing Matter of Huang, 19 I&N Dec. 749 (BIA 1988); Woodby v. INS,
385 U.S. 276 (1966); and Landon v. Plasencia, 459 U.S. 21 (1982)).
\173\ See Matter of Rivens, 25 I&N Dec. 623, 625 (BIA 2011).
\174\ See Matter of Rivens, 25 I&N Dec. 623, 626 (BIA 2011).
\175\ See Matter of Rivens, 25 I&N Dec. 623, 626 (BIA 2011) (not
reaching the issue because it was unnecessary to address the ``open
question of who then bears the burden of showing admissibility, or a
lack of inadmissibility, once it has been determined that an alien
is an applicant for admission.'').
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DHS notes, as was pointed out by the commenters, that under section
291 of the Act, 8 U.S.C. 1361, an applicant for admission always bears
the burden of proof to establish that he or she is not inadmissible to
the United States under any provision of the Act; similarly, under
section 240(c)(2)(A) of the Act, 8 U.S.C. 1229a(c)(2)(A), an applicant
for admission in removal proceedings has the burden of establishing
that he or she is clearly and beyond doubt entitled to be admitted and
is not inadmissible under section 212(a) of the Act, 8 U.S.C. 1182(a).
Therefore, the burden still lies with the returning resident to
establish that he or she is not inadmissible based on public charge.
Comment: One commenter asks whether the public charge regulation
would apply to applicants seeking naturalization.
[[Page 41328]]
Response: The laws governing naturalization can be found in Title
III of the INA. The public charge ground of inadmissibility does not
apply in naturalization proceedings. DHS notes, however, that USCIS
assesses as part of the naturalization whether the applicant was
properly admitted as a lawful permanent resident and therefore was
eligible for adjustment based upon the public charge ground of
inadmissibility at the time of the adjustment of status.\176\
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\176\ See INA section 318, 8 U.S.C. 1429. Additionally, an
individual may become removable on account of public charge while in
lawful permanent resident status, which is a consideration which may
be assessed at the time of naturalization. See INA section
237(a)(5), 8 U.S.C. 1227(a)(5). However, the assessment of
removability for public charge is different from the assessment of
public charge inadmissibility and is not a part of this rule.
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Comment: Multiple commenters indicated that the proposed rule makes
the path to citizenship more difficult and would give the Government
the ability to deny a ``broad swath'' of applicants for green cards,
especially children who are likely to be self-sufficient as adults,
teenagers and students completing their education, infant caregivers,
the elderly, immigrants from certain countries, and an immigrant
previously deemed admissible who becomes disabled.
Many commenters stated that the rule should not apply to children,
and that doing so would destabilize families, make children unhealthy
or more likely than not to become a public charge as adults, and may
cause some children to be excluded while the parent is admitted. Some
commenters provided data on the number of children who would be
impacted by the rule. A commenter proposed an exemption from public
charge for all children up to age 18, because such children are subject
to child labor laws and in most cases still engaged in mandatory
education. The commenter also proposed a three-year grace period beyond
age 18, until age 21. Finally, the commenter recommended further
extending the commenter's proposed exemption for those aliens who are
currently engaged in full-time college or vocational education, and for
a three-year grace period after graduation or certification. The
commenter stated that this will be a strong incentive for young
immigrants toward self-sufficiency and positive GDP contribution. A few
commenters added that children born in the United States to immigrant
parents are United States citizens and therefore are eligible for
public benefits under the same eligibility standards as all other
United States citizens.
A commenter requested that asylum seekers and entrepreneurs, crime
victims, victims and survivors of domestic violence, and T
nonimmigrants seeking adjustment of status should be excluded from the
rule and public charge ground of inadmissibility. Similarly, commenters
stated that victims of domestic violence, human trafficking, and sexual
assault would be harmed as a consequence since family members sponsored
by victims would be impacted by the proposed rule.
Response: Generally, the public charge ground of inadmissibility
applies to all aliens who are applicants for a visa, admission, or
adjustment of status. However, as noted previously, Congress--not DHS--
has the authority to specify which aliens are exempt from public charge
inadmissibility determinations, as well as those who may obtain a
waiver of public charge inadmissibility. Therefore, the public charge
inadmissibility provisions set forth in this final rule will apply to
all aliens seeking admission or adjustment of status, or any other
immigration benefit for which admissibility is required, unless
otherwise exempted by Congress, irrespective of the alien's age,
medical condition, economic status, place of origin, or nationality.
With respect to comments suggesting that DHS specifically exclude
children, teenagers, caregivers of infants, the elderly, and
entrepreneurs, and other categories of individuals from the public
charge inadmissibility provisions, section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), applies to such aliens applying for a visa,
admission, or adjustment of status, unless otherwise specified by
Congress. DHS has tailored the effects of this rule somewhat for
certain populations. On the whole, however, DHS lacks the authority to
create wholesale exemptions or provide a grace period for broad
categories of aliens, as suggested by the commenters.
DHS notes that does have the authority to define public charge as
it has in this rule and in doing so, decide which public benefits are
considered for the purposes of this rule. As discussed in greater
detail below, DHS has made some changes to the public benefits that DHS
will consider, particularly as it relates to receipt of Medicaid
benefits by aliens under the age of 21 and pregnant women, including
women for the 60 days following pregnancy, and for receipt of Medicare
Part D LIS. DHS has also clarified the role that age and other factors
play in the public charge inadmissibility determination. DHS believes
that these changes may at least partially address some of the
commenters' concerns, and that such changes are more in line with the
statute.
With respect to the commenter's suggestions that asylees, crime
victims, victims of domestic violence, and T nonimmigrants be exempt
from this rule, DHS notes that such individuals are generally exempted
by statute from public charge inadmissibility determinations, and that
such exemptions are also set forth in 8 CFR 212.23.\177\ As explained
in the NPRM,\178\ and addressed further below, DHS codified in the
regulation those classifications of nonimmigrants and immigrants that
Congress exempted from public charge grounds of inadmissibility. DHS
will not, and cannot, exempt other classes of aliens unless these
exemptions are created by Congress.\179\
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\177\ However, DHS notes that T nonimmigrants are not excluded
from public charge inadmissibility when applying for employment-
based adjustment of status. See INA section 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E).
\178\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51156-57 (proposed Oct. 10, 2018).
\179\ See 8 CFR 212.23.
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2. Applicability and Content of the Public Benefits Condition
Comment: Citing to the statutory policy statement set forth in
PRWORA, a commenter indicated that nonimmigrant applications or
petitions for extension of stay or change in status should be subject
to inadmissibility on public charge grounds in order to ensure their
self-sufficiency. By contrast, some commenters stated that DHS lacked
the authority to condition of eligibility for extension of stay or
change of status on past, current, or future receipt of public benefits
because the public charge inadmissibility ground does not apply to
extension of stay or change of status; commenters stated that this
provision was therefore not supported by the plain language of the
statute and is unlawful. A commenter stated in regards to extension of
stay and change of status that DHS's bald assertion that it generally
has discretion to apply the test to new categories cannot overcome
clear and unambiguous language from Congress to the contrary.
Some of these commenters also indicated that nobody would be
eligible for extension of stay or change of status because the proposed
regulation asks applicants to prove a negative. Another commenter
disagreed with the proposed rule because no one can determine whether
an applicant seeking an extension of stay or change of status will
receive public benefits at any time in the future.
[[Page 41329]]
One commenter stated that because employment-based nonimmigrant
categories require the employer to demonstrate the ability to
financially support the nonimmigrant, and further, because other
nonimmigrants classifications such as F and M nonimmigrant students
must demonstrate sufficient financial support during the duration of
the nonimmigrant stay, that there are sufficient financial safeguards
in place for these nonimmigrants such that this rule poses an
unnecessary administrative burden. A commenter indicated that the
expansion of the public charge rule to include additional
classifications of nonimmigrants will reduce immigration or admission
rates.
Response: Neither the NPRM nor this final rule is intended to apply
the public charge ground of inadmissibility to extension of stay or
change of status applicants. Instead, DHS is exercising its statutory
authority to set a new condition for approval of extension of stay and
change of status applications--that the applicant establish that the
alien has not received since obtaining the nonimmigrant status he or
she seeks to extend or from which he or she seeks to change, and
through adjudication, one or more public benefits for more than 12
months in the aggregate within any 36-month period.\180\ This condition
will apply to any extension of stay or change of status application or
petition postmarked (or if applicable, submitted electronically) on or
after the effective date of the rule.
---------------------------------------------------------------------------
\180\ See, e.g., INA sections 103(a)(3), 214(a)(1), 248(a).
---------------------------------------------------------------------------
If the nonimmigrant status the individual seeks to extend or to
which the applicant seeks to change is statutorily exempt from the
public charge ground of inadmissibility,\181\ then the public benefits
condition will not apply.
---------------------------------------------------------------------------
\181\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51135-36 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
After considering the comments, DHS agrees with the commenters that
an assessment of whether the nonimmigrant is ``likely to receive public
benefits'' for the expected period of stay, which included the option
for USCIS to request submission of a Form I-944 as part of an RFE,
might have been similar to a public charge inadmissibility assessment.
In addition, applying a prospective element to the public benefits
condition would likely be redundant and unnecessary given the finite
nature of nonimmigrant status and stay. To the extent DHS grants an
extension of stay to a nonimmigrant subject to the public benefit
condition after determining that the alien had not received public
benefits, and a nonimmigrant subsequently wishes to apply for another,
the condition would apply again. The same would apply to a change of
status. If, however, an alien leaves the United States after holding
nonimmigrant status, and seeks a new nonimmigrant or immigrant visa
based on a classification that is subject to INA 212(a)(4), 8 U.S.C.
1182(a)(4), then the public charge ground of inadmissibility will
apply. Similar to aliens who are not required to obtain a visa but are
subject to INA 212(a)(4), 8 U.S.C. 1182(a)(4)--DHS would apply the
public charge ground of inadmissibility at the port of entry.\182\
Finally, with respect to an alien in the United States who is eligible
to adjust status from a nonimmigrant classification to that of a lawful
permanent resident, and the alien is subject to INA 212(a)(4), 8 U.S.C.
1182(a)(4), DHS will at the time of adjudication of an adjustment of
status application make a public charge inadmissibility determination
consistent with the requirements of INA 212(a)(4), 8 U.S.C. 1182(a)(4),
and regulations promulgated through this rulemaking. Therefore, DHS
removed the future-looking aspect of this condition and will not
request applicants for an extension of stay or change of status to
submit a Form I-944. Additionally, DHS made a technical edit to remove
``currently receiving public benefits,'' as the reference to the alien
having ``received'' public benefits is sufficiently inclusive of
receipt up to the date of adjudication. According to preexisting DHS
regulations, an applicant must meet an eligibility requirement or a
condition not only at the time of filing but also at the time of
adjudication,\183\ which renders superfluous the proposed text
regarding ``currently receiving public benefits.'' Finally, because DHS
has moved the public benefits receipt threshold from the public
benefits definition to the public charge definition, DHS added the
``for more than 12 months in the aggregate within any 36-month period
(such that, for instance, receipt of two benefits in one month counts
as two months)'' threshold to the public benefits condition in the
extension of stay and change of status provisions as well because the
threshold applies to the receipt of public benefits in these
provisions, as well.
---------------------------------------------------------------------------
\182\ See, e.g., 8 CFR 217.4(a)(1) (Visa Waiver Program
participants must not be ``inadmissible to the United States under
one or more of the grounds of inadmissibility listed in section 212
of the Act (other than for lack of a visa).'').
\183\ See 8 CFR 103.2(b).
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Under this final rule, nonimmigrants who are seeking an extension
of stay or a change of status must only demonstrate that they have not
received, since obtaining the nonimmigrant status they seek to extend
or from which they seek to change, up to the time of the adjudication
of the application,\184\ one or more public benefits for more than 12
months in the aggregate within any 36-month period.\185\ This condition
will apply to any extension of stay or change of status application or
petition postmarked (or if applicable, electronically submitted) on or
after the effective date of the rule. DHS will not consider any receipt
of public benefits prior to the rule's effective date, for purposes of
the public benefits condition for extension of stay or change of
status.
---------------------------------------------------------------------------
\184\ See 8 CFR 103.2(b) (Demonstrating eligibility. An
applicant or petitioner must establish that he or she is eligible
for the requested benefit at the time of filing the benefit request
and must continue to be eligible through adjudication.).
\185\ See 8 CFR 214.1(a)(3)(iv) and (c)(4)(iv); see 8 CFR
248.1(a) and (c)(4).
---------------------------------------------------------------------------
Imposing conditions on extension of stay and change of status
applications is within DHS's authority, as Congress granted DHS the
authority, in sections 214 and 248 of the Act, 8 U.S.C. 1184 and 1258,
to regulate conditions and periods of admission of nonimmigrants and
conditions for change of status, respectively. As explained in the
NPRM, however, the government's interest in a nonimmigrant's ability to
maintain self-sufficiency does not end with his or her initial
admission as a nonimmigrant.\186\ Therefore, given DHS's authority to
set conditions \187\ and Congress' policy statement ``that aliens
within the Nation's borders not depend on public resources to meet
their needs,'' \188\ it is reasonable for DHS to require, as a
condition of obtaining an extension of stay or change of status,
evidence that nonimmigrants inside the United States have remained
self-sufficient during their nonimmigrant stay.
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\186\ See PRWORA's policy statement at 8 U.S.C. 1601,
reiterating that self-sufficiency of all aliens coming to the United
States continues to be national policy.
\187\ See INA sections 214 and 248, 8 U.S.C. 1184, 1258.
\188\ See 8 U.S.C. 1601(2)(A).
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DHS will continue to require that the alien meets his or her burden
of proof that he or she is eligible for the status requested, including
whether the alien has the financial means, if required by the laws
governing the particular nonimmigrant classification. The two aspects
of the adjudication (eligibility for the status requested and the
public benefit condition) are not duplicative. DHS notes that although
eligibility for a
[[Page 41330]]
nonimmigrant status might require some indication of future self-
support, it would generally not require an assessment of public
benefits received since the alien obtained the nonimmigrant status he
or she seeks to extend or from which he or she seeks to change.
Comment: One commenter said that, according to Mathews v. Eldridge,
424 U.S. 319 (1976), it would be improper to implement the public
benefits condition for change of status applicants with no available
appeal process. To comply with due process rights as prescribed by
Goldberg v. Kelly, 397 U.S. 254 (1970), the commenter suggested that
DHS give applicants a chance to respond with evidence that supports
their admissibility, and that DHS should not revoke the status until
the decision had been fully appealed through all stages of review.
Response: DHS disagrees that imposing the public benefits condition
on extension of stay and change of status applications is improper
because it violates due process. DHS notes that to the extent that
USCIS obtains derogatory information unknown to the applicant relevant
to the extension of stay or change of status application, consistent
with 8 CFR 103.2(b)(16)(i), USCIS will provide notice of the derogatory
information and give the applicant an opportunity to respond. Moreover,
applicants for extension of stay and change of status will receive
notice of deficiencies as appropriate and consistent with 8 CFR
103.2(b)(8) and consistent with USCIS' policy on the issuance of
certain requests for evidence and notices of intent to deny,\189\
before denying an application for an extension of stay or change of
status. In general, under DHS regulations, a denial of an extension of
stay or change of status application cannot be appealed.\190\ Upon
denial of an extension of stay or a change of status application, if
the alien is removable, DHS can issue an NTA and place the alien in
removal proceedings.\191\ In removal proceedings, the alien can
challenge the basis for removal, and appeal the immigration judge's
decision, if desired.\192\ These proceedings provide due process to the
extent required by law.\193\
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\189\ See USCIS Policy Memorandum Issuance of Certain RFEs and
NOIDs; Revisions to Adjudicator's Field Manual (AFM) Chapter
10.5(a), Chapter 10.5(b) PM-602-0163 (Jul. 13, 2018) (https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf (last visited June
21, 2019).
\190\ See 8 CFR 214.1(c)(5) and 8 CFR 248.3(g).
\191\ See USCIS Policy Memorandum, Updated Guidance for the
Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases
Involving Inadmissible and Deportable Aliens (June 28, 2018),
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf (last visited May 8, 2019).
\192\ See INA sections 240 and 242, 8 U.S.C. 1229a and 1252.
\193\ E.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
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Comment: Many commenters noted that consular officers already
conduct public charge inadmissibility assessments and CBP would conduct
an admissibility determination at the port of entry. Others indicated
that the proposed changes extension of stay and change of status
applications create duplicative work for applicants and USCIS.
Response: As explained in the proposed rule,\194\ DHS believes that
the Government interest in ensuring an alien's self-sufficiency does
not end once a nonimmigrant is admitted to the United States. The
Government has an interest in ensuring that aliens present in the
United States are self-sufficient. This interest does not end once the
alien is admitted; aliens should remain self-sufficient for the entire
period of their stay, including any extension of stay or additional
period of stay due to a change of status. Indeed, as set forth by
Congress in PRWORA, ``aliens within the Nation's borders [should] not
depend on public resources to meet their needs, but rather rely on
their own capabilities and the resources of their families, their
sponsors, and private organizations.'' \195\ The fact that DHS already
considers the applicant's financial status in adjudicating some
extension of stay and change of status applications further supports
this policy. Moreover, although the extension of stay or change of
status provisions in the INA and the regulations do not specifically
reference an alien's self-sufficiency, consideration of an alien's
self-sufficiency in these applications is consistent with the self-
sufficiency principles of PRWORA and aligns the INA to those
principles.\196\
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\194\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51135-36 (proposed Oct. 10, 2018).
\195\ See 8 U.S.C. 1601(2)(A).
\196\ See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 47 (1942)
(requiring ``careful accommodation of one statutory scheme to
another. . . .'').
---------------------------------------------------------------------------
DHS therefore does not believe that considering an extension of
stay or change of status applicant's past and current receipt of public
benefits over the designated threshold in the United States is
duplicative of the consular officer's public charge inadmissibility
assessment at the nonimmigrant visa stage, given that a certain amount
of time has passed between an alien's consular interview or the alien's
admission to the United States in nonimmigrant status, and the alien's
request for an extension of stay or change of nonimmigrant status.\197\
The alien's financial situation may have changed since the visa was
issued or the alien was admitted to the United States.
---------------------------------------------------------------------------
\197\ DHS's authority to specify the conditions, as a matter of
discretion, under which an alien is eligible for either a change of
status or extension of stay can be found in INA section 214(a)(1)
and INA section 248(a); 8 U.S.C. 1184(a)(1) and 1258(a); and 8 CFR
214.1 and 8 CFR 248.1.
---------------------------------------------------------------------------
a. Nonimmigrant Students and Exchange Visitors
Comment: A commenter pointed out that the new public charge rule
would apply to students and exchange visitors who would seek to change
or extend their status. The commenter indicated that the new rule,
therefore, would impose new standards and barriers for students. The
commenter added that drops in international enrollment would have
broader ripple effects for United States higher education institutions.
Response: To the extent that the rule may impose barriers to those
seeking to extend their stay or change their status, as explained
previously, given DHS's authority \198\ and Congress' policy statement
with respect to self-sufficiency,\199\ it is reasonable for DHS to
impose, as a condition of obtaining an extension of stay or change of
status, the requirement that the alien demonstrate that he or she has
not received public benefits as defined in 8 CFR 212.21(b).\200\ As
discussed previously, DHS has removed the forward-looking aspect of the
public benefits condition. This may ameliorate the consequences of the
public benefits condition for certain nonimmigrants.
---------------------------------------------------------------------------
\198\ See INA section 214 and 248, 8 U.S.C. 1184 and 1258.
\199\ See 8 U.S.C. 1601.
\200\ See 8 CFR 214.1(a)(3)(iv) and (c)(4)(iv), and 8 CFR
248.1(c)(4).
---------------------------------------------------------------------------
Comment: Another commenter stated that subjecting extension of stay
and change of status applications and petitions to the public charge
test produces multiple legal contradictions: The commenter provided the
example of international students in F-1 status who are not eligible to
work more than 20 hours off campus or in federally-subsidized work
study positions, asserting that these restrictions greatly reduced the
amount of income students can earn and thus, reduces their self-
sufficiency. The commenter stated that the determinations on self-
sufficiency in one status bear no significance on an individual's
ability to be self-sufficient within the legal confines of a different
classification.
Response: As noted above, DHS disagrees that the rule would require
[[Page 41331]]
individuals seeking extension of stay or change of status to show they
are not inadmissible under section 212(a)(4), 8 U.S.C. 1182(a)(4). At
the time of the application for a nonimmigrant visa, the alien must
demonstrate to DOS that he or she is not likely at any time in the
future to become a public charge. Similarly, at the time a nonimmigrant
applies for admission, he or she must demonstrate to CBP that he or she
is not likely at any time in the future to become a public charge.
However, when seeking an extension of stay or change of status as a
nonimmigrant student \201\ or nonimmigrant exchange visitor,\202\ the
alien will not need to establish that he or she is not likely at any
time in the future to become a public charge because those seeking
extension of stay or change of status are not subject to the public
charge ground of inadmissibility. However, the alien will need to
demonstrate that he or she has sufficient funds to pay tuition and
related costs as part of the application for extension of stay or
change of status to a nonimmigrant. Further, the alien must demonstrate
that he or she has not received, since obtaining the nonimmigrant
status he or she seeks to extend or change and through the time of
filing and adjudication, one or more public benefits as defined in the
rule, for more than 12 months in the aggregate within any 36-month
period (such that, for instance, receipt of two benefits in one month
counts as two months).
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\201\ See 8 CFR 214.1(f)(1)(B) (requiring that the student
presents documentary evidence of financial support in the amount
indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID)); 8
CFR 214.1(m)(1)(B) (requiring that student documents financial
support in the amount indicated on the SEVIS Form I-20 (or the Form
I-20M-N/I-20ID); see AFM Chapter 30.3(c)(2)(C) (applicants to change
status to a nonimmigrant student must demonstrate that they have the
financial resources to pay for coursework and living expenses in the
United States); see also 22 CFR 41.61(b)(1)(ii) (requiring that F
and M nonimmigrants possess sufficient funds to cover expenses while
in the United States or can satisfy the consular officer that other
arrangements have been made to meet those expenses).
\202\ See 8 CFR 214.2(j)(1) (admission upon presentation of
SEVIS Form DS-2019, issued by DOS); 22 CFR 41.62(b)(2) (requiring
that J nonimmigrants possess sufficient funds to cover expenses or
have made other arrangements to provide for expenses before DOS can
approve DS-2019 and the visa). See also AFM Chapter 30.3(c)(2)(C)
(applicant to change status to exchange visitor must show approved
DS-2019 (formerly known as IAP-66).
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DHS disagrees that subjecting extension of stay and change of
status applicants to this new condition is legally contradictory
because a student's restriction on employment in the United States
reduces an alien's self-sufficiency. As explained above, a student is
required, as part of the eligibility for the nonimmigrant
classification, to establish that he or she has sufficient funds to
study in the United States; students are thus admitted with the
expectation of self-sufficiency. The public benefits condition created
by this rule would not be inconsistent with such expectation.
b. Workers
Comment: A commenter pointed out that the new public charge rule
applies to specialty workers and their dependents who would seek
admission or those who seek to change or extend their status. A
commenter indicated that the new rule would impose new standards and
barriers not only on foreign workers, but also on employers because of
the unpredictability of the public charge determination and because
wages alone would not be the determining factor. Citing to research and
data on the population size and impact that the rule would have on H-2A
nonimmigrant workers, several other commenters stated that H-2A
nonimmigrant workers would be affected and that the rule would isolate
H-2A nonimmigrant workers. One commenter, for example, also stated that
the rule's criteria for factors to be considered in the totality of the
circumstances test disadvantages farmworkers who seek to either apply
to adjust to lawful permanent resident status or apply for or extend
their nonimmigrant status. The commenter indicated that many
farmworkers, domestic, and H-2A workers would find themselves
determined to be a public charge due to factors beyond their control,
such as low wages, poverty-level income, and lack of health insurance.
Commenters stated that H-2A nonimmigrant workers undergo a public
charge assessment at the consular office, and once in the United
States, they are not eligible for the vast majority of public benefits
but are provided housing by their employer. A commenter also stated
that H-2A nonimmigrant workers are already reluctant to seek services
due to fear of employer retaliation, and that this rule's chilling
effect could further isolate them from the communities where they work
and live. Thus, H-2A nonimmigrant workers would face delays and
uncertainty in the extension of their visa status, and may become more
vulnerable to recruitment fees and agent costs which, while prohibited,
are a common abuse. The commenters urged DHS to withdraw the rule in
its entirety.
Response: For aliens seeking to extend their stay or change their
status to that of an H-2A nonimmigrant, absent any indication of an
alien's receipt of the designated public benefits for more than 12
months in the aggregate in a 36-month period since obtaining the
nonimmigrant status from which they seek to change, USCIS will approve
the application if the alien meets the eligibility requirement for the
nonimmigrant classification. Additionally, as commenters pointed out,
nonimmigrants are generally ineligible for public benefits that would
be considered in connection with this rule. DHS understands the
concerns addressed by the commenter regarding the practices of
nonimmigrant workers and potential abuses of the programs, and
therefore encourages the reporting of any such abuse through the
channels provided by DHS or the Department of Labor (DOL).\203\
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\203\ USCIS has web pages and email addresses dedicated to
combating suspected H-1B and H-2B fraud or abuse. Anyone, including
both U.S. and foreign workers who suspect they or others may be the
victim of fraud or abuse, can email USCIS to submit tips, alleged
violations, and other relevant information. See USCIS, Report Labor
Abuses, https://www.uscis.gov/working-united-states/information-employers-employees/report-labor-abuses (last visited May 8, 2019).
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As previously indicated, given Congress' policy statement with
respect to self-sufficiency, and DHS's authority to promulgate a rule
addressing public charge inadmissibility, it is reasonable for DHS to
impose, as a condition of obtaining an extension of stay or change of
status, the requirement that the alien demonstrate that he or she has
not received public benefits as defined in the rule. DHS notes that it
has removed the forward-looking aspect of the public benefits
condition. This may ameliorate the consequences of the public benefits
condition for certain nonimmigrants.
Comment: One commenter stated that the proposed rule would be
detrimental to South Asian organizations that sponsor nonimmigrant
religious workers and the rule would deem most of them inadmissible to
the United States as public charges. The commenter stated that as part
of a petition from, a sponsoring institution, usually a non-profit
entity supported through volunteer contributions, it would provide free
housing, all meals, and health insurance to the religious worker as
part of the employment package and may offer a small stipend to cover
incidental expenses in lieu of a salary. The commenter indicated that
such an employment offer, with its mix of monetary and non-monetary
compensation, might be insufficient to overcome the public charge
grounds based on the totality of the
[[Page 41332]]
circumstances test proposed in the NPRM.
Response: For aliens seeking to extend their stay or change their
status to that of religious workers, absent any indication of an
alien's receipt of the designated public benefits for more than 12
months in the aggregate in a 36-month period, USCIS will approve the
application if the alien meets the eligibility requirement for the
nonimmigrant classification. Additionally, as commenters pointed out,
nonimmigrants are generally ineligible for public benefits that would
be considered in connection with this rule.
As previously indicated, given Congress' policy statement with
respect to self-sufficiency, and DHS's authority to promulgate a rule
addressing public charge inadmissibility, it is reasonable for DHS to
impose, as a condition of obtaining an extension of stay or change of
status, the requirement that the alien demonstrate that he or she has
not received public benefits as defined in the rule. DHS notes that it
has removed the forward-looking aspect of the public benefits
condition. This may ameliorate the consequences of the public benefits
condition for certain nonimmigrants.
DHS acknowledges that, once the rule is effective, certain
religious workers seeking admission to the United States as
nonimmigrants could be impacted by this rule. As part of the
determination of whether any alien is likely at any time in the future
to become a public charge, DHS will consider whether the alien has
sufficient assets and resources for the purpose of his or her stay in
the United States upon admission.\204\ DHS believes that this
regulation, and other provisions of the INA and implementing
regulations, can be administered consistently with the Religious
Freedom Restoration Act of 1993 (RFRA).\205\ As DHS has noted
previously, ``[a]n organization or individual who believes that the
RFRA may require specific relief from any provision of this regulation
may assert such a claim at the time they petition for benefits.'' \206\
Similarly, DHS acknowledges that any individual or organization who
identifies a substantial burden on his, her, or an organization's
exercise of religion such that the RFRA may require specific relief may
assert such a claim.\207\ Note, the RFRA does not create a wholesale
``exemption'' to a generally applicable regulation; rather, it permits
an applicant to seek specific relief which may or may not be complied
with. Whether the RFRA applies to a given applicant is a case-by-case
determination.\208\ Therefore, for extension of stay and change of
status purposes, DHS would still apply the public benefit condition to
religious workers and review each case and each request individually.
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\204\ See 8 CFR 214.2(r)(11).
\205\ Public Law 103-141, sec. 3, 107 Stat. 1488, 1488 (Nov. 16,
1993).
\206\ Special Immigrant and Nonimmigrant Religious Workers, 73
FR 72276, 72283 (2008) codified at 8 CFR pts. 204, 214, 299.
\207\ Note that individuals ``located outside sovereign United
States territory at the time their alleged RFRA claim arose'' are
not ``person[s]'' within the meaning of RFRA. Rasul v. Myers, 512
F.3d 644, 672 (D.C. Cir.), cert. granted, judgment vacated on other
grounds, 555 U.S. 1083 (2008).
\208\ See generally Federal Law Protections for Religious
Liberty, 82 FR 49668, 49669 (Oct. 26, 2017) from DOJ.
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With respect to admission and adjustment of status, the fact that
the alien has an employment offer to work in the United States as well
as monetary and non-monetary compensation are positive factors that
generally indicate that the alien has sufficient assets and resources
to be self-sufficient while present in the United States.\209\ As
previously noted, the public charge determination is an assessment
considering all statutory mandated factors in the totality of the
circumstances and that one factor alone is not outcome determinative.
Separately, if an individual is required to obtain a visa from the DOS
to facilitate entry into the United States, the inadmissibility
determination with respect to whether to issue a visa is in the
jurisdiction of DOS.
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\209\ Regulations that permit certain religious workers to self-
support, 8 CFR 214.2(r)(11)(ii), require submission of ``verifiable
evidence acceptable to USCIS'' that document ``the sources of self-
support.'' These sources of self-support are a positive factor in
the public charge determination. Additionally, as noted above, any
individual or organization who identifies a substantial burden on
his, her, or an organization's exercise of religion such that the
RFRA may require specific relief from any provision of this rule may
assert such a claim. Separately, as noted in the preamble of a
different rule, ``self-supporting religious workers who are not
eligible for admission to the United States as R-1 nonimmigrant
religious workers may pursue admission in the B-1 classification.''
Special Immigrant and Nonimmigrant Religious Workers, 73 FR 72282
(2008) codified at 8 CFR pts. 204, 214, 299.
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d. Compact of Free Association Migrants
Comment: Several commenters addressed Compact of Free Association
(COFA) migrants from the Republic of the Marshall Islands, Federated
States of Micronesia and the Republic of Palau, who are able to reside
in the United States as nonimmigrants under treaty obligations.
Commenters stated that while COFA migrants are not eligible for many
federal public benefits, some do participate in state and local
programs, especially health insurance, and COFA migrant children and
pregnant women are eligible for Medicaid. Commenters stated that
workers may either disenroll from these types of programs because of
the applicability to nonimmigrants seeking admission or be blocked from
entering the United States. One commenter stated that ``[t]his rule
could be used to deny COFA entry and ability to live in the [United
States] thereby abandoning our Nation's commitment to our Pacific
allies, including the more than 61,000 COFA persons currently residing
in the United States.''
Response: DHS appreciates the comments on the impact of the rule on
COFA migrants and appreciates the continued relationship between COFA
nations and the United States. Under the agreements and resulting
regulations, citizens of the Republic of the Marshall Islands, the
Federated States of Micronesia, and the Republic of Palau may enter
into the United States as nonimmigrants, lawfully engage in employment,
and establish residence in the United States without regard to certain
grounds of inadmissibility.\210\ Certain COFA citizens are subject to a
modified version of the public charge ground of deportability, which is
not directly affected by this rule.\211\ But Congress did not exempt
foreign nationals entering the United States under COFA from the public
charge ground of inadmissibility, or otherwise modify the applicability
of such ground of inadmissibility with respect to COFA migrants. And
Congress expressly reiterated DHS's authority under section 214(a)(1)
of the INA, 8 U.S.C. 1184(a)(1), ``to provide that admission as a
nonimmigrant shall be for such time and under such conditions as the
Government of the United States may by regulations prescribe.'' \212\
DHS acknowledges that COFA migrants may be affected by this rulemaking
when applying for admission at a port of entry
[[Page 41333]]
or when applying for adjustment of status before USCIS, but
respectfully submits that Congress never exempted COFA nonimmigrants
from the public charge ground of inadmissibility.
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\210\ Under these compacts, foreign nationals falling under COFA
are able to enter without regard to inadmissibility under INA
section 212(a)(5) and (7)(B)(i)(II), 8 U.S.C. 1182(a)(5) and
(7)(B)(i)(II). See Compact of Free Association Amendment Act of
2003, Public Law 108-188, 117 Stat. 2720 (Dec. 17, 2003); see also
Compact Free Association Approval Act, Public Law 99-658, 100 Stat.
3672 (Nov. 14, 1986) (regarding the Republic of Palau); see also 8
CFR 212.1(d).
\211\ See Public Law 108-188, 117 Stat. 2720, 2762, 2800 (Dec.
17, 2003) (providing that with respect to citizens of the Federated
States of Micronesia and the Republic of the Marshall Islands,
``section 237(a)(5) of [the INA] shall be construed and applied as
if it reads as follows: `any alien who has been admitted under the
Compact, or the Compact, as amended, who cannot show that he or she
has sufficient means of support in the United States, is
deportable'''); 8 CFR 214.7(e)(1).
\212\ See Public Law 108-188, 117 Stat. 2720, 2762, 2800 (Dec.
17, 2003).
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DHS notes, however, that because COFA migrants are not required to
obtain an extension of their nonimmigrant stay to remain in the United
States pursuant to COFA, such nonimmigrants are unlikely to be affected
by public benefits condition applicable to extension of stay
applications. In addition, as noted elsewhere in this rule, to the
extent that COFA migrant children under 21 and pregnant women receive
Medicaid, such receipt would not be considered under this rule.
3. Exemptions and Waivers With Respect to the Rule Generally
a. General Comments
Comment: Many commenters supported the exemptions proposed in the
NPRM, but a few of the commenters suggested that exemptions be clearly
communicated. Some commenters requested that the discussion of
exemptions should be moved earlier in the regulation or included in the
executive summary of the preamble, to avoid any confusion. Other
commenters expressed their support for the exemptions and waivers but
indicated that DHS should ensure that immigrant communities and service
providers be made aware of these exemptions.
Many commenters expressed concern about the rule's impact on the
vulnerable populations specifically excluded from public charge
requirements, such as refugees, asylum seekers, victims of trafficking,
and VAWA petitioners, who may avoid applying for or accepting any
public benefits for which they qualify, to avoid any negative impact on
the adjudication of their benefit requests and for fear of future
repercussions. One commenter indicated that the exemptions for asylees
and refugees appear to be based on their status at the time of
admission or grant of status but do not apply to those whose
application for asylum or refugee status is pending and who may be
eligible for public benefits during that period.
Multiple commenters stated that while the proposed rule exempts
VAWA petitioners and U nonimmigrant status, the exemptions will not
protect a large number of victims from the detrimental effects of the
public charge rule since there are many victims of domestic violence
and sexual assaults that seek status in other immigration categories.
While a commenter agreed with the proposed rule's intention to
streamline all abused-spouse applications under the VAWA umbrella, the
commenter said USCIS and DHS must ensure there is no negative impact to
survivors who choose to seek adjustment of status. A few commenters
specifically stated that human trafficking survivors would be
negatively impacted by the significant delays and increased
adjudication expenses. Other commenters expressed concerns about
permitting refugees and asylees to continue to receive healthcare while
excluding foreign nationals who have immigrated here with the proper
documentation (i.e., legally) and are going through the process to
obtain permanent residency here in the United States. These commenters
said that this is logical fallacy, at best, and at worst, it is
unjustified discrimination.
Response: DHS believes that the current organization of the
regulations and exemptions clearly communicates who is exempt from the
public charge ground of inadmissibility and who may be eligible for a
waiver of the inadmissibility ground. DHS has also added the summary
table in subsection III.F.4 below. DHS declines to implement the
suggestions for reorganizing the final rule because the current
organization sufficiently addresses visibility.
DHS does not agree that the rule should be more limited in scope
and not consider public benefits as part of the public charge
inadmissibility determination. The purpose of this rule is to implement
the public charge ground of inadmissibility consistent with the
principles of self-sufficiency set forth by Congress, and to minimize
the incentive of aliens to attempt to immigrate to, or to adjust status
in, the United States due to the availability of public benefits.\213\
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\213\ See 8 U.S.C. 1601.
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DHS disagrees with the commenters who indicated that this rule
would negatively impact refugees, asylum seekers, victims of
trafficking, and VAWA self-petitioners and that the exemptions should
be broader. As noted in the NPRM and previous sections in this final
rule, the public charge ground of inadmissibility does not generally
apply to these populations. Congress expressly exempted refugees,
asylees, and applicants for adjustment based on refugee or asylee
status from the public charge inadmissibility ground.\214\ Therefore,
if an individual has a pending application for asylum, the individual
will not be assessed for public charge for purposes of the asylum
application and obtaining asylee status. Refugees who are seeking
admission to the United States are not subject to public charge grounds
of inadmissibility and DHS will not determine whether they may be
likely to become a public charge in the United States as part of the
refugee admission. Similarly, refugees or asylees seeking adjustment
based on their refugee or asylee status, are not subject to the public
charge inadmissibility ground, and therefore, the use of public
benefits is not considered. Therefore, DHS believes that the
commenters' concerns regarding the rule's impact on asylees and
refugees are sufficiently addressed.
---------------------------------------------------------------------------
\214\ See INA sections 207, 208, and 209; 8 U.S.C. 1157, 1158,
and 1159.
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Similarly, applicants for T nonimmigrant visas are also generally
exempt from the public charge inadmissibility ground,\215\ and, as
established below, DHS also agrees with the commenters that T
nonimmigrants applying for adjustment of status should generally be
exempt from public charge.\216\ Additionally, Congress generally
exempted VAWA self-petitioners from the public charge ground of
inadmissibility.\217\ Also, in response to comments and for reasons
explained in the section addressing public benefits, DHS has amended 8
CFR 212.21(b) by providing that public benefits received by those who
are in a status exempted from public charge will not be considered in a
subsequent adjudication of a benefit that does subject the alien to the
public charge ground of inadmissibility. This step should further
alleviate concerns that a person in one of the listed categories would
be subject to the public charge ground.
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\215\ See INA sections 101(a)(15)(T) and 212(d)(13)(A), 8 U.S.C.
1101(a)(15)(T) and 1182(d)(13)(A).
\216\ See INA sections 101(a)(15)(T) and 245(l)(2), 8 U.S.C.
1101(a)(15)(T) and 1255(l)(2).
\217\ See INA section 212(a)(4)(E)(i), 8 U.S.C.
1182(a)(4)(E)(i).
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DHS also disagrees that this rule discriminates against aliens who
are not asylees or refugees. Congress, in PRWORA, made the decision as
to which noncitizens are eligible to apply for and receive certain
public benefits. Congress decided that asylees and refugees should be
eligible to apply for public benefits, and DHS does not have the
authority to include or exclude any groups from the receipt of public
benefits.
Comment: A commenter stated the rule should exempt people with
disabilities and their families, stating many of these families come to
the United States in order to receive adequate medical care. Commenters
opposed including immigrants with
[[Page 41334]]
disabilities in the proposed rule because disability is one of the
strongest known factors that affect a household's food security and
housing instability. Some commenters said DHS should make an exception
for pregnant women. Another commenter asked that DHS provide more
exemptions and waivers, suggesting that the rule should be narrowed to
only apply to those seeking entry into the United States initially or
to provide extra protection to those in the United States to lessen the
fears of the proposed rule's negative effects.
Response: Congress generally specifies, in legislation, to whom
grounds of inadmissibility apply and which classes of aliens are exempt
from public charge. DHS understands that individuals with disabilities
and pregnant women may be affected by this rule. However, Congress did
not provide an exemption for individuals with disabilities or pregnant
women in the statute.\218\
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\218\ See INA sections 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Additionally, DHS cannot limit the application of the ground of
inadmissibility in a matter so that it only applies to those seeking
entry into the United States or so that DHS provides extra protections
because Congress, in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)
specified that the ground of inadmissibility applies to those seeking a
visa, admission to the United States, or adjustment of status in the
United States. Classes of aliens exempt from the public charge ground
of inadmissibility are listed in 8 CFR 212.23. Certain aspects of this
rule limit some of the rule's effects, such as by relying on an
exhaustive list of non-cash benefits, and excluding consideration of
certain benefits for certain populations or circumstances. DHS believes
that this is sufficient.
Comment: A commenter recommended adding exemptions from the public
charge ground of inadmissibility for those who have been certified for
benefits under the authorization of another person, such as the head of
household or guardian. The commenter reasoned that the dependents may
not have been aware that this occurred or even that they receive a
benefit.
Response: DHS disagrees that it should exempt from the public
charge ground of inadmissibility those who have been certified for
benefits under the authorization of another, such as the head of
household or guardian, if the beneficiary is an alien subject to the
public charge ground of inadmissibility. In general, Congress has the
authority to legislate which classes of aliens should be subject to
public charge ground of inadmissibility and which are exempt. Congress
did not provide an exemption from the public charge ground of
inadmissibility for aliens seeking a visa, admission, or adjustment of
status and who may have been certified for benefits under the
authorization of another, such as the head of household or the guardian
who applied on the alien's behalf. DHS acknowledges that those
dependents who are certified for or receiving public benefits under the
authorization of another, such as the head of the household or the
guardian, may be unaware of the receipt of public benefits but will,
once the rulemaking is effective, may be impacted by such receipt of
public benefits, if they are subject to the public charge ground of
inadmissibility.
After having reviewed the comments, however, DHS has decided to
provide additional clarification regarding such matters. As explained
in detail in the public benefits section in this preamble, DHS has
added a new definition of ``receipt of public benefits'' to section
212.21(e) to clarify that DHS will only consider the alien to have
received a public benefit if the alien is a named beneficiary of the
benefit. An alien does not receive a benefit merely by virtue of having
applied or been certified for such benefit, and has not received a
public benefit if the alien acted not on his or her own behalf but on
behalf of another person. Therefore, if an alien is the person
receiving benefits on behalf of another (for instance as a parent,
legal guardian) the alien will not be considered to have received, been
certified for, or applied for such public benefit.
b. Special Immigrant Juvenile
Comment: A commenter stated that the proposed rule would conflict
with the purpose of Special Immigrant Juvenile (SIJ) status, asserting
that the purpose of the status is to allow children to thrive in the
United States and that children are not responsible for their
circumstances. Although SIJ recipients are statutorily exempt from
inadmissibility on public charge grounds, this rule would still affect
SIJ youth indirectly because of its scope, secondary effects on
families, and potential for confusion. Many of these youth live in
homes with U.S. citizen or permanent resident adults or siblings who
would be entitled to benefits but may be deterred from accessing them
because of a fear of how it will affect the SIJ youth or other family
members.
Response: DHS disagrees that this rule conflicts with the SIJ
program. As stated in the proposed rule, aliens applying for adjustment
of status based on an SIJ determination are exempt from the public
charge inadmissibility ground. If aliens who are not subject to the
public charge ground of inadmissibility choose to disenroll from or
forego public benefit receipt based on this rule, then the decision to
disenroll from or forego enrollment is unwarranted. The NPRM provided
an exhaustive list of individuals who are exempt from the public charge
ground of inadmissibility, and this final rule retains that list of
exemptions. DHS will not consider receipt of public benefits by aliens
exempt from the public charge ground inadmissibility, even if the
exempted alien has an alien family member who is not exempt. DHS notes
that this rule also categorically exempts receipt of Medicaid by
children under the age of 21, which should reduce the potential for
confusion.
c. Certain Employment Based Preference Categories, or National Interest
Waiver
Comment: One commenter requested that individuals applying for
lawful permanent resident status via approved EB-1A (extraordinary
ability alien), EB-1B (outstanding researcher or scientist), or
National Interest Waiver (NIW) petitions be added to the list of those
exempted from the rule. The commenter stated that the vast majority of
these individuals may need to resort to using the designated benefits,
and it would be completely contrary to the intent of Congress in
passing the EB-1A, EB-1B and NIW statutes to deny scientific
researchers green cards who would otherwise be benefiting the lives of
literally millions of U.S. citizens.
Response: DHS disagrees that this rule is contrary to congressional
intent in passing the EB-1A, EB-1B and NIW statutes. Congress did not
exempt employment based EB-1A or EB-1B categories, or those seeking an
NIW, from the public charge ground of inadmissibility.\219\ DHS neither
has the
[[Page 41335]]
authority to exempt an applicant or a group of applicants for admission
or adjustment of status from the public charge ground of
inadmissibility where Congress has not already done so,\220\ nor has
the authority to ignore the congressionally-mandated exemptions to the
public charge ground of inadmissibility. Because Congress has expressly
exempted asylees and refugees from the public charge inadmissibility
ground, DHS cannot remove this exemption. Further, because Congress did
not specifically exempt EB-1A or EB-1B workers, or those with NIWs,
from the public charge ground of inadmissibility, DHS may not create an
exemption for them in this rule.\221\
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\219\ See INA section 203(b)(1)(A), 8 U.S.C. 1153(b)(1)(A)
(aliens with extraordinary ability) or INA section 203(b)(1)(B), 8
U.S.C. 1153(b)(1)(B) (outstanding professors and researchers). See
INA section 203(b)(2), 8 U.S.C. 1153(b)(2) (aliens who are members
of the professions holding advance degrees or aliens of exceptional
ability who are seeking a waiver of the job over in the national
interest); see also comment USCIS 2010-0012-31111. The commenter
explained that the work these individuals perform is of great
importance to the United States and have a profound impact on the
U.S. economies. However, the commenter indicated, a vast majority of
these individuals who are conducting scientific research earn low
salaries below the 250% threshold and may need to resort to using
these types of benefits the proposed regulation is seeking to
prohibit, especially for their U.S. citizen children. The commenter
indicated that it would be contrary to congressional intent to apply
public charge to these workers.
\220\ As explained in the NPRM, DHS derives its statutory
authority for this rule and its authority to promulgate regulation
based on section 102 of the Homeland Security Act of 2002, Public
Law 107-296, 116 Stat. 2135, 2142-44 (Nov. 25, 2002) (codified at 6
U.S.C. 112) and INA section 103, 8 U.S.C. 1103, as well as INA
section 212(a)(4), 8 U.S.C. 1182 and the relevant statutory
provisions governing immigration benefits. See Inadmissibility on
Public Charge Grounds, 83 FR 51114, 51124 (proposed Oct. 10, 2018).
\221\ Providing for an exemption where Congress does not
expressly authorize one, as it does for other immigration benefits
applicants under the INA, would be beyond the scope of DHS's
authority. See Andrus v. Glover Const. Co., 446 U.S. 608, 616-17
(1980) (``Where Congress explicitly enumerates certain exceptions to
a general prohibition, additional exceptions are not to be implied,
in the absence of a contrary legislative intent.'').
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d. Violence Against Women Act, T, and U
Comment: A commenter provided the statutory amendment history of 8
U.S.C. Section 1641, and stated that VAWA, T, and U visa victims and
all other immigrants covered by 8 U.S.C. 1641(c) cannot be subject to
public charge under federal statutes. Another commenter indicated that
the NPRM incorrectly applies the public charge ground of
inadmissibility to applications for adjustment of status and extension
of stay filed by T nonimmigrants. The commenter noted that both T
nonimmigrant status seekers and T nonimmigrant status holders are
exempt from the public charge ground of inadmissibility. The commenter
also indicated that proposed 8 CFR 212.23(a)(17) should be amended to
conform to section 804 of VAWA 2013,\222\ exempting T nonimmigrants
seeking to adjust status to lawful permanent residence or to extend
status from the public charge ground of inadmissibility. The commenter
indicated that section 804 of VAWA 2013, granted the same exemptions
from the public charge ground of inadmissibility to all foreign
national victims who are ``qualified aliens'' under section 431(c) of
PRWORA, 8 U.S.C. 1641(c), including T nonimmigrant status holders.\223\
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\222\ See Public Law 113-4 (March 7, 2013).
\223\ The commenter indicated that DHS correctly recognized the
full extent of exceptions that the same provisions made for VAWA-
self petitioners, U visa applicants, and U visa holders for purposes
of lawful permanent residency.
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Response: DHS agrees that qualified aliens under 8 U.S.C. 1641(c)
(certain battered aliens as qualified aliens) are generally not subject
to the public charge inadmissibility ground. Section 212(a)(4)(E)(iii)
of the INA, 8 U.S.C. 1182(a)(4)(E)(iii), specifically excludes such
individuals from the public charge ground.\224\ VAWA 2013, which added
section 212(a)(4)(E)(iii) of the INA, 8 U.S.C. 1182(a)(4)(E)(iii),
specifically excludes individuals such as qualified aliens described in
8 U.S.C. 1641(c) (including T nonimmigrants and certain battered
spouses and children of U.S. citizens), VAWA self-petitioners, and U
nonimmigrants from sections 212(a)(4)(A), (B), and (C) of the INA, 8
U.S.C. 1182(a)(4)(A), (B), and (C).
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\224\ While INA section 212(a)(4)(E)(iii), 8 U.S.C.
1182(a)(4)(E)(iii), excludes qualified aliens under 8 U.S.C. 1641(c)
from public charge, that exclusion does not apply to the separate
category of ``qualified aliens'' described in 8 U.S.C. 1641(b) who
are subject to public charge unless otherwise subject to an
exception.
---------------------------------------------------------------------------
Congress, however, did not include paragraph (D) among the
exemptions in section 212(a)(4)(E) of the INA, 8 U.S.C. 1182(a)(4)(E).
We must presume that Congress acted intentionally in requiring all
aliens described in paragraph (D) to file the requisite affidavit of
support, even if they are described in paragraph (E). The law does not
permit DHS to add language to the statute. See, e.g., Lamie v. U.S.
Tr., 540 U.S. 526, 538 (2004) (counseling against interpretative
methodologies that yield ``not . . . a construction of [a] statute,
but, in effect, an enlargement of it by the court, so that what was
omitted, presumably by inadvertence, may be included within its
scope''); Yith v. Nielsen, 881 F.3d 1155, 1164 (9th Cir. 2018) (``It is
never our job to rewrite a constitutionally valid statutory text.
Indeed it is quite mistaken to assume that whatever might appear to
further the statute's primary objective must be the law.'' (citations,
quotation marks, and alterations omitted)). Accordingly, in the
unlikely event that an alien described in paragraph (E) is seeking
admission or adjustment of status based on an immigrant visa issued
under section 203(b) of the INA, 8 U.S.C. 1153(b), that individual must
comply with the affidavit of support requirement in section 213A of the
INA, 8 U.S.C. 1183a. Such individuals, however, would not need to
demonstrate, as set forth in paragraphs 212(a)(4)(A) and (B), 8 U.S.C.
1182(A) and (B), that he or she is not likely at any time to become a
public charge. Those applicants would not need to submit Form I-944. As
such, such applicants would only have to submit a sufficient affidavit
of support described in section 213A of the INA, 8 U.S.C. 1183a.
For the reasons stated above, DHS is amending proposed 8 CFR
212.23(a)(18), (19), (20), (21), and 8 CFR 212.23(b) in this final rule
to clarify that aliens exempt under section 212(a)(4)(E) of the INA, 8
U.S.C. 1182(a)(4)(E), that are adjusting status based on an employment-
based petition subject to section 212(a)(4)(D) of the INA, 8 U.S.C.
1182(a)(4)(D), that requires the execution of an affidavit of support
as described in section 213A of the Act, 8 U.S.C. 1183a, are not exempt
from the entirety of section 212(a)(4) of the INA, 1182(a)(4), as they
are still subject to section 212(a)(4)(D) of the INA, 8 U.S.C.
1182(a)(4)(D).
Applicants seeking T nonimmigrant status, T nonimmigrants applying
for adjustment of status, and T nonimmigrants seeking another
immigration benefit that requires admissibility, are generally exempt
from the public charge ground of inadmissibility under section
212(a)(4)(E) of the Act, 8 U.S.C. 1182(a)(4)(E). In accordance with
section 804 of the VAWA 2013,\225\ which added new section 212(a)(4)(E)
of the Act, 8 U.S.C. 1182(a)(4)(E), individuals who have been granted T
nonimmigrant status or have a pending application that sets forth a
prima facie case for eligibility for T nonimmigrant status are
generally exempt from the public charge inadmissibility determination.
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\225\ See Public Law 113-4, 127 Stat 54 (Mar. 7, 2013).
---------------------------------------------------------------------------
Notwithstanding these changes, VAWA 2013 did not amend section
245(l)(2) of the Act, 8 U.S.C. 1255(l)(2),\226\ which provides that DHS
may waive the application of the public charge ground of
inadmissibility if it is in the national interest to do so for a T
nonimmigrant seeking to adjust status to lawful permanent residence
under section 245(l) of the Act, 8 U.S.C. 1255(l). DHS concludes,
however, that the VAWA 2013 amendments, which postdated the enactment
of section 245(l)(2) of the Act, 8 U.S.C. 1255(l)(2),
[[Page 41336]]
are controlling. That is, DHS has determined that T nonimmigrants
seeking to adjust status under section 245(a) of the Act, 8 U.S.C.
1255(a) (with a limited exception) and section 245(l) of the Act, 8
U.S.C. 1255(l) are not subject to the public charge ground of
inadmissibility for purposes of establishing eligibility for adjustment
of status. However, for this exemption from public charge to apply, the
T nonimmigrant must hold and be in valid T nonimmigrant status at the
time the Form I-485 is properly filed in compliance with 8 CFR
103.2(a)(7) and throughout the pendency of an application.\227\ For the
reasons stated above, DHS is amending proposed 8 CFR 212.23(a)(17) in
this final rule to clarify that T nonimmigrants seeking any immigration
benefit subject to section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)--
except those described in section 212(a)(4)(D) of the Act, 8 U.S.C.
1182(a)(4)(D), who must file an affidavit of support--are exempt from
the public charge ground of inadmissibility, provided that the T
nonimmigrant seeking the immigration benefit is in valid T nonimmigrant
status at the benefit request is properly filed with USCIS and at the
time the benefit request is adjudicated.\228\ As section 212(a)(4)(E)
of the Act, 8 U.S.C. 1182(a)(4)(E), is an additional authority for
exempting T nonimmigrants, DHS has revised the authority for the
exemption to refer to sections 212(a)(4)(E) and 212(d)(13)(A) of the
Act, 8 U.S.C. 1182(a)(4)(E), (d)(13)(A).\229\ Additionally, based on
the same rationale provided above, DHS is also modifying current 8 CFR
212.18(b)(2) and 8 CFR 245.23(c)(3) to accurately reflect changes
codified by Congress in 2013 in relation to those having a pending
prima facie case for status under section 101(a)(15)(T) of the Act, 8
U.S.C. 1101(a)(15)(T), or is in valid T nonimmigrant status at the time
of filing for an immigration benefit, and to clarify that these
individuals--with the limited exception described in INA 212(a)(4)(D),
8 U.S.C. 1182(a)(4)(D)--are not subject to the public charge ground of
inadmissibility. As discussed further under the PRA section of this
final rule, DHS is also making conforming changes to the Form I-601
instructions.
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\226\ See INA section 245(l), 8 U.S.C. 1255(l), which was
created by the Victims of Trafficking and Violence Protection Act of
2000, Public Law 106-386, 114 Stat. 1464 (Oct. 8, 2000).
\227\ See 8 CFR 103.2(b)(1) (an applicant or petitioner must
establish that he or she is eligible for the requested benefits at
the time of filing and the benefit request and must continue to be
eligible through adjudication); see also Matter of Alarcon, 20 I&N
Dec. 557, 562 (BIA 1992) (``an application for admission to the
United States is a continuing application, and admissibility is
determined on the basis of the facts and the law at the time the
application is finally considered'').
\228\ See 8 CFR 212.23(a)(17) and (18).
\229\ See also INA section 212(s), 8 U.S.C. 1182(s) (excluding
from the public charge determination consideration of benefits
received by those eligible to receive benefits under 8 U.S.C.
1641(c)).
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Individuals seeking U nonimmigrant status and U nonimmigrants
seeking adjustment of status on account of their U nonimmigrant status
are generally exempt from the public charge ground.\230\ In accordance
with section 804 of the VAWA 2013,\231\ which added new section
212(a)(4)(E) of the Act, 8 U.S.C. 1182(a)(4)(E), an individual who is
an applicant for, or is granted U nonimmigrant status is exempt from
the public charge ground of inadmissibility.\232\ However, for this
exemption from public charge to apply, the U nonimmigrant must hold and
be in valid U nonimmigrant status at the time the Form I-485 is
properly filed in compliance with 8 CFR 103.2(a)(7) and throughout the
pendency of an application.\233\ Therefore, DHS clarified in this final
rule that these individuals are not subject to the public charge ground
of inadmissibility when seeking an immigration benefit,\234\ to
accurately reflect changes enacted by Congress in VAWA 2013.
Additionally, VAWA self-petitioners are generally exempt from the
public charge ground of inadmissibility.\235\ Similar to T
nonimmigrants (and as described above), U nonimmigrants and VAWA self-
petitioners who are adjusting status under an employment-based category
that is required to execute an affidavit of support described in
section 213A, 8 U.S.C. 1183a, under 212(a)(4)(D) of the INA, 8 U.S.C.
1182(a)(4)(D), must still execute that affidavit of support to overcome
the public charge ground of inadmissibility.
---------------------------------------------------------------------------
\230\ See 8 CFR 212.23(a)(18).
\231\ See Public Law 113-4, 127 Stat 54 (Mar. 7, 2013).
\232\ See INA sections 212(a)(4)(E)(ii), 8 U.S.C.
1182(a)(4)(E)(ii), which exclude from public charge determinations
an applicants for, or individuals granted, nonimmigrant status under
section 1101(a)(15)(U).
\233\ See 8 CFR 103.2(b)(1) (An applicant or petitioner must
establish that he or she is eligible for the requested benefits at
the time of filing and the benefit request and must continue to be
eligible through adjudication). See also Matter of Alarcon, 20 I&N
Dec. 557, 562 (BIA 1992) (``an application for admission to the
United States is a continuing application, and admissibility is
determined on the basis of the facts and the law at the time the
application is finally considered.'').
\234\ See 8 CFR 212.23(a)(19).
\235\ See 8 CFR 212.23(a)(21).
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4. Summary of Applicability, Exemptions, and Waivers
The following tables provide a summary of all nonimmigrant and
immigrant classification and whether they are subject to the public
charge inadmissibility determination and submit an I-944 or are subject
to the public benefit condition for extension of stay and change of
status nonimmigrants.
Table 2--Summary of Nonimmigrant Categories Subject to Public Benefits Condition
----------------------------------------------------------------------------------------------------------------
Subject to public
Eligible to apply for Eligible to apply for benefit condition under
extension of stay change of status proposed 8 CFR
Category (i.e., may file Form I- (i.e., may file Form I- 214.1(a)(3)(iv),
129 or Form I-539) * 129 or I-Form 539) * 214.1(a)(4)(iv);
248.1(c)(4)
----------------------------------------------------------------------------------------------------------------
A-1--Ambassador, Public Minister, No. Not applicable as Yes. Files I-539, 8 CFR No. INA 102; 22 CFR
Career Diplomat or Consular admitted for Duration 248.1(a). 41.21(d).
Officer, or Immediate Family; A-2-- of Status, 8 CFR
Other Foreign Government Official 214.1(c)(3)(v).
or Employee, or Immediate Family;
INA 101(a)(15)(A), 22 CFR 41.21.
A-3--Attendant, Servant, or Personal Yes. Files Form I-539, Yes. Files Form I-539, Yes. INA 102; 22 CFR
Employee of A-1 or A-2, or 8 CFR 214.1(c)(2). 8 CFR 248.1(a). 41.21(d)(3).
Immediate Family; INA
101(a)(15)(A), 22 CFR 41.21.
B-1--Temporary Visitor for Business; Yes. Files Form I-539, Yes. Files Form I-539, Yes.
B-2--Temporary Visitor for 8 CFR 214.1(c)(2), 8 8 CFR 248.1(a).
Pleasure; * not admitted under Visa CFR 214.2(b)(1).
Waiver Program; INA 101(a)(15)(B).
[[Page 41337]]
C-1--Alien in Transit; C-1/D-- No. 8 CFR No. 8 CFR 248.2(a)(2), Not Applicable as not
Combined Transit and Crewmember 214.1(c)(3)(ii). except for change to T eligible for extension
Visa; INA 101(a)(15)(C) and (D), and U, 8 CFR 248.2(b) of stay or change of
INA 212(d)(8). using Form I-914 or I- status.
918.
C-2--Alien in Transit to United No. Not applicable as No, 8 CFR 248.2(a)(2), No. 22 CFR 41.21(d).
Nations Headquarters District Under admitted for Duration except for change to T
Section 11.(3), (4), or (5) of the of Status. 8 CFR and U, 8 CFR 248.2(b)
Headquarters Agreement; INA 214.1(c)(3)(ii). using Form I-914 or I-
101(a)(15)(C) and (D), INA 918.
212(d)(8).
C-3--Foreign Government Official, No. 8 CFR No, 8 CFR 248.2(a)(2), No. 22 CFR 41.21(d).
Immediate Family, Attendant, 214.1(c)(3)(ii). except for change to T
Servant or Personal Employee, in and U, 8 CFR 248.2(b)
Transit; INA 101(a)(15)(C) and (D), using Form I-914 or I-
INA 212(d)(8). 918.
CW-1--Commonwealth of Northern Yes. Files Form I- Yes. Files Form I- Yes.
Mariana Islands Transitional Worker 129CW, 8 CFR 129CW, 8 CFR 248.1(a);
Section 6(d) of Public Law 94-241, 214.1(c)(2) and 8 CFR 8 CFR 214.2(w)(18).
as added by Section 702(a) of 214.2(w)(17).
Public Law 110-229. 8 CFR 214.2(w).
CW-2--Spouse or Child of CW-1....... Yes. Files Form I-539, Yes. Files Form I-539, ........................
8 CFR 214.1(c)(2) and 8 CFR 248.1(a); 8 CFR
8 CFR 214.2(w)(17)(v). 214.2(w)(18).
D--Crewmember (Sea or Air); D-2-- No. 8 CFR No, 8 CFR 248.2(a)(2), Yes.
Crewmember departing from a 214.1(c)(3)(iii). except for change to T
different vessel than one of and U, 248.2(b) using
arrival; INA 101(a)(15)(D). Form I-914 or Form I-
918.
E-1, E-2--Treaty Trader (Principal); Yes. Files Form I-129, Yes, Files Form I-129, Yes.
INA 101(a)(15)(E). 8 CFR 214.1(c)(1); 8 8 CFR 248.1(a), 8 CFR
CFR 214.2(e)(20). 214.2(e)(21)(i).
E-1, E-2--Treaty Trader, Spouse or Yes. Files Form I-539, Yes. Files Form I-539, Yes.
Child; INA 101(a)(15)(E). 8 CFR 214.1(c)(2). 8 CFR
214.2(e)(21)(ii),.
E-2-CNMI--Commonwealth of Northern Yes. Files Form I-129, Yes. Files Form I-129, Yes.
Mariana Islands Investor 8 CFR 8 CFR 248.1(a), 8 CFR
(Principal) Section 6(c) of Public 214.2(e)(23)(xii). 214.2(e)(23)(xiii).
Law 94-241, as added by Section
702(a) of Public Law 110-229.8 CFR
214.2(e)(23).
E-2-CNMI--Commonwealth of Northern Yes. Files Form I-539, Yes. Files Form I-539, Yes.
Mariana Islands Investor, Spouse or 8 CFR 214.1(c)(2). 8 CFR 248.1(a).
Child Section 6(c) of Public Law 94-
241, as added by Section 702(a) of
Public Law 110-229. 8 CFR
214.2(e)(23)(x).
E-3--Australian Treaty Alien coming Yes. Files Form I-129, Yes. Files Form I-129, Yes.
to the United States Solely to 8 CFR 214.1(c)(1) and 8 CFR 248.1(a).
Perform Services in a Specialty (2).
Occupation.
E-3D--Spouse or Child of E-3; E-3R-- Yes. Files I-539, 8 CFR Yes. Files I-539, 8 CFR Yes.
Returning E-3; INA 214.1(c)(1) and (2). 248.1(a).
101(a)(15)(E)(iii).
F-1--Student in an academic or Yes, only if the F-1 Yes. Files Form I-539, Yes.
language training program requesting 8 CFR 248.1(a),.
(principal); INA 101(a)(15)(F). reinstatement to F-1
status or if the F-1
received a date-
specific admission to
attend high school and
is now seeking an
extension to D/S to
attend college. 8 CFR
214.1(c)(3)(v); 8 CFR
214.2(f)(7); 8 CFR
214.2(f)(16).
F-2--Spouse or Child of F-1; INA No, not applicable as Yes. Files Form I-539, Yes.
101(a)(15)(F). admitted for Duration 8 CFR 214.2(f)(3).
of Status. 8 CFR
214.1(c)(3)(v); 8 CFR
214.2(f)(3).
[[Page 41338]]
G-1--Principal Resident No, not applicable as Yes. Files Form I-539, No. 22 CFR 41.21(d).
Representative of Recognized admitted for Duration 8 CFR 248.1(a).
Foreign Government to International of Status 8 CFR
Organization, Staff, or Immediate 214.1(c)(3)(v).
Family; G-2--Other Representative
of Recognized Foreign Member
Government to International
Organization, or Immediate Family;
G-3--Representative of
Nonrecognized or Nonmember Foreign
Government to International
Organization, or Immediate Family;
G-4--International Organization
Officer or Employee, or Immediate
Family; INA 101(a)(15)(G).
G-5--Attendant, Servant, or Personal Yes. Files Form I-539, Yes. Files Form I-539, Yes.
Employee of G-1 through G-4, or 8 CFR 214.1(c)(2). 8 CFR 248.1(a).
Immediate Family.
H-1B--Alien in a Specialty Yes. Files Form I-129, Yes. Files Form I-129.8 Yes.
Occupation, Fashion Models of 8 CFR 214.1(c)(1). CFR 248.1(a).
Distinguished Merit and Ability,
and workers performing services of
exceptional merit and ability
relating to a Department of Defense
(DOD) cooperative research and
development project; INA
101(a)(15)(H)(i)(b); Section 222 of
Pub. L. 101-649.
H-1B1--Chilean or Singaporean Yes. Files Form I-129, Yes. Files Form I-129. Yes.
National to Work in a Specialty 8 CFR 214.1(c)(1). 8 CFR 248.1(a).
Occupation; INA
101(a)(15)(H)(i)(b1).
H-1C \236\--Nurse in health Yes. Filed Form I-129, Yes. Filed Form I-129, Yes.
professional shortage area; INA 8 CFR 8 CFR
101(a)(15)(H)(i)(c). 212.2(h)(4)(v)(E). 212.2(h)(4)(v)(E).
H-2A--Temporary Worker Performing Yes. Files Form I-129, Yes. Files Form I-129.. Yes.
Agricultural Services Unavailable 8 CFR 214.1(c)(1).
in the United States; INA
101(a)(15)(H)(ii)(a).
H-2B--Temporary Worker Performing Yes. Files Form I-129, Yes. Files Form I-129.. Yes.
Other Services Unavailable in the 8 CFR 214.1(c)(1).
United States; INA
101(a)(15)(H)(ii)(b).
H-3--Trainee; INA 101(a)(15)(H)(iii) Yes. Files Form I-129, Yes. Files Form I-539.. Yes.
8 CFR 214.1(c)(1).
H-4--Spouse or Child of Alien Yes. Files Form I-539, Yes. Files Form I-539. Yes.
Classified H1B/B1/C, H2A/B, or H-3; 8 CFR 214.1(c)(2). 8 CFR 248.1(a).
INA 101(a)(15)(H)(iv).
I--Representative of Foreign No, not applicable as Yes. Files Form I-539.. Yes.
Information Media, Spouse and admitted for Duration
Child; INA 101(a)(15)(I). of Status 8 CFR
214.1(c)(3)(v).
J-1--Exchange Visitor; J-2--Spouse No, not applicable, as Yes, subject to Yes.
or Child of J1; INA 101(a)(15)(J). generally admitted for receiving a waiver of
Duration of Status the foreign residence
\237\ 8 CFR requirement, if
214.1(c)(3)(v). necessary, Files I-
539. 8 CFR
248.2(a)(4); may apply
for change to T and U,
using for Form I-914
or I-918, 8 CFR
248.2(b).
K-1--Fiance(e) of United States No. 8 CFR No. 8 CFR 248.2(a)(2) Not Applicable.
Citizen; K-2--Child of Fiance(e) of 214.1(c)(3)(iv). except for change to T
U.S. Citizen; INA 101(a)(15)(K). and U, 248.2(b) using
Form I-914 or I-918.
K-3--Spouse of U.S. Citizen awaiting Yes. Files Form I-539, No. 8 CFR 248.2(2) Yes.
availability of immigrant visa; K- 8 CFR 214.1(c)(2) and except for change to T
4--Child of K-3; INA 101(a)(15)(K). 8 CFR 214.2(k)(10). and U, 248.2(b) using
Form I-914 or I-918.
L-1--Intracompany Transferee Yes. Files Form I-129, Yes. Files Form I-129, Yes.
(Executive, Managerial, and 8 CFR 214.1(c)(1). 8 CFR 248.1(a).
Specialized Knowledge Personnel
Continuing Employment with
International Firm or Corporation);
INA 101(a)(15)(L).
L-2--Spouse or Child of Intracompany Yes. Files I-539 8 CFR Yes. Files Form I-539, Yes.
Transferee. 214.1(c)(1) and (2). 8 CFR 248.1(a).
M-1--Vocational Student or Other Yes. Files Form I-539, Yes. Files Form I-539. Yes.
Nonacademic Student; INA 8 CFR 214.1(c)(2). Not eligible if
101(a)(15)(M). requesting F-1, 8 CFR
248.1(c)(1).
[[Page 41339]]
M-2--Spouse or Child of M-1; INA Yes. Files Form I-539, Yes. Files Form I-539.. Yes.
101(a)(15)(M). 8 CFR 214.1(c)(2).
N-8--Parent of an Alien Classified Yes. Files Form I-539, Yes. Files Form I-539, Yes.
SK3 (Unmarried Child Employee of 8 CFR 214.1(c)(2). 8 CFR 248.1(e).
International Organization) or SN-
3; N-9--Child of N-8 or of SK-1
(Retired Employee International
Organization), SK-2 (Spouse), SK-4
(surviving spouse), SN-1 (certain
retired NATO 6 civilian employee),
SN-2 (spouse) or SN-4 (surviving
spouse); INA 101(a)(15)(N).
NATO-1--Principal Permanent No, not applicable as Yes. Files Form I-539, No. INA 102; 22 CFR
Representative of Member State to admitted for Duration 8 CFR 248.1(a). 41.21(d).
NATO (including any of its of Status 8 CFR
Subsidiary Bodies) Resident in the 214.1(c)(3)(v).
U.S. and Resident Members of
Official Staff; Secretary General,
Assistant Secretaries General, and
Executive Secretary of NATO; Other
Permanent NATO Officials of Similar
Rank, or Immediate Family Art. 12,
5 UST 1094; Art. 20, 5 UST 1098.
NATO-2--Other Representative of No, not applicable as Yes. Files Form I-539, No. INA 102; 22 CFR
member state to NATO (including any admitted for Duration 8 CFR 248.1(a). 41.21(d).
of its Subsidiary Bodies) including of Status 8 CFR
Representatives, Advisers, and 214.1(c)(3)(v).
Technical Experts of Delegations,
or Immediate Family; Dependents of
Member of a Force Entering in
Accordance with the Provisions of
the NATO Status-of-Forces Agreement
or in Accordance with the
provisions of the ``Protocol on the
Status of International Military
Headquarters''; Members of Such a
Force if Issued Visas Art. 13, 5
UST 1094; Art. 1, 4 UST 1794; Art.
3, 4 UST 1796.
NATO-3--Official Clerical Staff No, not applicable as Yes. Files Form I-539, No. INA 102; 22 CFR
Accompanying Representative of admitted for Duration 8 CFR 248.1(a). 41.21(d).
Member State to NATO (including any of Status 8 CFR
of its Subsidiary Bodies), or 214.1(c)(3)(v).
Immediate Family Art. 14, 5 UST
1096.
NATO-4--Official of NATO (Other Than No, not applicable as Yes. Files Form I-539, No. INA 102; 22 CFR
Those Classifiable as NATO1), or admitted for Duration 8 CFR 248.1(a). 41.21(d).
Immediate Family Art. 18, 5 UST of Status 8 CFR
1098. 214.1(c)(3)(v).
NATO-5--Experts, Other Than NATO No, not applicable as Yes. Files Form I-539, No. INA 102; 22 CFR
Officials Classifiable Under NATO admitted for Duration 8 CFR 248.1(a). 41.21(d).
4, Employed in Missions on Behalf of Status 8 CFR
of NATO, and their Dependents Art. 214.1(c)(3)(v).
21, 5 UST 1100.
NATO-6--Member of a Civilian No, not applicable as Yes. Files Form I-539, No. INA 102; 22 CFR
Component Accompanying a Force admitted for Duration 8 CFR 248.1(a). 41.21(d).
Entering in Accordance with the of Status 8 CFR
Provisions of the NATO Status-of- 214.1(c)(3)(v).
Forces Agreement; Member of a
Civilian Component Attached to or
Employed by an Allied Headquarters
Under the ``Protocol on the Status
of International Military
Headquarters'' Set Up Pursuant to
the North Atlantic Treaty; and
their Dependents Art. 1, 4 UST
1794; Art. 3, 5 UST 877.
NATO 7--Attendant, Servant, or Yes. Files Form I-539, Yes. Files Form I-539, No. INA 102; 22 CFR
Personal Employee of NATO 1, NATO 8 CFR 214.2(s)(1)(ii).. 8 CFR 248.1(a). 41.21(d).
2, NATO 3, NATO 4, NATO 5, and NATO
6 Classes, or Immediate Family
Arts. 12-20, 5 UST 1094-1098.
[[Page 41340]]
O-1--Alien with Extraordinary Yes. Files Form I-129, Yes. Files Form I-129, Yes.
Ability in Sciences, Arts, 8 CFR 214.1(c)(1). 8 CFR 248.1(a).
Education, Business or Athletics or
Extraordinary Achievement in the
Motion Picture or Television
Industry; O-2--Essential Support
Workers Accompanying and Assisting
in the Artistic or Athletic
Performance by O-1 INA
101(a)(15)(O).
O-3--Spouse or Child of O-1 or O-2 Yes. Files Form I-539, Yes. Files Form I-539, Yes.
INA 101(a)(15)(O). 8 CFR 214.1(c)(1) and 8 CFR 248.1(a).
(2).
P-1--Internationally Recognized Yes. Files Form I-129, Yes. Files Form I-129, Yes.
Athlete or Member of 8 CFR 213.1(c)(3)(i). 8 CFR 248.1(a).
Internationally Recognized
Entertainment Group; P-2--Artist or
Entertainer in a Reciprocal
Exchange Program; P-3--Artist or
Entertainer in a Culturally Unique
Program INA 101(a)(15)(P); P-1S/P-
2S/P-3S--Essential Support Workers
8 CFR 214.2(p).
P-4--Spouse or Child of P-1, P-2, or Yes. Files Form I-539, Yes. Files Form I-539, Yes.
P-3; INA 101(a)(15)(P). 8 CFR 214.1(c) (1) and 8 CFR 248.1(a).
(2).
Q-1--Participant in an International Yes. Files Form I-129, Yes. Files Form I-129, Yes.
Cultural Exchange Program; INA 8 CFR 213.1(c)(3)(i). 8 CFR 248.1(a).
101(a)(15)(Q)(i).
R-1--Alien in a Religious Yes. Files Form I-129, Yes. Files Form I-129, Yes.
Occupation; INA 101(a)(15)(R). 8 CFR 213.1(c)(3)(i). 8 CFR 248.1(a).
R-2--Spouse or Child of R-1; INA Yes. Files Form I-539, Yes. Files Form I-539, Yes.
101(a)(15)(R). 8 CFR 214.1(c)(1) and 8 CFR 248.1(a).
(2).
S-5--Certain Aliens Supplying No. 8 CFR No. 8 CFR 248.2(2) Yes.
Critical Information Relating to a 213.1(c)(3)(vi). except for change to T
Criminal Organization or and U, 248.2(b) using
Enterprise; S-6--Certain Aliens Form I-914 or I-918.
Supplying Critical Information
Relating to Terrorism; S-7--
Qualified Family Member of S-5 or S-
6 INA 101(a)(15)(S).
T-1--Victim of a severe form of Yes. Files Form I-539. Yes. Files Form I-539, No.
trafficking in persons; INA INA Sec. 8 CFR 248.1(a).
101(a)(15)(T). 214(o)(7)(B); 8 CFR
214.11(l)(1) and (2);
8 CFR 214.1(c)(2).
T-2--Spouse of T-1; T-3--Child of T- Yes. Files Form I-539. Yes. Files Form Files I- No.
1; T-4--Parent of T-1 under 21 INA 214(o)(7)(B); 8 539, 8 CFR 248.1(a).
years of age; T-5--Unmarried CFR 214.1(c)(2).
Sibling under age 18 of T-1; T-6--
Adult or Minor Child of a
Derivative Beneficiary of a T-1;
INA 101(a)(15)(T).
TN--NAFTA Professional; INA Yes. Files Form I-129, Yes. Files Form Files I- Yes.
214(e)(2). 8 CFR 214.1(c)(1). 129, 8 CFR 248.1(a).
TD--Spouse or Child of NAFTA Yes. Files Form I-539, Yes. Files Form I-539, Yes.
Professional; INA 214(e)(2). 8 CFR 214.1(c)(2). 8 CFR 248.1(a).
U-1--Victim of criminal activity; U- Yes. Files Form I-539, Yes. Files Form I-539, No.
2--Spouse of U-1; U-3--Child of U- 8 CFR 214.1(c)(2); 8 8 CFR 248.1(a).
1; U-4--Parent of U-1 under 21 CFR 214.14(g)(2).
years of age; U-5--Unmarried
Sibling under age 18 of U-1 under
21 years of age; INA 101(a)(15)(U).
V-1--Spouse of a Lawful Permanent Yes. Files Form I-539, Yes. Files Form I-539, Yes.
Resident Alien Awaiting 8 CFR 214.1(c)(2); 8 8 CFR 248.1(a);
Availability of Immigrant Visa; V- CFR 214.15(g)(3). 214.15(g)(3).
2--Child of a Lawful Permanent
Resident Alien Awaiting
Availability of Immigrant Visa; V-
3--Child of a V-1 or V-2 INA
101(a)(15)(V)(i) or INA
101(a)(15)(V)(ii); INA 203(d).
[[Page 41341]]
W-B--Visa Waiver for visitor for No. 8 CFR No, except for change Not Applicable.
business; W-T--visitor for 214.1(c)(3)(i) and to T and U, using Form
pleasure, Visa Waiver Program; INA 214.1(c)(3)(viii). I-914 or I-918; INA
217. 248.2(b).
----------------------------------------------------------------------------------------------------------------
* Includes questions on Form I-129 and Form I-539 about receipt of public benefits since the nonimmigrant status
was approved. Whether the alien must file and I-129 or an I-539 depends on the status the alien is applying to
change to or extend. If more than one person is applying using the I-539 application, the Form I-539A,
Supplemental Information for Application to extend/Change Nonimmigrant Status, is submitted to provide all of
the requested information for each additional applicant listed.
---------------------------------------------------------------------------
\236\ This classification can no longer be sought as of December
20, 2009. See the Nursing Relief for Disadvantaged Areas
Reauthorization Act of 2005, Public Law 109-423.
\237\ J nonimmigrant who are admitted for a specific time period
are not eligible for an extension of stay.
\238\ Applicants who filed a Form I-485 prior to December 19,
1997 are exempt from the Affidavit of Support requirement. See
Public Law 104-208, div. C., section 531(b), 110 Stat. 3009-546,
3009-675 (Sept. 30, 1996); 8 CFR 213a.2(a)(2)(i) (adjustment
applicants) and 213a.2(a)(2)(ii)(B) (applicants for admission).
Aliens who acquired citizenship under section 320 of the Act upon
admission to the United States are exempt from submitting an
affidavit of support. See 8 CFR 213a.2(a)(2)(ii)(E); Child
Citizenship Act, Public Law 106-395, section 101, 114 Stat. 1631,
1631 (Oct. 30, 2000) (amending INA section 320). In addition, the
surviving spouses, children, and parents of a deceased member of the
military who obtain citizenship posthumously are exempt from a
public charge determination. See National Defense Authorization Act
For Fiscal Year 2004, Public Law 108-136, section 1703(e), 117 Stat.
1392, 1695 (Nov. 24, 2003). An alien who meets the conditions of new
8 CFR 212.23(a)(18), (19), (20), or (21) (e.g., certain T
nonimmigrants, U nonimmigrants, and VAWA self-petitioners) are
exempt from the public charge inadmissibility ground and the
affidavit of support requirement, and therefore do not need to File
Form I-944 or Form I-864 regardless of what category the alien
adjusts under.
\239\ Including the following categories: IR-6 Spouses; IR-7
Children; CR-7 Children, conditional; IH-8 Children adopted abroad
under the Hague Adoption Convention; IH-9 Children coming to the
United States to be adopted under the Hague Adoption Convention; IR-
8 Orphans adopted abroad; IR-9 Orphans coming to the United States
to be adopted; IR-0 Parents of adult U.S. citizens. Note children
adopted abroad generally do not apply for adjustment of status.
\240\ Including the following categories: A-16 Unmarried
Amerasian sons/daughters of U.S. citizens; F-16 Unmarried sons/
daughters of U.S. citizens; A-17 Children of A-11 or A-16; F-17
Children of F-11 or F-16; B-17 Children of B-11 or B-16.
\241\ Including the following categories: F-26 Spouses of alien
residents, subject to country limits; C-26 Spouses of alien
residents, subject to country limits, conditional; FX-6 Spouses of
alien residents, exempt from country limits; CX-6 Spouses of alien
residents, exempt from country limits, conditional; F-27 Children of
alien residents, subject to country limits; C-28 Children of C-26,
or C-27, subject to country limits, conditional; B-28 Children of B-
26, or B-27, subject to country limits; F-28 Children of F-26, or F-
27, subject to country limits; C-20 Children of C-29, subject to
country limits, conditional; B-20 Children of B-29, subject to
country limits; F-20 Children of F-29, subject to country limits; C-
27 Children of alien residents, subject to country limits,
conditional; FX-7 Children of alien residents, exempt from country
limits; CX-8 Children of CX-7, exempt from country limits,
conditional; FX-8 Children of FX-7, or FX-8, exempt from country
limits; CX-7 Children of alien residents, exempt from country
limits, conditional; F-29 Unmarried sons/daughters of alien
residents, subject to country limits; C-29 Unmarried children of
alien residents, subject to country limits, conditional.
\242\ Including the following categories: A-36 Married Amerasian
sons/daughters of U.S. citizens; F-36 Married sons/daughters of U.S.
citizens; C-36 Married sons/daughters of U.S. citizens, conditional;
A-37 Spouses of A-31 or A-36; F-37 Spouses of married sons/daughters
of U.S. citizens; C-37 Spouses of married sons/daughters of U.S.
citizens, conditional; B-37 Spouses of B-31 or B-36; A-38 Children
of A-31 or A-36, subject to country limits; F-38 Children of married
sons/daughters of U.S. citizens; C-38 Children of C-31 or C-36,
subject to country limits, conditional; B-38 Children of B-31 or B-
36, subject to country limits.
\243\ Includes the following categories: F-46 Brothers/sisters
of U.S. citizens, adjustments; F-47 Spouses of brothers/sisters of
U.S. citizens, adjustments; F-48 Children of brothers/sisters of
U.S. citizens, adjustments.
\244\ Includes the following categories: CF-1 Spouses, entered
as fiance(e), adjustments conditional; IF-1 Spouses, entered as
fiance(e), adjustments.
\245\ Includes the following categories: Immediate Relative AR-6
Children, Amerasian, First Preference: A-16 Unmarried Amerasian
sons/daughters of U.S. citizens; Third Preference A-36 Married
Amerasian sons/daughters of U.S. citizens; See INA 204(f). Note that
this program does not have a specific sunset date and technically
applicants could apply but should have already applied.
Table 3--Applicability of INA 212(a)(4) to Family-Based Adjustment of
Status Applications \238\
------------------------------------------------------------------------
Subject to INA INA 213A and Form
212(a)(4) and must I-864, affidavit
file Form I-944, of support under
Category Declaration of section 213A of
Self-Sufficiency? the INA, required
* or exempt?
------------------------------------------------------------------------
Immediate Relatives of U.S. Yes. INA 212(a)(4) Required. INA
citizens including spouses, 212(a)(4)(C).
children and parents \239\.
Family-Based First Preference: Yes. INA 212(a)(4) Required. INA
Unmarried sons/daughters of 212(a)(4)(C).
U.S. citizens and their
children \240\.
Family-Preference Second: Yes. INA 212(a)(4) Required. INA
Spouses, children, and 212(a)(4)(C).
unmarried sons/daughters of
alien residents \241\.
Family Preference Third: Married Yes. INA 212(a)(4) Required. INA
sons/daughters of U.S. citizens 212(a)(4)(C).
and their spouses and children
\242\.
Family Preference Fourth: Yes. INA 212(a)(4) Required. INA
Brothers/sisters of U.S. 212(a)(4)(C).
citizens (at least 21 years of
age) and their spouses and
children \243\.
Fianc[eacute], * admitted as Yes. INA 212(a)(4) Required. INA
nonimmigrant K-1/K2 \244\. 212(a)(4)(C).
Amerasians based on preference Yes. INA 212(a)(4) Exempt. Amerasian
category-born between December Act, Public Law
31, 1950 and before October 22, 97-359 (Oct. 22,
1982 \245\. 1982).
[[Page 41342]]
Amerasians, born in Vietnam No. (I-360 and Exempt. Section
between 1/1/62-1/1/76. adjustment) 584 of the
Immediate Relative: AM-6, AR-6 Section 584 of Foreign
Children; Amerasians under the Foreign Operations,
Amerasian Homecoming Act, Operations, Export Financing,
Public Law 100-202 (Dec. 22, Export Financing, and Related
1987) \246\--born between 1/1/ and Related Programs
1962-1/1/1976. Programs Appropriations
Appropriations Act of 1988,
Act of 1988, Public Law 100-
Public Law 100- 202.
202.
IW-6 Spouses, widows or widowers Yes. INA 212(a)(4) Exempt. 8 CFR
204.2 and 71 FR
35732.
Immediate Relative VAWA No. INA Exempt. INA
applicant, including spouses 212(a)(4)(E). 212(a)(4)(E).
and children \247\.
First Preference VAWA, B-16 No. INA Exempt. INA
Unmarried sons/daughters of 212(a)(4)(C)(i). 212(a)(4)(C)(i).
U.S. citizens, self-
petitioning; B-17 Children of B-
16.
Second Preference VAWA No. INA Exempt. INA
applicant, including spouses 212(a)(4)(C)(i). 212(a)(4)(C)(i).
and children \248\.
Third Preference VAWA. Married No. INA Exempt. INA
son/daughters of U.S. citizen, 212(a)(4)(C)(i). 212(a)(4)(C)(i).
including spouses and children
\249\.
------------------------------------------------------------------------
* If found inadmissible based on the public charge ground, USCIS, at its
discretion, may permit the alien to post a public charge bond (Form I-
945). A public charge bond may be cancelled (Form I-356) upon the
death, naturalization (or otherwise obtaining U.S. citizenship),
permanent departure of the alien, or otherwise as outlined in proposed
8 CFR 213.1(g), if the alien did not receive any public benefits as
defined in the proposed rule.
---------------------------------------------------------------------------
\246\ Includes the following categories: AM-1 principal (born
between 1/1/1962-1/1/1976); AM-2 Spouse, AM-3 child; AR-1 child of
U.S. citizen born Cambodia, Korea, Laos, Thailand, Vietnam. Note
that this program does not have a specific sunset date and
technically applicants could apply but should have already applied.
\247\ Includes the following categories: IB-6 Spouses, self-
petitioning; IB-7 Children, self-petitioning; IB-8 Children of IB-1
or IB-6; IB-0 Parents battered or abused, of U.S. citizens, self-
petitioning.
\248\ Includes the following categories: B-26 Spouses of alien
residents, subject to country limits, self-petitioning; BX-6 Spouses
of alien residents, exempt from country limits, self-petitioning; B-
27 Children of alien residents, subject to country limits, self-
petitioning; BX-7 Children of alien residents, exempt from country
limits, self-petitioning; BX-8 Children of BX-6, or BX-7, exempt
from country limits; B-29 Unmarried sons/daughters of alien
residents, subject to country limits, self-petitioning.
\249\ Includes the following categories: B-36 Married sons/
daughters of U.S. citizens, self-petitioning B-37 Spouses of B-36,
adjustments; B-38 Children of B-36, subject to country limits; Third
Preference VAWA; B-36 Married sons/daughters of U.S. citizens, self-
petitioning; B-37 Spouses of B-36, adjustments B-38 Children of B-
36, subject to country limits; Third Preference VAWA; B-37 Spouses
of B-36, adjustments; B-38 Children of B-36, subject to country
limits.
\250\ An alien who meets the conditions of new 8 CFR
212.23(a)(18), (19), (20), or (21) (e.g., certain T nonimmigrants, U
nonimmigrants, and VAWA self-petitioners) are exempt from the public
charge inadmissibility ground and the affidavit of support
requirement, and therefore do not need to File Form I-944 or Form I-
864 regardless of what category the alien adjusts under.
\251\ Includes the following categories: E-16 Aliens with
extraordinary ability; E-17 Outstanding professors or researchers;
E-18 Certain Multinational executives or managers; E-19 Spouses of
E-11, E-12, E-13, E-16, E-17, or E-18; E-10 Children of E-11, E-12,
E-13, E-16, E-17, or E-18.
\252\ If the alien is adjusting based on an employment-based
petition where the petition is filed by either a qualifying
relative, or an entity in which such relative has a significant
ownership interest (5% or more), and the alien, at both the time of
filing and adjudication of the Form I-485, also falls under a
category exempted under INA section 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E), (e.g., T nonimmigrants, U nonimmigrants, and VAWA
self-petitioners) the alien does not need to file Form I-944 (but is
still required to file Form I-864).
\253\ Relative means a husband, wife, father, mother, child,
adult son, adult daughter, brother, or sister. Significant ownership
interest means an ownership interest of five percent or more in a
for-profit entity that filed an immigrant visa petition to accord a
prospective employee an immigrant status under section 203(b) of the
Act. See 8 CFR.213a.1.
\254\ Includes the following categories: E-26 Professionals
holding advanced degrees; ES-6 Soviet scientists E-27 Spouses of E-
21 or E-26; E-28 Children of E-21 or E-26.
\255\ If the alien is adjusting based on an employment-based
petition where the petition is filed by either a qualifying
relative, or an entity in which such relative has a significant
ownership interest (five percent or more), and the alien, at both
the time of filing and adjudication of the Form I-485, also falls
under a category exempted under INA section 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E), (e.g., T nonimmigrants, U nonimmigrants, and VAWA
self-petitioners) the alien does not need to file Form I-944 (but is
still required to file Form I-864).
Table 4--Applicability of INA 212(a)(4) to Employment-Based Adjustment
of Status Applications \250\
------------------------------------------------------------------------
Subject to INA INA 213A, and Form
212(a)(4) and must I-864, Affidavit
file Form I-944, of Support under
Category Declaration of section 213A of
Self-Sufficiency? the INA, required
* or exempt?
------------------------------------------------------------------------
First Preference: Priority Yes, in Exempt, unless
workers \251\. general.\252\ INA qualifying
212(a)(4). relative or
entity in which
such relative has
a significant
ownership
interest (5% or
more) \253\ in
filed Form I-140.
INA 212(a)(4)(D),
8 CFR 213a.
Second Preference: Professionals Yes in Exempt, unless
with advanced degrees or aliens general.\255\ INA qualifying
of exceptional ability \254\. 212(a)(4). relative or
entity in which
such relative has
a significant
ownership
interest (5% or
more) in filed
Form I-140. INA
212(a)(4)(D), 8
CFR 213a.
[[Page 41343]]
Third: Skilled workers, Yes in Exempt, unless
professionals, and other general.\257\ INA qualifying
workers \256\. 212(a)(4). relative or
entity in which
such relative has
a significant
ownership
interest (5% or
more) in filed
Form I-140. INA
212(a)(4)(D), 8
CFR 213a.
Fifth: I-526 Immigrant Petition Yes. INA 212(a)(4) Not
by Alien Entrepreneur (EB-5) Applicable.\259\
INA 203(b)(5), 8 CFR 204.6
\258\.
------------------------------------------------------------------------
* If found inadmissible based on the public charge ground, USCIS, at its
discretion, may permit the alien to post a public charge bond (Form I-
945). A public charge bond may be cancelled (Form I-356) upon the
death, naturalization (or otherwise obtaining U.S. citizenship),
permanent departure of the alien, or upon the fifth year of the
alien's anniversary of the adjustment of status, or, if the alien,
following the initial grant of lawful permanent resident status,
obtains a status that is exempt from the public charge ground of
inadmissibility, and provided that the alien did not receive any
public benefits as defined in the proposed rule.
---------------------------------------------------------------------------
\256\ Includes the following categories: EX-6 Schedule--A
worker; EX-7 Spouses of EX-6; EX-8 Children of EX-6; E-36 Skilled
workers; E-37 Professionals with baccalaureate degrees; E-39 Spouses
of E-36, or E-37; E-30 Children of E-36, or E-37; EW-8 Other
workers; EW-0 Children of EW-8; EW-9 Spouses of EW-8; EC-6 Chinese
Student Protection Act (CSPA) principals; EC-7 Spouses of EC-6; EC-8
Children of EC-6.
\257\ If the alien is adjusting based on an employment-based
petition where the petition is filed by either a qualifying
relative, or an entity in which such relative has a significant
ownership interest (5% or more), and the alien, at both the time of
filing and adjudication of the Form I-485, also falls under a
category exempted under INA section 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E), (e.g., T nonimmigrants, U nonimmigrants, and VAWA
self-petitioners) the alien does not need to file Form I-944 (but is
still required to file Form I-864).
\258\ Includes the following categories: C-56 Employment
creation, not in targeted area, adjustments, conditional E-56
Employment creation; I-56 Employment creation, targeted area, pilot
program, adjustments, conditional; T-56 Employment creation,
targeted area, conditional; R-56 Investor pilot program, not
targeted, conditional; C-57 Spouses of C-51 or C-56, conditional; E-
57 Spouses of E-51 or E-56; I-57 Spouses of I-51 or I-56,
conditional; T-57 Spouses of T-51 or T-56, conditional; R-57 Spouses
of R-51 or R-56, conditional; C-58 Children of C-51 or C-56,
conditional; E-58 Children of E-51 or E-56; I-58 Children of I-51 or
I-56, conditional; T-58 Children of T-51 or T-56, conditional; R-58
Children of R-51 or R-56, conditional.
\259\ EB-5 applicants are Form I-526, Immigrant Petition by
Alien Entrepreneur, self-petitioners. The regulation at 8 CFR 213a.1
relates to a person having ownership interest in an entity filing
for a prospective employee and therefore the requirements for an
affidavit of support under INA section 212(a)(4)(D) is inapplicable.
\260\ Includes the following categories: SD-6 Ministers; SD-7
Spouses of SD-6; SD-8 Children of SD-6; SR-6 Religious workers; SR-7
Spouses of SR-6; SR-8 Children of SR-6.
\261\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers (for
example, a religious institution), would generally not be a relative
of the alien or a for-profit entity and therefore the requirements
for an affidavit of support under INA section 212(a)(4)(D) is
inapplicable.
\262\ Includes the following categories: SE-6 Employees of U.S.
government abroad, adjustments; SE-7 Spouses of SE-6; SE-8 Children
of SE-6. Note that this program does not have a specific sunset date
and technically applicants could apply but should have already
applied.
\263\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers (for
example, the U.S. armed forces), would generally not be a relative
of the alien or a for-profit entity and therefore the requirements
for an affidavit of support under INA section 212(a)(4)(D) is
inapplicable.
\264\ Includes the following categories: SF-6 Former employees
of the Panama Canal Company or Canal Zone Government; SF-7 Spouses
or children of SF-6; SG-6 Former U.S. government employees in the
Panama Canal Zone; SG-7 Spouses or children of SG-6; SH-6 Former
employees of the Panama Canal Company or Canal Zone government,
employed on April 1, 1979; SH-7 Spouses or children of SH-6. Note
that this program does not have a specific sunset date and
technically applicants could apply but should have already applied.
\265\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers generally
would not be a relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
\266\ Includes the following categories: SJ-6 Foreign medical
school graduate who was licensed to practice in the United States on
Jan. 9, 1978; SJ-7 Spouses or children of SJ-6; Note that this
program does not have a specific sunset date and technically
applicants could apply but should have already applied.
\267\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers would
generally not be a relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
Table 5--Applicability of INA 212(a)(4) to Special Immigrant Adjustment
of Status Application
------------------------------------------------------------------------
Subject to INA INA 213A, and Form
212(a)(4) and must I-864, Affidavit
file Form I-944, of Support under
Category Declaration of section 213A of
Self-Sufficiency? the INA, required
* or exempt?
------------------------------------------------------------------------
Special Immigrant (EB-4)-- Yes. INA 212(a)(4) Not
Religious Workers. 8 CFR Applicable.\261\
204.5(m); INA 101(a)(27)(C)
\260\.
Special Immigrant (EB-4)-- Yes. INA 212(a)(4) Not
International employees of U.S. Applicable.\263\
government abroad. INA
101(a)(27)(D), 22 CFR
42.32(d)(2) \262\.
Special Immigrant (EB-4)-- Yes. INA 212(a)(4) Not
Employees of Panama Canal. 22 Applicable.\265\
CFR 42.32(d)(3); INA
101(a)(27)(E), INA
101(a)(27)(F), and INA
101(a)(27)(G) \264\.
Special Immigrant (EB-4)-- Yes. INA 212(a)(4) Not
Foreign Medical School Applicable.\267\
Graduates. INA 101(a)(27)(H),
INA 203(b)(4) \266\.
[[Page 41344]]
Special Immigrant (EB-4)-- Yes. INA 212(a)(4) Not
Retired employees of Applicable.\270\
International Organizations
including G-4 International
Organization Officer.
International Organizations (G-
4s international organization
officer/Retired G-4 Employee)
INA 101(a)(27)(I) and INA
101(a)(27)(L); 8 CFR 101.5; 22
CFR 42.32(d)(5); 22 CFR 41.24;
22 CFR 41.25 \268\ \269\.
Special Immigrant (EB-4)--SL-6 No. SIJ are exempt Not Applicable.
Juvenile court dependents, under 245(h). INA 245(h).
adjustments.
Special Immigrant (EB-4)--U.S. Yes. INA 212(a)(4) Not
Armed Forces Personnel. INA Applicable.\272\
101(a)(27)(K) \271\.
Special Immigrant--International Yes. INA 212(a)(4) Not
Broadcasters. INA Applicable.\274\
101(a)(27)(M); 8 CFR 204.13
\273\.
Special Immigrant (EB-4)-- No. Section Exempt. Section
Special immigrant interpreters 1059(a)(2) of the 602(b)(9) of the
who are nationals of Iraq or National Defense Afghan Allies
Afghanistan \275\. Authorization Act Protection Act of
for Fiscal Year 2009, Title VI of
2006, as amended; Public Law 111-8,
Public Law 109- 123 Stat. 807,
163--Jan. 6, 809 (March 11,
2006, Section 2009) which
1244(a)(3) of the states that INA
National Defense 245(c)(2), INA
Authorization Act 245(c)(7), and
for Fiscal Year INA 245(c)(8) do
2008, as amended; not apply to
Public Law 110- special immigrant
181 (Jan. 28, Iraq and Afghan
2008) Section nationals who
602(b) of the were employed by
Afghan Allies or on behalf of
Protection Act of the U.S.
2009, as amended government (for
section Section 602(b)
(a)(2)(C), Public and 1244
Law 111-8 (Mar. adjustment
11, 2009). applicants who
were either
paroled into the
United States or
admitted as
nonimmigrants).
See Section 1(c)
of Public Law 110-
36, 121 Stat.
227, 227 (June
15, 2007), which
amended Section
1059(d) of the
National Defense
Authorization Act
for Fiscal Year
2006, Public Law
109-163, 119
Stat. 3136, 3444
(January 6, 2006)
to state that INA
245(c)(2), INA
245(c)(7), and
INA 245(c)(8) do
not apply to Iraq
or Afghan
translator
adjustment
applicants.
------------------------------------------------------------------------
* If found inadmissible based on the public charge ground, USCIS, at its
discretion, may permit the alien to post a public charge bond (Form I-
945). A public charge bond may be cancelled (Form I-356) upon the
death, naturalization (or otherwise obtaining U.S. citizenship), or
permanent departure of the alien, if the alien did not receive any
public benefits as defined in the proposed rule.
---------------------------------------------------------------------------
\268\ Includes the following categories: SK-6 Retired employees
of international organizations; SK-7 Spouses of SK-1 or SK-6; SK-8;
Certain unmarried children of SK-6; SK-9 Certain surviving spouses
of deceased international organization employees.
\269\ Includes SN-6 Retired NATO-6 civilian employees; SN-7
Spouses of SN-6; SN-9; Certain surviving spouses of deceased NATO-6
civilian employees; SN-8 Certain unmarried sons/daughters of SN-6.
\270\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers would
generally not be a relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
\271\ Includes the following categories: SM-6 U.S. Armed Forces
personnel, service (12 years) after 10/1/91 SM-9 U.S. Armed Forces
personnel, service (12 years) by 10/91; SM-7 Spouses of SM-1 or SM-
6; SM-0 Spouses or children of SM-4 or SM-9; SM-8 Children of SM-1
or SM-6.
\272\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers would
generally not be a relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
\273\ Includes the following categories: BC-6 Broadcast (IBCG of
BBG) employees; BC-7 Spouses of BC-1 or BC-6; BC-8 Children of BC-6.
\274\ For this category, although the applicants are subject to
public charge under INA section 212(a)(4), the employers would
generally not be a relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
\275\ Includes the following categories: SI-6 Special immigrant
interpreters who are nationals of Iraq or Afghanistan; SI-6, SI-7,
SI-8--spouse and child of SI-6; SQ-6 Certain Iraqis and Afghans
employed by U.S. Government SQ-6, SQ-7, SQ-8 Spouses and children of
SQ-6; SI-6 Special immigrant interpreters who are nationals of Iraq
or Afghanistan; SI-7 Spouses of SI-1 or SI-6; SI-8 Children of SI-1
or SI-6.
[[Page 41345]]
Table 6--Applicability of INA 212(a)(4) to Refugee, Asylee, and Parolee
Adjustment of Status Applications
------------------------------------------------------------------------
Subject to INA INA 213A, and Form
212(a)(4) and must I-864, Affidavit
file Form I-944, of Support under
Category Declaration of section 213A of
Self-Sufficiency? the INA, required
* or exempt?
------------------------------------------------------------------------
Asylees \276\................... No. INA 209(c).... Exempt. INA
209(c).
Indochinese Parolees from No. Section 586, Exempt. Section
Vietnam, Cambodia, and Laos. IC- Public Law 106- 586, Public Law
6 Indochinese refugees (Public 429 (Nov. 6, 106-429 (Nov. 6,
Law 95-145 of 1977). IC-7 2000). 2000).
Spouses or children of
Indochinese refugees not
qualified as refugees on their
own.
Polish and Hungarian Parolees No. Title VI, Exempt. Title VI,
(Poland or Hungary who were Subtitle D, Subtitle D,
paroled into the United States Section 646(b), Section 646(b),
from November 1, 1989 to Public Law 104- Public Law 104-
December 31, 1991) \277\. 208; 8 CFR 245.12. 208; 8 CFR
245.12.
Refugees \278\.................. No. INA 207(c)(3); Exempt. INA 207;
INA 209(c). INA 209(c).
Cuban-Haitian Entrant under No. Section 202, Exempt. Section
IRCA--CH-6, CH-7 \279\. Public Law 99- 202, Public Law
603, 100 Stat. 99-603, 100 Stat.
3359 (1986) (as 3359 (1986) (as
amended), 8 amended), 8
U.S.C. 1255a. U.S.C. 1255a.
HRIFA--Principal HRIFA Applicant No. Section 902 Exempt. Section
who applied for asylum before Public Law 105- 902 Public Law
December 31, 1995 \280\. 277, 112 Stat. 105-277, 112
2681 (Oct. 21, Stat. 2681 (Oct.
1998), 8 U.S.C. 21, 1998), 8
1255. U.S.C. 1255.
------------------------------------------------------------------------
* If found inadmissible based on the public charge ground, USCIS, at its
discretion, may permit the alien to post a public charge bond (Form I-
945). A public charge bond may be cancelled (Form I-356) upon the
death, naturalization (or otherwise obtaining U.S. citizenship), or
permanent departure of the alien, if the alien did not receive any
public benefits as defined in the proposed rule.
---------------------------------------------------------------------------
\276\ Including the following categories: AS-6 Asylees; AS-7
Spouses of AS-6; AS-8 Children of AS-6; SY-8 Children of SY-6; GA-6
Iraqi asylees; GA-7 Spouses of GA-6; GA-8 Children of GA-6.
\277\ Note that this program does not have a specific sunset
date and technically applicants could apply but should have already
applied.
\278\ Includes the following categories: RE-6 Other refugees
(Refugee Act of 1980, Public Law 96-212, 94 Stat. 102 (Mar. 17,
1980)); RE-7 Spouses of RE-6; RE-8 Children of RE-6; RE-9 Other
relatives.
\279\ Note that this program has a sunset date of two years
after enactment, however, some cases may still be pending.
\280\ Includes the following categories: 1995--HA-6 Principal
HRIFA Applicant; Spouse of HA-6, HA-7 and Child of HA-6, HA-8;
Unmarried Son or Daughter 21 Years of Age or Older of HA-6, HA-9
Principal HRIFA Applicant paroled into the United States before
December 31, 1995- HB-6; Spouse of HB-6, HB-7; Child of HB-6, HB-8;
Unmarried Son or Daughter 21 Years of Age or Older of HB-6 HB-9;
Principal HRIFA Applicant who arrived as a child without parents in
the United States HC-6; Spouse of HC-6, HC-7; Child of HC-6, HC-8;
Unmarried Son or Daughter 21 Years of Age or Older of HC-6, HC-9;
Principal HRIFA Applicant child who was orphaned subsequent to
arrival in the United States HD-6, Spouse of HD-6, HD-7; Child of
HD-6, HD-8; Unmarried Son or Daughter 21 Years of Age or Older of
HD-6, HD-9 Principal HRIFA Applicant child who was abandoned
subsequent to arrival and prior to April 1, 1998--HE-6; Spouse of
HE-6, HE-7; Child of HE-6, HE-8; Unmarried Son or Daughter 21 Years
of Age or Older of HE-6, HE-9. Note that this program has a sunset
date of March 31, 2000; however, dependents may still file for
adjustment of status.
Table 7--Applicability of INA 212(a)(4) to Other Applicants Who Must Be
Admissible
------------------------------------------------------------------------
Subject to INA INA 213A, and Form
212(a)(4) and must I-864, Affidavit
file Form I-944, of Support under
Category Declaration of section 213A of
Self-Sufficiency? the INA, required
* or exempt?
------------------------------------------------------------------------
Diplomats Section 13............ Yes. Section 13 of Exempt, by
Public Law 85-316 statute, as they
(September 11, are not listed in
1957), as amended INA 212(a)(4) as
by Public Law 97- a category that
116 (December 29, requires Form I-
1981); 8 CFR 864.
245.3.
Individuals Born in the U.S. Yes. INA 212(a)(4) Exempt. 8 CFR
under Diplomatic Status (NA-3) 101.3.
8 CFR 101.3.
Diversity, DV-1 diversity Yes. INA 212(a)(4) Exempt, by
immigrant, spouse and child. statute, as they
are not listed in
INA 212(a)(4) as
a category that
requires Form I-
864. Diversity
visas are issued
under INA 203(c)
which do not fall
under INA
212(a)(4)(C) or
(D).
W-16 Entered without inspection Yes. INA 212(a)(4) Exempt, by statute
before 1/1/82; W-26 Entered as (except for as they are not
nonimmigrant and overstayed certain aged, listed in INA
visa before 1/1/82. Certain blind or disabled 212(a)(4) as a
Entrants before January 1, 1982. individuals as category that
defined in requires an Form
1614(a)(1) of the I-864.
Social Security
Act). INA
245A(b)(1)(C)(i)
and (a)(4)(a))--
application for
adjustment 42
U.S.C.
1382c(a)(1).
Special Rule for
determination of
public charge--
See INA
245A(d)(2)(B)(iii
).
[[Page 41346]]
T, T-1 victim, spouse, child, No. INA Exempt, by statute
parent, sibling; INA 212(a)(4)(E).. as they are not
101(a)(15)(T), INA listed in INA
212(d)(13)(A). 212(a)(4) as a
category that
requires Form I-
864. Adjustment
of status based
on T nonimmigrant
status is under
INA 245(l) which
does not fall
under INA
212(a)(4)(C) or
(D).
American Indians--INA 289....... No. INA 289....... Exempt. INA 289.
Texas Band of Kickapoo Indians No. Public Law 97- Exempt. Public Law
of the Kickapoo Tribe of 429 (Jan. 8, 97-429 (Jan. 8,
Oklahoma, Public Law 97-429 1983). 1983).
(Jan. 8, 1983); KIC--Kickapoo
Indian Citizen; KIP--Kickapoo
Indian Pass.
S (Alien witness or informant).. Yes, but there is Exempt. INA
a waiver 245(j); INA
available--INA 101(a)(15)(S); 8
245(j); INA CFR 214.2(t)(2);
101(a)(15)(S); 8 8 CFR 1245.11
CFR 214.2(t)(2); (Waiver filed on
8 CFR 1245.11 Form I-854, Inter-
(Waiver filed on Agency Alien
Form I-854, Inter- Witness and
Agency Alien Informant
Witness and Record).
Informant Record).
Private Immigration Bill Dependent on the Dependent on the
providing for alien's text of the text of the
adjustment of status. Private Bill. Private Bill.
NACARA (202); Principal NC-6, No. Section Exempt. Section
(NC 7-9) spouse and children 202(a), Public 202(a), Public
\281\. Law 105-100, 111 Law 105-100, 111
Stat. 2193 (1997) Stat. 2193 (1997)
(as amended), 8 (as amended), 8
U.S.C. 1255.. U.S.C. 1255.
NACARA 203; Cancellation of No. Section 203, Exempt. Section
removal (Z-13) Battered spouses Public Law 105- 203, Public Law
or children (Z-14) Salvadoran, 100, 111 Stat. 105-100, 111
Guatemalan and former Soviet 2193 (1997) (as Stat. 2193 (1997)
bloc country nationals (Form I- amended), 8 (as amended), 8
881, Application for Suspension U.S.C. 1255. U.S.C. 1255.
of Deportation or Special Rule
Cancellation of Removal
(Pursuant to Section 203 of
Public Law 105-100 (NACARA)).
Lautenberg, LA-6 \282\.......... No. Section 599E, Exempt. Section
Public Law 101- 599E, Public Law
167, 103 Stat. 101-167, 103
1195 (Nov. 21, Stat. 1195 (Nov.
1989), 8 U.S.C.A. 21, 1989), 8
1255. U.S.C.A. 1255.
Registry, Z-66--Aliens who No. INA 249 of the Exempt. INA 249 of
entered the United States prior Act and 8 CFR the Act and 8 CFR
to January 1, 1972 and who meet part 249. part 249.
the other conditions.
U, U-1 Crime Victim, spouse, No. INA Exempt. INA
children and parents, and 212(a)(4)(E). 212(a)(4)(E).
siblings under INA 245(m).
Temporary Protected Status (TPS) No. 8 CFR Exempt. 8 CFR
244.3(a).\283\ 244.3(a).\284\
------------------------------------------------------------------------
* If found inadmissible based on the public charge ground, USCIS, at its
discretion, may permit the alien to post a public charge bond (Form I-
945). A public charge bond may be cancelled (Form I-356) upon the
death, naturalization (or otherwise obtaining U.S. citizenship), or
permanent departure of the alien, if the alien did not receive any
public benefits as defined in the proposed rule.
G. Definitions
1. Public Charge
---------------------------------------------------------------------------
\281\ Note that this program has a sunset date of April 1, 2000;
however, some cases may still be pending.
\282\ Note that this program sunset date of September 30, 2014,
only applies to parole. Eligible applicants may still apply for
adjustment of status.
\283\ INA section 244(c)(2)(ii), 8 U.S.C. 1254a(c)(2)(ii),
authorizes USCIS to waive any section 212(a) ground, except for
those that Congress specifically noted could not be waived.
\284\ See INA section 244(c)(2)(ii), 8 U.S.C. 1254a(c)(2)(ii).
---------------------------------------------------------------------------
Comment: A commenter stated that the lack of a public charge
definition is an issue that must be resolved because immigration is an
important feature of America's culture and public policy, heightening
the importance of having a consistent definition.
Response: DHS agrees that it is important to define public charge
in the rulemaking--public charge is a term that has appeared in U.S.
Federal immigration law since at least 1882, but has never been defined
by Congress or in regulation. The rule provides a definition for public
charge and DHS believes that prior to this rule there has been
insufficient guidance on how to determine if an alien who is applying
for admission or adjustment of status is likely to become a public
charge at any time in the future.
Comment: Commenters stated that the proposed definition of public
charge is ``without precedent and contrary to the discretion provided
to DHS under statute.'' A commenter stated that the proposed public
charge definition relies on outdated case law, and that the 1999
Interim Field Guidance is preferable to the proposed rule, for three
reasons. First, the commenter argued that the proposed rule undermined
DHS's stated objectives, because it could stop an alien from accessing
government services that would make the alien more self-sufficient.
Second, the commenter argued that the proposed rule could have adverse
effects on aliens whose presence in the United States is a net benefit
to the U.S. Government as a consequence of their productivity,
associated tax revenues, etc. And third, the commenter argued that the
proposed rule would bind adjudicators to a bright-line definition of
``public charge'' that could result in harsh consequences in some
cases. By contrast, in the commenter's view, the ``primarily
dependent'' standard under the 1999 Interim Field Guidance provided
adjudicators with more discretion. Another commenter stated that the
proposed rule does not comport with the law because it is contrary to
the long-established common-law definition of public charge. A
commenter stated that the use of non-monetizable benefits
[[Page 41347]]
for one third of the time period does not reflect ``primary
dependence.''
Response: DHS disagrees that the public charge definition is
contrary to the discretion provided to DHS under the INA, relies on
outdated case law or is without precedent, or undermines the agency's
objectives. As noted in the NPRM, DHS's authority to make public charge
inadmissibility determinations and related decisions is found in
several statutory provisions, including section 102 of the Homeland
Security Act of 2002 (Pub. L. 107-296, 116 Stat 2135), 6 U.S.C. 112,
section 103 of the Act, 8 U.S.C. 1103, as well as section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4). DHS may issue regulations implementing
its authority under these statutes without further congressional
authorization. Additionally, as noted in the NPRM, there is a scarcity
of case law specifically defining public charge.\285\ The cases cited
in the NPRM and in this final rule include the most recent and relevant
case law discussing the term public charge and the public charge ground
of inadmissibility.\286\
---------------------------------------------------------------------------
\285\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51157-58 (proposed Oct. 10, 2018).
\286\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51157-58 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
With respect to the argument that the public charge rule may make
it more difficult for some aliens to become self-sufficient, DHS has
addressed this argument at length elsewhere in this preamble. In short,
and as relevant here, the fact that an alien might rely on public
benefits to become self-sufficient in the future has no bearing on
whether such alien currently is self-sufficient or currently is or is
not a public charge. DHS rejects the notion that it must interpret the
term ``public charge'' in such a way as to allow aliens to rely on
public benefits until such time as they are self-sufficient. DHS notes
that its position on this aspect of the definition of public charge
should not be taken as a rejection of the commenters' general point
that an alien's past receipt of public benefits can result in greater
self-sufficiency. If an alien received public benefits in the past and
such benefits helped the alien become self-sufficient, DHS agrees that
the alien's current self-sufficiency is relevant to the prospective
public charge inadmissibility determination, but the alien's past
receipt of public benefits is relevant to assessing the likelihood of
future receipt of public benefits.
With respect to the argument regarding aliens who receive the
designated public benefits, but may nonetheless be a net benefit to the
U.S. Government or society, neither the Act nor the case law requires
DHS to weigh an alien's net impacts on government resources, such as by
evaluating the potential tax receipts generated by the alien, as
compared to the alien's receipt of public benefits. In addition, a
definition that requires consideration of the alien's overall
contributions to tax revenues, economic productivity, or society at
large would be unjustifiably challenging to administer. For instance,
as explained in the proposed rule, fully monetized thresholds (which
would be required to make a dollars-to-dollars comparison) would not be
administrable because some benefits, such as Medicaid, lack clearly
monetizable value. In addition, DHS notes that taxes serve a variety of
functions, and benefit the taxpayer regardless of whether she or he
receives an individual, means-tested public benefit. A comparison of
the alien's ``contributions'' (in the form of taxes) to the alien's
``withdrawals'' (in the form of public benefits) would therefore be
incomplete, because it would not consider the other government programs
and services, including national defense, infrastructure, law
enforcement and emergency services, from which the alien benefits.
Further, under this rule, DHS will not consider receipt of any public
benefits for which the alien has paid into directly. Each of the
designated benefits involves significant government subsidization. In
this context, DHS does not believe that value of an alien's current or
future tax contributions should ultimately have a bearing on whether
the alien is a public charge.
With respect to the firmness of the definition, part of the rule's
purpose is to provide a clearer definition; DHS will not institute a
vague standard in order to avoid harsh consequences for some people.
Finally, as to the comment stating that the rule does not comport
with the law because it is contrary to the long-standing common law
definition of public charge, the commenter failed to identify any
common law definition of public charge that DHS should have considered,
or as the commenter stated, that DHS violated. As noted in the NPRM,
DHS's definition for public charge is derived from a review of the
minimal legislative history of the public charge ground of
inadmissibility and the ordinary meaning of public charge. DHS's
definition also relies on the limited case law addressing the
definition of public charge, in which courts, in the absence of
statutory definition for public charge, generally tied the definition
of public charge to receipt of public benefits, without quantifying the
level of public support or the type of public support required to
determine that the alien is likely to become a public charge at any
time in the future.
DHS notes that even if there were a clear definition for public
charge grounded in case law, which there does not appear to be,
agencies responsible for administering federal law generally have the
authority to interpret an ambiguous statute in a different manner than
the manner in which a court interpreted the statute.\287\ Therefore,
DHS would be within its authority to create a different definition of
``public charge.'' \288\
---------------------------------------------------------------------------
\287\ Nat'l Cable & Telecomms. Ass'n v. Brand X internet Servs.,
545 U.S. 967, 983-84 (2005) (Brand X) (``Since Chevron teaches that
a court's opinion as to the best reading of an ambiguous statute an
agency is charged with administering is not authoritative, the
agency's decision to construe that statute differently from a court
does not say that the court's holding was legally wrong. Instead,
the agency may, consistent with the court's holding, choose a
different construction, since the agency remains the authoritative
interpreter (within the limits of reason) of such statutes. In all
other respects, the court's prior ruling remains binding law (for
example, as to agency interpretations to which Chevron is
inapplicable). The precedent has not been `reversed' by the agency,
any more than a federal court's interpretation of a State's law can
be said to have been `reversed' by a state court that adopts a
conflicting (yet authoritative) interpretation of state law.'').
\288\ Brand X, 545 U.S. at 1001 (``the Commission is free within
the limits of reasoned interpretation to change course if it
adequately justifies the change'').
---------------------------------------------------------------------------
Comment: Commenters provided a historical overview of public
charge, and asserted that expanding the definition would represent a
``radical departure'' from over 100 years of U.S. immigration policy.
The commenters discussed the laws governing public charge
inadmissibility and deportability, and observed that, in the past,
public charge inadmissibility and associated guidance have sometimes
operated to the detriment of certain vulnerable populations, including
Jews, women, and people from India. The commenters stated that the
change in policy--from a focus on dependence on the government by cash
support for subsistence or long-term institutionalization, to a focus
on a broader range of benefits--would lead to a ``general erosion'' of
benefits that legal immigrants may access.
Response: While this rule expands the list of public benefits
covered in the INS 1999 Interim Field Guidance and the 1999 proposed
rule, DHS does not believe that the rule is inconsistent with
historical practice. DHS notes that this rule is not facially
discriminatory, and that DHS does not intend the rule to have a
discriminatory effect based on
[[Page 41348]]
race, gender, religion, or any other protected ground. Rather, the rule
is consistent with existing precedents that have developed in the years
since the earliest public charge laws, as well as Congress' codified
policy statement that ``[s]elf-sufficiency has been a basic principle
of United States immigration law since this country's earliest
immigration laws.'' \289\ As noted in the NPRM,\290\ courts have
consistently tied the concept of public charge to an alien's receipt of
public benefits, without quantifying the level of public support or
requiring a certain type of public support, and the alien's ability to
be self-sufficient. DHS acknowledges that individuals may disenroll
from public benefits to avoid the consequences of this rule. As
previously noted, the rule aims to align the principles of self-
sufficiency set forth in PRWORA\291\ with the public charge
inadmissibility ground.
---------------------------------------------------------------------------
\289\ 8 U.S.C. 1601(1).
\290\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51158 (proposed Oct. 10, 2018).
\291\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
DHS does not believe that the history of the public charge ground
of inadmissibility--which Congress has consistently chosen to retain as
part of our immigration laws--precludes DHS from implementing a
rigorous and fair regulatory framework for public charge
inadmissibility determinations. DHS notes that our immigration laws
have evolved to provide greater protections to vulnerable populations.
For instance, refugees and asylees are exempt from the public charge
ground of inadmissibility.
Comment: One commenter stated that the proposed rule greatly
expands the definition of public charge, is a departure from existing
policy and creates an unworkable, overly broad definition that will be
impossible to implement fairly. The commenter also asserted that
experts estimated that, under the new definition, 94% of all
noncitizens who entered the United States without lawful permanent
resident status have at least one characteristic that DHS could
potentially weigh negatively in a public charge determination under the
proposed rule. Another commenter stated that taking advantage of any
federal, state, or local government program should have no impact on a
pathway to residency or citizenship. The commenter suggested that
instead, DHS evaluate each applicant based on whether the alien is
employed or is caring for a family, has a violent felony conviction,
and has a sponsor (such as a family member or corporate sponsor
providing support).
Response: DHS agrees that the definition of public charge in this
rule is broader than the existing definition and policy. However, as
noted previously, DHS believes that this expanded definition for public
charge is reasonable and consistent with Congress' intent and will
better ensure that aliens seeking to come to the United States
temporarily or permanently are self-sufficient.\292\ DHS acknowledges
that the implementation of the public charge ground of inadmissibility
will be a complex adjudication, but USCIS is committed to taking
necessary steps to ensure consistent implementation and fair
adjudication, including through the issuance of adjudicative guidance
and training. As noted elsewhere in this rule, DHS believes
consideration of receipt of public benefits is appropriate in
determining whether an alien is likely to become a public charge in the
future.
---------------------------------------------------------------------------
\292\ Brand X, 545 U.S. at 1001 (``the Commission is free within
the limits of reasoned interpretation to change course if it
adequately justifies the change'').
---------------------------------------------------------------------------
Comment: Some commenters stated that the proposed rule would exceed
DHS's authority because the proposed definition is over-inclusive,
encompassing a wide range of people who are substantially self-
supporting and not primarily dependent upon the government to meet
their basic needs. Commenters also indicated the proposal did not
provide a reasoned analysis for changing the long-standing definition
of public charge from being primarily dependent on the government to a
determination in which a person could become a public charge based on
receipt of a smaller amount of public benefits, including non-cash
benefits. Commenters also stated that the NPRM would foreclose the
opportunity for a hard-working, self-sufficient individual who
experiences a fleeting financial hardship to become a long-term
resident of the United States.
Similarly, another commenter stated that ``[t]he broader scheme of
the [Immigration Act of] 1882 . . . confirms that Congress intended the
term `public charge' to refer to primary dependence on the government,
not mere receipt of some public aid.'' The commenter suggested that
because the Immigration Act of 1882 (1882 Act) authorized a fund ``to
defray the expense of regulating immigration . . . , for the care of
immigrants arriving in the United States, [and] for the relief of such
as are in distress,'' \293\ Congress must have anticipated that some
immigrants would be in need of short-term support, without becoming a
public charge.
---------------------------------------------------------------------------
\293\ Immigration Act of 1882, 22 Stat. 214 (Aug. 3, 1882).
---------------------------------------------------------------------------
The commenter also cited a floor statement by a member of Congress
in the months preceding enactment of the 1882 Act. According to the
commenter, the floor statement supported the conclusion that Congress
intended for the term ``public charge'' to mean a person ``primarily if
not wholly dependent on the government.'' Specifically, the member of
Congress incorporated into his floor statement an 1879 resolution
passed by the New York Board of Charities, which concluded that many
cities and towns in Europe sent ``to this country blind, crippled,
lunatic, and other infirm paupers, who ultimately become life-long
dependents on our public charities''; and that many such persons
``become permanent inmates of the charitable institutions supported by
the State of New York.'' \294\ The resolution called on Congress to
exclude such individuals from the United States and to appropriate
funds for returning such individuals to their home countries. The
commenter suggested that because the resolution referred to ``life-long
dependents'' and ``permanent inmates,'' it is clear that Congress
intended for the term ``public charge'' to refer to primary dependence
on the Government for support.
---------------------------------------------------------------------------
\294\ See 13 Cong. Rec. 5109-10 (June 19, 1882) (Statement of
Rep. John Van Voorhis).
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Response: DHS rejects the notion that the public charge definition
violates the law or is over-inclusive. DHS acknowledges that this is a
change that likely will increase the number of individuals who will be
deemed inadmissible or ineligible for adjustment of status based on the
public charge ground. DHS disagrees, however, with the assertion that
it did not provide a reasoned explanation why the prior standard is
insufficient, why the change is necessary, and why non-cash benefits
are included in the new public charge determinations. Longstanding
agency practice and policy,\295\ while generally accorded some weight,
is not controlling or unalterable.\296\ DHS provided
[[Page 41349]]
detailed reasoning why the changes are necessary in the NPRM. As
explained in the NPRM, although the primarily dependence (more-than-50-
percent dependence) on public assistance standard creates a bright line
rule, it is possible and likely probable that many individuals whose
receipt of public benefits falls below that standard lack self-
sufficiency.\297\ Because of the nature of the benefits that would be
considered under this rule--i.e., cash benefits for income maintenance
and non-cash benefits for basic living needs such as food and
nutrition, housing, and healthcare, that account for significant public
expenditures on non-cash benefits \298\--DHS believes that receipt of
such benefits for more than 12 months within any 36-month period is
sufficient to render a person a public charge.\299\ This is because an
individual with limited means to satisfy basic living needs who uses
government assistance to fulfill such needs for that duration of time
relies on such assistance to such an extent that the person is not
self-sufficient.\300\ Given that neither the wording of section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), nor case law examining
public charge inadmissibility, mandates the ``primarily dependent''
standard, and in light of Congress' unequivocal policy goal articulated
in PRWORA, DHS has concluded that the ``primarily dependent'' standard
is not the only permissible interpretation of what it means to be a
public charge, and is in fact suboptimal when considered in relation to
the goals of the INA and PRWORA.\301\
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\295\ As of the date of the effective rule, the agency practice
had not been codified in agency regulations as the NPRM published in
May 1999 was never finalized. As explained in the NPRM, the agency
also issued interim Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, in which it detailed its
policy. See 64 FR 28689 (May 26, 1999). See Inadmissibility on
Public Charge Grounds, 83 FR 51114, 51133 (proposed Oct. 10, 2018).
\296\ See, e.g., Judulang v. Holder, 565 U.S. 42, 62 (2011)
(indicating that longevity is ``a slender reed to support a
significant government policy''); see Chevron, USA, Inc v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 863 (1984) (indicating that to
engage in informed rulemaking, the agency must consider varying
interpretations and the wisdom of its policy on a continuing basis
and establish a reasonable choice); United States v. Nat'l Ass'n of
Sec. Dealers, Inc., 422 U.S. 694, 719 (1975) (longstanding
interpretations by an agency are entitled to considerable weight but
are not controlling).
\297\ See Inadmissibility on Public Charge Grounds, 53 FR 51114,
51164 (proposed Oct. 10, 2018).
\298\ See Inadmissibility on Public Charge Grounds, 53 FR 51114,
51164 (proposed Oct. 10, 2018).
\299\ See Inadmissibility on Public Charge Grounds, 53 FR 51114,
51164 (proposed Oct. 10, 2018).
\300\ See Inadmissibility on Public Charge Grounds, 53 FR 51114,
51164 (proposed Oct. 10, 2018).
\301\ See United States v. Mead Corp., 533 U.S. 218, 227 (2001)
(well-reasoned views of the agency implementing a statute enjoys
considerable weight); see also Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 866 (1984) (judges have a duty to
respect legitimate policy justices and resolving the struggle
between competing views of the public interest are not judicial
responsibilities--they are vested in the political branches).
---------------------------------------------------------------------------
With respect to the commenter's arguments about the Immigration Act
of 1882, the conclusions that the commenter draws from the funding
mechanism in that Act appear to be largely unsupported. The commenter
assumes, without articulating any basis for the assumption, that under
the Immigration Act of 1882 aliens who received assistance through the
fund could not also be public charges. DHS has no reason to believe
that assumption is correct. But even if the Immigration Act of 1882
could be read as suggesting that an alien can rely on public funds for
support without becoming a public charge, DHS is unaware of any binding
case law requiring DHS to interpret the term ``public charge'' in this
manner. And regardless, Congress has since amended the public charge
ground of inadmissibility multiple times over the course of more than a
century.
With respect to the New York State Board of Charities resolution
referenced by the commenter, DHS notes that the resolution does not use
the term ``public charge'' or implicitly define such term. DHS does not
find the resolution or the surrounding floor statement particularly
instructive for purposes of this rulemaking; they originate in a
different historical context that preceded multiple modifications to
and re-enactments of the public charge ground of inadmissibility in the
140 years since the passage of the 1879 resolution.\302\
---------------------------------------------------------------------------
\302\ NLRB v. SW General, Inc., 137 S. Ct. 929, 943 (2017)
(``[F]loor statements by individual legislators rank among the least
illuminating forms of legislative history.'').
---------------------------------------------------------------------------
Comment: A commenter stated that DHS's rationale for why the public
charge definition is consistent with more than 40 years of case law--
and specifically, DHS's citation of Matter of Vindman and Matter of
Harutunian \303\--did not withstand scrutiny because these cases
involved the receipt of cash benefits by the elderly, unemployed and
unsponsored applicants, and therefore bears no relevance to the broad
population affected by this rule. One commenter asserted that the cases
cited do not support the proposed definition, and stated that the
citation to these cases indicates that this rule is haphazardly put
together and poorly researched.
---------------------------------------------------------------------------
\303\ See Matter of Vindman, 16 I&N Dec. 131 (Reg'l Comm'r
1977); Matter of Harutunian, 14 I&N Dec. 583 (Reg'l Comm'r 1974).
---------------------------------------------------------------------------
Response: DHS rejects the notion that the case law cited does not
support DHS's public charge definition. In particular, DHS disagrees
that the case law cited in support of the public charge definition, and
particularly Vindman and Harutunian,\304\ bears no relevance to the
population affected by this rule because the facts of Vindman and
Harutunian were limited to cash assistance and elderly, unemployed, or
unsponsored applicants. DHS cited these decisions to establish that its
proposed regulation is consistent with case law. Absent a clear
statutory or regulatory definition, some courts and administrative
authorities have tied public charge to the receipt of public
benefits.\305\ DHS does not believe that Vindman or Harutunian
specifically limited the general understanding of public charge to only
those who are ``elderly, unemployed or unsponsored'' aliens. Both
decisions were based on the understanding that Congress intended to
exclude those who were unable to support themselves and who received
public benefits.\306\ Additionally, Congress later amended the law to
specifically require sponsorship (by requiring an affidavit of support
for some immigrants or considering an affidavit of support for others)
as part of the public charge determination, and also codified statutory
minimum factors to consider (including age, financial status, and
education and skills). Therefore, DHS finds the commenters' assertion
that DHS's reasoning does not withstand scrutiny for those non-elderly,
employed, and sponsored aliens unpersuasive.
---------------------------------------------------------------------------
\304\ The commenter also suggested the age of the decisions. DHS
notes that the age of a precedent decision does not invalidate the
precedential effect of the decision. Indeed, the Supreme Court has
cited the age of a precedent as a reason to maintain it. See Montejo
v. Louisiana, 556 U.S. 778, 792-93 (2009) (citing ``the antiquity of
the precedent'' as a factor against overturning a decision).
\305\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51157(proposed Oct. 10, 2018).
\306\ See Matter of Harutunian, 14 I&N Dec. 583, 586 (Reg'l
Comm'r 1974) (``The words `public charge' had their ordinary
meaning, that is to say, a money charge upon or an expense to the
public for support and care, the alien being destitute''); Matter of
Vindmam, 16 I&N Dec. at 132 (Congress intends that an applicant be
excluded who is without sufficient funds to support himself, who has
no one under any obligation to support him, and whose changes of
becoming self-supporting decreases as time passes).
---------------------------------------------------------------------------
Comment: One commenter stated that the proposed public charge
definition is nonsensical because DHS has asserted that legislative
history and case law support the definition but has also noted that
legislative history and case law on the subject are scarce.
Response: DHS does not believe that the public charge definition is
nonsensical. While the case law and legislative history regarding the
meaning of public charge is minimal, it is not non-existent. As
outlined in the NPRM, DHS carefully analyzed the available legislative
history and case law as part of this rulemaking.
Comment: A commenter indicated that DHS ignored Second Circuit case
[[Page 41350]]
law such as Howe v. United States ex rel. Savitsky, 247 F. 292, 294 (2d
Cir. 1917), and Ex Parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir.
1922), which rejected a broad definition of the term public charge,
tying it instead to a person's likelihood of becoming an occupant of
almshouses for want of means of support. This commenter indicated that
DHS's historical argument--that the late 19th century history and
meaning are irrelevant because the wide array of limited-purpose public
benefits now available did not exist at the time--was historically
inaccurate. The commenter noted that contemporaneous sources and
historical studies reveal that throughout the 19th century's
governments, including the Federal Government, provided limited public
assistance short of institutionalization. Additionally, the commenter
indicated that even if limited-purpose public benefits had not been
available, the argument is immaterial because such an expansion would
not change the meaning of the term set out in the 1882 Act. In fact,
according to the commenter, Congress has declined to change its
original meaning of the term.\307\
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\307\ In support of the commenter's arguments, the commenter
cited Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009);
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 358
(1998) (Scalia, J., concurring).
---------------------------------------------------------------------------
Response: DHS is aware of the decisions in Howe and Sakaguchi, but
DHS does not believe that these cases are inconsistent with the public
charge definition set forth in this rule or with the suggested link
between public charge and the receipt of public benefits. In fact, the
cases support DHS's belief that courts generally have neither
quantified the level of public support nor the type of public support
required for purposes of a public charge inadmissibility finding. In
Howe, the court reviewed whether the immigration inspector rightly
attempted to classify the alien as a public charge because the
immigration inspector believed the applicant to have engaged in a
criminal matter but lacked the requisite evidence to charge the
alien.\308\ The court rejected such a broad use of the public charge
provision, which would have rendered several other inadmissibility
grounds unnecessary.\309\ Instead, the court emphasized that, in the
context of public charge provision and its position within the statute,
as it appeared at that time, Congress meant to exclude individuals who
are likely to become occupants of government-run almshouses from the
United States \310\ for want of means to support themselves in the
future.\311\ The court did note that ``[i]f the words covered jails,
hospitals, and insane asylums, several of the other categories of
exclusion would seem to be unnecessary.'' \312\ But other courts have
ruled differently,\313\ the surrounding grounds of inadmissibility have
been amended many times since, and the fact that two INA provisions
that may cover the same conduct does not make either unnecessary.\314\
Likewise, DHS does not believe that the current public charge
inadmissibility provision is limited to almshouses and its modern
equivalents. Later decisions have considered other benefits such as old
age assistance.\315\
---------------------------------------------------------------------------
\308\ See Howe v. United States ex rel. Savitsky, 247 F. 292,
294 (2d Cir. 1917). In Howe, the alien had been engaged in a
contractual dispute in his home country on account of writing a bad
check, which the immigration inspector regarded as a dishonest
practice. Because the immigration inspector lacked the requisite
proof to exclude the applicant on criminal grounds, however, the
inspector attempted to deny entry on public charge grounds of
inadmissibility under section 2 of the Immigration Act of 1907 (36
Stat 264).
\309\ Howe, 247 F. at 294 (``Indeed, with such latitudinarian
construction of the provision `likely to become a public charge,'
most of the other specific grounds of exclusion could have been
dispensed with . . . We are convinced that Congress meant the act to
exclude persons who were likely to become occupants of almshouses
for want of means with which to support themselves in the future. If
the words covered jails, hospitals, and insane asylums, several of
the other categories of exclusion would seem to be unnecessary.'')
\310\ DHS reviewed a variety of sources to identify a clear
definition of the term ``almshouse,'' as it might relate to an
interpretation of the term public charge. The Second Circuit, in
Howe, did not further elaborate on the meaning of the term almshouse
or the threshold level of support for purposes of determining
whether an alien was likely to become a public charge. Almshouses
have also been discussed in contexts other than public charge. For
example, for purposes of claiming tax exemption, New York State
courts emphasized that an almshouse only qualified for tax
exemptions if it offered services free of charge; almshouses which
offered services at a reduced charge, for example, did not qualify
as almshouses for tax purposes. See, e.g., In re Vanderbilt's
Estate, 10 N.Y.S. 239, 242 (Sur. 1890) (``The New York Protestant
Episcopal City Mission Society claims exemption as an almshouse. It
maintains a home and reading-rooms, etc., and provides lodgings and
meals free. It also maintains a day nursery, for which it makes a
small charge. This takes it out of the domain of pure charity,--a
house wholly appropriated to the poor. I have already decided in
several cases that a society, to be exempt from this tax as an
almshouse, must be absolutely free,--all benefits given
gratuitously.'') In City of Taunton v. Talbot, an almshouse
attempted to recover the cost from one of its inmates. 186 Mass 341
(1904). The court denied relief because there were no records to tie
the expenses specifically to the inmate, in particular because the
agreement between the inmate and the almshouse included support in
exchange for the inmate's work. See id. at 343. DHS is aware that
INS used references to the term ``almshouse'' in its 1999 proposed
regulation and in the 1999 Interim Field Guidance to explain, among
other things, its primarily dependent model for purposes of public
charge. See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51163 (proposed Oct. 10, 2018); see also Inadmissibility and
Deportability on Public Charge Grounds, 64 FR 28676 (proposed May
26, 1999) and Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 FR 28689 (May 26, 1999). As explained in
the NPRM, however, neither INS's reasoning nor any evidence
provided, forecloses the agency adopting a different definition
consistent with statutory authority. See Inadmissibility on Public
Charge Grounds, 83 FR 51114, 51133 (proposed Oct. 10, 2018).
\311\ Howe, 247 F. at 294 (interpreting the public charge
provision under Act of 1907); see also Ex parte Mitchell, 256 F.
229, 230 (N.D.N.Y. 1919) (explaining, in addressing the public
charge provision of 1917, that ``I am unable to see that this change
of location of these words in the act changes the meaning that is to
be given them. A `person likely to become a public charge' is one
who for some cause or reason appears to be about to become a charge
on the public, one who is to be supported at public expense, by
reason of poverty, insanity and poverty, disease and poverty, idiocy
and poverty, or, it might be, by reason of having committed a crime
which, on conviction, would be followed by imprisonment. It would
seem there should be something indicating the person is liable to
become, or shows probability of her becoming, a public charge.''
\312\ See Howe, 247 F. at 294.
\313\ See generally Leo M. Alpert, The Alien and the Public
Charge Clauses, 49 Yale L.J. 18, 20-22 (1939) (discussing
disagreements with part of the of the Howe decision). To be clear,
DHS is not taking the position that some of the cases cited in the
Alpert article did that someone who is incarcerated is likely to
become a public charge based on penal incarnation.
\314\ See Kawashima v. Holder, 565 U.S. 478, (2012) (holding
that the aggravated felony provision for fraud or deceit includes
tax offenses even though there is a separate aggravated felony
provision concerns tax crimes).
\315\ See, e.g., Matter of Harutunian, 14 I&N Dec. 583 (Reg'l
Comm'r 1974).
---------------------------------------------------------------------------
Skaguchi,\316\ a case in which the court based its holding in part
on Howe,\317\ is
[[Page 41351]]
not inconsistent with DHS's proposed definition of public charge. As
was the case in Howe, the court in Skaguchi rejected the use of the
public charge ground of inadmissibility as a ``catch-all'' form of
inadmissibility.\318\ The court reiterated that to sustain a public
charge inadmissibility finding, there must be evidence of a fact that
tends to show that the burden of supporting the alien is likely to be
cast upon the public.\319\ Therefore, DHS rejects the commenter's
suggestion that these cases mandate a result other than the DHS's
public charge definition and the level of dependency assigned to it in
the NPRM.
---------------------------------------------------------------------------
\316\ See Ex parte Hosaye Skaguchi, 277 F. 913 (9th Cir. 1922).
\317\ The court in Howe cited to Gegiow v. Uhl, 239 U.S. 3
(1915), and Ex Parte Mitchell, 256 F. 229 (N.D. NY 1919), both cases
that confirmed that a finding of public charge must be based on a
defect of a nature that affects an individual's ability to earn a
living and cannot be predicated on some external reason such as an
overstocked labor market, see Gegiow, 239 U.S. at 10, and other
speculative and remote conjectures that are unrelated to an alien's
defect or other fact that shows or tends to show that the alien is
unlikely to earn a living and therefore likely to become a public
charge. In Gegiow, the Secretary of Labor deemed a group of
illiterate aliens who lacked English language proficiency
inadmissible as likely to become a public charge, because they had
little money on hand, had no sponsor, and intended to travel to a
city with a weak labor market. The Court wrote that on the record
before it, ``the only ground for the order was the state of the
labor market at Portland at that time; the amount of money possessed
and ignorance of our language being thrown in only as makeweights.''
Gegiow, 239 U.S. at 9. The Court then interpreted the term public
charge as similar in kind to the surrounding terms in the governing
statute (which included terms such as pauper and beggar). The Court
reasoned that because such surrounded terms related to permanent
personal characteristics of the alien rather than the alien's
destination, the Secretary of Labor could not consider conditions in
the aliens' destination city as part of the public charge
determination. The Court's characterization of the role of the
aliens' assets and resources, as well as language proficiency, is
dicta and has in any case been superseded by multiple revisions to
the public charge statute, including a revision in 1996 that
specifically called for analysis of the alien's assets, resources,
and skills.
\318\ See Ex parte Hosaye Skaguchi, 277 F. 913 (9th Cir. 1922).
\319\ See Ex parte Hosaye Skaguchi, 277 F. 913, 916 (9th Cir.
1922).
---------------------------------------------------------------------------
DHS agrees that it is immaterial to this rulemaking whether
limited-purpose means-tested benefit programs expanded over the course
of the last century-plus. DHS simply recited, without endorsing, INS
reasoning for the primarily dependent standard in the NPRM, in an
effort to explain the primarily dependent standard's limitations and
why DHS proposed a different standard in this rule.\320\ DHS's
reasoning for changing the public charge definition is not based on
this statement.
---------------------------------------------------------------------------
\320\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51163 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Some commenters indicated that the proposed rule was at
odds with the recommendations of the very agencies that administer the
federal programs included in the rule. The commenters also pointed out
that, as indicated by DHS in the NPRM, INS had consulted with HHS, the
Social Security Administration (SSA), and the Department of Agriculture
(USDA) when developing the 1999 Interim Guidance and that these
agencies had told INS unequivocally ``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'' and that ``neither the receipt of food stamps nor nutrition
assistance provided under [SNAP] should be considered in making a
public charge determination.'' Commenters indicated that in the NPRM,
DHS ``dismissed all of this expertise, stating ipse dixit that such
input from the federal agencies that actually administer these programs
`d[oes] not foreclose [the Department] adopting a different definition
consistent with statutory authority.' '' The commenter believed that
this response was legally insufficient because it confused DHS's
ability to take action under a statute with its independent obligation
to adopt an approach based on sound reasoning. The commenter stated
that merely asserting that DHS has the ability to reject other
agencies' reasoned analyses (whether or not correct) does nothing to
justify its choice to do so. The commenter concluded, therefore that
DHS's response--like DHS's overall decision--failed to satisfy the
APA's requirements.
Response: As explained in the NPRM,\321\ DHS is aware that former
INS consulted with various agencies that administer the federal
programs. The letters were issued in the context of the approach taken
in the 1999 proposed rule and 1999 Interim Field Guidance, and
specifically opined on the reasonableness of that INS interpretation,
that is, the primarily dependent on the government for subsistence
definition. As noted in the NPRM, DHS does not believe that these
letters supporting the interpretation set forth in the 1999 Interim
Field Guidance foreclose this different interpretation, particularly
where DHS's reasoning for the approach in this final rule is grounded
in a different basis.
---------------------------------------------------------------------------
\321\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51133 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Some commenters objected to what they describe as the
``per se'' nature of the rule. Specifically, commenters expressed
concerns that immigrants receiving any amount of public benefits would
be deemed a public charge. An individual commenter said the rule would
implicitly classify more than a fifth of Americans as a public charge.
Response: DHS disagrees with the commenters' characterization that
the definition of public charge creates an inappropriate per se rule.
DHS believes that the nexus between likelihood of becoming public
charge at any time in the future, the receipt of public benefits, and
self-sufficiency, as described and explained in the NPRM,\322\ is
consistent with Congress' intent \323\ in enacting the public charge
inadmissibility ground. DHS also believes it is consistent with the
premise underlying much of the public charge case law analyzing the
public charge inadmissibility ground \324\ that aliens who enter this
country should be self-sufficient and not reliant on the government. As
explained in the NPRM and detailed above, despite the lack of a
definition in the statute and minimal case law defining public charge,
there has always been a link between the receipt of public benefits and
the public charge determination.\325\ Absent a clear statutory
definition, courts and administrative authorities have generally tied
the concept of public charge to the receipt of public benefits without
quantifying the level, type or duration of the public benefits
received.\326\ To create an administrable way to implement the statute,
DHS's NPRM provided a list of specific benefits and a threshold amount
that DHS believed reasonably balances an alien's lack of self-
sufficiency against temporary welfare assistance that does not amount
to a lack of self-sufficiency.\327\ Additionally, by proposing to
codify the totality of the circumstances approach to the prospective
inadmissibility determination, DHS clarified that an alien's past
receipt of public benefits
[[Page 41352]]
alone, without consideration of the other factors, would not establish
future likelihood of becoming a public charge. DHS further agrees with
the commenters that under this new framework, the number of aliens
being found inadmissible based on the public charge ground will likely
increase.
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\322\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51157-58 (proposed Oct. 10, 2018).
\323\ As outlined in the NPRM, legislative history suggests the
link between public charge and the receipt of public benefits. For
example, in the 1950 Senate Judiciary Committee report, preceding
the passage of the 1952 Act, concerns were raised about aliens
receiving old age assistance. See Inadmissibility on Public Charge
Grounds, 83 FR 51114, 51157 (proposed Oct. 10, 2018). Debates on
public charge prior to Congress' passage of IIRIRA in 1996 also
highlighted that an immigrant should be relying on his or her own
resources, rather than becoming a burden on the taxpayers. See
Inadmissibility on Public Charge Grounds, 83 FR 51114, 51157
(proposed Oct. 10, 2018). With the passage of PRWORA, Congress
explicitly emphasized that self-sufficiency is a fundamental
principle of the United States immigration law and connected receipt
of public benefits with a lack of self-sufficiency, further stating
that aliens within the Nation's borders should not depend on public
resources to meet their needs. See 8 U.S.C. 1601(1) and (2). Courts
likewise have connected public charge determinations to the receipt
or the need for public resources See Inadmissibility on Public
Charge Grounds, 83 FR 51114, 51157-58 (Oct. 10, 2018).
\324\ See, for example, Matter of Vindman, 16 I&N Dec. 131
(Reg'l Comm'r, 1977) (concluding that Congress intends that an
applicant for a visa be excluded who is without sufficient funds to
support himself or herself, or who has no one under any obligation
to support him, and whose chances of becoming self-supporting
decreases as time passes, and that the respondents' receipt of
assistance for approximately three years clearly put them into the
confines of the public charge inadmissibility ground); see also
Matter of Harutunian, 14 I&N Dec. 583 (Reg'l Comm'r 1974) (The words
``public charge'' had their ordinary meaning, that is to say, a
money charge upon or an expense to the public for support and care,
the alien being destitute); see generally cases cited in
Inadmissibility on Public Charge Grounds, 83 FR 51114, 51157-58
(proposed Oct. 10, 2018).
\325\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51157-51158 (proposed Oct. 10, 2018).
\326\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51157-51158 (proposed Oct. 10, 2018).
\327\ See 8 CFR 212.21(b).
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Comment: Commenters objected to the proposed rule because it
equates receipt of benefits with the lack of self-sufficiency. Others
stated that the receipt of public benefits is not an indicator of a
person's incapacity for self-sufficiency, but helps individuals to
become self-sufficient. Many commenters expressed concern with the
expansion of the public charge definition to include not just those
primarily depending on cash benefits, but also individuals who use
basic needs programs to supplement their earnings or need short-term
help. Some commenters stated that immigrant women already face a
heightened risk of economic insecurity, discrimination, and
disproportionate responsibility for caregiving, and that participating
in benefit programs is important to their ability to support themselves
and their children. A commenter stated that many open jobs require
specific training that can be provided through community colleges, and
in order to obtain the education to become a contributing member of
society, some immigrants draw on public benefits for a short period of
time to enable them to complete their studies.
Response: DHS understands that individuals, including immigrant
women and their families, as well as students, may supplement their
income with public benefits, such as basic needs programs, because they
may require short-term help, and that the goal of these benefits
assists them to become self-sufficient in the short- and, eventually
long-term. DHS also acknowledges that certain individuals who are
depending on public benefits may choose to disenroll because of this
rulemaking. However, the goals of public benefits programs and the
public charge ground of inadmissibility are not the same. The public
charge inadmissibility provision is not intended to ensure that aliens
can become self-sufficient; in fact, Congress specifically articulated
policy goals in PRWORA that provided that government welfare programs
should not be an incentive for aliens to immigrate to the United States
and that aliens inside the United States are expected to be self-
sufficient. Correspondingly, DHS's assessment of whether an alien is
likely at any time to become a public charge is not the same as an
assessment whether, at some separate point in the future, an alien who
is likely to become a public charge will later become self-sufficient.
With this rulemaking, DHS is implementing the public charge ground of
inadmissibility and seeking to better ensure that those who are seeking
admission to the United States and adjustment of status, as well as
those seeking extension of stay or change of status, are self-
sufficient, so that they do not need public benefits to become self-
sufficient.
Comment: Some commenters provided input on the temporary nature of
public benefits as they relate to future self-sufficiency. Commenters
expressed a belief the rule's core assumption was that people dependent
on the Government for subsistence will remain that way indefinitely.
Response: DHS disagrees that the rule inherently assumes that
people who rely in the government for assistance rather than relying on
their own capabilities and the resources of their families, sponsors,
and private organizations will remain that way indefinitely. As noted
above, neither section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), nor
this final rule, assess whether an alien subject to the public charge
ground of inadmissibility will remain a public charge indefinitely.
Rather, the statute and the rule assess whether an alien is likely at
any time in the future to become a public charge. An alien may be
likely in the future to become a public charge in the future without
remaining a public charge indefinitely. For example, a person could
receive Medicaid for a number of years and then obtain employment that
provides health insurance, avoiding the further need for Medicaid.
Comment: A commenter stated that changing the standard from
``primarily dependent'' upon cash assistance to ``likely at any time in
the future to receive one or more public benefits'' will cause an
individual to risk his or her immigration status when enrolling in
specific programs. The commenter stated that this is problematic in
part because aliens enroll in such programs consistent with government
policy, and sometimes with the Government's encouragement. Another
commenter stated that the INA includes the phrase ``likely to become a
public charge'' but the proposed rule ``defines `public' and `charge'
as separate words, disconnected from each other or from the fact that
the phrase also requires a likelihood that the person `become' a public
charge, as opposed to a likelihood that he or she will engage in a
specific act.'' The commenter indicated that the proposed approach to
``likely at any time to become a public charge'' departs from the plain
meaning of the phrase, ``likely to become a public charge'' in the INA,
unnecessarily discarding long-standing and well-developed fairness;
relies on an inaccurate measure to predict whether an individual is
likely to become a public charge; will eviscerate the totality of
circumstances standard; is inefficient; not cost effective; and
negatively impacts applicants, the agency, and the economy.\328\ The
commenter also questioned the focus on public benefits, indicating the
case law was based on being ``dependent on support'' rather than
focused on the likelihood of receiving a benefit that costs the
government some amount of money. The commenter said changing the
standard will deter immigrants from pursuing expensive adjustment of
status applications if they fear they will be denied, thus forfeiting
the corresponding employment authorization that permits access to
better-paying jobs unavailable to unauthorized workers. The commenter
concluded that such a result thwarts the purported self-sufficiency
goals of the proposed rule.
---------------------------------------------------------------------------
\328\ The commenter also indicates that the approach is
inefficient, not cost effective, and negatively impact applicants,
the agency and the economy.
---------------------------------------------------------------------------
Response: DHS disagrees with the commenters' assessment. As
outlined in the NPRM, the approach suggested by INS in the 1999 NPRM
and the 1999 Interim Field Guidance does not preclude DHS from
suggesting a different approach. As DHS laid out in the NPRM, DHS's
interpretation is consistent with the statutory wording which requires
a public charge assessment that is prospective in nature, and made at
the time of the application for a visa, admission, or adjustment of
status.'' \329\ DHS understands that certain individuals present in the
United States may be impacted by this rule, and therefore hesitant to
apply for adjustment of status. However, given the limited number of
aliens present in the United States eligible for public benefits under
PRWORA, DHS does not believe that the impact is as extensive as alleged
by the commenters. Finally, as explained in the NPRM, the receipt of
public benefits does not automatically render an alien inadmissible
based on public charge; the determination is always based on the
totality of the alien's circumstances.
---------------------------------------------------------------------------
\329\ DHS notes the statutory wording includes the wording ``at
any time''--the commenter omitted the language when asserting that
the interpretation is not consistent with the plain wording of the
statute.
---------------------------------------------------------------------------
[[Page 41353]]
Comment: Several commenters provided feedback on the comparison
between public benefits used by non-citizens and native-born residents.
A commenter stated that a study concluded that non-citizen households
have much higher use of food programs, Medicaid and cash programs
compared to households headed by native-born citizens and therefore, a
reform of the public charge doctrine is needed. Other commenters
stated, providing statistics in support, that immigrants access
benefits for which they are eligible at a far lower rate than native-
born residents, suggesting that access to public benefits does not make
immigrants more of a public charge than native-born residents.
A commenter stated that if the public charge rule were applied to
native born citizens, it would exclude one in three U.S. born citizens,
whereas the current rule would exclude one in twenty. Similarly,
another commenter indicated that the definition would mean that most
native-born, working-class U.S. citizens are or have been public
charges and that substantial numbers of middle-class Americans are or
have been public charges. A commenter stated that according to the
MPI's recent analysis, about 69 percent of recent lawful permanent
residents have at least one factor that would count against them under
the new rule, as opposed to just three percent of noncitizens who make
use of cash benefits under the existing standard.
Response: The proposed rule's analysis of public benefits receipt
among citizens and noncitizens was meant to inform public understanding
of the proposal. DHS need not resolve competing claims regarding the
rates of public benefits use by various populations, because the
primary basis for the NPRM is a revised interpretation of the term
public charge, as informed by the statement of congressional policy in
PRWORA. The proposal did not rest on a specific level of public
benefits use by particular categories of individuals or households.
DHS notes, however, that the analysis in the NPRM included only a
limited number of programs, and did not assume that eligibility for
public benefits necessarily meant enrollment. Furthermore, the analysis
concerned use by individuals and not households.
Additionally, this rulemaking does not apply to U.S. citizens. Even
though some U.S. citizens would fall under the receipt threshold in the
public charge definition, this fact is not relevant for the purposes of
this rule, as the public charge ground of inadmissibility applies to
aliens who are seeking a visa, admission, or adjustment of status, not
U.S. citizens. The purpose of this rule is to better ensure that aliens
who enter the United States or remain in the United States are self-
sufficient.
Statistics on the use of public benefits by non-citizens compared
to the use of citizens are not indicative of an individual alien's
self-sufficiency. Even though the use of public benefits by noncitizens
may be lower than the native-born population for a given benefit, an
alien may still qualify and receive public benefits in the future based
on his or her particular circumstances and therefore may be likely to
become a public charge. Similarly, it is immaterial whether the
definition of ``public charge'' in the rule would affect one in twenty
U.S. citizens or one in three. The relevant question is whether the
rule's definition of public charge is consistent with the statute. DHS
believes that it is consistent with the statute.
Comment: Commenters stated that immigrants use public benefits to
escape the poverty cycle, using benefits as a ladder to prevent them
from becoming public charges. Other commenters stated that the rule is
self-defeating, because although DHS prefers self-sufficient families
and individuals, the proposed rule dissuades individuals from using
public benefits in order to become self-sufficient and thus enhances
financial barriers. Many commenters said that those eligible for
benefits are entitled to avail themselves of government benefits and
should be able to do so without shame or guilt. Commenters stated that
when eligible individuals receive such benefits, the outcomes are
frequently better for the United States and the economy. Several
commenters stated that the United States has always been open to those
who needed assistance, and given that that this country was founded on
a nation of immigrants, a commenter indicated that it was the
Government's responsibility to create policies that reflect the values
of equal opportunity and humanitarian support. Another commenter
indicated that even under existing policy, the United States has always
integrated immigrants sufficiently, such that they become self-
sufficient and contributing members of U.S. society.
Response: With this public charge inadmissibility rule, DHS neither
seeks to stigmatize receipt of public benefits nor seeks to preclude an
individual from seeking public benefits. DHS appreciates the input on
the effect of public benefits payments and the role these benefits play
in becoming self-sufficient, and on the economy as a whole. DHS does
not dispute these positive impacts of public benefits on an
individual's long-term self-sufficiency, or the importance of these
programs and their goals, including the integration of immigrants. DHS
also does not dispute that benefits programs may produce more equal
opportunities and provide humanitarian support, and does not intend to
in any way diminish these opportunities. DHS, however, is implementing
the congressional mandate to assess a prospective immigrant's
likelihood of becoming a public charge in the future based on the
criteria that Congress put into place. As previously indicated, the INA
does not aim to achieve the same goals as public assistance programs;
in fact, Congress specifically articulated policy goals in PRWORA that
provided that government welfare programs should not be an incentive
for immigrants and that immigrants are expected to be self-sufficient.
Correspondingly, DHS's assessment of whether an alien is likely to
become a public charge is not the same as an assessment of whether an
alien is currently a public charge or whether, at some separate point
in the future, an alien who is likely to become a public charge will
later become self-sufficient.
Comment: Some commenters emphasized not just the self-sufficiency
of the immigrants that use public benefits or programs, but their
contributions to society as a whole. A few commenters stated that
providing support to families is a necessary facet of our economic
system and recipients provide more to communities than the aid they
receive. A commenter stated that a study in Arizona found that
immigrants generate $2.4 billion in tax revenue, which is more than the
$1.4 billion in benefits they used. A few commenters stated that
broadening the definition of public charge ignores the work, taxes, and
other contributions immigrants are making to their communities, and
makes a ``false, negative comparison between immigrants' drain on
public resources compared to other Americans' use.'' A few commenters
said a ``public charge'' is not a person who uses government services
that are funded via taxes which immigrants are expected to pay
throughout their lifetime. Commenters also indicated that tying public
benefits to the public charge definition is not appropriate as the
foreign national is working, paying taxes, and contributing to the
welfare of the United States and is entitled to public benefits.
Response: DHS appreciates the commenters' input. DHS did not,
however, make any changes to the
[[Page 41354]]
public charge definition based on these comments. DHS recognizes the
contributions foreign nationals have made to American society as a
whole and to their communities. However, with this rulemaking, DHS
seeks to better enforce the grounds of inadmissibility to ensure that
those seeking admission to the United States are self-sufficient, i.e.,
rely on their own capabilities and the resources of their family,
sponsors, and private organizations.
Finally, DHS disagrees with the commenters who stated that tying
public benefits to the public charge definition is not appropriate for
aliens who are working, paying taxes, and contributing to the welfare
of the United States and entitled to public benefits. Simply because an
alien is working, paying taxes and contributing to the welfare of the
United States does not guarantee an alien's self-sufficiency now or in
the future.
Again, an individual may provide significant benefits to their
communities, including to the tax base, but nonetheless be a public
charge. With this rulemaking, DHS seeks to ensure that those coming to
the United States are self-sufficient and not dependent on the
government for subsistence now or in the future, even if they are
currently contributing to the tax base. Furthermore, the public charge
assessment is an assessment based on the individual's facts and
circumstances; the greater the taxable income and other resources, the
more likely an individual is self-sufficient, and the less likely he or
she is to become a public charge. DHS encourages all applicants to
bring forward any factors and circumstances they believe are relevant
to their adjudication of public charge.
Comment: A commenter suggested that DHS more clearly separate the
definition of public charge from the predictive process by moving any
predictive language, along with any thresholds based on predictive
value, from the definitions in 8 CFR 212 and 214 to a separate section
listing factors to be considered as part of the public charge
inadmissibility determination. The commenter stated that this would
provide a clear separation between the question of what is a public
charge, and whether a person is likely to become a public charge.
Response: With respect to the commenter's suggestion to more
clearly distinguish between the definition of ``public charge'' and the
prospective public charge inadmissibility determination, DHS notes that
as proposed, and as codified in this final rule, DHS has a separate
definition for public charge and public benefits. In this final rule,
DHS has also provided a more detailed definition for ``likely at any
time to become a public charge.'' \330\ DHS believes that the framework
and separate definitions provided with this final rule sufficiently
permit its officers to make sound and reasonable public charge
inadmissibility determinations, as intended by Congress.
---------------------------------------------------------------------------
\330\ See generally 8 CFR 212.21.
---------------------------------------------------------------------------
Comment: A commenter stated that DHS's statutory interpretation of
``public charge'' is flawed. The commenter noted that in the proposed
rule DHS stated that its proposed definition of public charge was
consistent with various dictionary definitions of public charge,
including the current edition of the Merriam-Webster Dictionary, which
defines public charge simply as ``one that is supported at public
expense.'' \331\ The commenter stated that DHS's interpretation is
flawed, because DHS failed to define the term ``support.'' The
commenter stated that ``looking to the Merriam-Webster Dictionary,
which is the dictionary favored by the Supreme Court, `support' is
defined as `pay[ing] the cost of' or `provid[ing] a basis for the
existence or subsistence of.''' \332\ The commenter further stated
that, in turn, ``one who is `supported at the public expense' must be
having needs met entirely or at least nearly entirely by the
government.'' Therefore, the commenter concluded, DHS failed to provide
a justification for how DHS's proposal with its low thresholds for
benefit use comports with that definition. Another commenter cited to
various dictionary definitions of ``charge'' to support the proposition
that the term ``public charge'' means a person with a very high level
of dependence on the government. For instance, the commenter cited the
1828 edition of Webster's Dictionary, which defined ``charge'' as ``The
person or thing committed to another's [sic] custody, care or
management; a trust.'' \333\
---------------------------------------------------------------------------
\331\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51158 (proposed Oct. 10, 2018).
\332\ Merriam-Webster, definition of ``support,'' available at
https://www.merriam-webster.com/dictionary/supported (last visited
July 26, 2019).
\333\ Webster's Dictionary 1828 Online Edition, definition of
``charge,'' available at http://webstersdictionary1828.com/Dictionary/charge (last visited July 26, 2019).
---------------------------------------------------------------------------
A commenter also stated that DHS's proposed statutory
interpretation is at odds with how DHS justified the proposed
thresholds for public benefits use. The commenter explained in defining
``public charge,'' DHS wrote that an individual ``who receives public
benefits for a substantial component of their support and care can be
reasonably viewed as being a public charge.'' \334\ But in justifying
the thresholds, DHS wrote that it ``believes that receipt of such
benefits, even in a relatively small amount or for a relatively short
duration would in many cases be sufficient to render a person a public
charge.'' \335\ Another commenter stated that some households may be
self-sufficient and capable of meeting their basic needs without public
benefits, but nonetheless enroll in such benefits to supplement
available resources.
---------------------------------------------------------------------------
\334\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51158 (proposed Oct. 10, 2018).
\335\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51164 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Response: DHS disagrees with the commenter that Merriam-Webster's
definition of ``support'' compels DHS to abandon the policy proposed in
the NPRM.\336\ The commenter is correct that some of Merriam-Webster's
definitions of ``support'' reference paying the costs of another, or
providing a basis for the existence or subsistence of another. Other
definitions of ``support'' in the same dictionary do not specify a
degree of assistance (for instance, Merriam-Webster's also defines
support as ``assist, help'').\337\
---------------------------------------------------------------------------
\336\ In particular, DHS also disagrees with the commenter who
indicated that DHS's citing to the 1990 edition of Black's Law
Dictionary inappropriate because PRWORA redefined the term public
charge. As explained throughout the NPRM and this final rule, PRWORA
restricted access for aliens to certain benefits but did not define
public benefits.
\337\ See Merriam-Webster Online Dictionary, Definition of
Support, https://www.merriam-webster.com/dictionary/support (last
visited July 26, 2019).
---------------------------------------------------------------------------
But, the public benefits designated under this rule are
specifically designed for the Government to pay the costs of the
beneficiary with respect to basic necessities, i.e., to provide a basis
for the beneficiary's subsistence. This is the case with respect to
cash benefits for income maintenance, Medicaid, SNAP, and all other
designated benefits. DHS believes that its rule is consistent with all
of the aforementioned definitions of ``support'' and especially with
the definition of ``public charge'' as ``one that is supported at
public expense.'' \338\ And for substantially the same reasons, DHS
believes that its rule is broadly consistent with the 1828 Webster's
Dictionary definition of the term ``charge,'' as well. For instance,
the definition cited by the commenter provides an example of
appropriate usage: ``Thus the people of a parish are
[[Page 41355]]
called the ministers [sic] charge.'' Just as a parishioner can be a
``charge'' of minister without being entrusted entirely to their care,
a person can be a ``charge'' of the public if he or she relies on
public benefits to meet basic needs.
---------------------------------------------------------------------------
\338\ Merriam-Webster Online Dictionary, Definition of Public
Charge, https://www.merriamwebster.com/dictionary/public%20charge
(last visited July 8, 2019).
---------------------------------------------------------------------------
Regardless, DHS does not believe that isolated definitions of
``support'' or the word ``charge'' standing alone conclusively
determine the possible range of definitions for the term, public
charge; neither term standing alone is used in section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), and neither term, standing alone, is used in
the definition of ``public charge'' or ``public benefit'' in this rule.
DHS disagrees with the comment that the reference to ``substantial
component'' \339\ makes the statutory interpretation in the NPRM
inconsistent with the justification which references a ``relatively
small amount.'' \340\ The reference to ``substantial component'' was
part of a summary of dictionary definitions and not the basis for the
definition of public charge.\341\ Nonetheless, as discussed elsewhere
in this rule, DHS has revised 8 CFR 212.22 to limit public charge
determinations to benefits received for 12 months in a 36-month period
and is not considering the value of the amount of benefits received.
Finally, DHS rejects the contention that an alien is not a public
charge if the alien does not ``need'' the designated benefits that he
or she or receives. DHS's view is that an alien, who receives
designated benefits under this rule for the specific duration, is a
public charge, whether he or she needs those benefits or not.
---------------------------------------------------------------------------
\339\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51158 (proposed Oct. 10, 2018).
\340\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51164 (proposed Oct. 10, 2018).
\341\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51158 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter stated that DHS should not have cited to the
1990 Black's Law Dictionary's definition of ``public charge,'' because
the edition is out of date and was written pre-PRWORA.
Response: In its NPRM, DHS was attempting to provide a historical
review of the term public charge as defined in various reference
materials. The 1990 edition would have preceded the IIRIRA amendments
by only six years.
Comment: A commenter stated that DHS's recognition that active-duty
U.S. servicemembers would qualify as ``public charges'' under the plain
terms of the proposed rule is proof positive that the proposal is bad
policy. The commenter stated that the exclusion of public benefits
received by servicemembers and their families confirms that the DHS has
set the threshold for ``self-sufficiency''--or ``public charge''--in an
unreasonable way and too high. The commenter stated that in setting the
salary levels for members of the U.S. military, Congress has determined
that the salary levels are sufficient to render our servicemembers
``self-sufficient,'' and therefore the rule conflicts with this
determination. The commenter further stated that employment as an
active-duty member of the U.S. military has long been viewed as an
honorable, stable job that provides a gateway for all individuals in
this country--regardless of race, economic background, social class, or
other forms of difference--to succeed in life. The commenter stated
that the answer is not to exempt active-duty servicemembers from the
``public charge'' regulation, but to embrace a reasonable definition of
``public charge'' so that active-duty servicemembers are not rendered
``public charges.''
Response: Contrary to the commenter's arguments, to the best of
DHS's knowledge there is no indication that Congress considered the
public charge ground of inadmissibility when it created the military
compensation structure, or that the levels of pay afforded to active
duty servicemembers are always adequate to ensure that servicemembers
and their families will be self-sufficient for purposes of our
immigration laws. In the NPRM, DHS recognized that as a consequence of
the unique compensation and tax structure afforded by Congress to
aliens enlisting for military service, some active duty alien
servicemembers, as well as their spouses and children, as defined in
section 101(b) of the Act, 8 U.S.C. 1101(b), may rely on
SNAP[thinsp]and other listed public benefits.\342\ DHS included a
provision for these individuals, as reflected in the proposed rule and
as discussed later in this preamble.
---------------------------------------------------------------------------
\342\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51173 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
a. Threshold Standard
``Primarily dependent'' Based on Cash Public Benefit Receipt or Long-
Term Institutionalization at Government Expense''
Comment: Commenters indicated that DHS, through regulation, cannot
institute a definition that Congress had already squarely rejected. The
commenters noted that Congress, as part of IIRIRA debates, had rejected
a proposal that would have defined a public charge as a person who
receives means-tested public benefits. The commenters indicated that
Congress' rejection of the proposed definitions of public charge and
means-tested public benefit meant that Congress retained the
longstanding meaning of public charge as being primarily dependent on
the government for subsistence.\343\
---------------------------------------------------------------------------
\343\ The commenter indicated that during the debates leading up
to IIRIRA, Congress stripped the bill of a provision defining public
charge as a noncitizen who uses ``means-tested, public benefits,''
meaning ``any public benefit (including cash, medical, housing,
food, and social services) . . . in which eligibility of an
individual, household, or family eligibility unit for such benefit
or the amount of such benefit, or both are determined on the basis
of income, resources, or financial need of the individual household,
or unit.'' See H.R. Rep. No. 104-208, at 144 (Sept. 24, 1996) (sec.
551 of H.R. 2202, proposing 8 U.S.C. 1183a(e)(defining ``means-
tested public benefit''); see id. at 138 (sec. 532 of H.R. 2202,
proposing 8 U.S.C. 1251(a)(5)(C)(99), (D) (defining term ``public
charge'' [to] include[] any alien who receives . . . means-tested
public benefits'); H.R. Rep. No. 104-863, at 564, 690-91 (Sept. 28,
1996) (absence of sec. 532 from prior H.R. 2202); see 142 Cong. Rec.
25868 (Sept. 28, 1996) (noting that sec 532 was stricken and that
proposed subsection (e) to INA section 213A definition ``Federal
means-tested public benefit'' was also stricken). Instead, the
commenter stated, IIRIRA retained the term's longstanding meaning of
primary dependence on the government for subsistence. The commenter
further stated that Congress' rejection of the proposed provision
was an express political choice to ensure that IIRIRA's passage, and
not a clerical change.
---------------------------------------------------------------------------
A commenter questioned DHS's assertion that the proposed definition
of public charge reflects Congress's intent to have aliens be self-
sufficient and not reliant on the government for assistance. The
commenter indicated that the INA does not mention self-sufficiency and
does not list it as a criterion for avoiding a finding of
inadmissibility under public charge. Several commenters stated that the
rule would drastically increase the scope of who would be considered a
public charge to include people who use a much wider range of benefits
and not just those who are primarily dependent on the government for
subsistence. A few commenters stated that the proposed rule's
definition of public charge would equate occasional or temporary use of
benefits and services with primary reliance on benefits. A commenter
agreed with the current standard, in that it does not penalize
individuals from accepting all of the forms of support encompassed
within this rule. A commenter, in considering only primary dependence
on public benefits as the degree of dependency required to sustain a
public charge finding, stated that the standard provides clear and
effective guidelines for adjudicators and applicants without
endangering the lives of immigrant families and children in this
country.
Response: As noted above, although the INA does not mention self-
sufficiency in the context of section
[[Page 41356]]
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), DHS believes that there is a
strong connection between the self-sufficiency policy statements
elsewhere in Title 8 of the United States Code (even if not codified in
the INA itself) at 8 U.S.C. 1601 and the public charge inadmissibility
language in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), which
were enacted within a month of each other.\344\ Of particular
significance and just prior to the passage of the revised public charge
inadmissibility ground in IIRIRA, conference managers noted that the
implementing section ``amends INA section 212(a)(4) to expand the
public charge ground of inadmissibility. Aliens have been excludable if
likely to become public charges since 1882. Self-reliance is one of the
most fundamental principles of immigration law.'' \345\ Previous House
and Senate Judiciary Committee reports included similar statements
addressing self-sufficiency and receipt of public benefits in the
context of public charge.\346\
---------------------------------------------------------------------------
\344\ See Public Law 104-193, section 400, 110 Stat. 2105, 2260
(Aug. 22, 1996) (enacting 8 U.S.C. 1601) and Public Law 104-208,
div. C, sec. 531, 110 Stat. 3009-546, 3009-674 (Sept. 30, 1996)
(amending INA section 212(a)(4), 8 U.S.C. 1182(a)(4)).
\345\ See United States. Cong. House. Committee on the
Conference. Illegal Immigration Reform and Immigrant Responsibility
Act of 1996. 104th Cong. 2nd Sess. H. Rpt. 828, at 240-241 (1996).
https://www.congress.gov/104/crpt/hrpt828/CRPT-104hrpt828.pdf (last
visited 5/9/2019).
\346\ See United States. Cong. House. Committee on the
Judiciary. Immigration in the National Interest Act of 1995. 104th
Cong. 2nd Sess. H. Rpt. 469, pt 1, at 109 (1996). https://www.congress.gov/104/crpt/hrpt469/CRPT-104hrpt469-pt1.pdf (last
visited 5/9/2019). See also United States. Cong. Senate. Committee
on the Judiciary. Immigration Control and Financial Responsibility
Act of 1996. 104th Cong. 2nd Sess. S. Rpt. 249, at 5-7 (1996).
https://www.congress.gov/104/crpt/srpt249/CRPT-104srpt249.pdf (last
visited 5/9/2019.).
---------------------------------------------------------------------------
Furthermore, DHS disagrees that either congressional actions
leading up to IIRIRA or years of precedent mandate the adoption of the
primarily dependent standard. As explained in the NPRM, the statute
does not expressly prescribe a single method to define the level, type,
or duration of public benefit receipt necessary to determine whether an
alien is a public charge or is likely at any time to become a public
charge.\347\ DHS does not interpret the fact that Congress did not
define public charge as ``any alien who receives [means-tested public]
benefits for an aggregate period of at least 12 months'' prior to
enactment of IIRIRA \348\ as meaning DHS is precluded from adopting a
similar definition now.\349\ Rather, DHS views Congress' failure to
define ``public charge'' by statute as an affirmation of what the
Senate Judiciary Committee acknowledged over 50 years ago, i.e., that
the meaning of public charge has been left to the judgment and
interpretation of administrative officials and the courts. More
specifically, that committee found that the determination whether the
alien is a public charge or is likely to become a public charge should
rest within the discretion of immigration officers, because the
elements constituting public charge are so varied.\350\ If Congress had
wanted to conclusively define the term public charge as ``primarily
dependent,'' it could have done so.\351\ DHS also notes that courts
that have examined public charge have generally explained public charge
in the context of dependence or reliance on the public for support
without elaborating on the degree of dependence or reliance required to
be a public charge.\352\
---------------------------------------------------------------------------
\347\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51163-51164 (proposed Oct. 10, 2018).
\348\ United States. Cong. House. Committee on the Conference.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
104th Cong. 2nd Sess. H. Rpt. 828, at 138 (1996). https://www.congress.gov/104/crpt/hrpt828/CRPT-104hrpt828.pdf (last visited
5/9/2019).
\349\ See Competitive Enterprise Inst. v. U.S. Dep't of Transp.,
863 F.3d 917 (D.C. Cir. 2017) (``But `Congressional inaction lacks
persuasive significance because several equally tenable inferences
may be drawn from such inaction, including the inference that the
existing legislation already incorporated the offered change.' ''
(citing Consumer Elecs. Ass'n v. FCC, 347 F.3d 291, 299 n.4 (DC Cir.
2003) (quoting Pension Benefit Guar. Corp. v. LTV Corp., 4966 U.S.
633, 650 (1990))).
\350\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51123 n.21 (proposed Oct. 10, 2018). See also The 1950 Omnibus
Report of the Senate Judiciary Committee, S. Rep. No. 81-1515, at
349 (1950).
\351\ See, e.g., Cyan, Inc. v. Beaver Cty. Emp. Ret. Fund, 138
S. Ct. 1061, 1070 (2018) (explaining that, if Congress had wanted to
deprive state courts of jurisdiction over certain class actions, it
could have easily done so by inserting a provision.).
\352\ See Inadmissibility on Public Charge Grounds, 83 FR 51158
(proposed Oct. 10, 2018).
---------------------------------------------------------------------------
As discussed in the NPRM,\353\ DHS believes that the primary
dependence definition constitutes one permissible, but non-exclusive
way of establishing a bright line for considering public benefit
receipt relative to a public charge determination. Because Congress
already identified certain classes of aliens, including those who are
particularly vulnerable, and has exempted or authorized DHS to exempt
them from the public charge ground of inadmissibility, DHS believes
that with respect to other aliens not similarly protected, the current
approach of excluding receipt of non-cash benefits and only finding to
be inadmissible individuals who are likely to become primarily
dependent on the government, as a policy matter, does not go far enough
in enforcing this ground of inadmissibility.
---------------------------------------------------------------------------
\353\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51163-51164 (proposed Oct. 10, 2018).
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Given that the statute and case law do not prescribe the type or
extent of public benefit receipt that makes an alien a public charge,
DHS believes that benefits designated in this rule are directly
relevant to public charge inadmissibility determinations. These
enumerated public benefits are directed toward meeting the basic
necessities of life through the provision of food and nutrition,
housing, and healthcare.\354\ This basic fact is underscored by the
many comments identifying significant consequences for individuals who
decide to disenroll from these benefits. Ultimately, the public charge
ground of inadmissibility is targeted to individuals who, in the
absence of government assistance, would lack the basic necessities of
life. DHS acknowledges that this rule constitutes a change that will
have a practical impact on aliens covered by this rule; however, it
views the current policy as unduly restrictive in terms of which
benefits are considered for public charge inadmissibility. Therefore,
expanding the list of public benefits to include a broader list of
public benefits that satisfy basic living needs as a policy matter
better enforces this ground of inadmissibility.
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\354\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51159 (proposed Oct. 10, 2018).
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Equally important, given that the statute and case law do not
prescribe the degree or duration of public benefit receipt that make an
alien a public charge, DHS has determined that it is permissible to
adopt a threshold other than the primarily dependent standard. In its
annual reports to Congress on welfare indicators and risk factors, HHS
explains that defining welfare dependence and developing consensus
around a single measure of welfare dependence are difficult and
adopting any definition of welfare dependence has its limitations and
represents a choice of demarcation beyond which someone is or will be
considered dependent.\355\ In HHS's efforts to examine the range of
dependence from complete long-term dependence to total self-
sufficiency, HHS acknowledges that
[[Page 41357]]
mere public benefit receipt is not a good measure of dependence \356\
but that: ``Welfare dependence, like poverty, is a continuum, with
variations in degree and in duration.'' \357\ As HHS explains, an
individual may be more or less dependent based the share of total
resources derived from public benefits or the amount of time over which
the individual depends on the public benefit. As HHS further
elaborates, ``A summary measure of dependence . . . as an indicator for
policy purposes must have some fixed parameters that allow one to
determine [who] should be counted as dependent, just as the poverty
line defines who is poor under the official standard.'' \358\ In this
context, DHS has determined that it is permissible to adopt a uniform
duration threshold so long as the threshold has fixed parameters to
allow DHS to determine who is considered a public charge. Accordingly,
as explained further below, DHS has defined ``public charge'' in this
final rule to mean a person who receives the designated benefits for
more than 12 months in the aggregate in any 36-month period. This fixed
standard will assist DHS to determine which aliens are inadmissible as
likely to become a public charge at any time in the future based on the
totality of the alien's circumstances.
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\355\ See U.S. Dep't of Health & Human Servs., Indicators of
Welfare Dependence: Annual Report to Congress, at Foreword and
Chapter II (1997), available at https://aspe.hhs.gov/report/indicators-welfare-dependence-annual-report-congress-1997 (last
visited July 26. 2019). See also U.S. Dep't of Health & Human
Servs., Welfare Indicators and Risk Factors, at I-2 (2015),
available at https://aspe.hhs.gov/report/welfare-indicators-and-risk-factors-fourteenth-report-congress (last visited July 26.
2019).
\356\ See U.S. Dep't of Health & Human Servs., Indicators of
Welfare Dependence: Annual Report to Congress, at Chapter II (1997),
available at https://aspe.hhs.gov/report/indicators-welfare-dependence-annual-report-congress-1997 (last visited July 26. 2019).
\357\ See U.S. Dep't of Health & Human Servs., Welfare
Indicators and Risk Factors, at I-2 (2015), available at https://aspe.hhs.gov/report/welfare-indicators-and-risk-factors-fourteenth-report-congress (last visited July 26. 2019).
\358\ See U.S. Dep't of Health & Human Servs., Welfare
Indicators and Risk Factors, at I-2 (2015), available at https://aspe.hhs.gov/report/welfare-indicators-and-risk-factors-fourteenth-report-congress (last visited July 26. 2019).
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b. Standards for Monetizable and Non-Monetizable Benefits
Numerical Percentage Threshold
Comment: One commenter supported the explanation in the NPRM that
the 15 percent threshold is an acceptable proxy for benefits use, and
indicated that the 15 percent threshold is ``widely used and thus
arguably more transparent than other alternatives.''
In contrast, many commenters voiced general opposition to the 15
percent threshold, believing that the standards will likely reverse
public health strides communities have made relating to vaccinations,
communicable diseases and nutrition; that benefits amount received at
that threshold level or any level, did not represent an individual's
inability to achieve self-sufficiency; or that the 15 percent threshold
was unfair and unnecessary in scope because the minimal financial
support provided by federally funded benefits did not promote
dependency, but were a safety net for vulnerable families and therefore
should not be linked to threats of deportation.
Commenters stated that DHS had offered no basis for its use of 15
percent as the relevant benchmark for who is a public charge.
Commenters also indicated that DHS's own conclusory assumption that
receipt of this level of funding represents a lack of self-sufficiency
was rebutted by the ample research showing that immigrants pay more
into the United States healthcare system than they take out and that
most immigrants pay taxes. This commenter also indicated that DHS
provided little to no guidance as to how DHS officials would go about
predicting a person's future likelihood of receiving the requisite
amount of benefits and that the use of a specific dollar benchmark
belies the Department's assurances that it will not consider prior
receipt of benefits to be the dispositive factor in public charge
determinations. Another commenter indicated that DHS does not provide
an explanation as to why the quantifiable amount of dependency was set
at 15 percent rather than 50 percent, which would reflect primary
dependency, or even 30 or 40 percent. Citing to United States v.
Dierckman, 201 F.3d 915, 926 (7th Cir. 2000) and Allied-Signal, Inc. v.
Nuclear Reg. Comm'n, 988 F.2d 146, 152 (D.C. Cir. 1993), the commenters
indicated that DHS failed to provide the essential facts upon which the
administrative decision is based. The commenter also stated that DHS's
attempt to justify its public charge definition with existing case law
that, according to DHS, failed to stipulate quantifying levels of
public support required, may have explained DHS's proposal to quantify
the amount, but failed to explain why that quantifiable amount should
be 15 percent of FPG, and not a higher percentage like 30 or 40
percent, or another amount that is less than 51 percent.
Other commenters stated DHS did not provide adequate data to
support using the 15 percent threshold in public charge determinations,
that the threshold was contrary to the spirit of public charge and did
not prove an immigrant is ``primarily dependent'' on government
assistance; and that the standard ignored the economic realities of
low-wage work.
Multiple commenters stated that the 15 percent threshold is too low
or restrictive, and arbitrary. A commenter also equated the threshold
with having no threshold at all and stated that noncitizens will be too
afraid to apply for benefits. Similarly, commenters stated that the 15
percent threshold is particularly low for immigrants living in areas
with a high cost of living, for those receiving cash assistance, or for
those receiving housing assistance, especially in cities or states
where the cost of housing exceeds those detailed in the rule. Some
commenters asserted that the standard should be 50 percent of the FPG,
while other stated that DHS should conduct a sensitivity analysis
comparing the economic impacts of using a 15 percent of the FPG cutoff
versus a 50 percent of the FPG cutoff for benefits before determining
the threshold. A commenter stated that the FPG have long been
criticized for being inadequate and low--failing to take into account,
for example, of geographical variances in cost of living, as well as
expenses that are necessary to hold a job and to earn income (e.g.,
child care and transportation costs). The commenter wrote that given
these well-documented and critical flaws with the FPG, DHS's proposed
thresholds are particularly egregious.
Many commenters provided examples of individuals who would be found
to be public charges under the proposed benefit thresholds, despite
being largely self-sufficient. Several commenters also stated that a
noncitizen receiving slightly less than $5 per day, or roughly $1,800
per year, in benefits would be enough to trigger a public charge
finding. Other commenters stated that a noncitizen family of four
making 250 percent of the federal poverty line could be deemed public
charges if they received $2.50 per person per day, although such a
family would be about 95 percent self-sufficient. A commenter stated
that therefore, DHS's standard to measure self-sufficiency had no
rational connection with actual self-sufficiency. Many commenters cited
studies finding that those who are widely self-sufficient, upwards of
90 percent, but who receive or previously received ten percent of their
income in benefits could be found inadmissible under the proposed
threshold, especially in light of the fact that past receipt counts as
a heavily-weighted factor. Another commenter cited a study indicating
that the rule could effectively ban a family of four making 175 percent
of FPG, but which received $2.50 per day per person in government aid,
even though this family is only receiving 8.6 percent of their income
from the government and is 91.4 percent self-sufficient. A
[[Page 41358]]
commenter also stated that the proposed threshold could have the
perverse effect of discouraging immigrants from accessing benefits they
need to eventually become self-sufficient. One commenter stated that it
would be unreasonable to use the receipt of public benefits in excess
of 15 percent against an individual if the individual received the aid
after an accident or emergency, as such use would not be evidence
indicating that it will happen again. A commenter stated that the
proposed threshold was so low that it would be more of an indicator
that the alien is subject to the inherent uncertainties and exigencies
of life, e.g., if a sponsoring company goes out of business or with the
occurrence of a heart attack or a child developing a disability, that
it would be an indicator of the alien's ongoing dependence on public
benefits. Another commenter stated that a higher threshold would better
keep with the prudence dictated by the precautionary principle. The
commenter wrote that significantly tightening the public benefits
threshold from the old primary dependence paradigm will entail
unanticipated consequences and ought to be conducted slowly.
Many commenters stated that the 15 percent threshold is overly
complicated and would lead to widespread confusion. A commenter said
that because of the low threshold, it would be difficult or impossible
for families to understand how to utilize public safety nets without
becoming a public charge, or to know at the time of an application if a
specific benefit program would meet the 15 percent threshold. A
commenter stated that the proposed cutoff of 15 percent would not serve
to improve clarity when making public charge determinations, but would
instead reduce the number of immigrants whose applications will be
approved.
Response: After considering all of the public comments on the
proposed thresholds for the receipt of public benefits, DHS decided
against finalizing separate thresholds for monetizable and non-
monetizable benefits, including the combination threshold. Instead, DHS
has determined that a better approach from a policy and operational
perspective, and one indicative of a lack of self-sufficiency is a
single duration-based threshold, which this rule incorporates directly
into the definition of public charge,\359\ and the determination of
likely to become a public charge.\360\
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\359\ See 8 CFR 212.21(a).
\360\ See 8 CFR 212.22(a).
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Therefore, under this final rule, DHS will consider an alien likely
to become a public charge at any time in the future if the alien is
more likely than not to receive public benefits for longer than 12
months in the aggregate in any 36-month period. As with the proposed
rule, current receipt or past receipt of more than 12 months of public
benefits, in the aggregate, in any 36-month period will not necessarily
be dispositive in the inadmissibility determination; i.e., in
determining whether the alien is likely to become a public charge at
any time in the future, but will be considered a heavily weighted
negative factor in the totality of the alien's circumstances.
By moving the threshold standard into the ``public charge''
definition, DHS intends to alleviate confusion about the threshold for
being a public charge. As part of the inadmissibility determination, an
officer will review the likelihood of whether an alien will receive
public benefits over the durational threshold. The ``public benefit''
definition will only list the specific programs considered and the list
of exclusions. Separating concepts of ``public charge'' and ``public
benefits'' also clarifies that DHS will consider in the totality
whether an alien has applied for, received, or been certified or
approved to receive any public benefits, as defined in 8 CFR 212.21(b),
in assessing whether he or she is likely to become a public charge as
part of the totality of the circumstances.
DHS believes that this approach is particularly responsive to
public comments that communicated concerns about the complexity of the
bifurcated standard and lack of certainty. As revised, this
determination includes the consideration of public benefit application,
certification, or receipt over any period of time. However, as
indicated above, the alien's application for, certification, or receipt
of public benefits will only be weighted heavily in certain
circumstances, namely where such application, certification, or receipt
of public benefits exceeded 12 months in the aggregate within any 36-
month period, beginning no earlier than 36 months prior to the alien's
application for admission or adjustment of status on or after the
effective date. Similarly, DHS has revised the public benefit condition
that applies in the context of an extension of stay or change of status
application or petition, to include this new standard as well.
Valuation
Comment: DHS also received comments on the valuation of monetizable
benefits. A commenter acknowledged that the proposed rule including
provisions for pro rata attribution of monetizable benefits (such that
benefits granted to a multi-person household would not all be
attributed to a single person), but stated that the proposed rule was
confusing, and that families are highly likely to avoid seeking social
services entirely, rather than rely on the valuation formulas.
Some commenters suggested that it would be unreasonable to refer to
FPG for a household of one, when evaluating an alien who is part of a
large household. One commenter wrote that the correlation between
household receipts of public benefits in absolute dollar terms and the
likelihood that one member of that household will become a public
charge can be assumed to be stronger, the smaller the size of the
household. For a given level of receipt, a larger household is more
likely to be self-sufficient. The commenter suggested that DHS set the
threshold for monetary receipt based on actual household size. The
commenter did not address the fact that the proposed valuation
methodology called for prorating the benefit valuation based on
household size.
Response: DHS appreciates these comments. Because DHS is
eliminating the percentage-based threshold for monetizable benefits, as
well as the combination threshold, DHS is not making any adjustments to
the application of the FPG to the valuation of monetizable benefits
because the entire valuation concept is being eliminated from the rule.
Similarly, because DHS will not be monetizing public benefits, the
household size applicable to the FPG (i.e., the household size of one)
is no longer relevant. That said, DHS does not believe that public
benefits received by a member of the alien's household would serve as a
reliable measure of the likelihood of an alien becoming a public charge
at any time in the future because the receipt of benefits by a
household member does not indicate that the applicant is likely to
receive public benefits as well. Therefore, if someone in the household
other than the applicant is receiving the public benefit, DHS will not
consider receipt of the public benefit. Similarly if the recipient is a
member of the alien's household, any income derived from such public
benefit will be excluded from the calculation of household income.
However, because DHS is eliminating the percentage-based threshold for
monetizable benefits and instead establishing a single, duration-based
threshold, the length of time an alien receives any public benefit, as
defined in 8 CFR 212.21(b), will be considered in the totality of the
circumstances,
[[Page 41359]]
regardless of whether the alien is the only person in the household
receiving the benefit, or is one of the people receiving the same
benefit. This differs from the approach in the proposed rule where
valuation of certain benefits that are based on the household size
(e.g., SNAP) would have been proportionally attributed to the
alien.\361\
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\361\ In the NPRM, DHS had proposed calculating the value of the
benefit attributable to the alien in proportion to the total number
of people covered by the benefit in determining the cumulative value
of one or more monetizable benefits. See proposed 8 CFR 212.24,
Valuation of Monetizable Benefits.
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Comment: DHS also received comments on the non-monetizable benefits
standards. One commenter stated that the 12- and 9-month minimum use
thresholds are acceptable proxies for being a public charge, but the
NPRM provides almost no explanation of how or why DHS determined that
the 12- and 9-month threshold for non-monetizable benefits was
indicative that an alien is a public charge. The commenter said a more
detailed analysis of the non-monetizable benefits threshold in a final
rule would go a long way to legitimizing this rulemaking. Many
commenters either voiced general opposition to the 12-month standard
for non-monetizable benefits or indicated that the standard was
unreasonable in the context of specific non-monetizable benefits, such
as Medicaid (which according to the commenters is designed for
continuous enrollment) and public housing (which frequently requires a
year-long lease agreement. A commenter stated that the threshold would
not be well understood by the public, or provide sufficient assurance
that a brief period of enrollment would be worthwhile. For instance,
with respect to Medicaid, if the alien learned about the thresholds at
all, she or he might still be concerned about signing up for a brief
period of coverage, fearing that they might experience more acute
healthcare needs later and should refrain from using Medicaid until or
unless that occurred. The alien might also know that Medicaid
eligibility periods typically last a year and may be unclear about how
that period can be shortened. Another commenter stated that the 12-
month standard is arbitrary and would produce ``absurd results'' when
applied in a real-world context. For example, someone with cancer might
use Medicaid to help cover their expenses, and the 12-month standard
could cause them to discontinue care too early, leading to devastating
consequences. Commenters stated that using duration to determine
dependency is particularly problematic in the context of Medicaid,
where the threshold does not allow DHS to determine the extent to which
the benefit was used. A commenter suggested this threshold would be
prohibitive for all households participating in federal housing
programs, regardless of immigration status. The commenter also stated
that durational receipt measures are meaningless in the context of
health coverage since duration does not represent the extent of
benefits actually used. Commenters stated that DHS's public charge
assumption rests on arbitrary time periods for receiving benefits.
Without citing to the source of information, one commenter stated that
the average length a person is on SNAP is 8-10 months, Medicaid
assistance for children is provided on average for 28 months, and the
average length of receipt for public housing for families is no more
than 4 years. Similarly without attributing the source of information,
a commenter said a 20-year analysis makes clear that seemingly
dependent immigrants will become self-sufficient and productive in the
long-term. One commenter stated strong opposition to the double
counting of months where more than one benefit is received.
Response: DHS has decided to adopt a uniform duration standard for
the following reasons. First, the new standard is simpler and more
administrable than the proposed approach for monetizable and non-
monetizable benefits. It eliminates the need for complicated
calculations and projections related to the 15 percent of FPG
threshold. By eliminating the 15 percent of FPG threshold for
monetizable benefits, DHS is also able to eliminate the complicated
assessment for the combination of monetizable and non-monetizable
benefits and the provision for the valuation of monetizable benefits,
including the need to prorate such benefits.
Second, the standard is consistent with DHS's interpretation of the
term ``public charge.'' DHS believes that public benefit receipt for
more than 12 cumulative months over a 36-month period is indicative of
a lack of self-sufficiency. The threshold is intended to address DHS's
concerns about an alien's lack of self-sufficiency and inability to
rely on his or her own capabilities as well as the resources of family,
sponsors, and private organizations to meet basic living needs. DHS
believes that an alien who receives the designated public benefits for
more than 12 months in the aggregate during a 36-month period is not
self-sufficient. Receipt of public benefits for such a duration exceeds
what DHS believes is a level of support that temporarily or nominally
supplements an alien's independent ability to meet his or basic living
needs. Although an alien who receives the designated public benefits
for more than 12 months in the aggregate may soon disenroll, the fact
that she or he received such support for such a substantial period of
time establishes that they are a public charge until such disenrollment
occurs. DHS would consider the alien's request to disenroll in the
totality of the circumstances review.
Ample basis exists for using a duration-based standard even if, as
commenters noted, neither the 1999 Interim Field Guidance nor any other
source provides an authoritative basis for a specific duration-based
standard. As indicated in the NPRM, under the 1999 Interim Field
Guidance, the duration of receipt is a relevant factor with respect to
covered benefits and is specifically accounted for in the guidance's
inclusion of long-term institutionalization at government's
expense.\362\ But the 1999 Interim Field Guidance did not create a
standard by which an alien's long-term reliance on public benefits
would indicate a lack of self-sufficiency. In addition, HHS has
repeatedly cited and measured the duration of time individuals receive
means-tested assistance as an indicator
[[Page 41360]]
of welfare dependence in its annual reports on welfare dependence,
indicators, and risk factors.\363\ HHS states, ``The amount of time
over which [an individual] depends on welfare might also be considered
in assessing [the individual's] degree of dependence.'' \364\
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\362\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51165 (proposed Oct. 10, 2018). In assessing the probative value of
past receipt of public benefits, ``the length of time . . . is a
significant factor.'' 64 FR 28689, 28690 (May 26, 1999) (internal
quotation marks and citation omitted). The NPRM also noted that in
the context of both state welfare reform efforts and the 1990s
Federal welfare reform, Federal Government and state governments
imposed various limits on the duration of benefit receipt as an
effort to foster self-sufficiency among recipients and prevent long-
term or indefinite dependence. States have developed widely varying
approaches to time limits. Currently, 40 states have time limits
that can result in the termination of families' welfare benefits; 17
of those states have limits of fewer than 60 months. See, e.g.,
MDRC, formerly Manpower Demonstration Research Corporation, Welfare
Time Limits State Policies, Implementation, and Effects on Families.
https://www.mdrc.org/sites/default/files/full_607.pdf (last visited
July 26, 2017). Similarly, on the Federal level, PRWORA established
a 60-month time limit on the receipt of TANF. See Temporary
Assistance for Needy Families Program (TANF), Final Rule; 64 FR
17720, 17723 (Apr. 12, 1999) (``The [Welfare to Work (WtW)]
provisions in this rule include the amendments to the TANF
provisions at sections 5001(d) and 5001(g)(1) of Public Law 105-33.
Section 5001(d) allows a State to provide WtW assistance to a family
that has received 60 months of federally funded TANF assistance . .
.''). These time limits establish the outer limits of how long
benefits are even available to a beneficiary as a matter of
eligibility for the public benefit, and therefore how long an
individual can receive those benefits. But DHS cannot use these time
limits to establish a specific standard to determine how long an
individual can receive such benefits while remaining self-sufficient
for purposes of the public charge inadmissibility determination.
\363\ See, e.g., U.S. Dep't of Health & Human Servs., Welfare
Indicators and Risk Factors (2014-2015) and U.S. Dep't of Health &
Human Servs., Indicators of Welfare Dependence (1997-1998, 2000-
2013), available at https://aspe.hhs.gov/indicators-welfare-dependence-annual-report-congress (last visited July 26. 2019).
\364\ See U.S. Dep't of Health & Human Servs., Welfare
Indicators and Risk Factors, at I-2 (2015), available at https://aspe.hhs.gov/system/files/pdf/76851/rpt_indicators.pdf (last visited
July 26. 2019).
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This rule aims to create such a standard, in order to provide
aliens and adjudicators with a bright-line rule upon which they can
rely. The proposed rule cited longitudinal studies of welfare receipt,
such as the Census Bureau's Dynamics of Economic Well-Being study,\365\
and the welfare leaver study.\366\ Both studies offer insight into the
length of time that recipients of public benefits tend to remain on
those benefits, and lend support to the notion that this rule's
standard provides meaningful flexibility to aliens who may require one
or more of the public benefits for relatively short periods of time,
without allowing an alien who is not self-sufficient to avoid facing
public charge consequences.\367\
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\365\ See Shelley K. Irving & Tracy A. Loveless, U.S. Census
Bureau, Dynamics of Economic Well-Being: Participation in Government
Programs, 2009-2012: Who Gets Assistance? 10 (May 2015), available
at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf (last visited July 26, 2019).
\366\ See Lashawn Richburg-Hayes & Stephen Freedman, A Profile
of Families Cycling On and Off Welfare 4 (Apr. 2004), available at
https://aspe.hhs.gov/system/files/pdf/73451/report.pdf (last visited
July 26, 2019).
\367\ See Shelley K. Irving & Tracy A. Loveless, U.S. Census
Bureau, Dynamics of Economic Well-Being: Participation in Government
Programs, 2009-2012: Who Gets Assistance? 10 (May 2015), available
at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf (last visited July 26, 2019). See also Lashawn
Richburg-Hayes & Stephen Freedman, A Profile of Families Cycling On
and Off Welfare 4 (Apr. 2004), available at https://aspe.hhs.gov/system/files/pdf/73451/report.pdf (last visited July 26, 2019).
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For example, according to the Census Bureau, the largest share of
participants (43.0 percent) who benefited from one or more means-tested
assistance programs in the 48 months from January 2009 to December
2012, stayed in the program(s) between 37 and 48 months. By contrast,
31.2 percent of participants in such benefits stayed in the program(s)
for between one and 12 months, and the remaining 25.8% of participants
stayed in the program for between 13 and 36-months.\368\ The study thus
showed that a significant portion of the benefits-receiving population
ended their participation within a year. In fact, the study compared
participants' months of program participation across various income and
age ranges, racial groups, family types, levels of educational
attainment, and types of employment status, and found that nearly
across the board, there was a relatively large group of people who
participated for between one and 12 months, followed by relatively
smaller groups who participated for between 13 and 24 months and
between 25 and 36 months, respectively, followed by a relatively large
group of people who participated for between 37 and 48 months.
Similarly, an earlier study showed that across a 24-month period of
study, those who were enrolled in one or more major assistance programs
(approximately 25.2 percent of the overall population studied) were
most likely to be enrolled for the entire 24-month period (10.2
percent).\369\ But a substantial portion of the population enrolled in
such programs only participated between one and 11 months (8.5 percent)
or 12 to 23 months (6.5 percent).\370\ All of this suggests that a 12-
month standard is not absurd, as indicated by commenters, but in fact
accommodates a significant proportion of short-term benefits use, while
also providing a simple and accessible touchstone (more than a year)
and an easily administrable cutoff that is a midpoint between the
cutoffs established in the studies (36 months).
---------------------------------------------------------------------------
\368\ See Shelley K. Irving & Tracy A. Loveless, U.S. Census
Bureau, Household Economic Studies, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009-2012: Who Gets
Assistance? 4 (May 2015), available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf (last
visited July 26, 2019). This report includes TANF, General
Assistance (GA), SSI, SNAP, Medicaid, and housing assistance as
major means-tested benefits.
\369\ The programs included in the study were TANF, GA, SNAP,
SSI, and Housing Assistance, all of which are covered to at least
some degree by this rule.
\370\ See Jeongsoo Kim, Shelley K. Irving, & Tracy A. Loveless,
U.S. Census Bureau, Dynamics of Economic Well-Being: Participation
in Government Programs, 2004 to 2007 and 2009--Who Gets Assistance?
4 (July 2012), available at https://www2.census.gov/library/publications/2012/demo/p70-130.pdf (last visited July 26, 2019).
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The ``welfare leaver'' study referenced above also provides support
for a 12-month standard. Although most people who leave welfare
programs work after they leave those programs, people may come back to
receive additional public benefits.\371\ In the welfare leaver study,
researchers found that on average, ``cyclers'' received 27 months of
cash assistance within the study's four-year observation period,
compared with an average of 12 months for short-term recipients and 40
months for long-term recipients.\372\
---------------------------------------------------------------------------
\371\ See Lashawn Richburg-Hayes & Stephen Freedman, A Profile
of Families Cycling On and Off Welfare ES-1 (Apr. 2004), available
at https://aspe.hhs.gov/system/files/pdf/73451/report.pdf (last
visited July 26, 2019).
\372\ For most analyses in the report, the report divides the
samples into three key outcome groups, based on each sample member's
pattern of welfare receipt: Cyclers, short-term recipients, and
long-term recipients. The report states that this grouping reflects
definitions used in the literature, combined with an examination of
the full sample. The report defines a cycler as someone who had 3 or
more spells of welfare receipt during the 4-year observation period.
The report defines a short-term recipient as someone who had 1 or 2
spells and a total of up to 24 months of welfare receipt during the
observation period. The report defines long-term recipients as
sample members with 1 or 2 spells and a total of 25 to 48 months of
welfare receipt during the observation period. See Lashawn Richburg-
Hayes & Stephen Freedman, A Profile of Families Cycling On and Off
Welfare 22 (Apr. 2004), available at https://aspe.hhs.gov/system/files/pdf/73451/report.pdf (last visited July 26, 2019).
---------------------------------------------------------------------------
DHS acknowledges that the duration standard is imperfect, because
it is an exercise in line-drawing, it does not monetize public benefit
receipt, and it is applied prospectively based on the totality of the
alien's circumstances instead of an algorithm or formula. In some
cases, DHS may find an alien admissible, even though the alien may
receive thousands of dollars, if not tens of thousands of dollars, in
public benefits without exceeding the duration threshold at any time in
the future. DHS recognizes this scenario is plausible based on
estimates of Medicaid costs and receipt of Medicaid only. For example,
the Office of the Actuary in the Centers for Medicare and Medicaid
Services estimated that annual Medicaid spending per enrollee ranged
from approximately $3,000-$5,000 for children and adults to
approximately $15,000-$20,000 for the aged and persons with
disabilities in Fiscal Year 2014.\373\ DHS's analysis of SIPP data
shows that among individuals receiving SSI, TANF, GA, SNAP, Section 8
Housing Vouchers, Section 8 Rent Subsidy, or Medicaid in 2013, over 32
percent were receiving Medicaid only on average each month.\374\
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\373\ See United States Department of Health and Human Services,
Centers for Medicare and Medicaid Services, the Office of the
Actuary, 2017 Actuarial Report of Financial Outlook for Medicaid,
Table 21, page 61, at https://www.cms.gov/Research-Statistics-Data-and-Systems/Research/ActuarialStudies/Downloads/MedicaidReport2017.pdf (last visited July 26, 2019).
\374\ DHS analysis of Wave 1 of the 2014 Panel of the Survey of
Income and Program Participation.
---------------------------------------------------------------------------
In other cases, DHS may find an alien inadmissible under the
standard, even though the alien who exceeds the duration threshold may
receive only hundreds of dollars, or less, in public
[[Page 41361]]
benefits annually. A DHS analysis of SIPP data related to public
benefit receipt and amounts indicates that among the 25 percent of SNAP
recipients in 2013 who only received SNAP (rather than SNAP and some
other benefit), eight percent lived in households receiving between $11
and $50 per month, compared to 80 percent of recipients who lived in
households receiving over $150 per month. Among the 3 percent of TANF
recipients who only received TANF in 2013, nearly eight percent of
recipients lived in households receiving between $11 and $50 per month
compared to 60 percent of recipients who lived in households receiving
over $150 per month. And among the 26 percent of TANF, SNAP, GA, and
SSI recipients who only received one of those public benefits, six
percent of recipients lived in households receiving between $11 and $50
per month compared to 80 percent of recipients who lived in households
receiving over $150 per month. Among TANF, SNAP, GA, and SSI recipients
receiving any of those public benefits, four percent lived in
households receiving between $11 and $50 per month cumulatively across
all such benefits received, compared to 87 percent of recipients who
lived in households receiving over $150 per month.\375\
---------------------------------------------------------------------------
\375\ DHS analysis of Wave 1 of the 2014 Panel of the Survey of
Income and Program Participation.
---------------------------------------------------------------------------
These potential incongruities are to some extent a consequence of
having a bright-line rule that (1) provides meaningful guidance to
aliens and adjudicators, (2) accommodates meaningful short-term and
intermittent access to public benefits, and (3) does not excuse
continuous or consistent public benefit receipt that denotes a lack of
self-sufficiency during a 36-month period.\376\ At bottom, DHS believes
that this standard appropriately balances the relevant considerations,
and that even an alien who receives a small dollar value in benefits
over an extended period of time can reasonably be deemed a public
charge, because of the nature of the benefits designated by this rule.
---------------------------------------------------------------------------
\376\ Cf., e.g., Harris v. FCC, 776 F.3d 21, 28-29 (D.C. Cir.
2015) (``An agency does not abuse its discretion by applying a
bright-line rule consistently in order both to preserve incentives
for compliance and to realize the benefits of easy administration
that the rule was designed to achieve.''); Turro v. FCC, 859 F.2d
1498, 1500 (D.C. Cir. 1988) (``Strict adherence to a general rule
may be justified by the gain in certainty and administrative ease,
even if it appears to result in some hardship in individual
cases.'').
---------------------------------------------------------------------------
DHS also notes the operational difficulties associated with a
monetary threshold particularly given that several of the benefits
under consideration are benefits received by a family unit and the
public charge determination is, by statute, an individual
determination. For example, in the case of SNAP or a housing voucher it
would be difficult to meaningfully assign proportions of the group
benefit to individuals in the family, who may benefit in different
amounts or account for less or more than a pro rata share of the
benefit, from the benefits-granting's agency's perspective. At its
core, the prospective determination seeks to determine, based on the
totality of the circumstances, the likelihood of an individual to use
the public benefits enumerated in this rule to support themselves at
any point in the future. This is a determination more aptly made by
examining a pattern of behavior than by a monetary threshold which
could represent a lump sum payment due to a one-time need. DHS believes
that short-term benefits use may not be as reliable an indicator of an
alien's lack of self-sufficiency, and believes that longer-term
benefits use serves as a better indicator.
Of course, if an alien who receives a small dollar value in public
benefits over an extended period of time disenrolls from a benefit and
later applies for admission or adjustment of status, she or he will not
necessarily be inadmissible or ineligible for adjustment of status by
virtue of such past receipt. This is because, as noted throughout this
preamble, the public charge inadmissibility determination is
prospective in nature, and depends on DHS's evaluation of the totality
of the circumstances. Moreover, the amount of past benefit receipt may
be considered in the totality of the circumstances. For instance, all
else being equal, an alien who previously received $15 in monthly SNAP
benefits for a lengthy period of time, but has since disenrolled, is
less likely to require such benefits in the future, as compared to an
alien who only recently disenrolled from a $100 SNAP benefit monthly,
or who recently left public housing after a lengthy stay.
Finally, DHS believes that it is appropriate to aggregate the 12
months, inasmuch as the aggregation ensures that aliens who receive
more than one public benefit (which may be more indicative of a lack of
self-sufficiency, with respect to the fulfillment of multiple types of
basic needs) reach the 12-month limit faster. Namely, DHS believes that
receipt of multiple public benefits in a single month is more
indicative of a lack of self-sufficiency than receipt of a single
public benefit in a single month because receipt of multiple public
benefits indicates the alien is unable to meet two or more basic
necessities of life. This is not an uncommon occurrence. For example,
DHS's analysis of SIPP data reveals that among individuals who received
the enumerated public benefits in 2013, at least nearly 35 percent of
individuals received two or more public benefits on average per month.
Table 7 provides additional context with respect to the concurrent
receipt of multiple benefits.
Table 7--Public Benefit Receipt Combinations Among Individuals Receiving
One or More Enumerated Public Benefits (Average per Month), 2013
------------------------------------------------------------------------
Percent of
individuals
Program with DHS view
combination
------------------------------------------------------------------------
Individuals Receiving Public 100.0
Benefits.
Medicaid only..................... 32.5 Meeting healthcare
needs.
Medicaid and Supplemental 22.8 Meeting healthcare
Nutrition Assistance Program and food/nutrition
(SNAP). needs.
SNAP Only......................... 13.1 Meeting food/
nutrition needs.
Section 8 Rental Assistance Only.. 3.6 Meeting housing
needs.
Medicaid, SNAP, and Supplemental 3.2 Meeting healthcare,
Security Income (SSI). food/nutrition, and
cash assistance
needs.
Medicaid, SNAP, and Section 8 3.0 Meeting healthcare,
Rental Assistance. food/nutrition, and
housing needs.
Medicaid and SSI.................. 2.9 Meeting healthcare
and cash assistance
needs.
[[Page 41362]]
Medicaid, SNAP, Section 8 Housing 2.8 Meeting healthcare,
Vouchers, and Section 8 Rental food/nutrition, and
Assistance. housing needs.
SSI Only.......................... 2.1 Meeting cash
assistance needs.
All other combinations............ 13.3
------------------------------------------------------------------------
Note: Because of rounding, percentages may not sum to 100.0.
Source: This table was derived from DHS analysis of Wave 1 of the 2014
Panel of the Survey of Income and Program Participation.
DHS does not believe that the threshold should operate in a way
that effectively ignores receipt of multiple benefits in a single month
and results in differential treatment for an alien who receives one
designated benefit in one month and another in the next month, as
compared to an alien who receives each of those designated benefits in
the same month. DHS appreciates the references one commenter makes to
average durations of receipt for certain benefits but notes that the
commenter's statements could not be evaluated without a reference to a
study or sources data.
DHS strongly disagrees with commenters' assertion that the duration
standard is problematic in the context of Medicaid because the standard
does not take into account the extent to which Medicaid is used. As DHS
explained in the NPRM, Medicaid serves as a last-resort form of health
insurance for people of limited means. Medicaid expenditures are
significant across multiple enrollee groups, and are particularly
pronounced among persons with disabilities and the aged. The Office of
the Actuary in the Centers for Medicare and Medicaid Services, HHS,
most recently reported that Medicaid spending per enrollee in FY 2016
was $3,555 for children, $5,159 for adults, $19,754 for persons with
disabilities, and $14,700 for the aged.\377\ Even if a Medicaid
enrollee claims that he or she did not or will not use Medicaid
benefits (i.e., by going to the doctor or hospital) within a given time
period, the value of Medicaid is not merely the value of claims paid
out. Like any insurance plan, Medicaid protects against future
potential expenses and ensures that enrollees can receive the services
they need. Medicaid coverage constitutes a significant benefit received
by enrollees regardless of direct expenditures, even if states require
enrollees to pay subsidized premiums and pay for cost-sharing
services.\378\ According to the Centers for Medicare and Medicaid
Services, Office of the Actuary, ``beneficiary cost sharing, such as
deductibles or copayments, and beneficiary premiums are very limited in
Medicaid and do not represent a significant share of the total cost of
healthcare goods and services for Medicaid enrollees.'' \379\ Ninety-
five percent of total outlays in 2016 were for medical assistance
payments, such as acute care benefits, long-term care benefits,
capitation payments and premiums, and disproportionate share hospital
(DSH) payments. Capitation payments and other premiums, which include
premiums paid to Medicaid managed care plans, pre-paid health plans,
other health plan premiums, and premiums for Medicare Part A and Part
B, represented 49 percent of Medicaid benefit expenditures in
2016.\380\ Accordingly, the duration of an alien's receipt of non-
monetizable benefits like Medicaid is a reasonable proxy for assessing
an alien's reliance on public benefits. DHS also believes that benefits
received, including Medicaid, over that timeframe likely exceeds a
nominal level of support that merely supplements an alien's independent
ability to meet his or her basic living needs.\381\
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\377\ See United States Department of Health and Human Services,
Centers for Medicare and Medicaid Services, the Office of the
Actuary, 2017 Actuarial Report of Financial Outlook for Medicaid,
Table 21, page 61, at https://www.cms.gov/Research-Statistics-Data-and-Systems/Research/ActuarialStudies/Downloads/MedicaidReport2017.pdf (last visited April 25, 2019).
\378\ Premium means any enrollment fee, premium, or other
similar charge. Cost sharing means any copayment, coinsurance,
deductible, or other similar charge. See 42 CFR 447.51 for
definitions.
\379\ See U.S. Department of Health and Human Services, Centers
for Medicare and Medicaid Services, the Office of the Actuary, 2017
Actuarial Report of Financial Outlook for Medicaid, page 3,
available at https://www.cms.gov/Research-Statistics-Data-and-Systems/Research/ActuarialStudies/Downloads/MedicaidReport2017.pdf
(last visited June 6, 2019).
\380\ See United States Department of Health and Human Services,
Centers for Medicare and Medicaid Services, the Office of the
Actuary, 2017 Actuarial Report of Financial Outlook for Medicaid,
pages 5-6, available at https://www.cms.gov/Research-Statistics-Data-and-Systems/Research/ActuarialStudies/Downloads/MedicaidReport2017.pdf (last visited June 6, 2019).
\381\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51165 (proposed Oct. 10, 2018).
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DHS also disagrees that the standard is arbitrary. As discussed in
the NPRM and this final rule, researchers have shown that welfare
recipients experienced future employment instability, and continued to
move in and out of welfare benefit programs such as Medicaid and
SNAP.\382\ Based on this research, DHS considers any past receipt of
public benefits a negative factor in the public charge determination,
although the weight accorded to such receipt would vary according to
the circumstances. Similarly, application for or certification to
receive a public benefit, or current receipt of public benefits for
longer periods of time or moving in and out of benefit programs for an
aggregate period of more than 12 of the most recent 36 months preceding
the filing of the application for admission or application for
adjustment of status is considered a heavily-weighted negative factor.
---------------------------------------------------------------------------
\382\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51165 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
The duration standard should provide a more predictable threshold
that will better permit applicants to adjust their behavior as they
deem necessary and appropriate. An applicant should be readily aware
whether he or she has received public benefits for more than 12
cumulative months within a 36-month period. Note that this rule
clarifies that DHS will take into consideration evidence that an alien
made requested to be disenrolled from public benefits and has made
clarifying edits in 8 CFR 212.22(b)(4)(ii)(E) to make such
consideration explicit.
Finally, DHS notes that the change to a duration-only standard is
responsive to comments indicating that the 15 percent of FPG threshold
would be too low or unreasonable for those living in cities and areas
with high costs of living. For example, under the NPRM,
[[Page 41363]]
DHS would have considered an alien receiving a Section 8 Housing
Voucher in an area where the eligibility requirement amounted to income
more than 250 percent of the FPG in the same manner as another alien
living area where the income eligibility was 50 percent of the FPG.
Under the new standard, the effect of cost living is minimized.
DHS understands that certain applicants may be hesitant to receive
certain benefits in light of the public charge assessment. DHS
reiterates that this rule does not prevent individuals who are eligible
for public benefits from receiving these benefits. And as explained
below, in its public charge inadmissibility determination DHS will not
consider receipt of Emergency Medicaid, the Medicare Part D LIS,
Medicaid received by alien under age 21 or pregnant women, and a wide
range of other benefits, such as emergency or disaster relief. This
rule also explains the criteria under which DHS will determine whether
an alien subject to section 212(a)(4), 8 U.S.C. 1182(a)(4), has
established that he or she is not inadmissible on that ground. As
explained, DHS will assess all factors and circumstances applicable to
the public charge determination, including the past receipt of public
benefits listed in 8 CFR 212.21(b). No one factor alone will render an
applicant inadmissible on account of public charge; DHS will assess
whether the alien is likely to become a public charge, i.e., to receive
the designated benefits above the threshold, in the totality of the
circumstances.
DHS also acknowledges that the regulation may result in fewer
numbers of nonimmigrants and immigrants being admitted to the United
States or granted adjustment of status to that of a lawful permanent
resident. DHS notes that the ground of inadmissibility under section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) applies to aliens seeking
admission to the United States, or adjustment of status to that of a
lawful permanent resident. The public charge ground of inadmissibility
does not apply to nonimmigrants present in the United States seeking an
extension of stay \383\ or change of nonimmigrant status.\384\ As
indicated in the NPRM, however, when adjudicating an alien's
application for extension of stay or change of status, DHS will assess
whether the alien has demonstrated that he or she has not received,
since obtaining the nonimmigrant status and through the time of filing
and adjudication, any public benefit, as defined in 8 CFR 212.21(b),
for 12 months, in the aggregate, within a 36-month period.\385\
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\383\ See 8 CFR 214.1.
\384\ See INA section 248, 8 U.S.C. 1258; see 8 CFR 248.
\385\ See 8 CFR 214.1(a)(3)(iv) and 8 CFR 248.1.
---------------------------------------------------------------------------
Finally, DHS understands that certain individuals may become self-
sufficient in the long-term after a certain duration of benefits use
and that individuals may use benefits for shorter or longer periods of
time. But similar to the explanation above, the fact that a person may
ultimately become self-sufficient is not the material question. The
material questions is whether the person is likely to become a public
charge at some point in the future. Therefore, DHS will not limit its
definition of ``public charge'' based on the potential that an alien
who is currently public charge may not remain so indefinitely. The
appropriate way to address that nuance is through the totality of the
circumstances prospective determination, rather than the definition of
public charge. Accordingly, DHS properly considers the receipt of
public benefits for more than 12 months in the aggregate within a 36-
month period a heavily weighted negative factor in public charge
inadmissibility determinations.
Alternatives to the Duration Standard
Comment: Some commenters recommended a ``grace period'' for foreign
nationals coming to the United States to use public benefits and reach
self-sufficiency, including an 18-month period to become a fully
acclimated and productive person or to recover from emergencies or
severe medical issues.
Response: As previously discussed, the purpose of this rule is to
implement the public charge ground of inadmissibility consistent with
the principles of self-sufficiency set forth by Congress, and to
minimize the incentive of aliens to attempt to immigrate to, or to
adjust status in, the United States due to the availability of public
benefits.\386\ In particular, Congress indicated that the immigration
policy continues to be that ``aliens within the Nation's borders not
depend on public resources to meet their needs, but rather rely on
their own capabilities and the resources of their families, their
sponsors, and private organizations.'' \387\ When Congress enacted
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), it did not provide a
grace period or a time period in which aliens could use public benefits
after entering the United States. Therefore, DHS does not believe it is
appropriate to add a grace period for the receipt of public benefits.
For purposes of this rule, there will be a period between the
publication of this rule, and the rule's effective date, which would
serve as a ``grace period'' of sorts. DHS has also specified how it
will consider receipt of public benefits prior to the rule's effective
date. Ultimately, however, all aliens who apply for admission or
adjustment of status on or after the rule's effective date will be
subject to a prospective public charge inadmissibility determination.
---------------------------------------------------------------------------
\386\ See 8 U.S.C. 1601.
\387\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
DHS notes that as part of the totality of the circumstances
determination, DHS will consider evidence that is relevant to its
determination whether an alien is likely to become a public charge at
any time in the future. For example, if an alien received public
benefits in excess of the threshold duration but has evidence that his
or her circumstances have changes or that the alien has requested to be
disenrolled from such benefits, DHS will take such evidence into
consideration in the totality of the circumstances.
Comment: A commenter stated that the 12-month period ought to be
lengthened to approximately 36 months, because according to a report,
45 percent of people who received government assistance for less than
36 months stop receiving assistance sometime after the first 12 months.
According to the commenter, the 45 percent are people who are on their
way out of poverty due to public benefit programs. By contrast,
approximately 43 percent of welfare recipients stay dependent for at
least 3 years. According to the commenter, these are the people who
truly lack self-sufficiency, as they have failed to exit the welfare
system.
Response: DHS disagrees with this recommendation. As discussed in
the NPRM and above, while some recipients may disenroll from public
benefits after 12 months, this only addresses short-term welfare
recipients.\388\ For example, as indicated in the NPRM, ``the
proportion of [Medicaid and food stamp participation] leavers who
receive these benefits at some point in the year after exit is much
higher than the proportion who receives them in any given quarter,
suggesting a fair amount of cycling into and out of these programs.''
\389\ HHS also funds various research projects on welfare. Across
fifteen state and county
[[Page 41364]]
welfare studies funded by HHS, it was found that the number of leavers
who received food stamps within one year of exit was between 41 and 88
percent. Furthermore, TANF leavers returned to the program at a rate
ranging between 17 and 38 percent within one year of exit. Twelve of
these studies included household surveys, with some conducting
interviews less than a year post-exit, and some as much as 34 months
after exit. A review of these surveys found that among those who left
Medicaid, the rate of re-enrollment at the time of interview was
between 33 and 81 percent among adults, and between 51 and 85 percent
among children. Employment rates at the time of interview ranged
between 57 and 71 percent.'' \390\ For these reasons, DHS does not
believe that it should lengthen the 12-month period to 36 months.
---------------------------------------------------------------------------
\388\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51199 (proposed Oct. 10, 2018).
\389\ See Lashawn Richburg-Hayes & Stephen Freedman, A Profile
of Families Cycling On and Off Welfare 4 (Apr. 2004), available at
https://aspe.hhs.gov/system/files/pdf/73451/report.pdf (last visited
July 26, 2019).
\390\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51199 (proposed Oct. 10, 2018) (quoting Lashawn Richburg-Hayes &
Stephen Freedman, A Profile of Families Cycling On and Off Welfare 4
(Apr. 2004) (citation omitted)).
---------------------------------------------------------------------------
Comment: Commenters also stated that receipt of benefits after an
event such as a natural disaster ought not render an alien a public
charge, but that sometimes the effects of a natural disaster can last
longer than 12 months. The commenter disagreed with DHS's statement in
the proposed rule that ``an individual who receives monetizable public
benefits for more than 12 cumulative months during a 36-month period is
neither self-sufficient nor on the road to achieving self-
sufficiency.'' \391\ The commenter stated that it can take much longer
than 12 months to recover from a natural disaster, and noted that
following a tornado in the commenter's community in 2013, some families
were still recovering in 2018, and required the designated benefits.
---------------------------------------------------------------------------
\391\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51165 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Response: As indicated in the NPRM, DHS will not consider public
benefits beyond those covered under 8 CFR 212.21(b), but even within
that category, DHS will not consider all cash assistance as cash
assistance for income maintenance under the rule. For instance, DHS
would not consider Stafford Act disaster assistance, including
financial assistance provided to individuals and households under
Individual Assistance under the Federal Emergency Management Agency's
Individuals and Households Program (42 U.S.C. 5174) as cash assistance
for income maintenance. The same would hold true for comparable
disaster assistance provided by State, local, or tribal governments.
Other categories of cash assistance that are not intended to maintain a
person at a minimum level of income would similarly not fall within the
definition. In addition, DHS will not consider medical assistance for
emergency medical condition (42 U.S. C. 1396(v)(3)) or short-term, non-
cash, in-kind emergency disaster relief.\392\ Finally as discussed
above, DHS will also take into consideration evidence that an alien has
disenrolled or requested to disenroll from public benefits in the
totality of the circumstances when determining whether an alien is
likely at any time in the future to become a public charge.
---------------------------------------------------------------------------
\392\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51128, 51159 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Combination Standard
Comment: DHS received comments on the proposed rule's provision for
combining monetizable and non-monetizable benefits. Commenters
generally opposed the proposed standard for combination of monetizable
benefits under 15 percent of FPG and one or more non-monetizable
benefits. Under this proposal, if an alien received a combination of
monetizable benefits equal to or below the 15 percent threshold
together with one or more benefits that cannot be monetized, the
threshold for duration of receipt of the non-monetizable benefits would
be 9 months in the aggregate (rather than 12 months) within a 36-month
period (e.g., receipt of two different non-monetizable benefits in one
month counts as two months, as would receipt of one non-monetizable
benefit for one month in January 2018, and another such benefit for one
month in June 2018).\393\
---------------------------------------------------------------------------
\393\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51166 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Some commenters stated that the proposed combination standard
lacked clarity in its explanation and some explained that they opposed
this combination standard as it would have a similar effect to having
no threshold at all, resulting in immigrants being too afraid to apply
for and receive benefits. Commenters stated that DHS did not provide a
rationale for the combination of monetizable benefits under 15 percent
of the FPG and one or more non-monetizable benefits. One commenter
suggested deleting this provision, because it would render a person a
public charge based on any amount of SNAP or housing benefits, combined
with 9 months of Medicaid coverage. The commenter indicated that this
outcome was too severe.
Response: DHS disagrees with commenters that the combination
standard lacked clarity or justification. However, as indicated above,
DHS has eliminated the threshold standard and is applying a single
duration-based threshold standard to all covered public benefits. DHS
believes that this approach is responsive to public comments that
raised concerns about the complexity of the proposed standards as well
as the need for certainty and predictability in public charge
determinations.
2. Public Benefits
Comment: A majority of commenters recommended that public benefits
encompassed by the definition of that term in the proposed rule (both
monetizable and non-monetizable), such as SSI, SNAP, Medicaid, TANF,
and housing not be included in the public charge determination and
described the negative outcomes that would arise if immigrants' access
to the benefits were reduced due to this rule. A commenter stated that
public charge determinations never considered non-cash benefits in the
past, and including them now is inhumane, and will cost the local,
State, and Federal governments in the long-run. One commenter requested
that the listed programs be removed, and that no additional programs be
added to the determination. One commenter said that expanding the
public benefits definition would result in sweeping negative
consequences and cause detrimental effects to public access to benefits
by discouraging vulnerable populations from seeking the services they
need. A commenter asserted that this rule affects more than just
immigration status determinations, as it would impede access to
supplemental services that raise the standard of living for the
individual and their family.
Another commenter indicated that lawfully present noncitizens who
have jobs within needed sectors simply might not earn enough to provide
quality healthcare, nutritious food, and safe, stable housing to their
families. The commenter further indicated that programs like SNAP,
CHIP, and Medicaid are designed to help individuals meet their
families' basic needs to keep them healthy and safe, and to penalize
hardworking families for using the program designed for them is morally
bankrupt. A couple of commenters said the policy penalizes the use of
public benefits, and indicated that safety-net programs are correlated
with the positive health and education outcomes that help low-income
families escape poverty. Commenters stated that access to non-cash
programs and other public benefits offers dignity and comfort as
individuals work to build a new and better life, acquiring the skills
[[Page 41365]]
and training to qualify for better-paying jobs. Several commenters that
opposed the proposed rule stated that the inclusion of the public
benefits included in the NPRM, including SNAP, in the public charge
determination would reverse longstanding national policy.
Many commenters provided information and data on the general
benefits of these public benefits programs; the number of people,
children, and businesses affected; and the assistance that these public
benefits provide to needy individuals and families. Comments
referenced, for instance, the importance of TANF assistance for child
care, Medicaid's role in helping families and communities manage
healthcare costs, and SNAP's role in fighting food insecurity for
children and families. Commenters stated that the proposed rule would
exacerbate problems that the designated benefit programs are designed
to address. Other commenters provided data suggesting that the
designated public benefits help reduce homelessness and improve health
outcomes. Commenters stated that these benefits are crucial for the
health and development of children and individuals. Commenters also
cited research that emphasized the important role public benefits and
access to those benefits, including SNAP, plays for pregnant women and
the elderly, including that the benefits make elderly individuals less
likely to be admitted to nursing homes and hospitals; patients with
medical problems, because public benefits reduce financial stress; and
college and university students who are struggling with food
insecurity.
Many commenters described adverse impacts of homelessness,
including childhood depression and the positive impacts of affordable
housing, including increased health benefits and chronic disease
management and lowering the cost of healthcare. Another commenter cited
studies where more students may experience homelessness under this
rule, and described the negative impacts on rural subsidized housing
and the agriculture economic market.
A commenter stated that receipt of public benefits, including SNAP,
support work and improve a family's immediate and long-term prospects,
decreasing the odds that the individuals will become primarily
dependent on government benefits to support themselves. Similarly,
another commenter stated that nutritional, healthcare, and housing
assistance are all critical programs that support work, which the
commenter identified as the ultimate path to self-sufficiency. A
commenter stated that SNAP supports employment by increasing access to
nutritious foods that enable workers to stay healthy and productive,
and by enabling families to spend more of their income on work-related
expenses like transportation, childcare, and laundry. Many commenters
stated the benefits of Medicaid for different people and groups,
including better health outcomes for pregnant women and children
throughout adulthood. Some commenters described how access to
affordable health insurance like Medicaid enables workers to find and
retain jobs, and how a lack of affordable insurance contributes to
worse health outcomes, unmet physical, behavioral and mental health
needs, and eventual joblessness. Commenters stated that access to
affordable insurance leads to better performance on the job, an easier
time staying employed or seeking employment, and less unpaid bills and
other debt; and important economic benefits, such as increased tax
contributions, decreased reliance on other public assistance programs,
and more disposable income to spend in the local economy. Commenters
stated that states that expanded Medicaid experienced savings in costs
associated with uncompensated care and state-funded health programs, as
well as growth in jobs and general fund revenue. A commenter stated
that reimbursement for services rendered to Medicaid patients was
especially important for hospitals, and cited research documenting
positive effects on hospitals' financial performance in States which
decided to expand Medicaid.
Other commenters discussed a study in which the use of certain
housing vouchers and access to public housing reduced the chance of
families living in crowded conditions, shelters, or on the street, help
ease the burden of rent in high-cost cities, prevent or alleviate
homelessness, allow the flexibility for families to pay for other
necessities, and promote self-sufficiency. Commenters also said this
rule will deter landlords from participating in the housing voucher
program, affecting the private housing market. Some commenters
discussed the difficulty of immigrants obtaining affordable housing.
Other commenters cited research on children's health outcomes,
asserting that access to public housing creates long-term improvements
in educational attainment, income, self-sufficiency, and children's
health outcomes; child development; greater attendance and prospects at
school. Commenters also noted that access to affordable housing has
positive effects on family stability and the economy overall, and that
access to such housing frees up income for other living necessities.
Others cited to research showing that public benefits, such as
subsidized housing, positively impacts the health of children, people
with disabilities, families, domestic violence victims, pregnant women
and people of color; reduces poverty and homelessness, and promotes
economic stability; helps low-earning immigrants increase their
economic opportunities; facilitates upwards economic mobility; builds
safe and affordable housing communities and decreases foreclosures; and
benefits of immigrants to the housing market during economic downturns.
Other commenters cited research showing that housing instability is
associated with a broad range of health impacts, including worsening
HIV side effects, heart disease, asthma, and cancer.
Several commenters stated that immigrants in high rent areas need
public housing, specifically where income has not kept pace with rent
prices. Some of these commenters cited research and figures on the rent
prices in areas across the United States. Other commenters stated that
only one in four families who need affordable housing receive it,
arguing that even fewer families who need affordable housing receive it
factoring in immigration status and family size. Multiple commenters
stated that housing instability and unaffordability are strongly
correlated with involuntary job loss and other economic barriers that
undermine self-sufficiency, citing statistics. Several commenters
stated that the rule undermines the mission of public housing. A
commenter cited research indicating that including affordable housing
in the rule may increase the poverty rate and disability rates.
In contrast, a few commenters supported the inclusion of the public
benefits as part of the public charge determination. Some stated that
only citizens should be eligible for the benefits. A commenter stated
that the public charge rule should cover benefits that are provided for
long periods of time, such as TANF.
Response: DHS appreciates the comments and recognizes that the
public benefits listed in the rule provide assistance to needy
individuals, and that rigorous application of the public charge ground
of inadmissibility will inevitably have negative consequence for some
individuals. DHS is aware that individuals may reconsider their receipt
of public benefits in light of future immigration consequences.
However, the rule does not prevent individuals from receiving any
public benefits for
[[Page 41366]]
which they are eligible. Additionally, as noted in the NPRM, the rule,
particularly the inclusion of the designated benefits into the public
benefits definition, is consistent with congressional statements in 8
U.S.C. 1601 concerning self-sufficiency of foreign nationals. In
particular, Congress indicated that the immigration policy continues to
be that ``aliens within the Nation's borders not depend on public
resources to meet their needs, but rather rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations.'' \394\ DHS will therefore continue to consider
the public benefits proposed in the NPRM in public charge
inadmissibility determinations with certain exceptions described below.
---------------------------------------------------------------------------
\394\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
As discussed in the NPRM, the benefits that will be considered in
this rule account for some of the largest federal expenditures on low-
income individuals and bear directly on self-sufficiency.\395\ The
benefits listed are directed toward food and nutrition, housing, and
healthcare, and are directly relevant to the public charge
inadmissibility determination, because a person who needs the public's
assistance to provide for these basic necessities of life and receives
such benefits for longer periods of time is more likely to receive such
benefits in the future.\396\ DHS also notes, as updated in the
regulatory text, that receipt of a public benefit occurs when a public
benefit-granting agency provides such benefit, whether in the form of
cash, voucher, services, or insurance coverage. Certification for
future receipt of a public benefit does not constitute receipt,
although it may suggest a likelihood of future receipt. With respect to
Medicaid in particular, DHS would consider receipt to have occurred
when coverage commences, regardless of whether the alien accesses
services using such coverage.
---------------------------------------------------------------------------
\395\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51166 (proposed Oct. 10, 2018).
\396\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51159 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter said data refutes the notion that immigrant
families rely disproportionately on all forms of public assistance,
citing to a study from the National Academies of Sciences, Engineering,
and Medicine indicating that just 4.2 percent of immigrant households
with children utilize housing assistance as compared to 5.3 percent of
U.S.-born households. A commenter stated that only 6.5 percent of
people using public benefits are noncitizens and this rule will reach
beyond that population. One commenter stated that immigrants use public
benefits at a lower rate than U.S. born citizens, while other
commenters stated that DHS did not consider whether the temporary
benefits immigrants might receive would result in a net positive impact
to the budget or society.
Response: DHS appreciates the comments and references to data. DHS
does not assume, and has not based the rule on the assumption, that
immigrant families rely disproportionately on public benefits. The
statistical analysis provided in the preamble of the NPRM did not reach
that conclusion. The NPRM provided data regarding both citizens and
noncitizens in the discussion of the factors that may lead a person to
receive public benefits. However, only aliens seeking admission to the
United States or adjustment of status are subject to the public charge
ground of inadmissibility. Therefore, whether citizens' receipt of
public benefits is higher than that of aliens is immaterial. DHS notes
that with respect to the comment that the temporary receipt of public
benefits would result in a positive impact on the economy, such
considerations are not the aim of this rule. This rule is intended to
better ensure that aliens seeking to come to and remain in the United
States are self-sufficient, and rely on their resources and those of
their families, sponsors, and private organizations.
Comment: One commenter stated that including Medicaid, SNAP and
housing assistance programs as public benefits ``would undermine
decades of the federal government's work to address poverty and build a
clearer path to the middle class for millions of families,'' because
individuals may decide to forego WIC, which is connected to SNAP or
other similar benefits. A commenter stated that the inclusion of
Medicaid/CHIP, SNAP and housing assistance in public charge review
would undermine decades of the federal government's work to address
poverty and build a clearer path to the middle class for millions of
families.
Response: DHS understands that many public benefits may be
interconnected, such that when a person enrolls in one benefit, the
benefit-granting agency will automatically qualify that person in
another benefit. In those circumstances, an alien's decision to forego
enrollment in a designated public benefit could result in the alien not
being automatically qualified in a non-designated benefit. Similar
outcomes could occur if a state conditions eligibility for the second
benefit on enrollment in the first. That said, DHS disagrees that the
rule would materially undermine decades of work to address poverty. The
population affected by this rule is limited to those applicants seeking
admission to the United States and adjustment of status, who are
subject to public charge. The data and information provided by the
commenter involves a much broader population that may not be affected
by the rule.
Comment: A commenter stated that Congress had already made clear
its intent on immigrants' eligibility for SNAP and Medicaid. The
commenter went on to state that IIRIRA established criteria to be
weighted by immigration authorities using a ``totality of
circumstances'' test, and stated that the criteria specifically did not
include receipt of public benefits. The commenter also stated that
PRWORA established a set of eligibility rules for certain lawful
immigrants to receive Medicaid, SNAP, and other means-tested programs,
and Congress later modified these rules to allow Medicaid coverage for
pregnant women without the typical five-year waiting period.
Response: Through PRWORA, Congress declared that aliens generally
should not depend on public resources and that these resources should
not constitute an incentive for immigration to the United States.\397\
With IIRIRA, Congress codified minimum factors that must be considered
when making public charge determinations: \398\ Age; health; family
status; assets, resources, and financial status; education and
skills.\399\
---------------------------------------------------------------------------
\397\ See Public Law 104-193, sec. 400, 110 Stat. 2105, 2260
(Aug. 22, 1996) (codified at 8 U.S.C. 1601).
\398\ Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-546,
3009-674 (Sept. 30, 1996) (amending INA section 212(a)(4), 8 U.S.C.
1182(a)(4)).
\399\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
---------------------------------------------------------------------------
As explained in the NPRM,\400\ policy goals articulated in PRWORA
and IIRIRA inform DHS's implementation of the public charge ground of
inadmissibility. DHS does not believe there is tension between the
availability of public benefits to some aliens as set forth in PRWORA
and Congress' intent to deny admission, and adjustment of status to
aliens who are likely to become a public charge. Indeed, DHS believes
that Congress, in enacting PRWORA and IIRIRA very close in time, must
have recognized that it made certain public benefits available to some
aliens who are also subject to the public charge ground of
inadmissibility, even though receipt of such benefits could render the
[[Page 41367]]
alien inadmissible as likely to become a public charge. Under the
scheme envisioned by Congress, aliens generally would not be issued
visas, admitted to the United States, or permitted to adjust status if
they are likely to become public charges. This prohibition may deter
aliens from making their way to the United States or remaining in the
United States permanently for the purpose of availing themselves of
public benefits.\401\ DHS believes that Congress must have understood,
however, that certain aliens who were unlikely to become public charges
when seeking admission or adjustment of status might thereafter
reasonably find themselves in need of public benefits. Consequently, in
PRWORA, Congress made limited allowances for that possibility.
Nevertheless, if an alien subsequent to receiving public benefits
wishes to adjust status in order to remain in the United States
permanently or leaves the United States and later wishes to return, the
public charge inadmissibility consideration (including consideration of
receipt of public benefits) would again come into play. In other words,
although an alien may obtain public benefits for which he or she is
eligible, the receipt of those benefits may be considered, consistent
with IIRIRA and PRWORA, for future public charge inadmissibility
determination purposes. DHS recognizes that Congress through CHIPRA
expanded the Medicaid coverage for children and pregnant women who are
lawfully residing in the United States, including those within their
first five years of having certain legal status. In this final rule,
DHS has exempted from consideration receipt of Medicaid by children
under 21 and pregnant women during pregnancy and 60 days following
pregnancy by amending the definition of public benefit in 8 CFR
212.21(b).
---------------------------------------------------------------------------
\400\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51132 (proposed Oct. 10, 2018).
\401\ H.R. Rep. No. 104-469(I), at 144-45 (1996).
---------------------------------------------------------------------------
Comment: Some commenters stated that immigrants' eligibility for
some of the public benefits is already restricted, including SSI, TANF,
and housing programs. Another commenter said the inclusion of Medicaid
in the proposed rule was unnecessary, since existing law already
requires that lawful permanent residents wait five years before
becoming eligible for Medicaid or Medicare.
Response: DHS recognizes that most aliens are ineligible for the
public benefits listed in the rule. However, the public charge
inadmissibility determination reviews the likelihood of a person
receiving a public benefit at any time in the future, including points
in time when an alien may become eligible for the public benefits. In
addition, some aliens are eligible for public benefits, as noted in
Table 3 of the NPRM.\402\
---------------------------------------------------------------------------
\402\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51128-30 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter indicated that immigrants contribute far more
to America (i.e., taxes, premiums, economic and military contributions)
than they use in assistance. Other commenters indicated that immigrants
contribute by paying taxes and the rule penalizes immigrants who file
taxes and utilize programs to which they are legally entitled. Several
commenters stated that immigrants make significant contributions to the
economy, and the proposed rule would prevent immigrants from partaking
in programs that their tax dollars support. Other commenters said that
individuals covered by Medicaid or CHIP paid more in taxes and
collected less in Earned Income Tax Credit (EITC) payments. According
to a commenter, one study reviewing Medicaid expansion during the 1980s
and 1990s estimated that, based on children's future earnings and tax
contributions alone, the government would recoup 56 cents of each
dollar spent on childhood Medicaid by the time the children turned 60.
Response: Paying taxes owed and filing tax returns is legally
required for all individuals making a sufficient income in the United
States.\403\ The rule does not penalize those people who fulfill their
legal responsibilities to do so. In addition, people are entitled to
use benefits for which they qualify, and this rule does not prohibit
anyone from using a benefit for which they qualify. However, DHS
believes the use of certain benefits is appropriate to consider in
determining public charge inadmissibility. Congress mandated the public
charge assessment.\404\ But Congress did not stipulate in legislation
that public benefits received by eligible individuals should not be
considered for public charge purposes; instead, Congress clearly stated
the policy that those coming to the United States must be self-
sufficient and not rely on public resources. Therefore, to implement
Congress' requirement to consider public charge inadmissibility, DHS
must consider the receipt of benefits by eligible individuals, as
indeed the 1999 Interim Field Guidance did. DHS believes that the
public charge rule strikes an appropriate balance with the benefits
that are considered.
---------------------------------------------------------------------------
\403\ See 26 U.S.C. 1 and 6012(a)(1).
\404\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
a. Specific Groups and Public Benefits
Individuals With Disabilities
Comment: Commenters stated that the inclusion of non-monetizable
benefits in the proposed rule would disproportionately harm people with
disabilities.\405\ One commenter stated that ``[p]eople with
disabilities would be uniquely affected by the inclusion of Medicaid-
funded services in the public charge calculus, including Medicaid-
funded community-based services that are efficiently delivered in homes
and communities (the current public charge rule only requires
consideration of Medicaid-funded institutional long-term care).''
Commenters said that because non-emergency benefits were included, the
proposal would make it nearly impossible for immigrants with
disabilities to become citizens unless they are independently wealthy.
Many commenters indicated that the federal resources individuals with
disabilities and their families depend on, such as Medicaid, SNAP, and
housing vouchers, would be included in the determination of public
charge under the rule. A commenter also noted that ``[p]eople with
disabilities would be disproportionally impacted by the inclusion of
housing and food assistance in the public charge test.'' One commenter
stated that ``[b]y deeming immigrants who use such programs a `public
charge,' the regulations will disparately harm individuals with
disabilities and impede their ability to maintain the very self-
sufficiency the Department purports to promote and which the
Rehabilitation Act sought to ensure.''
Several commenters stated that individuals with disabilities rely
on non-cash benefits disproportionately, often due to their disability,
in order to continue working, stay healthy, and remain independent and
productive members of the community. Some commenters stated that
Medicaid is often the only program available to and appropriate for
people with disabilities as many of the services covered by Medicaid,
including housing services and community-based services, are often not
covered by private insurance. Many commenters cited the statistic that
about one-third of adults under age 65 enrolled in Medicaid have a
disability, compared with about 12 percent of adults in the general
population. Other commenters cited the statistic that more than one-
quarter of individuals who use SNAP are also disabled. Several
commenters stated that individuals with disabilities disproportionately
experience poverty.
[[Page 41368]]
A commenter stated that the rule would require immigrants with
disabilities to meet economic standards that do not take into account
the barriers to employment and wealth accumulation issues that
individuals with disabilities face. Another commenter added that food
insecurity rates in households that include at least one disabled
working-age adult are substantially higher, even where the disabled
person is working, and that such food insecurity leads to chronic
illnesses. Many commenters stated that the rule would cause many
individuals with disabilities or families with individuals with
disabilities to disenroll from public benefit programs. A commenter
cited research indicating that the rate of disability drastically
increases as poverty increases, and that by creating fear around
participating in public anti-poverty programs, the proposed public
charge rule will lead to an increase in disability and negative health
impacts for an already vulnerable community of people.
Response: DHS understands that individuals with disabilities
receive public benefits that are listed in the rule. However, Congress
did not specifically provide for a public charge exemption for
individuals with disabilities and in fact included health as a
mandatory factor in the public charge inadmissibility
consideration.\406\ Therefore, DHS will retain the designation of
Medicaid and SNAP as public benefits, notwithstanding the potentially
outsized impact of such designation on individuals with disabilities.
With respect to DHS's consideration of the alien's disability as such,
DHS would consider disability as part of the health factor, to the
extent such disability makes the alien more likely than not to become a
public charge. This consideration is not new and has been part of
public charge determinations historically.\407\ Those determinations
include consideration of whether, in the context of the alien's
individual circumstances, the alien has been diagnosed with a medical
condition that is likely to require extensive medical treatment or
institutionalization or that will interfere with the alien's ability to
provide and care for himself or herself, such as by working or
attending school. As noted in the proposed rule, as an evidentiary
matter, USCIS would rely on medical determinations made by a medical
professional. This would entail consideration of the potential effects
of the disability on the alien's ability to work, attend school, or
otherwise support himself or herself.
---------------------------------------------------------------------------
\406\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\407\ See, e.g., Ex parte Mitchell, 256 F. 229 (N.D.N.Y. 1919)
(referencing disease and disability as relevant to the public charge
determination); Ex parte Sakaguchi, 277 F. 913, 916 (9th Cir. 1922)
(taking into consideration that the alien was an able-bodied woman,
among other factors, and finding that there wasn't evidence that she
was likely to become a public charge); Barlin v. Rodgers, 191 F.
970, 974-977 (3d Cir. 1911) (sustaining the exclusion of three
impoverished immigrants, the first because he had a ``rudimentary''
right hand affecting his ability to earn a living, the second
because of poor appearance and ``stammering'' such that made the
alien scarcely able to make himself understood, and the third
because he was very small for his age); United States ex rel.
Canfora v. Williams, 186 F. 354 (S.D.N.Y. 1911) (ruling that an
amputated leg was sufficient to justify the exclusion of a sixty
year old man even though the man had adult children who were able
and willing to support him).
---------------------------------------------------------------------------
However, it is not the intent, nor is it the effect of this rule to
find a person a public charge solely based on his or her disability.
The public charge inadmissibility determination evaluates the alien's
particular circumstances. Under the totality of the circumstances
framework, the disability itself would not be the sole basis for an
inadmissibility finding. DHS would look at each of the mandatory
factors, and the affidavit of support, if required, as well as all
other factors in the totality of the circumstances. For example, if an
individual has a disability but there is no indication that such
disability makes the alien more likely to become a public charge, the
alien's disability will not be considered an adverse factor in the
inadmissibility determination. This could occur if the individual is
not currently enrolled in the designated benefits, has not previously
been enrolled in any designated public benefit, and is employed or
otherwise has sufficient income, assets and resources to provide for
himself or herself, or has family willing and able to provide for
reasonable medical costs, or the person has private health insurance or
would soon be able to obtain private health insurance upon adjustment
of status.
Vulnerable Populations
Comment: Some commenters identified specific groups of individuals
who would be impacted by the inclusion of public benefits in the public
charge determination. Several commenters stated that cash assistance
provides crucial support for survivors of domestic violence and sexual
assault, and would undermine Federal and State policies to support
victims of domestic violence and assault by discouraging them to access
critical services. A commenter stated that for many survivors, cash
assistance, such as TANF or state-funded cash benefits, provides the
crucial support they need to begin the journey of stabilizing their
lives and achieving self-sufficiency. The commenter provided a data
from a survey in 2017, where 85 percent of respondents said that TANF
was a critical resource for domestic violence and sexual assault
survivors, and that two-thirds of respondents said that most domestic
violence survivors rely on TANF to help address their basic needs and
to establish safety and stability, and 45 percent of respondents said
the same is true of most sexual assault survivors. The commenter
indicated that financial instability poses limited options for escaping
or recovering from abuse and that access to cash assistance is an
important factor in survivors' decision-making about whether and how
they can afford to leave a dangerous situation, and in planning how to
keep themselves and their children healthy, fed, and housed. The
commenter indicated that the rule risk significant physical, emotional,
and mental harm to these populations. Commenters described a survey
that found that nearly 80 percent of service providers included in the
survey reported that most domestic violence survivors rely on SNAP to
establish their safety and stability. Another commenter stated that
being able to meet basic food and nutritional needs provides a means
for survivors of domestic violence and sexual assault to take care of
themselves and their children while working to address their trauma and
take steps toward independence.
Other commenters stated that nearly half a million Asian American
and Pacific Islander (AAPI) noncitizens rely on the SNAP program to
feed their families, and the rule will lead to less food assistance
within family units. A commenter stated that almost 48 percent of
noncitizen recipients of SNAP benefits were women in 2017, compared to
40 percent who were men, and 12 percent who were children. Another
commenter stated that 80 percent of most domestic violence victims and
55 percent of most sexual assault victims use the program to restore
safety and stability in their lives would be heavily affected by
limiting access to SNAP.
One commenter stated that the proposed rule would
disproportionately affect communities of color who use public benefits
and social services to make ends meet and work towards self-
sufficiency. A commenter stated that the proposed rule would likely
disproportionality cause Latinos to lose access to SNAP and Medicaid
benefits, exacerbating existing health inequities, increasing instances
of hunger and poverty among this population. Similarly, another
commenter described
[[Page 41369]]
the benefits of access to SNAP for the Latino community and commented
that a loss of SNAP benefits would cause more Latinos, including
children, to experience poverty and suffer from hunger and
malnutrition. Another commenter stated that including SNAP will harm
college students, as SNAP is a critical resource for the many college
students who struggle with food insecurity.
Other commenters provided information on individuals with specific
medical conditions that need Medicaid, including treating thalassemia
(a group of blood disorders) and cardiovascular disease. A commenter
cited studies showing that people with opioid addiction who lacked
Medicaid were half as likely to receive treatment as those covered by
some form of insurance. A commenter said that parental mental health
and substance abuse was a strong indicator of child mistreatment, and
the services Medicaid provides to combat these issues help keep
children safe.
Many commenters noted the negative impact of including the receipt
of housing assistance in the public charge determination on a variety
of groups, including infants and toddlers, women and single mothers,
large and low-income families, Latinos, domestic violence survivors,
agricultural workers, low-income communities, people of color, the
Lesbian, Gay, Bisexual, Transgender Immigrants (LGBTQ) community, AAPI,
elderly, minority groups, and disabled persons. Multiple commenters
cited studies and addressed the specific costs of the rule for domestic
violence survivors, arguing that a survivor's greatest unmet need is
housing when recovering from abuse. Other commenters commented that the
rule would make it more difficult for families with multiple children
to obtain housing due to the prorated system.
Response: DHS appreciates the comments. DHS recognizes that some
people currently in the United States do in fact depend on the
government to meet their needs, and that this rule is likely to result
in negative consequences for some of those people, and people like
them. Such negative consequences are, to some extent, an inevitable
consequence of more rigorous application of a statutory ground of
inadmissibility that is targeted towards people who receive public
benefits to meet their basic needs. DHS declines to modify the scope of
the rule to accommodate all possible Federal and State policies
supporting public benefits use by specific vulnerable populations. DHS
notes that if an alien relied on public benefits for a limited period
time to escape a dangerous situation, but no longer relies on such
benefits, the alien should make that clear to DHS, so that DHS can
incorporate into its totality of the circumstances assessment the fact
of the alien's changed circumstances.
DHS recognizes that it is possible that the inclusion of benefits
such as SNAP and Medicaid may impact in greater numbers communities of
color, including Latinos and AAPI, as well as those with particular
medical conditions that require public benefits for treatment, and
therefore may impact the overall composition of immigration with
respect to these groups. DHS also recognizes that consideration of the
receipt of public benefits while the alien was a child may also deter
some parents from applying for these benefits on behalf of their
children. But this is not DHS's intention in promulgating this rule.
Instead, with this rule, DHS seeks to better ensure that applicants for
admission to the United States and applicants for adjustment of status
who are subject to the public charge ground of inadmissibility are
self-sufficient.\408\
---------------------------------------------------------------------------
\408\ See 8 U.S.C. 1601(2).
---------------------------------------------------------------------------
As provided by Congress, health is a mandatory factor in the public
charge inadmissibility determination.\409\ However, DHS will not find
an alien inadmissible on public charge grounds based solely on an
alien's medical condition or disability.
---------------------------------------------------------------------------
\409\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
DHS's public charge inadmissibility determination evaluates the
totality of an alien's individual circumstances. This totality of the
circumstances approach weighs all the positive and negative evidence
related to an alien's age; health; family status; assets, resources,
and financial status; education and skills; required affidavit of
support; and any other factor or circumstance that may warrant
consideration in the public charge inadmissibility determination.\410\
If the factors establish, in the balance, that an alien is likely at
any time in the future to become a public charge, he or she will be
deemed inadmissible. As noted in precedent administrative decisions,
determining the likelihood of an alien becoming a public charge
involves ``consideration of all the factors bearing on the alien's
ability or potential ability to be self-supporting'' \411\ in the
totality of the circumstances.\412\
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\410\ See 8 CFR 212.22.
\411\ Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l Comm'r
1977).
\412\ See, e.g., Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977); Matter of Harutunian, 14 I&N Dec. 583 (Reg'l Comm'r
1974).
---------------------------------------------------------------------------
DHS's view of self-sufficiency is that aliens subject to the public
charge ground of inadmissibility must rely on their own capabilities
and secure financial support, including from family members and
sponsors, rather than seek and receive public benefits to meet their
basic needs. Cash aid and non-cash benefits directed toward food and
nutrition, housing, and healthcare account for significant Federal
expenditure on low-income individuals and bear directly on self-
sufficiency. Because of the nature of the public benefits that would be
considered under this rule--which are generally means-tested and
provide cash for income maintenance and for basic living needs such as
food and nutrition, housing, and healthcare--DHS believes that receipt
of such benefits may render a person a person with limited means to
provide for his or her own basic living needs and who receives public
benefits is not self-sufficient because his or her reliance.
DHS notes that this rule would not adversely impact certain victims
of domestic and sexual abuse, as VAWA, T, and U applicants are
generally not subject to the public charge inadmissibility
determination, as set forth in 8 CFR 212.23.
Comment: Several commenters said that over 1.1 million noncitizens
age 62 and older live in low- or moderate-income households. Other
commenters stated that nearly seven million seniors age 65 and older
are enrolled in both Medicare and Medicaid, and one in five Medicare
beneficiaries relies on Medicaid to help them pay for Medicare premiums
and cost-sharing. Several commenters said having health insurance is
especially important for older adults because they have greater
healthcare needs. This makes Medicare a lifeline for most seniors,
providing coverage for hospital, doctors' visits, and prescription
drugs, but many immigrant seniors are not eligible for Medicare.
A commenter stated this age standard would result in mistreatment
of elders when trying to enter or stay in the United States and would
undermine immigrants' access to essential healthcare, nutrition, and
housing programs. A commenter stated low-income seniors also greatly
benefit from programs such as HCV Program (Section 8) rental assistance
and SNAP to meet their basic needs and if immigrant families are afraid
to access nutrition assistance programs, older adults will be food
insecure and at risk of unhealthy eating, which can cause or exacerbate
other health conditions and
[[Page 41370]]
unnecessarily burden the healthcare system.
Response: DHS recognizes that eligibility for certain public
benefits depends not only on a person's financial need but also on a
person's age. However, Congress did not specifically exclude aliens of
certain ages from the public charge inadmissibility determination and
in fact included age as a mandatory factor in section 212(a)(4) of the
Act, 8 U.S.C. 1184(a)(4).\413\ Accordingly, DHS proposes to consider
the alien's age primarily in relation to employment or employability
and secondarily to other factors as relevant to determining whether
someone is likely to become a public charge. DHS notes that the public
charge inadmissibility determination evaluates the alien's particular
circumstances. DHS's totality of the circumstances standard involves
weighing all the positive and negative considerations related to an
alien's age; health; family status; assets, resources, and financial
status; education and skills; required affidavit of support; and any
other factor or circumstance that may warrant consideration in the
public charge inadmissibility determination.\414\ If the negative
factors outweigh the positive factors, then the alien would be found to
be inadmissible as likely to become a public charge; if the positive
factors outweigh the negative factors, then the alien would not be
found inadmissible as likely to become a public charge.
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\413\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
\414\ See 8 CFR 212.22.
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DHS also notes that receipt of Medicaid, even if received in
conjunction with receipt of Medicare, would still be considered a
public benefit in the totality of the circumstances for public charge
inadmissibility.
Comment: One commenter indicated that the rule could allow a young
adult to be deemed inadmissible as a public charge if at any point
within the last year the person or a member of the household or certain
members of the family received a few of these benefits for only a
period of time. The commenter indicated that household definition
leaves a very wide array of potential individuals who may receive a
public benefit through no volition or interaction of the immigrant
applicant but would, as a result, have an impact on the determination
of admissibility for the immigrant's application including a child or a
young family member. The commenter indicated that despite the applicant
providing sufficient support and having no need for public benefits,
that family member or the primary caregiver for the family member may
facilitate the application for and receipt of public benefits for that
child or in relation to the care for that child.
Response: The public charge inadmissibility determination evaluates
an alien's particular circumstances. DHS is not considering public
benefits received by other household members as part of an alien's
public charge inadmissibility determination. DHS has further clarified
this inclusions of a definition for receipt of public benefits which
indicates that an alien's receipt, application for or certification for
public benefits solely on behalf of another individual does not
constitute receipt of, application for or certification for such alien.
But if the alien is a listed beneficiary, the alien is considered to
have received the public benefit.
DHS's totality of the circumstances standard weighs all the
positive and negative considerations related to an alien's age; health;
family status; assets, resources, and financial status; education and
skills; required affidavit of support; and any other factor or
circumstance that may warrant consideration in the public charge
inadmissibility determination.\415\
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\415\ See 8 CFR 212.22.
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In the definition of household,\416\ DHS accounts for both (1) the
persons whom the alien is supporting and (2) those persons who are
contributing to the household, and thus the alien's assets and
resources. DHS believes that an alien's ability to support a household
is relevant to DHS's consideration of the alien's assets, resources,
financial status, and family status. DHS believes this is an
appropriate definition in the limited immigration context of public
charge inadmissibility determinations. Public benefits received by
household members do not count towards the alien's financial assets and
income for purposes of the public charge inadmissibility
determination.\417\
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\416\ See 8 CFR 212.21(d).
\417\ See 8 CFR 212.22(b)(4)(ii), which provides that USCIS'
considerations when assessing the alien's assets, resources, and
financial status excludes any public benefits received by the alien
as well as any public benefits received by another person of the
household.
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Comment: A commenter stated that the rule would deprive U.S.
citizens who live in mixed-status households of their access to
assistance programs for which they are eligible.
Response: DHS disagrees that the rule would deprive U.S. citizens
of access to assistance programs for which they are eligible. This rule
does not include consideration of public benefits received by U.S.
citizens in the public charge inadmissibility determination. The
valuation of the public benefits is an individual determination and
receipt of public benefits by other members of a household including
U.S. citizens will not be considered in an applicant's public charge
inadmissibility determination. In addition, DHS notes that this rule
does not restrict an alien's access to public benefits for which the
alien is eligible. Rather, this rule explains the criteria that DHS
will use to determine whether an alien subject to section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4), has met his or her burden of
demonstrating eligibility for the immigration benefit sought.
Receipt of Public Benefits by Children
Comment: Several commenters said a child's use of benefits should
not impact their public charge inadmissibility determination, as public
benefits are often vital to the development of children and for them to
become productive members of society. Commenters also indicated that a
child's use of benefits should not impact their immigration application
once they come of age. These commenters cited research demonstrating
that the use of these programs in childhood helps children complete
their education and have higher incomes as adults, be healthy, have
better educational opportunities, and become more likely to be
economically secure and contribute to their communities as adults.
Another commenter indicated that public benefits serve as crucial
levers that reduce the intergenerational transmission of poverty.
Commenters also noted that ``[b]ecause children do not decide whether
or not to apply for benefits and because their financial situation as
children is not necessarily indicative of their financial situation for
life, children's receipt of benefits should not be counted in any
public charge determination.'' Some commenters stated that considering
an immigrant's past use of public benefits as a child in the public
charge inadmissibility determination would deter immigrant parents from
obtaining food and healthcare assistance for their children, and argued
that this would result in adverse outcomes for the children themselves
and impose significant costs on society. A commenter stated that low-
income children with immigrant parents, including U.S. citizen
children, are already less likely to receive Medicaid than those with
U.S. born parents.
Many commenters cited to research indicating that the use of
programs, such as SNAP, Medicaid, and CHIP, and
[[Page 41371]]
housing assistance in childhood, helps children complete their
education and have higher incomes as adults, live in stable housing,
receive needed health services and consume adequate and nutritious
food, and fosters their future success in education and the workforce.
A commenter noted the impact of this rule on their work to facilitate
healthy brain development among children. A few commenters stated that
multiple studies confirm early childhood or prenatal access to Medicaid
and SNAP improves health and reduces reliance on cash assistance. The
commenters stated that children with access to Medicaid have fewer
absences from school, are more likely to graduate from high school and
college, and are more likely to have higher paying jobs as adults.
Another commenter stated that children with health insurance are more
likely to have routine healthcare, improved health outcomes, and
improved success in education. One commenter said that lack of access
to affordable housing remains one of the main barriers to economic
stability for many families and the proposed rule would further limit
access to housing assistance for families with children. The commenter
cited research that shows rental assistance for households with
children results in significant positive effects for future child
outcomes and family economic security. A few commenters stated this
proposal could undermine the access to healthcare for children of
immigrants or their aging family members.
Response: DHS recognizes that many of the public benefits programs
aim to better future economic and health outcomes for minor recipients,
and that parents may decide to disenroll their children from public
benefits programs to avoid negative immigration consequences. However,
this rule is aimed at better ensuring that aliens who are subject to
the public charge ground of inadmissibility are self-sufficient.
DHS also recognizes that children who receive public benefits are
not making the decisions to apply for such benefits. However, DHS notes
that that Congress did not exclude children from the public charge
ground of inadmissibility unless the child is seeking a status that
Congress expressly exempted from public charge inadmissibility and,
moreover, specifically required that DHS consider an applicant's age in
the public charge inadmissibility determination. Nonetheless, as
explained more fully in the discussion of Medicaid, DHS will not
consider the receipt of Medicaid by children under the age of 21.
Military/First Responders
Comment: Some commenters supported the NPRM's proposal to exclude
from the public charge determination any public benefits received by
active duty service members and their families. Some commenters also
discussed the impact of the rule on military families, including
increasing food security for active military families and allowing them
to focus on protecting the United States rather than on whether they
will be able to feed their family. Commenters stated that too many
military families and veterans depend on SNAP to make ends meet because
their military pay is not enough to meet their basic needs. One
commenter, citing to data from FY 2013, stated that current and former
military members and their families redeemed approximately $104 million
in SNAP benefits at commissaries--a 300 percent increase since 2007.
The commenter further stated that for military families who do not have
base-housing and live in high-cost areas, like those in California,
accessing SNAP can be complicated and this has led military families
across the country to turn out of desperation to food pantries and food
banks--many operating on base or nearby military installations--for
emergency food assistance. The commenter further stated that in recent
years the Department of Defense (DOD) and the Department of Veterans
Affairs (VA) have issued policies to address high rates of hunger among
low-income military and veteran families, because military leaders
understand that soldiers are less prepared to serve their country if
they are hungry or worried about their families going hungry. They also
know that when veterans are largely living in poverty with unmet basic
needs, it is more difficult to convince young people who live in their
communities to sign up.
A commenter also cited to 2013 USDA data, and reported that in that
year, $103.6 million of groceries were purchased with SNAP benefits at
military commissaries, and that between 2,000 and 22,000 military
households received SNAP benefits. The commenter stated that a
Department of Defense Education Activity (DoDEA) showed that in
September 2015, 24 percent of 23,000 children in DoDEA schools were
eligible for free meals, while 21 percent were eligible for reduced-
price meals.
Commenters, citing the 2.4 million children from military families
who were enrolled in Medicaid or CHIP, noted that many families with
family members enlisted in the military benefitted from enrollment in
Medicaid or CHIP, indicated that Medicaid enrollment leads to positive
health outcomes.
Response: DHS acknowledges that military service members and their
families who are applying for an immigration benefit for which
admissibility is required and that is subject to section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4), will be required to demonstrate that they
are not likely at any time in the future to become a public charge.
However, consistent with the NPRM, DHS's public charge analysis will
exclude consideration of the receipt of any public benefits by active
duty servicemembers, including those in the Ready Reserve of the U.S.
Armed Forces, and their spouses and children. As noted in the NPRM, the
U.S. Government is profoundly grateful for the unparalleled sacrifices
of the members of our armed services and their families. Servicemembers
who, during their service, receive public benefits, in no way burden
the public; indeed, their sacrifices are vital to the public's safety
and security. The DOD has advised DHS that many of the aliens who
enlist in the military are early in their careers, and therefore,
consistent with statutory pay authorities, earn relatively low salaries
that are supplemented by certain allowances and tax advantages.\418\
Although data limitations exist, evidence suggests that as a
consequence of the unique compensation and tax structure afforded by
Congress to aliens enlisting for military service, some active duty
alien servicemembers, as well as their spouses and children, as defined
in section 101(b) of the Act, may rely on SNAP \419\ and other listed
public
[[Page 41372]]
benefits. As a result, the general standard included in the proposed
rule could result in a finding of inadmissibility under section
212(a)(4) when such aliens apply for adjustment of status.
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\418\ See, e.g., 37 U.S.C. 201-212, 401-439 (Basic Pay and
Allowances Other than Travel and Transportation Allowances,
respectively); Lawrence Kapp, Cong. Research Serv., Defense Primer:
Regular Military Compensation 2 tbl.1 (Dec. 17, 2018), available at
https://fas.org/sgp/crs/natsec/IF10532.pdf (reporting average
regular military compensation of $41,384 at the E-1 level in 2018,
comprised of $19,660 in average annual basic pay, plus allowances
and tax advantage) (last visited July 26, 2019); Lawrence Kapp et
al., Cong. Research Serv., RL33446, Military Pay: Key Questions and
Answers 6-9 (2019), available at https://fas.org/sgp/crs/natsec/RL33446.pdf (describing types of military compensation and federal
tax advantages) (last visited July 26, 2019).
\419\ See U.S. Gov't Accountability Office, GAO-16-561, Military
Personnel: DOD Needs More Complete Data on Active-Duty
Servicemembers' Use of Food Assistance Programs (July 2016),
available at https://www.gao.gov/assets/680/678474.pdf (reporting
estimates ranging from 2,000 active duty servicemembers receiving
SNAP to 22,000 such servicemembers receiving SNAP) (last visited
July 26, 2019). Effective FY16, Congress implemented a
recommendation by the Military Compensation and Retirement
Modernization Commission to sunset DOD's Family Subsistence
Supplemental Allowance Program within the United States, Puerto
Rico, the U.S. Virgin Islands, and Guam; SNAP reliance may have
increased somewhat following termination of the program. See Public
Law 114-92, div. A, section[thinsp]602, 129 Stat. 726, 836 (Nov. 25,
2015); Military Comp. & Ret. Modernization Comm'n, Final Report 187
(Jan. 2015) (``The [Family Subsistence Supplemental Allowance
Program] should be sunset in the United States, Puerto Rico, Guam,
and other U.S. territories where SNAP or similar programs exist,
thereby reducing the administrative costs of a duplicative
program.'').
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As noted in the NPRM, following consultation with DOD, DHS has
concluded that such an outcome may give rise to concerns about
servicemembers' immigration status or the immigration status of
servicemembers' spouses and children as defined in section 101(b) of
the Act, 8 U.S.C. 1101(b), which would reduce troop readiness and
interfere significantly with U.S. Armed Forces recruitment efforts.
This exclusion is consistent with DHS's longstanding policy of ensuring
support for our military personnel who serve and sacrifice for our
nation, and their families, as well as supporting military readiness
and recruitment.
Accordingly, DHS has excluded the consideration of the receipt of
all benefits listed in 8 CFR 212.21(b) from the public charge
inadmissibility determination, when received by active duty
servicemembers, including those in the Ready Reserve, and their spouses
and children. If a service member has since retired or otherwise been
discharged from military service, receipt of public benefits while in
the service will not be counted in the public charge consideration.
Only public benefits receipted after discharge from the military would
be considered. Applicants that fall under this exclusion must submit
proof that the servicemember is serving in active duty or the Ready
Reserve. DHS believes this should minimize any impact to military
readiness.
Comment: Some commenters suggested that the exemption that applies
to individuals serving in the Armed Forces should apply to other
individuals, such as veterans and stated that failure to include
military veterans within this carve-out is arbitrary and capricious.
The commenter stated that once an individual leaves active or reserve
duty, upon the completion of his or her enlistment, is honorably
discharged, and takes up a private job at the very same salary, the
public benefit exemption would no longer apply and thus be ineligible
for admissibility and adjustment of status. The commenter stated
military service members should be not be subject to public charge the
moment they depart the military. A commenter said the rule would have
an unintended negative impact on veterans of the U.S. military who do
not have permanent status because they have access to the public
benefits outlined in the rule. The commenter stated that their need for
access to benefits may be directly tied to injuries resulting from
their service.
A commenter stated that while applying the proposed rule to
servicemembers would have negative policy consequences, the DHS lacks
legal authority to exempt the ``public charge'' analysis from a whole
segment of the population. The commenter stated that the relevant
statute regarding ``public charge'' applies to ``[a]ny alien,'' and DHS
stated no basis on which it can exclude certain individuals from the
generally applicable proposed definition of ``public charge.'' The
commenter stated that the rule would almost certainly apply to
servicemembers like the rest of the population and therefore DHS should
abandon the rule.
Response: DHS appreciates the comments and certainly appreciates
the sacrifices that veterans have made for the United States. Among
other factors, current servicemembers have a unique pay structure
implemented by Congress that may involve the use of public benefits,
and DHS has accordingly excluded the public benefits as listed in the
rule for active duty service members in order to limit a possible
impact on military readiness. DHS does not believe the same
considerations are presented for veterans, as they do not currently
serve, are not directly affected by the military compensation
structure, and have access to a specific benefits scheme that Congress
has designed for them (and that is not designated in this rule).
Further, in light of that unique salary and benefit scheme created by
Congress for active service members and their families, DHS disagrees
with the commenter that it lacks authority to exempt use of the
designated public benefits for such individuals and families from the
definition of public charge. Rather, DHS has determined that it would
be unreasonable, and contrary to congressional intent, to include use
of public benefits by such individuals within the definition, where
doing so could undermine the careful salary and benefits structure
established by Congress and negatively affect recruitment and
readiness.
Comment: Some commenters suggested that the exemption that applies
to individuals serving in the Armed Forces should apply to other
individuals, such as members of the public who have jobs of comparable
importance to national security. The commenter stated as an example
that there is no exemption for non-uniform support members working for
or on behalf of the U.S. military, those working for State or local law
enforcement, those working for prisons, or working as firefighters or
as emergency medical technicians. The commenter stated that there is no
doubt the U.S. ``Government is profoundly grateful for the unparalleled
sacrifices'' of police officers, firefighters, and emergency medical
technicians, but the rule does not exclude the public benefits received
from these individuals. Other commenters indicated that the failure to
exempt first responders and veterans or other groups was irrational,
because military service members are not the only ones serving in roles
important to national security.
Response: DHS refers the commenters to the explanations above
regarding this rule's treatment of active duty servicemembers,
including those in the Ready Reserve, and their spouses and children.
DHS recognizes that many professionals, including first responders,
also provide important services for the public, and make sacrifices
that are critical and worthy of our gratitude. However, DHS believes
that Armed Forces members and their spouses and children are uniquely
positioned in this context, and that DHS should not extend similar
treatment to other categories of applicants based on their employment
or public service.
b. Supplemental Security Income
Comment: Multiple commenters opposed the inclusion of SSI and
stated that SSI supports children with disabilities, and that a child
who begins receiving SSI is less likely to fall below the poverty line.
The commenters stated that the inclusion of SSI in the public charge
rule threatens the health, safety, and well-being of the children and
families that receive it. One commenter stated that SSI benefits
represented 1.4 percent of the Federal Budget in FY 2012, and there is
no reason to believe that the complete data recited in the ``one
analysis'' relied on by the DHS for 2017 would be any different. The
commenter stated that SSI was 0.33 percent of GDP in the years 2011 to
2012, and expected to decline to 0.23 percent in 2037. Further, the
commenter said 86 percent of SSI benefits are paid to the disabled,
concluding that it is
[[Page 41373]]
irrational to exclude individuals with disabilities by claiming that
they are likely to become a public charge. In contrast, other
commenters asserted that only U.S. citizens should receive SSI.
Response: DHS appreciates the comments, however, DHS has determined
that it will consider SSI as described in the rule. DHS notes that this
decision is consistent with the 1999 Interim Field Guidance, and that,
as discussed in the NPRM, SSI represents one of the largest Federal
expenditures for low-income people.\420\ As provided in the NPRM, SSI
was included as public benefit because it provides monthly income
payments for people with limited resources, is financed through general
revenues, and has high expenditures.\421\ DHS has determined that
considering SSI in the rule, consistent with the 1999 Interim Field
Guidance, is important in ensuring that aliens are self-sufficient and
rely on their own capabilities and the resources of their families,
their sponsors, and private organizations.
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\420\ See Gene Falk et al., Cong. Research Serv., R45097,
Federal Spending on Benefits and Services for People with Low
Income: In Brief (2018), available at https://fas.org/sgp/crs/misc/R45097.pdf (last visited July 26, 2019).
\421\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51166 (proposed Oct. 10, 2018).
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c. Temporary Assistance for Needy Families
Comment: Several commenters opposed the inclusion of TANF in the
rule. One commenter stated that TANF helps families achieve self-
sufficiency through support that allows parents to send their children
to high-quality child care programs, and that including consideration
of TANF could therefore harm families. Some commenters stated that TANF
is the only source of Federal cash assistance for families with
children, and that research shows that children make up about 77
percent of recipients. The commenters went on to state that families
use cash assistance to aid in achieving economic security and working
towards upward mobility, and that the inclusion of TANF in the proposed
rule will be detrimental to children during their developmental years.
The commenters stated that families who disenroll from TANF would lose
their eligibility to receive free school meals, which would result in
hungry children, homeless and precariously housed families, sicker
adults and children, and reduced access to behavioral health services.
Another commenter indicated that while the majority of TANF recipients
are children, there is a current decrease in children receiving cash
assistance (under 25 percent of all poor families with children) and
the rule would further restrict access. The commenter also indicated
that the rule fails to recognize that States are increasingly choosing
to provide TANF to working families who earn too much to qualify for
the basic cash assistance programs and that research has shown that
such policies, which ``make work pay,'' improve employment outcomes
because they serve as an effective incentive for families to find and
keep jobs.
Response: DHS appreciates the comments; however, DHS has determined
that considering TANF in the rule, consistent with the 1999 Interim
Field Guidance, is important in ensuring that aliens are self-
sufficient and rely on their own capabilities and the resources of
their families, their sponsors, and private organizations. As provided
in the NPRM, TANF was included as public benefit because it provides
monthly income payments for low-income families and is intended to
foster self-sufficiency, economic stability for families with children
and has high expenditures.\422\
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\422\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51166 (proposed Oct. 10, 2018).
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Comment: Some commenters added that TANF helps families enroll
their children in childcare, which is a lifeline for working families.
A commenter explained that, while the Child Care and Development Fund
(CCDF) is the primary source of public funding for child care, a state
may transfer up to 30 percent of its TANF funds to CCDF, or directly
allocate its TANF funds, to provide child care subsidies to families in
need. The commenter went on to provide statistics on the number of
children in child-care and discussed the child-care support that TANF
provides for working families. The commenter also provided data on the
number of children in childcare and that one in six children eligible
for CCDF services gain access to quality care.
Response: States may transfer TANF funding to other benefits
including childcare, but this not considered cash TANF.\423\ As only
the ``cash assistance for income maintenance'' portion of TANF is
considered in the public charge inadmissibility determination, direct
TANF spending on child care and transfers to CCDF are excluded from the
definition of public benefit for purposes of this rule.
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\423\ See PRWORA, Public Law 104-193 (Aug. 22, 1996). See HHS,
Office of Family Assistance, 2014 Child Care Reauthorization and
Opportunities for TANF and CCDF (Feb. 19, 2016), available at
https://www.acf.hhs.gov/ofa/resource/tanf-acf-im-2016-02-2014-child-care-reauthorization-and-opportunities-for-tanf-and-ccdf (last
visited July 26, 2019).
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Comment: One commenter stated that TANF ``child-only'' grants
should be exempted from the proposed rule as they support the needs of
children raised by extended relatives without parents. The commenter
indicated that unlike TANF family grants, ``child-only'' grants are
based solely on the income of the child and are only to meet their
needs whether outside or inside the foster care system. The commenter
stated that many children living with relatives in foster care are only
offered TANF child-only support, since many states do not routinely
license relatives and the children are consequently ineligible for
foster care maintenance payments.
Response: DHS appreciates the comments, but notes the ``child-only
grants'' are based solely on the needs of the child (i.e., does not
take the adults' needs into account when calculating the assistance
benefit)' as opposed to the income of the child.\424\ TANF cash
assistance provided to a child is considered a public benefit under
this rule. States may fund a variety of child welfare activities using
TANF funds, including services for family reunification, parenting
education, in-home family services, and crisis intervention.\425\ TANF
is only considered in the public charge inadmissibility determination
if it is in the form of cash assistance for income maintenance. Again,
non-cash TANF funded services are not included in the rule. States may
transfer TANF funding to other benefits including childcare, which is
not being considered in the rule. However, as previously discussed,
there is no public charge exemption for children, therefore, any cash
benefit receipt, including TANF, by a child generally would still be
considered as a public benefit in public charge inadmissibility
determination.
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\424\ See U.S. Department of Health and Human Services,
Temporary Assistance For Needy Families, 12th Report to Congress
Fiscal Years 2014 and 2015, available at https://www.acf.hhs.gov/sites/default/files/ofa/12th_annual_tanf_report_to_congress_final.pdf (last visited July 23,
2019).
\425\ HHS, Child Welfare Information Gateway, Temporary
assistance for Needy Families (TANF), available at https://www.childwelfare.gov/topics/management/funding/program-areas/prevention/federal/nondedicated/tanf (last visited July 26, 2019).
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d. State, Local and Tribal Cash Assistance
Comment: A commenter provided information on various Washington
State programs designed to provide individuals and families with the
resources and support. The commenter
[[Page 41374]]
stated that in the FY 2017, approximately one in four Washington
residents needed cash, food, child support, child care, and other
services and that each day, more than two million individuals receive
the support and resources they need from the state to transform their
lives. The commenter stated that Washington invests general state funds
to assist individuals and families who are ineligible for Federal
programs to include lawfully present non-citizens who fail to meet
federal eligibility qualifications established in the PRWORA. The
commenter described the following programs: State Family Assistance;
Food Assistance Program for Legal Immigrants; Aged, Blind, or Disabled
Cash Assistance; Pregnant Women Assistance; Consolidated Emergency
Assistance Program; Refugee Cash Assistance; Housing and Essential
Needs Referral; Diversion Cash Assistance; and State Supplemental
Payment. The commenter indicated that the rule would undermine the
success of these programs that involve cash or non-monetized benefits
and eligible applicants may refuse to receive these benefits.
Response: DHS appreciates the comments; however, DHS has determined
that considering state cash assistance in the rule, consistent with the
1999 Interim Field Guidance, is important in ensuring that aliens are
self-sufficient and rely on their own capabilities and the resources of
their families, their sponsors, and private organizations. The programs
listed by the commenter that provide cash assistance would be
considered public benefits in the public charge inadmissibility
determination even if the funding is provided by the state unless they
are provided to individuals not subject to public charge such as
Refugee Cash Assistance or are not for general income maintenance
(e.g., if they are not means-tested or if they are provided for some
specific purpose that is not for food and nutrition, housing, or
healthcare). For example, LIHEAP (Low Income Home Energy Assistance
Program) and emergency disaster relief would not be considered as a
public benefit in the public charge inadmissibility determination even
though they may be considered as a cash or cash equivalent benefits.
e. Supplemental Nutrition Assistance Program
Comment: Many commenters stated that the rule's inclusion of public
benefits such as SNAP affects other public benefits including
children's ability to access other needed benefits, particularly at
school. The commenters explained that some benefits received at school
(e.g., free school meals) are linked to enrollment in SNAP benefits and
could be impacted. A commenter stated that the proposed rule is
inhumane, affecting families' ability to access SNAP to get the
adequate food and nutrition they need. The commenter stated that hunger
and malnutrition affects a person's ability to focus, function, and
fight off disease and that hunger is already a serious problem in the
United States. The commenter stated that aiding the hunger epidemic
through the consideration of SNAP is against the public interest and
the progression of our society. A commenter said the onerous
restrictions initially placed on immigrant participation in SNAP during
the 1996 reforms were reversed at the next available opportunity--the
2002 Farm Bill--which illuminates the sound public policy of ensuring
that every family living in the United States has access to the
resources necessary to feed their children.\426\ A commenter stated
that only 40 percent of eligible citizen children living in households
with immigrants received SNAP benefits after changes to immigration and
welfare law in the 1990s.
Response: DHS appreciates the comments and recognizes the
importance of SNAP. DHS also acknowledges that some people may choose
to disenroll from SNAP. However, this rule does not change the
eligibility requirements of SNAP and does not prohibit individuals from
receiving SNAP. In addition, this rule does not include school lunch or
breakfast programs in the definition of public benefit. Further, the
expansion of SNAP provisions for children under 18 established by the
2002 Farm Bill,\427\ is only applicable to the five-year waiting
period; therefore children who become lawful permeant residents do not
need to wait five years before being eligible for SNAP.\428\ However,
DHS will consider SNAP as part of the public charge inadmissibility
determination. DHS has determined that considering SNAP is important in
ensuring that aliens are self-sufficient and rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations. DHS believes that even though children and
schools may no longer benefit from direct certification for school
nutrition programs, a child's disenrollment from SNAP due to this rule
would likely have no effect on the child's eligibility for school
nutrition programs, and would not stop the child and school from
accessing these programs through existing enrollment processes other
than direct certification. This rule would not prevent a child from
applying for or receiving any school related nutrition program.
---------------------------------------------------------------------------
\427\ See Public Law 107-171, section 4401, 116 Stat. 134, 333
(May 13, 2002).
\428\ See 8 U.S.C. 1612(a)(2)(J).
---------------------------------------------------------------------------
Comment: A couple of commenters said the rule would violate the
prohibition in Section 8(b) of the Food and Nutrition Act from
considering SNAP benefits as income or resources. For example,
commenters stated that the inclusion of SNAP is inconsistent with the
SNAP statute that states that ``the value of benefits that may be
provided under this chapter shall not be considered income or resources
for any purpose under any Federal, State, or local laws.'' Commenters
also stated that the inclusion of SNAP is inconsistent with
congressional intent to expand SNAP eligibility to immigrant children.
Similarly, a commenter stated that SNAP should be excluded from the
public charge definition because the legislative history of SNAP
indicates that SNAP was intended to be supplemental in nature. The
commenter suggested that it would be unreasonable to consider receipt
of a supplemental benefit to be sufficient to render a person a public
charge. Discussing the legislative history surrounding the past four
Farm Bills, a commenter stated that SNAP enjoys bipartisan support and
Congress has rejected efforts to reduce its reach. The commenter stated
that the proposed rule would reduce benefits for low-income children of
immigrant parents and that this was inconsistent with congressional
intent. A commenter said the onerous restrictions initially placed on
immigrant participation in SNAP during the 1996 reforms were reversed
at the next available opportunity--the Farm Security and Rural
Investment Act of 2002 (the 2002 Farm Bill)--which illuminates the
sound public policy of ensuring that every family living in the United
States has access to the resources necessary to feed their children.
Response: DHS disagrees that the rule is contrary to congressional
intent. The fact that Congress has expanded which aliens can receive
certain public benefits does not indicate a congressional intent that
those benefits should not be considered in determining public charge.
The rule abides by the statutory requirement as provided in section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), and is consistent with
congressional policy statements relating to self-sufficiency in 8
U.S.C. 1601. In these policy statements, Congress confirmed that the
[[Page 41375]]
immigration policy continues to be that, ``aliens within the Nation's
borders not depend on public resources to meet their needs, but rather
rely on their own capabilities and the resources of their families,
their sponsors, and private organizations.'' \429\
---------------------------------------------------------------------------
\429\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
Further, DHS disagrees that the inclusion of SNAP as one of the
designated public benefits violates the Food and Nutrition Act of 2008.
While Federal law allows certain qualified alien children under 18 to
receive SNAP benefits,\430\ this rule does not prohibit anyone from
receiving a benefit for which they qualify. However, Congress did not
prohibit the consideration of public benefits as part of any of the
factors to be considered in the public charge inadmissibility
determination. DHS believes the use of certain benefits is appropriate
to consider in determining public charge inadmissibility. To implement
Congress' requirement to administer the public charge ground of
inadmissibility, DHS inevitably must consider benefits which
individuals are eligible to receive, as did the 1999 Interim Field
Guidance. DHS believes the rule strikes an appropriate balance as to
which benefits are considered.
---------------------------------------------------------------------------
\430\ See 8 U.S.C. 1612(a)(2)(J).
---------------------------------------------------------------------------
Further, DHS disagrees that the rule violates the restrictions in
section 8(b) of the Food and Nutrition Act, 7 U.S.C. 2017(b). That
section provides that the value of SNAP benefits ``shall not be
considered income or resources for any purpose under any Federal,
State, or local laws.'' \431\ The rule does not consider SNAP as income
or resources. The rule explicitly excludes the value of public benefits
including SNAP from the evidence of income to be considered.\432\
Likewise, the consideration of the assets is limited to cash assets and
resources and other assets and resources that can be converted into
cash within 12 months.\433\ Assets and resources do not include SNAP
benefits, which are not cash, and selling SNAP benefits is
illegal.\434\
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\431\ Congress has also exempted children under 18 from sponsor
deeming requirements for purposes of SNAP receipt, 7 U.S.C.
2014(i)(2)(E), but this provision does not affect the core
reimbursement obligation. In the latter respect, this provision is
materially different than the CHIPRA provision regarding Medicaid
for children under 21 and pregnant women, discussed above.
\432\ See 8 CFR 212.22(b)(4)(ii)(A) & (C) (``excluding any
income from public benefits'').
\433\ See 8 CFR 212.22(b)(4)(ii)(D) & (E).
\434\ See 7 U.S.C. 2024(b).
---------------------------------------------------------------------------
Comment: Several commenters said that this rule conflicts with
USDA's 1999 input as part of the 1999 proposed rule,\435\ which advised
that special nutrition programs should not be considered in public
charge analysis. A commenter cited to the 1999 Interim Field Guidance,
and stated that historically, the receipt of SNAP benefits (or the
typical use of Medicaid) does not indicate that an immigrant is or is
likely to become primarily dependent on the Government for subsistence.
The commenter stated that to qualify for benefits, a SNAP household's
income generally must be at or below 130 percent of FPG, the
household's net monthly income (after deductions for expenses like
housing and childcare) must be less than or equal to 100 percent of the
FPG, and its assets must fall below limits identified in Federal
regulations. The commenter further stated that the average monthly
benefit per household is $253, and the average monthly benefit per
person is $125 per month, or $1.40 per meal.
---------------------------------------------------------------------------
\435\ See Inadmissibility and Deportability on Public Charge
Grounds, 64 FR 28,676, 28,688 (proposed May 26, 1999).
---------------------------------------------------------------------------
Response: As indicated in the proposed rule, DHS determined that
receipt of SNAP is relevant to the determination of whether or not the
alien is self-sufficient, and therefore not likely to become a public
charge. The 1999 proposed rule, and the associated letters, related to
a proposed definition of public charge that this rule would change.
Furthermore, while INS consulted with the relevant public benefit
granting agencies in 1999, DHS was not bound by those agencies'
recommendations, but adopted them based on its interpretation of the
term public charge, as well as certain public policy objectives
articulated in that rule. DHS believes including the program is
consistent with Congress' intention that aliens should be self-
sufficient.\436\ DHS recognizes that some public benefits have higher
income thresholds than the income thresholds that this rule identifies
as most relevant to the totality of the circumstances determination.
However, the general income threshold of 125 percent of the FPG in the
public charge totality of the circumstances determination is just one
factor; DHS will not exclude consideration of any benefit that does not
match that threshold.
---------------------------------------------------------------------------
\436\ See 8 U.S.C. 1601(1).
---------------------------------------------------------------------------
Comment: One commenter noted that the rule is inconsistent with
SNAP eligibility. Commenters stated that the proposed rule undermines
congressional intent and the longstanding Federal commitment to helping
those who struggle to have enough healthy food. Commenters stated that
the proposed rule is inconsistent with clear congressional intent
regarding eligibility for means-tested programs because it undermines
those very rules set by Congress in law. One commenter stated that
``Congress has made explicit choices to expand eligibility (or permit
states to do so),'' and increase immigrant access to programs like
SNAP, CHIP and Medicaid, and therefore, ``[t]he administration must
defer to [c]ongressional intent on this issue.''
Response: DHS does not agree that the inclusion of SNAP as a public
benefit considered in the public charge inadmissibility determination
is inconsistent with congressional intent. The rule intends to abide by
the statutory requirement as provided in section 212(a)(4) of the Act,
8 U.S.C. 1182(a)(4), and consistent with congressional statements
relating to self-sufficiency in 8 U.S.C. 1601: Specifically, that,
``aliens within the Nation's borders not depend on public resources to
meet their needs, but rather rely on their own capabilities and the
resources of their families, their sponsors, and private
organizations.'' \437\ As discussed in the NPRM, benefits directed
toward food and nutrition, housing, and healthcare are directly
relevant to public charge inadmissibility determinations, because a
person who needs the public's assistance to provide for these basic
necessities is not self-sufficient.\438\ In addition, these benefits
account for significant Federal expenditure on low-income individuals
and bear directly on self-sufficiency, as discussed in the NPRM.\439\
---------------------------------------------------------------------------
\437\ See Public Law 104-193, section 400, 110 Stat. 2105, 2260
(Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
\438\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51159 (proposed Oct. 10, 2018).
\439\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51166 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter stated that the proposed rule's
characterization of individuals receiving SNAP benefits even for modest
periods of time as a public charge is inconsistent with extensive
research showing that SNAP provides supplemental assistance to a large
number of workers, both while they are employed in low-paying jobs and
during brief periods of unemployment. The commenter stated that most
non-disabled adults who participate in SNAP, including eligible
immigrants, work in a typical month or within a year of that month.
Specifically, the commenter asserted that over half of the individuals
who
[[Page 41376]]
were participating in SNAP in a typical month in mid-2012 were working
in that month, and 74 percent worked in the year before or after that
month. Similarly, many other commenters stated that the large majority
of SNAP recipients who can work do work.
Response: DHS recognizes that people who are working may also lack
self-sufficiency. The person's employment does not negate that the
person is receiving the public benefit and the employment is not
reimbursing the public benefit-granting agency for the cost of the
public benefit. Under this rule, DHS would not treat past receipt of
SNAP--or any other benefit--as outcome-dispositive. Instead, will
assess such past receipt in the totality of the circumstances, to
determine whether the alien is likely to become a public charge in the
future.
CalFresh
Comment: A commenter stated that one in ten Californians receive
nutrition assistance through CalFresh, which is California's SNAP
program. The commenter stated that CalFresh is California's food stamp
program and increases the food buying power in low income households.
The commenter stated that if this proposed rule is enacted, school
districts will see more children coming to school hungry because
noncitizen families, regardless of whether the rule would affect their
situation, will be afraid to apply for food stamps, either by deciding
not to enroll, or by disenrolling current recipients.
Response: As CalFresh is the Federally-funded SNAP program under
the State of California, it would be considered as a public benefit
under this rule. As discussed with respect to SNAP generally, CalFresh
is relevant to the determination of whether or not the alien is self-
sufficient, and therefore not likely to become a public charge. DHS
understands that some people may disenroll from SNAP/CalFresh and other
SNAP funded State benefits. However, this rule does not change the
eligibility requirements for these benefits and DHS believes that the
inclusion of State SNAP benefits is consistent with congressional
statements relating to self-sufficiency in 8 U.S.C. 1601.
f. Housing
Comment: Commenters opposed including project-based Section 8
housing in the definition of public charge, because the vouchers can
help ease the burden of rent in high-cost cities, help alleviate
homelessness, promote economic stability, allow the flexibility for
families to pay for other necessities, and promote self-sufficiency.
Commenters also provided information and data on the benefit of the
programs. Many of these commenters stated that housing is a basic
necessity and is or should be a human right. Several commenters
discussed the administrative burden and costs the potential rule will
have on housing providers, including local rule makers, housing
agencies, and private landlords who administer public vouchers, such as
the dissemination of information to tenants and providing them with
evidentiary information. Other commenters raised concerns that DHS did
not sufficiently address the potential costs to the housing market,
including the inundation of homeless shelters, and the loss of
Government funds going to the private market. A commenter raised
concerns that the rule will divert funds from direct housing and
resident services to help U.S. Department of Housing and Urban
Development (HUD) residents understand the new rule.
Response: DHS appreciates the comments and recognizes the
importance of housing programs. DHS has determined that considering
housing programs, such as Section 8 Vouchers, Section 8 Rental
Assistance and public housing, in the rule is important in ensuring
that aliens are self-sufficient and rely on their own capabilities and
the resources of their families, their sponsors, and private
organizations. These programs have high expenditure and relate to the
basic living need of housing, and therefore the receipt of such housing
related public benefit suggests a lack of self-sufficiency.\440\ DHS
will therefore consider the housing programs listed in the rule in the
public charge inadmissibility determination. The rule intends to abide
by the statutory requirement as provided in section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), and be consistent with congressional
statements relating to self-sufficiency in 8 U.S.C. 1601. As Congress
indicated, the immigration policies continue to be that, ``aliens
within the Nation's borders not depend on public resources to meet
their needs, but rather rely on their own capabilities and the
resources of their families, their sponsors, and private
organizations.'' \441\ However, housing programs that provide mortgage
assistance or credits will not be considered in the public charge
inadmissibility determination.
---------------------------------------------------------------------------
\440\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51167 (proposed Oct. 10, 2018).
\441\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
Comment: A commenter stated that receipt of a housing subsidy does
not on its own accurately measure self-sufficiency, citing that 34
percent of assisted households are working and contributing to their
housing costs. The commenter also stated that housing programs do not
constitute an incentive for immigration. The average number of months a
household spends on an agency waiting list before being admitted to the
public housing or housing choice voucher program is 18 and 32,
respectively. A commenter also stated that rental assistance is best
understood as a supplemental benefit that reduces housing costs for
low-income households but does not provide support for all of an
individual's basic needs, instead recipients are generally required to
provide housing costs up to 30 percent of their income. A commenter
stated that a small share of individuals and households eligible for
housing assistance actually receive it because of local housing
conditions, wait list sizes, and preferences, DHS will not be able to
predict that someone seeking status adjustment or lawful entry is
likely to receive housing benefits.
Response: DHS understands that there are many conditions that may
affect whether a person ultimately receives public housing. As
previously indicated, DHS has determined that considering housing
programs, such as Section 8 Vouchers, Section 8 Rental Assistance, and
public housing, in the rule is important in ensuring that aliens are
self-sufficient and rely on their own capabilities and the resources of
their families, their sponsors, and private organizations. As
previously indicated, the past receipt of one public benefit will not
on its own make a person inadmissible based on public charge grounds.
Instead, DHS would review all the factors in the totality of the
circumstances.
Comment: Some commenters stated that, by including housing
programs, the rule directly contradicts the mission of public housing
as public housing programs are meant to serve families and provide for
housing.
Response: DHS appreciates that the mission of public housing is to
provide low-income affordable housing to families. DHS also has a
mission to abide by congressional mandates to review the
inadmissibility of all aliens including based on public charge and
congressional statements relating to self-sufficiency in 8 U.S.C. 1601.
Comment: A commenter stated that the rule would waste affordable
housing
[[Page 41377]]
resources, including subsidized rental housing programs such as Low-
Income Housing Tax Credit (LIHTC) housing, Section 515 rural housing,
and Section 514/516 farm labor housing, leading to especially severe,
negative impacts in rural California, and the commenter stated that the
rule would further destabilize the farmworker population in our
agricultural regions. The commenter indicated that from 1964 to 2004,
Section 514 and 516 housing programs managed by USDA financed nearly
35,000 homes for farmworkers and rehabilitated thousands more and that
that in the period that followed, farmworker housing development
continued to be backed by annual Federal appropriations in the tens of
millions of dollars. The commenter stated that housing programs have
had varying eligibility requirements that have allowed individuals with
a variety of immigration statuses and mixed-status families to secure
stable, affordable housing; and the rule would therefore lead to
significant dislocation of immigrant families, away from housing that
was built precisely for their use.
Response: This rule does not include LIHTC housing, Section 515
rural housing, and Section 514/516 farm labor housing as public
benefits. Further, although the rule may affect whether individuals
apply for housing, the rules does not change the eligibility
requirements for any public benefit. DHS also notes that under 20 CFR
655.122(d)(1), the employer must provide housing at no cost to the H-2A
workers (temporary workers performing agricultural services), and those
workers in corresponding employment who are not reasonably able to
return to their residence within the same day. Further, under 20 CFR
655.122(d)(4), if public housing provided for migrant agricultural
workers under the auspices of a local, county, or State government is
secured by the employer, the employer must pay any charges normally
required for use of the public housing units directly to the housing's
management. DHS would not consider such housing under the definition of
public benefit as the employer is required by regulation to pay for any
associated costs.
Comment: A commenter said data refuted the notion that immigrant
families rely disproportionately on all forms of public assistance,
citing a study indicating that just 4.2 percent of immigrant households
with children utilize housing assistance as compared to 5.3 percent of
U.S.-born households. A couple of commenters cited research showing
that most able-bodied adults receiving rental assistance are employed,
arguing that they are therefore self-sufficient.
Response: DHS appreciates the comment and recognizes that the
availability of public benefits for aliens is limited. The purpose of
the public charge rule is, however, to ensure that those seeking
admission to or adjustment of status in the United States do not become
public charges by using the public benefits in the future. The public
charge inadmissibility determination is correspondingly one of an
alien's likelihood of becoming a public charge through receipt of
benefits in the future even if the person is employed. Further, as
previously indicated, DHS recognizes that people receiving public
benefit may nonetheless be working, but as they are receiving public
benefits, such aliens are not self-sufficient. Therefore, DHS will
continue to consider the public benefits as listed in the rule.
Comment: A commenter stated that DHS should specify in its rule
that individuals in mixed-status families who are not recipients of
Federal financial housing assistance do not receive a public benefit
for public charge determination purposes.
Response: DHS will not consider a person who lives in any one of
the listed housing programs as receiving public benefits unless the
public benefit-granting agency actually designated the benefit for the
applicant as a beneficiary, such as in a contract, lease, or other
documentation.
Comment: A commenter stated that including housing to the public
charge determination will cause recipients of public housing to be
treated differently due to their immigration status, in contradiction
to the Fair Housing Act \442\ of 1968's prohibition against
discrimination.
---------------------------------------------------------------------------
\442\ See 42 U.S.C. 3604.
---------------------------------------------------------------------------
Response: DHS does not believe that the rule is contrary to the
antidiscrimination provisions of the Fair Housing Act.\443\ The
antidiscrimination provisions prohibit discrimination on grounds
covered by the Fair Housing Act by lenders, property sellers, and
others covered by that law. In contrast, this rule is applicable in the
immigration context where an alien must establish that he or she is
admissible and is not inadmissible as likely at any time in the future
to become a public charge under section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4).
---------------------------------------------------------------------------
\443\ See Title VIII (Fair Housing Act, as amended) of the Civil
Rights Act of 1968, Public Law 90-284, 82 Stat. 73 (April 11, 1968)
(codified in 42 U.S.C. 3601-19).
---------------------------------------------------------------------------
Comment: A few commenters asked whether homeownership programs are
included under the rule.
Response: The rule does not consider homeownership programs, such
as the Housing Choice Voucher Homeownership program,\444\ in the public
charge inadmissibility determination. DHS will only consider public
housing benefits as listed in the rule.
---------------------------------------------------------------------------
\444\ See 24 CFR part 982, subpart M, 24 CFR 982.625-982.643.
See also HUD.gov, Homeownership Vouchers, available at https://www.hud.gov/program_offices/public_indian_housing/programs/hcv/homeownership (last visited April 19, 2019).
---------------------------------------------------------------------------
Comment: A commenter requested that DHS add benefits received
pursuant to Project Rental Assistance Contracts (PRAC), USDA rental
assistance projects, or all HUD benefits to the public benefits
definition.
Response: DHS appreciates the comment, however, DHS will not
include additional housing programs. The programs listed by the
commenters have low expenditures.\445\
---------------------------------------------------------------------------
\445\ For example, Supportive Housing for the Elderly, the 2019
Request for Outlays is $659,000,000, see HUD, Housing, Housing For
The Elderly (Section 202), 2019 Summary Statement and Initiatives,
available at https://www.hud.gov/sites/dfiles/CFO/documents/25%20-%20FY19CJ%20-%20HSNG%20-%20Housing%20for%20the%20Elderly%20%28Section%20202%29%20-%20Updated.pdf (last visited May 31, 2019); for Supportive Housing
for Persons with Disabilities, the 2019 Request for Outlays is
$188,000,000, Housing, Housing For Persons With Disabilities
(Section 811), 2019 Summary Statement and Initiatives, available at
https://www.hud.gov/sites/dfiles/CFO/documents/26%20-%20FY19CJ%20-%20HSNG%20-%20Housing%20for%20Persons%20with%20Disabilities%20%28Section%20811%29%20-%20Updated.pdf (last visited May 31, 2019); for Housing for
Persons With AIDS (HOPWA), the 2019 Request for Outlays is
$353,448,000, see Community Planning And Development Housing
Opportunities For Persons With Aids 2019 Summary Statement And
Initiatives, available at https://www.hud.gov/sites/dfiles/CFO/documents/17%20-%20FY19CJ%20-%20CPD%20-%20Housing%20Opportunities%20for%20Persons%20with%20AIDS%20%28HOPWA%29.pdf (last visited May 31, 2019); and for USDA Multi-Family Housing
Rental Assistance, the 2019 appropriated funds is $1,331,400,000,
see FY 2019 Appropriated Funds, available at https://www.rd.usda.gov/newsroom/fy2019-appropriated-funding (last visited
May 31, 2019).
---------------------------------------------------------------------------
In addition, DHS has removed references to 42 U.S.C. 1437u, the
Family Self-sufficiency program, and 24 CFR part 402 Section 8 Project-
Based Contract Renewal, which is a program associated with housing but
is not itself a housing program.
Comment: A commenter associated with the City of Los Angeles
reported that the beneficiaries of many city housing programs and
policies will be directly negatively impacted by the proposed public
charge rule. The
[[Page 41378]]
commenter cited programs such as permanent support housing, including
Section 8 Vouchers; Housing Opportunities for Persons With HIV/AIDS;
Domestic Violence Shelter Operations; and Family Source Center
services. The commenter indicated that the rule will either dissuade
immigrants who legally qualify for public assistance from seeking the
necessary services or lead to high level of disenrollment. The
commenter indicated that some program officials could not confidently
offer aliens clear guidance on the immigration consequences of
accessing certain services. The commenter stated that the rulemaking
would exacerbate homelessness and has already led to a ``chilling
effect.'' The commenter also stated that the proposed rule was
inconsistent with the commenter's commitment to ensure fair housing for
its residents, and threatens its ability to enforce housing rights for
local residents. The commenter stated that such commitment includes a
requirement by HUD to certify that it would affirmatively further fair
housing.
Response: The public charge rule does not prevent aliens from
obtaining benefits they are legally entitled to under PRWORA. Given
Congress' strong interest in an immigrant's self-sufficiency \446\ and
based on the fact that Congress did not exempt the receipt of such
benefits from consideration for purposes of section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4),\447\ DHS will consider public benefits as
listed in the rule. DHS notes that other housing programs not listed in
the rule, such as Section 202 Supportive Housing for the Elderly,
Section 811 Supporting Housing for Person with Disabilities, Housing
Opportunities for Persons With AIDS (HOPWA), USDA Multi-Family Housing
Rentals, and home loan and grant programs, will not be considered in
the public charge inadmissibility determination.
---------------------------------------------------------------------------
\446\ As expressed in 8 U.S.C. 1601.
\447\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Comment: A commenter asked whether the following benefits received
as part of a lead paint abatement program would be considered public
benefits for purposes of public charge; any stipend received as part of
the program, including stipends or gift cards that are offered to
encourage families to get their children tested for lead; the use of a
city-operated lead safe house to which families may move during
renovation of their home to remove lead; or receipt of HUD grant funds
used to pay a landlord of a rental unit to rehabilitate a unit that has
been found to have poisoned a child. The commenter indicated that many
of the funds used for lead abatement programs are HUD grant dollars,
and to the extent that these payments are made available based upon the
income of the renter, they could have an impact on the renter from a
public charge standpoint.
Response: DHS will not consider any subsidies or grants provided to
test for lead paint or to ameliorate homes with lead paint issues in
the public charge determination. DHS will only consider those public
housing programs enumerated in 8 CFR 212.21(b). HUD's Lead-Based Paint
and Lead Hazard Reduction Demonstration Grant Programs are regulated
under 24 CFR part 35, and do not fall under the list of enumerated
benefits. Therefore, subsidies or grants for lead abatement programs
are not considered a public benefit for purpose of the public charge
inadmissibility determination.
g. Institutionalization
Comment: A commenter asked that institutionalization for long-term
care be removed as a consideration in the public charge determination
because the country has made progress with deinstitutionalization over
the past several administrations. The commenter also stated that there
is no evidence that people with significant disabilities are taking
advantage of the Medicaid system. The commenter stated that the rule's
potential effects on individuals with disabilities created an
implication that individuals with disabilities were not welcomed
citizens of the United States, and stated that this was an ``appalling
message.'' A commenter stated that despite deinstitutionalized supports
and services becoming more and more prevalent, most people with
disabilities receiving any Medicaid supports must first prove that they
are at risk of institutionalization. The commenter stated that the
requirement to prove risk of institutionalization applies to virtually
every individual with an intellectual and/or developmental disability
in the United States regardless of immigration status. The commenter
stated that inclusion of institutionalization in the public charge rule
would thus automatically cast a mark against a person with a disability
under the proposed rule.
Response: DHS appreciates the comments. DHS does not believe that
all individuals with an intellectual or developmental disability will
necessarily be institutionalized, be likely to be institutionalized, or
be inadmissible based on public charge grounds. As explained in the
NPRM,\448\ the U.S. Government subsidizes health insurance, which pays
for expenses associated with the institutionalization. The receipt of
these benefits to provide for the cost of institutionalization
indicates a lack of self-sufficiency in satisfying basic living needs
of food and nutrition, housing, and healthcare. Additionally,
institutions are residential facilities that assume the total care of
the basic living requirements of individuals who are admitted,
including room and board. However, DHS understands that the language in
the NPRM could be interpreted as inclusive of other public benefits not
listed in the rule, such as Social Security retirement benefits or
Medicare. Therefore, DHS has removed the reference to long-term
institutionalization within the definition of public benefit, as the
long-term institutionalization benefits that DHS has in the past
considered, and intends to consider under this rule, are already part
of the public benefit definition, i.e., TANF, SSI, and Medicaid.
---------------------------------------------------------------------------
\448\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51171-72 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Further, DHS disagrees that continuing to consider
institutionalization for long-term care at government expense indicates
that the United States does not welcome people with disabilities. DHS
reiterates that a child or a person who is severely disabled or who has
a severe medical condition and who lives in a long-term care facility
at government expense would not be found inadmissible on the public
charge ground solely on account of the past institutionalization.
Instead, DHS will, in the totality of the circumstances, take into
account whether there are sufficient assets and resources to provide
for his or her future care in a privately-financed setting, including
resources provided by guardians or relatives who may have the ability
to support the alien and provide for the alien's future care.
Comment: One commenter stated that most of the population would
eventually require long-term care in nursing homes. A commenter stated
that including benefits provided for institutionalization is a
virtually blanket conclusion that all immigrants are ``likely'' to
become public charges, because a huge percentage of aging individuals
in the United States will ultimately require some form of institutional
care. The commenter cited to data that, according to the commenter,
indicated nursing homes alone will ultimately care for 35 percent of
the population. The commenter said
[[Page 41379]]
considering these services as public benefits would render all
immigrants inadmissible. A commenter stated that institutionalization
cannot be predicted and asked what would happen if an alien previously
deemed admissible later became disabled, but documented that they will
not need benefits at any time in the future.
Response: DHS understands that people may need long-term care with
age; however, DHS does not believe that everyone will need to be
supported by the Government. For example, an alien or his or her family
may have sufficient assets or resources to ensure that the alien has
the necessary care, even in a circumstance where the alien cannot work
or must be institutionalized. Or the alien could have adequate
insurance to support institutionalization for long-term care, whether
through a private insurer or through Medicare.
The public charge inadmissibility determination calls for a
determination that it is more likely than not, in the totality of the
circumstances, that the alien will become a public charge. For this
reason, DHS would consider it unreasonable to assume, for purposes of
the public charge determination, that all individuals will eventually
live in nursing homes subsidized by the government. USCIS will not deny
a person based on public charge solely because of a remote possibility
that a person will need such care in advanced age. DHS also clarifies
that the public charge inadmissibility determination does not
necessarily involve a review of whether the person has actually
received a public benefit after DHS has made its determination. DHS
further understands that the language in the regulation may indicate
that other public benefits not otherwise listed that may be used to
fund institutionalization, including State benefits, Social Security
retirement benefits, SSDI, or Medicare. When referring to public
benefits used for long-term care at government expense, the 1999
Interim Guidance listed SSI, TANF, and Medicaid as examples of public
benefits for long-term institutionalization at government expense that
would be considered in the public charge inadmissibility
determination.\449\ Likewise, under this rule, DHS would consider such
benefits as part of long-term institutionalization at Government
expense and did not intend to consider other benefits may be used such
as Social Security retirement benefits, SSDI, Medicare or veteran's
benefits. Social Security retirement benefits, SSDI, Medicare and
veteran's benefits are considered earned benefits in that individuals
pay into the programs as part of their employment and must work for a
certain period of time before being eligible. Therefore, DHS is
removing the provision for public benefits for long-term care at
government expense as a separate provision in the definition of public
benefits. Because the benefits considered for institutionalization
under the rule are already within the rest of the list in the public
benefit definition, DHS does not believe the additional provision is
necessary and its deletion avoids confusion with other benefits that
are not considered in the rule. Further, when a person is
institutionalized and the person or a relative is paying for any cost
associated with the institutionalization without the use of public
benefits, DHS would not consider the institutionalization as a public
benefit being received. DHS notes that institutionalization would
otherwise be generally be considered as part of the health factor as
described in the rule.
---------------------------------------------------------------------------
\449\ See Inadmissibility and Deportability on Public Charge
Grounds, 64 FR 28689 (May 26, 1999).
---------------------------------------------------------------------------
h. Medicaid
Comment: Many commenters stated that Medicaid should not be
considered in public charge determinations. Commenters stated that the
rule contradicts one of PRWORA's main policies, which extends Medicaid
benefits to immigrants, as well as other laws that allow certain
children and pregnant women to access Medicaid without a waiting
period. One commenter stated that DHS should exempt up to two years of
Medicaid when the individual has shown past ability and earning
potential. The commenter did not provide a reason for the proposed two-
year period, but stated that when a person applies for health insurance
on the Affordable Care Act (ACA) marketplace, and is eligible for
Medicaid, ``the marketplace automatically forwards an application on
their behalf to Medicaid, even if they never intended to apply for
Medicaid, leaving them with no choice in the matter at all!'' The
commenter did not provide evidence to support his statement regarding
how the ACA marketplace works. Some commenters supported the inclusion
of Medicaid in the rule.
Response: DHS will continue to consider Medicaid. DHS agrees that
Medicaid is beneficial to those who receive it. DHS, however, seeks to
better ensure that applicants for admission to the United States and
applicants for adjustment to lawful permanent resident status, who are
subject to the public charge ground of inadmissibility or are
nonimmigrants applying for an extension of stay or change of status,
are self-sufficient and do not rely on public resources to meet their
needs, but rather rely on their own capabilities and the resources of
their families, sponsors, and private organizations.\450\ Further as
previously discussed, the public charge inadmissibility rule is not
inconsistent with PRWORA, nor does it contravene or overrule
PRWORA.\451\
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\450\ See 8 U.S.C. 1601(2).
\451\ See Part III, Section D, Comments Regarding Legal
Authority/Inconsistency with Congressional Intent.
---------------------------------------------------------------------------
As indicated in Table 10 of the NPRM,\452\ the total Federal
expenditure for the Medicaid program overall is by far larger than any
other program for low-income people.\453\ In addition, the focus of
this public charge rule is to ensure self-sufficiency that covers the
basic necessities of life, such as food and nutrition, housing, and
healthcare.\454\ Medicaid is a federal benefits program that provides
for a person's health insurance to cover the costs of healthcare,
which, is a basic necessity of life that is directly relevant to public
charge.
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\452\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51160 (Oct. 10, 2018).
\453\ See Table 26-1 Policy, Net Budget Authority by Function,
Category, and Program, available at https://www.whitehouse.gov/wp-content/uploads/2018/02/26-1-fy2019.pdf (last visited July 26,
2019). Expenditure amounts are net outlays unless otherwise noted.
See also Gene Falk et al., Cong. Research Serv., R45097, Federal
Spending on Benefits and Services for People with Low Income: In
Brief (2018), available at https://fas.org/sgp/crs/misc/R45097.pdf
(last visited July 26, 2019). Note however that neither HHS nor DHS
are able to disaggregate emergency and non-emergency Medicaid
expenditures. Therefore, this rule considers overall Medicaid
expenditures.
\454\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51159 (proposed Oct. 10, 2018).
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However, DHS credits the many comments that DHS received regarding
the receipt of Medicaid and CHIP by children and pregnant women, as
well as the states that have expanded their Medicaid programs to allow
access to such groups without a waiting period. DHS has decided to
exclude consideration of Medicaid received by all aliens under the age
of 21. The age limit of 21 for exempting Medicaid receipt from
consideration reflects Congressional intent to allow states to extend
coverage to this population (along with pregnant women as discussed
below) without requiring them to wait five years as required by PRWORA,
and without triggering a reimbursement requirement for the alien's
sponsor under an affidavit of
[[Page 41380]]
support.\455\ The age limit also aligns with the limit most states
offer free public education to children, and provides appropriate
certainty to educators, parents, and children with respect to use of
health care programs by children.\456\
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\455\ Children's Health Insurance Program Reauthorization Act of
2009, Pub. L. 111-3, section 214, 123 Stat. 8, 56 (Feb. 4, 2009)
(Permitting States to Ensure Coverage Without a 5-Year Delay of
Certain Children and Pregnant Women Under the Medicaid Program and
CHIP) (codified as amended at 42 U.S.C. 1396B(v)(4)).
\456\ State laws generally provide a maximum age limit for free
public education. The limit ranges between 17 (Alabama) and 26
(Texas). As of 2017, 25 states allow for free public education until
age 21. Department of Education, National Center for Education
Statistics, Table 5.1 Compulsory school attendance laws, minimum and
maximum age limits for required free education, by state: 2017
https://nces.ed.gov/programs/statereform/tab5_1.asp (last visited
July 17, 2019)
---------------------------------------------------------------------------
DHS recognizes Congress did not exclude children from the public
charge determination. But as noted in the proposed rule, the fact that
an alien received public benefits as a child is a relevant
consideration when determining the likelihood that the alien will
receive public benefits in the future. As alien children approach or
reach adulthood, they may age out of eligibility for certain benefits,
choose to disenroll from such benefits (for which their parents may
have enrolled them), or increase their chances of becoming self-
sufficient depending upon whether they acquire education and skills,
secure employment, and accumulate assets and resources. As a
consequence, past receipt of public benefits as a child may be less
indicative of future receipt, as compared to past receipt as an adult.
DHS recognizes that Medicaid and CHIP benefits for children also
provide for other services or funding for in-school health services and
serve as an important way to ensure that children receive the vaccines
needed to protect public health and welfare. In addition, children may
be enrolled in Medicaid through the school system or other programs
which are required by law to provide services which may affect school
budgets.
In sum, while children are not exempt from public charge
inadmissibility, there are strong legal and policy reasons to assume
that Congress did not intend DHS to treat receipt of Medicaid by alien
children under the age of 21 in the same way as receipt of Medicaid by
adult aliens. Congress expressly authorized states to expand Medicaid
eligibility for aliens under the age of 21 without a waiting period,
and expressly provided that receipt of such Medicaid would not trigger
a reimbursement application under an affidavit of support. Finally,
Medicaid also funds the delivery of certain services through the
educational system, which DHS intends to exempt. Therefore, DHS
believes that it is appropriate to exclude Medicaid for individuals
under the age of 21 from the public benefit definition.
In addition, and consistent with the foregoing, DHS has decided to
exempt Medicaid received by pregnant aliens during pregnancy and during
the 60-day period beginning on the last day of the pregnancy. This
exemption aligns the rule with the exclusion of CHIP from
consideration, as CHIP also provides coverage to pregnant women and
children, and ensures parity under this rule for this population across
two Federal benefits (Medicaid and CHIP). It also aligns the rule with
the special treatment that Congress afforded children under 21 and
pregnant women in under 42 U.S.C. 1396b(v)(4). Again, that authority
allows states to extend coverage to pregnant women, and children under
the age of 21, without regard to the 5-year limit under PRWORA, and
without imposing reimbursement obligations on an alien's sponsor
through an affidavit of support (as discussed above). DHS believes that
Medicaid received by pregnant aliens, while providing a short-term
benefit for the alien herself, in many cases ultimately benefits the
U.S. citizen child(ren) who is born to such alien.
DHS appreciates the suggestion to incorporate a two-year
``exemption period'' for Medicaid. However, DHS will not include a two-
year period in the rule. Although DHS agrees that through the health
insurance marketplace, an eligible person may be referred for Medicaid
eligibility, DHS understands that generally the referral must still be
approved by the State and accepted by the potential beneficiary.\457\
The person has a choice in accepting Medicaid through the health
insurance marketplace. In addition, all individuals may voluntarily
disenroll from Medicaid at any time.\458\ As DHS will only consider
Medicaid received after the effective date of the rule, and requires
the alien to be likely to receive Medicaid (or other designated public
benefits) above the threshold in order for the alien to be likely to
become a public charge, DHS does not believe that a two-year
``exemption period'' is necessary.
---------------------------------------------------------------------------
\457\ See Kalman Rupp and Gerald F. Riley, State Medicaid
Eligibility and Enrollment Policies and Rates of Medicaid
Participation among Disabled Supplemental Security Income
Recipients, Social Security Bulletin, Vol. 76 No. 3, 2016, available
at https://www.ssa.gov/policy/docs/ssb/v76n3/v76n3p17.html (last
visited June 14, 2019).
\458\ See CMS, Medicare-Medicaid Plan Enrollment and
Disenrollment Guidance (June 14, 2013), available at https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/Downloads/MMPFinalEnrollGuidance.pdf (last visited July 26, 2019).
---------------------------------------------------------------------------
Comment: Some commenters said the durational limits on the use of
Medicaid did not align with how Medicaid recipients use the program,
and said that health insurance should be treated differently than other
welfare programs. A commenter stated that the proposed 12-month
threshold for Medicaid would produce absurd results when applied to a
real-world context. The commenter stated that some treatments and
services are intensive and span months, if not years. For example, a
Medicaid enrollee with cancer could have a debilitating year-long
treatment regimen. The proposed rule would force such an individual
into an impossible situation where continued treatment would count
against them for immigration purposes. Some commenters said insurance
through programs like Medicaid reduces the likelihood that an
individual will become bankrupt, and that the proposed rule may cause
previously self-sufficient individuals to become reliant on government
assistance. One commenter stated that individuals may be enrolled in
Medicaid by hospitals without their knowledge if they are in an
accident or presented to the ER with a serious health condition. The
commenter said that at times, the patients do not even know that they
are being enrolled in Medicaid and just think they are being enrolled
into a sliding scale program. The commenter stated that looking at past
receipt of Medicaid is too complicated and unhelpful in determining if
a person may become a public charge, and recommended that if DHS
insists in including Medicaid then the period of time should be reduced
to a look back of maximum 12 months.
Response: DHS disagrees that Medicaid as health insurance should be
treated differently. Medicaid has a large federal expenditure impact,
similar to other public benefit programs included in the rule.\459\ DHS
believes the benefit programs considered in the public charge
determination are appropriate as they directly relate to self-
sufficiency, since they are providing basic necessities of life such as
food and nutrition, housing, and healthcare. Because of the nature of
the public benefits that would be considered under this rule--which are
generally means-tested and provide cash for income maintenance and for
basic living needs such as food and nutrition, housing, and
[[Page 41381]]
healthcare--DHS believes that receipt of such benefits is an important
factor to consider, in the totality of the circumstances, when making a
public charge determination. This is because a person with limited
means to satisfy basic living needs who uses government assistance to
fulfill these needs frequently will be dependent on such assistance to
such an extent that the person is not self-sufficient. Medicaid, as a
government subsidized health-insurance program, provides means to
ensure sufficient healthcare. Regarding the concern that individuals
may be enrolled in Medicaid without their knowledge when receiving
emergency room services, DHS notes that the rule excludes consideration
of emergency Medicaid. Additionally, individuals who are enrolled in
Medicaid receive documentation informing them of their enrollment and
may at any time disenroll from the public benefit.
---------------------------------------------------------------------------
\459\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51160 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS acknowledges the positive outcomes associated with public
benefits programs, but the goals of programs such as Medicaid are
different from the objectives of immigration in admission of aliens
into the United States. The rule, therefore, abides by the statutory
requirement as provided in section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), and is consistent with congressional statements relating to
self-sufficiency in 8 U.S.C. 1601. As Congress indicated, the
immigration policy continues to be that, ``aliens within the Nation's
borders not depend on public resources to meet their needs, but rather
rely on their own capabilities and the resources of their families,
their sponsors, and private organizations.'' \460\ Therefore, the
public charge inadmissibility ground and this rule serve to ensure that
those coming to the United States will be self-sufficient.
---------------------------------------------------------------------------
\460\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
Comment: One commenter opposed including Medicaid in the definition
of public benefit and stated that such inclusion will harm the ability
of disabled individuals to access reasonable accommodations. The
commenter stated that such inclusion will result in individuals
disenrolling from Medicaid and may adversely affect individuals'
ability to obtain proof of disability from a doctor that is necessary
to secure reasonable accommodations in housing. The commenter noted
that such an individual, potentially with the assistance of social
service or other organizations serving the individual, would have to
find an alternative means of proving the disability. The commenter
stated that costs and delays associated with obtaining such proof
``would lead to fewer tenants being allowed to bring forward the
defenses to which they are legally entitled, and would lead to further
evictions in the greater Boston area.''
Response: DHS recognizes that an individual who disenrolls from
Medicaid (or foregoes initial enrollment) as a consequence of this rule
may face additional challenges in providing proof of disability for
purposes of reasonable accommodation. As noted by the commenter,
however, Medicaid is not a precondition to obtaining such proof of
disability. An alien who relies on Medicaid for healthcare (including
potential documentation of disabilities) for the period of time that
meets the requisite threshold (more than 12 months in the aggregate
during any 36-month period) may be found to be a public charge,
notwithstanding that such outcome may have negative downstream effects
for such alien or others.
Comment: A couple of commenters said there was no reason to
distinguish between private and public health insurance in making a
determination about self-sufficiency, and that private insurance for
working-class people is often subsidized by the government through such
mechanisms as special tax treatment for employer-provided insurance and
refundable tax credits for private health insurance plans under the
ACA.
Response: DHS appreciates the comments but disagrees. Medicaid can
impose substantial costs on multiple levels of government and generally
indicates a lack of ability to be self-sufficient in satisfying a basic
living need, i.e., healthcare. As noted in the NPRM, by at least one
measure, this program entails some of the largest overall Federal
expenditure for low-income people, by far. Although DHS agrees that
government subsidies for private health insurance plans may also be
amenable to consideration for public charge purposes, DHS believes it
is a reasonable approach to only designate Medicaid at this time.
Comment: Several commenters remarked that states have implemented
programs, such as Medicaid Buy-In programs, to allow individuals with
disabilities to retain the necessary Medicaid coverage while
participating in the labor force. A commenter stated that Medicaid is
one of many government programs that provide targeted assistance to
individuals with disabilities. The commenter provided the example of
New York, which created a Medicaid Buy-In Program for Working People
with Disabilities specifically to allow working people with
disabilities to earn more income without risk of losing their health
insurance. The commenter stated that many people qualify for Medicaid
because an injury or disability has made them unable to work. Medicaid
often covers services that are unavailable through private insurance,
such as medical equipment, long-term care, and certain specialist care
services. The commenter stated that the NPRM undermines the goals of
these programs by broadly including ``health'' as a factor in the
public charge determination and by heavily weighting receipt of health-
related benefits as a negative factor in public charge determinations
without distinguishing Medicaid recipients with disabilities.
Response: DHS appreciates that some people may be eligible for
Medicaid based on other eligibility criteria or a higher income
threshold, however, such Medicaid programs would also be included
within the definition of public benefit for the purposes of the public
charge inadmissibility determination. DHS does not intend to undermine
the goals of Medicaid or Medicaid Buy-In programs in this rule.
However, Congress provided for the mandatory factors, including
health.\461\ The interpretation of the public charge provision has long
included consideration of the alien's receipt of government-funded
healthcare programs.\462\ Medicaid Buy-In programs are optional state
Medicaid programs for workers with disabilities who have earnings in
excess of traditional Medicaid rules.\463\ These programs are still
using the same source of government funding; the main difference is
that they contain different eligibility requirements, such as a higher
income threshold. Further, DHS, as previously discussed, understands
that people may be employed and still receive public benefits and are
therefore not self-sufficient. Aliens should be
[[Page 41382]]
obtaining private health insurance other than Medicaid in order to
establish self-sufficiency.
---------------------------------------------------------------------------
\461\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
\462\ See, e.g., Ex parte Nunez, 93 F.2d 41 (9th Cir. 1937).
\463\ See Medicaid.gov, Medicaid Employment Initiatives,
available at https://www.medicaid.gov/medicaid/ltss/employment/index.html (last visited June 24, 2019). See also for example, New
York State, Medicaid Buy-in Program for Working People with
Disabilities, available at https://www.health.ny.gov/health_care/medicaid/program/buy_in/index.htm (last visited June 24, 2019). In
order to qualify under the New York State program, a person must
have a disability as defined by SSA, be engaged in paid work, and
have a gross income that may be as high as about $63,492 for an
individuals and $86,575 for a couple, among other requirements.
---------------------------------------------------------------------------
Comment: A commenter indicated that the rule is unclear on the
meaning of Medicaid and unclear whether programs that are funded only
by the state and provided under the auspices of Medi-Cal would be
considered Medicaid for the purposes of a public charge analysis.
Another commenter stated that Medicaid is a Federal-State program;
it is funded jointly by the Federal Government and the States, and each
state operates its own program within broad Federal guidelines. The
commenter indicated that States have numerous options as to the people
and benefits they cover and a great deal of flexibility in designing
and administering their programs. The commenter stated that
consequently, Medicaid eligibility and benefits vary widely from state
to state. For example, the commenter stated that Wisconsin is the only
non-expansion state to cover childless adults at any income level. The
commenter further stated that immigration authorities would have no way
of predicting which states individuals would likely live in throughout
their lives and therefore would not know which income thresholds would
be relevant to consider when making a public charge determination,
potentially leading them to assume that most people could end up using
Medicaid at some point.
Response: Medicaid is a Federal-State partnership under which the
Federal Government provides matching funds to states for certain
expenditures at varying percentages (depending on the state). The form
of Medicaid covered by this rule is any Medicaid program operated under
the authority of Title XIX of the Social Security Act Amendments of
1965 (Pub. L. 89-97), for which the state seeks reimbursement from the
Federal Government. In other words, any Medicaid benefit for which a
state seeks reimbursement from the Federal Government will be
considered in the public charge determination regardless of which state
administers the program. Medi-Cal is how the State of California
delivers Medicaid to its residents.\464\ Any Medi-Cal receipt will
therefore be considered in the totality of the circumstances in the
public charge inadmissibility determination, unless the Medi-Cal is
provided to the alien under a state-only authority at no expense to the
Federal Government. Medicaid administered by other states will also be
considered in the public charge inadmissibility determination to the
same extent as described above, regardless of the name used for
Medicaid in such state. A state medical insurance program, funded
exclusively by the state, is not included in the definition of public
benefit under 8 CFR 212.21(b), and will not be considered as a public
benefit in the public charge inadmissibility determination. To the
extent that States give the same name to their Federal Medicaid program
and the state-only funded health insurance program, aliens will not be
required to report the receipt of the state-only funded health
insurance. USCIS would assume that any Medicaid identified on the Form
I-944 is Federal Medicaid.
---------------------------------------------------------------------------
\464\ Ca.gov, Medi-Cal, available at https://www.dhcs.ca.gov/services/Medi-cal/pages/default.aspx (last visited Mar. 29, 2019).
---------------------------------------------------------------------------
Comment: A commenter agreed with the exception for school-based
services, but said it underscores the need for clarification stating
that public benefit programs and services provided to school children
by public school systems will not be considered in immigration status
determinations for a family member or member of the household.
Moreover, the commenter said further clarification is needed that any
application, documentation, or verification information collected by a
public school for program eligibility, allocation, or qualification
purposes would not be requested or subject to disclosure by the local
education agencies or the student and their parents or guardians for
DHS public charge consideration.
Response: DHS reiterates that only the public benefits listed in 8
CFR 212.21(b) are considered public benefits for purposes of the public
charge inadmissibility determination. DHS also reiterates that under
this rule, Medicaid-funded school-based benefits provided to children
who are at or below the oldest age of children eligible for secondary
education as determined under State law are not considered public
benefits for purposes of the public charge determination, as are
Medicaid-funded IDEA programs and Medicaid for children under the age
of 21 are not included the are definition of public benefit.
Additionally, public benefits received by household members are not
considered in an alien's public charge inadmissibility
determination.\465\ Confidentiality or non-disclosure provisions
relating to applications for or receipt of certain public benefits
programs are generally governed by laws relating to the specific public
benefits program and are not within the scope of this regulation.
Further, as part of the public charge inadmissibility determination,
DHS does not intend to request information from schools that was
collected by such school for program eligibility, allocation, or
qualification purposes. Instead the students, or students' parents or
guardians would provide documentation related to any Medicaid or SNAP,
or other public benefit, application, documentation, or verification
information collected by a public school for program eligibility,
allocation, or qualification purposes.
---------------------------------------------------------------------------
\465\ If a household member is obtaining public benefits,
however, that amount will not be counted toward the household's
annual gross income determinations. See 8 CFR 212.22(b)(4)(ii)(A).
---------------------------------------------------------------------------
Individuals With Disabilities Education Act
Comment: Multiple commenters stated that children with special
healthcare needs (disabilities) depend on Medicaid, and that while the
proposed rule includes exceptions for services funded by Medicaid but
provided through IDEA, no plan has been put forward that would enable
this carve-out to work in practice.
Many commenters discussed the positive effects of children being
enrolled in Medicaid and the ``chilling effect'' or disenrollment
associated with the proposed rule, and warned that decreased
participation in Medicaid would lead to decreased utilization of
preventative services, worse health outcomes for families and children,
and significant economic costs. Many commenters said the proposed
rule's exemption of school-based health services was insufficient given
the larger repercussions of the ``chilling effect'' and the likelihood
that many children would be disenrolled. Some commenters indicated that
under IDEA, schools serve as a health care provider reimbursed by
Medicaid but are not eligible for reimbursement if a family chooses not
to enroll their child. A commenter provided data on the funding school
districts receive from Medicaid for school-based health services, and
the numbers of students who benefit from these programs. The commenters
pointed out that this funding is tied to the number of Medicaid-
eligible students enrolled. Schools said they already struggle to
receive consent for school-based, Medicaid-reimbursable services, and
warned that the proposed rule would exacerbate this problem. A
commenter expressed concern that, even though medically necessary
special education services provided to eligible children at school
would be excluded under the rule, the fear of being labelled a public
charge would cause some immigrant
[[Page 41383]]
parents to refrain from securing these services for children. A few
commenters were concerned that the proposed rule would worsen health
outcomes, increase food insecurity, and reduce educational attainment.
A commenter supported the exclusion of benefits under IDEA, but
stated that it remained concerned about these services being used
against parents who refuse to sign a specific consent form. Multiple
commenters stated that children with special healthcare needs,
including children with disabilities, depend on Medicaid. These
commenters indicated that children with special needs cannot and do not
receive Medicaid for educational services alone and the exclusion of
Medicaid-funded IDEA services will likely do little to encourage
families who are fearful of participating in Medicaid to maintain their
enrollment. A commenter stated that IDEA funding is often insufficient
and requires states to rely on Medicaid to fill funding gaps. The
commenter added that if schools lost Medicaid funding, it could result
in special education and even general education services being withheld
and the loss of school nurses, whose salaries are subsidized by
Medicaid. (Special education assistance programs, such as the New
Jersey Special Education Medicaid Initiative addressed by one of the
commenters, are school-based Medicaid reimbursement programs that allow
school districts to obtain federal reimbursement of actual costs of
Medicaid covered services under the IDEA).\466\ One commenter who
generally supported the rule stated opposition to the Medicaid
exclusion under IDEA and recommended that all disabilities should be
individually assessed.
---------------------------------------------------------------------------
\466\ See 20 U.S.C. 1400 et seq.
---------------------------------------------------------------------------
Response: DHS recognizes the public benefits listed in the rule may
be associated with other programs and that eligibility for other
programs or reimbursements to organizations may be dependent or
automatically provided based on the receipt of one of the enumerated
public benefits. DHS also understands that it is possible that a parent
would not be aware of which services in an Individualized Education
Plan or any other education plan set up by a school for a child with
disabilities are reimbursed by Medicaid or a different funding source.
Parents may not receive notification that Medicaid was billed for
services provided at school. In addition, DHS recognizes that
Medicaid's assistance programs go beyond mere special education
assistance under IDEA for Medicaid covered benefits and that school-
based programs also include services such as dental and vision
services, (for example under the Early Periodic Screening Diagnostic
and Treatment (EPSDT)) benefit or other preventative services.\467\ DHS
believes that by excluding any Medicaid received by an alien under the
age of 21 (as well as any and all CHIP benefits), and retaining the
exemptions for (1) services or benefits funded by Medicaid but provided
under the IDEA and for (2) school-based benefits provided to children
who are at or below the oldest age of children eligible for secondary
education, DHS has effectively addressed many of the objections that
commenters raised related to the potential indirect effects of this
rule on school funding. With these changes, DHS believes that it has
created a workable framework for purposes of the public charge
assessment and the benefits these programs provide for school-age
children.
---------------------------------------------------------------------------
\467\ Medicaid payments for necessary health services are
covered under section 1905R of the Social Security Act, 42 U.S.C.
part 441, Subpart B.
---------------------------------------------------------------------------
Comment: A commenter stated that DHS's reasoning for excluding a
program like IDEA should apply to the other benefits DHS proposes
adding to the public charge determination. For example, according to
the commenter, the proposed rule stated or implied that DHS proposed to
exclude IDEA to avoid discriminating against people with disabilities.
The commenter stated that DHS should consider other ways the proposed
rule discriminates against vulnerable populations. Some commenters
specifically requested that public benefits received by individuals
with disabilities be excluded or that DHS exclude Medicaid and SNAP.
Several commenters reasoned that individuals with disabilities rely on
non-cash benefits disproportionately, often due to their disability, in
order to continue working, stay healthy, and remain independent and
productive members of the community.
Response: As indicated in the NPRM, DHS excluded services provided
under IDEA that are generally funded in whole or in part by Medicaid to
ensure that schools continue to receive financial resources to cover
the cost of special education and related services which they would be
legally required to provide at no cost regardless of the outcomes of
the rulemaking.\468\ But DHS also recognizes that Congress did not
exclude applicants with disabilities or other medical conditions in the
public charge inadmissibility statute.\469\ DHS considers any
disability or other medical condition in the public charge
inadmissibility determination to the extent the alien's health makes
the alien more likely than not to become a public charge at any time in
the future. USCIS' consideration of health-related issues will be
largely limited to those conditions that are identified on the Form I-
693 and affect an applicant's ability to work, attend school, or
otherwise care for himself or herself. As noted in the proposed rule,
after assessing Federal statutes and regulations protecting individuals
with disabilities from discrimination, DHS believes that this rule's
treatment of disability in the public charge context is not
inconsistent with such statutes and regulations.\470\
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\468\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51170 (proposed Oct. 10, 2018). These services are typically not
income-based.
\469\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\470\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter stated that many of its members are childcare
providers and child-care center teachers who raised questions about
whether or not certain child-specific services through Medicaid and
CHIP would be excluded. The commenter stated that children received
essential services through these programs, including the EPSDT benefit,
which is a federally mandated benefit, and ensures coverage for
developmental assessments for infants and young children with the
routine and preventive care services they need to grow into healthy
adults.
Response: The EPSDT benefit is not a separately funded Medicaid
program, but an integral part of the Medicaid benefit for children, as
described in section 1905(r) of the Social Security Act. As EPSDT is a
Medicaid program, and DHS determined that any services provided to
aliens under the age of 21 based on Medicaid and CHIP will not be
considered as part of the public charge determination, any benefits
under EPSDT would also not be considered in the public charge
inadmissibility determination.
Emergency Services Exclusion
Comment: A commenter opposed the exclusion of emergency services,
stating that the failure to provide financially for the receipt of
emergency services was a strong indicator of a lack of self-reliance.
Another commenter stated that emergency Medicaid's applicability to
births creates an immigration incentive by advertising a service, which
will ultimately assist aliens' immigration process (by providing them
with a new U.S. citizen as a family member). The commenter further
stated that DHS
[[Page 41384]]
misconstrued 8 U.S.C. 1611(b), and did not consistently recognize the
distinction in legislative intent to provide benefits to aliens that
may nevertheless be considered as negative factors in a public charge
determination. In contrast, some commenters supported the exclusion of
emergency Medicaid. Some commenters indicated that immigrants would
still be reluctant to access emergency services because many will not
be aware that emergency services are excluded, or may not know if
someone in their household was experiencing a true medical emergency.
Response: DHS appreciates and understands the commenters' concerns.
However, DHS will exclude emergency Medicaid benefits in the rule,
consistent with the policy underlying the PRWORA exclusion for care and
services that are necessary for the treatment of an emergency medical
condition. In 8 U.S.C. 1611(b), Congress specifically excluded this
category of benefit from the definition of public benefits and as a
result from allows non-qualified aliens to receive such emergency
public benefits. DHS did not propose to designate any public benefits
that are not defined as public benefits in PRWORA, because those
exclusions may reflect a congressional judgment regarding the
importance of ensuring that those benefits remain available to
otherwise eligible aliens. DHS prefers to avoid any appearance of
interfering with aliens' willingness or ability to access such public
benefits. Accordingly, DHS excludes receipt of Medicaid under these
provisions if the State determines that the relevant treatment falls
under ``emergency medical conditions.'' \471\
---------------------------------------------------------------------------
\471\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51169 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter stated that hospitals are compelled to provide
emergency services due to their mission and laws like the Emergency
Medical Treatment and Active Labor Act (EMTALA), but those services
will go uncompensated if patients are disenrolled from Medicaid due to
the chilling effect. A commenter stated that the emergency services
exemption would not be uniformly applied across states, resulting in
hospitals bearing the unpaid costs of medical care. One commenter said
different states will make different determinations about what
constitutes an emergency, and this uncertainty will cause individuals
with chronic, involuntary medical conditions to be denied admission or
avoid treatment out of fear.
Response: DHS understands that the states determine whether a
medical condition would be determined to be an emergency for purposes
of Medicaid and that determination may be inconsistent throughout
states. However, DHS does not have the authority to determine whether a
medical condition is an emergency or whether a state must provide
Medicaid for a particular medical condition. Congress enacted the
EMTALA to ensure public access to emergency services regardless of
ability to pay.\472\ Medicare-participating hospitals that offer
emergency services must provide a medical screening examination and
provide stabilizing treatment regardless of an individual's ability to
pay.\473\ DHS acknowledges that increased use of emergency rooms and
emergent care as a method of primary healthcare due to delayed
treatment is possible and there is a potential for increases in
uncompensated care in which a treatment or service is not paid for by
an insurer or patient. However, DHS does not have specific estimates on
the increase cost for such services.
---------------------------------------------------------------------------
\472\ See CMS.gov, Emergency Medical Treatment & Labor Act
(EMTALA), available at https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/index.html (last visited May 31, 2019).
\473\ See CMS.gov, Emergency Medical Treatment & Labor Act
(EMTALA), available at https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/index.html (last visited May 31, 2019).
---------------------------------------------------------------------------
Vaccinations
Comment: Commenters indicated that the public charge rule would
make immigrant families afraid to seek health-care, including
vaccinations against communicable diseases, and therefore, endanger the
U.S. population. The commenters stated that mass disenrollment from
Medicaid would greatly restrict access to vaccines, which would result
in adverse effects for the immigrant and general population, and would
harm the public and the national security of the United States. For
example, a commenter stated that in the event of a novel influenza
outbreak, a critical first step would be to get individuals access to
healthcare, which requires trust in governmental public health
authorities. The commenter indicated that engaging with the public
health system was critical to ensuring robust immunization to protect
the population overall; if a subset of the community were fearful to
access government healthcare services, regardless of whether a specific
type of service qualified for a narrow exception, it would have a
significant impact on the country's ability to protect and promote the
public health. Another commenter indicated that its health department
anticipated that promulgation of the rule, as written in the NPRM, will
result in decreased utilization of children's healthcare, including
vaccinations, which will increase the risk for vaccine preventable
diseases. According to the commenter, these effects will pose an
immediate risk to the health of individual immigrants and is also
likely result in increased transmission of tuberculosis or other
infectious diseases, increasing the likelihood of an outbreak.
Some commenters stated that since many immigrants live in
communities alongside people of the same national origin, reduced
vaccinations could result in unvaccinated or under-vaccinated clusters
of individuals. Commenters warned that research shows that uninsured
individuals are much less likely to be vaccinated. One commenter stated
that a recent study found that even a five percent reduction in vaccine
coverage could trigger a significant measles outbreak. A commenter
stated that many immigrant families were already cancelling
appointments for flu vaccinations, and referred to a Centers for
Disease Control and Prevention (CDC) estimate of the number of flu-
related deaths in 2018 to underscore the severity of this issue. A
commenter indicated that the proposal will cause worse health outcomes,
increased use of emergency departments, and increases in communicable
diseases due to less vaccination. Another commenter stated that the
rule would increase the incidence of childhood diseases like
chickenpox, measles, mumps and rubella and deter parents from
vaccinating their children.
Response: With this rulemaking, DHS does not intend to restrict the
access of vaccines for children or adults or intend to discourage
individuals from obtaining the necessary vaccines to prevent vaccine-
preventable diseases. The purpose of this rulemaking is to ensure that
those seeking admission to the United States are self-sufficient and
rely on themselves or family and friends for support instead of relying
on the government for subsistence. As noted above, this final rule does
not consider receipt of Medicaid by a child under age 21, or during a
person's pregnancy, to constitute receipt of public benefits. This
should address a substantial portion, though not all, of the
vaccinations issue.
Vaccinations obtained through public benefits programs are not
considered public benefits under 8 CFR 212.21(b), although if an alien
enrolls in Medicaid for the purpose of obtaining vaccines, the Medicaid
itself qualifies as a public
[[Page 41385]]
benefit. DHS also notes that free or low cost vaccines are available to
children who are not insured or underinsured through the Vaccines for
Children (VFC) Program.\474\ In addition, local health centers and
state health departments provide preventive services that include
vaccines that may be offered on a sliding scale fee based on
income.\475\ Therefore, DHS believes that vaccines would still be
available for children and adults even if they disenroll from Medicaid.
---------------------------------------------------------------------------
\474\ See CDC, Vaccines For Children (VFC), available at https://www.cdc.gov/vaccines/programs/vfc/index.html (last visited May 15,
2019). See also CDC, VFC Detailed Questions and Answers for Parents,
available at https://www.cdc.gov/vaccines/programs/vfc/parents/qa-detailed.html#eligibility (last visited May 15, 2019).
\475\ See HHS, vaccines.gov, How to Pay, available at https://www.vaccines.gov/getting/pay (last visited May 15, 2019).
---------------------------------------------------------------------------
Substance Abuse
Comment: Several commenters stated that the proposed rule would
also discourage people from utilizing substance abuse disorder
treatment services for which Medicaid is the largest insurer.
Response: DHS does not intend to discourage people from utilizing
substance abuse disorder treatment services. DHS acknowledges however
that, once this rule is effective, individuals may choose to disenroll
from public benefits or not seek to receive such public benefits. DHS
would like to note that local health centers and state health
departments may provide certain health services addressing substance
abuse and mental disorders.\476\ Additionally, state-funded
rehabilitation centers may offer affordable options, even if an
individual disenrolls from Medicaid.\477\ Benefits from local and state
health departments or state-funded rehabilitation centers are generally
not considered public benefits under this rule, unless they are
obtained through Medicaid. Therefore, DHS believes that substance abuse
disorder treatment will continue to be available to individuals even if
they disenroll from Medicaid.
---------------------------------------------------------------------------
\476\ See Substance Abuse and Mental Health Services
Administration (SAMHSA) https://www.samhsa.gov/find-treatment (last
visited July 22, 2019).
\477\ See SAMHSA, Directory of Single State Agencies for
Substance Abuse Services (Dec. 16, 2016), https://www.samhsa.gov/sites/default/files/ssadirectory.pdf (last visited June 4, 2019).
---------------------------------------------------------------------------
i. Medicare, Medicare Part D Low Income Subsidy
Comment: Commenters opposed DHS's proposal to include the Medicare
Part D Low Income Subsidy (Medicare Part D LIS) in the definition of
public benefit. Commenters stated that inclusion of the Medicare Part D
LIS may result in greater poverty and sickness, lack of access for
seniors to prescription drugs, health services, worse health outcomes
for Medicare enrollees and higher costs for Medicare non-drug spending.
Commenters stated that Medicare Part D LIS helps seniors with chronic
conditions, including breast cancer. Commenters also stated the rule,
by including Medicare Part D LIS, targets disabled people, who use the
program at higher rates than the general population. Commenters stated
that the rule would force ``millions'' of seniors to disenroll from
Medicare Part D, making it harder to afford necessary prescriptions. A
commenter indicated that low- and moderate-income seniors who have been
paying into Social Security like all other taxpayers would not be able
access Medicare Part D subsidies. Commenters stated that prescription
medication is very expensive and seniors who cannot afford having their
prescriptions filled will end up in emergency rooms which will only
cost their communities even more.
A commenter indicated that the Medicare Part D LIS program has
higher financial eligibility thresholds than cash welfare programs and
is available to more than the indigent, making it a bad indicator of
dependence on the government. Citing a Kaiser Family Foundation
report,\478\ the commenter stated that individuals with income up to
150 percent of the FPL, and countable assets of $14,100 for an
individual or $28,150 for a couple, qualify for Medicare Part D LIS in
2018. The commenter further stated that the scope of Medicare Part D
LIS is limited to assistance in the cost of drugs which does not
indicate dependence on government subsistence.
---------------------------------------------------------------------------
\478\ See Kaiser Family Foundation, Medicare Part D: An Overview
of the Medicare Part D Prescription Drug Benefit (Oct. 12, 2018),
https://www.kff.org/medicare/fact-sheet/an-overview-of-the-medicare-part-d-prescription-drug-benefit/ (last visited July 26, 2019).
---------------------------------------------------------------------------
Commenters indicated that most non-citizen Medicare enrollees are
lawful permanent residents, but that individuals who are ``lawfully
present'' (e.g., immigrants with TPS) and have a ten-year work history
or have end-stage renal disease (ESRD) may also be eligible. A
commenter indicated that individuals over the age of 65 and young
individuals with disabilities who meet the income and employment
guidelines are eligible for Medicare Part D LIS. A commenter stated
that it is difficult to see any purpose to a rule that would deny
admission to long term elderly residents who have worked and paid taxes
for 10 or more years for using a benefit as modest as the Medicare Part
D LIS.
A commenter stated that the effect of the proposed rule may to
increase the costs, which according to the commenter was not considered
in the NPRM, paid for under Medicare Part A and B or C because the
increased medication use and adherence achieved through expanded drug
coverage for seniors have been associated with decreased spending for
nondrug medical care and reduced hospitalization rates among Medicare
enrollees. The commenter stated that the rule would adversely affect
Massachusetts where 74 percent of Medicare enrollees in Massachusetts
were enrolled in Part D plans, and 35 percent of Medicare Part D
recipients also receive the LIS.
Several commenters stated that immigrants contribute more into the
Medicare system than they take out of it, and pay more out of pocket
for care than citizens, thus subsidizing the system. Commenters stated
that the Medicare Part D LIS may be more heavily supported by general
revenues, but funding for the entire Medicare Part D program comes
mostly from general revenues, with premiums covering about one-quarter
of all costs. The commenter provided data intended to show that for
2019, Medicare's actuaries estimate that Medicare Part D plans will
receive direct subsidy payments averaging $296 per enrollee overall and
$2,337 for enrollees receiving the LIS; employers are expected to
receive, on average, $553 for retirees in employer-subsidy plans. The
commenter stated that the average Medicare Part D LIS beneficiary is
receiving added government assisted benefits of only $1,784 per year
compared to retirees in employer plans, which would be less than the 15
percent of FPG threshold that would have applied under the proposed
rule had the Medicare Part D LIS been considered a ``monetized''
benefit. Commenters stated that almost one in three Medicare
beneficiaries enrolled in Medicare Part D prescription drug coverage
get ``extra help'' with their premiums, out-of-pocket prescription
costs, copays or percentage of the drug's costs through LIS. The
commenter further stated that one in five people with Medicare (11.7
million) rely on Medicaid to afford their monthly Medicare Part B
premiums or cost-sharing. Nearly 12 million older adults and people
with disabilities are enrolled in both Medicare and Medicaid. A
commenter stated that ``Extra Help'' is estimated to be worth
approximately
[[Page 41386]]
$4,000 per year per individual which is a substantial support for
medications that are often necessary to prevent disease or manage a
chronic illness. The commenter stated that to forego needed medications
due to cost will not only be a harm to an elderly person or someone
living with a permanent disability, but to our overall healthcare
system that will be burdened with more costly hospital-based and
emergency care.
However, another commenter agreed with DHS's assertion that
utilization of Medicare Part D LIS was an indicator of a lack of
ability to remain self-sufficient in covering medical costs.
Response: DHS appreciates the comments and recognizes the
importance of Medicare and the Medicare Part D LIS, as well as the
heightened eligibility threshold for those programs. Someone who is not
entitled to Medicare Part A and/or Part B is not eligible for Medicare
Part D or the LIS.\479\ In general, to be eligible for premium-free
Medicare Part A, a person must be age 65 or older and worked (or the
spouse worked) and paid Medicare taxes for at least 10 years.\480\ A
person must be a U.S. resident and either a citizen or an alien
lawfully admitted for lawful permanent residence who has resided in the
United States continuously for the five-year period immediately
preceding the month the application is filed in order to qualify for
Medicare Part B and, therefore, the associated Medicare Part D. An
individual who is not a United States citizen or is not lawfully
present in the United States is not eligible for Medicare Part D and
may not enroll in a Medicare Part D plan.\481\
---------------------------------------------------------------------------
\479\ The Centers For Medicare And Medicaid Services, Guidance
To States On The Low-Income Subsidy (February 2009), available at
https://www.cms.gov/Medicare/Eligibility-and-Enrollment/LowIncSubMedicarePresCov/Downloads/StateLISGuidance021009.pdf (last
visited July 26, 2019).
\480\ See HHS, Who is eligible for Medicare?, available at
https://www.hhs.gov/answers/medicare-and-medicaid/who-is-elibible-for-medicare/index.html#main-content (last visited June 25, 2019).
\481\ See 42 CFR 423.30.
---------------------------------------------------------------------------
In addition, the Medicare Part D LIS lowers the premium and cost-
sharing amounts owed by Medicare Part D plan enrollees; as such,
individuals not enrolled in a Medicare Part D plan are not able to
access the benefits of the subsidy. While included in the NPRM because
of the large Federal expenditure,\482\ Medicare Part D prescription
drug coverage only provides medical prescription coverage, and not
health insurance as a whole. Since 2006, it has been available to all
Medicare recipients regardless of income, health status, or
prescription drug usage.\483\ DHS agrees with the commenters and
removed Medicare Part D subsidies from consideration in the public
charge inadmissibility determination. DHS also notes that it has not
designated any other aspect of Medicare for consideration in the public
charge inadmissibility determination. However, any receive of Medicaid
as a subsidy for Medicare would be considered receipt of a public
benefit in the public charge inadmissibility determination.
---------------------------------------------------------------------------
\482\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51172 (proposed Oct. 10, 2018).
\483\ See Medicare.gov, How to get drug coverage, available at
https://www.medicare.gov/drug-coverage-part-d/how-to-get-drug-coverage (last visited June 14, 2019).
---------------------------------------------------------------------------
Comment: A commenter stated that in order to mitigate the negative
public health consequences associated with deterring use of public
health insurance benefits, Medicaid and Medicare Part D LIS should
comprise a separate set of programs that may only be given ``minimal
negative weight'' in the totality of the circumstances, whether they
are currently received at the time of application or were received at
some point in the 36 months prior to application and for whatever
factor in the totality of circumstances their receipt is being
considered. The commenter stated that this would mean that a person
could not be determined to be a public charge when receiving or having
received those benefits in the 36 months prior to applying without also
having a heavily weighted negative factor present in his or her case.
The commenter stated that with this modification in place, noncitizens
applying for visas, lawful permanent resident status, or other status
could expect to financially ``rehabilitate'' themselves without fear
that receipt of public benefits in the remote past might weigh
negatively against them. Additionally, the commenter indicated that
with this change, the rule would effectively make receiving public
health insurance benefits the ``lightest'' negative factor to be
considered and provide noncitizens with assurance that seeking coverage
will have only a small impact on their admissibility which would
mitigate the deterrent effect of considering receipt of these benefits.
Response: As provided in the previous response, DHS is not
including Medicare Part D LIS in the definition of public benefit and
therefore, there is no need to address the weight given to Medicare
Part D LIS. With respect to Medicaid, DHS refers the commenter to the
specific discussion above regarding the basis for considering Medicaid
receipt. If an alien reports past Medicaid receipt as part of an
adjustment of status application, the alien can also show that the
alien is no longer receiving Medicaid and explain why the alien's past
receipt of Medicaid does not make it more likely than not that the
alien will receive any public benefit in the future.
j. Additional Considerations
Exhaustive List
Comment: An individual commenter stated that the agency should
emphasize, in light of future congressional action, that the list
outlined in the proposed rule is not exhaustive and any definition of
public benefit would be best left to agency discretion, or be defined
in a separate rule. A commenter stated that the list in the rule is
hardly exhaustive when it comes to potential programs. The commenter
stated that by one count, there are a total of 89 separate means-tested
welfare programs spread across 14 departments and agencies, paid for by
the Federal Government. The commenter provided examples including that
more than $30 billion is spent annually by the Federal Government on
Refundable Premium Assistance and cost-sharing tax credits to assist
low-income people with buying health insurance and named other public
benefits. The commenter stated that States also spend some $6 billion
annually on their own as part of their Medicaid General Assistance
programs and another $34 billion on other programs to help low-income
people receive care, particularly at hospitals. The commenter stated
that the vast number of overlapping and linked welfare programs means
that recipients seldom use just one program.
In contrast, a commenter stated that the inclusion of a ``catch-
all'' provision could leave the rule open to constitutional challenges.
Additionally, other commenters stated that DHS should not allow public
benefits that are not explicitly enumerated in the rule to be weighted
negatively in the totality of the circumstances review. Commenters
opposed to a ``catch-all'' provision suggested that its inclusion would
remove the certainty an exhaustive list provides and would introduce a
great potential for confusion as well as call into question whether the
members of the regulated public have had sufficient notice that a
certain benefit may be considered negatively in a public charge
determination analysis, thus triggering due process concerns. Several
commenters said they opposed the future inclusion of any ``unenumerated
[[Page 41387]]
benefits'' into the scope of the proposed rule since the proposed rule
already improperly considers non-cash benefits and because the addition
of any more programs would increase harm to individuals, families, and
communities. A commenter stated that DHS's request for public comment
to expand the list of other benefits in the totality of circumstances
was a ``catch-all provision'' that would allow the agency to consider
all benefits an alien receives, regardless of whether they are listed
in the regulation or not. Other commenters wrote that it is highly
likely that individuals using the benefits outlined in the proposed
rule are also using additional benefits not included in the rule.
Response: For clarity and consistency, DHS has specifically listed
the public benefits that will be considered. The list of designated
benefits is exhaustive, avoiding the Constitutional concerns raised by
the commenters that may arguably come with a non-exhaustive list.
Indicating that the list is non-exhaustive would add vagueness and
confusion as to what public benefits would be considered. This does not
preclude DHS from updating the list of benefits through future
regulatory action. DHS believes that the rule is adequately protective
as drafted.
Additional Programs
Comment: Many commenters opposed the inclusion of any additional
programs in the rule. Commenters stated that the inclusion of
additional programs would lead to further negative health impacts on
families and children.
Response: DHS appreciates the comments. DHS has not designated
additional public benefits for consideration under this final rule.
Comment: A commenter asked that public benefits provided by State
and local governments to non-qualified aliens under authority of PRWORA
be specifically included in the codified list. The commenter said these
benefits are provided from ``appropriated funds'' and with few
exceptions are accessed on an individualized basis using means-tested
criteria. A commenter said its state had created a program called Alien
Emergency Medical Program, which was designed to offer coverage to
newly arrived immigrants, or those who had resided in-state for less
than five years. The commenter said the proposed rule would target
those who qualify for the program.
Response: A state medical insurance program that is not included in
the rule's definition of public benefit will not be considered as a
public benefit in the public charge inadmissibility determination. DHS
understands that the Washington State Alien Emergency Medical Program
\484\ is separate from Medicaid and is funded by Washington State, and
is not a program listed in the public benefit definition in the rule.
Further, emergency Medicaid is also not considered a public benefit for
purposes of the public charge inadmissibility determination. Therefore,
the Washington State Alien Emergency Medical Program would not be
considered a public benefit for purposes of the public charge
inadmissibility determination.
---------------------------------------------------------------------------
\484\ See Washington State Department of Social and Health
Services, Alien Emergency Medical Program, available at https://www.dshs.wa.gov/esa/community-services-offices/alien-emergency-medical-programs (last visited July 22, 2019).
---------------------------------------------------------------------------
Dependents
Comment: A commenter indicated the new regulations should include
welfare use by dependents. The commenter indicated that the very idea
of self-sufficiency means that people can provide for themselves and
their children and spouses without assistance from taxpayers. The
commenter indicated that excluding the children's benefits including
Medicaid, WIC, and free school lunch, from not being considered for
public charge is like having an income tax that excludes all income
from second jobs, investments, and rental properties. The commenter
analyzed the 2014 public-use SIPP data and indicated that in 39 percent
of immigrant-headed households (legal and illegal) receiving TANF, only
the children receive the payments. The commenter indicated that much of
the immigrant welfare use of this program would be missed if dependents
are not considered. Another commenter stated that any receipt of means-
tested anti-poverty benefits by immigrants or their dependents should
count toward the public charge determination. Other commenters stated
that DHS should never attribute to an alien applicant the receipt of
benefits by the alien's dependents, including U.S. citizen children.
The commenters stated that considering receipt of benefits by an
alien's U.S. citizen children could give rise to constitutional issues.
Response: DHS appreciates the comments. DHS believes that the rule
addresses self-sufficiency adequately without introducing consideration
of a third party's receipt of public benefits, potentially to include
U.S. citizen third parties such as non-custodial children. In
consideration of these issues, as well as the many comments regarding
the potential effects of the rule on U.S. citizen children, DHS
respectfully declines to expand the rule in this manner. DHS notes that
although an inadmissibility determination is made for each person
individually, the alien's income is reviewed in terms of the household,
and the alien's family status is considered as well, as the statute
requires. The ultimate question under this rule, however, is whether
the alien (rather than his or her dependents) is likely to receive
public benefits in the future above the applicable threshold.
Tax Credits
Comment: Some commenters stated that non-citizens should be unable
to benefit from the EITC or the Additional Child Tax Credit (ACTC).
Similarly, a few commenters said the exclusion of the refundable tax
credits is problematic since the refundable portion of EITC and ACTC
cost over $80 billion combined in 2016. The commenters asserted that
these tax credits meet the definition of a means-tested anti-poverty
benefit.
In contrast, another commenter stated that the receipt of EITC and
Child Tax Credit (CTC) credits, which are funded through TANF and are
actually employment incentives, should be explicitly exempted from the
rule in order to eliminate possible misconceptions and prevent
immigrants from failing to file their income tax returns out of fear of
being disqualified from future citizenship. Another commenter said
inclusion of EITC would punish hardworking immigrants.
Response: DHS appreciates the comments regarding the EITC, ACTC,
and CTC. Only public benefits as defined in 8 CFR 212.21(b) will be
considered in the public charge inadmissibility determination. Although
EITC and ACTC benefits provide what may be considered cash assistance,
DHS did not propose to include EITC or ACTC as public benefits in the
public charge inadmissibility determination. DHS is not including tax
credits because many people with moderate incomes and high incomes are
eligible for these tax credits, and the tax system is structured in
such a way as to encourage taxpayers to claim and maximize all tax
credits for which they are eligible. In addition, DHS is unable to
determine how much of the taxpayer's refund is attributable to any one
tax credit, as compared to other aspects of the tax return (such as
non-designated credits or deductions) or to any one person, as opposed
to a spouse filing jointly. Finally, these tax credits may be combined
with other tax credits between spouses. One spouse may be a U.S.
citizen and the tax return may be filed jointly. Therefore, DHS would
not
[[Page 41388]]
be able to determine whether the alien or the U.S. citizen received the
tax credit. DHS has revised the regulatory text to make clear that
``cash assistance for income maintenance'' does not include any tax
credit programs.
Comment: One commenter stated that DHS should exempt up to two
years of the ACA premium subsidy, also known as the Premium Tax Credit
(PTC), usage when the individual has shown past ability and earning
potential. In addition, the commenter indicated that the ACA premium
subsidies are applied based on income levels without the individual
choosing to apply for the subsidies. Another commenter suggested that
DHS should not consider PTC for purchasing individual market coverage
in a public charge determination at all. One commenter stated that, in
addition to continuing to exclude exchange programs such as ACTC under
the ACA \485\ from public charge consideration, DHS should clarify the
interaction between applications for exchange programs and other
potentially impacted benefits. The commenter explained that
marketplaces are required by law to feature a uniform application
process for Medicaid and non-Medicaid health programs and stated that
this could cause confusion because an individual attempting to apply
for exchange insurance and programs could inadvertently be seen as a
``Medicaid applicant.''
---------------------------------------------------------------------------
\485\ Patient Protection and Affordable Care Act, Public Law
111-148, Section 1401(a), 124 Stat. 119, 213 (2010) (codified at 26
U.S.C. 36B).
---------------------------------------------------------------------------
In contrast, some commenters suggested that DHS should reconsider
whether immigrants wishing to reside in the United States will have the
ability to support themselves, and any subsequently born children,
without using benefits like subsidies under the ACA. Another commenter
indicated that serious consideration should be given to adding
subsidies that underwrite more than 50 percent of premium costs to the
list in 8 CFR 212.21(b). The commenter stated that these benefits are
provided from appropriated funds and, with few exceptions, are accessed
on an individualized basis using means-tested criteria.
Response: DHS has decided not to consider ACA subsidies or health
insurance received through the health insurance marketplace outside of
Medicaid as public benefits in the public charge inadmissibility
determination, due to the complexity of assessing the value of the
benefit and the higher income eligibility thresholds associated with
the benefit, as compared to the eligibility thresholds for other
benefits. As discussed in section III.R of this preamble, DHS has added
a heavily weighted positive factor for private health insurance
appropriate to the expected period of admission. This heavily weighted
positive factor would not apply in the case of a plan for which the
alien receives subsidies in the form of premium tax credits.
Special Supplemental Nutrition Program for Women, Infants, and Children
Comment: Many comments opposed the potential inclusion of WIC,
stating that consideration of benefits such as WIC would have a
negative impact on the health and nutrition of families and
individuals. Some commenters indicated that families and individuals
should not have to choose between benefits such as WIC and an
immigration status. Other commenters stated that programs like WIC help
provide essential nutrition to children, pregnant women, and mothers,
and result in improved health outcomes. Commenters provided anecdotes
about how they or their family members' access to WIC helped them or
their children thrive and become productive members of American
society. Several commenters provided rationale, research, or data
relating to important public health goals and the benefits of WIC
enrollment, including the reduction or prevention of preterm birth and
infant mortality, iron deficiency anemia, malnourishment, as well as
increases in breastfeeding rates and hemoglobin levels of enrolled
children. Other commenters provided that the WIC food package with its
nutritional value increased public health, specifically for Hispanics
who have lived in the United States for less than five years. Sourcing
research articles and studies, some commenters described that WIC's
2009 food package changes lead to a modest decline in severe childhood
obesity among young children, and that children who received SNAP or
Medicaid were more likely to finish high school and grow up to be
successful adults.
A commenter stated that the reduction in programs like WIC will end
up costing taxpayers much more than they might save in the short term,
as healthcare costs will increase. Commenters stated that a decrease in
WIC participation will have short and long-term economic implications.
The commenters stated that for every dollar spent on WIC there is an
associated savings in Medicaid costs during the first 60 days after
birth from $1.77 to $3.13 for newborns and mothers, and $2.84 to $3.90
for newborns alone. Additionally, the commenters provided further
examples of Medicaid cost-savings associated with WIC.
Another commenter cited to data and stated that 74.9 percent of WIC
participants are adjunctively eligible for SNAP and Medicaid, thereby
reducing initial certification requirements and paperwork. Commenters
added that the decreased participation in Medicaid or SNAP among WIC
families would have a significant impact on WIC's certification process
because income certification through adjunctive eligibility was more
efficient than income screening involving pay stubs and other financial
documents. The commenters, citing data and multiple studies, provided a
state's estimate that income screening with financial documents costs
$12.50 per participant, whereas the income screening with adjunctive
eligibility is $3.75 per participant. The commenters stated that the
increased costs would place a strain on WIC's state budgets, which
would undercut WIC's efforts to improve efficiency, streamline
certification processes, and focus WIC services on its core public
health mission.
Other commenters said Congress has never sought to inhibit WIC's
ability to serve immigrant populations due to the overriding public
interest in promoting access to health services and nutrition
assistance. A commenter noted that participating clients can only spend
a maximum of five years on this program and receive limited benefits
(only supplemental foods) not qualifying them a public charge. Some
commenters said the rule would impact their ability to serve eligible
WIC participants.
In contrast, some commenters suggested that USCIS reconsider
whether immigrants wishing to reside in the United States will have the
ability to support themselves, and any subsequently born children,
without using benefits like WIC. The commenter said these benefits are
provided from ``appropriated funds'' and with few exceptions are
accessed on an individualized basis using means-tested criteria.
Response: WIC was not included in the public benefits designated
for consideration in public charge inadmissibility determinations. Only
public benefits as defined in 8 CFR 212.21(b) will be considered in a
public charge inadmissibility determination. DHS understands that
aliens subject to the public charge inadmissibility ground may choose
to disenroll from public benefits, even if the benefit is not listed in
8 CFR 212.21(b). However, this rule does not, and cannot, preclude
individuals from requesting or receiving
[[Page 41389]]
any public benefits for which they qualify. As discussed in the NPRM,
benefits directed toward food and nutrition, housing, and healthcare
are directly relevant to public charge inadmissibility determinations,
because a person who needs the public's assistance to provide for these
basic necessities is not self-sufficient.\486\ WIC \487\ provides
federal grants to States for supplemental foods, healthcare referrals,
and nutrition education for low-income pregnant, breastfeeding, and
non-breastfeeding postpartum women, and to infants and children up to
age five who are found to be at nutritional risk.\488\ But overall
expenditures for WIC are low, and WIC is authorized under the Child
Nutrition Act of 1966,\489\ which is excluded under the limitations for
qualified aliens from federal means-tested public benefits. Therefore,
DHS believes WIC is appropriately excluded.
---------------------------------------------------------------------------
\486\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51159 (proposed Oct. 10, 2018).
\487\ See Lewis v. Thompson, 252 F.3d 567, 583 (2d Cir 2001).
Although WIC may provide benefits to a pregnant woman's whose unborn
child would otherwise be eligible for public benefits after birth
based on U.S. citizenship, at least one circuit has determined that
the denial of prenatal care to an unqualified alien pregnant woman
had a rational basis and therefore did not violate equal protection.
The court indicated that there were ``three rationales for the
denial of prenatal care to unqualified alien pregnant mothers:
deterrence of illegal immigration, self-sufficiency, and cost
savings. The first alone suffices for rational basis review.''
\488\ See USDA, Food and Nutrition Service, Special Supplemental
Nutrition Program for Women, Infants, and Children, available at
https://www.fns.usda.gov/wic/women-infants-and-children-wic (last
visited June 14, 2019).
\489\ See Public Law 104-193, section 423, 110 Stat. 2105, 2271-
2247 (Aug. 22, 1996).
---------------------------------------------------------------------------
Additionally, as discussed later in DHS's responses to comments
related to the economic analysis and in the economic analysis itself,
DHS agrees that some entities, such as State and local governments or
other businesses and organizations would incur costs related to the
changes commenters identify. However, these costs are considered to be
indirect costs of the rule since this rule does not directly regulate
these entities and does not require them to make changes to their
business processes or programs. Therefore, DHS considers these indirect
costs as qualitative, unquantified effects of the final rule since it
is unclear how many entities will choose to make administrative changes
to their business processes and the cost of making such changes. DHS
agrees that there could be WIC applicants who are not adjunctively
eligible due to disenrollment from Medicaid or SNAP although an
individual who is a member of a family in which a pregnant woman or
infant is certified as eligible to receive Medicaid may be deemed
adjunctively eligible for WIC. DHS notes that households receiving WIC
would be adjunctively eligible only through noncitizen participation in
SNAP or Medicaid for those age 21 and over (or receiving Medicaid while
pregnant) which would only apply to a very small percentage of
households receiving WIC. Any costs associated with changes in
adjunctive eligibility would be a consequence of DHS's decision to
designate SNAP, which DHS has explained earlier in this preamble.
School Breakfast/Lunch Programs
Comment: A few commenters recommended that DHS include the National
School Lunch Program (NSLP) and School Breakfast Program (SBP) for
purposes of a public charge determination. The commenters stated that
receiving public benefits indicates a person is not self-sufficient.
Some commenters suggested that USCIS reconsider whether immigrants
wishing to reside in the United States will have the ability to support
themselves, and any subsequently born children, without using benefits
from the NSLP. The commenter said these benefits are provided from
``appropriated funds'' and with few exceptions are accessed on an
individualized basis using means-tested criteria. A commenter stated
that in their local school district, hundreds of families had not
reapplied for free/reduced meal program, which resulted in tens of
thousands of dollars in lost revenue to its food service program, a
negative impact to the farming community, and children who are hungry
at school who cannot perform well. The commenter indicated that
families were fearful of government assistance and the risk of being
separated from their families or deported. A commenter stated that
Federal nutrition assistance programs play a vital role in improving
the nutritional well-being and food security of targeted segments of
the United States population. The commenter stated that the California
Department of Education Nutrition Services Division administers the
NSLP, SBP, Seamless Summer Option, Afterschool Meal Supplement, Special
Milk Program, Child and Adult Care Food Program, Summer Food Service
Program, and the Fresh Fruit and Vegetable Program, which provide
nutrition for low-income children. The commenter provided the number of
children receiving benefits under the programs and indicated that the
rule could create confusion and a chilling effect on families'
perception that participating in any health and nutrition program will
jeopardize their immigration status. A commenter stated that children
who qualify for SNAP, or live with a child who receives SNAP, are
automatically qualified for free meals under the NSLP ``direct
certification'' under 42 U.S.C. 1758(b)(12) and that when a family
disenrolls a child from the SNAP benefits, the school district may be
unable to ``directly certify'' that child or his/her siblings for free
meal status.
Response: Although school lunch programs provide for nutrition
similar to SNAP, these benefits account for a relatively low overall
expenditure, are specific to children in a school setting, and are
administered by schools. In addition, assistance or benefits under the
National School Lunch Act, (NSLP and the SBP) \490\ and the Child
Nutrition Act of 1966 are excluded under the limitations for qualified
aliens from federal means-tested public benefits.\491\ Under 8 U.S.C.
1613, qualified aliens are generally not eligible for ``means-tested
public benefits'' until after five years of entry. However, the child
nutrition programs, including the NSLP, are excluded from this
ineligibility. In addition, the law prescribes that a person who
receives free public education benefits under State or local law shall
not be ineligible to receive benefits provided under the school lunch
program under the Richard B. Russell National School Lunch Act \492\ or
the SBP under section 4 of the Child Nutrition Act of 1966 \493\ on the
basis of citizenship, alienage, or immigration status.\494\ Therefore,
DHS believes the NSLP is appropriately excluded. In addition, the other
school related nutrition programs mentioned by the commenter, including
Seamless Summer Option, Afterschool Meal Supplement, Special Milk
Program, Child and Adult Care Food Program, Summer Food Service
Program, and the Fresh Fruit and Vegetable Program, would not be
considered public benefits under the public charge inadmissibility
determination.
---------------------------------------------------------------------------
\490\ See USDA, The School Breakfast Program, available at
https://fns-prod.azureedge.net/sites/default/files/sbp/SBPfactsheet.pdf (last visited July 26, 2019).
\491\ See Public Law 104-193, Section 403, 110 Stat. 2105, 2266
(Aug. 22, 1996) (codified at 8 U.S.C. 1613(c)(2)(D)).
\492\ See 42 U.S.C. 1751 et seq.
\493\ See 42 U.S.C. 1773.
\494\ See 8 U.S.C. 1615.
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Further, DHS understands that a child may no longer automatically
enroll in the school lunch programs or be automatically certified for
the school programs. However, the child would
[[Page 41390]]
still qualify for the programs based on the eligibility criteria and
this rule does not change the programs' eligibility criteria or
restrict who may apply for the programs.
State and Local Benefits
Comment: Referring to the PRWORA definition of public
benefits,\495\ a commenter asked that public benefits include State and
local governments' public benefits provided to non-qualified aliens
under the authority of PRWORA. This commenter also referenced federal
and state retirement, health, disability, postsecondary education, and
unemployment benefits, indicating that the eligibility for these
benefits is generally determined using individualized adjudications of
need, typically means-based. The commenter advised that in order to
avoid APA challenges to the codification or arbitrary exclusions, DHS
should include all of the statutory benefits that can be accessed
individually by needy persons. In contrast, other commenters stated
that benefits funded by states should not be included in public charge
determinations.
---------------------------------------------------------------------------
\495\ Includes public benefits ``provided by appropriated funds
of the United States'' or ``a state or local government.'' 8 U.S.C.
1611(c)(1), 1621(c)(1).
---------------------------------------------------------------------------
Response: While the proposed rule included state and local and
tribal cash benefits for income maintenance, DHS excluded state, local,
and tribal non-cash benefits from consideration in the public charge
inadmissibility determination because of the number of public benefits
that exist and the administrative burden such a rule would have imposed
on DHS and the state and local public benefit granting agencies. In
addition, including all state and local benefits would add vagueness
and confusion as to what public benefits would be considered.
Consistent with the proposed rule, DHS will continue to exclude state,
local, and tribal benefits that are not cash-benefits for these
reasons. Further, DHS would not consider federal and state retirement,
Social Security retirement benefits, Social Security Disability,
postsecondary education, or unemployment benefits as public benefits
under the public charge inadmissibility determination as these are
considered to be earned benefits through the person's employment and
specific tax deductions.
Head Start
Comment: A few commenters asked that DHS include Head Start,
because this program also qualifies as a means-tested federal program
and goes toward a person's self-sufficiency. In contrast, a commenter
objected to the proposed rule based on the commenter's assessment that
programs such as Head Start and WIC will be impacted by the proposed
changes and their ``chilling effect.'' Commenters indicated that
participation in Head Start programs has been shown to result in better
educational and health outcomes as well as lower rates of
incarceration, ultimately saving local, state, and federal tax dollars.
A commenter stated that in Michigan farmworker families one or both
parents work and receive low wages enough to for their children to
qualify for Head Start.
Response: DHS appreciates the comments and understands other
programs also provide for nutrition and healthcare. DHS believes that
the focus of the rule is best served in considering certain general
benefits directed toward food and nutrition, housing, and healthcare
that have high expenditures. DHS has decided to continue to exclude
Head Start. DHS notes that when Congress reauthorized the Improving
Head Start for School Readiness Act,\496\ in 2007, it focused, in part,
on ways to make Head Start services more accessible to migrant and
seasonal farmworker families. Because both parents typically work in
the fields, Migrant and Seasonal Head Start (MSHS) programs offer 12
weeks to year-round, full-day services to accommodate local
agricultural industries and harvest season workers. To be eligible for
MSHS services, a family's income must come primarily from agricultural
work and the family must be eligible otherwise for Head Start services
(i.e., poverty, homelessness, or foster care).\497\ Head Start also has
a low expenditure in comparison to other benefits. Therefore, DHS
believes Head Start is appropriately excluded.
---------------------------------------------------------------------------
\496\ See Public Law 110-134, 121 Stat. 1363 (Dec. 12, 2007).
\497\ See Office of Head Start Administration for Children and
Families U.S. Department of Health and Human Services, Migrant And
Seasonal Head Start Report To Congress (no date), available at
https://eclkc.ohs.acf.hhs.gov/sites/default/files/pdf/migrant-seasonal-congress-report-2009-2011.pdf (last visited July 26, 2019).
---------------------------------------------------------------------------
Healthy Start, The Emergency Food Assistance Program, and Similar
Programs
Comment: A few commenters asked that DHS include Healthy Start. The
commenters stated that this program also qualify as a means-tested
federal program and illustrates a person's lack of self-sufficiency.
Some commenters asked that DHS include The Emergency Food Assistance
Program (TEFAP), as this program also qualifies as a means-tested
federal program and illustrates a person's lack of self-sufficiency.
Commenters made similar points with respect to additional programs,
such as programs that provide grants to localities or organizations to
alleviate homelessness, programs that provide supplemental nutrition
assistance to specific populations, and programs that provide low-
income energy assistance or weatherization assistance.\498\ Some
commenters recommended that DHS exclude these and similar programs to
avoid a range of costs that might be incurred by individuals,
communities, and government agencies, if DHS included some or all of
these programs.
---------------------------------------------------------------------------
\498\ Such as LIHEAP and Weatherization Assistance Program
(WAP).
---------------------------------------------------------------------------
Response: As stated earlier in this section, DHS believes that the
focus of the rule is best served in considering certain general
benefits directed toward food and nutrition, housing, and healthcare,
which have high expenditures, and generally excluding emergency
services or support. None of these programs have overall expenditures
approaching the levels of the other listed benefits, and some provide
emergency services or support, or involve providing funding to
organizations, without an individual enrollment mechanism. In the
interest of administrability, DHS will not consider these benefits at
this time.
Pell Grants
Comment: Although several commenters were generally pleased that
the proposed rule did not include public education benefits such as
Pell Grants or other financial aid, one commenter stated that fear and
confusion generated by the rule could deter greater numbers of
immigrant youth or children of immigrants eligible for federal and
state-funded aid programs from applying to college. A commenter
indicated that the proposed rule could effect changes in the U.S.
talent pipeline that would ultimately undermine our nation's global
competitiveness and regional growth, and indicated that a highly
educated workforce spurs economic growth and strengthens state and
local economies. The commenter stated that the rule would discourage
and may decrease the number of U.S.-citizen youth with non-U.S. citizen
parents, lawful permanent residents, and undocumented immigrant youth
who are long-term residents of the United States from completing
college degrees and pursuing areas of national need
[[Page 41391]]
particularly true in the fields of science, technology, engineering,
and mathematics (STEM). Another commenter requested that DHS explicitly
exclude Title IV federal student aid programs from the list of those
considered for a public charge determination.
Response: Pell grants and student aid programs will not be
considered in the public charge inadmissibility determination. As
previously discussed, DHS's list of public benefits included in the
regulation is an exhaustive list and only those benefits listed will be
considered in a public charge inadmissibility determination. The focus
of the rule is public benefits programs that provide cash assistance
for income maintenance or support food nutrition, housing and
healthcare with a relatively high overall expenditure. Pell grants and
student aid programs are education-based and DHS is not considering
them in the public charge inadmissibility determination. DHS decided to
not include a list of those benefits that are not considered for public
charge purposes because they are too numerous and benefits programs may
change over time.
Children's Health Insurance Program
Comment: A commenter asked that USCIS consider the inclusion of
additional welfare programs such as CHIP. Some commenters noted that
CHIP ought to be part of a public benefit determination because it is
still part of determining an applicant's overall self-sufficiency.
Another commenter stated that CHIP should be included in the public
charge determination for consistency purposes, because CHIP is a form
of government support and applying consistent standards ensures the
Government's goal of promoting self-sufficiency.
In contrast, numerous commenters requested that CHIP be explicitly
exempt from public charge; these commenters cited to studies and
indicated that millions of children and thousands of pregnant women
rely on the program for health coverage. Others also discussed the
importance and benefits of CHIP for children, such as providing
vaccinations; keeping children healthy; reducing the rate of uninsured
children across the United States; and improving children's health,
education, and outcomes later in life; as well as long-term economic
benefits into adulthood such as job attainment and paying more in
taxes. Several commenters stated that CHIP provided a critical link for
children who have experienced abuse or who are in homes where domestic
violence is present to overcome trauma and address physical injuries
inflicted by their abusers.
Many commenters generally warned that CHIP should not be included
in public charge assessments because doing so would cause significant
harm, including serious health consequences, costly long-term expenses
for health care providers and patients, and food insecurity in
children, which is especially detrimental to the health, educational
performance, development, and well-being of children. A commenter
stated that including CHIP would lead to parents having to choose
between their child's health, and the public charge determination and
immigration status. Numerous commenters said including CHIP in public
charge assessments would be contrary to Congress' explicit intent in
expanding coverage to lawfully present children and pregnant women for
public health, economic, and social benefits. A commenter stated that
the higher income thresholds for Medicaid and the Children's Health
Insurance Program Reauthorization Act of 2009 (CHIPRA) state option
represents a clear intent by Congress to ensure that pregnant immigrant
women have access to the medical services necessary to ensure a healthy
pregnancy and positive birth outcomes. Other commenters stated that
including CHIP, a benefit explicitly created for working families, in
public charge assessments would be contrary to the historical meaning
of public charge as a person who depends on the government rather than
working. Many commenters stated that Congress and states have
historically demonstrated a high level of commitment to promoting
health for lower-income children through CHIP, with 49 states now
electing to cover children though CHIPRA and the Legal Immigrant
Children's Health Improvement Act (ICHIA).
Commenters stated that penalizing the use of CHIP undercuts the
sound public policies many states have put in place to ensure basic
healthcare services are available to immigrants to protect their health
and to promote healthy communities. Another commenter cited a study
indicating that the inclusion of CHIP in the final rule would have
significant public health and economic ramifications, including lower
rates of healthcare utilization and poorer health among immigrants and
their dependents as well as higher uncompensated care costs to
federally qualified health centers and public hospitals. Many
commenters stated that including CHIP in a public charge determination
would lead to many parents of eligible children foregoing CHIP benefits
and some commenters cited data on the number of people who would
disenroll from CHIP. Many commenters suggested that those foregoing
CHIP coverage due to the rule, may visit emergency departments for care
that could have otherwise been obtained in a primary care setting and
would cause a rise in the number of uninsured people and charity care,
thereby transferring the financial burden to hospitals, and forcing
hospitals to reduce the healthcare services that they are able to
provide to communities.
Several commenters stated that by including CHIP, USCIS would be
able to specifically target families with children who may be eligible
for CHIP even if the family surpasses the 125 percent of the FPL
standard laid out in the proposal. Numerous commenters stated that CHIP
addresses a critical coverage gap, targeting working families that earn
too much to be eligible for Medicaid but cannot afford traditional
private insurance. Commenters stated that making the receipt of CHIP
coverage a negative factor in the public charge test, or including it
in the definition of ``public charge,'' would place coverage for
children out of reach. Other commenters stated that including CHIP in
the final rule will create additional financial pressures on working
families, and would penalize those who are moving toward self-
sufficiency, as they do not qualify for Medicaid due to their increased
income. A few commenters stated that past use of CHIP is not a
predictor of future dependence on the Government for subsistence as an
adult.
Many commenters stated that DHS's reasons for not including CHIP in
the proposed rule have nothing to do with a public charge determination
because CHIP does not involve the same level of expenditures as other
programs; commenters stated that government expenditures are irrelevant
to the assessment of whether an individual may become a public charge.
Some stated that DHS's reasons for not including CHIP indicates that
DHS recognizes that immigrants do not over-utilize the CHIP program
and, thus, including CHIP in the final rule would only serve the
purpose of denying immigrant children a benefit that supports their
basic health needs. Other commenters stated that Federal CHIP funding
is capped and, thus, reduced spending in states with larger immigrant
populations will not reduce overall Federal spending, but will
disadvantage those states relative to states with a smaller immigrant
population. Another commenter stated that while the proposal exempts
CHIP, it was unclear what would happen to beneficiaries in states that
have opted to implement
[[Page 41392]]
CHIP as part of a Medicaid expansion rather than a separate program.
Response: DHS appreciates the comments and recognizes the
importance of CHIP. DHS determined that it will not include CHIP in the
public charge inadmissibility determination. States can use CHIP
funding to cover children at higher incomes under CHIP.\499\ CHIP
enrollees have a higher income and states have greater flexibility in
the benefit package provided.\500\ An individual must be ineligible for
Medicaid to quality for CHIP. CHIP primarily covers children, including
lawfully residing children, and in a handful of states and covers
pregnant women.\501\ Eligible families have higher incomes (between
133-400 percent FPL).\502\ In addition, states (and in turn the Federal
Government) tend to spend less per person on CHIP than on Medicaid
because the families have a higher income and thus fewer healthcare
needs, and because children are less expensive to cover. Overall
expenditures are also lower than Medicaid.\503\ Finally, exclusion of
CHIP is consistent with this rule's changes with respect to Medicaid
received by a child under the age of 21 and receipt during an alien's
pregnancy. Therefore, DHS believes it is appropriate to exclude CHIP
from the public benefit definition in the public charge inadmissibility
determination.
---------------------------------------------------------------------------
\499\ CHIP-funded Medicaid coverage generally can be used for
children whose income is above the Medicaid income standard in
effect in the state in 1997, when the CHIP program was first
established.
\500\ Medicaid.gov, CHIP Eligibility, available at https://www.medicaid.gov/chip/eligibility-standards/index.html (last visited
June 13, 2019).
\501\ See Medicaid.gov, Medicaid and CHIP Coverage of Lawfully
Residing Children and Pregnant Women, available at https://www.medicaid.gov/medicaid/outreach-and-enrollment/lawfully-residing/index.html (last visited June 13, 2019).
\502\ See Medicaid.gov, Medicaid, Children's Health Insurance
Program, & Basic Health Program Eligibility Levels, available at
https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-eligibility-levels/index.html (last visited July 27, 2019).
\503\ See U.S. Dep't of Health and Human Servs. (HHS), Centers
for Medicare & Medicaid (CMS), Expenditure Reports from MBES/CBES.
Available at https://www.medicaid.gov/medicaid/finance/state-expenditure-reporting/expenditure-reports/index.html (last visited
July 27, 2019). For a list of federal expenditures by program, see
FY 2016 data from table 2 of Gene Falk et al., Cong. Research Serv.,
R45097, Federal Spending on Benefits and Services for People with
Low Income: In Brief (2018), available at https://fas.org/sgp/crs/misc/R45097.pdf (last visited July 27, 2019).
---------------------------------------------------------------------------
Disaster Supplemental Nutrition Assistance
Comment: A commenter recommended that Disaster Supplemental
Nutrition Assistance (D-SNAP) should be excluded from the public charge
determination to allow families or persons who have experienced a
catastrophic disaster, such as a fire or a hurricane, to receive D-SNAP
benefits without fear of being subject to a public charge
inadmissibility determination.
Response: D-SNAP and other emergency disaster relief assistance
programs are not included in the rule. DHS also notes that, as provided
in the NPRM, not all cash assistance would qualify as cash assistance
for income maintenance under the proposed rule. For instance, DHS would
not consider Stafford Act disaster assistance, including financial
assistance provided to individuals and households under the Federal
Emergency Management Agency's Individuals and Households Program, 42
U.S.C. 5174, as cash assistance for income maintenance. The same would
hold true for comparable disaster assistance provided by State, local,
or tribal governments.
Social Security Disability Insurance
Comment: A commenter stated that the rule should not consider
Social Security Disability Insurance (SSDI) as part of the public
charge inadmissibility determination because SSDI is an earned benefit
which may be a parent of a child.
Response: DHS will only consider those public benefits as listed in
the rule. SSDI is not one of the benefits listed under the definition
of public benefits for purposes of public charge inadmissibility and
therefore will not be considered as part of the rule.
3. Likely at Any Time To Become a Public Charge
Comment: A commenter stated that DHS interprets ``likely at any
time to become a public charge'' to mean ``likely at any time in the
future to receive one or more public benefits. . . based on the
totality of the circumstances,'' and DHS does not propose to establish
a per se policy whereby an alien is likely to become a public charge if
the alien is receiving benefits at the time of the application. The
commenters stated that DHS's reasoning is ``less than transparent'' and
conflicts with both pre-1999 practice and statutory interpretation. A
commenter stated that Congress could have added the phrase ``in the
future'' but has repeatedly declined to do so.
Response: DHS disagrees with the commenter that the interpretation
of ``likely at any time in the future'' conflicts with the statutory
wording and pre-1999 practice. As explained in the NPRM,\504\ the
language of section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), requires
a predictive assessment. Terms such as ``become'' and ``likely at any
time'' indicate that the assessment should be based on factors that
tend to reasonably show that the burden of supporting the alien is
likely to be cast on the public.\505\ As established in the NPRM, case
law supports this view and is therefore consistent with the pre-1999
approach to public charge and the definition of ``likely at any time in
the future to become a public charge'' as added to 8 CFR
212.21(c).\506\ While Congress could have added ``in the future,''
Congress' wording of the public charge provision clearly indicates
prospective determination; DHS added the words to clarify that any time
is prospective and forward looking.\507\
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\504\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51174-75, 51178-79 (proposed Oct. 10, 2018).
\505\ See, e.g., Matter of Martinez-Lopez, 10 I&N Dec. 421
(Att'y Gen. 1964).
\506\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51174-75, 51178-79 (proposed Oct. 10, 2018).
\507\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51174-75, 51178-79 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Commenters stated that the proposed rule is impermissibly
vague by failing to define ``likely'' as the term is used in ``likely
to become a public charge.'' One commenter indicated that DHS failed to
define ``likely'' although it used the term throughout the entire rule.
The commenter indicated that DHS used a specific dollar amount for
purposes of the public charge determination, yet, DHS failed to provide
a threshold amount for adjudicators to use to assess the likeliness of
becoming a public charge in the future. Additionally, the commenter
also indicated that although DHS provided numerous statistics on
benefits use rates, DHS never clarified what likelihood is high enough
to justify a denial.\508\ Therefore, the commenter suggested defining
the term ``likely'' as a ``probability of becoming a public charge
equal to or greater than 75 percent.''
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\508\ The commenter referred to a 1999 Central Intelligence
Agency study in which was concluded that NATO military officers did
not interpret the words ``likely'' or ``unlikely'' in a consistent
manner showing a wide variation. See Richard J. Heuer, Jr.,
Psychology of Intelligence Analysis, Central Intelligence Agency
(1999), p. 155, https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/books-and-monographs/psychology-of-intelligence-analysis/PsychofIntelNew.pdf (last visited July 26,
2019).
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Response: DHS appreciates the comment and agrees that the meaning
of likely at any time in the future to become a public charge needs
clarification. However, DHS will not
[[Page 41393]]
accept the suggestion that likely at any time to become a public charge
means a 75 percent likelihood that the alien would become a public
charge at any time in the future. As with other key terms in the
statute, Congress did not define or otherwise describe what it meant by
likely at any time to become a public charge. DHS believes likely in
the context of likely at any time to become a public charge is best
considered as probable, i.e., more likely than not. Although, as the
commenter noted, the term ``likely'' has been inconsistently defined in
some contexts,\509\ equating likely at any time to more likely than not
is nonetheless consistent with the approach many courts have taken in
the determining the meaning of likely.\510\ DHS believes that defining
likely at any time to mean ``more likely than not'' is consistent with
how the DHS regulations implementing withholding of removal and
deferral of removal under the Convention Against Torture have used
``more likely than not'' interchangeably with ``likely to.'' \511\
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\509\ For example, a review of state laws on determining when
sex offenders are ``likely'' to reoffend found that ``states vary
greatly on how they define likely'' with some states define it as
greater than 50 percent or substantially probable while others have
expressly rejected standard based on percentages. Jefferson C.
Knighton, Daniel C. Murrie, Marcus T. Boccaccini, & Darrel B.
Turner, How Likely is `Likely to Reoffend' in Civil Sex Offender
Commitment Trials, 38 Law & Hum, Behav. 293, 294-96 (2014). N.B. DHS
is referencing sex offender statutes to show the lack of clarity in
defining the word likely; DHS is not implying, in any way, any
similarity between those who commit sexual crimes to those who are
subject to public charge.
\510\ See, e.g., Southwest Sunsites, Inc. v. F.T.C., 785 F.2d
1431 (9th Cir.) (``First, the FTC must show probable, not possible,
deception (`likely to mislead,' not `tendency and capacity to
mislead').'' (emphasis in the original)), cert. denied, 479 U.S. 828
(1986); Fermin v. Pfizer Inc., 215 F. Supp. 3d 209, 211 (E.D.N.Y.
2016) (``The term `likely' indicates that deception must be
probable, not just possible.''); Siderca, S.A.I.C. v. United States,
28 C.I.T. 1782, 350 F. Supp.2d 1223, 1226 (Ct. Int'l Trade 2004)
(``The common meaning of `likely' is `probable,' or, to put it
another way, `more likely than not.'''); In re G.H., 781 NW2d 438,
445 (Neb. 2010) (holding that `` `probable,' in other words, more
likely than not'' satisfies the ``likely to engage in repeat acts of
sexual violence'' standard under Nebraska law.).
\511\ Compare 8 CFR 208.16(c)(4) (``If the immigration judge
determines that the alien is more likely than not to be tortured in
the country of removal, the alien is entitled to protection under
the Convention Against Torture.'') with 8 CFR 208.17(b)(2) (``The
immigration judge shall also inform the alien that removal has been
deferred only to the country in which it has been determined that
the alien is likely to be tortured, and that the alien may be
removed at any time to another country where he or she is not likely
to be tortured.'') (emphasis added). See generally Matter of
Chawathe, 25 I&N Dec. 369, 376 (2010) (discussing the more likely
than not standard).
---------------------------------------------------------------------------
Therefore, DHS has amended the definition of likely to become a
public charge at 212.21(c) to clarify that a person is likely to become
a public charge if it is ``more likely than not'' that the individual
at any time in the future will receive one or more public benefits, as
defined in 8 CFR 212.21(b), based on the totality of the alien's
circumstances.\512\
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\512\ This change clarifies the definition of likely to become a
public charge, but it does not alter the burden that adjustment
applicants bear in demonstrating that they are admissible. As with
any other ground of inadmissibility, an applicant for adjustment of
status still has the burden of demonstrating that he or she is
clearly and beyond doubt entitled to be admitted to the United
States and is not inadmissible. See Matter of Bett, 26 I&N Dec. 437,
440 (BIA 2014). Adjustment applicants have the burden to show that
they clearly and beyond doubt satisfy the standard of not being more
likely than not to become a public charge in the future. See
generally House v. Bell, 547 U.S. 518, 538 (2006) (discussing habeas
petitioner's burden of showing ``more likely than not'' with the
standard of ``no reasonable juror would find him guilty beyond a
reasonable doubt.'')
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4. Household
Comment: Several commenters expressed concern with the new
definition of ``household.'' A commenter stated that this new
definition is designed to apply to as many people as possible and would
be the most expansive definition of ``household'' within the Executive
Branch. A few commenters asserted that the proposed rule rejects both
the HHS and the IRS definitions of ``dependent'' and ``household'' in
favor of arbitrary standards set by DHS. Another commenter indicated
that different agencies have their own definition of a ``household,''
which leads to variance and an uneven application of the law.
Response: DHS disagrees that the definition of household would be
the most expansive in the Executive Branch or that it acts as a
penalty. As discussed in the NPRM,\513\ the poverty guidelines do not
define who should be considered part of the household, and different
agencies and programs have different standards for determining
household size.\514\ For example, and as explained in the NPRM,\515\
SNAP uses the term ``household'' and includes everyone who lives
together and purchases and prepares meals together, which is more
expansive than the definition that DHS is adopting. DHS further
disagrees that the standard is arbitrary. However, DHS does agree that
different agencies have their own definition of household as discussed
in the NPRM.
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\513\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176 (proposed Oct. 10, 2018).
\514\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176 (proposed Oct. 10, 2018), discussing Annual Update of the HHS
Poverty Guidelines, 83 FR 2642 (Jan. 18, 2018). See also HHS Annual
Update of the HHS Poverty Guidelines, 84 FR 1167 (Feb. 1, 2019).
\515\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176 (proposed Oct. 10, 2018).
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Furthermore, as discussed in the NPRM, DHS is not fully adopting
the IRS definition of ``dependent.'' \516\ That definition would
generally require some type of relationship to the person filing
(including step and foster children and their children) whether or not
the dependent is living with the person filing and the amount of
support being provided by the person filing (over 50 percent).\517\ For
tax purposes, dependents may include U.S. citizens, U.S. resident
aliens, U.S. nationals, and residents of Canada or Mexico.\518\ DHS's
definition would adopt the IRS consideration of the amount of support
being provided to the individuals (50 percent) as the threshold for
considering an individual as part of the household in the public charge
determination, rather than consider any support being provided.\519\ As
discussed in the NPRM, DHS believes that the ``at least 50 percent of
financial support'' threshold as used by the IRS is reasonable to apply
to the determination of who belongs in an alien's household, without
regard to whether these individuals physically reside in the alien's
home. This would include those individuals the alien may not have a
legal responsibility to support but may nonetheless be supporting. DHS
believes that an alien's ability to support a household is relevant to
DHS's consideration of the alien's assets, resources, financial status,
and family status.
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\516\ See 26 U.S.C. 152; see also Inadmissibility on Public
Charge Grounds, 83 FR 51114, 51176 (proposed Oct. 10, 2018),
discussing IRS Publication 501 (Jan 2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf (last visited May 8, 2019).
\517\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176 (proposed Oct. 10, 2018), discussing IRS Publication 501 (Jan
2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf.
\518\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176 (proposed Oct. 10, 2018), discussing IRS Publication 501 (Jan
2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf.
\519\ See Internal Revenue Serv., Dependency Exemptions,
available at https://apps.irs.gov/app/vita/content/globalmedia/4491_dependency_exemptions.pdf (last visited July 26, 2017); see
also Internal Revenue Serv., Table 2: Dependency Exemption for
Qualifying Relative, available at https://apps.irs.gov/app/vita/content/globalmedia/table_2_dependency_exemption_relative_4012.pdf
(last visited July 26, 2018).
---------------------------------------------------------------------------
Comment: Several commenters expressed concern with the definition
classifying people as household members if the alien contributes 50
percent or more to their financial support. A commenter said that this
requirement is vague and too expansive, asserting that many families
live in
[[Page 41394]]
extended family and close friend housing that share the cost of
utilities, transportation, food, etc., which can lead to difficult
miscalculations of this 50 percent threshold. Similarly, one commenter
stated that household size is not predictive of a person's propensity
to become a public charge, but is instead the natural consequence of
working people pooling together their resources to support each other.
Other commenters provided the example that many immigrants provide
financial support to family members who remain in their countries of
origin and in some countries, as little as $100 a month can constitute
more than 50 percent of an individual's financial support, which would
mean that the person should be counted as part of the immigrant's
household size, which would drive up the earnings they would need to
meet the threshold by much higher amounts. Multiple commenters asserted
that immigrants could be penalized for providing family support to a
sibling with disability or parents to whom they have no legal
obligation. A commenter said the definition could cause harm to larger
households who must show larger incomes or resources to support the
larger numbers being counted, regardless of the reality of the
financial benefits that households may be providing to society. This
commenter also stated that it could be especially harmful to immigrant
families who often care for extended family members in cases of
emergencies without being legally required to do so.
Response: As explained in the NPRM,\520\ DHS considers an alien's
household size not only as part of the alien's asset, resources, and
financial status but also for purposes of the family status. As is the
case with all of the factors and consideration, DHS will consider the
impact of the household size as part of the totality of the
circumstances.\521\ Therefore, having support from other household
members may be a positive consideration while having assets below the
125 percent threshold for the household size may be a negative
consideration because it indicates that an alien may be likely to
become a public charge. For these reasons, DHS considers the household
size a relevant consideration in the public charge assessment and
predictive of the likelihood, within the totality of the circumstances,
that an alien will become a public charge. DHS recognizes that multiple
individuals in the household may be working to support the household.
---------------------------------------------------------------------------
\520\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51175 (proposed Oct. 10, 2018).
\521\ See 8 CFR 212.22(a).
---------------------------------------------------------------------------
With the definition of household, DHS aims to account for both the
persons whom the alien is supporting and those who are contributing to
the household to support the alien, and thus to the alien's assets and
resources.\522\ DHS will consider any of the family members supported,
including those who are supported outside the United States and listed
on Form I-944. DHS clearly outlined in the regulatory provision who is
included in the definition of household and therefore DHS does not
agree that the definition is vague or too expansive, but agrees that it
may be, depending on the specific circumstances of the household,
either over-or under-inclusive.
---------------------------------------------------------------------------
\522\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51177 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Commenters stated that, although the receipt of benefits
by U.S. citizen children would not be a negative factor to their
noncitizen parent's application, the mere fact that the children are in
the household would be a downward factor for determining overall
household income. Another commenter stated that children should not be
included in the household calculation because most support agreements
or orders do not contain information to determine whether a potential
amount is 50 percent of the financial support of a child. A commenter
stated that verifying which individuals provide to the applicant at
least 50 percent of their financial support requires a fact-intensive
review of not only cash support, but non-cash support such as room and
board or payment of utilities that may only be partly attributable to
the noncitizen. The commenters said this overly complicates the
household size assessment, particularly as compared to the relatively
straightforward determination used for the current Form I-864.
Response: As indicated in the NPRM, as part of the description of
the definition of household and family status \523\ research and data
have shown that the number of household members may affect the
likelihood of receipt of public benefits. However, the number of
household members may also positively affect the financial status and
household, depending on the alien's and household's circumstances,
include other member's employment and financial contributions to the
household. Therefore, DHS disagrees with the commenters that children
would be considered a downward factor for determining overall household
income. DHS's definition of household member adopts the IRS
consideration of the amount of support being provided to individuals
(50 percent) as the threshold for considering an individual as part of
the household. Therefore, DHS will retain the standard as proposed.
---------------------------------------------------------------------------
\523\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176-51178, 51184 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Several commenters remarked that this assessment would
have a disproportionally negative impact on immigrant women, asserting
that immigrant women are more likely than immigrant men to have one of
more children living in the same household, and therefore, more likely
to have a large household. Some commenters stated this requirement
directly imposes on an immigrant woman's bodily autonomy and agency,
particularly if or when to have children, by counting having a large
family against them as part of the public charge determination. A
commenter discussed the definition's impact on domestic and sexual
violence survivors, asserting that this population could be penalized
for providing continuing support to former partners or family members
if they were involuntarily coerced into providing such support or have
ceased living with them due to abuse. The commenter added that the rule
could penalize victims who often seek the help of family members to
alleviate housing and childcare expenses and strengthen their ties to
the United States.
Response: DHS is implementing a statutory ground of inadmissibility
provided by Congress; the goal of the rule is not to penalize but to
ensure that those coming to the United States are self-sufficient and
not likely depend on public resources. DHS also incorporated exceptions
provided by Congress, including those applicable to battered spouses
and children.\524\ Therefore, DHS disagrees that the rule penalizes
domestic and sexual violence survivors. As it is the case for all, the
public charge assessment will be made in the totality of the
circumstance to determine whether an applicant is likely, at any time
in the future, to become a public charge.
---------------------------------------------------------------------------
\524\ See 8 CFR 212.23.
---------------------------------------------------------------------------
Comment: A commenter said the definition does not allow for the
exclusion of the alien's household members who are not intending to
immigrate within six months of the immigrant's application, which holds
the applicant fiscally responsible for an individual that they will not
be living with for at least 6 months after immigrating to the United
States.
[[Page 41395]]
Response: As explained in the NPRM, for purposes of the household
definition, DHS will take into consideration both individuals living in
the alien's home and individuals not living in the alien's home,
including aliens living outside the United States, for whom the alien,
and or the alien's parents or legal guardians are providing, or are
required to provide, at least 50 percent of financial support.\525\ DHS
therefore does not focus on the location of the financially supported
person, but on the fact that the person is receiving more than 50
percent of financial support from the applicant, rendering those funds
unavailable to the applicant for his or her own support and self-
sufficiency.
---------------------------------------------------------------------------
\525\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51176 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter expressed their opposition to the NPRM
assertion that ``the receipt of non-cash benefits generally increased
as family size increased.'' This commenter referenced Table 17 in the
NPRM, which the commenter stated indicated that non-cash benefit usage
is higher among families of three (22.3 percent) than families of four
(20.7 percent). The same commenter cited information claiming that
among noncitizens in ``nonfamily households'' (i.e., individuals), 2.7
percent received cash assistance and that number steadily decreased in
larger households with only 1.8 percent of noncitizens in families of
five or more receiving any cash benefit.
Response: DHS appreciates the comment. DHS acknowledges that
certain data were not statistically significant, which in some cases
was a consequence of small sample sizes. The statistics cited regarding
non-cash benefit use among families of sizes three and four were not
statistically significantly different from each other, so DHS would not
conclude that one is higher or lower. Among noncitizens, the results
that were statistically significant showed a lower rate of non-cash
benefit use among nonfamily households, and a higher rate of non-cash
benefit use among those with a family size bigger than five, compared
with those having family sizes of two, three, and four. Among citizens,
those having family sizes of two were shown to have a lower rate of
non-cash benefit use than those with larger families. These findings
suggest a generally higher rate of non-cash benefit use as family size
increases. Regarding the rates of cash benefit use, the estimates cited
for nonfamily households and those with families of size five or more
were not statistically significantly different. The estimates of cash
benefit use among noncitizens in Table 17 in the NPRM had high
variance, indicating only that the rates were about one to three
percent across family size groups. Therefore, DHS believes that the
data properly reflects that receipt of noncash benefits generally
increases with an increase in family size.
Comment: A commenter stated that the rule ``contravenes PRWORA and
IIRIRA by drastically limiting how a sponsor's income is considered as
part of the public charge analysis--even though the sponsor's
commitment is legally enforceable.'' The commenter stated that only
considering the sponsor's income if (i) the sponsor physically lives
with the noncitizen, or (ii) ``the sponsor is already contributing 50
percent or more of the alien's financial support,'' has no basis in
either PRWORA or IIRIRA and ``would run contrary to the basic logic
undergirding the sponsor affidavit provisions of both laws'' because
under PRWORA and IIRIRA, a sponsor must have an income of at least 125
percent of the FPL, and both the sponsored noncitizen and benefit-
granting agencies may legally enforce the affidavit of support as the
sponsor's promise to maintain a noncitizen above 125 percent of the
FPL. In addition, the commenter noted that PRWORA requires benefit-
granting agencies to include a sponsor's income when determining
whether a sponsored noncitizen is income-eligible for means-tested
benefits. The commenter asserted that discounting the value of an
affidavit of support in the public charge determination unless the
sponsor is closely related to or lives with the noncitizen, would
ignore the legally enforceable nature of the sponsor's promise and that
the sponsor's income is deemed that of the noncitizen.
Response: DHS disagrees that the rule contravenes PRWORA and IIRIRA
with respect to the manner in which DHS will consider a sponsor's
income. DHS neither proposed any changes to how the sponsor's income is
considered with respect to the enforceable affidavit of support, nor
changed any applicable deeming rules. In addition, the INA requires a
distinct public charge assessment for admission and adjustment of
status even where an alien has an affidavit of support. Under this
rule, the affidavit of support, where required, will still have to
comply with the requirements of section 213A of the Act, 8 U.S.C.
1183a, and 8 CFR part 213a.
As noted previously, Congress set forth the mandatory factors that
DHS must consider in the public charge inadmissibility determination--
these factors include the alien's assets, resources, and financial
status. While the affidavit of support is required for most family-
based applications and some employment-based applications, it is set
apart from those factors, and may be considered in a public charge
inadmissibility determination as a separate consideration.\526\ This
indicates that Congress intended for the affidavit of support and the
public charge determination to serve similar, but not identical
functions.
---------------------------------------------------------------------------
\526\ See INA section 212(a)(4)(B)(i) & (ii), 8 U.S.C.
1182(a)(4)(B)(i) & (ii).
---------------------------------------------------------------------------
As discussed in the NPRM, DHS chose a definition of household that
takes into account the definitions used by benefit-granting agencies
and that captures individuals who are financially interdependent with
the alien. In considering gross household income, USCIS will also
consider any monthly or annual income from individuals who are not
included in the alien's household, where the support to the household
has been provided to the household on a continuing monthly or yearly
basis during the most recent calendar year.\527\ Accordingly, if the
sponsor is already providing 50 percent or more of financial support or
is otherwise providing income on a monthly or annual basis to the alien
that the alien will rely on to meet the income threshold, the sponsor's
income or payments would be included in the consideration of the
alien's assets, resources, and financial status.\528\ DHS
[[Page 41396]]
declines to otherwise deem the sponsor's income to the alien in the
public charge context, as this kind of automatic deeming would
essentially render meaningless the public charge determination for any
alien with an affidavit of support. DHS does not believe Congress would
have retained the public charge ground of inadmissibility, had it
intended such a result.
---------------------------------------------------------------------------
\527\ See 8 CFR 212.22(b)(4)(i)(B).
\528\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51177 (proposed Oct. 10, 2018). (``For example, when a child, as
defined in INA section 101(b), 8 U.S.C. 1101(b)(1), is filing for
adjustment of status as the child of a U.S. citizen or lawful
permanent resident, the affidavit of support sponsor would also be
the parent. Because the parent is part of the household, the
parent's income would be included as part of the household income.
The parent's income would be reviewed as part of the assets,
resources, and financial status factor based on the total household
size. However, for example, if there is a cosponsor, who is the
alien's cousin and who is not physically residing with the alien,
then the cousin would not be counted as part of the household and
his or her income would not be included as part of the assets,
resources or financial status unless the sponsor is already
contributing 50 percent or more of the alien's financial support. In
addition, if the sponsor is a member of the alien's household and
included in the calculation of the 125 percent of the FPG, DHS would
only count the sponsor's income once for purposes of determining the
alien's total household assets and resources. A sponsor's income as
reported on the affidavit of support would be added to the income of
the other members of the alien's household. The sponsor's income
that is added to the alien's total household assets and resources
would not be increased because the sponsor also submitted an
affidavit of support promising to support the alien at least 125
percent of the FPG for the sponsor's household size. For example,
assuming the alien and sponsor's household sizes are the same, if
the sponsor's total income reported on the affidavit of support is
250 percent of the FPG for the household size, that income would be
added to the alien's assets and resources; the alien's total
household income would then be at least 250 percent of the FPG,
which constitutes a heavily weighted positive factor.'').
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H. Public Charge Inadmissibility Determination Based on Totality of
Circumstances
Comment: Many commenters expressed general concern about the
discretion that government workers would be given when making public
charge determinations, which would result in inconsistent and unfair
public charge inadmissibility determinations. One commenter noted that
the rule change gives too much discretion to officers in making
inadmissibility determinations. Another commenter noted that because
the rule relies on officer discretion, there will be inconsistent
adjudications and the rule is thus arbitrary and capricious. The
commenter further stated that this proposed standard is also arbitrary
and capricious because the required officer evaluation would be
burdensome and inefficient. A commenter provided an estimate on the
number of people adversely affected by the rule based on the factors.
Several commenters stated that the ``totality of circumstances''
test would require adjudicators to weigh a potentially unlimited number
of ``factors,'' and expressed confusion regarding the difference
between ``factors'' and ``considerations'' under the proposed rule. A
commenter noted that ``[a]s a result, there could be an infinite number
of factors that adjudicators could possibly assess, resulting in public
charge determinations [that] will inevitably vary from adjudicator to
adjudicator even when faced with very similarly situated cases.'' Two
commenters stated that the proposed rule is not quantitative and the
``totality of circumstances'' test to determine public charge
admissibility is vague and ambiguous. An individual commenter suggested
that DHS remove the totality of circumstances language to ensure the
rule will operate as intended and will not lead to inconsistent
results.
An individual commenter stated that the existing statutory
framework directs an adjudicator to consider an immigrant's personal
and financial circumstances to determine the likelihood that they will
become dependent on the government in the future, which is easily
demonstrated by their employment prospects and the existence of support
systems. However, the commenter stated that the proposed positive and
negative weighted factor system was unworkable and provided no guidance
on how these factors would be weighted. The commenter also stated that
DHS should allow immigrants to prove themselves sufficient after
immigrating. A commenter suggested DHS provide written documentation of
the public charge determination and reasoning to the applicant and his/
her legal representative. A few commenters described the proposed rule
as extremely vague and open-ended regarding the issues that will be
considered. The commenters also stated that DHS fails to state how it
will measure the weighted factors. A commenter stated the alien must
show by a preponderance of the evidence that he or she is eligible for
the benefit sought but that the rule requires too high a standard of
proof with respect to the applicant demonstrating he or she will not
become a public charge.
Some commenters stated that the proposed rule contained vague
standards, required adjudicators to consider a broad range of factors,
and afforded such adjudicators significant discretion. The commenters
stated that as a consequence, outcomes will be dependent on the
particular adjudicator making the decision. Commenters indicated that
they were especially concerned that this lack of predictability will
make it nearly impossible for attorneys to adequately advise their
clients. Commenters stated that such unpredictability would lead to a
chilling effect with respect to aliens' use of public benefits.
Commenters stated that granting USCIS officers the discretion to
evaluate the totality of circumstances would be inefficient, as they
would require new training to evaluate criteria, such as credit
reports, and that other agencies, such as DOL, already have education
and skills criteria for work visas.
Response: DHS disagrees with the assertion that the rule provides
too much discretion to adjudicators as a result of the totality of the
circumstances approach and that the framework will lead to unfair and
inconsistent determinations. DHS acknowledges the complexity of this
rule. This final rule is intended to provide greater clarification in
response to comments. As with any new regulation, the regulated public
may need to read and become familiar with the regulation to understand
how it applies. DHS will also issue guidance, and may further revise
such guidance as necessary after it has gained experience with the new
regulatory regime.
As explained in the NPRM, section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), provides that an alien who, ``in the opinion of'' the
Secretary is likely to become a public charge is inadmissible.\529\ The
Government has long interpreted the phrase ``in the opinion of'' as
describing an assessment that is subjective and discretionary in
nature.\530\ While authorizing this subjective, discretionary
assessment, however, Congress also mandated that the public charge
determination consider, at a minimum, the alien's age, health, family
status, assets, resources, financial status, education, and skills.
Consideration of these mandatory factors requires a case-by-case
determination based on the totality of the alien's circumstances. This
final rule will result in officers conducting a full analysis of the
factors set forth in the statute and in this rule, and weighing all
evidence submitted in the totality of the circumstances. Both the
proposed rule and this final rule adequately explain how the criteria
are to be applied and what evidence should be considered.
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\529\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\530\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (``[T]he determination of whether an alien falls into
that category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421
(Att'y Gen. 1962) (``[U]nder the statutory language the question for
visa purposes seems to depend entirely on the consular officer's
subjective opinion.'').
---------------------------------------------------------------------------
Unlike the 1999 Interim Field Guidance, which failed to interpret
the statutory factors and provided no direction to adjudicators on how
to consider them, this final rule is clear about the legal standard and
evidentiary burden aliens must meet to demonstrate that they are not
likely at any time in the future to become a public charge. In
addition, USCIS will be conducting training for adjudicators and, as
necessary, issuing sub-regulatory guidance to ensure consistency in
adjudications. However, to the extent that each alien's individual
circumstances constitute a unique fact
[[Page 41397]]
pattern, outcomes in public charge determinations will appropriately
vary. In addition, DHS disagrees that public charge determinations will
be burdensome and inefficient. USCIS will take care to effectively
examine the evidence presented to determine whether the alien is likely
to become a public charge at any time in the future, consistent with
the statute.
DHS also disagrees that the standard used to determine public
charge inadmissibility is too high. While the commenter is correct
that, in general, an applicant applying for an immigration benefit must
demonstrate eligibility by a preponderance of the evidence,\531\ DHS
has not changed that standard of proof with respect to applications
subject to a public charge inadmissibility determination. Those
applicants will still, unless otherwise specified, be required to show
by a preponderance of the evidence that they are not likely at any time
to become a public charge. DHS has defined likely at any time to become
a public charge in this final rule as more likely than not at any time
in the future to become a public charge. Therefore, applicants subject
to a public charge inadmissibility determination will need to
demonstrate by a preponderance of the evidence that that they are not
more likely than not at any time in the future to become a public
charge.
---------------------------------------------------------------------------
\531\ See Matter of Chawathe, 25 I&N Dec. 369, 375 (2010)
(``Except where a different standard is specified by law, a
petitioner or applicant in administrative immigration proceedings
must prove by a preponderance of evidence that he or she is eligible
for the benefit sought.'') (citations omitted).
---------------------------------------------------------------------------
Additionally, the public charge inadmissibility analysis is a
prospective determination, as evidenced by the words ``likely at any
time to become'' a public charge. Moreover, aliens subject to the
public charge ground of inadmissibility must demonstrate that they are
not likely at any time to become a public charge at the time of their
application or a visa, admission, or adjustment of status. Therefore,
DHS will not adopt the commenter's suggestion that an alien subject to
the public charge ground of inadmissibility should be allowed to wait
until after immigrating to the United States to demonstrate that he or
she is likely at any time to become a public charge and thereby avoid
becoming inadmissible on public charge grounds at the time of admission
as an immigrant.
DHS also believes that the rule provides a clear framework for
considering the mandatory factors in a public charge inadmissibility
determination in the totality of the circumstances. DHS acknowledges,
however, that the adjudication of public charge inadmissibility is
complex and that the determination of the likelihood at any time in the
future to become a public charge is not governed by clear data
regarding whether any given alien subject to this determination is more
likely than not to receive public benefits for more than 12 months in
the aggregate in a 36-month period at any time in the future, and
therefore would be inadmissible when weighing all factors in the
totality of the alien's circumstances.
To address these concerns, USCIS plans to take several steps. For
one, to provide its officers with a solid foundation and knowledge on
public charge inadmissibility determinations, USCIS plans to issue
policy guidance in its USCIS Policy Manual (https://www.uscis.gov/policy-manual), which will include information from the NPRM and this
final rule and can be accessed by potential applicants. In its policy
guidance, USCIS will direct officers to determine:
Whether the alien is more likely than not to receive one
or more public benefits, as defined in 8 CFR 212.21(b), at any time in
the future; and
Whether the alien's likely receipt of one or more of the
enumerated public benefits is more likely than not to exceed 12 months
in the aggregate within any 36 month period (such that, for instance,
receipt of two benefits in one month counts as two months) at any time
in the future.
In making this determination, there is no bright-line test that
USCIS officers will administer. For instance, past or current receipt
of public benefits may make an alien a public charge at present, but
past or current receipt of public benefits, alone, is insufficient to
sustain a finding that an alien is likely to become a public charge at
any point in the future.
Instead, there must be a nexus between the alien's circumstances
and the alien's future likelihood of becoming a public charge. The mere
presence of any one enumerated circumstance, alone, is not outcome
determinative.\532\ USCIS, therefore, will evaluate all of the alien's
facts, circumstances, and evidence to determine whether factors in the
analysis are positive or negative. Any factor that decreases the
alien's future likelihood of receiving one or more public benefits
above the 12 months in the aggregate in a 36-month period threshold is
positive. Any factor that increases the alien's future likelihood of an
alien receiving one or more public benefits above the 12 aggregate
months in a 36-month period threshold is negative.
---------------------------------------------------------------------------
\532\ Except that the absence of a sufficient affidavit of
support, where required, will lead to an inadmissibility finding.
See INA section 212(a)(4)(C), (D), 8 U.S.C. 1182(a)(4)(C), (D).
---------------------------------------------------------------------------
USCIS will then weigh all factors individually and cumulatively.
USCIS will assess the weighted degree to which each factor is negative
or positive--the extent to which the factor affects the likelihood that
the alien will or will not receive one or more public benefits above
the threshold. Certain enumerated factors will weigh heavily in favor
of finding that an alien is not likely to become a public charge or
finding that an alien is likely to become a public charge. But, for
example, depending on the alien's specific circumstances, a heavily
weighted negative factor can be outweighed by a heavily weighted
positive factor or some combination of positive factors in the totality
of the circumstances. Otherwise, the weight given to an individual
factor not designated a heavily weighted factor depends on the
particular facts and circumstances of each case and the relationship of
the individual factor to other factors in the analysis. Multiple
factors operating together will carry more weight to the extent those
factors in tandem show that the alien is more or less likely than not
to become a public charge.
USCIS' totality of circumstances assessment will focus on, for
instance, the following considerations:
Ability to Earn a Living--The ability of the alien to earn
sufficient income to pay for basic living needs (i.e., food and
nutrition, housing, and healthcare), as evidenced or impacted by, for
example, the alien's age, health, work history, current employment
status, future employment prospects, education, and skills;
Sufficiency of Income, Assets, and Resources--The
sufficiency of the alien's household's income, assets, and resources to
meet basic living needs (i.e., food and nutrition, housing and
healthcare);
Sufficiency and Obligation of Sponsorship--The legal
sufficiency of the affidavit of support, if required, and the
likelihood that a sponsor would actually provide the statutorily-
required amount of financial support to the alien, and other related
considerations;
Ability to Overcome Receipt of Public Benefits or
Certification or Approval to Receive Public Benefits Above the
Designated Threshold--The ability of the alien to overcome receipt of,
or certification or approval to receive, one or more public benefits
for more than 12 months in the aggregate in any 36-month period
beginning no
[[Page 41398]]
earlier than 36 months before the application for admission or
adjustment of status.
Assessing an alien's ability to overcome the heavily weighted
negative factor for recent receipt of, or certification or approval to
receive, one or more public benefits above the designated threshold, in
particular, will depend on the totality of the alien's circumstances
and the existence of positive factors that alone or in combination
could outweigh this heavily weighted negative factor such that the
alien would not be likely to become a public charge at any time in the
future. For example, the alien's assets and resources being at or above
250 percent of the FPG, the alien being healthy and between the ages of
18 and 61, the alien being currently employed, and evidence that the
alien has disenrolled or requested to disenroll from public benefits
could play a significant role in outweighing recent receipt of, or
certification or approval to receive, public benefits above the
designated threshold. Where a factor includes more than one
consideration, including evidence related to such considerations, DHS
will consider all evidence presented by the alien in the totality of
the circumstances. For example, DHS will consider income above 125
percent and a good credit score and report as positive considerations
in the totality of the circumstances.
If USCIS finds that the alien's positive factors outweigh the
alien's negative factors, such that the alien is not likely to receive
one or more public benefits above the designated threshold at any time
in the future, then USCIS will conclude that the alien is not
inadmissible as likely to become a public charge. On the other hand, if
USCIS finds that the alien's negative factors outweigh the alien's
positive factors, such that the alien is more likely than not to
receive one or more public benefits above the designated threshold at
any time in the future, then USCIS will find that the alien is
inadmissible as likely to become a public charge.
USCIS, as with other applications, will notify applicants of
deficiencies in their applications with respect to public charge
inadmissibility in accordance with the principles outlined in 8 CFR
103.2 and USCIS policy in regard to notices, RFEs or NOIDs, and
denials.\533\ If USCIS denies an alien's application for adjustment of
status on public charge grounds under section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), USCIS will explain why the negative factors outweigh
the positive factors based on the alien's individual circumstances in
making the alien more likely than not to receive one or more public
benefits above the designated threshold at any time in the future.
---------------------------------------------------------------------------
\533\ See USCIS Policy Memorandum Issuance of Certain RFEs and
NOIDs; Revisions to Adjudicator's Field Manual (AFM) Chapter
10.5(a), Chapter 10.5(b), PM-602-0163 (Jul. 13, 2018) (https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf (last visited June
21, 2019). DHS notes that the failure to submit a completed Form I-
944, Declaration of Self-Sufficiency or Form I-864, Affidavit of
Support with the Form I-485, Application to Register or Adjust
Status, when required, may result in a rejection or a denial of the
Form I-485 without a prior RFE or NOID. See 8 CFR 103.2(a)(7),
(b)(8)(ii).
---------------------------------------------------------------------------
Furthermore, to ensure consistency and quality control, USCIS will
provide training to officers and continue to monitor adjudications. As
is the case for any adjudication at USCIS, USCIS will apply its general
quality control processes for adjudications involving public charge
assessments. USCIS continues its ongoing data collection efforts on its
adjudications as well as other information relevant to the
adjudication, to continually assess and improve the adjudication
processes, procedures and training.
However, DHS notes that officer discretion is not a new concept in
USCIS immigration benefits adjudications. Several benefits provided
under the Act are discretionary in nature, and involve an assessment
and weighting of positive and negative factors. For example, an alien's
adjustment of status application to that of lawful permanent resident
under section 245 of the Act, 8 U.S.C. 1255, requires the officer to
weigh all positive and negative factors in the alien's case to
ultimately determine whether lawful permanent resident status should be
granted as a matter of discretion.\534\ DHS disagrees with commenters'
characterization that the rule overall, the proposed framework for the
public charge determination, and individual factors, as published in
the NPRM, lack required specificity or are impermissibly vague. When
creating implementing regulations under the APA, an agency must provide
notice that, among other things, articulates the terms or substance of
the proposed rule, or a description of the subjects and issues
involved. A notice of proposed rulemaking must contain sufficient
factual details and rationale to permit interested parties to comment
meaningfully. An agency is accorded broad deference in selecting the
level of generality at which it may articulate regulations but a
regulation is not deemed vague simply because it may contain a factor
that is difficult to prove; it may be deemed vague or lacking in
specificity if it is unclear as to what fact must be proven.\535\ The
NPRM and this rule both make abundantly clear what an alien must prove.
DHS not only ensured that the public had a meaningful opportunity to
comment by clearly articulating which factors USCIS will consider as
part of the totality of the circumstances standard, but also by
illustrating the application of the public charge determination
framework and its factors in the preamble and in Table 33 of the
NPRM.\536\
---------------------------------------------------------------------------
\534\ See INA section 245, 8 U.S.C. 1255; see also USCIS Policy
Manual Guidance on Adjustment of Status under INA section 245,
Volume 7, Part B, 245(a) Adjustment.
\535\ See F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239,
253 (2012); see also Connally v. General Constr. Co., 269 U.S. 385,
391 (1926).
\536\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51211 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS also disagrees that the rule requires a high standard of proof.
Congress established the mandatory factors that must be considered as
part of the public charge determination and DHS is providing guidance
on how to assess these factors.\537\ Additionally, Congress established
clear burdens and standards of proof relating to grounds of
inadmissibility in immigration proceedings. The alien always has the
burden to show that he or she is eligible for an immigration benefit
and that he or she is not inadmissible.\538\ In general, an alien must
show by a preponderance of the evidence that he or she is eligible for
the benefit sought.\539\
---------------------------------------------------------------------------
\537\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\538\ See INA section 291, 8 U.S.C. 1361; 8 CFR 103.2(b)(1)
(``An applicant or petitioner must establish that he or she is
eligible for the requested benefit.''); Matter of Brantigan, 11 I&N
Dec. 493 (BIA 1966).
\539\ See Matter of Bett, 26 I&N Dec. 437, 440 (BIA 2014) (``To
be eligible for adjustment of status, an applicant has the burden to
show that he is clearly and beyond doubt entitled to be admitted to
the United States and is not inadmissible under section 212(a) of
the Act.''); Matter of Chawathe, 25 I&N Dec. 369, 375 (2010)
(``Except where a different standard is specified by law, a
petitioner or applicant in administrative immigration proceedings
must prove by a preponderance of evidence that he or she is eligible
for the benefit sought.'') (citations omitted). See also Kirong v.
Mukasey, 529 F.3d 800, 803-804 (8th Cir. 2008) (concluding that as
an applicant for adjustment of status, the alien is put into the
position of an alien seeking admission and must prove that he or she
is clearly and beyond doubt admissible).
---------------------------------------------------------------------------
Finally, DHS understands that commenters believe that the
submission of Form I-864 provides a method for objective public charge
inadmissibility analysis and that the totality of the circumstances
approach is inefficient because of training needs and because other
agencies, such as the DOL, already evaluate education and skills
criteria. It is true that the practical focus of DHS
[[Page 41399]]
in a public charge inadmissibility determination previously had been
primarily on the sufficiency of an affidavit of support submitted on
the alien's behalf. DHS, however, clarified the relationship between
the Form I-864 and a public charge inadmissibility determination in the
NPRM.\540\ As explained in the NPRM, given that the statute \541\
differentiates between the affidavit of support requirement and the
mandatory factors of the public charge assessment, DHS considers it
inconsistent with the statutory language to solely use the affidavit of
support as a means to determine public charge inadmissibility.
Similarly, while certain employment-based immigrant categories are
required to obtain labor certifications from the DOL and to submit
evidence of job qualifications, these requirements focus on an alien's
ability to meet qualifications of the job offered and the employer's
ability to pay the proffered wages \542\ rather than an alien's
likelihood of becoming a public charge because of age, health,
financial status, education, skills, etc. Therefore, DOL's assessments
and certifications obtained by DOL are not redundant to or a suitable
substitute for public charge determinations.
---------------------------------------------------------------------------
\540\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51197 (proposed Oct. 10, 2018).
\541\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\542\ See 20 CFR part 656.
---------------------------------------------------------------------------
Comment: Several commenters stated that, although the proposed rule
acknowledges that the public charge determination is intended to be
prospective, the proposed criteria are actually retrospective and
offered without any evidence that they are relevant to the
determination of whether an immigrant will become dependent on the
Government for support in the future. Some commenters stated that the
proposed rule completely ignores an individual's ability to learn,
work, develop skills, and support himself or herself and his or her
family. Several commenters recommended that DHS conduct research about
the probability that an individual would be self-sufficient or not
based on the weighted factors included in the public charge
determination.
One commenter agreed with the use of data in Table 33 on the
Totality of Circumstances Framework for Public Charge Determinations in
the NPRM,\543\ but this commenter and many others stated that positive
and negative weighted factors are not treated the same, as there is an
extensive list of negative factors and a short list of positive
factors. Therefore, these commenters believed that it would appear more
likely an applicant could be disqualified based on weighted negative
factors even if their application contains both positive and negative
factors. Several commenters cited the MPI's analysis of American
Community Survey (ACS) data from 2012-2016, that identified immigrants
that are lawful permanent residents with fewer than five years of
residency in the United States. The study showed that a significant
number of these lawful permanent residents would have one or more
negative factors counted against them, indicating substantial reduction
in the number of potential green cards issued if the proposed rule was
finalized.
---------------------------------------------------------------------------
\543\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51211 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Multiple commenters stated that, in order to improve one's
education and skills and to be self-sufficient, it is often necessary
to draw on short-term supportive services, but drawing on such means-
tested public benefits would be a negative consideration in the
totality of the circumstances test. Thus, the rule sets up a
contradictory situation in which individuals attempting to strengthen
their positive factors may instead add to the negative factors for
their case. A commenter stated that the weighted factors used in the
``totality of circumstances'' test to determine inadmissibility is the
``only interpretation that would be consistent with the governing
statutory language and established methods of statutory construction.''
Response: DHS disagrees that it is at all problematic for DHS to
consider events in the alien's past as part of a prospective
inadmissibility determination. As explained in the NPRM, DHS's proposed
totality of the circumstances standard involves the weighing of
positive and negative considerations in relation to the alien's age,
health, financial assets, education and skills as well as the required
affidavit of support and any other factor that warrants consideration
in the alien's case. The totality of the circumstances approach,
including consideration of events and circumstances in the alien's
past, is consistent with the approach taken by the former INS, the BIA,
and Article III case law.\544\ Thus, although these factors may require
some retrospective evaluation at the time of adjustment of status,
Congress and courts deemed the alien's past as relevant to the alien's
likelihood of becoming a public charge.\545\ DHS also discussed, in
detail, the relevance of each factor in the public charge determination
and supported its finding with relevant data. DHS, therefore, disagrees
that it failed to provide a reasonable explanation why the factors are
relevant.
---------------------------------------------------------------------------
\544\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51179 (proposed Oct. 10, 2018).
\545\ See Matter of Vindman, 16 I&N Dec. 131 (Reg'l Comm's 1977)
(consideration of past public benefits in determining the likelihood
of becoming a public charge in the future); Matter of Martinez-
Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962; Att'y Gen. 1964) (in
determining whether a person is likely to become a public charge,
factors to consider include age, health, and physical condition,
physical or mental defects which might affect earning capacity,
vocation, past record of employment, current employment, offer of
employment, number of dependents, existing conditions in the United
States, sufficient funds or assurances of support by relatives or
friends in the United States, bond or undertaking, or any specific
circumstances reasonably tending to show that the burden of
supporting he alien is likely to be case on the public.)
---------------------------------------------------------------------------
Finally, although section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), lists required factors that must be considered, it does not
preclude USCIS from considering other considerations relevant in an
applicant's case. DHS agrees that officers will encounter various
circumstances not specifically accounted for in the regulation, but
plans to give officers the necessary tools through guidance and
training to fairly adjudicate such cases, and believes that officers
are able to exercise their judgment appropriately. As noted above,
Congress specifically provided for the agency's discretion to account
for all aspects in an individual's case.\546\ DHS disagrees with the
commenters that indicated that positive and negative factors are not
treated equally because DHS in its regulations listed more negative
factors than positive ones. Although having more negative factors may
be a basis for finding a person inadmissible based on public charge,
the number of negative factors does not by itself lead to a conclusion
that a person is likely to become a public charge. USCIS will consider
and weigh each factor presented in an alien's case in the totality of
the circumstances.\547\ DHS notes that it has added an additional
heavily weighted positive factor in section III.R. of this preamble.
---------------------------------------------------------------------------
\546\ See INA section 212(a)(4), 8 U.S.C. 1184(a)(4).
\547\ See 8 CFR 212.22(a).
---------------------------------------------------------------------------
Comment: Some commenters also indicated that it appeared more
likely that applicants would be disqualified based on heavily weighted
negative factors even though their application contains both positive
and negative factors.
Response: DHS agrees that some applicants may be found in the
totality of circumstances likely to become a
[[Page 41400]]
public charge even if they present positive factors. If negative
factors in the alien's case (factors that increases an alien's
likelihood of becoming a public charge) outweigh positive factors
(factors that decrease the alien's likelihood of becoming a public
charge), DHS would conclude, in the totality of the circumstances, that
the applicant is inadmissible for likely becoming a public charge.
Therefore, it may be that an alien is found inadmissible in light of a
heavily weighted negative factor even if he or she may be able to
present positive factors.
Comment: One commenter recommended that DHS provide guidance on how
the ``totality of circumstances'' and likelihood determination should
be reached using evidence-based methods, namely using a base rate as a
prior probability which can be updated based on the evidence about a
given alien. The commenter stated that starting from the ``inside
view'' of the evidence about a given alien rather than the ``outside
view'' of base rates about the reference class of all aliens would
likely lead DHS to significantly more false positive determinations.
The commenter stated that DHS should estimate a base rate--both before
the rule takes effect and again after a sufficiently long interval to
account for disenrollment--for the proportion of aliens non-exempt from
public charge inadmissibility who would be considered public charges.
This base rate should then be considered the prior probability that an
alien is likely to become a public charge. The commenter also stated
that DHS should also estimate average levels of receipt, duration, and
other kinds of evidence in the totality of the circumstances so that
officials may compare any given alien's evidence to average levels and
make appropriate updates in the right direction. Another commenter
suggested weighing factors using valid statistical methods, using
administrative survey data to create a factor model to precisely
calculate the probability of future use, and making the factor model
available online for applicants to utilize before applying.
Response: The factors contained in this rule are based, in
significant part, on data regarding the relationship between the
minimum statutory factors and a person's likelihood of receiving public
benefits. In the preamble to the proposed rule, for each positive and
negative factor, DHS included supportive reasoning that related to
either inferences regarding self-sufficiency or empirical data
regarding the relationship between the factor and the likelihood that a
person would receive public benefits. DHS relied on such data for all
heavily weighted factors. For instance, in proposing the heavily
weighted negative factor for lack of employability, DHS relied not only
on the reasonable premise that ``[s]elf-sufficiency generally involves
people being capable and willing to work and being able to maintain
gainful employment,'' but also on Census Bureau data showing that
individuals with full-time work were less likely to receive means-
tested benefits during the year (ranging from 4.5 percent to 5.1
percent) than those with either part-time work (ranging from 12.6
percent to 14.2 percent) or those who were unemployed (ranging from
24.8 percent to 31.2 percent).\548\
---------------------------------------------------------------------------
\548\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51198 (proposed Oct. 10, 2018) (citing Jeongsoo Kim, Shelley K.
Irving, & Tracy A. Loveless, U.S. Census Bureau, Dynamics of
Economic Well-Being: Participation in Government Programs, 2004 to
2007 and 2009--Who Gets Assistance? 12 (July 2012), available at
https://www2.census.gov/library/publications/2012/demo/p70-130.pdf
(last visited July 26, 2019); Shelley K. Irving & Tracy A. Loveless,
U.S. Census Bureau, Dynamics of Economic Well-Being: Participation
in Government Programs, 2009-2012: Who Gets Assistance? 10 (May
2015), available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf) (last visited July 26,
2019).
---------------------------------------------------------------------------
That said, DHS cannot satisfy the commenter's request that DHS
``estimate . . . base rates--both before the rule takes effect and
again after a sufficiently long interval to account for disenrollment--
for the proportion of aliens non-exempt from public charge
inadmissibility.'' This is because as DHS acknowledged in the proposed
rule, DHS lacks access to data regarding the specific categories of
aliens that are subject to the public charge ground of inadmissibility,
let alone data regarding such aliens' public benefits use as it relates
to the statutory factors. For instance, the proposed rule explained
that much of the data that DHS relied upon came from the 2014 Panel of
the SIPP. The SIPP Panel includes respondent-provided data on nativity,
citizenship status, and initial immigration status, but does not
provide data on current immigration classification. Additionally, the
categories represented in the SIPP immigration status item do not align
precisely with the populations covered by this rule--for instance, the
results include refugees, asylees, and other populations that may
access public benefits but are not subject to the public charge ground
of inadmissibility. Finally, the SIPP data and DHS's analysis of this
data do not examine whether the receipt of public benefits was
authorized, and DHS did not examine program payment rate error
information for this purpose. DHS sought comment on its use of the SIPP
data, and whether alternative reliable data sources are available.\549\
The commenter did not identify an alternative reliable data source that
controls for whether an alien is subject to the public charge ground of
inadmissibility.
---------------------------------------------------------------------------
\549\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51160-61 (proposed Oct. 10, 2018). The commenter also suggested that
DHS generate such data. But, it does not seem possible to estimate
the probability of becoming a public charge by following up with
aliens who were subject to the determination. For instance, many of
those who were denied a benefit may not reside in the United States
at a later date.
---------------------------------------------------------------------------
Even if the commenter had identified such data, however,
adjudicators would not have been able to rely heavily on such data,
because the public charge assessment requires a prediction based on an
assessment of the alien's particular circumstances within the framework
of multiple statutory factors, and any other relevant considerations. A
data set tailored to such particular individuals' circumstances may not
be available, and in any event was not identified by the commenter.
DHS acknowledges that the predictive analysis it will be conducting
based on an individual's particular circumstances leaves some room for
error, however, so would any predictive algorithm or data-based
``outside view'' analysis, particularly given the data limitations DHS
encountered and the likelihood that even if comprehensive data sets
existed that could be utilized in the fashion the commenter suggests,
they would not be detailed enough or sufficiently timely to account for
changes in trends. For example, a dataset from the 2008-2010 timeframe
may predict an appreciably higher rate of benefit receipt based on
certain individual circumstances than a dataset from 2015-2017.
Therefore, in the absence of adequate tools that would allow DHS to use
a comprehensive quantitative framework for individual public charge
inadmissibility determinations, USCIS officers will rely on their
training and USCIS guidance to assess the relationship between factors
and the likelihood to receive public benefits above the designated
threshold at any time in the future. This analysis will include an
assessment of all evidence provided by the alien in support of his or
her application, including any credible and probative data that is
relevant to the assessment. Furthermore, to the extent USCIS is able to
identify credible and probative data sources that would provide context
for
[[Page 41401]]
adjudicators in evaluating one or more mandatory factors, USCIS may
provide such data sources to adjudicators and ensure consistent
application through guidance and training.
Comment: A few commenters provided feedback on the review process.
One commenter stated that immigration officers will have a limited
amount of time to properly review documents and employment letters, and
will not undertake an effective, case-by-case appraisal of
applications. Similarly, commenters indicated that supervising officers
will not have enough time to review each denial thoroughly.
Response: DHS understands the concerns that the public charge
determination could increase the adjudication time of immigration
benefits and that individuals, including attorneys, may have additional
questions. DHS and USCIS are committed to putting the necessary
resources into place, including additional adjudicators, to minimize
any impact on current immigration benefits adjudications and to provide
for thorough consideration of each case and appropriate supervisory
review.
Comment: Many commenters voiced concern about the disproportionate
negative impact of the application of the mandatory factors on
marginalized communities. This included negative effects on immigrants
belonging to the LGBTQ community, HIV positive immigrants, immigrants
with chronic health conditions and disabilities, immigrants of color,
Latino immigrants, AAPI immigrants, immigrants from countries that are
poor and largely people of color, senior citizens, women, and victims
of domestic violence and sexual abuse.
Response: Regardless of whether this rule will impact the groups
specified in these comments, DHS is not promulgating this rule for a
discriminatory purpose. Rather, this rule will better ensure that
aliens seeking to enter or remain in the United States either
temporarily or permanently are self-sufficient, and rely on their own
capabilities and the resources of their family, sponsors, and private
organizations, rather than the government.\550\ DHS will determine an
individual's inadmissibility on public charge grounds of
inadmissibility in the totality of the circumstances, based on the
statutorily mandated factors.\551\ Additionally, Congress did not make
applicable the public charge ground of inadmissibility to certain
classes of aliens, including certain victims of domestic violence,
trafficking and other crimes. DHS therefore included these exemptions
in this rulemaking.\552\
---------------------------------------------------------------------------
\550\ 8 U.S.C. 1601(2)(A).
\551\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\552\ See 8 CFR 212.23.
---------------------------------------------------------------------------
Comment: A few commenters cited the MPI study, which stated that of
the over 2 million individuals granted lawful permanent residence
status in the past five years (between 2012 and 2016), 69 percent of
recent lawful permanent residents who are not refugees or other
humanitarian admissions would have had at least one negative factor
under the proposed new definition, 43 percent at least two negative
factors, and 17 percent had at least three negative factors.\553\ The
same analysis reported that 39 percent of recent lawful permanent
residents did not speak English well or not at all, 33 percent had
household incomes below 125 percent of the FPG, 25 percent did not have
a high school diploma, and 12 percent were under age 18 or over age 61.
The analysis also estimated that 39 percent of recent lawful permanent
residents had incomes at or above 250 percent of the FPG.
---------------------------------------------------------------------------
\553\ MPI, Gauging the Impact of DHS' Proposed Public-Charge
Rule on U.S. Immigration (Nov. 2018), https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration (last visited July 25, 2019).
---------------------------------------------------------------------------
Response: DHS thanks commenters for citing the findings of the MPI
study, which also highlighted that ``the rule does not specify how many
negative versus positive factors someone must have for their
application to be denied.'' \554\ While an alien may have one, two,
three, or more negative factors, the mere fact that the alien's
negative factors outnumber the alien's positive factors is not a
sufficient basis to find the alien inadmissible. DHS must find that the
alien's negative factors outweigh the alien's positive factors based on
the totality of circumstances analysis, such that the alien is more
likely than not at any time in the future to receive one or more public
benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the
aggregate within any 36-month period.
---------------------------------------------------------------------------
\554\ See Capps, Randy et al, ``Gauging the Impact of DHS'
Proposed Public-Charge Rule on U.S. Immigration,'' Migration Policy
Institute. (November 2018). Available at: https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration (last visited July 26, 2019).
---------------------------------------------------------------------------
Once effective, DHS is aware that this rule will likely result in
more findings of public charge inadmissibility and may result in fewer
overall admissions and approved adjustment of status applications to
the United States, as DHS seeks to better enforce the public charge
ground of inadmissibility and to ensure that aliens are self-sufficient
when coming to the United States or seeking to adjust status.
Notwithstanding, DHS will be bound by its own regulations in making
public charge inadmissibility determinations based on the totality of
the alien's circumstances, which includes considering and weighing all
relevant factors that are favorable to the alien.
Comment: Commenters indicated that it is impossible to predict
future self-sufficient behavior based on current resources of
individuals who are, by definition, in transition (or trying to be)
from living in another country to finding and creating opportunity in
the United States.
Response: DHS disagrees that it is impossible to predict whether an
individual is likely to become a public charge in the future based on
the factors outlined in INA section 212(a)(4) of the Act, 8 U.S.C
1182(a)(4). The commenters' quarrel is with Congress, not DHS. While
DHS acknowledges that the public charge determination is a complex
assessment, DHS described at length in the NPRM how it would evaluate
an alien's individual circumstances, including the minimum statutory
factors, as part of the public charge determination. In Table 33 of the
NPRM, DHS also outlined in detail the totality of the circumstances
assessment and when the evidence in the totality of the circumstances
may be indicative of the individual becoming a public charge. In this
final rule, as explained below, DHS has further clarified and expanded
on its approach.
Comment: Commenters pointed out that many who would be subject to
the public charge rule are already barred from receiving public
benefits for at least 5 years due to past welfare reform efforts.
Response: The commenters correctly pointed out that under PRWORA
and other laws, most immigrants and nonimmigrants are not eligible for
certain public benefits for a duration of at least five years. The
public charge ground of inadmissibility, however, does not have any
temporal limits in this regard and is prospective in nature; Congress
directed the administering agencies to determine, for admissibility
purposes, whether the alien is likely, ``at any time'' to become a
public charge.
I. Age
1. Standard
Comment: A commenter expressed support for the proposed designation
of the age range 18-61 as a positive factor and stated that there is a
strong correlation between this prime working age range and a much
lower rate of use
[[Page 41402]]
of public benefits, compared to individuals outside that age range. The
commenter also added that that both minors and elderly aliens, like
their citizen counterparts, are more likely to be financially dependent
on resources other than employment income. One commenter suggested that
DHS conduct a more lenient ``Public Charge Check'' for aliens younger
than 21 or older than 55 (if one is needed at all), and a more thorough
check for aliens aged between 21 and 55. A commenter stated that since
the 19th century, courts have recognized that it would be absurd to
exclude every child from our shores, since no child, by his personal
efforts alone, can take care of himself.'' \555\
---------------------------------------------------------------------------
\555\ See In re Day, 27 F. 678 (S.D.N.Y. 1886).
---------------------------------------------------------------------------
Another commenter said the rule provides no justification for why a
minor under 18 years old should be scrutinized when they are not
expected to be self-sufficient, or why immigrants over the age of 61,
many of whom work or provide support to the rest of their family,
should be penalized merely because of their age. The commenter stated
that the rule did not explain why these age thresholds are predictors
of future public benefit use. One commenter stated that these age-range
requirements are overly broad, ignore the possibility of a familial
sponsor, and raise the income requirements in a cruel way that is
detrimental to society. One commenter asserted that DHS's analysis for
an age standard overlooks the substantial benefits that minor children
bring to a family, including future potential working capacity. One
commenter similarly stated that the rule does not factor in the
potential children have to add value to society and also stated that
seniors often play a critical caregiver role which allows others to
work. Another commenter added that an alien's unemployment at age 16 or
17 provides no evidence of their future employability. One commenter
gave an example that 16-year old high-school students are not likely to
be employed for many years in the future, but once they complete their
education they can reach their true potential. A commenter stated that,
although those under the age of 18 are less likely to work since they
will be in school, and therefore are more likely to become a public
charge, those individuals typically learn English very quickly,
integrate readily, and after completing their education (often
including higher education), go on to work, contribute, and pay taxes
in the United States for decades. A few commenters cited a report by
the National Academies of Sciences, Engineering, and Medicine \556\ for
the proposition that second-generation child immigrants are the most
fiscally positive of all immigrants to the United States.
---------------------------------------------------------------------------
\556\ See National Academies of Sciences, Engineering, and
Medicine, The Economic and Fiscal Consequences of Immigration
(2017).
---------------------------------------------------------------------------
Another commenter, in opposition to the age standard, said the
question is not whether all children are likely to receive benefits,
but rather whether children applying for lawful permanent resident
status will. The commenter indicated that DHS cites no authority for
its assertion that applicants who obtain lawful permanent resident
status are more likely to become public charges simply due to their
being under 18 years of age at the time of application. The commenter
stated that because most aliens are not eligible for means-tested
public benefits for at least the first five years after obtaining such
status, the age range is too high. The commenter also stated that, for
decades, DOS has used the age of 16 as the cut-off for when the child
will be able to show employable job skills. The commenter sought
justification for the change. One commenter stated that DHS bases this
age standard on the minimum age at which one can start to claim
retirement benefits under social security; however, this was never
meant to be used to say that people are unable or even unlikely to work
after that age. Some commenters stated that many over 61-year-olds are
able to, willing to, and do work after immigrating.
Response: DHS agrees that the age range is appropriate due to the
general correlation between the 18-61 age range and a lower rate of use
of public benefits, and that people outside of this age range are, in
general, more likely to be financially dependent on others.\557\ DHS
agrees that generally, most aliens are not eligible for means-tested
public benefits for at least the first five years after obtaining such
status; however, there are certain exceptions under PRWORA, including
the availability of SNAP for children under 18.\558\ DHS also
acknowledges that certain individuals, depending on their status and
circumstances, may not be eligible for public benefits in the near term
and would take that fact into consideration in the public charge
inadmissibility determination. DHS disagrees with the suggestion that
USCIS provide a more lenient review of public charge for those below 21
and above 55. USCIS will apply the same public charge framework for all
cases subject to public charge. DHS disagrees that there was no
justification in the NPRM for the age range and will maintain the age
ranges as identified in the NPRM. As established by Congress, an
alien's age is a mandatory factor that must be considered when
determining whether an alien is likely to become a public charge in the
future.\559\ As discussed in the NPRM, a person's age may impact his or
her ability to legally or physically work and is therefore relevant to
the likelihood of an alien becoming a public charge.\560\
---------------------------------------------------------------------------
\557\ The rate of receipt of cash and noncash benefits among
noncitizen children age 0-17 decreased with the removal of Medicaid
from consideration for that age group, changing from about 40
percent when the benefit was included to about 20 percent when it
was not. The receipt rate of cash and noncash benefits among
noncitizen children age 0-17 was no longer significantly different
from that of noncitizens aged 18-61 when Medicaid was included only
for the older age group, and both of these age groups had much lower
receipt of benefits than noncitizens aged 62 and over. However, due
to the restrictions on employment by minors and the fact that
children are dependent on their parents or legal guardians, as
discussed in the NPRM, DHS still consider the age range appropriate.
\558\ See, e.g., 8 U.S.C. 1612(a)(2)(J).
\559\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
\560\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51179-81 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
In addition, regardless of an alien's age, DHS recognizes,
consistent with longstanding case law, that the alien may have
financial assets, resources, benefits through employment, education or
skills, family, or other means of support that decrease his or her
likelihood of becoming a public charge. Therefore, age is but one
factor in the totality of the circumstances. As discussed in the
NPRM,\561\ the 18 through 61 age range is based on the ages at which
people are generally able to work full-time before being able to retire
with some social security retirement benefits under Federal law.\562\
DHS notes that considering 18 years old as the earliest age in which
one is expected to be able to work is consistent with current DOS
guidance which directs consular officers to consider what skills
individuals 18 years of age or older have to make a living.\563\ DHS
declines the request from the commenter to justify why this rule is
contrary to past DOS guidance since that guidance is from another
Department and never was binding on DHS. DHS understands that children
may continue their education and obtain employment in the future. DHS
would not make a determination of
[[Page 41403]]
inadmissibility based on public charge solely based on the age of a
child. Instead, USCIS would also review the support provided by a
parent or other source in the totality of the circumstances.
---------------------------------------------------------------------------
\561\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
511179-81 (proposed Oct. 10, 2018).
\562\ See 29 U.S.C. 213(c), 42 U.S.C. 416(l)(2) (``Early
retirement age'' for social security purposes).
\563\ See 9 FAM 302.8-2)(B)(2), paragraph d, available at
https://fam.state.gov/FAM/09FAM/09FAM030208.html (last visited May
15, 2019).
---------------------------------------------------------------------------
Comment: Commenters stated DHS based the proposed age standard on
the minimum age at which one can start to claim retirement benefits
under social security; however, this was never meant to be used to say
that people are unable or even unlikely to work after that age. Several
commenters explained that if DHS finalized the rule as proposed, many
U.S. citizens would no longer be able to welcome their own parents into
the country because it would be difficult for older adults to pass the
``public charge'' test under the new criteria. A commenter stated that
applications for parents account for almost 30 percent of all family-
based applications. Some commenters stated that many seniors immigrate
to the United States in order to help care for children and other
family members. Commenters stated this rule fails to recognize the
value of intergenerational families who support each other and the
proposed rule ``callously'' labels parents and grandparents as a burden
because of their age or health needs and ignores the critical roles
many grandparents play in caring for their grandchildren and other
family members, often enabling others to work.
A few commenters stated that the proposed rule fails to accord
appropriate dignity and respect to community elders seeking immigration
relief by treating them as economically disposable, and would have the
effect of straining and fracturing families who seek to maintain
seniors within the familial unit.
A commenter said having older adults at home can eliminate the cost
of childcare, which is one of the highest budget items for many
families and can approach 20 percent of household income for low-income
families. Citing studies, a commenter stated that limiting the age of
workers has been shown to have a negative economic impact on society.
Another commenter remarked that the proposed rule could prevent many
American citizens from maintaining the dignity of their families due to
``exclusionary factors'' assigned to advanced age or receipt of life-
saving medical savings under Medicare Part D. The commenter also stated
that this illustrates a critical flaw in the proposed rule: it
undervalues the important role a parent or grandparent contributes to a
family. A few commenters stated that if U.S. citizens are unable to
bring their parents to the United States, they would have to send money
abroad for their care in their home country, which may require
expensive residential care, financially hampering citizens and sending
those dollars outside of the U.S. economy.
One commenter stated there is a priceless emotional benefit to U.S.
citizens having their parents nearby for love, support, and for their
families to be whole and enriched through the joyful and sorrowful life
events of the birth of grandchildren and the passing of family elders.
A commenter stated that some U.S. citizens bring their elderly parents
to the United States because caring for them here will ease the burden
of worrying about their care in countries that are many thousands of
miles away. The commenter added that the ability to care for loved ones
at the end stages of life is an important marker for all communities
and nationalities, which would be nearly impossible if DHS finalized
the rule as proposed.
Response: DHS disagrees that the age standard is arbitrary. As
provided in the NPRM,\564\ there is a correlation between the prime
working age range and lower rates of public benefit use. As indicated
in the NPRM,\565\ the 18 through 61 age range is based on the ages at
which people are generally able to work full-time before being able to
retire with some social security retirement benefits under Federal
law.\566\ The age of 18 is based on the general age to be able to start
working full-time; \567\ the age of 61 is the year before the minimum
``early retirement age'' for social security purposes \568\ (62 as of
2017). DHS will still consider the alien's age in relation to whether
it makes the alien more or less likely to become a public charge, such
as by impacting the alien's ability to work. DHS is not establishing
the age range as a statement that people outside that range are unable
to work. DHS acknowledges that people under the age of 18 and over the
age of 61 may be working or have other adequate means of support, such
as from family members. DHS would recognize such means as positive
factors. In other words, a senior who establishes to DHS's satisfaction
that she or he is not likely to become a public charge would not be
deemed inadmissible on public charge grounds.
---------------------------------------------------------------------------
\564\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51180 (proposed Oct. 10, 2018).
\565\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51180 (proposed Oct. 10, 2018).
\566\ See 29 U.S.C. 213(c), 42 U.S.C. 416(l)(2).
\567\ See 29 U.S.C. 213(c); 29 CFR part 570; see also Dep't of
Labor, Table of Employment/Age Certification Issuance Practice Under
State Child Labor Laws, available at https://www.dol.gov/whd/state/certification.htm (last visited July 26, 2019).
\568\ See 42 U.S.C. 416(l)(2).
---------------------------------------------------------------------------
DHS recognizes the tangible and intangible value to individuals and
communities of strong family bonds and support across generations. DHS
notes that where an alien can establish that he or she is not likely to
become a public charge in light of all the relevant factors--including,
for example, the support of one or more family members--the alien would
not be found inadmissible as a public charge. Accordingly, DHS does not
believe that this rulemaking will necessarily render it impossible for
individuals to care for family members. Rather, the rule seeks to
ensure that aliens rely on themselves and on private sources, including
their families, to meet their needs, rather than relying on public
benefits. DHS does acknowledge that the rule could affect a family
member's admissibility or eligibility to adjust status in some cases,
but notes that such effect would be a consequence of the statutory
scheme, under which the family member is subject to the public charge
ground of inadmissibility.
Comment: A commenter asserted the statistics DHS used to establish
the 18-61 age standard do not distinguish between those who are
refugees and asylees and those who obtained legal status through a
family or employment-based petition. The commenter added that lawful
permanent residents who immigrate or adjust through other means are
barred for their first five years from accessing SSI, and they are
subject to sponsor-to-alien deeming of income thereafter. The commenter
stated that it is inappropriate to lump this latter group of lawful
permanent residents in with refugees and asylees, who are in fact
encouraged to participate in Federal benefit programs, and it is
disingenuous to use it as a basis to make age above 61 years a negative
factor.
Response: As discussed in the NPRM, DHS recognizes that the
statistics provided do not distinguish the immigrant status of the
alien, and ``the results include refugees, asylees, and other
populations that may access public benefits but are not subject to the
public charge ground of inadmissibility.'' \569\ The SIPP data and
DHS's analysis of this data do not examine whether the receipt of
public benefits was authorized, and DHS did not examine program payment
rate error information for this purpose. Notwithstanding these
limitations, DHS believes the SIPP data on noncitizen participation is
instructive with respect
[[Page 41404]]
to the receipt of non-cash benefits by the noncitizen population
overall.
---------------------------------------------------------------------------
\569\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51160 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A few commenters stated this proposal could undermine
access to healthcare, nutrition, and housing programs for children of
immigrants and their aging family members. One commenter said the
proposed consideration of age could contribute to family separations.
The commenter added that by weighing age negatively in the totality of
circumstances, immigrant children younger than 18 years of age are
likely to see their green card or visa applications denied, which could
lead to members of the same family obtaining differing immigration
statuses, with some members unable to remain in the United States. A
few commenters said the rule could increase family separation, which
can cause emotional stress and trauma in children that leads to
negative health outcomes. Another commenter cited an MPI analysis,
which found that 45 percent of children who recently received green
cards had two or more negative factors. The commenter added that
depriving children, including U.S. citizens, of access to public
benefits that would otherwise increase their families' ability to
thrive will lead to deep stress, which studies show then in turn leads
to reduced outcomes throughout life. A commenter indicated that being a
child should not weigh against an individual in a public charge
determination. The commenter stated that because children generally are
not allowed to work, it is unlikely they could have an income or assets
on their own equal to 125% or more of the FPG.
Response: DHS understands that individuals, including children,
will be impacted by this rulemaking, once effective. When codifying
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), Congress did not
generally exempt children from the public charge inadmissibility ground
and an alien's age is a mandatory, statutory factor that DHS must be
considered when determining whether an alien is likely at any time in
the future to become a public charge.\570\ Accordingly, DHS will
consider whether the alien's age makes the alien more likely than not
to become a public charge, such as if the alien's age affects an
alien's ability to work. DHS understands that children are in a unique
position in some respects, especially as it relates to employability.
The commenter referred to the MPI's study, which attempted to measure
the general impact of the proposed rule by examining the situations of
recent green card recipients. The MPI study estimated that among recent
green card recipients, about 45 percent of the children would have had
two or more negative factors if the proposed rule had been applied to
them.\571\ DHS appreciates the input on the potential impact. As
indicated in the NPRM, however, DHS is not able to quantify the number
of aliens, including children, who would possibly be denied admission
based on a public charge determination under this rule. Again, DHS is
qualitatively acknowledging this potential impact.
---------------------------------------------------------------------------
\570\ See section INA section 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B).
\571\ See Capps, Randy et al, ``Gauging the Impact of DHS'
Proposed Public-Charge Rule on U.S. Immigration,'' Migration Policy
Institute. (November 2018). Available at: https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration (last visited July 26, 2019).
---------------------------------------------------------------------------
DHS would like to clarify, however, the following aspects of the
inadmissibility determination in relation to children under the age of
18: DHS understands that children may continue their education and
obtain employment in the future. As indicated throughout this preamble,
DHS would not make a public charge inadmissibility determination solely
based on the age of a child. Instead, USCIS will review the support
provided by a parent or the parents, and any other evidence addressing
the resources and assets available to the child in the totality of the
circumstances when determining whether the child is more likely than
not at any time in the future to become a public charge. DHS has also
made a number of changes and clarifications in this final rule that are
relevant to the rule's effects on children, including (1) excluding
receipt of Medicaid by children under age 21, and (2) clarifying that
receipt of benefits by another beneficiary's behalf is not attributed
to the person who received it (such as a parent or legal guardian, for
example). DHS does not anticipate outcomes that would require family
members to live in different countries, so long as any family members
who have applied for an immigration benefit for which admissibility is
required can demonstrate that they are not inadmissible.
Overall, DHS notes that the public charge inadmissibility
determination requires DHS to evaluate the alien child's particular
circumstances. DHS's totality of the circumstances standard involves
weighing all the positive and negative considerations related to an
alien's age; health; family status; assets, resources, and financial
status; education and skills; required affidavit of support; and any
other factor or circumstance that may warrant consideration in the
public charge inadmissibility determination.\572\ If the negative
factors outweigh the positive factors, then the alien would be found
inadmissible as likely to become a public charge; if the positive
factors outweigh the negative factors, then the alien would not be
found inadmissible as likely to become a public charge.
---------------------------------------------------------------------------
\572\ See 8 CFR 212.22.
---------------------------------------------------------------------------
2. Age Discrimination
Comment: Some commenters stated that rule discriminates against
people of certain ages. Commenters stated that the age standard is not
only discriminatory towards children, but is also logically
inconsistent as children have a lifetime of productive years ahead of
them. Commenters stated that adding age and disability discrimination
into our immigration regulations would unjustly deny U.S. citizens the
ability to reunite with, receive support from, and if necessary,
provide support to their family members.
Response: DHS does not agree that this rule adds discrimination
based on age or disability. An alien's age is a mandatory factor that
must be considered when determining whether an alien is likely to
become a public charge in the future.\573\ Therefore, the rule includes
this factor. As DHS noted in the NPRM, a person's age may impact his or
her ability to legally or physically work and is therefore relevant to
being self-sufficient, and the likelihood of becoming a public charge.
An alien's likelihood of becoming a public charge is prospective and
based on the totality of the alien's circumstances. If an alien's
positive factors outweigh the negative factors, then the alien would
not be found inadmissible as likely to become a public charge. No one
factor, apart from the failure to submit a sufficient affidavit of
support where required, is outcome determinative.
---------------------------------------------------------------------------
\573\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
---------------------------------------------------------------------------
Additionally, to the extent that this rule may result in the denial
of some applications filed by relatives of U.S. citizens, DHS disagrees
that this rule would deny U.S. citizens the ability to reunite with,
and support, their families. DHS acknowledges that the rule could
affect a family member's admissibility or eligibility for adjustment of
status, but such effect would be a consequence of the statutory scheme,
under which the family member is subject to the public charge ground of
inadmissibility. This rule does not change the criteria applicable to a
U.S. citizen filing Petition for Alien
[[Page 41405]]
Relative (Form I-130), which does not require the beneficiary's
admissibility. This rule addresses the criteria for establishing
eligibility for admission or adjustment of status and for demonstrating
that the applicant is not inadmissible as likely to become a public
charge. In other words, even if an alien may be eligible statutorily to
be granted adjustment of status based upon the approval of a Form I-130
filed by a U.S. citizen relative, the alien is not entitled to be
admitted to the United States or granted adjustment,\574\ and the U.S.
citizen is not entitled to be reunified with the applicant.
---------------------------------------------------------------------------
\574\ See Mudric v. Att'y Gen. of U.S., 469 F.3d 94, 98 (3d Cir.
2006) (``While an alien may be eligible for a grant of . . .
adjustment of status under the immigration laws, he is not entitled
to such benefits as a constitutional matter.''); see also, Matter of
Ho, 19 I&N Dec. 582, 589 (BIA 1988) (holding that ``[a]pproval of a
visa petition is but a preliminary step in the visa or adjustment of
status application process, and the beneficiary is not, by mere
approval of the petition, entitled to an immigrant visa or to
adjustment of status.'')
---------------------------------------------------------------------------
J. Health
1. Standard
Comment: Several commenters stated that the rule perpetuates the
``false assumption'' that a medical diagnosis is solely determinative
of an individual's current abilities and future prospects, with some
asserting that chronic illness is not an accurate indicator of future
self-sufficiency and full-time employment capabilities. One commenter
stated that this policy assumes that the presence of a physical or
mental condition is a financial risk to the state and fails to
recognize the significant contributions that people with chronic health
and other conditions can and do make as professionals and community
members. One commenter stated the that consideration of disability in
the health factor was a per se rule that is inconsistent with the fact
that ``health status is far from necessarily predictive of a person's
ability to engage productively in work and other aspects of community
life.'' Another commenter stated that DHS failed to consider that with
access to health insurance (e.g., Medicaid), preventive medical
treatment, and health care professionals, individuals with chronic
medical conditions can exhibit drastic improvements in their health and
productivity. A different commenter stated that counting conditions
that require extensive medical treatment and/or hospitalization as
negative factors ignores the reality that a Class A or B medical
condition, especially a curable one, is not an accurate indicator of
future self-sufficiency and full-time employment capabilities.
Commenters noted that advances in medical technology could make certain
conditions, such as HIV/AIDS more manageable in the future, with one
noting that Type 1 Diabetes was a disabling condition in the 1950s but
now adults and children with Type 1 Diabetes lead full, productive, and
independent lives.
Conversely, one commenter agreed that the proposed health factor
approach is appropriate for public charge purposes, so long as the
inquiry is limited to whether aliens are likely to be able to pay for
health-related expenses for themselves and any household dependents
without the use of public resources.
Response: DHS recognizes that an individual with medical conditions
may provide significant contributions to society. As established by
Congress, an alien's health is a factor that must be considered when
determining whether an alien is likely to become a public charge at any
time in the future.\575\ As indicated in the NPRM, the mere presence of
a medical condition would not render an alien inadmissible.\576\
Instead, DHS would consider the existence of a medical condition in
light of the effect that such medical condition is likely to have on
the alien's ability to provide and care for himself or herself; DHS
will weigh such evidence in the totality of the circumstances. DHS
officers will not be making medical determinations or determining the
effects of the conditions. Instead, officers will review any required
Form I-693 or applicable DOS medical examination form \577\ submitted
in support of the application for the diagnosis of medical conditions
according to the procedures established by HHS; \578\ or any other
evidence of a medical condition that is likely to require extensive
medical treatment or institutionalization after arrival, or that will
interfere with the alien's ability to care for himself or herself, to
attend school, or to work. The HHS regulations direct physicians
conducting the immigration medical examinations for either Class A or
Class B conditions to explain on the medical report ``the nature and
extent of the abnormality; the degree to which the alien is incapable
of normal physical activity; and the extent to which the condition is
remediable . . . [as well as] the likelihood, that because of the
condition, the applicant will require extensive medical care or
institutionalization.'' \579\ In addition, the CDC Technical
Instructions for Medical Examinations of Aliens, directs physicians to
provide information about Class B conditions, which, although do not
``constitute a specific excludable condition, represents a departure
from normal health or well-being that is significant enough to possibly
interfere with the person's ability to care for himself or herself, to
attend school or work, or that may require extensive medical treatment
or institutionalization in the future.'' \580\ Such an assessment would
necessarily account for any recent advancements in treating the medical
condition, and goes directly to the prospect of the alien being able to
care for himself or herself and being able to attend school or go to
work. And, of course, the alien could provide further information with
the application.
---------------------------------------------------------------------------
\575\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\576\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51181-84 (proposed Oct. 10, 2018).
\577\ This is currently the Immigrant or Refugee Application
(Form DS-2054).
\578\ The medical examination documentation indicates whether
the applicant has either a Class A or a Class B medical condition.
In addition, the alien must provide a vaccination record as part of
the medical examination. Class A and Class B medical conditions are
defined in the HHS regulations. See 42 CFR 34.2.
\579\ 42 CFR 34.4(b)(2) (Class A); 42 CFR 34.4(c)(2) (Class B).
\580\ See Ctrs. for Disease Control & Prevention, Required
Evaluations--Other Physical or Mental Abnormality, Disease, or
Disability, Technical Instructions For Medical Examination Of
Aliens, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/technical-instructions/panel-physicians/other-physical-mental.html (last updated Nov. 23, 2016) (last visited July
26, 2019); Ctrs. for Disease Control & Prevention, Required
Evaluation Components Other Physical or Mental Abnormality, Disease
or Disability, Technical Instructions for the Medical Examination of
Aliens in the United States, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions/civil-surgeons/required-evaluation-components/other-disease-disability.html (last updated Aug. 3, 2010) (last visited July 26,
2019). The HHS regulations require physicians conducting medical
examinations for an alien to comply with the CDC's Technical
Instructions for Medical Examinations of Aliens. 42 CFR 34.3(i).
---------------------------------------------------------------------------
Comment: One commenter stated that, while health has always been a
factor in the public charge test, the proposed rule codifies and unduly
weighs the specific standard for evaluating an individual's health.
Similarly, another commenter stated that the proposed rule essentially
counts the same health status as two negative factors and also as a
heavily weighted negative factor: Once as a negative health factor;
again as a negative assets, resources and financial status factor; and
then again as a heavily weighted negative factor if the non-citizen is
uninsured. A different commenter said the combination of penalizing
someone's medical condition
[[Page 41406]]
and negatively weighting use of benefits and services that help to
treat that medical condition will create an insurmountable bar for many
older adults and people living with chronic illnesses or disabilities.
Another commenter said health and disability are factors that are
improperly considered twice under the rubric of the proposed rule.
Response: DHS disagrees that the review of the health factor in the
public charge inadmissibility determination is an insurmountable bar
for people with chronic illness or disabilities. The mere presence of a
medical condition would not render an alien inadmissible. Instead, DHS
would consider the existence of a medical condition in light of the
effect that such medical condition is likely to have on the alien's
ability to attend school or work, and weigh such evidence in the
totality of the circumstances. As part of the assets, resources and
financial status factor, DHS would also consider whether the alien has
the resources to pay for associated medical costs.
As stated in the NPRM, an alien is at high risk of becoming a
public charge if he or she does not have the resources to pay for
reasonably foreseeable medical costs, including costs related to a
medical condition that is likely to require extensive medical treatment
or institutionalization or that will interfere with the alien's ability
to provide care for himself or herself, to attend school, or to
work.\581\
---------------------------------------------------------------------------
\581\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51182 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
The mere presence, however, of any one enumerated circumstance,
would not alone be determinative. A heavily weighted factor could be
outweighed by countervailing evidence in the totality of the
circumstances. DHS also disagrees that it is impermissibly counting
factors twice. DHS acknowledges that multiple factors may coincide or
relate to each other and emphasizes that the public charge
determination reviews all factors in the totality of the circumstances.
Therefore, the fact that a person has a medical condition that prevents
him or her from working or going to school and lacks private health
insurance is considered in the totality of the circumstances without
assigning a point system or value to various factors. Finally, as
discussed in section III. R. of this preamble, DHS has added a heavily
weighted positive factor for private health insurance appropriate to
intended the duration of the alien's stay.
Comment: Some commenters expressed concern that this aspect of the
rule contained vague wording. One commenter stated that considering
``any physical or mental condition'' as part of the individual's health
is overly broad and open to interpretation. Another commenter stated
that the rule would stretch the INA's public charge language beyond
recognition by adding vague references to ``extensive medical
treatment'' and ``interference'' with an individual's ability to work,
attend school, or otherwise be self-sufficient. The commenter stated
that the manner in which DHS proposed to consider the health of an
immigrant in making a forward-looking public charge determination
leaves so much room for discretion that it renders the health factor
consideration meaningless. A different commenter objected to using the
standard of whether a health condition ``interferes with work or
school'' as too broad, vague, and biased against people of color who
will be prejudiced by this generic standard. The commenter stated that
social determinants of health are one of the main inequalities between
whites and persons of color. A commenter said that the proposed rule's
consideration of medical conditions ``likely'' to require extensive
medical treatment in the future was highly speculative, and that
medical predictions about the future are notoriously inaccurate.
One commenter stated that, although the rule claims to use a
physician's medical examination/report with two classes of medical
conditions, it is vague, provides the physician with great latitude,
and does not provide a clear definition of which medical conditions
would be considered as a negative factor. This commenter stated that
this suggests that any pre-existing condition may be counted against a
green card applicant regardless of whether it will seriously undermine
an individual's self-sufficiency.
Some commenters provided input on the role of DHS adjudicators as
it relates to the health factor. Several commenters questioned the
ability of an adjudicator to determine if someone living with a chronic
condition will be a public charge in the future. One commenter said
authorizing DHS personnel to make projections about whether a person's
health condition could, in the future, affect their ability to work,
study or care for themselves or require expensive treatment invites
unbridled speculation and discrimination against persons with
disabilities or other observable physical conditions. Another commenter
stated that USCIS lays out no standards for determining whether a
disability or other serious health condition will lead the agency to
decide whether an applicant has a ``reasonable prospect of future
employment.'' A different commenter said the rule would authorize non-
medically trained personnel to overrule a medical professional's
determination about whether a person's health should be a barrier to
admission. Another commenter said immigration officials lacking any
specialized medical knowledge would rely on hastily composed medical
reports (frequently from medical providers who would have no
established medical relationship with an individual) to exclude a
noncitizen from the immigration benefit solely because of the presence
of a particular illness or disability that may appear ``grave'' or
``costly'' based on preconceived and often erroneous assumptions. Some
commenters said the proposed rule discounts future advancements in
medical science and social norms by allowing DHS officials to make
present-day judgements about an individual's future capabilities. A
couple of commenters stated that the rule does not provide meaningful
guidance on permissible and impermissible considerations when factoring
in a person's disability during a public charge inadmissibility
finding, which leaves immigration officials with seemingly open-ended
interpretation.
Response: DHS disagrees that the wording regarding the health
factor is vague and does not provide guidance on the consideration of
disability. DHS's language mirrors the language as provided by HHS
regulations and CDC guidance. In identifying a Class A medical
condition, the HHS regulations direct physicians conducting the
immigration medical examinations to explain on the medical report ``the
nature and extent of the abnormality; the degree to which the alien is
incapable of normal physical activity; and the extent to which the
condition is remediable . . . [as well as] the likelihood, that because
of the condition, the applicant will require extensive medical care or
institutionalization.'' \582\
---------------------------------------------------------------------------
\582\ 42 CFR 34.4(b)(2).
---------------------------------------------------------------------------
A Class B medical condition is defined as a physical or mental
condition, disease, or disability serious in degree or permanent in
nature.\583\ Currently, the CDC Technical Instructions for Medical
Examinations of Aliens, which direct physicians to provide information
about Class B conditions, describe a Class B condition as one that,
although it does not ``constitute a specific excludable
[[Page 41407]]
condition, represents a departure from normal health or well-being that
is significant enough to possibly interfere with the person's ability
to care for himself or herself, to attend school or work, or that may
require extensive medical treatment or institutionalization in the
future.'' \584\
---------------------------------------------------------------------------
\583\ See 42 CFR 34.2(b)(2).
\584\ See Ctrs. for Disease Control & Prevention, Required
Evaluations--Other Physical or Mental Abnormality, Disease, or
Disability, Technical Instructions For Medical Examination Of
Aliens, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/technical-instructions/panel-physicians/other-physical-mental.html (last updated Nov. 23, 2016) (last visited July
26, 2019); Ctrs. for Disease Control & Prevention, Required
Evaluation Components Other Physical or Mental Abnormality, Disease
or Disability, Technical Instructions for the Medical Examination of
Aliens in the United States, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions/civil-surgeons/required-evaluation-components/other-disease-disability.html (last updated Aug. 3, 2010) (last visited July 26,
2019). The HHS regulations require physicians conducting medical
examinations for an alien to comply with the CDC's Technical
Instructions for Medical Examinations of Aliens. See 42 CFR 34.3(i).
---------------------------------------------------------------------------
As discussed in the NPRM,\585\ as part of the immigration medical
examination, when identifying a Class B medical condition, civil
surgeons and panel physicians are required to report on certain
disabilities, including the nature and severity of the disability, its
impact on the alien's ability to work, attend school, or otherwise
support himself or herself, and whether the disability will require
hospitalization or institutionalization. DHS would only consider
disability as part of the health factor to the extent that such
disability, in the context of the alien's individual circumstances,
impacts the likelihood of the alien becoming a public charge; i.e., the
rule calls for a consideration of the potential effects on the alien's
ability to work, attend school or otherwise support himself or herself.
Further, if an immigration medical examination by a civil surgeon or
panel physician is required, officers will generally defer to the
report when assessing whether an individual's medical condition will
affect a person's ability to care for himself or herself, work, or go
to school. DHS would generally defer to such report, unless there is
evidence that the report is incomplete. DHS has amended the regulatory
text consistent with this approach. Consistent with the NPRM, however,
DHS will also permit the alien to submit other documentation regarding
the alien's medical conditions to assess whether the alien's health
makes the alien more likely than not to become a public charge at any
time in the future. This should provide ample opportunity for the alien
to provide the full context surrounding his or her health.
---------------------------------------------------------------------------
\585\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51181-84 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Another commenter stated that the Form I-693 medical exam
could not be expected to detect ailments or conditions not indicated on
Form I-693, and therefore, DHS may never be made aware of many health
conditions among future applicants and petitioners. The commenter
further indicated that an individual could delay seeking treatment for
a condition, and could delay application for Medicaid or Medicare until
after naturalizing. Another commenter expressed concern that the list
of medical conditions included in the Form I-693 medical exam may be
subject to additions after finalization of the proposed rule
threatening the hard-won progress towards ending many epidemics in the
United States.
Response: DHS's general reference for review of the health factor
is the Form I-693. Civil surgeons test for Class A and Class B
conditions and report the findings on the Form I-693, as directed by
the CDC Technical Instructions; an officer would review the civil
surgeon's findings in the totality of the circumstances. However, DHS
would also take into consideration any additional medical records or
related information provided by the alien to clarify any medical
condition included on the medical form or other information that may
outweigh any negative factors. Such documentation may include, for
instance, a licensed doctor's attestation of prognosis and treatment of
a medical condition. DHS would consider the evidence in the totality of
the circumstances. DHS acknowledges that this approach is imperfect,
but believes that it appropriately implements the statute in the
context of adjudicators' limited expertise.
Comment: A commenter said the rule's inclusion of Class B medical
conditions as impacting admissibility is an impermissible use of
regulatory power. Specifically, the commenter said the proposed rule
seeks to create a new ground of inadmissibility by finding those who
are not inadmissible under section 212(a)(1) of the Act, inadmissible
under section 212(a)(4) of the Act and is attempting to substitute
medical determinations by congressionally enabled civil surgeons and
panel physicians with its own determination about medical
inadmissibility.
Response: DHS disagrees with the commenter that considering Class B
medical conditions as part of the public charge determination is an
impermissible use of regulatory authority. As part of the public charge
determination, Congress directed agencies to consider, among other
factors, the health of the alien.\586\ As explained in the NPRM,\587\
prior to Congress establishing health as a factor for the public charge
determination, the courts, the BIA and INS had also held that a
person's physical and mental condition was of major significance to the
public charge determination, generally in relation to the ability to
earn a living.\588\ Accordingly, DHS proposed that when considering an
alien's health, DHS will consider whether the alien has any physical or
mental condition that, although not considered a condition or disorder
that would render the alien inadmissible under the health-related
ground of inadmissibility,\589\ is significant enough to interfere with
the person's ability to care for himself or herself or to attend school
or work, or that is likely to require extensive medical treatment or
institutionalization in the future. USCIS-designated civil surgeons and
DOS-designated panel physicians examine whether an alien has a
condition that renders the alien inadmissible on medical grounds (a
Class A medical condition according HHS regulation) \590\ or whether
the alien has a medical condition that is significant enough to
interfere with the person's ability to take care of himself or herself,
to attend school or to work and would likely receive extensive medical
treatment (a Class B condition).\591\ If the alien is required to
[[Page 41408]]
undergo an immigration medical examination, USCIS will generally defer
to the findings from the civil surgeon or panel physician made in the
immigration medical examination report (unless the report appears
incomplete) in regard to the determination of the medical condition and
its impact on the person's ability to take care of himself or herself,
to attend school or to work, or whether the condition requires medical
treatment. USCIS may also use other evidence of medical conditions in
the alien's file.\592\
---------------------------------------------------------------------------
\586\ See INA section 212(a)(4), 8 U.S.C. 1182.
\587\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51181-84 (proposed Oct. 10, 2018).
\588\ See, e.g., Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-
23 (Att'y Gen. 1964); see also Matter of A-, 19 I&N Dec. 867, 869
(Comm'r 1988) (citing Matter of Harutunian, 14 I&N Dec. 583 (Reg'l
Comm'r 1974); Matter of Vindman, 16 I&N Dec. 131 (Reg'l Comm'r
1977)).
\589\ See INA section 212(a)(1), 8 U.S.C. 1182(a)(1).
\590\ See INA section 212(a)(1), 8 U.S.C. 1182(a)(1).
\591\ A Class B condition is defined as a physical or mental
condition disease or disability serious in degree or permanent in
nature. See 42 CFR 34.2(b)(2). The Technical Instructions for the
Medical Examination of Aliens directs physicians to provide
information about Class B conditions in the medical forms submitted
as part of the immigration benefits application. See Ctrs. for
Disease Control & Prevention, Required Evaluations--Other Physical
or Mental Abnormality, Disease, or Disability, Technical
Instructions For Medical Examination Of Aliens, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/technical-instructions/panel-physicians/other-physical-mental.html (last
updated Nov. 23, 2016) (last visited July 26, 2019); Ctrs. for
Disease Control & Prevention, Required Evaluation Components Other
Physical or Mental Abnormality, Disease or Disability, Technical
Instructions for the Medical Examination of Aliens in the United
States, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions/civil-surgeons/required-evaluation-components/other-disease-disability.html (last updated
Aug. 3, 2010) (last visited July 26, 2019). The HHS regulations
require physicians conducting medical examinations for an alien to
comply with the CDC's Technical Instructions for Medical
Examinations of Aliens. 42 CFR 34.3(i).
\592\ See 8 CFR 212.22(b)(2)(ii).
---------------------------------------------------------------------------
2. Health and Disability Discrimination
Comment: A commenter said the inclusion of ``interfere[nce] with
the alien's ability to provide and care for him- or herself'' at 8 CFR
212.22(b)(2)(i) in the NPRM also raises concerns under Olmstead v.
L.C., 527 U.S. 581 (1999), which recognized that the Americans with
Disabilities Act (ADA) mandate provides people with disabilities a life
in the most integrated setting appropriate to their needs. Relatedly, a
commenter stated that the proposed rule codifies discriminatory
standards for evaluating a noncitizen's health and may be in violation
of the ADA. The commenter also indicated that individuals with
disabilities who would have been institutionalized before Olmstead live
at home with their families, go to school, and hold jobs even though
they cannot solely care for themselves. Therefore, the commenter
indicated that the ``ability to care for oneself'' factor excludes many
people who are not public charges and is likely to generate the kind of
discrimination that Olmstead seeks to prevent.
Response: DHS disagrees with the commenter's assertion that the
rule, as proposed, would generate the kind of discrimination that
Olmstead sought to prevent. In Olmstead, the Court held that, in
accordance with Title II of the ADA, and under the implementing
regulations, states are required to provide community-based treatment
for persons with mental disabilities when the State's treatment
professionals determine that such placement is appropriate, the
affected persons do not oppose such treatment, and the placement can be
reasonably accommodated, taking into account the resources available to
the State and the needs of others with mental disabilities.\593\ At
issue was whether the state interpreted the reasonable accommodation
provision properly or incorrectly continued to institutionalize the
plaintiff because community placement would have been costly.\594\
---------------------------------------------------------------------------
\593\ Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607
(1999).
\594\ See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598
(1999).
---------------------------------------------------------------------------
Title II of the ADA does not govern DHS's actions in this context.
In addition, unlike in the ADA provision and the regulatory provision
discussed in Olmstead, Congress did not single out disability in
section 212(a)(4) of the Act. As explained in the NPRM,\595\ DHS has
carefully considered the interaction between various federal laws and
regulations with respect to discrimination and determined that
considering, as part of the health factor, an applicant's disability
diagnosis, in the context of the alien's individual circumstances and
how it affects his or her ability to work, attend school, or otherwise
care for himself or herself, is not inconsistent with these laws. The
alien's disability is treated just like any other medical condition
that affects an alien's likelihood, in the totality of the
circumstances, of becoming a public charge--it is neither singled out
nor treated differently and, within the totality of the circumstances,
is also not the sole basis for an inadmissibility finding.\596\
Similarly, DHS does not single out or treat differently any one health-
related or medical condition over another but has continuously
emphasized that all factors will have to be considered in the totality
of the alien's circumstances and that no one factor is determinative.
---------------------------------------------------------------------------
\595\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
\596\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Several commenters expressed concern that the proposed
changes would be discriminatory against or penalize immigrants based on
their health status, particularly those with chronic health conditions
and disabilities and the elderly. One commenter noted that ``[w]hile it
is illegal to discriminate against someone on the basis of disability,
the proposed rule encourages this form of discrimination, and furthers
the idea that some people are more worthy than others.'' A commenter
expressed that individuals with the misfortune of suffering serious
health issues or living with a disability will be at risk of a high
rate of application denials under this proposed rule. One commenter
stated this rule would discriminate against individuals with chronic
health conditions such as heart disease, which tend to
disproportionally impact communities of color. One commenter noted that
the very definition of disability, a condition that `` `interferes'
with a person's ability to do such things as go to school or work,''
means that ``virtually every person with a health condition affecting
her or his life could be deemed a public charge, no matter how well the
person has coped with the condition.'' A couple of commenters warned
that the discrimination against individuals with disabilities would
have the unintended consequence of splitting up families, even in an
asylum seeking application, or penalizing family members providing
support for individuals with disabilities.
Several commenters stated that the rule penalizes and discriminates
against individuals with serious medical conditions, such as cancer,
cystic fibrosis, multiple sclerosis, heart, lung disease. Commenters
also stated that, under this proposed policy, an individual cancer
survivor would be penalized, regardless of the individual's type of
cancer, period of survivorship, or long-term health outcome, which is
discriminatory. An individual commenter said the classification of
arthritis and heart disease as serious health conditions seems overly
exaggerated and extreme, since almost 50 percent of individuals over 65
have doctor reported arthritis and healthy lifestyle can help reduce
the negative consequences of heart disease.
Multiple commenters said the proposal would equate any person with
a serious health condition as effectively having a ``pre-existing
condition'' that disqualifies them for immigration, asserting that this
would have a profound impact on racial and ethnic minorities who,
because of many social determinants of health, disproportionately
experience a number of chronic conditions (with many citing studies as
support). One commenter pointed to studies indicating that social
determinants of health are one of the main inequalities between whites
and persons of color.
Numerous commenters expressed general concern about the rule's
negative effects on aliens with disabilities and their families. Many
commenters also expressed concern over the negative assessments that
individuals with intellectual and developmental disabilities,
psychiatric disabilities, or physical disabilities would receive under
the ``health'' factor in public charge determination. The commenters
indicated that the rule
[[Page 41409]]
discriminates against immigrants with disabilities because a range of
medical conditions that constitute disabilities, as well as the
existence of a disability, would be unduly weighted in the
determination of whether an immigrant is likely to become a public
charge. Multiple commenters remarked that individuals with disabilities
often lack private health insurance and are currently using or recently
used Medicaid, which are two heavily weighted negative factors. Other
commenters expressed concern that the rule's health standard is
overbroad, specifically in its inclusion of individuals with chronic
health conditions, like heart disease, cancer, trauma, mental
disorders, and pulmonary conditions, and potentially individuals who
may need Individualized Education Plans to study or reasonable
accommodations to work. Some commenters stated that the rule would
perpetuate the false notion that a medical diagnosis is solely
determinative of an individual's current abilities and future
capabilities.
Response: DHS neither proposed to exclude from the United States
individuals who have specific health conditions, nor sought to
disproportionally impact communities of color or people with
disabilities. DHS is required by statute to consider in the totality of
the circumstances whether any health condition an alien may have would
make the alien likely to become a public charge. This determination
takes into account any health condition in the context of the alien's
ability to support himself or herself and like all of the mandatory
factors, is highly fact-specific; i.e., dependent on the alien's
precise circumstances. For example, an alien may have a health
condition that does not impact the alien's ability to work or secure
employment or constitute a drain on the alien's financial resources,
and therefore such health condition would not make the alien likely to
become a public charge. Similarly, an alien may have a health condition
that if unmanaged would affect the alien's ability to work but if
successfully managed would not impact the alien's ability to work or
find employment or constitute a drain on the alien's financial
resources. In those cases, USCIS would look at whether the alien has or
is likely to obtain private health insurance or any other means to pay
for medical treatment. Finally, even if an alien has a health condition
that precludes employment, if the alien has the financial means to pay
for medical treatment and is able to be self-sufficient without
working, then the alien may not be likely to become a public charge.
Comment: A commenter stated the rule should require immigration
officials to take the letter and spirit of federal anti-discrimination
laws into account when determining public charge. Multiple commenters
stated that the rule ``disfavor[s] people with disabilities in the
public charge analysis,'' and will deem, inappropriately, people with
disabilities, who contribute to the economy, public charges.
Several commenters stated that the rule is contrary to decades of
bipartisan congressional lawmaking regarding disability inclusion,
including the ADA, Section 1551 of the ACA, Fair Housing Act, and the
Rehabilitation Act of 1973 (Rehab Act). A few commenters, in
particular, warned that the rule would echo the types of bias and
archaic attitudes about disability that the Rehab Act was meant to
overcome. One commenter stated that, while the proposed changes to the
totality of circumstances would especially affect people with
disabilities, excluding them from the United States by claiming they
are more likely to need government assistance, the Rehab Act makes it
unlawful to discriminate against anyone on the basis of disability,
whether or not they are a citizen. Some commenters stated that the
proposed rule's broad reading of the statutory health and resources
factors for public charge determinations are inconsistent with Section
504's prohibition on disability-based discrimination.
One commenter stated that the rule is inconsistent with the intent
of the 1990 amendments to the INA, which ensured that individuals were
not deemed inadmissible based on their disability status by deleting
the prior grounds of exclusion for, among others, paupers and those
with a physical disability. The same commenter stated that the rule is
also contradictory to Section 504's bar on disability-based
discrimination in DHS's programs and activities.
A couple of commenters stated that the rule would violate the
Developmental Disabilities Assistance and Bill of Rights Act. One
commenter noted that ``that further clarification is needed explaining
precisely how DHS will consider certain factors like a disability ``to
the extent that such disability . . . would entail consideration of the
potential effects on the alien's ability to work, attend school or
otherwise support himself or herself.'' Other commenters stated that
the rule needs to make accommodations for individuals with disabilities
and that the proposed rule ``reflects the types of bias and ``archaic
attitudes'' about disabilities that the Rehab Act was meant to
overcome.'' Other commenters stated that the proposed rule
discriminates against individuals with disabilities. An individual
commenter stated that, while DHS states that the impact of using health
as a factor in determining if they will become a public charge would
not violate IDEA or the ADA, it is hard to see how DHS actually thinks
that will happen given that a disability is concretely being deemed a
negative factor which needs to be ``rectified'' by ability to work.
This and other commenters said DHS's interpretation seems to violate 6
CFR 15.30(b)(1)(i) by denying a benefit on the basis of disability.
Response: DHS disagrees with the comments stating that the rule
discriminates against individuals with disabilities or those with
specific medical conditions. As noted in the NPRM, in enacting section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), Congress required DHS to
consider, as part of the public charge inadmissibility determination,
an alien's health. Although Congress has, over time, significantly
reduced the prohibitions on immigration for persons with mental and
physical disabilities and also amended PRWORA to restore the ability of
certain aliens with disabilities to receive certain public assistance,
such as SSI,\597\ Congress has never correspondingly prohibited the
application of the public charge inadmissibility ground to aliens with
disabilities who receive, or are likely to receive, disability benefits
for which they are eligible.\598\
---------------------------------------------------------------------------
\597\ See generally Mark C. Weber, Opening the Golden Door:
Disability and the Law of Immigration, by 8 Journal of Gender, Race,
and Justice at pp. 4-5, 8 (Spring 2004) (discussing historical
changes in 1986 and 1990 immigration laws that removed various
prohibitions on aliens with mental and physical disabilities, unless
they represented a threat to themselves or others; describing
restoration of SSI disability benefits to aliens who had been
receiving them before Aug. 22, 1996). See also John F. Stanton, The
Immigration Laws from a Disability Perspective: Where We Were, Where
We Are, Where We Should Be, 10 Geo. Immigr. L. J. 441 (Spring, 1996)
(pre-PRWORA analysis).
\598\ Congress did permit a waiver of INA section 212(a)(4), 8
U.S.C. 1182(a)(4), for aliens seeking lawful permanent resident
status under the legalization provision of the Immigration Reform
and Control Act of 1986 (IRCA) if they met the age, blindness, or
disability standards for SSI. See INA section 245A(d)(2)(B)(ii)(IV),
8 U.S.C. 1255a(d)(2)(B)(ii)(IV).
---------------------------------------------------------------------------
As noted in the NPRM, this rule is not inconsistent with federal
statutes and regulations with respect to discrimination against aliens
with disabilities, as an alien's disability is
[[Page 41410]]
treated just as any other medical condition that affects an alien's
likelihood, in the totality of the circumstances, of becoming a public
charge. A diagnosis of a disability is related to an alien's health,
and therefore is properly considered as part of the public charge
analysis.
An alien's health is not outcome determinative--that is, an alien's
health cannot be the sole basis for a finding that an alien is
inadmissible as likely to become a public charge. As such, a diagnosis
that an alien has a disability, alone, will never result in a public
charge inadmissibility finding. As with any other medical condition
identified in the alien's application and supporting documentation, the
alien's disability will be considered in the totality of the
circumstances framework. An alien with a disability will neither be
treated differently nor singled out, and the disability itself would
not be the sole basis for an inadmissibility finding. In other words,
as with any other mandated factor and consideration in the public
charge inadmissibility determination, DHS would look at each of the
mandatory factors, and the affidavit of support, if required, as well
as all other relevant factors in the totality of the circumstances.
Therefore, consideration of a disability in the context of the totality
of circumstances does not violate the Rehabilitation Act's prohibition
on denying a benefit ``solely by reason of [an applicant's]
disability.'' \599\
---------------------------------------------------------------------------
\599\ 29 U.S.C. 794(a).
---------------------------------------------------------------------------
Likewise, DHS does not believe the rule is in violation of or
inconsistent with the other cited authorities. For example, the rule is
not inconsistent with the regulation that prohibits DHS from denying
benefits to a ``qualified individual with a disability . . . by reason
of his or her disability.'' \600\ Public charge determinations will be
made based on the totality of circumstances and not on the basis of a
disability, and the regulatory definition of a ``qualified individual
with a disability'' requires a person to ``meet the essential
eligibility requirements.'' \601\ The essential requirements in the
context of admission and adjustment of status require that an applicant
not be likely at any time in the future to become a public charge.
---------------------------------------------------------------------------
\600\ 6 CFR 15.30(a). See also 6 CFR 15.30(b)(1)(i) (prohibiting
denying a benefit ``on the basis of a disability'').
\601\ 6 CFR 15.3(e)(2).
---------------------------------------------------------------------------
DHS does not believe the rule is inconsistent with the 1990
amendments to the INA and its revision of the prior grounds of
exclusion with the grounds of inadmissibility. The rule is not
recreating the prior grounds of excludability that, prior to 1990,
included persons certified to have a ``physical defect, disease, or
disability'' who is required to work.\602\ Rather, the rule is
providing guidance to the public charge inadmissibility ground as it
has existed since the 1990 amendments to the INA.\603\
---------------------------------------------------------------------------
\602\ See section 212(a)(7) of the Act, 8 U.S.C. 1182(a)(7)
(1988).
\603\ See Immigration Act of 1990, Public Law 101-649, section
601, 110 Stat. 4978, 5072 (Nov. 29, 1990).
---------------------------------------------------------------------------
As to the comment that the public charge inadmissibility rule
violates the Developmental Disabilities Assistance and Bill of Rights
Act of 2000 (DD Act) (42 U.S.C. 15001 et seq.),\604\ the statute was
enacted to ensure that individuals with developmental disabilities and
their families ``participate in the design of and have access to needed
community services, individualized supports, and other forms of
assistance that promote self-determination, independence, productivity,
and integration and inclusion in all facets of community life, through
culturally competent programs. . . '' \605\ The programs within the DD
Act are funded through congressional appropriations for the
Administration for Community Living, which are not related to Medicaid
or TANF appropriations or other federal benefit programs covered by the
proposed public charge rule. The State Councils on Developmental
Disabilities, Protection and Advocacy Systems, University Centers of
Excellence in Developmental Disabilities, and Projects of National
Significance participate in capacity building, systems change,
advocacy, protect legal and human rights of people with developmental
disabilities, conduct research, provide inter-disciplinary training for
students and fellows, leadership training, direct support services
training, community based training, and clinical or other training to
strengthen the workforce that serves individuals with developmental
disabilities.
---------------------------------------------------------------------------
\604\ Public Law 106-402, 114 Stat. 1677 (Oct. 30, 2000).
\605\ Id.
---------------------------------------------------------------------------
The DD Act is intended for all individuals with developmental
disabilities and their families regardless of immigration status.\606\
The DD Act states that: ``there is a need to ensure that services,
supports, and other assistance are provided in a culturally competent
manner that ensures that individuals from racial and ethnic minority
backgrounds are fully included in all activities provided under this
title.''
---------------------------------------------------------------------------
\606\ See INA section 101(b) and 101(c).
---------------------------------------------------------------------------
Based on the language in the DD Act, DHS believes that services
under the DD Act are not public benefits as defined in the rule,
because all individuals with developmental disabilities, without regard
to income, are eligible for services that the DD Act allows.
DHS further does not believe that the rule violates the DD Act.
While the policy of the DD Act is to offer protections and advocacy to
individuals with developmental disabilities, and while the services
provided pursuant to the DD Act would not make an individual a public
charge, DHS does not believe the DD Act would govern DHS's public
charge determination regarding other benefits. The DD Act is silent
regarding the issue of whether an individual can be considered a public
charge based upon receipt of services that do not fall under the DD
Act. Other HHS disability and aging statutes and programs such as the
Traumatic Brain Injury Act, Limb Loss Act, Older Americans Act, and the
Christopher and Dana Reeves Paralysis Act do not receive Medicaid or
Medicare funds and do not have restrictions on immigration or
citizenship status.
Comment: Some commenters suggested that the USCIS should estimate
the extent to which any regulatory changes will impact the number of
otherwise eligible applicants with disabilities when compared to the
current and historical baselines, and then reconsider other less
harmful alternatives.
Response: As indicated in the NPRM, DHS would only consider
disability as part of the health factor to the extent that such
disability, in the context of the alien's individual circumstances,
impacts the likelihood of the alien becoming a public charge.\607\
Although a study of the correlations between different disabilities and
the array of positive and negative factors were not included in the
text of the rule, DHS understands that those correlations may exist and
may also be affected by the type and severity of the disability.
However, DHS would not distinguish between Medicaid recipients who are
disabled from those who are not disabled. Instead, DHS would look to
the information provided in the medical certification as to whether it
would affect the person's ability to work or attend school. DHS
provided estimates of benefit use by an array of characteristics in the
NPRM, and does
[[Page 41411]]
not believe additional tables for disability are needed in the
justification for the rule.
---------------------------------------------------------------------------
\607\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51183 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Numerous commenters cited to the impact on individuals
with disabilities and children with disabilities. Many commenters cited
the statistic that roughly 2.6 million children in immigrant families
have a disability or special healthcare need. Numerous commenters
asserted that children with special health and developmental needs
require medical, behavioral, and educational services above and beyond
typical children, which makes immigrant families vulnerable to economic
hardship. Many commenters cited the fact that children with
disabilities are more likely to live in low-income households
experiencing food insecurity and housing instability. Multiple
commenters concluded that access to Medicaid is uniquely critical, as
children with disabilities rely on the public health coverage for
occupational, physical, or speech therapies and prescription drugs. One
commenter stated that, although there is a Medicaid exception for
foreign-born children adopted by U.S. citizens, there is not one for
special needs children that are foreign-born with immigrant parents.
One commenter stated that individuals with disabilities will be
uniquely affected by the rule because of the inclusion of Medicaid-
funded services, including services in the home and in communities, and
will be disproportionately impacted by the inclusion of housing and
food assistance programs.
Response: DHS appreciates the numerous programs that provide
services to individuals with disabilities. As discussed in the
NPRM,\608\ as part of the immigration medical examination, when
identifying a Class B medical condition, civil surgeons and panel
physicians are required to report on certain disabilities, including
the nature and severity of the disability, its impact on the alien's
ability to work, attend school, or otherwise support himself or
herself, and whether the disability will require hospitalization or
institutionalization. DHS would only consider disability as part of the
health factor to the extent that such disability, in the context of the
alien's individual circumstances, impacts the likelihood of the alien
becoming a public charge; i.e., a consideration of the potential
effects on the alien's ability to work, attend school, or otherwise
support himself or herself.
---------------------------------------------------------------------------
\608\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51182-84 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
As discussed in the NPRM,\609\ DHS has determined that considering,
as part of the health factor, an applicant's disability diagnosis that,
in the context of the alien's individual circumstances, affects his or
her ability to work, attend school, or otherwise care for himself or
herself, is not inconsistent with federal statutes and regulations with
respect to discrimination, as the alien's disability is treated just as
any other medical condition that affects an alien's likelihood, in the
totality of the circumstances, of becoming a public charge. Under the
totality of the circumstances framework, an alien with a disability is
not being treated differently, or singled out, and the disability
itself would not be the sole basis for an inadmissibility finding. DHS
would look at each of the mandatory factors, and the affidavit of
support, if required, as well as all other factors in the totality of
the circumstances.
---------------------------------------------------------------------------
\609\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51182-84 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Therefore, an applicant's disability could not be the sole basis
for a public charge inadmissibility finding. In addition, DHS
recognizes that the ADA, the Rehabilitation Act, IDEA, and other laws
provide important protections for individuals with disabilities,
including with respect to employment opportunities. Furthermore, as it
relates to a determination of inadmissibility under section 212(a)(4)
of the Act, 8 U.S.C. 1182(a)(4), when the alien is applying for the
immigration benefit, DHS does not stand in the position of an employer
or school where additional provisions of the ADA and Rehab Act or IDEA
would apply.
Comment: Numerous commenters expressed concern about the impact
this rule would have on individuals living with HIV/AIDS. A commenter
said most applicants with HIV will automatically have two heavily
weighted negative factors: Having a health condition without private
insurance to cover the cost of treatment and receiving a public benefit
in the form of Medicaid. Some commenters expressed concern that,
because treatment is prohibitively expensive unless subsidized by
government programs, these individuals would be subjected to additional
constraints regarding the enrollment of health insurance (i.e., they
would be forced into buying non-subsidized medical coverage, which does
not typically cover anti-retroviral therapy, or buying additional
coverage due to lack of adequate coverage from their government-
subsidized plan). Multiple commenters said immigrants with HIV will
potentially forego subsidized healthcare treatment due to this rule,
resulting in substantial negative health outcomes, not only to affected
individuals but also the community at large. Multiple commenters stated
that reports are already emerging of individuals who are considering
waiting to begin life-saving treatment in the belief that this will
ensure their eligibility.
Several commenters stated that the rule sends the signal that
individuals with HIV/AIDS and other chronic health conditions are
``undesirable.'' A couple of commenters said the proposal will create a
``backdoor means'' of excluding those with HIV from the United States
by classifying HIV/AIDS as a Class B medical condition that can be used
as a negative factor in determining public charge. Some commenters said
the inclusion of HIV as a negatively weighted factor undoes
congressional intent in removing HIV as a ground of inadmissibility and
draws disturbing parallels to the 1987 HIV travel and immigration ban
overturned in 2010.\610\ A commenter said the rule could operate as a
de facto ban on admission of HIV positive immigrants because it would
be difficult for an HIV positive noncitizen to withstand the revised
public charge analysis. This commenter also said the de facto ban on
HIV positive noncitizens runs against the stated goal of the Trump
Administration to lead a global effort against HIV/AIDS and undermines
U.S. leadership in this area.
---------------------------------------------------------------------------
\610\ 74 FR 56547 (Nov. 2, 2009) (removing HIV from the list of
communicable diseases of public health significance at 42 CFR 34.2).
---------------------------------------------------------------------------
Many commenters said the rule ignores the reality that suffering
from a chronic illness such as HIV/AIDS is not an accurate indicator of
future self-sufficiency and full-time employment capabilities. One
commenter stated that a large portion of people living with HIV/AIDS
have incomes below the poverty line, which is not due to their
inability to work due to health conditions, but rather due to the
continued stigma of HIV/AIDS on people's ability to get work.
Another commenter stated that the disproportionate negative impact
on people living with HIV/AIDS will also cause a disproportionate
negative impact on LGBT immigrants who apply for admission to the
United States because they account for a large portion of the HIV
diagnoses.
For similar reasons expressed above relating to HIV, some
commenters expressed concerns about the rule's impact on individuals
with Hepatitis B
[[Page 41412]]
and Hepatitis C. One commenter said the proposed rule would undermine
its approach, as a State agency, to combating HIV/AIDS and Hepatitis C.
Response: As indicated in the NPRM,\611\ DHS will consider any
medical condition diagnosed in the totality of the circumstances. The
fact that an alien has been diagnosed with a medical condition would
not serve as the sole factor considered when determining whether an
alien is likely at any time in the future to become a public
charge.\612\ The consideration entails whether, in light of the alien's
health, the alien will be able to care for himself or herself, to
attend school, or to work.\613\ Relatedly, as part of the assets,
resources and financial status factor, DHS would consider whether the
alien either has sufficient household assets and resources, including
but not limited to private health insurance, to cover any reasonably
foreseeable medical costs.\614\ The rule does not focus on any specific
medical condition and people living with certain conditions may still
be able to care for themselves, attend school, or go to work,\615\
which the medical professional would be able to affirm in the medical
certification.
---------------------------------------------------------------------------
\611\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51183 (proposed Oct. 10, 2018).
\612\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51183 (proposed Oct. 10, 2018).
\613\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51183 (proposed Oct. 10, 2018).
\614\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51183 (proposed Oct. 10, 2018).
\615\ See HIV.gov, Aging with HIV available at https://www.hiv.gov/hiv-basics/living-well-with-hiv/taking-care-of-yourself/aging-with-hiv (last visited January 17, 2019); and HIV.gov, Working
with HIV, available at https://www.hiv.gov/hiv-basics/living-well-with-hiv/taking-care-of-yourself/employment-and-health (last visited
January 17, 2019).
---------------------------------------------------------------------------
K. Family Status
Comment: Several commenters requested family size be removed from
consideration as a public charge. One commenter indicated that the
proposal would be harmful to families, including all members of the
nuclear family, and may prohibit nuclear families from immigrating.
A few commenters voiced concerns about the statement that the
applicant's household size would be counted in both the family status
factor and the assets, resources, and financial status factor, claiming
the rule has the potential to double-count negative factors. Another
commenter stated that family status should not count as a negative
factor if an immigrant has sufficient income and resources.
Conversely, a commenter expressed support for considering the size
of an alien's household as the primary element of the family status
factor, adding that this factor appropriately involves the assessment
of whether an alien has a household to support, or is being supported
by another household, when calculating the alien's household size. The
commenter also stated that the NPRM correctly notes research showing
that receipt of non-cash benefits increases as family size increases.
Response: DHS is required by statute to consider an applicant's
family status when determining whether the alien is likely at any time
in the future to become a public charge.\616\ As discussed in the NPRM,
DHS will consider whether the alien has a household to support or
whether the alien is being supported by another household and whether
the alien's household size makes the alien more or less likely to
become a public charge.\617\ The receipt of non-cash benefits generally
increases as family size increases \618\ and is relevant to assessing
self-sufficiency. Therefore, DHS will retain the household size as a
consideration in the public charge inadmissibility determination.
---------------------------------------------------------------------------
\616\ See 8 CFR 212.2; see also INA section
212(a)(4)(B)(i)(III), 8 U.S.C. 1182(a)(4)(B)(i)(III).
\617\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
\618\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184-85 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter stated that DHS does not provide sufficient
data or explanation for stakeholders to meaningfully comment on the way
it will evaluate family status in a public charge determination, so the
requirement to provide sufficient notice under the APA has not been
met. A few commenters stated that the rule fails to provide any
evidence that larger household sizes results in lack of self-
sufficiency, pointing to research showing that household size, by
itself, is not an indicator of future public benefit use or self-
sufficiency. Another commenter said an extended family structure offers
many advantages, including stability, coherence, and physical and
psychological support, particularly in times of need and should not be
counted as a negative factor.
Response: DHS disagrees that the NPRM does not provide data or an
explanation about family status. The NPRM states that ``Table 16 and
Table 17 show that among both U.S. citizens and noncitizens, the
receipt of non-cash benefits generally increased as family size
increased.'' \619\ Based on that data, DHS would consider the number of
people in a household as defined in the proposed 8 CFR 212.21(d). As
with the other factors, household size, on its own, would never dictate
the outcome of a public charge inadmissibility determination. Household
size is also not an inherently negative factor under DHS's regulations,
as certain commenters indicate. If an alien demonstrates that the
alien's household structure and members offer advantages that decrease
the alien's likelihood of receiving one or more public benefits at any
time in the future above the 12 aggregate months in a 36-month period
threshold, then DHS will consider household size a positive factor.
---------------------------------------------------------------------------
\619\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
The rule also permits consideration of the alien's family status
within the context of assessing the alien's household income, assets,
and resources instead of simply the alien's own income, assets, and
resources. Therefore, an alien may present evidence of how the alien's
household provides advantages relevant to consideration under income,
assets, and resources and makes the alien less likely at any time to
become a public charge. For instance, an alien who is part of a large
family may have more household assets and resources available to use or
may have his or her own income or access to additional assets and
resources that would assist in supporting the household. DHS would take
these family status-related considerations into account when examining
the totality of the alien's circumstances.
Comment: A commenter expressed concern for how family status could
impact families that have a member with chronic conditions because
family members would be spending a significantly higher proportion of
their income and resources on the family member with that condition,
which under the proposed rule would be weighted as a negative factor
against those families.
Response: DHS recognizes that chronic conditions may impact a
person's income availability. However, an applicant's family status is
a factor that must be considered when determining whether the alien is
likely to become a public charge in the future.\620\ As explained in
the NPRM, DHS's proposed totality of the circumstances standard would
involve weighing all the positive and negative considerations related
to an alien's age; health; family status; assets, resources, and
financial status; education and skills; required affidavit of support;
and any other factor or circumstance that may warrant consideration in
the public charge inadmissibility determination.
[[Page 41413]]
However, DHS would not consider the medical conditions of a member of
the alien's household. DHS would only consider the household size in
relationship to the FPG level for the assets, resources and financial
status factor.
---------------------------------------------------------------------------
\620\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Regardless of household size, an alien may present other factors
(e.g., assets, resources, financial status, education, and skills) that
weigh for or against a finding that the alien is likely to become a
public charge. For instance, an alien who is part of a large household
may have his or her own income or access to additional assets and
resources that would assist in supporting the household which would
also be considered in the totality of the circumstances.
Comment: One commenter said this rule would punish applicants who
have larger families, thus creating another disincentive to have
children. Another commenter stated the rule would discriminate against
immigrants from countries whose cultural or religious traditions
encourage larger and multi-generational families, disregarding whether
such interdependence was required or recognized by law. Similarly, a
commenter suggested that Asian Americans would be most affected by this
rule because they are the most likely to live in multigenerational
homes. Another commenter said this aspect of the proposed rule would
have the greatest impact on applicants from Mexico and Central America
(71 percent), Africa (69 percent), and Asia (52 percent)--regions that
typically account for substantial numbers of Muslim immigrants. The
commenter stated this aspect would have substantially lower impacts on
European or Canadian applicants. One commenter stated that DHS has not
adequately analyzed the adverse impact this proposal would have on
families seeking lawful permanent residence for a spouse or a child.
One commenter asked if DHS would consider it more beneficial to be
single and unmarried than to be in a committed relationship with
children and/or parents living with the family.
Response: DHS appreciates the comments but disagrees that the rule
punishes people with larger families. As discussed in the NPRM, DHS
will consider whether the alien has a household to support, or whether
the alien is being supported by another household and whether the
alien's household size makes the alien more or less likely to become a
public charge.\621\ As previously indicated Congress established that
family status would be a factor in the public charge inadmissibility
determination.\622\ Having a larger family does not necessarily lead to
a conclusion that the person is likely to be a public charge. The
household may have multiple sources of income that increase the income,
assets, and resources of the household allowing the person and
household to be self-sufficient. Alternatively, a single person may or
may not have additional income, assets, or resources to be self-
sufficient. While the receipt of non-cash benefits generally increases
as family size increases as discussed in the NPRM,\623\ DHS will never
determine that a person is likely to become a public charge based on
family size alone. DHS recognizes that family status can also have
positive benefits and would take all relevant factors into account when
assessing the totality of the circumstances regarding the alien's
likelihood to become a public charge.
---------------------------------------------------------------------------
\621\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
\622\ See INA section 212(a)(4)(B)(i)(III), 8 U.S.C.
1182(a)(4)(B)(i)(III).
\623\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184-85 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
L. Assets, Resources, and Financial Status
1. Income Standard
Comment: Multiple commenters expressed general concern that the
income assessment would penalize low-income immigrants. One commenter
said that the income threshold is arbitrary. Using hypotheticals to
illustrate that someone seeking to adjust status might still be found
to be likely to become a public charge despite minimal use of benefits
and adequate family support, a commenter stated that having a low
income and multiple negative or heavily weighted negative factors had
no clear correlation to self-sufficiency, and that the rule slanted
toward denials. One commenter stated that the assets, resources, and
financial status factors are not realistic given the realities of low-
wage work. Another commenter said that the proposed assets, resources,
and financial status factor ignores the cultural and economic value of
immigrants. Several commenters stated that having an income threshold
is in conflict with the American ideal of upward mobility. Other
commenters stated that the proposed income threshold of 125 percent of
the FPG lacked rational basis in that the affidavit of support standard
is unconnected with the likelihood of an applicant becoming a public
charge and relates to whether the sponsor can support someone else
rather than themselves. An individual commenter said the proposed rule
would affect spouses of individuals seeking a ``green card'' because
the proposed rule requires the couple's income to be at $41,000.
Therefore, the commenter said that this rule would result in making
decisions on whom to marry based on a potential spouse's income, which
could increase fraudulent marriages.
In contrast, one commenter voiced general support for the proposed
threshold of 125 percent of the FPG, and another commenter suggested
that the rule include a provision that requires applicants to show that
they make an income high enough that neither they nor their dependents
qualify for public benefits.
Response: Even though this rule considers an applicant's income in
the totality of the circumstances, which may negatively impact low-
income aliens, DHS disagrees with comments that this rule is aimed at
denying the admission or adjustment of status of low income aliens.
Instead, this rule is aimed at better ensuring the self-sufficiency of
aliens seeking to reside in the United States.
As noted elsewhere in this final rule, an alien's income is one of
many pieces of evidence that DHS will consider in the totality of the
circumstances. As provided in the NPRM, DHS will generally consider
whether the alien has a gross household income of at least 125 percent
of the FPG based on the alien's household size. If the alien's
household income is less than 125 percent of the FPG, DHS will
generally consider whether the alien has assets and resources is at
least five times the difference between the household income and 125
percent of the FPG based on the household size.\624\ DHS also disagrees
that the standard is unconnected to becoming a public charge or should
be raised to other levels. DHS is adopting the standard established by
Congress with the affidavit of support, which has long served as a
touchpoint for public charge inadmissibility determinations.\625\ An
alien subject to section 213A of the Act,
[[Page 41414]]
8 U.S.C. 1183a, who does not have a sponsor capable of supporting
himself or herself, the household, and the alien would currently be
found inadmissible based on public charge grounds.
---------------------------------------------------------------------------
\624\ This is consistent with the provisions for assets under
the affidavit of support in 8 CFR 213a.2(c)(2)(iii)(B)(3). As
explained below, in certain cases, the standard applied may be less
than five times under 8 CFR 213a.2(c)(2)(iii)(B)(1) and (2). To be
fully consistent with the affidavit of support provisions, DHS also
applies the other standards for purposes of the public charge
determination and amended the provision accordingly.
\625\ See INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E);
see Inadmissibility on Public Charge Grounds, 83 FR 51114, 51187
(proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS also notes that to the extent that aliens will make marriage
decisions based how much income a potential spouse earns in order to
avoid any negative consequences that might stem from having household
income under 125 percent of the FPG, aliens who enter into marriage for
the sole purpose of circumventing the immigration laws have not entered
into a valid marriage for immigration purposes and would not be
eligible for adjustment of status.\626\
---------------------------------------------------------------------------
\626\ See Matter of Patel, 19 I&N Dec 774 (BIA 1988).
---------------------------------------------------------------------------
Comment: One commenter opposed DHS's proposal that an alien who
fails to demonstrate income greater than 125 percent of the FPG may
overcome the deficiency by providing evidence of assets totaling at
least five times the difference between the household income and 125
percent of the FPG for the household size. This commenter indicated
that DHS failed to provide any arguments or evidence as to why this
threshold is appropriate or relevant to the public charge
determination. A commenter suggested that if the rule must include a
ratio of assets to the difference between household income and 125
percent of the FPG, it should be a ratio of two times. The commenter
stated that this would enable the individual or household to have a
two-year period of financial security during which they may be able to
increase their income.
Response: DHS disagrees that it failed to outline the
appropriateness of the standard and that the standard is arbitrary and
capricious. DHS will also not incorporate the commenter's suggestion to
change the standard to a ratio of two times. DHS disagrees that two
times the FPG is more appropriate because the commenter's reasoning
relies on increasing income in the future and as discussed in the NPRM,
whether a person may be qualified for public benefits frequently
depends on where the person's household income falls with respect to
the FPG.\627\
---------------------------------------------------------------------------
\627\ The poverty guidelines are updated periodically in the
Federal Register by HHS. The U.S. Census Bureau definition of family
and family household can be found in U.S. Census Bureau, Current
Population Survey 2017 Annual Social and Economic Supplement (ASEC)
9-1 to 9-2, available at https://www2.census.gov/programs-surveys/cps/techdocs/cpsmar17.pdf (last visited July 26, 2019).
---------------------------------------------------------------------------
As explained in the NPRM,\628\ DHS will consider whether the
applicant has a gross household income \629\ of at least 125 percent of
the FPG for the household size, and alternatively, whether the
applicant has substantial assets as described in the rule and the FPG
for the household size, because it has long served as a touchpoint for
public charge inadmissibility determination and the enforceable
affidavit of support.\630\ The suggestion to reduce the standard to a
ratio of two times was also a comment in response to the Affidavit of
Support Rule promulgated in 2006 and was not incorporated because the
purpose of the requirement was ``to ensure that a sponsor whose income
is not sufficient will nevertheless be able to provide the needed
support until the sponsorship obligation ends.'' \631\ Similarly, the
significant assets provision in this rule allows an alien whose income
is below the applicable income threshold to demonstrate sufficient
assets to support himself or herself, thereby reducing the likelihood
of becoming a public charge.
---------------------------------------------------------------------------
\628\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51187 (proposed Oct. 10, 2018).
\629\ Gross income includes ``all income you receive in the form
of money, goods, property, and services that isn't exempt from tax.
It also includes income from sources outside the United States or
from the sale of your main home (even if you can exclude all or part
of it).'' See IRS Publication 17, Your Federal Income Tax, page 5
(2018), available at https://www.irs.gov/pub/irs-pdf/p17.pdf (last
visited July 26, 2019).
\630\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51187 (proposed Oct. 10, 2018); see also INA sections 213A(f)(1)(E)
and 213A(f)(6)(A)(ii), 8 U.S.C. 1183a(f)(1)(E) and 1183a(f)(1)(E)
and 8 CFR 213a.2.
\631\ See 71 FR 35731, 35739.
---------------------------------------------------------------------------
The five times the FPG was chosen for the Affidavit of Support
because ``[i]n most cases, an alien is not eligible for naturalization
until he or she has been a permanent resident alien for at least 5
years,'' \632\ to show that the sponsor has the assets to support the
beneficiary until they generally qualified for naturalization. In
addition to being similar to the support obligation, five times would
also be consistent with the reasoning behind the bond cancellation
authority under 8 CFR 103.6(c)(1) in 1984. As explained in the NPRM,
INS reasoned that if an alien is self-sustaining for a five-year
period, it would not be probable that the alien would become deportable
as a public charge after five years because an alien is deportable as a
public charge only if the reason for the becoming a public charge is
based on factors in existence prior to admission as an immigrant.\633\
---------------------------------------------------------------------------
\632\ See 71 FR 35731, 35739.
\633\ See 49 FR 24010, 24011.
---------------------------------------------------------------------------
After further consideration and consistent with the explanation in
the proposed rule, however, DHS has decided to adjust the amount to
match the affidavit of support provision in regards to income level
used and amended the provision to reflect that those aliens on active
duty, other than in training, in the U.S. Armed Forces have to
establish household income reflecting 100 percent of the most recent
FPG for the alien's household size.
Additionally, to be more consistent with the affidavit of support
regulations, DHS also decided to define significant assets for purposes
of the assets and resources factor in the public charge inadmissibility
determination, using a similar standard, as that outlined in 8 CFR
213a.2(c)(2)(iii)(B), but applying it to the public charge rule and the
alien's household. According to 8 CFR 213a.2(c)(2)(iii), if the sponsor
is unable to meet the 125 percent of the FPG (100 percent for those on
active duty, other than training, in the U.S. Armed Forces) income
requirement, he or she can use significant assets to make up the
difference between the sponsor's income and the required FPG standard
according to a particular formula similarly in 8 CFR
213a.2(c)(iii)(B)(1), (2), and (3), as applicable to the sponsor's
household.
In applying this provision for purposes of the public charge
determination, the rule provides that an alien may establish ownership
of significant assets, such as savings accounts, stocks, bonds,
certificates of deposit, real estate or other assets, in which the
combined cash value of all the assets (the total value of the assets
less any offsetting liabilities) exceeds:
(1) If the intending immigrant is the spouse or child of a United
States citizen (and the child has reached his or her 18th birthday),
three times the difference between the alien's household income and 125
percent of the FPG (100 percent for those on active duty, other than
training, in the U.S. Armed Forces) for the alien's household size;
(2) If the intending immigrant is an orphan who will be adopted in
the United States after the alien orphan acquires permanent residence
(or in whose case the parents will need to seek a formal recognition of
a foreign adoption under the law of the State of the intending
immigrant's proposed residence because at least one of the parents did
not see the child before or during the adoption), and who will, as a
result of the adoption or formal recognition of the foreign adoption,
acquire citizenship under section 320 of the Act, 8 U.S.C. 1431, the
difference between the alien's household income and 125 percent of the
FPG (100 percent for those on active duty, other than training, in the
U.S. Armed Forces) for the alien's household size; or
[[Page 41415]]
(3) In all other cases, five times the difference between the
alien's household income and 125 percent of the FPG (100 percent for
those on active duty, other than training, in the U.S. Armed Forces)
for the alien's household size.
Comment: Many commenters expressed general concern that the income
assessment would penalize low-income immigrants, low-wage workers,
members of ``marginalized groups,'' and families and farmworkers. A
commenter stated that counting wealth and income as indicators of a
person's future contribution amounts to a sea change in U.S.
immigration policy. Other commenters stated that the proposed income
thresholds are biased against low and middle-income immigrants while
unfairly favoring wealthy immigrants; disregard and devalue low wage-
workers and their contributions to society; and ignore the ability of
immigrants to raise their wages over time. A few commenters said the
125 percent income threshold is too high. Others provided data on
starting salaries and on some of the fastest growing occupations that
are in fields with low wages. A commenter stated that six of the 20
largest occupational fields in the country have median wages close to
or below the poverty threshold for a family of three. According to the
commenter, this means that lawfully present non-citizens who have jobs
in these sectors through an employment visa may not be able to renew
that visa. Another commenter indicated that immigrants increasingly are
needed to fill middle-skill level jobs, referring to those jobs that
require more than a high school diploma but less than a four-year
degree. Therefore, the commenter asserted, businesses that largely
employ individuals at low wages would suffer, as legally present non-
citizens could become too encumbered to continue their employment, and
those who have low wages would be penalized because they use benefits
to supplement their wages, which allows them to thrive.
One commenter indicated that the threshold for household income
would have a large impact on the eligibility for admission of intending
immigrants and make it very difficult for entry level workers and other
individuals to seek admission to the United States; this would harm the
U.S. economy, educational institutions and businesses, and sends a
message that only those with financial resources are welcome although
study after study has shown that immigrants are job creators and
provide a net benefit to the United States. Another commenter indicated
that U.S. employers will find it more difficult and less predictable to
extend the status of highly skilled workers on H-1B nonimmigrant
(skilled worker) visas or recruit students, unless the employer offers
a salary of more than the newly created 250 percent threshold, or risk
that the worker is not able to renew the work visa given the complex
and subjective considerations from USCIS adjudicators.
Additionally, some commenters stated that if the proposed income
tests are applied to U.S. citizens, many would fail the test and
therefore the tests should not be applied. Another commenter further
stated that if the proposed public charge test is applied to U.S. born
citizens, only five percent would meet the criteria, as compared to 29
percent under current guidance. Another commenter indicated that
currently, 21 percent of immigrants nationally fall below the 125
percent threshold and 17 percent of citizens do as well. The commenter
asserted that if the current public charge rule was applied to all
Kentuckians, just 8 percent would fall into the ``public charge''
category, but under the proposed rule 33 percent of all Kentuckians
would.
Some commenters provided data on the number of people in the United
States living below 125 percent of the FPL and facts about the affected
low-income population. Other commenters stated that the 125 percent
income threshold would be incredibly difficult for young adults working
in entry-level jobs to overcome. A commenter noted that the 125 percent
of FPG standard has been the income threshold to be met by sponsors who
are required to submit an affidavit of support, not by the immigrant
subject to the public charge inadmissibility determination. The
commenter questioned why, if a sponsor is expected to care for his or
her own needs and the person he or she is sponsoring based on an income
of 125 percent of the FPG, the same standard would apply individually
to the intending immigrant.
Several commenters indicated that those working for minimum wage
would not be able to meet the proposed threshold even if working full
time, and that the minimum wage has not kept pace with changes in the
cost of living in the United States. A commenter stated that basing
entry into this country and adjustment of status solely on the basis of
wealth is not only anathema to longstanding American values of upward
mobility, but it also destabilizes financial security of immigrant
families already in the United States, particularly in instances of
family-based green card petitions.
Some commenters warned that the proposed income threshold would be
nearly impossible for immigrants from very poor countries to achieve,
and would therefore disproportionately and negatively affect immigrants
from poorer regions of the world compared to immigrants from wealthier
regions, such as Europe and Canada. A commenter stated that the
proposed income thresholds are arbitrary and unreasonable and will be
compounded by income inequality and variations in cost of living in the
United States.
Some commenters stated that the rule will have a disproportionate
effect on low income workers, leading to shortages in industries in
which immigrants make up a substantial portion of the workforce.
Response: DHS understands that the rule changes the public charge
inadmissibility determination as set forth in the 1999 Interim Field
Guidance. However, Congress mandates that, as part of the public charge
inadmissibility assessment, officers consider the applicant's assets,
resources, and financial status, which, as explained in the NPRM,
includes consideration of whether the applicant's household income is
at or above 125 percent of the FPG income. DHS chose the 125 percent of
FPG threshold (100 percent for an alien on active duty, other than
training, in the U.S. Armed Forces) standard because Congress imposed
it as part of the affidavit of support, which has long been a
touchpoint for the public charge ground of inadmissibility.\634\
Therefore, DHS disagrees that the threshold is arbitrary.
---------------------------------------------------------------------------
\634\ Under INA section 213A, 8 U.S.C. 1183a.
---------------------------------------------------------------------------
DHS also disagrees that if a sponsor is expected to demonstrate an
income of 125 percent of the FPG, the alien should not be subject to
the same standard. As noted elsewhere in this rule, Congress did not
add the affidavit of support requirements as a substitute for a public
charge inadmissibility determination or to supplant the mandatory
factors set forth in section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
Instead, Congress added the affidavit of support as an additional
assurance that the alien will not become a public charge at any time in
the future. As Congress believed that 125 percent was an appropriate
minimum threshold in the affidavit of support context, DHS does not
believe the threshold should be lowered. Although Congress believed
that 125 percent of the FPG based on the sponsor's household income was
a reasonable minimum threshold in the affidavit of support context to
support the sponsored alien and the sponsor's household, it does not
necessarily
[[Page 41416]]
follow that Congress believed that half that amount (assuming the
sponsor used half the amount to support himself or herself), or any
amount lower than 125 percent of the FPG, would be sufficient to
demonstrate that the alien is not more likely than not to become a
public charge. Rather, Congress' retention of the public charge
inadmissibility determination indicates that Congress believed it was
necessary to consider the alien's assets, resources, financial status
(including, of course, income), and other relevant factors in addition
to requiring the affidavit of support. Further, household income below
125 percent of the FPG would be reviewed along with the other factors
in the totality of the circumstances such that on its own, such income
would not be a basis for a public charge inadmissibility determination.
DHS disagrees that the rule bases entry into this country and
adjustment of status solely on wealth. DHS notes that it must consider
an applicant's assets, resources, and financial status in making a
public charge inadmissibility determination, which includes
consideration of the applicant's household income.\635\ However, DHS
does not intend the rule to penalize or negatively affect any
particular group, and being a low-income worker would not necessarily
in itself render an applicant inadmissible on public charge grounds.
The rule abides by the statutory requirement as provided in section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), and is consistent with
congressional statements relating to self-sufficiency in 8 U.S.C. 1601,
when Congress declared it to be the United States' continued
immigration policy that ``aliens within the Nation's borders not depend
on public resources to meet their needs, but rather rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations.'' Further, the data in the NPRM shows that the
percentage of people receiving these public benefits generally goes
down as the income percentage increases. Therefore, DHS will maintain
the 125 percent of the FPG (100 percent for an alien on active duty,
other than training, in the U.S. Armed Forces) standard. After
consideration of the comments, DHS also believes it necessary to
clarify that when assessing the alien's annual gross household income,
DHS will consider as evidence the most recent tax-year transcripts from
the IRS, U.S. Individual Tax Return (Form 1040) from each household
member whose income will be considered.\636\ If such a Federal income
tax return transcript is unavailable, DHS will consider other credible
and probative evidence of the household member's income, including an
explanation why the evidence is not available,\637\ which may include
Form W-2, Wages and Tax Statement, Social Security Statements, or Form
SSA-1099, Social Security Benefit Statement.
---------------------------------------------------------------------------
\635\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\636\ See 8 CFR 212.22(b)(4)(ii)(A)(1).
\637\ See 8 CFR 212.22(b)(4)(ii)(A)(2).
---------------------------------------------------------------------------
Concerning nonimmigrants seeking extension of stay or change of
status, DHS notes that the rule does not require them to demonstrate
that they have income over 125 or 250 percent of the FPG. That
threshold is a heavily weighted negative factor in the public charge
inadmissibility determination, which is not applied to extension of
stay and change of status. Further, as previously indicated, DHS is no
longer reviewing whether the alien is likely to receive public benefits
in the future in extension of stay and change of status determinations,
and therefore, none of the factors in the public charge inadmissibility
determination will be considered for nonimmigrants.
Comment: A few commenters stated that the heavy positive weight
assigned to household income 250 percent above the poverty level
discriminates against persons with disabilities because individuals
with disabilities and their families are more likely to live in poverty
than those without disabilities, and that such individuals will
consequently not have the benefit of the heavily-weighted positive
factor to offset any negative factors. In the same vein, commenters
stated that individuals with disabilities will be disproportionately
affected by the negative weight associated with incomes that fall below
125 percent of the poverty level.
Response: DHS disagrees that considering household income at or
above 250 percent of the FPG a heavily weighted positive factor in the
totality of the circumstances discriminates against persons with
disabilities. DHS recognizes that any income threshold may affect
aliens with low-income. However, DHS did not intend, in adding this
income threshold as a heavily weighted positive factor, to discriminate
against applicants on the basis of their applicant's race, nationality,
medical condition, disability, or membership in any protected class.
Even if applicants who have low income are unable to get the benefit of
this heavily-weighted positive factor to offset any negative factors,
the presence of any other positive factors could, in the totality of
the circumstances, render the alien admissible.
Comment: A few commenters stated the proposed threshold could lead
to greater family separation and undermine family unity. Another
commenter stated that the rule will have an immediate and direct effect
on families and their ability to stay united, and could lead to the
separation of U.S. citizen children from their immigrant parents. The
commenter stated that U.S. citizens will also be directly harmed by the
rule, as they will be unable to petition for and sponsor family
members. The commenter provided an example of a U.S. citizen mother and
wife, who relies on the income of her non-U.S. citizen husband who
entered the U.S. on a visa and who would be unable to sponsor her
husband under the NPRM because she has no income. The commenter stated
that if the U.S. citizen's husband cannot demonstrate sufficient assets
or earnings, she would need to find another sponsor for her husband.
Other commenters stated that the proposed income threshold would
negatively affect U.S. citizen children, as having children would make
meeting the standard more difficult, which is counter-productive to
encouraging self-sufficiency because family-based immigration has a
positive impact on immigrant success. A couple of commenters said that
the proposed income threshold particularly affects multigenerational
households, a common practice among Asian American families, and that
it would discourage people from supporting family members. An
individual commenter suggested that placing an income threshold at 125
percent FPG would decrease the number of immigrant families with a
stay-at-home parent, despite the benefits to the family of having a
stay-at-home parent.
Response: DHS disagrees that the 125 percent income threshold
standard would lead to family separation, or otherwise undermines
family unity. The rule is not intended to separate families or
otherwise undermine the family, but instead ensures that the statutory
requirements, as provided in section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4) are implemented, which mandate that USCIS must consider an
applicant's assets, resources, and financial status in making a public
charge inadmissibility determination. This approach is also consistent
with congressional policy statements relating to self-sufficiency in 8
U.S.C. 1601, which provides that, ``aliens within the Nation's borders
not depend on public resources to meet their needs, but rather rely on
their own
[[Page 41417]]
capabilities and the resources of their families, their sponsors, and
private organizations.'' \638\ As discussed in the NPRM,\639\ DHS chose
a household income of at least 125 percent of the FPG (100 percent for
an alien on active duty, other than training, in the U.S. Armed
Forces), which has long served as a touchpoint for public charge
inadmissibility determinations.\640\ As discussed in the NPRM, DHS also
cited data demonstrating that the percentage of people who receive
public benefits generally decreases as income increases. In other
words, the data established a correlation between having low income and
the receipt of public benefits.\641\ Therefore, DHS will maintain the
125 percent of the FPG standard. However, as reiterated in other areas,
USCIS will not make a public charge determination based on one factor
alone; rather, a determinations will be based on the totality of the
alien's circumstances. Therefore, in addition to the household income
determination, the review of public charge inadmissibility takes into
consideration the other factors enumerated in this rule and all other
relevant information.
---------------------------------------------------------------------------
\638\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
\639\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51187 (proposed Oct. 10, 2018).
\640\ See INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).
\641\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51204 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS also disagrees that U.S. citizens will be directly harmed by
the rule because they will be unable to petition for and sponsor family
members. The rule does not directly impact who may file a family based
immigration petition, or the sponsorship requirements under section
213A of the INA, 8 U.S.C. 1183a. DHS acknowledges that the rule may
result in more family members of U.S. citizens being denied adjustment
of status after being found inadmissible on public charge grounds, but
believes that Congress intended that aliens be self-sufficient, and DHS
has created through this rulemaking a fair and robust standard that is
likely to have this this result in more cases than under the current
policy.
Comment: One commenter stated that the proposed income threshold
does not take into account the value of unpaid labor a family member
may provide, such as a stay at home parent or grandparent providing
childcare. Commenters also stated that the proposed rule could cause a
shortage in direct care workers who are unable to remain in the United
States, leaving many older and disabled Americans without access to
caregivers.
Response: DHS understands that some applicants or some families may
have household members or family members that provide services within
the family, such as caregivers, stay at home parents, and others who
will not be readily able to document either their work or income. To
account for this, DHS will consider the applicant's household income,
which may include the income of other household members who are more
able to document their income and who provide the applicant with
financial support. Accordingly, an applicant who provides care to a
relative without pay may still be able to demonstrate that his or her
household income meets the 125 percent FPG threshold. DHS notes that
there is no evidence, however, that being a caregiver of others, or
living in a household with a caregiver, in and of itself, is indicative
of self-sufficiency or lack thereof. Although caregivers may benefit
the household by eliminating the need for childcare expenses, each
person must establish he or she is not likely to be a public charge
based on the totality of the factors based an individual's
circumstances. However, as discussed further below, DHS has added a
separate provision under the Education and Skills factor that would
allow DHS to take into positive consideration that the alien is a
primary caregiver of another person within his or her household where
there is evidence that the alien is currently unemployed, under
employed or lacks an employment history but expects to rejoin the
workforce. As discussed in this final rule, DHS has also defined
primary caregiver as an alien who is 18 years of age or older and has
significant responsibility for actively caring for and managing the
well-being of a child or an elderly, ill, or disabled person in the
alien's household.
Additionally, as discussed elsewhere in the rule, DHS acknowledges
that, once the rule is effective, it will likely result in more adverse
determinations. DHS also acknowledges the possibility that this rule,
in turn, may impact the admissions of certain types of workers such as
direct care workers. Congress did not exempt such workers from the
public charge inadmissibility ground. DHS anticipates that the
employment of such individuals as direct care workers may diminish the
likelihood that they will be considered public charges, but, if the
totality of the circumstances establish they, like any other applicant,
are likely to become public charges, consistent with this rule, they
will be deemed inadmissible. DHS believes a more effective
implementation of the congressionally mandated self-sufficiency policy
aims as articulated in this rule are paramount.
Comment: A few commenters stated this portion of the rule would
strongly impact farmworkers and their families. Other commenters cited
to a family income below 100 percent FPL and that farm labor's wages
are among some of the lowest in the nation. Another commenter indicated
that many of their patients, including agriculture workers, live below
150 percent FPL. Many commenters echoed this sentiment and remarked
that farmworkers earn an average of around $17,500 per year. With low
wages, these workers are highly unlikely to have assets to rule out
this negative factor. Another commenter indicated that the proposed
rule would particularly affect farmworkers in Michigan, as the work is
largely seasonal and farmworkers in the state are not subject to the
state minimum wage if they work on small farms. One commenter stated
that farmworkers provide valuable and skilled labor that contributes
greatly to our nation's agricultural productivity.
Response: As previously indicated in the section discussing
extension of stay and change of status, and as explained in the notice
of proposed rulemaking, DHS will not apply the public charge
inadmissibility grounds under section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4) to nonimmigrants (including farmworkers present in the
United States under the temporary worker program for agricultural
services (H-2A)), seeking an extension of their stay or a change of
status to another nonimmigrant classification. Instead, DHS imposes as
one of the terms and conditions of granting an extension of stay or
change of status, that the alien establishes that he or she had not
received, since obtaining the nonimmigrant status that he or she is
seeking to extend or change, any public benefits as defined in 8 CFR
212.21(b), for 12 months in the aggregate within a 36-month period.
Based on this information, USCIS would then issue the decision on the
application for extension of stay or change of status.
Comment: A commenter said that the FPL is a poor guideline due to
differences in cost of living throughout the United States. Another
commenter stated that differences in costs of living could mean that
two people working full time at minimum wage could fall short of
affording adequate housing in the district they represent. Another
commenter stated that due to the high cost of living in many large
cities, reliance on public assistance is not a
[[Page 41418]]
sign of a lack of self-sufficiency, but rather a symptom of a high cost
of living. Other commenters stated that the proposed rule would trap
immigrants in a cycle of poverty instead of giving them the opportunity
to prosper.
Response: DHS agrees that the cost of living is different across
the United States but disagrees that reliance on public assistance for
housing is not a sign of lack of self-sufficiency. Through this rule,
DHS has defined public charge as an alien who receives one or more
public benefit as defined in the rule for longer than the designated
threshold, to include public housing or housing vouchers. HUD programs
are based on the cost of living in the area, which denotes that a
person is unable to pay for local rent and therefore unable to be self-
sufficient and instead must use public benefits in order to afford the
rent. Therefore, DHS will consider 125 percent of the FPG threshold in
the totality of the circumstances rather than the cost of living.
Comment: One commenter stated that the proposed factors
institutionalize income bias and discrimination. According to the
commenter, this income bias disregards the fact that many full-time
workers earning a minimum wage would fall well below the threshold for
being accorded positive weight. This commenter noted that such a
stringent test creates a policy that is biased against working
families, and perpetuates the myth that immigrants are a drain on our
society and overly dependent on Government benefits. Some commenters
stated that the proposed income threshold of 125 percent FPG would have
an outsized and disproportionate impact on members of marginalized
groups including children; families; immigrants of color; survivors of
domestic violence and sexual assault; people with disabilities;
elderly; low-wage workers; AAPI; South Asian Americans; Latino
immigrants; those living with HIV and their families; immigrants with
disabilities; older adults and families attempting to reunify; LGBTQ
immigrants; and women, especially women with other intersecting
identities regarding race, ethnicity, and sexuality. Additionally,
another commenter remarked that the proposed standards would penalize
victims of sexual and domestic violence; and pregnant women.
Response: DHS disagrees with the comments that this rule
institutionalizes bias and discrimination. The Federal Government is
responsible for ``regulating the relationship between the United States
and our alien visitors,'' which includes regulating the manner and
conditions of entry, as well as the residence of aliens.\642\ DHS is
the Federal agency with the authority to establish regulations
regarding the public charge inadmissibility determination.\643\ Section
212(a) of the INA, 8 U.S.C. 1182(a), sets forth the aliens who are
ineligible for visas, admission, or adjustment of status, the public
charge ground of inadmissibility and the minimum factors DHS is
required to consider in the public charge inadmissibility analysis. DHS
must consider an applicant's age, health, family status, assets,
resources and financial status, and education and skills. The statute
does not include the consideration of race, or any other
characteristics and DHS did not propose to consider an alien
applicant's race or any other characteristics when making a public
charge determination. Similarly, DHS did not propose to take into
account an applicant's ``social status.''
---------------------------------------------------------------------------
\642\ Mathews v. Diaz, 426 U.S. 67, 81-82, (1976).
\643\ See Homeland Security Act of 2002 section 102, 6 U.S.C.
112; INA section 103, 8 U.S.C. 1103.
---------------------------------------------------------------------------
With respect to Immigration regulations applicable to aliens, the
rational basis scrutiny applies.\644\ DHS's public charge rule is
rationally related to the Government's interest, as enacted in PRWORA,
to minimize the incentive of aliens to attempt to immigrate to the
United States, or to adjust status in this country, due to the
availability of public benefits, as well as to promote the self-
sufficiency of aliens within the United States.\645\
---------------------------------------------------------------------------
\644\ Korab v. Fink, 797 F.3d 572, 577-79 (9th Cir. 2014)
(``[F]ederal statutes regulating alien classifications are subject
to the easier-to-satisfy rational-basis review . . . Although aliens
are protected by the Due Process and Equal Protection Clauses, this
protection does not prevent Congress from creating legitimate
distinctions either between citizens and aliens or among categories
of aliens and allocating benefits on that basis . . . The difference
between state and federal distinctions based on alienage is the
difference between the limits that the Fourteenth Amendment places
on discrimination by states and the power the Constitution grants to
the federal government over immigration.'') (citation omitted);
Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir 2001), citing Lake v.
Reno, 226 F.3d 141, 148 (2d Cir.2000) (``We have recently recognized
that a `highly deferential' standard is appropriate in matters of
immigration . . . .''). Generally, laws and regulations that neither
involve fundamental rights nor include suspect classifications are
reviewed under rational basis scrutiny, under which the person
challenging the law must show that the government has no legitimate
interest in the law or policy or that there is no rational link
between the interest and the challenge law or regulation. Heller v.
Doe by Doe, 509 U.S. 312, 319 (1993).
\645\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Comment: A commenter said the sum total of past income taxes paid
by an individual, and their contribution to the welfare programs,
should be balanced against the total value of benefits received by the
individual. The commenter stated that taxes paid in the past are
indicative of ability and future potential, and surely has a strong
correlation with the likelihood of drawing from a benefits program in
the future. Another commenter stated that the proposed income threshold
would discourage immigrants from entering the country legally.
Commenters also indicated that DHS's own conclusory assumption that
receipt of this level of funding represents a lack of self-sufficiency
was rebutted by the ample research showing that immigrants pay more
into the United States healthcare system than they take out and that
most immigrant pay taxes.
Response: DHS declines to adopt the commenters' suggestion to
consider the amount of income taxes paid as an indicator of a
likelihood to receive public benefits. The public charge
inadmissibility determination looks at a person's individual
circumstances to determine whether he or she is likely to become a
public charge in the future. Not everyone is required to pay taxes and
even if a person pays taxes, he or she may be eligible for public
benefits. Given that Congress reiterated that the immigration policy
continues to be that, ``aliens within the Nation's borders not depend
on public resources to meet their needs, but rather rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations,'' \646\ DHS believes that the proposed rule has
properly and consistently balanced the value of assets and resources of
the public charge determination to ensure that those seeking status in
the United States do not become a public charge. With this rule, DHS is
not seeking to deter immigration but to implement the congressional
mandate given in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
\646\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
Comment: A commenter stated that employment alone was not
sufficient evidence of an immigrant's self-sufficiency and that the
criteria should focus on an immigrant's ability to earn wages at least
three times the FPL.
Response: DHS disagrees with the commenter's suggestions to
consider three times the FPL as the threshold. DHS uses the FPG
published by the HHS as a threshold in immigration matters. As
explained in the NPRM,\647\ the 125 percent household income threshold
has long served as a touchpoint for public charge inadmissibility
determinations as part of
[[Page 41419]]
affidavits of support and public charge. Therefore, DHS will continue
to apply the 125 percent of the FPG threshold. DHS agrees, however,
with the commenter that employment alone is insufficient evidence of
self-sufficiency. The public charge determination reviews all factors
in the totality of the circumstances and one factor alone, except for
an insufficient affidavit of support when required, will not conclude
that an alien is inadmissible based on public charge. An alien's
education and skills, which reflect a person's ability to earn wages,
are also considered in the totality of the circumstances.
---------------------------------------------------------------------------
\647\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51187 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: One commenter suggested that community involvement be
included when considering evidence of assets and resources.
Response: DHS recognizes that community involvement may be an asset
to the community as a whole and appreciates the suggestion. However,
community involvement does not establish the person's self-sufficiency
or evidence of income, assets or financial status.
Comment: A commenter stated that the evidence of assets and
resources requirement, namely the completion of the declaration of
self-sufficiency as proposed in 8 CFR 245.4(b),\648\ does not change
the fact that someone could become gravely ill and be unable to work
and never be self-sufficient. The same commenter stated that the
evidentiary requirements encourage people to lie or discourages them
from completing the process of seeking adjustment of status altogether.
---------------------------------------------------------------------------
\648\ The commenter referred to 245.5. 8 CFR 245.5 is the
regulatory provision addressing the medical examination of
individuals seeking adjustment of status. The NPRM proposed to amend
8 CFR 245.4 by requiring a new documentary requirement for purposes
of the public charge determination under INA section 212(a)(4), 8
U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Response: DHS agrees that individuals' future circumstances may be
different than the ones that exist at the time of adjudication and the
public charge assessment. However, the statute requires DHS to rely on
present and past conditions and circumstances as the best available
evidence to determine an alien's likelihood of becoming a public
charge. Although it is a remote possibility that everyone could become
sick and not be able to work, DHS is not assuming that this will
happen. DHS would review reasonable possibilities in the future based
on the person's current and parent circumstances.
Further, while it is true that some applicants may not provide
USCIS with honest answers, DHS expects all applicants and petitions to
provide honest and accurate information and requires information to be
provided under penalty of perjury. DHS reiterates that not providing
truthful information on immigration applications according to the best
of an applicant's knowledge and ability may have immigration
consequences, including denial of the benefit or ineligibility for
benefits in the future.
DHS acknowledges that this rulemaking may discourage certain aliens
from seeking adjustment of status that of a lawful permanent resident
in the United States. However, with this rulemaking, DHS seeks to
better enforce the public charge ground of inadmissibility codified by
Congress. Additionally, DHS is also seeking to ensure that those
seeking admission in the United States are self-sufficient upon
admission and not likely to become a public charge at any time in the
future.
Comment: Commenters indicated that the proposed rule seeks to set
an income standard for income above 125% of the FPG, making it
extremely difficult for low income immigrant young adults previously in
foster care and earning less than 125 percent of the FPL ($31,375
annually for a family of four), meeting the new income threshold of the
public charge test. Given that youth aging out of foster care often
need to access public cash and shelter benefits to secure housing or to
attend college or training, this could result in denying these young
adults lawful permanent resident status. The commenter therefore
believed that the proposed rule only serves to heavily favor immigrants
with wealth, while punishing low-income immigrants, including immigrant
young adults who are working in important, but low-wage jobs to sustain
themselves and their families.
Response: With this rulemaking, DHS is seeking to better enforce
the public charge ground of inadmissibility codified by Congress. DHS,
therefore, disagrees with the commenters' statement that this
rulemaking only serves to favor wealthy immigrants and to punish those
with low-income. The determination whether somebody is likely at any
time in the future to become a public charge is based on the totality
of the alien's circumstances, and one factor alone, such as the
financial status of the alien or the current receipt of public
benefits, is not outcome determinative.
DHS acknowledges a possible impact of this rulemaking, once
effective, on those in Federal, State, or tribal foster care or those
who are aging out of foster care but may continue to obtain certain
Federal, State, or tribal public benefits. DHS also acknowledges the
possibility that individuals, including those aging out of foster care,
may be likely to disenroll from public benefits because of this
rulemaking. DHS notes, however, that individuals are typically placed
in out-of-home care, such as foster care, because of abuse, neglect or
other violence. U.S. law provides certain protections and statuses for
aliens who have become victims of violence, such as refugee or asylee
status, T nonimmigrant status for certain victims of human trafficking,
U nonimmigrant status for victims of certain crimes, VAWA protections
for victims of battery or extreme cruelty, and-Special Immigrant
Juvenile status for victims of child abuse, neglect, abandonment, or a
similar basis under State law. Generally, the public charge
inadmissibility ground does not apply to these individuals and
therefore, the level of income or the receipt of public benefits would
be a consideration.
2. Evidence of Assets and Resources
Comment: Some commenters stated that the proposed rule penalizes
immigrants for having a mortgage, despite real estate being a wise
investment. Several other commenters said the criteria undervalues
homeownership. A commenter stated that home ownership is a gauge of
middle class status in the United States and that the longer an
immigrant lives in the United States, the more likely they will own a
home. Another commenter expressed doubts whether the assets and
resources threshold would have the required predictive value for
purposes of public charge. Additionally, the same commenter also
expressed skepticism that real estate could be easily convertible into
cash within 12 months. This commenter reasoned that such assets are
typically the residence of the alien or his household, which cannot be
readily liquidated without imposing offsetting new housing costs; and,
in case of a commercial property, liquidation within twelve months is
an unlikely prospect in most U.S. real estate markets. The commenter
requested a better justification for the assets and resources threshold
of five times the difference between the alien's household gross annual
income and the FPG for the alien's household size, and the inclusion of
real estate as an asset that could be converted into cash within 12
months; or, preferably, the elimination of these standards from the
final rule.
Response: DHS disagrees that the rule penalizes immigrants for
having mortgages. There is no requirement that
[[Page 41420]]
an alien have a mortgage-free home; and an alien with a mortgage could
use the total value of the home minus the amount of the mortgage to
meet the assets threshold. In other words, homeownership could help the
alien establish that he or she is meets the income threshold and is not
likely to become a public charge where the alien can provide evidence
that he or she has available assets through value in a home to overcome
any negative factors of the absence of regular income through
employment or substantial assets in bank accounts.
The ``five times equivalency'' test to establish significant assets
to cover the difference between the 125 percent standard and the actual
income has long been recognized for public charge inadmissibility in
the affidavit of support context.\649\ DHS disagrees that having assets
to cover five times the difference between income below 125 percent of
the FPG and the 125 percent amount fails to meet any predictive value,
because such assets could be readily converted to cash and substitute
for income, thereby helping ensure that the alien does not rely on
public benefits to meet his or her basic needs.
---------------------------------------------------------------------------
\649\ See 8 CFR 213a.2(c)(2)(iii)(B). See also 64 FR 54346,
54348 (October 20, 1997) (explaining the rationale for the
significant asset rule as part of the interim affidavit of support
rule) and 71 FR 35732, 35739 (June 21, 2006) (explaining the
rational for adopting the current affidavit of support rule at 8 CFR
213a, which provides for additional standards for certain aliens).
DHS has amended the public charge regulatory provision to reflect
that DHS will adopt the three standards used in the significant
asset provision for purposes of the public charge determination.
---------------------------------------------------------------------------
DHS disagrees that typically the residence of the alien or his
household cannot be readily liquidated without imposing offsetting new
housing costs or in case of a commercial property, liquidation within
twelve months is an unlikely prospect in most U.S. real estate markets.
An alien may be able to liquidate the home and then obtain a new lower
cost home or start renting.
Additionally, DHS also disagrees with the commenter about the
assessment of the 12-month benchmark; this benchmark is used for
affidavit of support purposes \650\ which, again, has long been part of
the public charge inadmissibility determination. The affidavit of
support permits listing of assets that may be liquidated within one
year only, and specifically includes the net value of the sponsor's or
the sponsored immigrant's home as a permissible asset. Although the
affidavit of support does not specifically address commercial property
in terms of liquid assets, the commenter provided no evidence to
support the proposition that an alien would be unable to liquidate
commercial property within 12 months, and DHS sees no reason to treat
commercial property differently from residential property in this
context. In addition, 8 CFR 213a.2(c)(2)(iii)(B) does specifically
consider real estate in the calculation of significant assets, and it
is similarly reasonable to consider commercial property as assets in
this context. Therefore, DHS will continue to use the 12-month standard
for liquidation of assets.
---------------------------------------------------------------------------
\650\ See Form I-864, Instructions, Part 7.
---------------------------------------------------------------------------
Comment: A commenter stated that the income threshold in the NPRM
fails to exclude income from illegal conduct, unlike what the commenter
states is the definition of income used by DOS.\651\ The commenter
reasoned that no alien may work in the United States without
authorization, either by operation of law or by specific
application.\652\ The commenter strongly recommended that income from
unauthorized employment should be excluded from the calculation of
gross annual household income, in the same manner as unlawful income
from drug dealing, gambling, or smuggling. The commenter further
suggested that no evidence of irregular income that is not documented
on a tax return or equivalent document, such as an IRS Wage and Tax
Statement (Form W-2) or Return of Organization Exempt from Income Tax
(Form 990), should be accepted; that income earned under a taxpayer
identification number rather than a Social Security number should be
presumptively unacceptable; and that this approach would streamline the
adjudication of public charge determinations, by eliminating
consideration of most evidence of income other than recognized IRS
documentation.
---------------------------------------------------------------------------
\651\ The commenter cited to the former FAM section on public
charge at 9 FAM 40.41. The public charge FAM section is now located
at 9 FAM 302.8.
\652\ See INA sections 274A(a)(1), (h)(3), 8 U.S.C. 1324a(a)(1),
(h)(3).
---------------------------------------------------------------------------
Response: DHS appreciates the comments and would like to clarify
that an alien's employment and income derived from employment without
an employment authorization card or status which authorizes employment
will be considered as part of the assets, resources and financial
status factor and the education and skills factor. DHS believes that
limiting consideration of employment and income to only that derived
from authorized employment goes beyond the narrow purpose of this rule,
which is ensuring that aliens are self-sufficient and do not rely on
the government to meet their basic living needs. For purposes of a
public charge determination, the alien's household income is relevant
to the determination of whether the alien's assets, resources and
financial status make the alien more likely than not in the totality of
the alien's circumstances to become a public charge. Whether or not the
alien engaged in unauthorized employment and any immigration
consequences flowing from such unauthorized employment is a separate
determination.\653\ DHS will therefore consider any past employment and
any income derived from such employment in the public charge
inadmissibility determination. In addition, as not all income is
required to be reported in tax returns, DHS will continue to consider
additional income that is not listed on the IRS forms as provided in
the I-944 instructions.
---------------------------------------------------------------------------
\653\ Furthermore, a general limitation of the type suggested by
the commenter could be in tension with USCIS policy. See USCIS
Policy Memorandum PM-602-0119, Qualifying U.S. Work Experience for
Special Immigrant Religious Workers (July 5, 2015), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0705_Lawful_Status_PM_Effective.pdf; Shalom Pentecostal Church v.
Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015).
---------------------------------------------------------------------------
However, DHS does agree that income derived from illegal activities
or sources should be excluded from the calculation of gross annual
household income including, but not limited to, income gained illegally
from drug sales, gambling, prostitution, or alien smuggling.
3. Public Benefits
Comment: Some commenters referenced DHS's request regarding whether
use of other benefits should be counted in the totality of
circumstances test. Those commenters opposed considering the use of
non-listed programs in the totality of circumstances test.
Additionally, other commenters stated that DHS should not allow public
benefits that are not explicitly enumerated in the rule to be weighted
negatively in the totality of the circumstances review. Several
commenters said that Federal assistance programs or public benefits
should not be a deciding factor in the public charge inadmissibility
determination. One commenter cited a study showing that immigrants have
a lower unemployment rate than native-born citizens and requested the
agency's rationale for focusing on discouraging immigrants from using
public benefits, despite their lower unemployment rate as a demographic
group.
Some commenters stated that receipt of benefits was not evidence of
weak financial status, as benefits are used temporarily to help people
get back on
[[Page 41421]]
their feet. Another commenter stated that many of the public benefits
considered under the proposed rule would in fact make someone less
likely to be a public charge, especially when the benefits are received
by children. A few other commenters expressed concern that using prior
receipt of public benefits as evidence of financial status ignores the
role public benefits play in promoting self-sufficiency. A commenter
indicated that past receipt of benefits is not even mentioned by
Congress as a factor that should be given any weight in the public
charge determination. Another commenter cited a 1999 letter from HHS
stating that it could not imagine any way in which an individual could
become primarily dependent on public benefits. Another commenter
asserted that the current provisions surrounding public benefits are
sufficient to be used in public charge determinations. A few commenters
stated that counting benefits as a negative factor when used by
children in the public charge assessment is contrary to the purpose of
the public charge ground of inadmissibility because benefits providing
essential health, nutrition and housing assistance prepare children to
be productive, working adults; counting it as a negative factor would
unfairly base a child's future potential for self-sufficiency on their
use of benefits as a child. A commenter stated that using prior receipt
of benefits in public charge determinations is contrary to the totality
of circumstances test. One commenter indicated that considering the use
of public benefits as evidence of financial status would negatively and
disproportionately impact LGBTQ immigrants and immigrants with
disabilities. Another commenter stated that, since most applications
for public assistance consider a wide range of benefits, immigrants
would be kept from applying from all benefits, even those not mentioned
in the proposed rule. Some commenters stated that including receipt of
benefits as evidence of financial status would lead to a widespread
chilling effect among immigrants and citizens alike. One commenter
asserted that, unless DHS is willing to compel employers in agriculture
and in other industries to provide a living wage and health benefits,
it is cruel and unjust to punish hard-working immigrants who rely on
public benefits but who also benefit the United States.
Response: DHS disagrees with the commenters and maintains that
receipt of public benefits indicates weak financial status. DHS also
disagrees rates of public benefits receipt among aliens as a whole
would warrant abandoning this rule, which applies the public charge
ground of inadmissibility to individual aliens. As provided in the
NPRM,\654\ and elsewhere in this regulation, current or past
applications for, or receipt of, or certification for future receipt of
public benefits, as defined in 8 CFR 212.21(b), suggests that the
alien's overall financial status is so weak that he or she is or was
unable to fully support himself or herself without public benefits,
i.e., that the alien will receive such public benefits in the future.
Accordingly, as discussed more fully in the discussion on the public
benefits threshold section, DHS believes that it is reasonable to
consider any application, approval, or certification for, or receipt
of, public benefits as a negative factor in the totality of the
circumstances, as this is relevant to determining the likelihood of
becoming, at any time in the future, a public charge. DHS understands
however, that certain individuals may have become self-sufficient over
time after having received or having been certified to receive public
benefits, and therefore, either have disenrolled, or have requested
disenrollment from the public benefits. To account for these positive
developments in an alien's life, DHS decided to include as a
consideration evidence of the disenrollment, or a request for
disenrollment or withdrawal from public benefit receipt.
---------------------------------------------------------------------------
\654\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51188 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Overall, however, Congress implicitly recognized that past receipt
of public benefits can be considered in determining likelihood of
someone becoming a public charge when it prohibited consideration of
benefits that were authorized under 8 U.S.C. 1641(c) for ``certain
battered aliens.'' \655\ Congress' prohibition of consideration of
prior receipt of benefits by a specific class of aliens indicates
Congress understood and accepted the agency's consideration of past
receipt of benefits in other circumstances.
---------------------------------------------------------------------------
\655\ INA section 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------
DHS agrees that public benefits play a role in promoting and
helping people obtain self-sufficiency; however, the primary reason
people seek public benefits is the inability to be self-sufficient. In
addition, the 1999 Interim Field Guidance, in which other agencies
commented, involved the ``primary dependence'' standard, which is
different from the standard set forth in this final rule. While DHS
understands that some people may choose not to apply for benefits,
however, the rule does not intend to disproportionally affect any group
of people as previously discussed.
Comment: A commenter indicated that the proposed regulation states
only that DHS would consider whether a noncitizen has ``applied for''
or ``received'' benefits or fee waivers, without defining those terms.
The commenter wrote that the proposed rule did not plainly state that
DHS will only consider a noncitizen's application for benefits on her
own behalf. These omissions, according to the commenter, would allow
immigration officers to penalize a noncitizen during a public charge
determination when she is the formal applicant for, or payee of,
benefits for which her children or others are the true beneficiaries.
Another commenter expressed concern that many affected families
will include U.S. citizens. The commenter explained that although the
proposed rule stated that DHS did not intend to consider benefits
received by a mixed status household where a noncitizen would not be
entitled to receive a benefit or was not counted for purposes of
calculating household size, the proposed regulatory text did not
clearly implement DHS's stated intent. The commenter stated that as a
consequence, an immigrant applying for benefits exclusively on behalf
of U.S. citizen dependents could still face adverse consequences in a
public charge determination for the family's receipt of such benefits,
leaving the household with the choice of either not applying for
benefits and facing food and housing insecurity, or the applying for
the benefits and increasing the likelihood of adverse immigration
consequences for some family members.
Similarly, a commenter stated that the proposed regulatory text
fails both to clearly explain how DHS will identify ``the portion of
the benefit that is attributable to the alien'' (for example, when the
individual lives in a household that receives housing assistance and he
or she would not be eligible to receive such assistance). The commenter
wrote that the proposed rule did not plainly state that DHS will only
consider a noncitizen's application for benefits on her own behalf.
Another commenter stated that DHS should commission research on the
cash value equivalence when determining the discount factor for housing
benefits.
Response: DHS agrees with commenters that additional clarification
of when DHS will consider application, certification, or receipt of
public benefits will weigh negatively in the totality of the
circumstances could be
[[Page 41422]]
helpful. Therefore, DHS has added a new definition of ``receipt of
public benefits'' to 8 CFR 212.21(e) to clarify that DHS will only
consider the alien to have received a public benefit if the alien is a
named beneficiary of the benefit but not where an alien is applying,
being certified, or receiving a public benefit not on his or her own
behalf but on behalf of another person. For example, if a parent is
applying for a public benefit on behalf of a U.S. citizen child, such
application for public benefits will not be considered negatively
against the parent. Similarly, if an alien is the legal guardian or
power of attorney of the alien's lawful permanent resident parent and
is applying for a benefit on behalf of such parent, such application
and/or associated administration of the public benefit on behalf of the
alien's parent will not count negatively against the alien. DHS would
only count as a public benefit any benefit for which the alien is
specifically listed as a beneficiary. The new definition also clarifies
that application for a public benefit is not the same as receipt but is
indicative of an alien's intent to receive such a benefit. Similarly,
certification is not the same as receipt but may impact the likelihood
that the alien will in the future receive such public benefit.
Comment: Commenters stated, in response to a call for comments in
the proposed rule preamble, that DHS should not revise the rule to
allow adjudicators to consider an alien's receipt of public benefits
below the applicable threshold, as part of DHS's assessment of whether
the alien is likely at any time in the future to become a public charge
(i.e., to receive benefits above the applicable threshold). A commenter
wrote that all individuals, citizen or non-citizen alike, may have
emergency situations or unanticipated job losses that could result in a
need for benefits on a temporary basis. Another commenter wrote that if
any benefit receipt below the threshold were to be considered in the
totality of circumstances, the thresholds would become ``entirely
meaningless.''
Response: No commenters established that receipt of designated
public benefits below the applicable threshold has no bearing on
whether the alien may, in the future, receive designated public
benefits above the applicable threshold. In addition, the proposed
rule, as drafted, would have effectively required DHS to be willfully
blind to evidence of significant benefits use that fell short of the
threshold. For instance, it was unclear whether the proposed rule would
allow adjudicators to consider the fact that an alien had received non-
monetized benefits for 11 consecutive months leading up to an
application, even though such fact would be directly relevant to
whether the alien is likely to exceed the applicable threshold in the
future.
Following careful consideration of the issue, DHS has determined
that it is reasonable to consider any application, approval, or
certification for, or receipt of, public benefits as a negative factor
in the totality of the circumstances, regardless of whether the
benefits exceed the threshold for becoming a public charge. While DHS
does not believe that past receipt of the benefits enumerated in this
rule for 12 months or less, on its own, makes the alien likely to
become a public charge in the future, such receipt will in some cases
suggest that the alien is not self-sufficient, or may soon lack self-
sufficiency. Accordingly, under the assets, resources, and financial
status factor, DHS will consider it to be a negative factor (though not
a heavily weighted negative factor) if the alien has applied for, been
approved or certified for, or has received, public benefits for any
amount of time.\656\ The fact that an alien has in the past applied
for, been approved or certified for, or has received public benefits
for any amount of time, would never be dispositive on its own, but
would be relevant to assessing an alien's likelihood of becoming at any
time in the future a public charge. USCIS will consider the duration,
amount, and recentness of an alien's past approval or certification
for, or receipt of, public benefits, when deciding how much weight to
give this past activity as part of the prospective totality of the
circumstances determination.
---------------------------------------------------------------------------
\656\ 8 CFR 212.22(b)(4)(ii)(F)(1), (2).
---------------------------------------------------------------------------
Comment: An individual commenter stated that the proposed assets,
resources, and financial status factors would treat immigrants who have
been living in the country fundamentally different than those arriving
at ports of entry and are therefore arbitrary. The commenter indicated
that this difference in treatment is wholly inequitable and
fundamentally wrong because an individual who has continually received
public assistance in a foreign country could potentially be allowed to
enter the United States. In contrast, individuals who are applying for
adjustment of status within the United States could be denied
adjustment of status for a brief, temporary use of a low dollar amount
of public assistance.
Response: DHS disagrees that the proposal is arbitrary. DHS
understands that public benefits and assistance programs exist in other
countries. However, DHS did not propose and will not consider public
benefits provided by foreign countries.\657\ Public benefits in foreign
countries have different standards and objectives. For example, in some
countries, healthcare is provided on a national basis irrespective of
income or need and is, therefore, not comparable to public benefits or
to the public charge standard in the United States. In addition, the
inadmissibility determination addresses whether a person is likely to
become a public charge in the United States in the future.
---------------------------------------------------------------------------
\657\ See 8 CFR 212.21(b). See Inadmissibility on Public Charge
Grounds, 83 FR 51114, 51158-51174 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Additionally, all applicants for admission and adjustment of status
applicants must demonstrate that they are clearly and beyond a doubt
not inadmissible to the United States.\658\ The ground of
inadmissibility under section 212(a) of the Act, 8 U.S.C. 1182, include
the public charge grounds of inadmissibility under section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4). DHS explained in the proposed rule that
it provided a more comprehensive framework to determining public charge
inadmissibility, including certain and new paper-based applications, as
additional evidence related to public charge considerations.\659\ DHS
also explained that, due to operational differences, this additional
evidence would not generally be required at ports of entry.\660\
Applicants for admission are inspected by immigration officers at or,
when encountered, between ports of entry in a timeframe and setting
distinct from the adjudications process. This, however, does not imply
that DHS does not screen applicants for admission for grounds of
inadmissibility, including public charge grounds of inadmissibility.
Therefore, DHS does not fundamentally treat those who seek adjustment
of status in the United States differently from those seeking admission
to the United States.
---------------------------------------------------------------------------
\658\ See INA section 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A).
\659\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51116 (proposed Oct. 10, 2018).
\660\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51116 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: One commenter stated that the proposed rule ignores that
under PRWORA applicants for admission are and will remain ineligible
for public benefits even after admission, and that applicants for
adjustment of status are and will remain ineligible for most public
benefits until they have green cards for five years. The same commenter
stated that the rule's
[[Page 41423]]
``weighing scheme'' is impermissibly vague. The commenter pointed to
one of the examples in the proposed rule as indicative of the
unpredictable nature of the determination, namely that an individual
who is in school and employed with an income of 120 percent of the FPG
and does not have health insurance but has no other negative factors
would not be deemed likely to become a public charge. But the commenter
noted that if the individual was not precluded by immigration status
from receiving public benefits, the individual would be income-eligible
for SNAP, Medi-Cal, and Federal housing assistance. The commenter
stated that it is not clear why DHS would not deem the individual
likely to become a public charge at any time in the future.
Response: DHS disagrees with the commenter that the rule fails to
consider the alien's immigration status in determining whether an alien
could qualify for public benefits, and has added language in the rule
to clarify. DHS also disagrees that the totality of the circumstances
determination is impermissibly vague and unpredictable, or that the
example the commenter cited illustrates the unpredictability of the
determination. In the proposed rule, DHS established as one of the
mandatory regulatory factors the consideration of the alien's
prospective immigration status and expected period of admission. DHS
notes that there are a number of legal and practical limitations on
DHS's ability to consider eligibility for public benefits as part of
its totality of the circumstances determination. For instance, DHS does
not have the expertise to apply the varied and often complex framework
of public benefit eligibility criteria, either on a state-by-state
basis or according to general Federal standards; cannot reliably
predict the alien's likely state of residence at any time in the
future; and cannot assume that all aliens who are ineligible for the
designated benefits in the near-term will not use them in the long
term.\661\
---------------------------------------------------------------------------
\661\ See, e.g., Medicaid.gov, Medicaid, Children's Health
Insurance Program, & Basic Health Program Eligibility Levels,
https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-eligibility-levels/index.html (discussing Medicaid eligibility
from state to state) (last visited June 5, 2019); State TANF
Policies: A Graphical Overview of State TANF Policies as of July
2016, available at https://www.acf.hhs.gov/sites/default/files/opre/wrd_2016_databook_companion_piece_05_15_18_508.pdf (last visited
June 5, 2019).
---------------------------------------------------------------------------
But if an alien provides evidence from a Federal, State, local, or
tribal agency specifically identifying that alien does not qualify for
one or more public benefits, USCIS can use that information as part of
its totality of the circumstances determination. DHS has therefore
revised the regulatory text to make clear that DHS would consider
evidence from a Federal, State, local, or tribal agency administering a
particular benefit that shows the alien does not qualify for the public
benefit, so long as the alien submits the necessary evidence and
specifically identifies it as relating to eligibility.
For example, an alien could provide a letter from a benefit-
granting agency indicating that the alien is not eligible for a
particular benefit based on the alien's immigration status. In the
alternative, the alien could provide information from a public benefit-
granting agency listing the immigration classifications not eligible
for public benefits and evidence of the alien's prospective immigration
status that together indicate that the alien is not eligible for the
benefit because the alien does not have an immigration classification
that the public benefit-granting agency has identified as eligible.
Similarly, the alien could provide evidence of his or her gross
household income together with information from a public benefit
agency's website showing the eligibility income threshold for the state
in which the alien resides, or will reside upon becoming a lawful
permanent resident, that specifically indicates that the alien's gross
household income exceeds the threshold. DHS would consider such
evidence in the totality of the circumstances. DHS notes that an
assessment that an alien is not currently eligible for any or all
designated public benefits may carry some weight in the totality of the
circumstances, but will never be outcome determinative. DHS must
consider all statutory factors to determine whether the alien is likely
at any time in the future to become a public charge.
With respect to the specific example cited by the commenter, DHS
notes that evidence of alien's income being below 125 percent of the
FPG or evidence that the alien's immigration status may not be
disqualifying, are not necessarily determinative factors in the
totality of the circumstances. In the example commenter discusses
(Table 34, example A in the proposed rule), DHS would determine that
the alien is not likely to become a public charge notwithstanding the
alien's lower income and lack of health insurance because the alien is
fundamentally a young and healthy person (age 30) of a working age,
with an employment history and education (attending a Bachelor's degree
program), and the alien is an employment-based applicant for adjustment
of status. In making this determination, DHS would take into
consideration the fact that the alien is working while in school and
thus that the nature and hours of employment may be limited by his need
to attend classes. DHS would also look at the likelihood that the
alien's earning capacity would increase as a result of his education--
for example, U.S. Census data shows that a college degree nearly
doubles earnings.\662\ Similarly, there is no evidence that the alien
had previously received, or even attempted to apply for, or been
certified to receive public benefits.\663\ Therefore, notwithstanding
the commenter's observation about potential future eligibility for such
benefits, the alien, based on the facts, would not be more likely than
not receive public benefits at any time in the future. However, if
there were evidence that, the alien was discontinuing his or her
education, or had a chronic health condition that would impair the
alien's ability to work, or that the alien had attempted to apply for
public benefits but had been found ineligible based on his immigration
status, such evidence could tip the determination the other way and
USCIS may determine that the alien is more likely than not to receive
public benefits above the designated threshold at any time in the
future. Therefore, DHS appreciates that a real world circumstance is
likely to include facts beyond those included in the hypothetical fact
pattern that could lead to a different adjudication.
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\662\ See College Degree Nearly Doubles Annual Earnings: https://www.thoughtco.com/college-degree-nearly-doubles-annual-earnings-3320979 (last visited June 27, 2019); U.S. Census Bureau Educational
Attainment in the United States: 2004: https://www.census.gov/data/tables/2004/demo/educational-attainment/cps-detailed-tables.html
(last visited June 27, 2019); U.S. Census Bureau Post-Secondary
Employment Outcomes (PSEO) (Beta) https://lehd.ces.census.gov/data/pseo_beta.html.
\663\ Even though some studies show that low income earners
receive one or more public benefits at higher rates, DHS would not
necessarily find this trend to be outcome determinative in the case
of an individual enrolled in a Bachelor's degree program. See, e.g.,
The New York Times, Working, but Needing Public Assistance Anyway
https://www.nytimes.com/2015/04/13/business/economy/working-but-needing-public-assistance-anyway.html (April 12, 2015) (last visited
July 26, 2019); U.C. Berkeley Labor Center: High Public Cost of Low
Wages http://laborcenter.berkeley.edu/the-high-public-cost-of-low-wages/ (last visited on June 27, 2019).
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4. Fee Waivers for Immigration Benefits
Comment: Many commenters said the rule overweighs receipt of one-
time immigration fee waivers to predict whether a person will become a
public charge by double counting, as use of a fee waiver is a function
of income.
[[Page 41424]]
Another commenter stated that there is not enough data to determine
whether one-time receipt of a fee waiver was related to a person being
a public charge. A commenter noted that a separate consideration of the
use of a fee waiver means that factors such as income would be unfairly
counted twice--once based on their household income and a second time
when the fee waiver is granted because of their income.
Response: DHS disagrees that the receipt of a fee waiver for an
immigration benefit is over weighted. The fee waivers for immigration
benefits is only one evidentiary consideration in the totality of the
circumstances and it is not heavily weighted. As indicated in the
NPRM,\664\ since fee waivers are based on an inability to pay (i.e.,
receipt of means-tested public benefits or income at the FPG level), a
fee waiver for an immigration benefit suggests an inability to be self-
sufficient. DHS recognizes that some of the factors required to obtain
a fee waiver may be similar to those used as part of the public charge
determination. These factors, however, are reviewed differently
according to their respective purposes. For purpose of the public
charge inadmissibility determination, all the factors and circumstances
will be reviewed in the totality of the circumstances without a
counting system currently used for fee waiver purposes, in which each
factor is individually ranked or scored to assess whether a fee waiver
is warranted. As such, DHS will consider the alien's financial
liabilities and the request or the receipt of a fee waiver as evidence
of financial liabilities and status in the totality of the
circumstances. Other evidence may provide the same information and
therefore, DHS would consider the evidence as a whole but not
individually rank or score the evidence.
---------------------------------------------------------------------------
\664\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51188 (proposed Oct. 10, 2018).
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Comment: One commenter said it is impermissibly retroactive to
consider the past receipt of a fee waiver because ``it impermissibly
penalizes applicants for their financial status on the date of the
application for the fee waiver and not on the date of application for
admission, adjustment of status, or for a visa.'' Commenters indicated
that often, an individual's economic situation improves after receiving
immigration benefits for which applicants receive a fee waiver. A
commenter stated that even immigrants who applied for a fee waiver and
were rejected for having high income, would be counted under the
proposed rule.
Response: DHS disagrees that the consideration of a fee waiver
would be impermissibly retroactive. First, fee waivers applied for or
received before the effective date will not be considered.\665\ Second,
any fee waiver received on or after the effective date of the rule,
will be considered in the totality of circumstances and, alone, would
not result in a finding that a person is likely at any time in the
future to become a public charge. In the totality of the circumstances
analysis, evidence of a change in circumstances, e.g., steady
employment and income, would also be taken into consideration. Third,
simply because the regulation bases the consideration of public charge
in part on an occurrence of a fee waiver on or after the effective date
of the rule, does not make the regulation impermissibly
retroactive.\666\ Through this regulation, DHS simply specifies
considerations as part of implementing the public charge determination,
according to the best evidence available at the time of the
adjudication, including past occurrences of a fee waiver request or
grant as a consideration, in the totality of the alien's circumstances.
Finally, and similar to the receipt of public benefits, DHS will, in
the totality of the circumstances, consider how long ago the fee waiver
was received. If the fee waiver was received recently, it would have
more relevance to the public charge determination, whereas if the fee
waiver was received some time ago, for example, before the alien
obtained new, steady employment, the relevance of the fee waiver in the
totality of the circumstances would be diminished.
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\665\ 8 CFR 212.22(b)(4)(ii)(G).
\666\ ``A regulation has retroactive effect `when it takes away
or impairs vested rights acquired under existing laws, or creates a
new obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.' '' See
Mejia v. Gonzales, 499 F.3d 991, 995--99 (9th Cir. 2007) (quoting
INS v. St. Cyr, 533 U.S. 289, 321 (2001)).
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Comment: Some commenters stated that the rule seemed to reduce or
potentially eliminate the use of the application fee waivers and stated
that the fee waiver program is founded on its own policy rationale,
which, according to the commenters, is not the subject of this rule. A
commenter stated that fee waivers are typically only available for
applications not subject to the public charge ground of inadmissibility
and stated that using fee waivers in public charge determinations will
only serve to chill overall immigration applications. Another commenter
further remarked that the inclusion of fee waivers in public charge
determinations would result in fewer immigrants being willing and able
to seek citizenship. A commenter stated that many of their clients were
worried about whether using a fee waiver would impact their chances of
having their applications approved. A commenter stated that the fee
waivers would be limiting the options immigrants have to file for
immigration benefits and would harm families, citing a story about a
client in the process of applying for citizenship. An individual
commenter stated that it is cruel to offer fee waivers and then hold
the use of said fee waiver against immigrants in their application.
Additionally, another commenter stated that the standards for fee
waivers are often more lenient than the finding of inadmissibility
under the proposed rule, and therefore should not be used in public
charge determinations. A different commenter stated that the use of fee
waivers in public charge determination would likely disadvantage
naturalized citizens in efforts to reunite their families. A couple
commenters stated that receipt of a fee waiver often serves as a step
toward self-sufficiency and decreases the likelihood that an immigrant
will be dependent on government assistance in the future. Another
commenter stated that fee waivers are often used when applying for work
authorization, as at that time immigrants have no income, and
considering fee waivers would lead to longer unemployment periods and
increase use of public benefits. A commenter stated that often
immigrants apply for fee waivers when they need to file an application
in a timely manner, but do not have the time to save enough money to
afford the application fee. Another commenter stated that including a
fee waiver in public charge determinations would increase the burden on
immigrants.
Response: DHS disagrees that the rule eliminates fee waiver
requests. Applicants would still be able to request fee waivers in
accordance with the applicable regulations and form instructions.\667\
The consideration of a fee waiver in the public charge inadmissibility
determination is but one factor in the totality of the circumstances.
As indicated in the NPRM,\668\ requesting or receiving a fee waiver for
an immigration benefit suggests a weak financial status. Since fee
waivers are based on an inability to pay, seeking or obtaining a fee
waiver
[[Page 41425]]
for an immigration benefit suggests an inability to be self-sufficient.
In addition, the Senate Appropriations Report for the Department of
Homeland Security for FY 2017, stated that ``the Committee is concerned
about the increased use of fee waivers, as those paying fees are forced
to absorb costs for which they receive no benefit. In addition, those
unable to pay USCIS fees are less likely to live in the United States
independent of government assistance.\669\ However, the House Report on
Department of Homeland Security Appropriations Bill, 2019, said ``USCIS
is expected to continue the use of fee waivers for applicants who can
demonstrate an inability to pay the naturalization fee. USCIS is also
encouraged to consider whether the current naturalization fee is a
barrier to naturalization for those earning between 150 percent and 200
percent of the federal poverty guidelines, who are not currently
eligible for a fee waiver.'' Therefore, DHS would not consider the
request or receipt of reduced fee for the naturalization application as
part of the public charge inadmissibility.
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\667\ See 8 CFR 103.7(c).
\668\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51188 (proposed Oct. 10, 2018).
\669\ See S. Rep. No. 114-264, at 125 (2016).
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DHS also disagrees that this rule would deter individuals from
applying for U.S. citizenship or otherwise imposes additional burdens
on applicants. This rule addresses how DHS determines inadmissibility
of aliens on account of public charge; and it does not apply to
individuals seeking to be naturalized who would apply for a fee waiver
request because the public charge ground of inadmissibility does not
apply to naturalization proceedings.\670\
---------------------------------------------------------------------------
\670\ See INA section 311-347, 8 U.S.C. 142-1458.
---------------------------------------------------------------------------
For clarification purposes, DHS has amended the regulatory text in
8 CFR 212.21(b) to provide that fee waiver requests submitted or
granted as part of immigration benefits that are not subject to the
public charge inadmissibility ground under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4) will not be considered as part of the public
charge determination. See 8 CFR 212.22(b)(4)(G).
Comment: One commenter stated that considering fee waivers would
unfairly and disproportionately impact survivors of human trafficking
and domestic violence who are less likely to have the ability to pay
for fee-based forms. Another commenter further remarked that the use of
fee waivers in public charge determination would disproportionately
affect women, survivors of abuse, and people of color.
Response: As discussed in the NPRM, an alien who is a VAWA self-
petitioner, a T nonimmigrant at time of admission, and an applicant
for, or individual who is granted, U nonimmigrant status are generally
exempt from the public charge ground of inadmissibility. For reasons
discussed earlier in this preamble, DHS amended this final rule to
clarify that T nonimmigrants seeking any immigration benefit subject to
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), are generally exempt
from the public charge ground of inadmissibility, as previously
discussed. Because these survivors of human trafficking and domestic
violence are generally exempt from the public charge inadmissibility
ground, they would not be impacted by this rule.
Comment: Several commenters stated that the consideration of
receipt of a fee waiver would keep immigrants from accessing their
right to justice in immigration proceedings.
Response: DHS disagrees that the consideration of requests for, and
receipt of, fee waivers would prevent individuals in removal
proceedings from applying for any benefits for which they are eligible.
Although request and receipt of a fee waiver is a consideration in the
public charge inadmissibility determination, it is but one factor in
the totality of the circumstances, and could not, alone, form the basis
of an inadmissibility determination. The consideration of fee waivers
within public charge inadmissibility determinations conducted by
immigration judges in removal proceeding is more appropriately
addressed by DOJ in the context of their public charge rulemaking.
DHS's rule only addresses the consideration of fee waivers in the
context of matters before DHS.
5. Credit Report and Score
Comment: Several commenters noted that a credit scores and credit
histories are not designed to assess an alien's likelihood of becoming
a public charge, were not designed to be used in the immigration
context, and do not assess an alien's self-sufficiency. A commenter
also noted that credit reports do not address at all whether an alien
can financially provide for himself or herself because credit reports
do not reflect the subject's payment of rent, utilities, income,
savings, or other financial resources. A few commenters stated that a
person's credit history should not impact their ability to change
immigration status. Many commenters said there is no correlation
between a low credit score and the evaluation factor. Many commenters
stated that credit reports are highly inaccurate. Further, a commenter
remarked that credit reporting scores vary widely between agencies, and
that the score reported to a consumer may not be the same as the score
used by lenders. Many commenters asserted that an applicant's credit
history could be impacted by factors outside their control from which
they may recover. Additionally, a commenter indicated that credit
report and income alone does not depict a clear picture of an
immigrant's full financial situation or their ability to raise their
credit score. A couple of other commenters stated that credit reports
and scores do not contain enough information about an individual's
earnings or incomes. Another commenter stated that many consumers who
are credit invisible or unscoreable will be disadvantaged by the rule
and provided data on the population who falls into these groups.
Many commenters stated that credit scores are a poor way to
evaluate the past ability to pay bills, since scores do not reflect
rent payments, which are often the largest recurring expense a
household or individual will incur. Some commenters stated that medical
debt is often reflected in credit reports and is not an accurate or
reliable measure of an individual's financial status. One commenter
stated that credit reports should not be included as a negative factor,
but that individuals should be allowed to submit a good credit score as
a positive factor if they so choose. An individual commenter stated
that there may be additional credit data, which provides for non-
traditional credit activity (i.e., short-term payday lending, rent-to-
own, auto lending data) that could be used in public charge
determinations.
Response: A weaker financial status may, in the totality of the
circumstances, lead to a public charge determination. As indicated in
the NPRM,\671\ USCIS would consider an alien's liabilities and
information of such liabilities in a U.S. credit report and score as
part of the financial status factor in the totality of the
circumstances. As provided in the NPRM, a good credit score in the
United States is a positive factor that indicates a person is likely to
be self-sufficient and support the household. Conversely, a lower
credit score or negative credit history in the United States may
indicate that a person's financial status is weak and that he or she
may not be self-sufficient. Credit reports and credit scores provide
information about a person's bill paying history, loans, age of current
accounts, current debts, as well as work, residences, lawsuits,
[[Page 41426]]
arrests, collections, actions, outstanding debts and bankruptcies in
the United States.\672\ Credit reports generally assist creditors to
determine the credit worthiness or risk of a person, and affect the
terms of the credit the person is offered.\673\ DHS's use of the credit
report or scores focuses on the assessment of these debts, liabilities,
and related indicators, as one indicator of an alien's strong or weak
financial status, so that in the totality of the circumstances and as
part of all considerations affecting the alien, the alien is more or
less likely to become, in the future, a public charge. DHS believes it
is useful information in determining whether aliens are able to support
themselves. However, DHS understands that not everyone has a credit
history in the United States and would not consider the lack of a
credit report or score as a negative factor. DHS also understands that
the three main different credit reporting agencies do not provide
identical scores. DHS believes that the credit report and score are
nonetheless sufficiently reliable to be useful in reviewing a person's
financial status in determining whether an applicant is likely to
become a public charge.\674\ As the Consumer Finance Protection Board
has said ``A credit report generally is considered s reasonably
reliable third-party record . . . for purposes of verifying items
customarily found on a credit report, such as the consumer's current
debt obligations, monthly debts, and credit history.'' \675\ Further,
if the alien has a confirmed error on the report or score, USCIS would
not consider the report a negative factor. USCIS will review the latest
credit report and score provided by the alien. DHS notes that a credit
report or score alone would not lead to an inadmissibility
determination based on public charge because the assessment of public
charge is made in the totality of the circumstances and no one factor
or consideration (with the exception of an insufficient affidavit of
support or no affidavit of support, where required) is outcome
determinative for being found inadmissible based on public charge.
---------------------------------------------------------------------------
\671\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189 (proposed Oct. 10, 2018).
\672\ See USA.gov, Credit Reports and Scores, available at
https://www.usa.gov/credit-reports (last updated July 18, 2019)
(last visited July 26, 2019).
\673\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189 (proposed Oct. 10, 2018).
\674\ See generally Marting Realty, Inc. v. Marks, 1986 WL 4647
(Ohio Ct. App. 9th Dist. 1986) (``Credit reports are held to be
highly reliable by the business world and should be admitted where
such reliability is not challenged.'') (citation omitted).
\675\ Official Interpretation 43(c)(3)-3 to 12 CFR
1026.43(c)(3), published as part of Ability-to-Repay and Qualified
Mortgage Standards Under the Truth in Lending Act (Regulation Z), 78
FR 6408, 6607 (Jan. 30, 2013).
---------------------------------------------------------------------------
Comment: A commenter expressed concern that inclusion of credit
history in public charge determinations would amount to double counting
of some of the evidence upon which such reports and scores are based
and would already factor into the public charge determination.
Response: DHS recognizes that some of the factors enumerated in the
public charge rule may be based on similar circumstances; however, some
of the considerations may be reviewed differently depending on the
factor. However, all the factors and circumstances will be reviewed in
the totality of the circumstances without ranking the factors
numerically. DHS would consider the alien's financial liabilities and
past receipt of public benefits; the credit report and score would
simply serve as evidence of financial liabilities and status. Other
evidence may provide the same information and therefore DHS would
consider the evidence as a whole but not individually rank or score the
evidence.
Comment: One commenter stated that the guidelines in the proposed
rule regarding credit score were broad and ambiguous. A commenter
stated that using credit scores in public charge evaluation would lead
to ``arbitrary, inconsistent, and unfair'' public charge
determinations. The commenter further stated that the mechanics of
going through immigrants' credit reports and scores are impractical.
Response: DHS disagrees that the language on credit scores is broad
and ambiguous or that it would lead to an arbitrary, inconsistent and
unfair public charge determination. As indicated in the NPRM,\676\
USCIS would generally consider a credit score characterized as ``good''
or better to be a positive factor as it demonstrates an applicant may
be able to support himself or herself and any dependents assuming all
other financial records are sufficient. A ``good'' credit report is
generally near or slightly above the average of U.S. consumers,\677\
and therefore the person may be self-sufficient and less likely to
become a public charge. A poor credit report is well below the average
of U.S. consumers.\678\
---------------------------------------------------------------------------
\676\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189 (proposed Oct. 10, 2018).
\677\ MyFICO, Understanding FICO Scores 5, available at https://www.myfico.com/Downloads/Files/myFICO_UYFS_Booklet.pdf (last visited
July 26, 2019).
\678\ MyFICO, Understanding FICO Scores 5, available at https://www.myfico.com/Downloads/Files/myFICO_UYFS_Booklet.pdf (last visited
July 26, 2019).
---------------------------------------------------------------------------
Comment: Multiple commenters asked whether past poor credit would
be used as a negative factor in a public charge determination.
Response: DHS would only consider the information included in the
latest credit report and score as provided by the alien at the time of
adjudication for public charge inadmissibility purposes. The fact that
some had a previous negative or positive score will not be taken into
account in the public charge inadmissibility determination.
Comment: One commenter questioned how DHS plans to collect,
protect, and manage sensitive data surrounding credit report scores.
Another commenter noted that USCIS would be required to comply with the
storage and disposal requirements for credit information at 15 U.S.C.
1681x.
Response: DHS takes seriously its responsibility to properly
protect sensitive information in its possession.\679\ DHS follows the
Privacy Act requirements, which apply to information that is maintained
in a ``system of records'' from which information is retrieved by the
name of an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. The materials in
alien files (A-files) are considered permanent records and are
transferred to the National Archives and Records Administration 100
years after the subject's birth,\680\ and therefore not subject to the
disposal requirements of the Fair Credit Reporting Act (FCRA). To the
extent that credit information subject to the FCRA is maintained in
other agency records systems, such records will be destroyed in
accordance with applicable General and/or Agency Records Schedules
which would be in compliance with the FCRA requirements.\681\ As with
all forms and private identifiable information, DHS will follow all
applicable regulations and procedures to safeguard and protect any
sensitive information.
---------------------------------------------------------------------------
\679\ See generally Notice of Modified Privacy Act System of
Records, 82 FR 43556, 43564 (Sept. 18, 2017) (``DHS/USCIS safeguards
records in this system according to applicable rules and policies,
including all applicable DHS automated systems security and access
policies. USCIS has imposed strict controls to minimize the risk of
compromising the information that is being stored.'').
\680\ 82 FR 43556, 43564.
\681\ See 15 U.S.C. 1681w; 16 CFR 682.3.
---------------------------------------------------------------------------
Comment: A commenter indicated that if DHS includes credit reports
in the public charge determination DHS should not exclude non-U.S.
credit reports because credit reporting in the United States is
exclusively the province of private-sector corporations, this is not
the case in many countries. The commenter cited the World Bank, which
stated that at least 30 countries
[[Page 41427]]
operate public credit registries, including seven nations in the
European Union and 17 in Latin America and the Caribbean.
Response: DHS will not include credit reports from other countries
in the public charge inadmissibility determination. DHS agrees that
credit reporting systems vary significantly throughout the world,
including but not limited to how they are established, the information
collected, and the rating policy used.\682\ As explained in the NPRM,
the information obtained through a U.S. credit report may be indicative
of a person's financial status and the person's self-sufficiency in the
United States.\683\ Given that the focus of the public charge
determination is the alien's likelihood of becoming a public charge to
the United States in the future, DHS believes that the U.S. credit
report provides the best means to obtain relevant information regarding
assets, resources and financial status. As it is the case with all
factors, USCIS will assess the information obtained through a U.S.
credit report or score and its impact on the public charge
determination in the totality of the circumstances; USCIS will not base
the inadmissibility determination solely on the results of the credit
report or score.
---------------------------------------------------------------------------
\682\ The commenter cited to Margaret Miller, ``Credit Reporting
Systems Around the Globe'' (Washington; World Bank, June 2000),
available at, http://siteresources.worldbank.org/INTRES/Resources/469232-1107449512766/Credit_Reporting_Systems_Around_The_Globe.pdf
(last visited July 24, 2019).
\683\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Another commenter indicated that considering credit scores
and reports as a negative factor is directly contrary to case law,
citing to Howe v. United States ex rel Savitsky, 247 F. 292 (2d Cir.
1917). The commenter explained that in this case the immigration
inspector found the alien to be a public charge for having drawn a
check abroad which ultimately proved bad and that in a dispute arising
from contractual matter, the alien had sold the equipment at issue and
kept the proceeds.\684\ The Second Circuit reversed the decision
explaining that Congress meant the public charge provision to exclude
persons who are likely to become occupants of almshouses for want of
means with which to support themselves in the future.''
---------------------------------------------------------------------------
\684\ Howe v. United States ex rel Savitsky, 247 F. 292 (2d Cir.
1917) (He had drawn a check for $113 before leaving Canada which
proved bad and that in a dispute with one Solomon Cohen arising out
of the purchase of a milk route, Cohen charged him with having sold
some of the equipment and kept the proceeds.)
---------------------------------------------------------------------------
Response: DHS disagrees that considering credit scores and reports
as a negative factor is directly contrary to the case law established
in Howe v. United States ex rel Savitsky.\685\ In Howe, the court
criticized the public charge determination made by the immigration
inspector, finding that immigration inspector's ``latitudinarian
construction'' of the term public charge would render all other grounds
redundant because everybody could be considered a public charge.\686\
The court indicated that the public charge determination could not be
simple conjecture but that there must be some indication that an
otherwise physically fit individual were to become a public charge for
want of means to support themselves in the future before he or she
could be found inadmissible.\687\ The court did not imply or mandate
that any aspect of an individual's financial history be excluded from a
public charge determination. Additionally, the case was decided based
on the 1910 version of Section 2 of the Immigration Act of 1907; the
provision at the time did not specifically require immigration officers
to consider the alien's ``assets, resources and financial status'' as
part of the public charge determination.\688\ In contrast, with the
1996 amendments of IIRIRA, Congress specifically required immigration
officers to consider these factors as part of the public charge
determination.\689\ As explained in the NPRM,\690\ DHS considers an
alien's liabilities and information of such liabilities in the U.S.
credit report and score indicative of the state of an alien's assets,
resources, and financial status and the person's ability to be self-
sufficient.
---------------------------------------------------------------------------
\685\ See Howe v. United States ex rel Savitsky, 247 F. 292 (2d
Cir. 1917).
\686\ See Howe v. United States ex rel Savitsky, 247 F. 292, 294
(2d Cir. 1917).
\687\ See Howe v. United States ex rel Savitsky, 247 F. 292, 294
(2d Cir. 1917).
\688\ See Howe v. United States ex rel Savitsky, 247 F. 292, 293
(2d Cir. 1917). See Comp. St. 1916, Sec. 4244.
\689\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\690\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51188-89 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Many commenters remarked that immigrants are more likely
to have no credit history or an insufficient amount of information to
generate a reliable score. A commenter stated that in their experience
helping enroll immigrant populations in ACA open enrollment, credit
scores were often either unavailable or inaccurate. A commenter stated
that many immigrants are often victims of financial frauds and
financial abuse, which could negatively affect their credit score. The
commenter further stated that the only people to prosper from the
proposed rule would be the credit repair industry.
A few commenters stated that credit reports are not available in
languages other than English, which can disadvantage immigrants with
limited English proficiency from accessing their score and disputing
mistakes made to their credit. Adding to this a commenter stated that
immigrants often are not aware or are not able to correct errors on
their credit score. One commenter stated that not using credit cards
can negatively impact one's credit score even though not using credit
cards can be a financially responsible choice. Adding to this, a few
commenters stated that many people lack credit history because they are
frugal which shows a lack of likelihood of becoming a public charge.
Response: DHS recognizes that the credit reports and scores may be
unavailable or inaccurate. As provided in the NPRM,\691\ the absence of
an established U.S. credit history would not be a negative factor when
evaluating public charge in the totality of the circumstances. Absent a
U.S. credit report or score, USCIS may give positive weight to an alien
who can show little to no debt and a history of paying bills timely. An
alien may provide evidence of regular and timely payment of bills, and
limited balances on credit cards and loans. In addition, USCIS would
not consider any error on a credit score that has been verified by the
credit agency in determining whether an alien is likely to become a
public charge in the future.
---------------------------------------------------------------------------
\691\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Several commenters stated that considering credit scores
will disparately affect ``marginalized communities.'' Additionally, a
few commenters stated that using an immigrant's credit history in
public charge determinations would have a disproportionate impact on
immigrants of color; women; survivors of sexual and domestic abuse;
people with lower levels of education; and local communities where
credit scores there are lower than the national average. A commenter
stated that the use of credit scores in public charge determinations
may have the unintended consequence of trapping immigrants in a cycle
of payday loans.
Response: DHS disagrees that consideration of credit scores will
disparately affect certain groups of aliens. DHS must consider an
applicant's assets, resources, and financial status in making a public
[[Page 41428]]
charge determination.\692\ The rule abides by the statutory requirement
as provided in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), and
is consistent with congressional statements relating to self-
sufficiency set forth in 8 U.S.C. 1601. DHS does not believe that the
use of credit scores will trap people into a cycle of payday loans
since the rule in general, and the use of credit scores in particular,
do not require anyone to incur any debts.
---------------------------------------------------------------------------
\692\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Comment: A few commenters said that if public charge determinations
are made using credit reports or scores, it must be in compliance with
user duties under the FCRA. Specifically, the commenters noted that the
FCRA applies to USCIS as a Government agency,\693\ and that FCRA
requires persons to provide the consumer with a written notice if it
takes an ``adverse action'' against that person ``based in whole or in
part'' on a credit report.\694\ A USCIS denial would qualify as an
``adverse action'' since it would be denying a ``license or other
benefit granted by a governmental instrumentality required by law to
consider an applicant's financial responsibility or status.'' \695\
USCIS would be required to provide the required written notice required
under the FCRA. Some commenters stated that the burden caused by
complying with the FCRA would outweigh the benefits from using the
credit score.
---------------------------------------------------------------------------
\693\ 15 U.S.C. 1681a(b) (including government agencies in the
definition of persons).
\694\ 15 U.S.C. 1681m(a).
\695\ 15 U.S.C. 1681b(a)(3)(D).
---------------------------------------------------------------------------
Response: DHS appreciates the comments. DHS agrees that it would be
subject to FCRA when it relied on whole or on part on a credit report
or credit score obtained from a credit report or other consumer report
to deny a benefit. In such cases, USCIS will include the information
required by 15 U.S.C. 1681m(a) as part of its communication with
applicants. However, DHS disagrees that the burden imposed upon USCIS
would outweigh the benefits from using a credit score and will retain
the score as part of the rule.
6. Financial Means To Pay for Medical Costs
Comment: One commenter supported the proposal to assess whether an
immigrant has private medical insurance. Another commenter disagreed
with the proposal to include financial means to cover medical costs. A
couple commenters stated that the requirement that an immigrant have
sufficient assets to cover the costs of medical care is vague and
impossible to determine fairly. One commenter said considering lack of
private health insurance seems ``outlandish'' when fewer than half of
private employers in the United States provide health insurance to
their workers. Similarly, a commenter said that many people who are
employed do not have access to affordable healthcare coverage. Another
commenter stated that immigrants are more likely than citizens to work
in low-income industries that do not provide health insurance or pay
enough for employees to afford health insurance. One commenter
suggested the agency provide more information on how an immigrant can
obtain insurance, since employer insurance is not always an option.
Some commenters stated that low-wage workers should not be denied
status because they lack health insurance. A couple commenters remarked
that the lack of private health insurance in the United States provided
the rationale behind the passing of the ACA. An individual commenter
stated that the proposed financial means to pay for medical costs
factor introduces a conundrum in deciding which will be weighted more
heavily: Having private insurance now or previously having used public
insurance. Another commenter stated that the proposed standard would be
double counting with other factors in the public charge determination.
Response: As explained in the NPRM, USCIS will consider whether a
person has health insurance or has the household assets and resources
to pay for reasonably foreseeable medical costs.\696\ In addition, as
discussed in section III.R. below, based on DHS's review of the
relevant data, DHS has determined to designate a heavily weighted
positive factor for having private health insurance, so long as such
insurance is appropriate to the expected period of admission, and the
alien does not receive premium tax credits under the ACA for such
insurance. DHS understands that certain individuals may choose to
forego public health insurance, such as Medicaid, because of the impact
on public charge. The rule, however, abides by the statutory
requirement as provided in section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), and is consistent with congressional statements relating to
self-sufficiency in 8 U.S.C. 1601. As Congress indicated that the
immigration policies continues to be that, ``aliens within the Nation's
borders not depend on public resources to meet their needs, but rather
rely on their own capabilities and the resources of their families,
their sponsors, and private organizations.'' \697\ Financial means to
pay for reasonably foreseeable medical costs is part of being self-
sufficient. In evaluating the alien's ability to pay for reasonably
foreseeable medical costs, DHS will consider whether the alien has
private health insurance (which, on its own, can constitute a heavily
weighted positive factor in certain circumstances, as described below)
or other household assets and resources. DHS notes that such an
evaluation may in some cases require DHS to consider an alien's
publicly funded or subsidized health insurance that is not defined as a
public benefit under this rule. As previously indicated, DHS will not
base the inadmissibility determination on simply one factor but will
review all the factors and circumstances in the totality of the
circumstances without a rating or numerical standard.
---------------------------------------------------------------------------
\696\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189 (proposed Oct. 10, 2018).
\697\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, section 400, 110
Stat. 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 1601(2)).
---------------------------------------------------------------------------
Comment: Some commenters stated that the proposed rule, with its
statement that ``individuals in poor to fair health are more likely to
access public benefits to treat their medical condition'' erroneously
suggests that all immigrants suffer from preexisting conditions and
that they will all access federally subsidized health insurance.
Response: DHS disagrees that the rule assumes that all immigrants
suffer from pre-existing conditions and obtain federally subsidized
health insurance. Whether a person has a medical condition is but one
factor in the totality of the circumstances. DHS will also consider
whether the alien has the resources to pay for reasonably foreseeable
medical costs, and DHS will consider it a heavily weighted positive
factor if the alien has private health insurance, so long as such
insurance is appropriate for the expected period of admission and the
alien does not receive premium tax credits under the ACA for such
insurance.
Comment: Another commenter stated that requiring the financial
means to pay for medical costs is in direct conflict with the goals of
the ACA.
Response: DHS disagrees that requiring financial means to pay for
medical costs is in conflict with the ACA. Although the ACA provides
for affordable health insurance for a greater number of people, it also
limits coverage to categories of immigrants eligible for subsidies and
assistance through the
[[Page 41429]]
ACA.\698\ DHS is also not limiting the ability of people to receive
subsidized health insurance, through the ACA or other programs.
Insurance obtained from a private health insurance provider through the
ACA marketplace would be considered private health insurance under this
rule, although, as explained more fully in section III.R below, private
health insurance for which the alien receives premium tax credits under
the ACA would not qualify as private health insurance for purposes of
the heavily weighted positive factor.
---------------------------------------------------------------------------
\698\ See Healthcare.gov, Immigration status and the
Marketplace, available at https://www.healthcare.gov/immigrants/immigration-status (last visited July 24, 2019).
---------------------------------------------------------------------------
Comment: A commenter stated that the agency should provide the data
used to determine the cost of caring for chronic disease treatment and
that the agency should further their analysis to reflect the cost to
taxpayers. They further stated that DHS should illustrate how
immigrants could access health insurance.
Response: The NPRM included a discussion of healthcare costs, and
the importance of considering an individual's health when making the
determination of public charge. DHS does not believe a more detailed
analysis of the costs associated with chronic disease treatment is
necessary. DHS does not have current information on all available
health insurance plans, however, an applicant can seek information
through HHS or through their local government.
Comment: Many commenters stated that this factor would negatively
and disproportionately affect people with disabilities; people with
chronic health conditions; immigrants of color; Asian Americans;
victims of human trafficking; farmworkers; and survivors of sexual
abuse and violence.
Response: DHS does not intend to disproportionately affect such
groups. The rule abides by the requirements as provided in section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), and is consistent with
congressional statements relating to self-sufficiency in 8 U.S.C. 1601.
As Congress indicated that the immigration policies continues to be
that, ``aliens within the Nation's borders not depend on public
resources to meet their needs, but rather rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations.''
M. Education and Skills
1. Education
Comment: A commenter said that it should be unlawful to preclude
individuals from immigrating to the United States for lack of education
and that the new definition of public charge, in general, benefits the
wealthy, putting them above hardworking families that actually help the
country's economy. Another commenter equated the education requirement
to a wealth test with no bearing on an individual's potential. In
contrast, a commenter stated that education should be considered in a
public charge determination because it is a key indicator of welfare
use. The commenter added that, while the majority of immigrants come
for work and most are employed, their lack of education results in low
average income and heavy use of means-tested benefits programs. The
commenter expressed support for an even higher standard and suggested
that if an applicant has only a high school education or did not
graduate high school, the burden must be on the applicant to show they
will not be a public charge. Another commenter stated that, while the
proposed evidentiary criteria to support the education requirement are
all reasonable to consider as contributing factors, it is critical that
they not be treated as separate elements, but as distinct ways to prove
education and skills. The commenter concluded that treating each of
these elements as separate factors is inconsistent with congressional
intent and the general concept of a totality of the circumstances
approach.
Response: When Congress amended section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), it directed officers to consider the alien's
education and skills, and the rule implements Congress's directive on
this mandatory statutory factor. Additionally, DHS cited in the NPRM to
various studies and data supporting the concept that a person's
education and skills, including skills in the English language, are
correlated to an individual's self-sufficiency and therefore a positive
factor.\699\ The goal of this rule is to ensure an alien's self-
sufficiency and therefore, the implementation of this factor, as
proposed by the NPRM, is consistent with congressional statements
relating to self-sufficiency in 8 U.S.C. 1601. DHS will review and
consider evidence brought forward by the applicant, including, but not
limited to, evidence of the alien's employment history; an alien's
degrees; occupational skills, licenses or certifications; and evidence
of the alien's and proficiency in English.\700\
---------------------------------------------------------------------------
\699\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189-96 (proposed Oct. 10, 2018).
\700\ See 8 CFR 212.22(a).
---------------------------------------------------------------------------
Comment: A commenter stated that the proposed rule assumes that
individuals who have a highly recognized degree or a unique skill are
more likely to succeed in the United States, but these individuals
often experience downward mobility post-migration because their foreign
degrees, credentials, and work experience are not directly transferable
to the United States job market. The commenter further stated that
recent data shows education is a misguided factor in a public charge
determination citing one study that found that even though many first-
generation Americans may face issues with lower education levels,
subsequent generations dramatically improve their educational profiles.
Another commenter stated that being employed or currently enrolled in
STEM (science, technology, engineering, and mathematics) or information
technology (IT) fields should be listed as a positive factor.
Response: As previously indicated, education and skills is a
mandatory factor established by Congress.\701\ DHS would individually
review a person's education and skills to determine whether they are
able to maintain or obtain employment to avoid becoming a public
charge. As occupations vary in education and skills requirements, DHS
is not limiting its review to specific education or occupations.
Therefore, DHS does not find it necessary to specify in the rule
education and occupations in STEM or other similar fields. It is DHS's
intent that officer should examine every consideration, including
education and skills, set forth by the alien in the totality of the
circumstances when ascertaining whether an alien is likely to become a
public charge based upon the applicability of the alien's education and
skills to available employment at the time of adjudication.
---------------------------------------------------------------------------
\701\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Comment: Commenters stated that the education requirement
discriminates against farm workers and other trade workers because they
may not have a formal education, but could have been working in the
United States for many years. A commenter indicated that, while
individuals that lack a high school or equivalent education generally
earn less than persons with more formal education, they have many
opportunities for gainful employment. The commenter noted that there
are numerous jobs with no formal educational requirement, primarily in
the agricultural, food processing and preparation, and building trades
sectors, which are essential to the economy.
[[Page 41430]]
Another commenter said consideration of an immigrant's educational
level is impermissible under the governing statute, in light of that
factor's failure to accurately predict a likelihood of reliance on
public benefits. The commenter suggested that studies have shown that
low-skilled and low-educated immigrant men demonstrate ``substantially
higher rates of employment'' than do comparable native-born men,
particularly because of migrant selectivity in deciding where to locate
and work. The commenter concluded by saying lack of a formal secondary
education does not indicate, among immigrant populations, a likelihood
of becoming a public charge and indicates the contrary.
Response: As indicated above, education is one of the mandatory
factors in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) that DHS
must consider in the public charge determination. Employment history
will also be considered in the public charge inadmissibility
determination to determine whether the alien may obtain or maintain
employment. Therefore, while the lack of formal education such as the
lack of a high school diploma or other education, are generally a
negative consideration, the alien's employment history as well as any
occupational skills, certifications or licenses are generally positive
considerations. DHS agrees that there are many opportunities for
gainful employment, but DHS disagrees that consideration of an
immigrant's educational level is impermissible as it is part of
Congress' mandatory factors to consider in section 212(a)(4) of the
Act, 8 U.S.C. 1182(A)(4). Additionally, the NPRM showed a clear link
between increased education and increased employability, employment
productivity, as well as earnings, and a reduction in public benefits
use.\702\
---------------------------------------------------------------------------
\702\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189-97 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS will consider a range of evidence as to education and skills.
To clarify additional types of documentation that establishes a steady
employment history, DHS has revised the evidentiary considerations in
the rule to indicate that applicants should include federal tax return
transcripts for the previous 3 years, if applicable, or, if the alien
was not required to file federal income taxes, other probative evidence
of the alien's employment history including Form W-2 for the previous 3
years.
Comment: Some commenters stated that an education requirement would
be more difficult for immigrant women, stating that immigrant women
from certain countries, such as Mexico, El Salvador, and China, are
less likely to have completed high school, and are therefore, less
likely to overcome a negative assessment based on this factor.
Similarly, a commenter stated that the negative weight for lack of a
high school diploma and lack of employment history would impact a
significant portion of women from Asian countries who are adjusting
their status.
Response: DHS will examine the totality of the individual's
circumstances, regardless of the individual's nationality, sex or other
characteristic, to assess whether the individual is likely to become a
public charge in the future. Among the factors to consider, education
and skills is but one factor and is not outcome determinative on its
own. When evaluating whether the alien has adequate education or skills
to either obtain or maintain employment, USCIS' considerations include,
but are not limited to the alien's past employment history; whether the
alien has a high school degree or its equivalent, or any higher
education; whether the alien has any occupational skills,
certifications or licenses; and the alien's proficiency in the English
or other languages in addition to English. DHS also encourages the
applicant to bring forward any consideration he or she believes are
relevant to the determination whether the alien has sufficient
education or skills to not become a public charge at any time in the
future.
Comment: A commenter stated that the level and quality of the
education attained by a prospective immigrant can help predict how
likely they are to become a public charge and suggested prioritizing
higher education in the immigration process. The commenter stated that
immigrants with a high school education or less should not qualify for
a green card unless the applicant holds a skill(s) that is in high
demand and can be expected to earn a high enough salary that they would
not need to enroll in any welfare programs. Another commenter said not
enough weight is being given to an education standard, noting that
while 37 percent of households headed by noncitizens with at least some
college use welfare, the rate rises to 81 percent for households headed
by noncitizens with only a high school diploma or less.
Response: Congress legislates which individuals should be qualified
for lawful permanent resident status, and not DHS. Therefore, DHS
cannot implement the suggestion that immigrants with a high school
education or less should not qualify for lawful permanent resident
status unless the applicant holds a skill that is in high demand and
for which the market pays a high salaries. Additionally, DHS disagrees
that it does not give sufficient weight to the education standard: The
public charge assessment considers each factor and circumstance
applicable to the alien and each factor is accordingly weighted to
determine whether an alien will be self-sufficient while in the United
States. The DHS standard recognizes, consistent with the statute, that
it is possible that an alien's other positive factors may outweigh the
lack of formal education with the result that an alien is not deemed to
be likely at any time in the future to become a public charge.
Comment: Several commenters expressed concern over the negative
assessments that individuals with disabilities may encounter under the
education and skills factor in public charge determination. One
commenter noted that in order to work and go to school, many
individuals with disabilities rely upon Medicaid-funded services that
would be considered in the public charge inadmissibility
determination's assets, resources and financial status factor, and will
also impact the education and skills factor.
A few commenters added that unemployment rates for individuals with
disabilities are drastically higher than those for individuals without
disabilities. Many commenters addressed how the education requirements
might negatively affect immigrants with disabilities, arguing that
disparity in education and educational barriers for people with a
disability have been ongoing in the United States for generations,
resulting in lower rates of high school completion, and great
disparities exist when comparing the attainment of higher-level
degrees. A couple of commenters said attaining education and employment
are areas where many people with disabilities often face significant
discrimination based on their disability.
Response: DHS appreciates the comments and understands that
employment opportunities individuals with disabilities are different.
Officers will not find an individual inadmissible solely on account of
his or her education, skills, or his or her disability. Rather,
officers will assess, based on the totality of the circumstances,
whether the individual is likely to be self-sufficient. As indicated in
the NPRM,\703\
[[Page 41431]]
Federal laws \704\ and regulations prohibit discrimination against
individuals with disabilities. DHS recognizes that individuals with
disabilities and other conditions make substantial contributions to the
American economy. DHS has analyzed these laws and regulations, and has
determined that assessing an alien's education and skills, including
work history, is not inconsistent with adhering to non-discrimination
requirements with respect to individuals with disabilities.
---------------------------------------------------------------------------
\703\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51184 (proposed Oct. 10, 2018).
\704\ See, e .g., the Rehabilitation Act of 1973, Pub. L. 93-
112, 87 Stat 355 (Sept. 26, 1973) (codified as amended, in pertinent
part, at 29 U.S.C. 794), the Americans with Disabilities Act of
1990, Pub. L. 101-336, 104 Stat. 327 (July 26, 1990) (codified as
amended at 42 U.S.C. 12101-12213), and the Individuals with
Disabilities Education Act (IDEA), Pub. L. 108-446, 118 Stat 2647
(Dec. 3, 2004).
---------------------------------------------------------------------------
Comment: A commenter expressed concern that adjudicators would
apply the education and skills factor inconsistently with respect to
the mission and duties of certain religious workers. The commenter
stated that qualifying religious workers come from diverse educational
backgrounds and perform a diverse range of work duties, depending on
the nature and mission of the religious order. The commenter stated
that work duties may include duties that do not produce any income at
all, such as meditation and prayer, in those orders that pursue a more
monastic way of life. Another commenter stated that the proposed
education and skills factor could negatively impact those seeking visas
as religious workers.
A commenter suggested that DHS exempt special immigrant religious
worker category \705\ from public charge inadmissibility determinations
or clarify that these workers would still be admissible. The commenter
stated that the regulations define a religious vocation as a ``formal
lifetime commitment . . . to a religious way of life'' and cover
religious workers who have taken a vow of poverty. The commenter
indicated that as part of the vow of poverty, many religious workers
relinquish personal property and assets, and are not permitted by their
religious order to receive compensation. Instead, their religious order
or community obligates itself to provide non-salaried support to its
vowed member, such as room and board, health insurance, a small
allowance, etc. In addition, the commenter stated that a religious
order may be obligated to support this member as long as they remain a
member. Given that ``assets, resources, and financial status'' is one
of the main factors in the public charge determination, the commenter
expressed concern that religious workers would be immediately
disadvantaged.
---------------------------------------------------------------------------
\705\ See INA section 101(a)(27)(C), 8 U.S.C. 101(a)(27)(C).
---------------------------------------------------------------------------
Additionally, the commenter expressed concern about the
administrative and economic burden imposed on religious organizations
to demonstrate that special immigrant religious workers are not likely
to become a public charge. The commenter indicated that sponsors of
religious workers may not possess the financial ability of typical U.S.
employers. The commenter also stated that the imposition of additional
documentary and form requirements to demonstrate that a religious
worker is not likely to become a public charge would increase costs to
the religious worker sponsor. The commenter indicated that these
organization will maximize their resources to serve their mission in
the Catholic Church, and that to impose additional economic burdens on
U.S. religious organizations seems contrary to American values of
religious freedom and liberty.
Finally, the commenter expressed concern about the rule's negative
impact on individuals and communities in the United States. The
commenter stated that many international religious workers play a vital
role in the daily lives of individuals and families in the United
States. In addition to the spiritual and ministerial role played, many
religious workers also participate in activities and duties supporting
the communities directly. Therefore, the commenter requested
clarification these special immigrant religious workers continue to
qualify for the status or be exempt from public charge.
Response: DHS acknowledges that special immigrant religious
workers, and immigrants who perform religious work generally, provide
valuable contributions to the United States and are in a special
position, as acknowledged by Congress in the special immigrant
religious worker classification.\706\ Congress, however, did not exempt
these workers from the public charge ground of inadmissibility and,
therefore, DHS will not exempt them in this rule. As noted elsewhere in
this final rule, DHS believes that this regulation, and other
provisions of the INA and implementing regulations, can be administered
consistently with the RFRA. DHS acknowledges that any individual or
organization who identifies a substantial burden on his, her, or an
organization's exercise of religion such that the RFRA may require
specific relief from any provision of this rule may assert such a
claim.\707\
---------------------------------------------------------------------------
\706\ For example, special immigrant religious workers under INA
section 101(a)(27)(C), 8 U.S.C. 1101(a)(27)(C) qualify for
adjustment of status under INA section 245(a), notwithstanding
certain bars under INA section 245(c).
\707\ Note that that individuals ``located outside sovereign
United States territory at the time their alleged RFRA claim arose''
are not ``person[s]'' within the meaning of RFRA. Rasul v. Myers,
512 F.3d 644, 672 (DC Cir.), cert. granted, judgment vacated on
other grounds, 555 U.S. 1083 (2008).
---------------------------------------------------------------------------
Among the requirements for a special immigrant religious worker,
the sponsoring religious organization must provide an attestation,
attesting, among other things, that the employee will be employed at
least 35 hours a week, and that the worker will be provided a complete
package of salaried or non-salaried compensation.\708\ As part of the
petition, the employer provides detailed evidence as to the
compensation package being offered to the religious worker, which may
include salaried and non-salaried compensation, such as room, board and
other remuneration.\709\ Additionally, as part of the attestation, the
sponsoring religious organization also has to demonstrate the ability
and intention to compensate the alien at a level at which the alien and
accompanying family members will not become public charges, and that
funds to pay the alien's compensation do not include any monies
obtained from the alien, excluding reasonable donations or tithing to
the religious organization.\710\ To the extent that the sponsoring
religious organization complies with these evidentiary requirements
with respect to the religious worker's compensation package, DHS does
not anticipate, in general, that special immigrant religious workers,
including those who have taken a vow of poverty are disadvantaged
regarding consideration of their income, assets and resources because
the sponsoring religious organization provides compensation to the
religious worker such that the religious worker would generally be
relying on private rather than on public benefits.
---------------------------------------------------------------------------
\708\ See 8 CFR 204.5(m)(7)(vi), (vii), and (xii).
\709\ See 8 CFR 204.5(m)(10).
\710\ See 8 CFR 204.5(m)(7)(xii).
---------------------------------------------------------------------------
Additionally, DHS does not believe that considering the education
and skills of a religious worker applicant may result in inconsistent
adjudications or violate due process. As explained above, DHS is
required to consider an applicant's education and skills as part of the
public charge inadmissibility determination. As provide in the rule,
when considering an alien's education and skills, DHS will consider
whether the alien has adequate education and skills to either obtain or
maintain
[[Page 41432]]
employment in a lawful industry with income that is sufficient to avoid
being more likely than not to become a public charge. In the context of
a special immigrant religious worker, the relevant is question is
whether the alien's skills are suitable for the alien's intended
occupation. DHS will not assume that the religious worker will be
likely to receive a public benefit because of the nature of the
employment or lack of income at the indicated threshold. Instead, DHS
would consider provisions for housing, food, and medical care provided
by the religious institution as available resources.
Further, this rule is not intended to negatively impact special
immigrant religious workers or communities in which such workers would
reside. Rather, this rule is aimed at better ensuring that those
seeking admission to the United States are self-sufficient and rely on
their own resources and the resources of their sponsors and private
organizations.
2. Language Proficiency
Comment: A commenter said that it should be unlawful to preclude
individuals from immigrating to the United States because of a language
barrier and that the new definition of public charge, in general,
benefits the wealthy, putting them above hardworking families that
actually help the country's economy. One commenter said the United
States has no official language, so there should be no language
requirement. Many commenters stated that requiring English proficiency
would mark a fundamental change from the nation's historic commitment
to welcoming and integrating immigrants. A couple of commenters stated
that the rule acknowledges the centrality of English language skills to
economic self-sufficiency, but individuals commonly improve their
English skills through participation in education programs and rely on
Medicaid or other public benefits to enable them to succeed in their
English language classes. A commenter indicated that the expanded
negative weights for English language proficiency and educational/
skills attainment conflict with longstanding policy and principles that
support upward mobility and self-sufficiency.
Some commenters indicated that individuals who rely on Medicaid or
other public benefits to enable them to succeed in their English
language classes could be discouraged from continuing their education
and improving their employability by fear of being found a public
charge. Some commenters cited research showing a strong connection
between better basic skills and higher earnings, which means that as an
immigrant improves their reading, math, and spoken English skills, they
will be better able to contribute economically to American society.
Stating that data demonstrates that the use of cash benefits by
immigrant populations that are not English-proficient is so low as to
be within the study's margin of error, a commenter reasoned that many
immigrants with limited English proficiency (LEP) are taxpaying
business owners, or work in white collar or blue-collar jobs. The
commenter further noted that although lack of English-speaking skills
may be a hindrance to obtaining certain employment, proficiency in a
foreign language may bolster an immigrant's ability to obtain other
employment. One commenter suggested investing in English language
learning programs instead of ``punishing'' immigrants for lack of
English language proficiency. Another commenter reasoned that the
ability to immigrate lawfully increases opportunities and ability to
improve English and by limiting access to legal immigration, the rule
would perpetuate an underclass of immigrants who continue to be
prohibited from service that could improve their lives, including their
English.
Response: DHS disagrees with the commenters' suggestions to remove
English language proficiency as a consideration in the public charge
inadmissibility determination. DHS is not mandating English proficiency
for admissibility. DHS recognizes that individuals who lack English
proficiency may already participate in the workforce or may be able to
obtain employment. However, as discussed in the NPRM,\711\ people with
the lowest English speaking ability tend to have the lowest employment
rate, lowest rate of full-time employment, and lowest median earnings.
Further as illustrated in Table 24 in the NPRM, among the noncitizen
adults who speak a language other than English at home, the
participation rates for both cash and non-cash benefits are higher
among those who do not speak English well, or at all, than among those
who speak the language well. The margin of error of an estimate, and
likewise its standard error, are affected by the number of people
surveyed to construct the estimate, which in the case of a percentage
or rate will include those who respond that they have the
characteristic and those who respond that they do not. A relatively
large standard error should not be interpreted to mean that the
underlying rate being estimated is low. Findings from the SIPP tables
were only discussed in the text of the NPRM if they are significant at
the 95 percent confidence level.
---------------------------------------------------------------------------
\711\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51195-96 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS understands that aliens may improve their English skills in the
future. The Form I-944 does allow a person to identify any courses or
certifications in English. Furthermore, DHS is not mandating English
proficiency for admissibility. Proficiency in English is one positive
aspect for purposes of the education and skills factor to establish an
alien's ability to obtain or maintain employment and that the alien,
therefore, would be self-sufficient. Lack of English proficiency alone
would not establish public charge inadmissibility, but would be one
consideration in the totality of the circumstances.
Comment: One commenter stated that requiring English language
proficiency could extend to all kinds of visas, which could have a
negative impact on tourism.
Response: DHS reiterates that is not imposing an English
proficiency requirement on nonimmigrants or immigrants--it is merely a
consideration within the totality of the circumstances when determining
for an immigrant applying for adjustment of status whether the alien is
more likely than not to become a public charge in the United States. As
previously discussed, DHS has removed the forward-looking aspect of the
public benefits condition for extension of stay and change of status
applications. Therefore, lack of English proficiency will not impact
nonimmigrant visitors or the tourism industry. Further, nonimmigrants
seeking extension of stay or change of status are not subject to the
public charge ground of inadmissibility under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4). Nonetheless, B nonimmigrant visitors would
have to establish that they have maintained their status and that they
have not received, since obtaining the nonimmigrant status that they
are seeking to extend or change, any public benefits as defined in 8
CFR 212.21(b), for 12 months in the aggregate within a 36-month period.
Comment: A few commenters stated that most people who settle here
permanently will develop English proficiency by the time they become
citizens. These commenters reasoned that this is why is there is no
English language test until an individual is being naturalized and that
this method provides several years for immigrants to
[[Page 41433]]
immerse themselves in the English language. Another commenter stated
that Congress made English proficiency a requirement for citizenship
and not the initial stage of becoming a legal permanent resident and
that imposing an English proficiency requirement in this rule bypasses
Congress. A commenter stated that the rule penalizes people for
speaking languages other than English, an English proficiency
requirement places strain on shared heritage as a source of social
support and resiliency, as well as creates redundancy given that our
immigration systems requirement of English fluency for citizenship. A
commenter asserted that while English has long been a requirement for
those seeking to become naturalized citizens of the United States, the
rule would create an English language requirement for nonimmigrant
visas, family-based, and employment-based visas, even when a language
requirement is already a consideration, and even where it is
irrelevant. A commenter stated that the proposed English-language
proficiency factor would reduce family reunification.
Response: DHS is not imposing an English proficiency requirement or
as a factor that is outcome determinative in the public charge
determination. English proficiency is among the considerations
evaluated when assessing education and skills; the alien may submit any
evidence relevant to the factor.
DHS understands that certain individual's English will improve over
time in the United States and that the ability to read, write and
understand the English language is tested as part of naturalization
proceedings. However, DHS has established, through data presented in
the NPRM, that an individual's inability to speak and understand
English may adversely affect an alien's employability, and may increase
receipt of public benefits.\712\ Therefore, DHS will consider the
applicant's proficiency as one of the consideration for purposes of
assessing education and skills; DHS will consider any factor applicable
to the alien in the totality of the circumstances. DHS would also
consider whether the alien is already employed or has education and
skills that would allow the alien to obtain or maintain employment and
avoid becoming a public charge.
---------------------------------------------------------------------------
\712\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51190-97 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Some commenters suggested that including English
proficiency in the factor discriminates against deaf immigrants,
individuals with hearing or speech disabilities, individuals who
communicate through assistive devices, and immigrants with intellectual
and developmental disabilities.
Response: DHS disagrees that the rule discriminates against deaf
immigrants or other disabilities. DHS does not mandate English
proficiency as a pre-requisite for legal immigration or as a
determinative factor within the public charge inadmissibility
determination. Adjudicators would not consider it a negative factor for
a deaf immigrant to read and write English but not speak it. And in
view of ADA requirements applicable to employers, adjudicators would
give equal weight to a deaf immigrant's ability to communicate through
American Sign Language. An alien's Form I-693 may also establish that a
person has a hearing or speech disorder, for which DHS would provide
the appropriate accommodation for any interview. Although DHS may
consider any medical condition in the totality of the circumstances,
the fact that an alien is deaf or hard of hearing or has hearing or
speech disabilities, communicates through assistive devices, or that
the alien has intellectual and developmental disabilities will not
alone lead to a determination of inadmissibility based on the public
charge ground.
Comment: Some commenters stated that USCIS does not have the
authority to impose an official language and that there is no law that
allows the Government to prefer those who speak English over those with
LEP. Others stated that considering English proficiency in the public
charge determination violates constitutional and statutory mandates
prohibiting language-based discrimination, which the Supreme Court has
interpreted as a form of national origin discrimination. One commenter
stated that by discriminating based on English language proficiency the
proposed rule violates laws banning national origin discrimination.
Several commenters cited several Federal civil rights acts that show
LEP persons are protected from discrimination on the basis of English
proficiency and those acts included Title VI, the Civil Rights Act, the
ACA, and more. Other commenters indicated that the INA, the U.S.
Constitution's Equal Protection Clause and other authority demonstrate
that individuals cannot be discriminated against on the basis of LEP.
Many commenters stated that consideration of English language
proficiency would disproportionately impact women with LEP, citing to
studies indicating that women with LEP are less likely to participate
in the labor force than men and more than twice as likely to work in
low-wage service occupations as women with English proficiency, and
older immigrants with LEP. Another commenter stated that the proposed
rule will cause additional harm to trafficking survivors who have yet
to gain proficiency in English because they have newly entered the
United States or have been intentionally barred from learning English
or accessing education by their traffickers. Another commenter said
that DHS's analysis fails to account for the fact that many immigrants
reside in multigenerational households where the English-speaking
capacity of younger generations serves to benefit older generations
that do not speak English as readily. The commenter also noted that the
vast majority of immigrants to the United States have not been English-
speaking and this has not prevented immigrants from becoming
contributing members of their communities. Some commenters addressed
the adverse impact of the rule on immigrants of Asian descent because
nearly three out of four speak languages other than English at home and
35 percent have limited English proficiency. Other commenters stated
that this requirement favors immigrants from wealthier, European
countries and potentially disfavor immigrants from Latin America,
Africa, Asia, the Caribbean, Asia, South America and more.
Response: DHS disagrees that the rule imposes a language
requirement or impedes LEP individuals from entering the United States.
DHS is not imposing an English proficiency requirement for admission to
the United States, but solely uses English proficiency as one
consideration among others when assessing an alien's education and
skills. Additionally, DHS disagrees that considering an alien's
proficiency in the English language as a consideration impermissibly
discriminates on the basis of national origin or otherwise violates the
Equal Protection Clause. Courts have applied rational basis scrutiny to
immigration regulations applicable to aliens,\713\ and there is a
[[Page 41434]]
rational and non-discriminatory basis for consideration of English
proficiency as an element of the education and skills factor. As
explained in the NPRM, consideration of English proficiency in
determining whether an applicant is likely to become a public charge is
based on the fact that an inability to speak and understand English may
adversely affect whether an alien can obtain employment,\714\ which is
consistent with the Census Bureau study cited in the NPRM.\715\ During
the drafting of this final rule, DHS also considered the Social
Security Administration analysis published in that agency's notice of
proposed rulemaking that showed high levels of labor market
participation among individuals with LEP, and an increase in LEP labor
market participants over time.\716\ Upon considering this information,
DHS believes, however, that while individuals with LEP may be working
in the United States, the jobs these individuals may be holding low
skilled jobs which are typically available at lower pay. Because the
purpose of this rule is to ensure that aliens are self-sufficient, such
lower paying jobs may not denote the same level of self-sufficiency as
jobs that may be held by an individual who are able to effectively
communicate in English and who may be employed in a higher skilled,
higher paying job. Therefore, DHS has retained the consideration of
English proficiency.
---------------------------------------------------------------------------
\713\ Korab v. Fink, 797 F.3d 572, 577-79 (9th Cir. 2014)
(``[F]ederal statutes regulating alien classifications are subject
to the easier-to-satisfy rational-basis review . . . Although aliens
are protected by the Due Process and Equal Protection Clauses, this
protection does not prevent Congress from creating legitimate
distinctions either between citizens and aliens or among categories
of aliens and allocating benefits on that basis . . . The difference
between state and federal distinctions based on alienage is the
difference between the limits that the Fourteenth Amendment places
on discrimination by states and the power the Constitution grants to
the federal government over immigration.'') (citation omitted);
Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir 2001) (citing Lake v.
Reno, 226 F.3d 141, 148 (2d Cir. 2000) (``We have recently
recognized that a `highly deferential' standard is appropriate in
matters of immigration . . . .'')).
\714\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51195 (proposed Oct. 10, 2018).
\715\ See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census
Bureau, How Does Ability to Speak English Affect Earnings? 2 (2005),
available at https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf (last visited July 26, 2019).
\716\ Removing Inability To Communicate in English as an
Education Category, Proposed Rule, 84 FR 1006, 1008 (Feb. 1, 2009).
(``In absolute numbers, the working age population (ages 25-64) with
LEP increased from approximately 5.4 to 17.8 million between 1980
and 2016, while more than doubling, from 5.1% to 10.5%, as a
percentage of the population. Within this group, the number of
individuals who spoke no English more than quadrupled from
approximately 682,000 to 2.8 million (representing growth from 0.6%
to 1.7%, as a percentage of the working age population). Between
1980 and 2016, the number of non-English speaking workers in the 25-
64 age range grew from approximately 373,000 to 1.7 million. During
the same period, the labor force participation rate for working age
individuals who speak no English increased from approximately 54.7%
to 61.5%.41. Notably, considering the working age population with
``less than high school diploma,'' the 2016 labor force
participation rate for those speaking no English (60.5%) surpassed
the labor force participation rate of those speaking ``only
English'' (48.9%). In 1980, the reverse was true; working age
individuals with less than a high school diploma speaking only
English had a 60.7% labor force participation rate that exceeded the
54.5% rate for those speaking no English. The increase in labor
force participation by individuals who lack English proficiency may
be in part due to the increase in low-skilled work in the national
economy.'' (internal citations omitted)).
---------------------------------------------------------------------------
The consideration of English proficiency is thus based on the
factually neutral likelihood of someone obtaining sufficient employment
to avoid becoming a public charge and not on a discriminatory motive.
The alien is not precluded from bringing forth any other consideration,
which will be considered under the circumstances of the particular
alien.
Comment: A commenter stated the agency should indicate how it would
test English language proficiency, as developing a test similar to the
citizenship test would be costly in terms of development, training for
immigration officers, and the time it takes to conduct the test at each
individual interview. A few commenters said the rule has no fair or
narrowly tailored process for assessing language ability, which will
result in arbitrary decisions and will lead to abuse of discretion and
discriminatory conduct. The commenters also stated that the proposed
rule does not explain how DHS will make this determination and does not
explain what level of English language proficiency is needed, how
individuals can demonstrate that ability, or how staff will verify the
appropriate level. A few commenters stated that, if English proficiency
is to be considered, there needs to be a clear definition for what that
means and how it will be determined and not left to the USCIS' opinion
or sole determination. Another commenter expressed similar concerns
over how the English proficiency requirement would be measured,
remarking that the NPRM does not indicate what tests might be employed,
whether they would be standardized, what questions might be asked so
that a test is administered uniformly, whether an adjudicator would
perform the test, whether there would be exceptions or accommodations
available, whether the test would be in writing or administered orally,
and how an officer would evaluate an applicant's proficiency in other
languages.
Response: DHS disagrees with some commenters' assessment that the
current content of the NPRM and the related documents provided as part
of the proposed rulemaking insufficiently outlines the considerations
that DHS will be employing to assessing the alien's education and
skills. Evidentiary requirements for purposes of the public charge
determination are outlined in the rule and in Form I-944, which
includes questions on education and language skills. In general,
certifications in a language or other evidence demonstrating an alien's
education in the English and any other languages, for example, may
demonstrate that the alien has attained some proficiency in the English
language or another language. DHS is not requiring an English
proficiency written test or provide a reading or writing test. Instead,
DHS would review the documentation of English proficiency such as
certifications or an alien's transcript for a course of study that was
primarily in English (such as a native speaker's secondary school
transcript). In addition, USCIS may confirm an alien's speaking and
understanding of the English language through the question and answer
process of the I-485 form during the adjustment of status interview.
Comment: A commenter stated that English proficiency is not
required for employment in the United States and cited employment
statistics that indicate there is demand for a workforce that is not
necessarily proficient in English. Other commenters asserted that the
proposed rule fails to consider that immigrants may travel and secure
employment in other areas where multiple languages are spoken alongside
English. Similarly, other commenters indicated that this rule assumes
that non-English speakers cannot perform jobs where English is not
required, citing agriculture as an example and claiming the H-2A visa
program itself does not require English to work temporarily in
agriculture. Many commenters indicated that this rule would improperly
reject many people with practical job skills doing essential work in
our economy that have limited formal education and English proficiency
and highlighted farmworkers as an example.
Response: DHS understands that English proficiency is not be
required to be employed in the United States. DHS is not requiring or
mandating English proficiency as a requisite to immigrating to the
United States. English proficiency is a consideration in the assessment
whether the alien possesses education and skills sufficient to maintain
or obtain employment as to not likely to become a public charge. As
explained in the NPRM,\717\ data on the relationship between the level
of English proficiency and employment as well as public benefits
participation highlights that proficiency in the English language is a
[[Page 41435]]
relevant consideration. DHS will consider all circumstances of the
alien's case and all factors in the totality of the circumstances;
therefore, no single factor is outcome determinative in this
assessment, including the lack or the existence of English proficiency.
In individual circumstances, DHS would also consider the alien's
employment as a positive factor despite lack of proficiency in English.
---------------------------------------------------------------------------
\717\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51195 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: Many commenters addressed the 2014 SIPP data about the use
of benefits by populations at various levels of English language
ability cited by DHS. A commenter asserted that DHS failed to provide
any causal linkage between the data cited and its conclusions. A
commenter stated that the survey relied upon cross-sectional studies
that capture information from a given point in time and that DHS does
not cite longitudinal studies that follow the same population and
capture relevant information over time. The commenter said DHS cannot
predict whether an individual non-citizen is likely to become a public
charge in the future based on such studies. One commenter cited
information showing that while children of newly-immigrated families
speak a non-English language at home, English language learning
children are amongst the most successful students at school in the
United States, especially once they become fully proficient in English.
The commenter stated that this information contradicts studies cited by
DHS.
Response: DHS discusses English proficiency as an indicator of
potential public benefits receipt, which does not rely on an assumption
that the relationship is cause-and-effect. The cross-sectional analysis
showed that not being proficient in English is an indicator of public
benefit receipt in the near term, which is considered in the public
charge determination. The DHS analysis shows a relationship between
public benefit receipt and English proficiency among adults age 18 and
over, and does not describe outcomes for the population of English
language learning children, so the results of the studies do not appear
contradictory.
Comment: Multiple commenters stated that DHS failed to consider
alternative reasons that people who are LEP may be more likely to
access benefits, adding that that states that have high numbers of LEP
populations, such as New York and California, also have high income
thresholds for Medicaid. The commenters concluded by stating that three
out of the four studies DHS cited used data derived from Europe, while
the fourth relies on Current Population Survey data nearly 30 years
old, which is insufficient to support DHS's proposed change.
Response: DHS analysis showed that lack of English proficiency was
a factor that affected the likelihood of receiving welfare. DHS does
not dispute that likelihood of public benefits receipt may also be
affected by the state of residency. DHS's findings were not interpreted
to suggest that lack of English proficiency necessarily led to welfare
receipt, or that there was any causal relationship between the two. As
such, complex inter-relationships such as the one mentioned were not
investigated. The studies provided by DHS regarding English proficiency
included SIPP data representing U.S. noncitizens in 2013,\718\ as well
as a study using data from the 2000 Census.\719\ One report that was
referenced was international in its scope, and included a discussion of
different European countries, as well as the United States.\720\
---------------------------------------------------------------------------
\718\ See Table 24, Inadmissibility on Public Charge Grounds, 83
FR 51114, 51196 (proposed Oct. 10, 2018).
\719\ See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census
Bureau, How Does Ability to Speak English Affect Earnings? 6 (2005),
available at https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf (last visited July 26, 2019).
\720\ Barry R. Chiswick & Paul W. Miller, Immigrant Earnings:
Language Skills, Linguistic Concentrations and the Business Cycle,
15 J. Population Econ., 31, 31-57 (2002); Christian Dustmann,
Fluency, Writing Fluency, and Earnings of Migrants, 7 J. Population
Econ., 133, 133-156 (1994); Ingo E. Isphording, IZA Discussion Paper
No. 7360, Disadvantages of Linguistic Origin: Evidence from
Immigrant Literacy Scores (2013), available at http://ftp.iza.org/dp7360.pdf (last visited July 26, 2019); Org. for Econ. Cooperation
& Dev./European Union, Indicators of Immigrant Integration 2015:
Settling In (2015), available at http://www.oecd.org/els/mig/Indicators-of-Immigrant-Integration-2015.pdf (last visited July 26,
2019).
---------------------------------------------------------------------------
Comment: A few commenters stated multilingualism should be
considered an asset. Another commenter indicated that DHS based its
consideration of English proficiency or additional languages on the
assumption that English skills are required to enter the U.S. job
market. According to the commenter, however, the large number of
Spanish speaking workers in the construction industry undermined the
premise that English skills are required to enter the U.S. job market.
The commenter acknowledged that DHS would consider other languages
depending on their market value, but that the rule was silent on
considerations guiding this determination, such as the market value
assessment for Spanish skills. Therefore, the commenter suggested that
the rule should explicitly indicate that Spanish skills have a high
market value, at least in the construction industry.
Response: DHS will consider the ability to speak other languages in
addition to English as part of the totality of the circumstances when
evaluating all of the relevant skills that apply to an alien's
employability, education and skills. The ability to speak a language or
language proficiency may have differing impacts depending on the nature
of the work and the employer, and is best considered individually in
the context of each alien's application in the totality of the
circumstances. DHS recognizes that certain professions or employment
require that an alien speak another language in addition to English.
However, the public charge assessment is geared toward becoming a
public charge in the United States; the data presented in the NPRM
\721\ clearly demonstrated a connection between the inability to speak
and understand English in relation to employment, public benefit
receipt, and financial status. Therefore, DHS retained the English
proficiency provision. However, nothing in the regulation precludes an
alien from presenting evidence and consideration relating to education
or skills other than the considerations mentioned in the regulation;
all considerations will be evaluated based on the totality of the
circumstances.\722\
---------------------------------------------------------------------------
\721\ See 83 FR 51114, 51195-97.
\722\ See 8 CFR 212.22(a) and 8 CFR 212.22(b)(5).
---------------------------------------------------------------------------
3. Skills
Comment: A commenter indicated that the expanded negative weights
for educational/skills attainment conflict with longstanding policy and
principles that support upward mobility and self-sufficiency. Another
commenter indicated that DHS failed to describe how DHS will consider,
among other things, the education and skills requirement. The commenter
stated that the rule could prejudice the many foreign-born workers in
the construction worker industry, who have little formal education but
skills that are in high demand and that these workers earn a good wage.
The commenter suggested that DHS should change the requirement that it
considers ``no high school diploma or other education or skills'' as a
negative factor in the public charge analysis, and that DHS should
instead consider education only as a positive factor. The commenter
suggested that in the alternative, the lack of education should only be
considered a negative factor when coupled with unemployment. The
commenter stated that DHS fails to
[[Page 41436]]
define ``skills'' and expressed concern that the skills that workers
have may be difficult to demonstrate as an evidentiary matter and that
this could cause DHS adjudicators to improperly discount skills that
often take many years to develop. Along with providing certain data
noting that a significant percentage of both foreign-born (over 90
percent) and native-born workers (over 85 percent) in the construction
industry do not have a four-year college degree, the commenter pointed
out that, for example, a brick layer may be highly skilled but lacks a
way of demonstrating a formal certification. The commenter requested
that the final rule explicitly indicate that Spanish language skills
have a high market value, at least for those in the construction
industry. The commenter also suggested that Form I-944 be amended to
clarify that DHS will consider experience-based construction skills in
the analysis, as the form as currently drafted largely focuses on the
certification.
Another commenter suggested that DHS amend its consideration of
education and skills as a prerequisite to legal immigration because the
legal immigrants that are entering the direct care workforce are
entering a career pathway to a successful lifelong career. The
commenter stated that although many such immigrants have increasing
levels of responsibility, the workforce is not highly skilled. The
commenter reasoned that preventing some of the most eligible
individuals from entering the United States prevents them from
addressing the direct care workforce deficit, which will negatively
impact people with disabilities and the elderly in the United States,
which rely on this workforce to maintain their well-being and quality
of life.
A couple of commenters stated that although agricultural work is
considered unskilled labor under some technical definitions, it is in
fact a skilled occupation requiring years of experience to gain the
necessary knowledge, precision, exercise of judgment, endurance, and
speed that many of these workers already have and which contribute to
their employer's profitability. The commenters concluded by arguing
that that the proposed rule would improperly reject the value of many
farmworkers' contributions to our economy and society. Similarly, a
commenter expressed their concern that the ``skills'' component of the
education and skills factor is undervalued by the proposed rule. The
commenter stated that this narrow view of skilled work will have a
particularly harmful impact on immigrants who staff many vital
occupations, such as healthcare support and personal care, for which
certification procedures do not exist, but on which many in the United
States may depend.
Response: Education and skills are mandatory statutory factors as
established by Congress under section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4). DHS disagrees that it did not sufficiently outline the
consideration of the factors in the NPRM.\723\ DHS appreciates the
suggestions from commenters, including the suggestions relating to the
construction industry. However, DHS will not remove the lack of a high
school diploma or other education or skills provisions from the rule as
a negative factor in the public charge analysis. Further, DHS will
consider both the positive and negative factors associated with
education and skills, as described in the NPRM. As evidenced by the
commenters addressing various industries, each industry and area of
employment may be different. The DHS proposed rule is flexible enough
to account for all factors and circumstances in any particular industry
and an individual's case so that each alien may set forth the
considerations applicable to him or her demonstrating why the
individual is not likely to become a public charge.
---------------------------------------------------------------------------
\723\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51189-51196 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
As discussed in the NPRM, education has been found to have a
significant impact on public benefit usage. As it is possible for an
alien to be employed and still be a public charge, the mere fact of
employment cannot categorically remove education from an analysis of
the totality of the circumstance because education is a statutorily
mandated factor. Although education would certainly weigh positively,
the exact nature of the education (or lack thereof) and employment
would have to be considered. The level and quality of the education
attained by a prospective immigrant can help estimate how likely they
are to become a public charge. Therefore, while not having high school
diploma or other education or skills are generally a negative factor,
the lack of a high school diploma, for example, may be overcome by
skills or other positive circumstances.
DHS agrees that skills gained as part of employment are positive
even when certifications are not available. Regardless of occupation,
an alien may demonstrate that he or she has skills through employment
that are positive factors. This showing will not be focused on
construction, but generally, be applicable to all job skills. Overall,
education and skills will be considered as part of the totality of the
circumstances. DHS is not mandating any particular level of education
or skill to overcome a public charge inadmissibility determination.
Comment: One commenter stated that using both DOL, which already
has education and skills criteria for immigrants entering the country
to work, and DHS to evaluate labor needs and skills was redundant,
unnecessary, and a waste of public funds.
Response: DHS disagrees that the rule conflicts with DOL's
evaluation of labor needs and skills. Under this rule, DHS will be
considering whether an alien possesses education and skills that would
contribute to the alien being employable in the United States and thus
able to be self-sufficient. This determination does not entail
determining whether an alien meets an employer's minimum job
requirements for a particular position or qualifies for employment in a
particular occupational classification. In addition, even if an alien
is found to not possess any education or skills but instead has
sufficient financial means to support himself or herself and any
dependents, DHS may determine in the totality of the circumstances that
the alien is not likely to become a public charge. In contrast, DOL has
a statutory mandate to certify before an alien may be admitted in
certain employment-based immigrant classifications that there are no
able, willing, qualified, and available U.S. workers to perform the job
for which an employer seeks to hire the alien, and that the alien's
employment will not have an adverse effect on the wages and working
conditions of similarly employed U.S. workers. In doing so, DOL
examines whether the alien's education, skills, and job qualifications
meet the employers' stated minimum job requirements. Therefore, the two
departments fulfill two different responsibilities in the immigration
process.\724\
---------------------------------------------------------------------------
\724\ See INA section 212(a)(5)(A), 8 U.S.C. 1182(a)(5)(A), 20
CFR and 656.1 (DOL's labor certification requirements for immigrant
workers).
---------------------------------------------------------------------------
Comment: A commenter asserted that DHS does not have the ability to
adequately evaluate occupational skills, certifications, or licenses,
and many occupations do not require them. The commenter stated that
this requirement would cause a great burden on employers and agencies
who must comply with these new requests.
Response: DHS will evaluate all occupational skills,
certifications, licenses, and any other evidence that
[[Page 41437]]
establishes a skill in an occupation, as presented by the alien. The
alien has the burden to establish that he or she qualifies for the
immigration benefit and is not inadmissible.\725\ Generally, forms and
their instructions outline, in detail, the necessary evidence to apply
for a benefit; similarly Form I-944 and its instructions outline
possible evidence that an alien can submit to establish that he or she
has the requisite education or skills as to be able to maintain or
obtain employment. If USCIS believes that the alien has not submitted
sufficient evidence to establish that he or she is not likely to become
a public charge, where applicable, it may issue a RFE or a NOID to
obtain clarification.\726\
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\725\ See INA section 291, 8 U.S.C. 1361.
\726\ See generally 8 CFR 103.2.
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4. Employment
Comment: A commenter indicated that because immigrants who are in
the United States without work authorization are not able to work
legally, it will be impossible for many immigrants to demonstrate their
past employment history. The commenter stated that the proposed rule
will therefore place immigrants in an impossible situation: if they
comply with the law that prohibits them from working without having
first obtained employment authorization, they will forfeit the ability
to obtain legal status because they will be unable to show current
employment or a recent history of employment. Another commenter stated
that DHS cannot accurately assess an individual's likelihood of
becoming a public charge if DHS does not first grant work authorization
to such an individual.
Other commenters stated that certain visas, such as the K-1
fianc[eacute] visa, do not permit a grantee to work. Another commenter
stated that the use of an employability factor in a public charge
determination would put many immigrants in a catch-22 where their
options would be to either work illegally and be denied citizenship or
not work and be denied immigration status due to lack of employment.
Another commenter suggested that an applicant should be given time to
enter the country and work before being subject to the public charge
test.
Response: As discussed in the NPRM, DHS recognizes that not
everyone subject to this rule is authorized to work in the United
States. Although an applicant may not be authorized for employment in
the United States at the time of filing the adjustment of status
application, he or she may have employment history in a foreign
country, or volunteer work experience in the United States, that will
be considered as part of the totality of the alien's circumstances.
However, DHS notes that it would consider any employment history
outside the United States as part of the public charge inadmissibility
determination. Moreover, USCIS would also review the likelihood that
the alien will work upon filing for or being granted adjustment of
status, i.e., when authorized to work. In addition, USCIS would
consider whether the alien may have sufficient assets and resources,
including a pension or a household member's assets and resources, which
may overcome any negative factor related to lack of employment. The
assets and resources would include those of the household, which may
include a sponsor when the sponsor is part of the household.
DHS will not, however, include provisions in this rule to provide
aliens subject to this rule time to enter the country and work before
being subject to the public charge inadmissibility determination. As
noted previously, the public charge ground of inadmissibility applies
at the time of the alien's application for a visa, admission, or
adjustment of status.
Comment: Some commenters provided input on how the employment
history requirements impacts domestic violence survivors. These
commenters indicated that DHS disregards the reality of many crime
survivors who are faced with losing their jobs due to intense trauma,
reduced productivity, harassment at work by perpetrators, and other
reasons stemming from violence. One commenter stated that secure
immigration status can help survivors of abuse access employment
opportunities, escape violent relationships, and help alleviate the
trauma they have suffered. This commenter stated that the proposed rule
is actually setting up barriers to employment for survivors, which is
also a barrier to self-sufficiency. Other commenters stated that
several studies have documented how domestic violence perpetrators
deliberately try to sabotage their victims' efforts to obtain and keep
paid employment; that domestic violence survivors are forced to become
dependent on their abusive partners' incomes; or that some survivors
have had their work permits or lawful permanent residence cards taken
by their abusers, making it impossible to show that they had legal
authorization to work and had to, at times, pay filing fees to get
their replacement documents. One commenter stated that half of women
who experienced sexual assault had to quit or were forced to leave
their job within the first year and stated that by heavily weighting
the lack of employment, the proposed rule doubly penalizes a victim for
the economic effects that domestic violence and sexual assault abusers
perpetrate.
Response: DHS appreciates the commenters' input. As explained in
the NPRM, USCIS will assess the alien's education and skills with the
focus whether the alien has adequate education and skills to either
obtain or maintain employment sufficient to avoid becoming a public
charge.\727\ As part of the assessment, USCIS will consider the
totality of the alien's circumstances, including any and all factors
and considerations set forth by the alien. Furthermore, T and U
nonimmigrants, VAWA self-petitioners, and others listed in 8 CFR
212.23, are generally exempt from inadmissibility on account of public
charge and therefore, they are not likely impacted by this regulation.
---------------------------------------------------------------------------
\727\ See 8 CFR 212.22(b)(5).
---------------------------------------------------------------------------
Comment: One commenter stated requiring employment history would be
problematic for many international students attending American
universities, arguing that that foreign nationals on student visas are
generally not permitted to work while engaging in studies on the F-1
visa. This commenter stated that nearly one-quarter (20 out of 91) of
the billion-dollar startup companies had a founder who first came to
the United States as an international student, and stated that holding
student loan and credit card debt against the students could have a
negative impact. The commenter stated that, under the proposed rule,
these individuals would be subject to the public charge test even as
nonimmigrants when seeking to change status from that of a student to
that of an employee on an employment-based visa.
Response: DHS does not require that the alien have an employment
history as part of the public charge determination. As discussed above,
DHS has removed the forward-looking determination for nonimmigrant
applicants for extension of stay or change or status. Therefore, DHS
would not be reviewing the factors for nonimmigrants applicant for
extension of stay or change of status, such as students. Further, the
NPRM indicates that for purposes of the assessment of employment and
skills, USCIS' considerations include, but are not limited to the
alien's employment history.\728\ In general, students acquire skills as
part of their studies; also, USCIS would not consider it to be a
[[Page 41438]]
heavily weighted negative factor if a student, applying for adjustment
of status for a valid basis, is not working because she or he lacks
employment authorization. For these reasons, DHS does not believe that
students in universities in the United States will be adversely
impacted by DHS's consideration of the education and skills factor, as
set forth in this rule.
---------------------------------------------------------------------------
\728\ See 8 CFR 212.22(b)(5).
---------------------------------------------------------------------------
Comment: A commenter stated that pregnant women may be forced to
leave the work force and stay home to deal with medical complications
of a pregnancy or to care for a child during the first months, due to
reasons such as the high cost of out-of-home daycare, and that
therefore, they will be less likely to show employment history. A few
commenters stated that consideration of employment history would
unfairly discriminate against women, particularly those who stay home
and care for their children. Another commenter stated that often the
work of a caregiver, such as a stay-at-home parent or grandparent, is
vitally important for the emotional and financial well-being of a
family. One commenter remarked that the rule unfairly penalizes
individuals who may have additional caregiving responsibilities due to
a child's special needs, inability to afford child-care, or even
religious beliefs.
Response: As indicated throughout this rulemaking, DHS will assess
the likelihood of becoming a public charge based on the totality of the
circumstances of the individual's case. While there are certain
temporary medical conditions or other conditions that may require an
individual to interrupt a certain employment activity or have a
temporary absence, one can hardly regard such incidents as negating an
individual's employment history, or his or her education or skills
generally. Additionally, the applicant may bring forward evidence to
establish that he or she has adequate education and skills to either
obtain or maintain employment to avoid becoming a public charge.
DHS acknowledges that an MPI paper observed that women could
encounter difficulty with the totality of circumstances analysis,
because women comprised 70 percent of the over 43 percent of recent
green card holders who were neither employed nor in school. MPI added
that many immigrant women do not work because of child care
responsibilities and child care costs.\729\ In instances such as this
where a mother is not currently employed and is raising children, DHS
would not exclusively focus on the mother's lack of current employment.
DHS would also take into full account other factors that could be
favorable to the mother and could outweigh her current unemployment:
her household's income, assets, and resources; an affidavit of support
and relationship to her sponsor, if applicable; and her reasonable
prospects to obtain and maintain lawful employment based on her age,
education, skills, and any previous work history. This same level of
consideration would also apply to other similarly situated parents,
guardians, and caregivers who are currently unemployed or who are
employed part-time.
---------------------------------------------------------------------------
\729\ See Capps, Randy et al, ``Gauging the Impact of DHS'
Proposed Public-Charge Rule on U.S. Immigration,'' Migration Policy
Institute. (November 2018). Available at: https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration (last visited July 26, 2019).
---------------------------------------------------------------------------
Consistent with the above, and following consideration of these and
other comments about contributions of caregivers, DHS is adding under
the Education and Skills factor an additional positive consideration,
namely whether the alien is a primary caregiver of another person in
the alien's household. This will be taken into consideration in the
totality of the circumstances, and is intended to account for
difficult-to-monetize contributions by aliens who may lack current full
time employment or recent employment history due to their unpaid
engagement in the household. As with all other considerations, the
consideration of whether an alien is a primary caregiver would not
alone establish that an alien is not likely at any time in the future
to become a public charge. Rather, DHS would not consider it a negative
factor if an alien of a working age who would normally be employable
lacks full time employment, or a recent employment history. This
consideration could cover a range of circumstances, including, for
example, a parent who stays at home to care for a newborn child, or an
adult child who stays at home to care for an elderly parent. DHS has
limited this consideration so that only one alien within the household
can be considered the primary caregiver of the same person in his or
her household. Because some commenters responding to various aspects of
the totality of the circumstances analysis raised concerns about
``double counting'' negative factors, DHS notes that it will only take
the primary caregiver role into consideration if relevant, i.e., DHS
will not use this consideration to negatively compound the absence of
full time employment or recent employment history if the alien is not a
primary caregiver. As indicated above, DHS has also added a definition
of ``primary caregiver'' under 8 CFR 212.21(f) to correspond to this
provision; primary caregiver means an alien who is 18 years of age or
older and has significant responsibility for actively caring for and
managing the well-being of a child or an elderly, ill, or disabled
person in the alien's household.
Comment: Multiple commenters wrote that the rule misunderstands the
nature of low-wage work, indicating that there are not simply ``people
who work'' and ``people who receive benefits,'' rather there is an
overlap between the two groups.
Response: DHS understands that there is an overlap between ``people
who work'' and ``people who receive benefits.'' People who are employed
but nonetheless receive public benefits may not be self-sufficient.
However, the fact that an alien who is subject to a public charge
inadmissibility determination has in the past received public benefits
is not outcome determinative. Whether an alien is inadmissible because
he or she is likely at any time in the future to become a public charge
depends on a review of a range of factors, including work history, in
the totality of the circumstances.
N. Affidavit of Support
Comment: Several commenters stated that the affidavit of support is
sufficient to satisfy the standard because the sponsor agrees to
provide the necessary financial support or to reimburse providing
agencies. One commenter stated that the Form I-864 already provides a
method for objective public charge analysis. Many commenters stated
that Form I-864 creates a legally binding contractual agreement between
the petitioner/sponsor and the government that the intending immigrant
will not receive public benefits. Some of the commenters indicated that
relegating the Form I-864 to a mere factor and proposing to replace it
with a bond eliminates the true potential of the Form I-864: to deter
new immigrants from applying for government assistance. The commenters
stated that in lieu of the Form I-864, the government now proposes to
increase the use of public charge bonds and the bond amount to levels
that most immigrants will not be able to pay, and involves a third
party private bond company. One commenter stated that the proposed
heavily weighted factors do not achieve the stated goals of the rule;
the commenter indicated that the agency has not stated a sufficient
reason
[[Page 41439]]
why the existence of a binding contract from a financially-capable
sponsor, such as the affidavit of support that used to be sufficient
for public charge purposes would not satisfy the standard for purposes
of public charge, and others stated that this is especially the case,
when the question addressed with the affidavit of support is whether an
immigrant is likely to become a public charge. Another commenter stated
that the affidavit of support, by statutory definition, requires the
immigrant to demonstrate financial support to ensure that he or she is
not a public charge, but the rulemaking arbitrarily relegates the
affidavit of support to a non-substantial factor. The commenter
disagreed that the affidavit of support should just be one factor and
stated that the proposed rule allows for the possibility of a heavily
weighted factor to outweigh the contractual showing of the sponsorship,
as outlined by Congress. The commenter also stated that without
according the affidavit of support any weight, the NPRM effectively
eviscerated the affidavit of support process and goes against
congressional intent to establish clear guidelines and a meaningful
measure of likelihood of becoming a public charge.
Two commenters stated this proposed regulation diminishes the
consideration of a sufficient affidavit of support in the determination
of likely to become a public charge, and drastically diminishes the
sponsor's role as they exist within the current standards. One
commenter said the affidavit of support requirement can be hard to meet
for some potential adjustment of status applicants. The commenter said
if the petitioner's income and assets are not adequate, it can be
difficult to find another person (a ``joint sponsor'') who is willing
to hand over their sensitive identification and financial documents and
sign a binding contract to ensure the intending immigrant will not
depend on public benefits.
A few commenters indicated that the current system already places a
high burden on petitioners and immigrants, and that the affidavit of
support system has done a good job in making sure that immigrants will
not become public charges after entry. One commenter said the demotion
of the affidavit of support is another way that the re-framed totality
of circumstances would allow only those already with resources to enter
or remain in this county. Similarly, commenters stated this rule would
make it harder for low-income immigrants to get their green card or
visa, and tilt away from family-based immigration to a wealth-based
system that would be both deeply unethical and entirely inconsistent
with laws and policies in the United States.
Another commenter stated that the focus should remain on the
sponsor and their ability to maintain the intending immigrant at 125
percent of the FPG, asserting that DHS should only consider the other
heavily weighted factors in ``unusual cases.'' Another commenter stated
that the proposed rule shifts the focus of an applicant's eligibility
away from an applicant's sponsor and onto the applicant.
Response: DHS rejects the assertion that the rule shifts the
emphasis away from the affidavit of support, as the statute does not
require or even permit DHS to focus the public charge inadmissibility
determination solely on the affidavit of support. In fact, the minimum
mandatory factors that must be considered as part of the public charge
inadmissibility determination under section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), do not include the affidavit of support. Rather,
Congress added that any affidavit of support under section 213A of the
Act, 8 U.S.C. 1183a, may be considered in the public charge
inadmissibility determination.\730\ An affidavit of support is required
for most family-sponsored immigrant applicants and certain employment-
sponsored immigrant applicants, and the absence of a sufficient
affidavit of support will result in an inadmissibility finding.\731\
Because the lack of a sufficient affidavit of support, when required,
automatically results in a finding of public charge inadmissibility, it
would be inconsistent with the statute to place an emphasis on the
affidavit of support in the public charge determination. Under this
rule, DHS will give positive weight to a sufficient affidavit of
support, but it would not, and cannot under the statute, be outcome
determinative.
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\730\ See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
\731\ See INA section 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D).
---------------------------------------------------------------------------
Comment: Another commenter asserted that the proposed rule does not
provide any standards for evaluating factors or the likelihood that the
sponsor would actually provide the required financial support to the
alien, and that such vagueness invites officers to make decisions on
the basis of their personal assumptions and biases, which will almost
certainly result in inconsistent application of the standards. Another
commenter also stated that DHS's justification for independently
considering the sponsor's income and resources, relationship to the
applicant and the likelihood of supporting the applicant, or any other
related considerations, is inadequate as it fails to provide a standard
for evaluating these standards, and will lead to inconsistent decisions
that are also based on officer's assumptions and biases and exceeds the
statutory wording in regard to affidavits of support. Additionally,
referring to a 1998 DOS cable on the sufficiency of affidavits of
support, the commenter indicated that the proposed provision upends,
without justification, prior practice that instructed that the intent
of the sponsor and the verification of the sources is not a
consideration once a sufficient affidavit of support has been
presented. The commenter furthermore indicated that DHS justification
and evidence--referring to reports that are nine and sixteen years
old--does not support the agency's position. Another commenter stated
that the proposed rule creates opportunities for arbitrary decision-
making when assessing one's family status or financial status, because
the rule tasks the adjudicator with assessing the closeness of the
sponsor-alien relationship and with the assumption that a close family
member ``would be more likely to financially support the alien if
necessary.'' The commenter indicated, however, that the closeness of a
relationship is a subjective determination and not necessarily based on
the existence of a blood relationship but rather on personal
connections and history that an outside adjudicator would find
difficult to comprehend. Similarly, another commenter provided that
evaluating the relationship between a sponsor and an applicant may be
particularly prejudicial if the agency fails to account for cultural
differences in family dynamics. A commenter stated that, once an
affidavit of support is determined to be legally sufficient, DHS should
not substitute its agents' judgment for that of Congress by requiring a
different income threshold or encouraging them to speculate about a
sponsor's relationship to an applicant.
Another commenter said the guidance in the FAM, which explains that
a joint sponsor ``can be a friend or a non-relative who does not reside
in and is not necessarily financially connected with the sponsor's
household'' was consistent with the statutory language at section 213A
of the Act, 8 U.S.C. 1183a that defined the requirements of a
``sponsor'' but does not include a requirement that a joint sponsor
have a familial relationship to the immigrant.
Response: DHS does not believe that the proposed public charge
inadmissibility determination, including the consideration relating to
[[Page 41440]]
the affidavit of support, is not sufficiently detailed or nebulous. DHS
put forth a detailed assessment of the factors and how they are applied
in the NPRM. Additionally, DHS provided additional information in the
proposed forms and the form's instructions. As provided in the NPRM, a
sufficient affidavit of support does not guarantee that the alien will
not receive public benefits in the future and, therefore, DHS would
only consider the affidavit of support as one factor in the totality of
the circumstances.\732\ The inability or unwillingness of the sponsor
to financially support the alien may be viewed as a negative factor in
the totality of the circumstances. DHS expects that a sponsor's
sufficient affidavit of support would not be an outcome-determinative
factor in most cases; the presence of a sufficient affidavit of support
does not eliminate the need to consider all of the mandatory factors in
the totality of the circumstances.
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\732\ Inadmissibility on Public Charge Grounds, 83 FR 51114,
51197 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
USCIS would assess the sponsor's annual income, assets, resources,
and financial status, relationship to applicant, the likelihood that
the sponsor would actually provide financial support to the alien, and
any other related considerations. In order to assess the sponsor's
likelihood of meeting his or her obligation to support the alien, DHS
would look at how close of a relationship the sponsor has to the alien,
as close family members would be more likely to financially support the
alien if necessary. DHS would also look at whether the sponsor lives
with this alien, as this could be indicative of the sponsor's
willingness to support the alien if needed. Additionally, DHS would
look at whether the sponsor has submitted an affidavit of support with
respect to other individuals, as this may be indicative of the
sponsor's willingness or ability to financially support the alien.
DHS furthermore disagrees with the commenters' assessment in regard
to the weight provided to a sufficient and properly executed affidavit
of support. The statute, under section 213A of the Act, 8 U.S.C. 1183a
does not mandate that the affidavit is outcome determinative, nor does
it limit DHS's discretion how to weigh the affidavit in the totality of
the circumstances: It simply puts forth that ``[n]o affidavit of
support may be accepted by the Attorney General or by any consular
officer to establish that an alien is not excludable as a public charge
under section 1182(a)(4) of this title'' and provides the requirements
for a valid affidavit of support. The guidance of how to assess it is
contained in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), which
specifically provides that the lack of an affidavit of support, where
required, renders an applicant inadmissible on the public charge
ground; the statute further states an officer may consider any
affidavit of support under section 213A of the Act, 8 U.S.C. 1183a,
when assessing the public charge ground of inadmissibility.\733\ DHS,
therefore, determined that it will consider the affidavit of support as
a factor in the totality of the circumstances.\734\
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\733\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
\734\ See 8 CFR 212.22(b)(7).
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The statute under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)
also does not mandate how much weight an affidavit of support must be
given. Therefore, it is appropriate for DHS to regulate that the weight
should be assessed based on the sponsor's annual income, assets,
resources and his or her financial status, as well as the closeness of
the relationship which would be indicative of the willingness and
ability of the sponsor to financially support the alien.\735\ DHS
appreciates the reference to DOS' guidance on that issue, but DOS
guidance is not binding on DHS.
---------------------------------------------------------------------------
\735\ See 8 CFR 212.22(b)(7); see also Inadmissibility on Public
Charge Grounds, 83 FR 51114, 51198 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
In sum, the INA does not preclude DHS from establishing a framework
for officers to provide the appropriate weight of the affidavit of
support within the totality of the circumstances. In cases where the
statute requires an alien to submit an affidavit of support and the
alien fails to do so, the statute mandates a finding of public charge
inadmissibility.\736\ As explained in the NPRM,\737\ however, the
submission of a sufficient affidavit of support does not guarantee that
the alien will not receive public benefits in the future. The
submission of a sponsor's sufficient affidavit of support also does not
eliminate the need to consider all of the mandatory factors in the
totality of the circumstances.
---------------------------------------------------------------------------
\736\ See INA section 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D).
\737\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51198 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter suggested that DHS codify as a ground of
exclusion on public charge, that a beneficiary sue the sponsor for
reimbursement of listed public funds received, or else be deemed a
public charge. The commenter explained beneficiaries have the option,
but not the obligation, to initiate a private legal action against a
sponsor who fails to fulfill their contract obligations to support the
alien financially. The commenter stated that integrating this as a
factor or ground would significantly facilitate DHS's goal of ensuring
self-sufficiency. The commenter also said the sponsored beneficiary
could also meet this obligation if the sponsor was sued for
reimbursement by the funding Government agency. Another commenter
stated that, if the concern of DHS is to lessen the financial strain
Federal public benefit programs create, then a more effective and less
harmful to public-health-and-safety alternative would be to enforce the
affidavit of support, which is a binding contract as signed.
Response: DHS does not have the authority to create such a required
ground of inadmissibility under authority of section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4). Additionally, DHS does not believe adding an
additional factor to this rule regarding sponsor reimbursement of any
amount of public benefits provided by an applicant is consistent with
the public charge ground of inadmissibility, or that enforcing the
sponsor's affidavit of support obligation is relevant to the public
charge inadmissibility determination.
DHS notes that while the existence of a sufficient affidavit of
support, where required to be submitted, is considered as a positive
factor in any public charge inadmissibility determination, the
sponsorship obligation set forth on the affidavit of support does not
attach until after the application for an immigrant visa or adjustment
of status is granted.\738\ The subsequent action of enforcing the
affidavit of support is distinct from the actual inadmissibility
determination. Therefore, DHS will not, in adjudicating an adjustment
of status application, consider the sponsor's potential future
reimbursement in a public charge inadmissibility determination when
there is not yet a reimbursement obligation. Rather, DHS will consider
the existence of a sufficient affidavit of support and the likelihood
that the sponsor would actually provide the statutorily-required amount
of financial support to the alien, and any other related
considerations.
---------------------------------------------------------------------------
\738\ See INA section 213A, 8 U.S.C. 1183a; 8 CFR 213a.2(d).
---------------------------------------------------------------------------
Moreover, the statute is forward-looking and requires DHS to
determine whether the alien is likely at any time to become a public
charge. While past receipt of public benefits is a factor to consider,
the fact that the beneficiary or the funding Government agency seeks
[[Page 41441]]
reimbursement for such receipt is unrelated to an alien's likelihood of
becoming a public charge in the future. Imposing such a requirement
would not meaningfully contribute to DHS's goal of ensuring self-
sufficiency of those foreign nationals in the United States. For these
reasons, DHS will not include reimbursement of the cost of public
benefits provided to an alien as part of the factors is an appropriate
consideration.
O. Additional Factors To Consider
Comment: A commenter stated that being a past recipient of public
benefits should not be a heavily weighted negative factor and suggested
that certain positive factors, or considerations, should offset
negative factors such as being a caregiver for a U.S. citizen child,
being an elderly person or an individual with disabilities, having a
child under the age of five, being recently pregnant, being someone who
had a temporary health condition which caused the individual to be
unable to work which has since improved, and those receiving Medicaid.
Response: Aside from the above-referenced clarification with
respect to caregivers, DHS will not add additional factors or
considerations to the rule along the lines proposed by the commenter.
There is no evidence that these listed factors, such as being a
caregiver for a U.S. citizen child, being an elderly person or an
individual with disabilities, having a child under the age of five, or
being a Medicaid recipient, is indicative of self-sufficiency. Although
caregivers may benefit the household by eliminating the need for
childcare or eldercare expenses, each person must establish he or she
is not likely to be a public charge based on the totality of the
factors of an individual's circumstances. However, as noted above,
USCIS, on an individual basis, may take into consideration that a
person is a caregiver for others in the household as part of the
Education and Skills factor or that a sponsor provides sufficient
support for the alien. When considering whether the alien is likely to
become a public charge, DHS will consider the totality of the alien's
circumstances. The alien is not precluded from advancing any argument
or providing evidence that would indicate that, in the totality of the
circumstances, the alien is not likely to become a public charge.
Comment: One commenter suggested that DHS should take reimbursement
(or the possibility of reimbursement) of public benefits into account
when determining whether an individual is likely to become a public
charge. The commenter, while noting that benefits such as costly long-
term institutional care were unlikely to be reimbursed, stated that
there was no reason to think that very modest amounts of Medicaid or
SNAP benefits would not be reimbursed if the public entity providing
the benefits sought reimbursement. This commenter noted that the
Government has the authority to obtain reimbursement from a sponsor
under an affidavit of support. The commenter noted that the current
SNAP, Medicaid, SSI, and TANF programs permit reimbursement. This
commenter stated that lower thresholds for public charge determinations
increase the likelihood of receiving reimbursements of benefits that
would push the amount of benefits received below the public charge
threshold as set by DHS. And finally, the commenter requested that
consideration of reimbursement, and how it will be determined, as part
of the regulatory action on public charge, should be done with notice
and comment because it is such a major aspect of the rule.
Response: Although an adjustment of status applicant who is
required to submit a sufficient affidavit of support must submit Form
I-864 with his or her application, the sponsor's obligations with
respect to the applicant do not become effective until the adjustment
of status application is granted. Therefore, at the time the applicant
files an application for adjustment of status, there would not be
anyone responsible for reimbursing a public benefit-granting agency.
The reimbursement of public benefits may be more applicable in the
deportability context and out of scope of this rule.
P. Heavily Weighted Factors General Comments
Comment: A commenter opposed proposed establishment of heavily
weighted positive and negative factors in a public charge
inadmissibility determination. The commenter indicated the proposed
system of heavily weighted negative and positive factors effectively
limits an adjudicator's ability to consider the totality of
circumstances. Many commenters stated that the proposed rule would
yield inconsistent outcomes as there is no clear guidelines to what
extent heavily weighted positive or negative factors should inform a
final decision. Another commenter stated that the proposed weighting
scheme unreasonably under-weighs the most important factors (ability to
work in the future and having potential family support) and overweighs
several other marginal factors in public charge determinations. The
commenter also indicated that the general considerations are turned
into a complex, variable-factor test that always involves more than
five factors, and that it will massively increase the error rate for
public charge decisions. The commenter indicated that the example in
Table 35 in the NPRM and rule specify quantitative weights to the
factors. The commenter indicated that the factor labeled ``not
applicable'' has a presumed weight of zero and is not included in the
numerator or denominator of any quantitative or qualitative final
``score'' of the proposed test; and that ``heavily weighted factors''
have a much greater weight than all other factors. The commenter
further assumed that the agency intends each of the applicable factors
to have a weight equal to one, and heavily weighted factors have a
weight equal to two. The commenter concluded that that while this would
be the most straightforward reading of the factors and the tables
included in the NPRM, the commenter stated it is actually unclear what
the rule requires.
Response: DHS disagrees that the standard of identifying heavily
weighted factors limits an officer's ability to consider the totality
of the circumstances.\739\ The heavily weighted factors provide
guidance as to how to weigh all the factors present in an alien's case.
Each case has different circumstances that will be reviewed in the
totality of the circumstances. DHS believes that while the heavily
weighted factors are more indicative of an alien's likelihood to become
a public charge, these factors, under the totality of the circumstances
framework, are still evaluated in conjunction with the other relevant
positive and negative factors, and accorded the weight they are due in
an alien's individual circumstances. Further, one factor alone, even
those that are heavily weighted, will not determine whether an alien is
likely at any time to become a public charge.
---------------------------------------------------------------------------
\739\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51178 (proposed Oct. 10, 2018).
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The totality of the circumstances approach is consistent with the
statutory requirement that DHS consider certain minimum factors, as
well as a body of administrative case law that has developed over the
past 50 years, which generally directs the agency to ``consider all the
factors bearing on the alien's ability or potential ability to be self-
supporting.'' \740\ Additionally, as discussed in the NPRM, DHS has
determined that certain factual
[[Page 41442]]
circumstances would weigh heavily because DHS considered them to be
particularly indicative of an alien being more of less likely to become
a public charge.\741\ In the sections that follow, DHS addresses public
comments regarding specific heavily weighted factors.
---------------------------------------------------------------------------
\740\ See Matter of Vindman 16 I&N Dec. 131, 132 (Reg'l Comm'r
1977).
\741\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51198-206 (proposed Oct. 10, 2018).
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Again, the inclusion of heavily weighted factors does not change
that the public charge inadmissibility determination is one that is
made based on the totality of the alien's individual facts and
circumstances. Therefore, DHS disagrees with the commenter's assessment
on the quantitative weight assessment of the factors. DHS does not
review the factors quantitatively, so there is not a factor that has a
weight equal to zero, one, or two. The use of the term ``neutral'' in
the ``Weight of Factor'' column in Table 35 of the NPRM refers to the
fact that the factor is not heavily weighted. The factors would still
be positive or negative unless designated as heavily weighted factor.
Comment: A commenter stated that the heavily weighted negative
factors are highly correlated and ``puts a thumb on the scales''
against low-income immigrants. A couple of commenters stated that the
heavily weighted factors ignore the positive contributions of
immigrants to society. A commenter stated that the heavily weighted
factors in the proposed rule are not realistic given the realities of
the current job market in the United States. A commenter stated that
negatively weighted factors in the proposed rule, such as family size
or being under the age of 18, are misaligned with efforts to grow the
U.S. economy. Another commenter expressed concern that the negative
weighted factors ignore the positive impacts receiving public benefits
have on future self-sufficiency.
Response: As explained in the NPRM, the mere presence of any of the
factual circumstances listed in the rule would not, alone, be outcome
determinative. A circumstance that the rule designates as warranting
heavy weight might be outweighed by countervailing evidence in the
totality of the circumstances.\742\ Other evidence may also be
probative of an alien's likelihood to become a public charge in the
context of an alien's individual circumstances.\743\ Therefore, the
public charge inadmissibility determination, as proposed in the NPRM
and as set forth in this final rule, is neither a formulaic scheme nor
will it ignore important considerations in an alien's case, such as the
alien's ability to work or the family support that she or he receives,
or any other positive contributions by the alien that demonstrate self-
sufficiency.
---------------------------------------------------------------------------
\742\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51198 (proposed Oct. 10, 2018).
\743\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51198 (proposed Oct. 10, 2018).
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DHS also disagrees that the heavily weighted factors are not
realistic given the realities of the current job market in the United
States and that these factors are misaligned with efforts to grow the
U.S. economy. This rule is designed to better ensure that those seeking
to come to and remain in the United States either temporarily or
permanently are self-sufficient, as directed by Congress.\744\ However,
DHS notes that as addressed elsewhere in this rule, this rule does not
aim to address the U.S. economy or the U.S. job market.
---------------------------------------------------------------------------
\744\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Comment: Several commenters stated that four in ten noncitizens who
entered the United States without a green card would have
characteristics that would be considered heavily weighted negative
factors. Many commenters stated that the heavily weighted factors would
disproportionately affect immigrant women; survivors of domestic and
sexual abuse; immigrants with disabilities; immigrants with HIV and
other chronic health conditions; LGBTQ immigrants; children and
families; seniors; multigenerational families; racial and ethnic
minorities; and AAPI immigrants. For example, several commenters stated
that the employability factor would negatively and disproportionately
impact survivors of sexual and domestic violence. A commenter stated
that women are more likely to be victims of harassment at work, and are
more likely to face negative consequences if they speak out. Another
commenter stated that the employability factor and receipt within the
previous 36 months of one or more public benefits above the threshold
would unfairly affect individuals with disabilities. Some commenters
stated that survivors of domestic and sexual abuse would be
disproportionately affected by heavily weighting recent receipt of one
or more public benefits. A commenter stated that the proposed rule's
lookback period will negatively impact pregnant women as well as women
and families with children because they are eligible to receive
benefits for a longer period of time. Another commenter stated that
using recent receipt of public benefits as a heavily weighted negative
factor would have disastrous effects on those receiving Medicaid.
Several commenters stated that the heavily weighted negative factor for
lacking financial means to pay for reasonably foreseeable medical costs
would disproportionately harm immigrants with disabilities, and those
living with chronic medical conditions. Several commenters stated that
this proposed factor would disproportionately affect survivors of
domestic and sexual abuse, and certain subpopulations of Asian
Americans.
Response: DHS understands that the rule may result in more public
charge inadmissibility findings, which may have specific effects on
certain groups. For example, the rule will affect some aliens who have
low incomes; however, income is relevant to the alien's assets,
resources, and financial status, which DHS is required to consider in
determining whether an alien is likely at any time to become a public
charge in the totality of the circumstances. Similarly, DHS understands
that the rule will affect aliens who do not work, but employability has
obvious relevance to whether a person is likely at any time to become a
public charge. Again, an officer evaluates all of the factors in the
totality of the circumstances and an alien may have positive factors
that outweigh lack of past, current, or future employment. Finally, an
alien's recent receipt of public benefits (or an alien's continuing
enrollment in public benefits such as Medicaid) is also relevant to the
alien's assets, resources, and financial status, which DHS is also
required to consider in determining whether an alien is likely at any
time to become a public charge. However, as noted previously, this is
one relevant factor in the totality of the circumstances, and an alien
could always show evidence of disenrollment, or evidence that the alien
obtained private health insurance or other means of support to offset
this heavily weighted negative factor.
As noted elsewhere in this rule, Congress has generally exempted
certain vulnerable populations from the public charge ground of
inadmissibility, such as VAWA, T, and U applicants, and DHS included
these exemptions in the regulatory text in this final rule. DHS,
however, will not adjust the statutory factors to otherwise accommodate
specific groups whom Congress has made subject to the public charge
ground of inadmissibility.
Q. Heavily Weighted Negative Factors
1. Lack of Employability
Comment: One commenter supported lack of employability as a heavily
weighted negative factor, and stated that lack of employability should
be the only disqualifying factor. Another commenter stated that
employment
[[Page 41443]]
alone does not guarantee an immigrant's economic self-sufficiency,
because much of the work done by immigrants is low-wage and does not
fully cover the cost of living in the United States.
Response: DHS agrees that employment alone does not guarantee that
a person will be self-sufficient. DHS disagrees, however, with the
comment suggesting that the lack of employability should be
disqualifying in the public charge inadmissibility determination. All
the factors as listed in the statute and this final rule, including the
heavily weighted negative factors, are reviewed in the totality of the
circumstances. The fact that an alien is not a full-time student and is
authorized to work but cannot demonstrate employment history or a
reasonable prospect of future employment will not be the sole factor
that would lead to a determination that the applicant is inadmissible
as likely at any time to become a public charge.\745\ Even where an
alien has this heavily weighted negative factor, that factor, in and of
itself, will not render an applicant likely at any time to become a
public charge in the totality of the circumstances analysis.
---------------------------------------------------------------------------
\745\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51178 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
DHS will not implement the suggestion that the lack of
employability be the only disqualifying factor. As noted above, none of
the heavily weighted negative factors is disqualifying and further, DHS
has determined that there are other factual circumstances (e.g.,
income, assets, resources at or above 250 percent) apart from
employability that are also particularly indicative of an alien being
more of less likely to become a public charge and therefore, are
heavily weighted negative factors.
Comment: A commenter stated that the factor is misleadingly
characterized in the preamble as a ``Lack of Employability.'' The
commenter indicated that it is not clear how recently a person needs to
have worked, or how they would demonstrate the prospect of future work,
or even the type of work that would avoid the application of this
heavily weighted negative factor. Some commenters stated that the
employability heavily weighted negative factor was vague and poorly
defined.
Response: DHS does not believe that the heading for this factor is
misleading. The factor relates to whether an alien who is not a full-
time student and is authorized to work, is able to demonstrate current
employment, recent employment history, or a reasonable prospect of
future employment. Because this factor assesses whether an alien who
has work authorization has worked or can demonstrate the ability to
work in the future, it goes directly to whether the alien is
employable, which DHS believes is particularly indicative of whether an
alien is more likely to become a public charge.
With respect to the commenter's objections regarding vagueness, DHS
believes it is reasonable and consistent with a totality of the
circumstances approach to not limit the review of employability to
specific time periods or specific types of employment. Form I-485
requests information on the last 5 years of employment. An applicant
may be able to demonstrate prospects of future employment through their
employment history and education and skills.
2. Current Receipt of One of More Public Benefit
Comment: A few commenters stated that considering current receipt
of one or more public benefits is not in keeping with the totality of
circumstances test. In addition to this, one commenter stated that
including receipt of one or more public benefits to the public charge
determination was a drastic change in the scope of the test. One
commenter stated that including public benefits as a heavily weighted
negative factor ignores the contributions of low-wage workers to
society and the economy. A few commenters stated there was not
sufficient evidence to state that receipt of one or more public
benefits is indicative of someone becoming a public charge. Other
commenters said that some people who are self-sufficient will access
benefits, and that this has been supported by congressional intent.
Response: DHS disagrees that considering prior or current receipt
of public benefits is inconsistent with the totality of the
circumstances test. As discussed in the NPRM, DHS believes that receipt
of benefits is a key gauge to determining the likelihood of future use
of public benefits and becoming a public charge. All else being equal,
a person who is currently receiving public benefits is more likely to
receive public benefits in the future than a person who is not
currently receiving such benefits. The 1999 Interim Field Guidance
recognizes this by directing officers to consider current and past
receipt of covered benefits.\746\ DHS appreciates that low-wage workers
contribute to society and the economy but believes that including
public benefits as a heavily weighted negative factor is an appropriate
consideration in determining who is likely to become a public charge.
---------------------------------------------------------------------------
\746\ See Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 FR 28689, 28690 (May 26, 1999).
---------------------------------------------------------------------------
Comment: One commenter stated that the heavily weighted factors
would impair rather than advance the financial stability of immigrants.
A commenter stated the negative factors in the rule ignore the role
public benefits and family support play in advancing self-sufficiency.
Another commenter stated that using receipt of one or more public
benefits as a heavily weighted factor would hurt the ability of public
benefit-granting agencies to combine multiple benefits that work in
concert to improve self-sufficiency of the recipients.
Response: DHS agrees that public benefits can assist in advancing
self-sufficiency but believes the rule is a proper interpretation of
the congressional mandate regarding the public charge provisions.\747\
Further, the rule does not prevent public benefit-granting agencies
from working to improve the self-sufficiency of recipients, although it
does create consequences for an alien's receipt of certain public
benefits.
---------------------------------------------------------------------------
\747\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
Comment: One commenter said this factor was appropriately weighted
but indicated that an alien's reliance on a foreign government
assistance program should not be considered as a negative factor, as in
many cases, the dependence on such programs is customary, or the
program is designed to be one where the immigrant would not have had to
opt into.
Response: DHS appreciates the comment and agrees that the factor is
appropriately weighted. DHS did not propose and will not consider
public benefits provided by foreign countries.\748\ Public benefits in
foreign country have different standards and objectives. For example,
in some countries, such as Canada, healthcare is provided on a national
basis and is not based on income eligibility and not aligned to a need-
based standard. In addition, the inadmissibility determination is
whether a person is likely to become a public charge in the United
States.
---------------------------------------------------------------------------
\748\ See 8 CFR 212.21(b). See Inadmissibility on Public Charge
Grounds, 83 FR 51114, 51158-74 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
3. Receipt of Public Benefits Within 36 Months Before Filing
Comment: Some commenters stated that a retrospective test is
inconsistent with the prospective nature of the
[[Page 41444]]
public charge inadmissibility determination. Other commenters asserted
that weighing receipt of public benefits within the previous 36 months
is inconsistent with the totality of circumstances test, and
represented a significant and troubling departure from current federal
policy. A commenter commented that the ``studies provide zero evidence
that previous receipt of the newly added benefits is an indicator of
future use.'' A few commenters commented that receipt of public
benefits is a clear benchmark that an immigrant was deemed eligible for
a benefit by another Federal agency and it is therefore inappropriate
to consider previous receipt of public benefits. Several commenters
stated that if the specific circumstances that led to the use of public
benefits no longer apply, the previous use of benefits is irrelevant.
One commenter added to this and said that they opposed the proposed
addition of receipt of public benefits within last 36 months of filing
application as there are many cases where someone needs help only
temporarily. Another commenter stated that many individuals would just
disenroll from benefits for 3 years and re-enroll once they receive
adjustment of status, but in the meantime could suffer. Many commenters
stated that a lookback period disregards the positive effects of public
benefits, including future self-sufficiency. Several commenters stated
that the 36-month rule is retrospective and has no place in a rule that
is meant to be forward looking, and commented that prior receipt of
public benefits has no bearing on whether an individual will be
dependent on the Government in the future. A commenter indicated that
the past receipt of public benefits should receive no weight. One
commenter expressed concern that by using a lookback period, even
individuals who were able to increase their earnings to a point where
assistance is no longer needed will be penalized. Adding to this, a
commenter that the proposed lookback period will disproportionately
hurt those who are gainfully employed and may therefore be eligible to
access benefits for longer than those who are not employed.
Response: DHS understands that a person may no longer need public
benefits in the future if the circumstances that led to the use of
public benefits no longer apply, and DHS would take that into
consideration. DHS would take into consideration that the public
benefit was used temporarily and that the person may not be likely to
receive public benefits in the future. No longer receiving public
benefits because of stable employment or income would be a
consideration in the totality of the circumstances. However, DHS
believes, as discussed in the NPRM, that past receipt of public
benefits for more than 12 months in the aggregate within 36 months is
an indicator that an alien will continue to receive (or again receive)
public benefits, and therefore is likely to become a public charge.
Comment: A commenter indicated that the 36-month standard is
unreasonable because the study conducted by HHS in 2001 is outdated and
does not appear to provide a reasonable basis for the 36-month period
that DHS has included in this proposed rule. A couple of commenters
stated there was not adequate rationale to support negatively weighting
receipt of public benefit within the prior 36 months. Another commenter
stated that it was unclear how prior benefit use would be weighted. A
couple of commenters stated that the 36-month rule is unfair because no
one could have predicted this rule or can predict their circumstances,
and would cause great fear and confusion.
Response: As discussed in the NPRM, some studies suggest that
although most people who leave welfare programs are working after they
leave those programs, people may come back to receive additional public
benefits.\749\ As explained in the NPRM, DHS would view past receipt of
public benefits within 36 months as an indicator that an alien will
continue to receive (or again receive) public benefits, and therefore
is likely to become a public charge. With respect to the statement that
the study is outdated or insufficient, DHS notes that although there
are limitations to the data, this study was particularly of interest in
that it examined repeated return to public benefit programs.
---------------------------------------------------------------------------
\749\ See Lashawn Richburg-Hayes & Stephen Freedman, A Profile
of Families Cycling On and Off Welfare 4 (Apr. 2004), available at
https://aspe.hhs.gov/system/files/pdf/73451/report.pdf (last visited
July 26, 2019). See also U.S. Dep't of Health & Human Servs., Office
of the Assistant Sec'y for Planning & Evaluation, Status Report on
Research on the Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/status-report-research-outcomes-welfare-reform-2001 (last visited July 26, 2019).
---------------------------------------------------------------------------
As explained elsewhere in this rule, DHS has also clarified as part
of the definition of receipt of public benefits, that although an
application or certification for public benefits is not considered
receipt, DHS believes that the application for, or being certified to
receive in the future to receive public benefits may suggest a
likelihood of future receipt. Correspondingly, DHS also amended the
heavily weighted factor to state an alien's receipt, being certified to
receive, or approval to receive one or more public benefits, as
defined, for more than 12 months within any 36 month period, beginning
from 36 months prior to the alien's application for admission or
adjustment of status, will be considered a heavily-weighted negative
factor in the totality of the circumstances assessment.
The NPRM explains that the weight given to public benefits will
depend on whether the alien received multiple benefits, how long ago
the benefits were received, and the amounts received.\750\ For example,
the receipt of a public benefit five years ago may be a negative
factor; however, a public benefit received six months before the
adjustment of status application would be considered a heavily weighted
negative factor. DHS will consider receipt of (or application or
certification for) public benefits after the effective date of the
rule. DHS will also consider those benefits that were previously
considered under the 1999 Interim Field Guidance including SSI, TANF,
State and local cash assistance programs that provide benefits for
income maintenance (often called ``General Assistance'' programs), and
those benefits received (including Medicaid) to support the alien's
institutionalization for long-term care. The publication of the rule
and effective date provides sufficient notice for people to cancel
current receipt of public benefits.
---------------------------------------------------------------------------
\750\ This proposed policy is generally consistent with
longstanding policy affording less weight to benefits that were
received longer ago in the past.
---------------------------------------------------------------------------
Comment: One commenter requested an explanation of the necessity of
the 36-month lookback period as most immigrants who would qualify for
public benefits are either exempt from public charge determinations or
have already adjusted status.
Response: As explained previously, the 36-month component of the
public charge threshold is an appropriate timeframe to determine
whether an alien is more likely than not to become a public charge at
any time in the future. That said, DHS will not make a public charge
inadmissibility determination with respect to aliens who are exempt
from public charge inadmissibility or who have already adjusted status
to that of a lawful permanent resident, and would not otherwise be
considered applicants for admission. Therefore, DHS will not consider
whether such aliens have received public benefits. With respect to
other aliens, as discussed in this final rule, DHS has added the
consideration of credible and probative evidence presented by the
[[Page 41445]]
alien from a Federal, state, or local government agency that
demonstrates the alien is not eligible for one or more public benefits.
This information will be taken into consideration in the totality of
the circumstances.
4. Financial Means To Pay for Medical Costs
Comment: Some commenters stated that many people do not have the
ability to afford their own healthcare due to low wages and the high
cost of healthcare, making this factor unfair to low-wage workers and
immigrants. Another commenter expanded on this and remarked that this
factor will simply exclude individuals without substantial resources
and who do not understand the complicated healthcare system in the
United States. One commenter expressed concern that the rule asserts
that a sign of self-sufficiency is having enough cash on-hand to deal
with serious illness, asserting that most Americans born in this
country could not pass this test. Another commenter stated that it is
impossible to predict an individual's future healthcare costs.
Response: The basis for including Medicaid in the rule is discussed
earlier in this preamble. Even if the alien does not have health
insurance, he or she should have sufficient funds to provide for any
reasonably foreseeable medical costs, which is only one consideration
in the totality of the circumstances. Further, DHS will not consider
assistance for an ``emergency medical condition'' as provided under
section 1903(v) of Title XIX of the Social Security Act, 42 U.S.C.
1396b(v), and in implementing regulations at 42 CFR 440.255(c) as part
of the public charge inadmissibility determination. Having health
insurance or being able to pay for medical expenses is only one factor
in the totality of the circumstances. This factor does not call for the
alien to be able to pay for medical costs that are not reasonably
foreseeable.
Comment: Commenters suggested that DHS eliminate the proposed
heavily weighted negative factor for an alien who (1) has been
diagnosed with a medical condition that is likely to require extensive
medical treatment or institutionalization or that will interfere with
the alien's ability to provide for himself or herself, attend school,
or work, and who (2) is uninsured and has neither the prospect of
obtaining private health insurance, nor the financial resources to pay
for reasonably foreseeable medical costs related to a medical
condition. A commenter stated that the factor is applicable even if the
applicant has not used public benefits and would keep most people with
disabilities from entering or remaining in the United States. The
commenter further stated that assigning the factor a heavy weight would
codify discriminatory assumptions regarding people with disabilities.
The commenter stated that disability should remain a factor to be
measured on a case-by-case basis free of an automatically assigned
heavy negative weight.
Response: DHS will retain the heavily weighted negative factor
based on the applicant's lack of financial means to pay for reasonably
foreseeable medical costs if the alien does not have private health
insurance. As established in the NPRM, certain chronic medical
conditions can be costly to treat and certain conditions may adversely
affect an applicant's ability to obtain and retain gainful employment,
or to otherwise support himself or herself. Evidence outlined in the
NPRM also indicated that individuals in poor to fair health are more
likely to access public benefits to treat their medical condition. DHS
agrees with the commenter that this factor may be applicable even if
the applicant has not received any public benefits, but disagrees that
this factor would keep most people with disabilities from entering or
remaining in the United States. Since the public charge inadmissibility
determination is made on a case-by-case basis and in the totality of
the alien's individual circumstances, an applicant could overcome this
heavily weighted negative factor through presentation of other
evidence.
Additionally, DHS notes that the fact that an applicant has a
disability does not mean that the applicant has this heavily weighted
negative factor, and disagrees that the rule codifies discriminatory
assumptions. As is the case with any other applicant, individuals with
disability may establish their self-sufficiency notwithstanding their
medical condition that is likely to require extensive medical treatment
or institutionalization or that will interfere with the alien's ability
to provide for himself or herself, attend school, or work. Such
applicants may do so by providing proof of income, employment,
education and skills, private health insurance, and private resources.
Comment: One commenter expressed concern that this factor would
allow DHS personnel to overrule the opinions of medical professionals
in a move that would invite ``unbridled speculation and
discrimination.''
Response: DHS disagrees that this heavily weighted negative factor
would permit DHS to overrule the opinions of medical professionals. In
reviewing the Form I-693 or DOS medical examination form, USCIS will be
relying on the diagnoses set forth by the civil surgeon or designated
panel physician on such forms submitted in support of the application
for the diagnosis of any medical conditions; USCIS will also rely on
evidence, as provided by the applicant, of a medical condition that is
likely to require extensive medical treatment or institutionalization
after arrival, or that will interfere with the alien's ability to care
for himself or herself, to attend school, or to work. DHS will not
speculate as to the cost of medical conditions or the ability of a
person to provide for himself or herself or go to school or work.
Comment: Multiple commenters stated that farmworkers often lack
health insurance, even if offered by their employer, because they
cannot afford it, and stated this factor is unfair to these workers.
Response: For nonimmigrants' admission, DHS will also consider the
proposed length of stay of the nonimmigrant and the assets, resources
and financial status of the applicant. Some employers may provide for
medical assistance for the duration of the alien's stay. Whether a
person has the ability to pay for reasonably foreseeable medical costs
is but one factor in the totality of the circumstances. As previously
indicated for extension of stay and change of status purposes, DHS
removed the forward looking determination and will only consider
whether the nonimmigrant received public benefits during the stay.
5. Alien Previously Found Inadmissible or Deportable Based on Public
Charge
Comment: Some commenters asserted that by using whether a person
was previously found inadmissible or deportable as a public charge as a
heavily weighted factor, DHS would be ignoring the prospective nature
of the public charge assessment. One commenter stated that since the
prior finding of not being a public charge is not accorded comparable
weight in the proposed rule this factor would be arbitrary and unfair.
The commenter stated that in addition, because the only heavily
weighted positive factor that could counterbalance this one is income
or assets above 250 percent of the FPG, reliance on such a factor would
arbitrarily impose a more difficult evidentiary hurdle for immigrants
below that level than for immigrants above it without rational
justification, as well as disproportionately harm immigrants of color,
who are less likely to earn above that level, as described infra in our
[[Page 41446]]
comments on the 250 percent criteria. Another commenter warned that
this factor would be an arbitrary addition and would serve no purpose
other than to deter individuals from applying for adjustment of status
out of fear it would ruin their future attempts to gain lawful
permanent residence status.
Response: DHS disagrees that considering a prior inadmissibility
determination as a heavily weighted negative factor would be arbitrary
and unfair or that considering an alien's prior admissibility under the
public charge ground would merit comparable favorable treatment. A
previous finding of inadmissibility on public charge grounds would
likely be documented. By contrast, there would not necessarily be a
statement of the Government's reasons for admitting the alien or
approving his or her application for adjustment of status.
DHS acknowledges that an alien's circumstances may have changed
since a previous application for admission or determination of
inadmissibility or deportability based on the public charge ground. DHS
would take those new circumstances into account in the totality of the
circumstances when making a new public charge inadmissibility
determination. There is no requirement to specifically ``balance out''
a heavily weighted negative factor with a heavily weighted positive
one. Rather adjudicators will consider the alien's specific
circumstances within the totality of the circumstances framework when
assessing the alien's likelihood of becoming a public charge, and will
afford specific facts the weight they are due in the context of this
rule's adjudicative framework.
R. Heavily Weighted Positive Factors
1. Proposed Standard
Comment: Several commenters stated that having the 250 percent
threshold as the sole heavily weighted positive factor in the public
charge test would represent a fundamental change to immigration policy
and the immigrant population. A commenter stated a bright-line positive
or negative income threshold subverts the totality of circumstances
consideration. Some commenters stated that the 250 percent threshold
was another example of double counting in public charge inadmissibility
determinations under the proposed rule. Another commenter stated the
250 percent threshold was there to prevent immigration through
administrative means. Another commenter stated that those falling
between 125 percent and 250 percent of the FPG would have their cases
improperly adjudicated. One commenter stated the 250 percent threshold
does not go far enough to help qualified individuals overcome the
public charge test. Other commenters stated that the proposed heavily
weighted positive factor ignores the positive contributions of
immigrants. One commenter stated that using 250 percent as the sole
positive factor undermines and minimizes the value of other key
economic and wealth building milestones. Additionally, some commenters
stated that the proposed heavily weighted positive factors undervalue
those who contribute to society in nonmonetary ways, such as stay at
home parents. Another commenter stated that the 250 percent threshold
functions as a ``wealth-test.'' Another commenter said that most
legally present noncitizens would not meet the 250 percent FPG
threshold. Similarly, other commenters stated that much of the U.S.
population would not qualify to have a heavily weighted positive
factor. Many commenters said the threshold for a family of four is
higher than the 2017 median household income for the United States
($63,000 vs. $61,372). One commenter stated that in some regions of the
United States those earning above 250 percent FPG would be among the
wealthiest in their communities. One commenter stated that the proposed
250 percent FPG threshold would do little to improve the systemic
issues of income inequality in the United States.
Response: DHS disagrees that the rule provides a wealth test. The
250 percent FPG standard is a heavily weighted positive factor and not
a requirement that aliens need to meet in order to overcome a public
charge inadmissibility finding. As previously stated, income is one
factor in the totality of the circumstances, and any income above 125
percent of the FPG is a positive factor.
Comment: Several commenters cited research showing there was not a
statistically significant difference in receipt of benefits between
immigrants above and below the 250 percent threshold. Some commenters
stated that the 250 percent FPG threshold would have a perverse effect
of discouraging people from supporting family members out of fear it
would change their public charge determination.
Response: DHS acknowledges that certain tests involving estimates
of noncitizens yielded results in Table 28 of the NPRM that were not
statistically significant, which in some cases was a consequence of
small sample sizes due to forming estimates on only noncitizens instead
of foreign-born more generally. DHS chose to study noncitizens
specifically despite the inherent issues in making inferences from
small sample sizes, since the population of noncitizens more closely
corresponded to the individuals who would be subject to the public
charge rule than foreign-born generally, which includes naturalized
citizens. In Table 27 of the NPRM, DHS showed that there is lower
public benefit program participation rates among those in higher income
categories for the population of citizens in the tables listed in the
NPRM. Lower participation rates may also be shown in the overall
population by averaging across both citizens and noncitizens (i.e.,
Tables 27 and 28 of the NPRM). Table 28 of the NPRM is not inconsistent
with such a relationship. The justification still holds for using
income as a percentage of FPG in the public charge determination, and
persons with an income at a higher percentage of the FPG are less
likely the to receive public benefits than those at a low percentage.
Further, DHS disagrees that the 250 percent threshold would discourage
people from supporting their families as 125 percent is the threshold
for positive consideration in the totality the circumstances and the
250 percent threshold a heavily weighted positive factor but not a
requirement. DHS acknowledges that the income threshold may be harder
to meet if the alien has a larger household size, however, DHS would
also take into account any income, assets, or resources the other
household members also provide. Nevertheless, family status is still a
mandatory factor as established by Congress.\751\
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\751\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
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Comment: One commenter stated that heavily weighing household
income at or above 250 percent FPG would confuse the threshold for the
affidavit of support.
Response: The affidavit of support is a different requirement and
has a specific form associated with it. The affidavit of support
threshold is 125 percent of the FPG of the sponsor's income and that
threshold is not being changed with this rule. The income threshold for
the alien's household is part of this rule's totality of the
circumstances public charge assessment is 250 percent of the FPG.
Income at this level is considered a heavily weighted positive factor
(as opposed to income at the 125 percent of the FPG (100 percent for
member of the U.S. Armed forces in active duty), which is a positive
consideration).
[[Page 41447]]
Comment: Another commenter stated there may not be enough time for
migrants under certain visa classifications to seek, obtain, and begin
a job with the income necessary to meet the 250 percent of FPG level.
Response: The burden is upon the alien to establish that he or she
is eligible to be admitted into the United States. Further, certain
nonimmigrant and immigrant classifications require the employment to be
established before the nonimmigrant visa is issued. That said, DHS
notes that there is no requirement that an applicant subject to the
public charge ground of inadmissibility demonstrate that he or she has
income at or above 250 percent of the FPG in order to gain admission or
adjustment of status. Rather, the fact that an applicant who has income
at or above 250 percent of the FPG will weigh heavily in favor of
finding the applicant is admissible in the totality of the
circumstances, but is not outcome determinative. Therefore, an
applicant who has household income below 250 percent of the FPG will
not, based on that fact alone, be denied admission or adjustment of
status.
Comment: Several commenters stated the proposed 250 percent heavily
weighted positive threshold would disproportionately affect members of
marginalized communities; hard-working low- and middle-income families;
immigrants of color; South Asian immigrants; Latino immigrants; Muslim
immigrants; immigrants with disabilities; those with pre-existing
health conditions; women and single mothers; victims of domestic and
sexual abuse; families with children who have special healthcare needs;
and the health and well-being of children of immigrant parents.
A few commenters stated that the proposed heavily weighted positive
factor would increase family separations and would have a negative
impact on family-based immigration. Many commenters stated that the
proposed heavily weighted positive factor would effectively bar lower
income immigrants; disregards the efforts and contributions of low-wage
workers; and that the majority of legally present noncitizens would
fail to meet the 250 percent FPG threshold.
Response: DHS understands that the rule may affect certain groups
who may have low incomes; however, income is but one factor in the
totality of the circumstances and will not serve as the sole reason to
find an alien inadmissible based on public charge grounds. As
previously indicated, if an applicant has household income at or above
250 percent of the FPG it will be treated as a heavily weighted
positive factor because it is particularly indicative of an alien being
less likely to become a public charge. An applicant subject to the
public charge ground of inadmissibility is not required to demonstrate
that he or she has income at or above 250 percent of the FPG in order
to establish admissibility, and an alien's failure to demonstrate such
income does not receive ``negative'' weight in the totality of the
circumstances unless that income is below 125 percent of the FPG. The
standard only serves to assist individuals in establishing self-
sufficiency.
Comment: A commenter stated that many couples seeking adjustment of
status would be affected by the 250 percent threshold, as many of these
visas prohibit immigrants from working. The commenter stated that
according to one analysis, about 31 percent of foreign-born spouses
were unemployed when they applied for a marriage-based green card, as
many were prohibited from working on their nonimmigrant visas, such as
the F-1 or F-2 student visas, or B-2 visitor visas. For those who did
work, about 22 percent of them held jobs that would unlikely meet the
250 percent income threshold, and even if DHS were to allow both
spouses to pool their income to meet the new threshold, 36 percent of
couples could still find themselves unable to qualify for a marriage
green card. The commenter stated that it is basic common sense that a
student who is prohibited from working would likely have some student
loans, potentially credit card loans, and would not have significant
savings, and that the rule would allow primarily the independently
wealthy to be eligible for marriage-based adjustment of status.
One commenter said the proposed heavily weighted positive factor
creates a ``Catch-22'' for nonimmigrants on student visas who are
married to U.S. citizens because they are not allowed to work. Some
commenters cited a study that many H-1B visa holders make less than the
amount necessary to support a family of five and qualify for the
proposed income threshold of 250 percent of FPG. Another commenter
stated that the proposed rule would negatively impact skilled workers
who are supporting families and are making prevailing, middle-class
wages. One commenter mentioned that the vast majority of scientific
researchers applying for permanent resident status based upon an
approved EB-1A, EB-1B or NIW petition do not meet this 250 percent
income requirement. Another commenter also stated that some highly
skilled employees such as post-doctoral research fellows may not make
enough money to qualify for the heavily weighted positive factor. Some
commenters remarked that many skilled workers are compensated with
stock options as part of their regular income, and it is unclear if
this will be considered under the heavily weighted positive factor. One
commenter expressed concern that the 250 percent threshold does not
take into account that many workers will increase their income the
longer they work. A few commenters stated that that the 250 percent
threshold would pose a unique challenge for California, where it would
make it more difficult to extend the status of H-1B visa holders and
create a labor shortage for California's agriculture industry, which
heavily relies on the H-2A visa program.
Response: DHS understands that not everyone is authorized to work
or needs to work in order to be self-sufficient. As previously
indicated the 250 percent of the FPG standard is not a requirement to
establish admissibility and is one consideration in the totality of the
circumstances. Further, when adjudicating a nonimmigrant's application
for extension of stay or change of status, USCIS will review whether
the alien has established that he or she has not received, since
obtaining the nonimmigrant status he or she is seeking to extend or
change, any public benefit as defined in 8 CFR 212.21(b), for more than
12 months, in the aggregate, within a 36 months period. The heavily
weighted factors do not apply in that context.
2. Additional Positive Heavily Weighted Factors
Comment: One commenter said that the 250 percent of the FPG
standard should be downgraded from ``highly positive'' to just
considered. Some commenters stated that earning 125 percent of the FPG
should be a heavily weighted positive factor.
Response: DHS declines to adopt the commenter's suggested changes
in this final rule. The rule already provides for 125 percent of the
FPG as a positive factor in the totality of the circumstances. Making
250 percent of the FPG a general positive factor instead of a heavily
weighted positive factor would further limit an alien's ability to
establish admissibility. An alien would not need to establish income at
or above 250 percent of the FPG in other to be admitted into the United
States. Any income between 125 percent and 250 percent of the FPG is
still a positive factor in the totality of the circumstances. The 125
percent income
[[Page 41448]]
threshold is based on the income threshold set by Congress for sponsors
for a Form I-864, which is required for most family-based AOS
applications and some employment-based AOS applications. In order to
maintain consistency with the income threshold set forth in the Form I-
864 context, DHS believes that the 125 percent threshold is appropriate
for use in the public charge rule and will not lower the threshold. Any
household income between 125 percent and 250 percent of the FPG is
considered a positive factor in the totality of the circumstances.
a. Affidavit of Support
Comment: A commenter stated that the proposed rule mandates denial
for anyone who cannot provide an affidavit of support, yet the presence
of one is not a heavily weighted positive factor under the proposed
rule. Several commenters stated the filing of a legally enforceable
affidavit of support by a sponsor should be a heavily weighted positive
factor and it should be sufficient to overcome any heavily weighted
negative factors.
Response: DHS appreciates the comments but declines to establish
the affidavit of support as a heavily weighted positive factor. The
submission of an affidavit of support under section 213A of the Act, 8
U.S.C. 1183a is a requirement for certain categories of immigrants. See
section 212(a)(4)(C) and (D) of the Act, 8 U.S.C. 1182(a)(4)(C) and
(D). Not all aliens are required to submit the affidavit of support.
According to section 212(a)(4) of the Act, 8 U.S.C. 1182 (a)(4), the
lack of a sufficient affidavit of support, where required, renders an
alien inadmissible on the public charge ground. Congress mandated the
presence of an affidavit of support in certain cases as a separate
requirement, but did not establish submission of the affidavit of
support as a mandatory factor in all public charge inadmissibility
determinations.
There is no indication that Congress believed that a sufficient
affidavit of support would warrant a finding that the alien is not
likely becoming a public charge. Had Congress believed that to be true,
Congress would have specified such a provision in the statute. Instead,
Congress listed the other factors as the minimum mandatory factors in
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), which do not include
the affidavit of support. For these reasons, and consistent with
congressional intent, DHS will retain the affidavit of support as a
factor considered in the totality of the circumstances, but will not
make it a heavily weighted positive factor.
b. Family Relationships
Comment: Commenters suggested that the rule add close family
relationship to the U.S. citizen or lawful permanent resident, or
having a relative in the United Stated providing support, as a heavily
weighted positive factor because it is strongly associated with self-
sufficiency. The commenter notes that immigrants overwhelmingly come to
the United States to work and advance their own and their families'
financial prospects. The commenter cited their own report that
estimates that 2.25 million undocumented persons and 212,000
nonimmigrants have a qualifying family relationship to a U.S. citizen
or lawful permanent resident living in their household that makes them
potentially eligible for an immigrant visa or adjustment to lawful
permanent resident status. The report further indicated that out of
this population, 982,000 live in families that earn at least 250
percent of the FPG.
Response: DHS will not add a close family relationship to the U.S.
citizen or lawful permanent resident as a heavily weighted positive
factor. There is insufficient evidence that the fact that an
applicant's household includes a U.S. citizen or lawful permanent
resident is indicative of self-sufficiency, or that having family
members in the United States is in and of itself indicative of self-
sufficiency. As with every mandatory factor, an applicant's family
status will not serve as the sole basis of a finding of
inadmissibility, as this factor must be considered in the totality of
the circumstances.
c. English Ability
Comment: One commenter suggested that the ability to speak English
well or very well should be a heavily weighted positive factor. The
commenter indicated that the totality of the circumstances test affords
insufficient weight to factors strongly associated with self-
sufficiency and requested additional heavily weighted positive factors.
The commenter's study found that 1.32 million of the 2.25 million that
would be directly affected by the proposed rule speak English well or
very well.
Response: DHS will consider whether the alien is proficient in
English or proficient in other languages in addition to English as part
of the public charge inadmissibility determination. The ``speaking
English well or very well'' language comes from the SIPP survey
analysis in which people assessed their own speaking abilities. As
provided in the NPRM, the better the person spoke English, the higher
the income he or she obtained. People who spoke a language other than
English at home were less likely to be employed, and less likely to
find full-time work when employed.\752\ The SIPP data provided in the
NPRM indicates that the rate of coverage of non-cash benefits among
those who spoke English either well or very well (about 15 to 20
percent) was significantly lower than the rate among those who either
spoke English poorly or not at all (about 25 to 30 percent). Further,
DHS understands that not all employment requires English proficiency.
DHS believes that while it is appropriate to consider English
proficiency in the consideration of likelihood to become a public
charge in the future, it is inappropriate to include English
proficiency as a heavily weighted positive factor in light of the fact
that many jobs do not require it.
---------------------------------------------------------------------------
\752\ See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census
Bureau, How Does Ability to Speak English Affect Earnings? 6 (2005),
available at https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf (last visited July 26, 2019).
---------------------------------------------------------------------------
d. Education
Comment: One commenter suggested that a high school education or
beyond should be a heavily weighted factor. The commenter stated that
the totality of the circumstances test affords insufficient weight to
factors strongly associated with self-sufficiency and requesting
additional heavily weighted positive factors.
Response: The rule provides that DHS would consider whether the
alien has a high school degree or higher education as positive factors.
However, a person's education may or may not assist him or her in
becoming self-sufficient, depending on other factors specific to the
alien's circumstances, such as the job market where the alien lives,
outstanding liabilities and support obligations, or other personal or
family circumstances. Therefore, DHS will not include education as a
heavily weighted positive factor.
e. Private Health Insurance
Comment: One commenter suggested that private health insurance
coverage should be considered as a heavily weighted positive factor, as
it is strongly associated with self-sufficiency. The commenter
explained that 1.1 million individuals have health insurance (out of
the 2.25 million that would be directly affected by this rule based on
a study conducted by the commenter, a non-profit think-tank and
educational institute focused on international migration) and argued
that the rule's totality of the circumstances test affords
[[Page 41449]]
insufficient weight to factors strongly associated with self-
sufficiency.
Response: DHS agrees that having private health insurance is a
strong indicator of self-sufficiency. DHS analyzed the SIPP data and
found that individuals who have private health insurance are
significantly less likely to be receiving one or more enumerated public
benefits in this rule than those individuals who do not have private
health insurance. The rate of receipt of public benefits among those
covered by private health insurance was 4 percent for citizens and 6
percent for noncitizens, while the rate of receipt for those not
covered by private health insurance was 40 percent for citizens and 30
percent for noncitizens. DHS has therefore revised the rule to include
a heavily weighted positive factor for an alien who has private health
insurance, subject to two provisos. First, the health insurance must be
appropriate for the expected period of admission.\753\ Second, the
health insurance may not be subsidized via premium tax credits
(including advance premium tax credits) authorized under the ACA.
Although individuals receiving such benefits have significantly lower
odds of concurrently receiving the public benefits designated in this
rule, they receive government subsidies to fulfill a basic living need,
and qualify on a means-tested basis.\754\ DHS does not believe it is
appropriate to include a heavily weighted positive factor for this type
of health insurance, although this type of health insurance would
generally be considered positively as part of the consideration of the
totality of the alien's circumstances, such as with respect to the
alien's ability to pay for reasonably foreseeable health care costs.
Private health insurance purchased through an ACA Marketplace without
such credits will count for purposes of this heavily weighted positive
factor.
---------------------------------------------------------------------------
\753\ See USCIS analysis of private health insurance in Wave 1
of the 2014 Survey of Income and Program Participation (SIPP).
Private health insurance includes coverage through another person in
the household and Medigap, and does not include Medicaid, Medicare
parts B or D, or military- or government-provided insurance.
\754\ USCIS was unable to identify a variable in the SIPP data
for private health insurance paid for using a premium tax credit.
USCIS also analyzed the SIPP data on private health insurance and
receipt of public benefits, while controlling for income levels. The
data support the proposition that having private health insurance,
regardless of income level, is a significant determinant of whether
the individual receives the designated public benefits. For example,
13.2 percent of individuals with private health insurance at an
income level between 125 percent and 250 percent of FPG receive the
designated public benefits. By contrast, 54.8 percent of individuals
without private health insurance, at that same income level, receive
the designated public benefits. Similarly, 10.3 percent of
individuals with private health insurance at an income level between
250 percent and 400 percent of FPG receive the designated public
benefits. By contrast, 47.5 percent of individuals without private
health insurance, at those same income levels, receive the
designated public benefits. See USCIS analysis of private health
insurance and income level in Wave 1 of the 2014 Survey of Income
and Program Participation (SIPP).
In addition, the data also appear to show a relationship between
income level and receipt of public benefits, within the population
of individuals who have private health insurance. For example, 15.3
percent of individuals with private health insurance below 125
percent of the FPG receive the designated public benefits. Receipt
levels decline as income rises (13.2 percent for individuals with
income levels between 125 percent and 250 percent of FPG; 10.3
percent for individuals with income levels between 250 percent and
400 percent of FPG; and 3.2 percent for individuals with income
levels above 400 percent of FPG). See USCIS analysis of private
health insurance and income level in Wave 1 of the 2014 Survey of
Income and Program Participation (SIPP).
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f. Work History
Comment: One commenter stated that work history, without regard to
wage history, should be a heavily weighted positive factor. This
commenter stated that the essence of a ``public charge'' is where an
individual is not willing or able to work and the rule should not focus
on workers that earn low wages. This commenter explained that farm
workers toil in extremely difficult conditions, performing work few
others are willing to do, and at a low compensation rate that cannot
possibly sustain a family, through no fault of their own. Another
commenter stated that entrepreneurship should be considered a heavily
weighted factor, as it is strongly associated with self-sufficiency.
Response: The rule provides for employment history to be considered
as a positive factor. However, every factor must be considered in the
totality of the circumstances. There might be instances where a person
has long-term employment, but is not able to be self-sufficient and
must receive public benefits and conversely, there might be instances
that a person does not have long-term employment and would otherwise be
self-sufficient. DHS believes that income is a proper consideration in
the totality of circumstances and as a heavily weighted positive factor
since it is indicative of self-sufficiency. DHS also recognizes that
different types of employment may provide additional income, however,
DHS does not believe it is appropriate to specify just one form of
employment as a heavily weighted positive factor. Therefore, DHS will
not include entrepreneurship as a heavily weighted positive factor.
g. Receipt of Grants, Contracts, and Licensures
Comment: A commenter suggested that receipt of grants, contracts,
and licensures should be a heavily weighted positive factor. The
commenter stated that excluding grants, contracts, and licensures from
consideration was not appropriate and that an individual's receipt of a
grant, contract, or license is likely demonstrative of their ability to
support themselves without recourse to public benefits, as such receipt
is indicative of ongoing work, skills/proficiencies, and qualifications
recognized by the relevant government entity. The commenter further
indicated that grants, contracts, and licensures may have a direct
bearing on the future likelihood of an individual becoming a public
charge and thus should be recognized as a positive factor.
Response: DHS is not excluding grants, contracts, and licensures
from the public charge inadmissibility determination. DHS agrees that
grants, contracts, and licensures are indicative of an alien's likely
self-sufficiency. As with other signs of likely self-sufficiency, these
would be positive considerations in the totality of the circumstances.
However, DHS does not agree that these specifically should be included
as heavily weighted positive factors.
h. Caregivers
Comment: A commenter suggested that being a caregiver should be a
heavily weighted positive factor. This commenter shared an anecdote
regarding a single father petitioning on behalf of his elderly mother
so she could enter the United States to provide care to his children
while he worked full time and pointed out that some contributions may
not be monetary or employment-based but will instead have a ``trickle
down'' effect that benefits others.
Response: DHS declines to adopt this recommendation. As previously
discussed, although caregivers may provide assistance to the overall
household, the public charge inadmissibility determination is based on
the totality of the alien's individual circumstances and being a
caregiver does not establish self-sufficiency or strongly suggest that
the person is not likely to receive the designated public benefits
above the designated threshold. Although caregivers may benefit the
household by eliminating the need for childcare or eldercare expenses,
DHS does not believe that a person's status as a caregiver warrants a
heavily weighted positive factor. DHS, as previously
[[Page 41450]]
discussed, did include a provision regarding caregivers within the
Education and Skills factor.
i. Ability To Work in the Future
Comment: A commenter indicated that the ability to work in the
future should be a heavily weighted positive factor and stated that it,
along with having potential family support, had been one of the two
heavily weighted factors for over a century under Federal law. The
commenter questioned why work ability and having legally enforceable
family support should be weighted less heavily than past receipt of
Medicaid or SNAP. The commenter indicated that this kind of disparate
treatment might be justifiable if Congress had drafted the public
charge test in a way that explicitly directed the agency to give
heavier weight to past receipt of benefits than to future employability
and family support, which Congress did not. The commenter provided a
list of twenty occupations that the commenter stated would have the
most job growth over the next decade. The commenter stated that in nine
of the 20 occupations, a full-time worker in a household of one who
earns the median salary for such occupation would not meet the 250
percent of the FPG standard. The commenter also stated that in 14 of 20
occupations, a full-time worker in a household of two who earns the
median salary for such occupation would not meet the 250 percent of the
FPG standard. The commenter indicated that the agency provides no
reason or evidence for a standard that effectively classifies millions
of full-time, year-round workers in high-demand occupations as public
charges, or as not self-sufficient.
Response: DHS disagrees that it is classifying millions of full-
time, year-round workers in high-demand occupations as public charges.
Under the education and skills factor, DHS would consider whether the
alien has adequate education and skills to either obtain or maintain
employment sufficient to avoid becoming a public charge if authorized
for employment. The evidence DHS will consider includes the alien's
employment and income derived from such employment. As noted above, the
fact that the alien does not qualify for a heavily weighted positive
factor does not render the alien likely to become a public charge. In
fact, many of the median wages identified by the commenter would
generally result in a positive consideration, because they exceed 125
percent of the FPG.
S. Public Charge Bonds for Adjustment of Status Applicants
1. Standard
Comment: Several commenters supported the requirement that all new
immigrants post a bond when they apply for entry into the United
States. A commenter requested that DHS allow ``any alien determined
inadmissible'' on public charge grounds to apply for a public charge
bond.\755\ One commenter stated that the public charge bond would be
most useful in the category of immigrants that have an income between
125 percent and 250 percent of FPG.
Response: DHS appreciates these comments regarding the
applicability of the public charge bond. However, DHS will not require
all aliens seeking admission as immigrants to post a public charge
bond. Section 213 of the Act, 8 U.S.C. 1183, neither requires all such
aliens to post a public charge bond, nor authorizes DHS to require one
from every intending immigrant. Instead, consistent with its statutory
authority, USCIS will offer the public charge bond to certain
applicants for adjustment of status, who are inadmissible only due to
the likelihood of becoming a public charge and when a favorable
exercise of discretion is warranted, based upon the totality of the
alien's facts and circumstances.
Comment: One commenter noted that the public charge bond process
might lead to pressure on DHS officials to make inadmissibility
findings and offer public charge bonds.
Response: USCIS will not find an applicant is likely at any time in
the future to become a public charge for the sole purpose of collecting
a public charge bond. Although Congress has created certain exceptions
and waivers to inadmissibility, the determination that an alien is
inadmissible is mandatory where the alien meets any of the grounds
described in section 212 of the Act, 8 U.S.C. 1182. USCIS is required
to find an alien inadmissible if the alien is likely to become a public
charge. As noted in the NPRM, a public charge bond in the adjustment of
status context would generally only be offered in limited circumstances
in which the alien has no heavily weighted negative factors and when
offering the option of a public charge bond to an alien is warranted
based upon the totality of the alien's facts and circumstances.
Comment: A number of commenters noted the standard DHS will use to
determine when to offer a public charge bond. One commenter stated that
the public charge bond must be offered only in rare cases. A few
commenters further stated that the NPRM does not provide a clear
standard defining who should qualify for a public charge bond and that
the proposed public charge bond system is vulnerable to an abuse of
discretion. A commenter suggested that DHS codify a criteria for
exercising discretion regarding whether or not to offer the bond in
this rule, noting that there should be uniformity and predictability of
enforcement on the part of DHS, and that the manner in which this
discretion is utilized should be clear and objective. One commenter
asked for the justification of warranting a public charge bond in
certain circumstances and asked that DHS almost always allow for an
individual to post a bond. Another commenter requested that DHS clarify
when a public charge bond would be used and also provided
recommendations, including that public charge bonds should be available
only if the applicant has obtained private medical insurance, and the
applicant is part of an existing family unit whose only reason for
separation would be an adverse public charge inadmissibility
determination. The commenter further stated that DHS should only offer
a public charge bond to applicants who can demonstrate hardship such as
extreme hardship or exceptional and extremely unusual hardship.
Response: DHS disagrees that the rule is unclear in describing how
DHS will exercise its discretion to offer a public charge bond. Public
charge bonds will be offered only in limited circumstances to those
inadmissible aliens USCIS has determined warrant a favorable exercise
of discretion, in the totality of the alien's facts and circumstances,
and by weighing all positive and negative factors available. As noted
in the NPRM, offering a public charge bond in the adjustment of status
context, generally, will only be warranted if an alien has no heavily
weighted negative factors, such as those that are particularly
indicative of the likelihood that an alien would become a public
charge. However, and as noted in the NPRM, the presence of heavily
weighted negative factors will not automatically preclude USCIS from
offering a public charge bond. Rather, as with any discretionary
determination, USCIS could also find that the heavily weighted negative
factor(s) are outweighed by certain positive factors like those that
benefit national security, or would be justified for exceptional
humanitarian reasons.
DHS thanks the commenters for the suggestion to codify a more
``predictable'' criteria for determining whether to offer an alien an
opportunity to post a public charge bond, but
[[Page 41451]]
declines to do so. The criteria outlined in the rule balances the need
for certainty and predictability with that for flexibility USCIS
adjudicators need to account for a wide array of facts and
circumstances. For similar reasons, DHS also declines to limit its
discretion to only permit submission of a public charge bond by aliens
who have obtained and will maintain private health insurance, or to
aliens who are members of an existing family unit whose only reason for
separation would be an adverse public charge inadmissibility
determination. DHS believes that limited approach would not account for
the variety of factual scenarios USCIS may encounter. Furthermore, DHS
believes that limiting the opportunity to post a public charge bond to
only a particular narrow range of circumstances would unreasonably
exclude from the possibility of a bond applicants who might otherwise
merit a positive exercise of discretion.\756\ Given that a bond is
offered to applicants as a matter of discretion on a case-by-case
basis, USCIS reserves the right to determine, based on the particular
facts of the case, when the alien's individual circumstances warrant a
favorable exercise of discretion.
---------------------------------------------------------------------------
\756\ See INA section 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
USCIS also disagrees that it should only offer public charge bonds
to applicants who have demonstrated hardship. As is the case with any
discretionary determination, USCIS may consider any of a range of
positive and negative factors applicable to the alien's case when
determining whether the alien should be offered the option to post a
public charge bond and be admitted to the United States on bond. USCIS
respectfully declines to limit its consideration in this regard.
Comment: A commenter stated that DHS should not offer a public
charge bond to any applicant with a heavily weighted negative factor.
Other commenters were concerned that an applicant with a heavily
weighted negative factor, such as use of Medicaid to pay for services
associated with his or her disability that are not covered by private
medical insurance, will not be considered for a public charge bond. One
commenter added that individuals with one or more heavily weighted
factors will not have access to sufficient resources to be able to
submit a public charge bond. Another commenter asked if USCIS would
provide guidance, such as via the USCIS Policy Manual, with guidelines
for officers to follow and that will be available for public review.
Response: DHS appreciates the comments and will retain the
provision that if an alien has one or more heavily weighted negative
factors, as defined in 8 CFR 212.22, present in his or her case, USCIS
generally will not favorably exercise discretion to allow the alien to
submit a public charge bond. USCIS notes that a disability that affects
an applicant's ability to care for himself or herself, to attend
school, or to work is not in itself a heavily weighted negative factor,
but rather, one factor USCIS will consider in the totality of the
circumstances. Accordingly, a disability alone could not be the sole
basis for a determination that the alien is likely at any time in the
future to become a public charge.
Similarly, an alien's disability, alone, will not serve as the sole
basis for USCIS deciding not to exercise its discretion to permit an
alien to submit a public charge bond.\757\ In determining whether to
offer the alien a public charge bond, USCIS will consider all of the
positive and negative factors applicable to the alien's case. The NPRM
provides examples where a bond may be offered, including instances
where allowing the alien to become a lawful permanent resident would
offer benefits to national security, or would be justified for
exceptional humanitarian reasons. As provided in the NPRM, DHS believes
that offering a public charge bond in the adjustment of status context
will generally only be warranted in limited circumstances in which the
alien has no heavily weighted negative factors, but the presence of any
such factors will not automatically preclude USCIS from offering the
alien the opportunity to submit a public charge bond.
---------------------------------------------------------------------------
\757\ See INA section 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
As this rule is implemented, USCIS will provide training and
guidance in the USCIS Policy Manual to all officers in making these
discretionary determinations to allow an alien to submit a bond.
Comment: A commenter asked for clarification on ``permitting an
alien who is found inadmissible as a public charge but is otherwise
admissible to submit a public charge bond is within DHS's discretion.''
Response: An alien who is found to be inadmissible only on the
public charge ground may be permitted to submit a public charge bond.
In other words, under section 213 of the Act, 8 U.S.C. 1183, the alien
cannot be inadmissible under any other ground but the public charge
ground in order for USCIS to consider exercising its discretion to
permit the alien to submit a public charge bond. The decision whether
to issue a public charge bond is at the sole discretion of USCIS; there
is no right or entitlement to a public charge bond. Generally, USCIS
will not favorably exercise its discretion in situations where the
alien has one or more heavily weighted negative factors. In addition,
USCIS is formulating training and policy guidance related to the
exercise of this discretion to ensure that discretionary decisions on
whether or not to offer a public charge bond are fair and consistent.
Comment: A commenter asked that DHS eliminate public charge bonds.
A few commenters stated that the NPRM bond section lacks justification
for changing current and longstanding procedure.
Response: DHS disagrees that the public charge bond should be
eliminated. The public charge bond provision was established by
Congress in the Immigration Act of 1952, in section 213 of the Act, 8
U.S.C. 1183,\758\ and, as discussed in the NPRM,\759\ has existed
without essential variation since 1907.\760\ Public charge bonds allow
an alien who would otherwise be inadmissible because of the likelihood
of becoming a public charge to nonetheless be admitted to the United
States. Since the changes to immigration law implemented by IIRIRA, DHS
has lacked a formal mechanism for the issuance of public charge
bonds.\761\ This rule creates a formal public charge bond procedure
that conforms with both the statutory language and past practices.
---------------------------------------------------------------------------
\758\ See INA of 1952, section 213, 66 Stat. 163, 188.
\759\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51134 (proposed Oct. 10, 2018).
\760\ See Act of February 20, 1907, ch. 1134, section 26, 34
Stat. 898, 907.
\761\ See Public Law 104-208 (Sept. 30, 1996).
---------------------------------------------------------------------------
Comment: Other commenters suggested that public charge bonds should
be eliminated based on the history of monetary bonds in the criminal
pre-trial context, which have been discredited as inefficient and
unfair.
Response: DHS reiterates that public charge bonds are authorized
under the Act,\762\ and the Act provides a mechanism whereby DHS can
nonetheless admit aliens who are inadmissible only under section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). DHS cannot ignore this
authority and must consider whether to exercise its discretion on a
case-by-case basis to allow such aliens to submit a public charge bond.
---------------------------------------------------------------------------
\762\ See INA section 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
DHS disagrees that a public charge bond is directly comparable to a
pre-trial appearance bond. The Act states that the purpose of the
public charge is
[[Page 41452]]
to hold the United States, and all states, territories, counties, towns
and municipalities and districts harmless against bonded aliens
becoming public charges.\763\ USCIS will provide officers with guidance
and training to ensure that discretion is exercised in a fair,
efficient, and consistent manner.
---------------------------------------------------------------------------
\763\ See INA section 213, 8 U.S.C. 1183. While there is
currently no statutory mechanism for DHS to directly reimburse
benefit-granting agencies, the breached bond amounts will be
deposited into an account designated by the U.S. Treasury for
collecting breached immigration-related bond amounts.
---------------------------------------------------------------------------
Comment: A commenter opposed the implementation of a public charge
bond and stated that while DHS created a distinction between the
affidavit of support and the public charge bond in this rule, it did
not provide support for the idea that the affidavit of support is an
insufficient safeguard. A commenter stated that affidavits of support
already give the Government sufficient assurances that an individual
will not become overly reliant on the social safety net, without
forcing immigrants to freeze significant assets in Government-held
bonds.
Response: DHS disagrees that the affidavit of support sufficiently
safeguards against an alien becoming a public charge after admission.
Had Congress intended a sufficient affidavit of support to be the sole
basis to safeguard against an alien becoming a public charge after
admission, Congress would not have added the mandatory factors in
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), to determine an
applicant's likelihood of becoming a public charge. Congress would have
simply required all applicants subject to public charge inadmissibility
to submit a sufficient affidavit of support without requiring an
assessment of the applicant's age, health, family status, assets,
resources and financial status, and education and skills.
Additionally, had Congress considered the affidavit of support
alone to be the best way to safeguard against an alien becoming a
public charge, Congress would have eliminated the public charge bond
provision altogether, and certainly would not have provided in section
213 of the Act, 8 U.S.C. 1183, for DHS to exercise its discretion to
offer a public charge bond to aliens who may also be subject to the
affidavit of support requirement at section 213A of the Act, 8 U.S.C.
1183a.\764\ That Congress created the mandatory factors for
consideration in a public charge determination at the same time it
created the enforceable affidavit of support as a non-mandatory factor
for consideration, while also retaining the public charge bond
provision in section 213 of the Act, 8 U.S.C. 1183, suggests that
Congress did not believe the enforceable affidavit of support, on its
own, sufficiently safeguarded against an alien becoming a public charge
after admission.
---------------------------------------------------------------------------
\764\ INA section 213, 8 U.S.C. 1183 reads, in part: ``An alien
inadmissible under paragraph (4) of section 1182(a) of this title
may, if otherwise admissible, be admitted in the discretion of the
Attorney General (subject to the affidavit of support requirement
and attribution of sponsor's income and resources under section
1183a of this title) upon the giving of a suitable and proper bond
or undertaking approved by the Attorney General, in such amount and
containing such conditions as he may prescribe, to the United States
(. . .). [Emphasis added].
---------------------------------------------------------------------------
Comment: A few commenters stated that a public charge bond system
is ``redundant and nonsensical,'' stating that the Government has not
provided sufficient reasoning for adding the public charge bond system
to the immigration process while the affidavit of support already
exists and allows the Government to recoup the cost of public benefits
received by immigrants.
Response: DHS disagrees with the comments that the public charge
bond provisions are redundant and nonsensical in light of the affidavit
of support requirement. Although the public charge bond provision pre-
dates the creation of the affidavit of support requirements in IIRIRA,
Congress expressly amended the public charge bond provision in IIRIRA
by amending section 213 of the Act, 8 U.S.C. 1183, to reference the
affidavit of support and require it as a condition for admission in
some cases in addition to the posting of a public charge bond.\765\
This means that Congress was aware at the time it created the
enforceable affidavit of support and amended the public charge bond
provision that a public charge bond could still be offered to certain
aliens at the agency's discretion, in addition to the alien's
submission of a sufficient affidavit of support. DHS's inclusion of
public charge bonds in this rule is consistent with Congress' intent in
maintaining public charge bonds after IIRIRA created the enforceable
affidavit of support.
---------------------------------------------------------------------------
\765\ See IIRIRA, Public Law 104-208, div. C, section 534(f),
110 Stat. 3009-546, 3009-684 (Sept. 30, 1996).
---------------------------------------------------------------------------
Comment: Commenters stated that the bonds would have a
disproportionately negative impact on minorities, communities of color,
and their families, citing studies on custodial bonds. Another
commenter said that the changes to public charge bonds will not prevent
individuals from bypassing new regulations and will affect average
immigrants by restricting access to services. A few commenters stated
that DHS should not expand the use of bonds because studies have shown
that bonds have been proven to be highly discriminatory and increase
financial instability. Many commenters provided research on the effects
of custodial bonds and stated that bonds cause long-term hardship and
increase the likelihood of financial instability. Many commenters said
the use of public charge bonds would place an impossible burden on
immigrant families, and there is no evidence that public charge bonds
will prevent them from becoming dependent on government assistance in
the future. Multiple commenters stated that families will face years of
annual fees, non-refundable premiums and liens on the homes and cars
put up as collateral charged by for-profit surety companies and their
agents. A commenter stated that the bond system would result in a loss
of money and adverse immigration consequences if the immigrant suffers
an unexpected issue and is forced to forfeit their bond.
Response: As indicated above, DHS does not believe that the rule
itself disproportionately negatively impacts certain groups, and does
not believe the public charge bond provisions disproportionately impact
particular groups. Although commenters cited studies on the effects of
custodial bonds on particular communities, DHS does not believe the
public charge bond is directly comparable to custodial bonds, and thus
does not believe that such studies are directly applicable. Rather,
public charge bonds offer an opportunity for an alien who is
inadmissible, based only upon the likelihood of becoming a public
charge, to be admitted to the United States. Breach of a public charge
bond may result in loss of money and adverse immigration consequences.
This is a result of the alien's action, and the longstanding statutory
scheme. As noted above, USCIS will provide officers with guidance and
training to ensure that USCIS' discretion to offer this opportunity is
exercised in a fair and consistent manner.
Comment: A commenter stated that the public charge bond process
would further complicate and increase inefficiency in the adjustment of
status process. Specifically, the commenter said the creation of two
new forms, and the accompanying processes and training, as well as the
collection of any information therein, will be a waste of Government
and applicant resources given the existence and ongoing adjudication of
Form I-864. The commenter further stated that the public charge bond is
unjust because it removes the intending immigrant as a
[[Page 41453]]
party to the agreement, such that he or she neither has power to act
against the obligor, nor has the ability to reply to the Government's
decisions.
Response: DHS disagrees that the bond process would increase
inefficiency or that the process and training would be a waste of
Government and applicant resources. DHS also disagrees that the
existence of the Form I-864 obviates the need for new forms to
facilitate the public charge bond process. The public charge bond is
authorized by statute (separately from, and in addition to, the
affidavit of support).\766\ USCIS may choose to exercise its discretion
to allow an alien to submit a bond in a particular case, allowing for
aliens who are inadmissible to the United States based only upon the
likelihood of becoming a public charge to nonetheless be admitted to
the United States. DHS cannot decide to never exercise this public
charge bond authority. USCIS will review its resources and personnel to
ensure that it will be able to efficiently carry out its discretionary
public charge bond authority. DHS does not believe the public charge
bond would be a waste of Government resources or creates an undue
burden on aliens. DHS also disagrees that the public charge bond is
unjust in that it removes the intending immigrant as a party to the
agreement. Although the commenter states that this leaves the alien
unable to defend himself or herself against a breach of contract
action, a breach of contract action against the alien in the case of an
alien with a surety bond could only be asserted by the obligor, with
whom the alien would be in contractual privity. With regard to
appealing a USCIS breach determination or a denial of a request to
cancel a surety bond, the process will be similar to the existing
process for seeking review of such determinations in the custodial
immigration bond context: i.e., the obligor may challenge the
determination before the Administrative Appeals Office (AAO) pursuant
to 8 CFR part 103, subpart A. Like the appeals process in the long-
established custodial bond context, an alien with a surety bond lacks
standing to seek review in public charge bond context and is not
``removed'' from the process. In the case of an alien with a cash or
cash equivalent bond, the alien would be the obligor and thus have
standing to appeal a denial of a cancellation request or a breach
determination. DHS disagrees that this longstanding process is unjust.
---------------------------------------------------------------------------
\766\ See INA section 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
Comment: A few commenters stated that the NPRM creates a new market
segment for commercial bond companies, but imposes an unfunded mandate
on state and local insurance and financial services regulators.
Similarly, these commenters and others said many non-citizens may
accept the ``exceptionally harsh'' procedures and penalties and
``crippling surety bond terms'' to avoid family separation. The
commenters stated that, in many cases, the non-citizen would have to
pay the bond company up to 15 percent up-front, which could prove
destabilizing for low and moderate-income families and stifle their
ability to become self-sufficient. A commenter also stated that any new
investment of USCIS resources to assess nonimmigrants on public charge
would be an unnecessary administrative burden. Another commenter stated
that broad and vague conditions governing breach of bonds heighten the
risk of exploitation by for-profit companies managing public charge
bonds.
Response: DHS understands the concerns about exploitation
concerning public charge bond terms and conditions, and about the
potential challenges that bond terms and conditions may pose to aliens
with limited resources. However, Congress has determined that the
public charge ground of inadmissibility is necessary. DHS has
congressional authority to consider whether to allow an alien,
inadmissible only on the public charge ground, to submit a public
charge bond, (including a surety bond), on a case-by case basis in the
exercise of its discretion. DHS has decided to exercise its authority
in cases involving applicants for adjustment of status who are
inadmissible only under section 212(a)(4), 8 U.S.C. 1182(a)(4). As
provided in the NPRM, DHS will accept surety bonds only from sureties
certified by the Department of Treasury and listed in the Treasury
Department Circular 570.\767\ Department of Treasury-certified sureties
have agents throughout the United States from whom aliens could seek
assistance in procuring an appropriate bond.\768\ The Department of the
Treasury certifies companies only after having evaluated a surety
company's qualifications to underwrite Federal bonds, including whether
those sureties meet the specified corporate and financial standards.
Under 31 U.S.C. 9305(b)(3), a surety (or the obligor) must be able to
carry out its contracts and must comply with statutory requirements,
including prompt payment of demands arising from an administratively
final determination that the bond has been breached. DHS believes these
safeguards reduce the risk that aliens will be exploited. DHS also
notes that whether the availability of public charge bonds imposes an
unnecessary administrative burden on USCIS is a question for Congress,
not DHS.
---------------------------------------------------------------------------
\767\ See 8 CFR 103.6(b); see also proposed 8 CFR 103.6, as
published in 83 FR 25951 (June 5, 2018).
\768\ See Dep't of Treasury Circular 570, Listing of Approved
Sureties (July 1, 2018).
---------------------------------------------------------------------------
DHS also disagrees that it imposes an unfunded mandate on state and
local insurance and financial services regulators through this
rulemaking. As part of the NPRM,\769\ DHS analyzed any impact on State,
local, and tribal governments in accordance with the Title II of the
Unfunded Mandates Reform Act of 1995 (UMRA) \770\ and with E.O. 13132
(Federalism). The obligation to regulate various aspects of the
financial and securities markets within states is already a function of
the Federal Government; DHS does not further impose any new unpaid
mandate on State, local or tribal governments by implementing a public
charge bond procedure in accordance with section 213 of the Act, 8
U.S.C. 1183. It is up to financial institutions, authorized to conduct
business according to the provisions implemented by states, to offer
public charge bond products. This rule does not impose any new
obligations on states.
---------------------------------------------------------------------------
\769\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51276 (proposed Oct. 10, 2018).
\770\ See Pub. L. 104-4, 109 Stat. 48 (Mar. 22, 1995).
---------------------------------------------------------------------------
2. Bond Amount
Comment: One commenter said DHS should reduce the proposed bond
amount. Commenters stated that a $10,000 bond was excessive and would
create an opportunity for private bond companies to exploit immigrant
families, the elderly, and minorities. Similarly, a few commenters
stated that even the minimum amount may be beyond the means of most
families. A couple of commenters stated that increasing the minimum
amount of the bond by one thousand percent was grossly unfair. Many
commenters added that the cost was prohibitive for applicants who earn
low incomes. Many commenters stated that a family's self-sufficiency
would be destabilized and provided example scenarios where families
would be required to pay up to 15 percent of $10,000.
A commenter stated that DHS provided no guidance on how evaluation
of public charge bond sizes will be made. Another commenter asked that
the value of the public charge bond
[[Page 41454]]
be based on the value provided for monetizable benefits under 8 CFR
212.21, which is 15 percent of the per-month Federal Poverty Guidelines
for a single person. A few individual commenters asked that the minimum
public charge bond be set to specific amounts, such as $1,000 or
$8,100.
In contrast, another commenter asked that DHS increase the minimum
bond amount to $25,000 for the least educated or individuals with the
most dependents. Similarly, a commenter stated that the $10,000 bond
does not cover the potential cost of supporting individuals who need
food, shelter, or medical treatment.
Response: DHS agrees with the commenter that for consistency with
prior agency practice, a minimum bond amount of $8,100, adjusted
annually for inflation, is appropriate, as this is equal to the prior
bond minimum adjusted for inflation. The amount of the bond represents
liquidated damages to compensate the Government for all harms caused by
a bonded individual who violates the terms, not simply the value of the
benefits used. Furthermore, some public benefits do not have an easily
quantifiable dollar value. Operational challenges make separate
determinations for public benefits that are distributed in quantifiable
and non-quantifiable values unfeasible. Making liquidated damages in an
amount similar to historical precedent is a reasonable remedy.
Under this rule, public charge bonds permit DHS to admit, in its
discretion, an adjustment of status applicant who is inadmissible based
only on the public charge ground. Should DHS not exercise its public
charge bond authority in a particular case based on a review of the
individual facts and circumstances of that case, DHS will deny the
adjustment of status application. DHS acknowledges that an individual
offered a bond has already been found likely to become a public charge
and that bond expenses may further destabilize an applicant's self-
sufficiency. However, the additional assurance provided by the bond is
necessary to overcome the finding of inadmissibility due to likelihood
of becoming a public charge. Each applicant offered the opportunity to
post a public charge bond will have to evaluate whether accepting the
obligations of the public charge bond is the right decision given his
or her circumstances.
As part of the implementation of the public charge bond, USCIS will
provide training and guidance to all officers in making these
discretionary determinations to allow an alien to submit a public
charge bond, and the amount of any such bond.
3. Public Charge Bond Cancellation
Comment: A commenter stated that the terms of cancellation of the
public charge bond are unreasonable. The commenter stated that since
DHS only predicts less than three percent of immigrants would be able
to cancel their bond, surety companies would set costly parameters and
payment schedules. The commenter further stated that the process of
cancelling the public charge bond is difficult because an obligor must
apply to have the bond cancelled, the application must be approved by
DHS, and bonds are not automatically released after completion.
Response: DHS disagrees that the bond cancellation terms are
unreasonable. Consistent with the statute, public charge bonds may be
cancelled where an alien is no longer likely to become a public charge,
either because the alien naturalized, died, or permanently departed the
United States. Additionally, an alien may apply for cancellation of the
bond if the alien obtains a different immigration status that is exempt
from the public charge inadmissibility provisions, or if the alien has
reached his or her five-year anniversary since becoming a lawful
permanent resident. Cancellation is not automatic and does not limit
the duration of the bond, which remains in effect until canceled.
DHS also disagrees that the cancellation process is unreasonable.
An application for cancellation must be made so that DHS can verify
that the alien or surety have met their burden of demonstrating that
one of the public charge bond cancellation conditions has been met,
including that the bond was not breached, before the public charge bond
can be cancelled and the funds released. DHS carefully considered the
suggestion that public charge bonds be automatically released upon
completion of the terms of the bond, but determined that no viable
mechanism would ensure that the necessary conditions have been met in
each case.
4. Breach of Public Charge Bond
Comment: A few commenters stated that the NPRM prioritizes the
revenue streams of private bond companies over family unity because in
the event of a breach of public charge bond, the principal would have
to reimburse the bond company the full amount of the breach penalty.
Several commenters stated that DHS should not be entitled to recoup the
entire bond amount in the event of a breach by receipt of a public
benefit. The commenter also stated that DHS should allow use of
Medicaid as an exception to the breach of the full bond.
Response: DHS disagrees that the rule prioritizes the revenue of
bond companies over family unity. The public charge bond allows aliens
who are inadmissible to nonetheless seek admission to the United States
upon posting of a public charge bond, which facilitates family unity.
Additionally, the fees and collateral submitted to the bond company are
compensation for the risk a bond company takes in guaranteeing the
alien's conduct under the bond. This rule is not aimed at enriching
private bond companies, but rather at ensuring that aliens subject to
the public charge ground of inadmissibility are self-sufficient and are
relying on their resources and those of their family, friends, and
sponsors.
As explained above, DHS will collect the full amount of the public
charge bond, as liquidated damages, because DHS considers it difficult,
if not impossible, to calculate the alien's public benefit receipt as
well as the government's costs. DHS will not exempt Medicaid from the
benefits listed that count towards the breach of a public charge bond.
A public charge bond is issued on the condition that the alien does not
become a public charge by not using the public benefits, as defined in
8 CFR 212.21(b) for more than 12 months in the aggregate within any 36-
month period (such that, for instance, receipt of two benefits in one
month counts as two months). As is generally the case for the benefits
listed in 8 CFR 212.21(b), Medicaid is one of the public benefits that
constitute a major expenditure for the United States and the use of it
generally indicates to DHS that the person may not be self-sufficient.
Correspondingly, a public charge bond is issued under the condition
that the alien does not use the benefits listed in 8 CFR 212.21(b),
including Medicaid, and DHS declines to exempt its use from being a
breach condition.
Comment: A commenter presented research and stated that monetary
bonds would not be efficient or effective. Other commenters stated that
the minimum bond amount bears no real relationship to the value of the
public benefit that is received. Several commenters stated that breach
of public charge bond would lead to economic destabilization for
families.
Response: The face value of the public charge bond constitutes
liquidated damages for a breach of the conditions of that bond. As
explained in the NPRM, liquidated damages are an appropriate remedy in
situations such as the public charge bond, where the total damages to
[[Page 41455]]
the Government are difficult, if not impossible to calculate.\771\
Additionally, these damages go beyond the simple amount of the benefits
received (which are not always calculable), but also the overhead of
the benefit agency in administering the benefit. DHS disagrees that
monetary bonds are ineffective. The purpose of a bond is to provide
some reimbursement for harms incurred should the alien violate the
terms of the bond. As stated above, the $8,100 minimum amount of the
public charge bond is consistent with the historical public charge bond
minimum, that has been found reasonable and enforceable, adjusted for
inflation.
---------------------------------------------------------------------------
\771\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51226 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter said the rule's requirements around breach of
the public charge bond are unfair, put immigrants in economic jeopardy,
and are a huge departure from previous policy. The commenter also
stated that the rule removes the phrase ``substantial violation'' from
the conditions for breaching bond, meaning that any breach of the terms
of the bond, which are not fully outlined in the rule, would render the
obligor liable for the full amount of the bond. The commenter stated
that this creates a punitive policy against intending immigrants
instead of fulfilling the purported purpose of recouping losses from
public benefits use. The commenter also stated that this unnecessarily
puts immigrants at great financial risk.
Response: DHS disagrees with these comments. The conditions that
constitute breach of a public charge bond are listed in 8 CFR
213.1(h)(1) and (2), and state that a public charge bond is breached if
the alien received public benefits, as defined in 8 CFR 212.21(b), for
more than 12 months in the aggregate within any 36-month period (such
that, for instance, receipt of two benefits in one month counts as two
months) after the alien's adjustment of status to that of a lawful
permanent resident or if any other condition of the public charge bond
is violated, with limited exceptions. In particular, public benefits
that are exempt from being considered, as outlined in 8 CFR 212.21(b),
including while present in a status exempt from public charge, do not
count towards the breach determination as explained in the NPRM. To
make the bond provisions consistent with the amended public benefits
definition of 8 CFR 212.21(b), DHS has also amended the regulatory bond
provision to clarify that public benefits received after having been
granted a waiver of inadmissibility from public charge will not be
considered as part of the breach determination.\772\ As detailed in 8
CFR 213.1(h)(3), DHS will determine whether the conditions of the bond
have been breached, and 8 CFR 213.1(h) provides that an
administratively final determination that a bond has been breached
creates a claim in favor of the United States. Such a breach
determination is administratively final when the time to file an appeal
with the AAO pursuant to 8 CFR part 103, subpart A, has expired or when
the appeal is dismissed or rejected.
---------------------------------------------------------------------------
\772\ See 8 CFR 213.1(h)(4).
---------------------------------------------------------------------------
As explained in the NPRM,\773\ under the breach of bond provisions
at 8 CFR 103.6(e), an immigration bond is considered breached if there
has been a substantial violation of the stipulated condition. The term
``substantial violation'' is generally interpreted according to
contractual principles.\774\ However, in the NPRM, DHS proposed to
incorporate the substantial violation standard via incorporating
principles that govern the public charge and public benefits
definitions.\775\ As explained in the statute, the public charge bond
is intended to hold the United States, and all states, territories,
counties, towns and municipalities and districts harmless against
aliens becoming a public charge.\776\ Whether the public charge bond is
unnecessary or punitive is a question for Congress, not DHS.\777\
---------------------------------------------------------------------------
\773\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51125 (proposed Oct. 10, 2018).
\774\ See, e.g., Aguilar v. United States, 124 Fed. CL 9, 16
(2015) (discussing substantial violation under 8 CFR 103.6(a) in
relation to a delivery immigration bond.)
\775\ See 8 CFR 212.21(a) and (b).
\776\ See INA section 213, 8 U.S.C. 1183.
\777\ See INA section 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
Comment: Some commenters stated that the Government receiving full
bond payment in those circumstances when the public benefits paid out
are less than the full amount of the bond is unfair, unjust, and
unlawful. A commenter further stated that the proposed regulations
imposed an unlawful and strict standard for accidental, or inadvertent
violations of bond conditions. Another commenter said the NPRM does not
offer a coherent explanation for why recovery of the entire amount is
appropriate, asserting that it makes little sense to forfeit the entire
bond since DHS itself asserts that the purpose of the bond is to
``recoup [the] cost of public benefits received.'' A commenter stated
that in the case of a breach of public charge bond, the individual
should only be responsible for the specific amount of benefits received
rather than ``arbitrary liquidated damages award.''
A commenter indicated that the proposal to require forfeiture of
the entire amount of the bond upon a showing that an alien has obtained
any public benefit whatsoever is arbitrary, capricious and, as the
commenter stated that DHS acknowledges, contrary to past practice,
under which only the amount of the benefit would be forfeited. The
commenter also indicated that this makes little sense particularly
since many immigrants may be unclear as to the precise conditions that
would result in forfeiture. The commenter stated that total forfeiture
should be limited to the rare instances in which DHS can prove by a
preponderance of the evidence that the alien intentionally sought
public benefits with the knowledge that such benefits would result in
bond forfeiture; in other instances, the commenter suggested,
forfeiture should be limited to the amount of benefits received plus a
surcharge for the administrative costs of collection.
Response: DHS disagrees. As explained in the NPRM, liquidated
damages are an appropriate remedy in situations such as the public
charge bond, where the total damages to the Government are difficult,
if not impossible to calculate and the amount of the damages is
reasonable.\778\ Additionally, these damages go beyond the simple
amount of the benefits received, encompassing not only the monetary
value of the benefits received (which frequently are not calculable)
but also the overhead of the benefit agency in administering the
benefit.
---------------------------------------------------------------------------
\778\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51226 (proposed Oct. 10, 2018).
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As stated in the NPRM,\779\ the minimum amount of the public charge
bond is consistent with historical public charge bond amounts, adjusted
for inflation, that have been found reasonable and enforceable.
Historically, public charge bonds have been forfeited in their entirety
upon breach.\780\ The conditions that constitute breach of a public
charge bond are delineated fully in 8 CFR 213.1(h)(1) and (2), and any
alien offered a bond has ample opportunity to review the conditions and
terms before agreeing to these terms. Additionally, as explained in the
[[Page 41456]]
NPRM,\781\ under the current breach of bond provisions of 8 CFR
103.6(e), an immigration bond is considered breached if there has been
a substantial violation of the stipulated condition. The term
``substantial violation'' is generally interpreted according to
contractual principles.
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\779\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51221 (proposed Oct. 10, 2018).
\780\ See, for example, United States v. Goldberg, 40 F.2d 406
(2d Cir. 1930); see Matta v. Tillinghast, 33 F.2d 64 (1st Cir.
1929); Ill. Surety Co. v United States, 229 F. 527 (2d Cir. 1916);
United States v. Rubin, 227 F. 938 (E.D. Pa 1915); Matter of B-, 1
I&N Dec. 121 (BIA 1941).
\781\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51125 (proposed Oct. 10, 2018).
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Comment: A commenter stated that the NPRM's proposals for the
appeal of public charge bond decisions are unfair because the obligor
must pay a $675 fee to have the same officer who issued the initial
denial review that decision, and because throughout the process, the
alien must rely on the obligor to complete the steps, as the alien is
not a party to the bond contract. A commenter further stated that the
proposed rule would hinder the ability of noncitizens to meaningfully
challenge harsh or arbitrary breach determinations.
Response: DHS disagrees. The public charge bond appeal process as
described in the NPRM is a long established and accepted method of
disputing initial USCIS determinations. It is possible for obligors to
appeal errors in either law or fact through well-established
administrative remedies via the AAO without having to resort to
bringing suit in a Federal court. Although the alien is not a party to
the surety bond contract with DHS, the rule does not impair his or her
ability to pursue or defend against traditional contract actions with
regard to the obligor, with whom he or she is in contractual privity.
Similarly, if the alien is the obligor in that the alien submits a cash
equivalent bond, the alien would be able to defend against a breach
determination. Requiring USCIS to set up a separate and distinct review
process for bond appeals would be unnecessarily burdensome and
redundant.
Comment: An individual commenter said the NPRM would add further
fees and expenses to an already costly process. Some commenters
provided a discussion of the costs associated with filing a public
charge bond application and filing an appeal. The commenters said
immigrants would be inflicted with expensive fees and fines.
Response: USCIS is primarily funded by fees. Congress mandated that
DHS may set IEFA fees in a manner commensurate with the expense of
adjudicating the benefits in question.\782\ The cost of filing a public
charge bond may be assessed in the USCIS fee rule, as are other USCIS
fees.
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\782\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------
Comment: A commenter stated that the bond requirement should not be
limited to surety bonds but should instead allow for cash, cashier's
check, or money order. Another commenter stated that USCIS should
accept only surety bonds, not cash or equivalents, until the
effectiveness of the bonding process can be assessed in practice. This
commenter recommended that only limited-duration bonds be accepted, at
least initially. The commenter indicated that a periodic bond renewal
process would provide valuable private sector monitoring of the alien's
compliance, especially where the time period between bond acceptance
and eligibility for cancellation extends over multiple years.
Response: DHS agrees that bonds should not be limited to surety,
and plans to accept cash equivalents once the proper accounts and
procedures can be established. DHS disagrees that it is necessary to
wait until the effectiveness can be established before accepting cash
bonds. The nature of cash bonds makes it unlikely that any situation
would arise where DHS would have more difficulty collecting for a
breached cash bond than for a breached surety bond. DHS also disagrees
that only limited duration bonds be accepted initially. As a commenter
has noted, public charge bonds of limited duration place an additional
burden in both time and money on both the bonded alien and DHS, as they
must be periodically renewed and these renewals must be reviewed by
DHS. For this reason, DHS will only accept public charge bonds of
unlimited duration.
Comment: One commenter stated that if immigrants can afford to pay
the high cost of a guide to cross the border illegally, they can
probably afford a bond to guarantee their stay in the United States.
Response: DHS appreciates concerns raised about illegal entry but
stresses that the public charge inadmissibility rule assesses an
applicant's likelihood of becoming a public charge at any time in the
future. Whether an alien paid a guide to enter the United States
without permission, in and of itself, is not relevant to the public
charge inadmissibility determination, or to whether DHS should exercise
its discretion and allow an alien inadmissible only on the public
charge ground to submit a public charge bond.
Comment: A commenter stated that the government receiving full bond
payment in those circumstances when the public benefits paid out are
less than the full amount of the bond is unfair, unjust, and unlawful.
Response: DHS disagrees that forfeiture of the full bond amount in
the event of breach is unfair, unjust, or unlawful. The amount is based
on a review of the amount originally provided by 8 CFR 213.1 in
1964,\783\ adjusted for inflation, to represent present dollar
values.\784\ Further, the face value of the bond constitutes liquidated
damages for a breach of the conditions of that bond. As explained in
the NPRM,\785\ liquidated damages are an appropriate remedy in
situations such as the public charge bond, where the total damages to
the government are difficult, if not impossible to calculate.
Additionally, these damages go beyond the simple amount of the benefits
received, encompassing not only the monetary value of the benefits
received but also the overhead of the benefit agency in administering
the benefit.
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\783\ Miscellaneous Amendments to Chapter, 29 FR 10579 (July 30,
1964).
\784\ DHS uses the semi-annual average for the first half of
2018 and the annual average from 1964 from the historical CPI-U for
U.S. City Average, All Items. See https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-201806.pdf (last visited July
26, 2019).
Calculation: Annual average for 1st half of 2018 (250.089)/
annual average for 1964 (31) = 8.1; CPI-U adjusted present dollar
amount = $1,000 * 8.1 = $8,100.
\785\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51226 (proposed Oct. 10, 2018).
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The public charge bond is offered to allow aliens who are otherwise
inadmissible due to a likelihood of becoming a public charge an
opportunity to overcome that finding of inadmissibility. The conditions
that constitute breach of a bond are delineated fully in 8 CFR
213.1(h)(1) and (2), and any alien offered a bond has ample opportunity
to review them before agreeing to these terms. Additionally, as
explained in the NPRM,\786\ under the current breach of bond provisions
of 8 CFR 103.6 an immigration bond is considered breached if there has
been a substantial violation of the stipulated condition. The term
``substantial violation'' is generally interpreted according to
contractual principles.\787\ However, in the NPRM, DHS proposed to
incorporate the substantial violation standard via incorporating
principles that govern the public charge and public charge benefits
definitions.\788\ Whether the public charge bond is punitive is a
matter for Congress; however, per the Act, the public charge bond's
purpose is to hold the United States, and all states, territories,
counties, towns and municipalities and districts harmless
[[Page 41457]]
against bonded aliens becoming public charges.\789\
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\786\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51125 (proposed Oct. 10, 2018).
\787\ See, e.g., Aguilar v. United States, 124 Fed. CL 9, 16
(2015) (discussing substantial violation under 8 CFR 103.6(a) in
relation to a delivery immigration bond.)
\788\ See 8 CFR 212.21(a) and (b).
\789\ See INA section 213, 8 U.S.C. 1183.
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Comment: A commenter indicated that sponsors of religious workers
may not possess the financial ability of typical U.S. employers, and
may not be able to afford a bond.
Response: DHS acknowledges that special immigrant religious
workers, and immigrants who perform religious work generally, provide
valuable contributions to the United States and are in a special
position, as acknowledged by Congress in the special immigrant
religious worker classification.\790\ Congress, however, did not exempt
these workers from the public charge ground of inadmissibility and
therefore, DHS will not exempt them in this rule. The public charge
bond provides a way for individuals who would otherwise be inadmissible
due to likelihood of becoming a public charge to overcome that finding.
While DHS will take into account the totality of the circumstances
regarding all applicants, and will adjudicate the applications of
religious workers in light of the unique conditions under which many of
them live and work, in those instances where a bond is offered it is
already an extraordinary exercise of discretion to allow the alien to
adjust status in the United States even when found inadmissible as
likely to become a public charge. It is up to the applicant to
determine whether it is in his or her best interests to accept the
offered opportunity to post a public charge bond, and this rule does
not require that the sponsor post the bond, rather this obligation is
on the alien and the bond maybe posted by any entity or individual that
can serve as an obligor under section 8 CFR 103.6 and 213.1. DHS
declines to further modify this exercise of discretion based upon
either the nature of the applicant's employment or the immigration
classification in which the alien seeks to adjust status.
---------------------------------------------------------------------------
\790\ For example, special immigrant religious workers under
section 101(a)(27)(C), 8 U.S.C. 1101(a)(27)(C) qualify for
adjustment of status under INA section 245(a), notwithstanding
certain bars under INA section 245(c).
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T. Effective Date(s)
Comment: Many commenters asked that the proposed rule be delayed as
long as possible. One commenter noted that the verification
requirements related to the Form I-944 would create new challenges and
impose great burdens on State and local agencies. Another commenter
requested that the rule be delayed as long as possible not only because
of the impact on agencies but also because of the impact on the legal
services community and ethnic community-based organizations who would
bear the brunt of dealing with immigrants fearful about how the new
requirements will affect them and their families. Another commenter
said DHS should time the publication of the final rule so that the
effective date falls within an ACA marketplace open enrollment period,
so that those who are currently using Medicaid or CHIP and who may be
affected by this rule, may discontinue that benefit and switch to an
ACA marketplace plan without an interruption in health insurance
coverage. A couple of commenters stated that the 60-day effective date
may be insufficient and reasoned that DHS should delay the effective
date of any final regulation until at least January 1, 2020, or one
year after the publication of the final rule, which would minimize
disruption to the markets, decrease consumer confusion of mid-year
changes, and allow affected entities to adjust their outreach,
messaging, and technology to accommodate the changes. A commenter asked
that the proposed rule be delayed a minimum of three years to allow
states to implement a comprehensive education program. Another
commenter stated that if any changes are implemented public agencies
will need far longer than 60 days to prepare, noting that contracts
will need to be obtained with vendors in order to reprogram computer
systems, all materials pertaining to immigrant eligibility will need to
be reviewed, workers will need to be trained, and funding will need to
be appropriated in order to do these things through a state's budget
cycle. The commenter cited to the Medicaid expansion which, though
passed in 2010, was not set to be implemented until January 2014;
computer systems and other processes were not ready nearly 4 years
later, causing adverse impacts on Californians. Another commenter
detailed other impacts or administrative burdens the rule would place
on benefit-granting agencies. These impacts include needing to provide
aliens with documentation regarding benefit receipt, responding to
inquiries from the public, updating communication materials, and
increased caseload.
Response: DHS is retaining the 60-day effective date. Relatedly,
DHS is also clarifying that DHS will apply the public charge final rule
only to applications and petitions (in the context of extensions of
stay or changes of status) postmarked (or if applicable, electronically
submitted) on or after the effective date of the final rule.
Applications and petitions pending with USCIS on the effective date of
the rule, i.e. were postmarked before the effective date of the rule
and were accepted by USCIS pursuant to 8 CFR 103.2(a)(1) and (a)(2))
will not be subject to the rule. For the purposes of determining
whether a case was postmarked before the effective date of the rule,
DHS will consider the postmark date for the application or petition
currently before USCIS, not the postmark date for any previously-filed
application or petition that USCIS rejected pursuant to 8 CFR
103.2(a)(7)(ii).
In addition, DHS will not consider the receipt of public benefits
excluded under the 1999 Interim Field Guidance unless such benefits are
received on or after the effective date of the final rule.
As DHS stated elsewhere in this rule, DHS is not imposing any
requirements on benefit-granting agencies through this final rule or a
requirement that these agencies specifically verify the information
provided on the Form I-944. While the Form I-944 includes a Federal
Agency Disclosure and Authorization, that part of the form will only
become relevant after DHS enters into information sharing agreements
with specific agencies to obtain verification of the information
supplied by applicants. DHS expects that this process will take time
and will likely be in effect at some point in the future after the
final rule becomes effective. In addition, any such information sharing
will depend on the ability of the relevant agencies to share such
information with DHS. Because this aspect of the rule's implementation
will necessarily involve inter-agency collaboration, DHS does not
believe that delaying the effective date of the final rule beyond 60
days will be necessary to address the agencies' concerns related to the
verification of information on Form I-944.
DHS is also not altering an alien's eligibility for public
benefits, and therefore does not believe that agencies would have to
change their guidance in that regard. The rule specifies what public
benefits will be considered in the public charge inadmissibility
determination. DHS encourages agencies to update their web pages and
guidance to direct recipients of public benefits to DHS guidance
related to this final rule rather than repeat or explain what receipt
of public benefits may make a person a public charge. While aliens may
choose to disenroll from benefits to ensure the public benefit
threshold is not triggered, DHS is moving to a duration-only threshold,
aliens will have more time to adjust
[[Page 41458]]
their conduct in response to this rule. Therefore any potential
increase in agencies' caseloads will likely be spread over a longer
period of time which would eliminate the need to further extend the
effective date of the final rule.
Finally, DHS is also not requiring that benefit-granting agencies
develop new documentation of benefits provided, but will accept
documentation already provided in the normal course of benefit
administration. Such documentation should be adequate given that DHS is
simplifying the threshold standard to focus exclusively on the duration
of receipt and not the amount. DHS notes that examples of
implementation of the Medicaid expansion program are not apt for
comparison to the implementation of this rule for the reasons explained
above, namely, that this rule imposes no direct obligations on benefit-
granting/administering agencies, and it does not modify eligibility
criteria for the benefits covered by this rule.
With respect to comments requesting time so aliens can move from
Medicaid to obtaining private health insurance through the ACA
marketplaces, DHS notes that it believes aliens will have sufficient
time to obtain private health insurance through the ACA marketplaces.
Additionally, Medicaid benefits included in the definition of public
benefit will only be a heavily weighted negative factor in the totality
of the circumstances if the alien receives Medicaid for more than 12
months in the aggregate, beginning 36 months before the alien filed for
adjustment of status. The open enrollment period for 2020 will run from
November 1, 2019 to December 15, 2019.\791\ Because USCIS will only
consider benefits covered under this final rule if received on or after
the effective date of the final rule, and given that this rule
published on August 14, 2019, aliens will have sufficient time to
disenroll from Medicaid and enroll in private health insurance through
the ACA marketplaces without incurring a heavily weighted negative
factor for purposes of the public charge inadmissibility determination.
Therefore, DHS will implement the rule within 60 days from the date of
publication.
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\791\ https://www.healthcare.gov/quick-guide/dates-and-deadlines/ (last visited May 1, 2019).
---------------------------------------------------------------------------
Comment: A commenter stated that DHS does not provide sufficient
notice to noncitizen benefit recipients of TANF, SSI, or general
assistance about the impact of benefits received prior to the effective
date of the rule. The commenter requested that DHS use the ``primarily
dependent'' standard for TANF, SSI, and general assistance benefits
received prior to the effective date of the rule.
Response: DHS disagrees that it has given recipients of public
benefits inadequate time to make decisions about receiving public
benefits before the effective date of this rule. Through the NPRM, DHS
provided advance notice to the public that DHS was changing which
public benefits would be considered in public charge inadmissibility
determinations. The NPRM's provisions, coupled with the 60-day
effective date of the final rule, provided adequate notice to the
regulated public with respect to the possible consequences associated
with the receipt of public benefits.\792\
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\792\ See, e.g., Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir.
1984) (``In addition to the pre-promulgation procedures, 5 U.S.C.
553(d) provides for a 30-day lag time between the rule's publication
and its effective date. This post-adoption delay in effectiveness
affords parties affected by the regulations reasonable time in which
to adjust their conduct or take other measures.'') (citations
omitted).
---------------------------------------------------------------------------
DHS notes that in this final rule, DHS will not consider public
benefits listed in 8 CFR 212.21(b) that were previously excluded under
the 1999 Interim Field Guidance if received before the effective date
of this final rule. DHS will continue to consider benefits listed in 8
CFR 212.21(b) that were previously considered under the 1999 Interim
Field Guidance if received before the effective date of the final
rule.\793\ The receipt of such benefits would not be considered as a
heavily weighted negative factor. In addition, DHS is clarifying that
this final rule will not apply to any applications or petitions
postmarked before the effective date and accepted by USCIS pursuant to
8 CFR 103.2(a)(7)(ii), and are pending on the effective date of the
final rule, but only to applications or petitions postmarked (or if
applicable, electronically submitted) on or after the effective date of
the final rule.
---------------------------------------------------------------------------
\793\ Under the 1999 Interim Field Guidance, DHS would consider
the current receipt of cash benefits for income maintenance or long-
term institutionalization at government expense in the totality of
the circumstances. See Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, 64 FR 28689, 28690 (May
26, 1999) (``If at the time of application for admission or
adjustment an alien is receiving a cash public assistance for income
maintenance or is institutionalized for long-term care (as discussed
in section 6, below), that benefit should be taken into account
under the totality of the circumstances test, along with the other
statutory factors under section 212(a)(4)(B)(i) and any [adjustment
of status].''). DHS would also consider past receipt of cash
benefits for income maintenance or long-term institutionalization at
government expense in the totality of the circumstances. See Field
Guidance on Deportability and Inadmissibility on Public Charge
Grounds, 64 FR 28689, 28690 (May 26, 1999) (``[P]ast receipt of cash
income-maintenance benefits does not automatically make an alien
inadmissible as likely to become a public charge, nor does past
institutionalization for long-term care at government expense.
Rather this history would be one of many factors to be considered in
applying the totality of the circumstances test.'').
---------------------------------------------------------------------------
Comment: A commenter stated that the proposed rule should be
applied to applications filed on or after the effective date. Pending
applications would be affected by the new rule and would place a strain
on DHS to re-interview and re-adjudicate applications that are already
pending. In contrast, one commenter stated the rule, if implemented,
needs to apply retroactively at some point in order to remove green
cards from individuals who may have already received them and who could
be deemed public charges under the proposed rule.
Response: DHS agrees that the rule will not be applied to
applications pending on the effective date of the rule, i.e. were
postmarked (or if applicable, electronically submitted) and were
accepted by USCIS pursuant to 8 CFR 103.2(a)(1) and (a)(2) the
effective date of the rule and were accepted by USCIS pursuant to 8 CFR
103.2(a)(1) and (a)(2). As discussed above, DHS will continue to review
such cases under the 1999 Interim Field Guidance. For the purposes of
determining whether a case was postmarked before the effective date of
the rule, DHS will consider the postmark date for the application or
petition currently before USCIS, not the postmark date for any
previously-filed application or petition that USCIS rejected pursuant
to 8 CFR 103.2(a)(7)(ii).
DHS will only apply this final rule to applications for admission
or applications or petitions for immigration benefits postmarked (or if
applicable, electronically submitted) on or after the effective date of
the rule. DHS does not anticipate a strain on USCIS resources due to
the effective date of this final rule. By applying the public charge
rule to applications postmarked on or after the effective date, DHS
ensures a smooth implementation and ample notice to applicants and
petitioners.
Benefits Received Before Effective Date and Previously Excluded
Benefits
Comment: Several commenters generally opposed the consideration of
benefits received before the effective date of the rule, and that the
1999 Interim Field Guidance should be applied to any receipt of
benefits prior to the effective date of the final rule. Some commenters
disagreed with this portion of the rule, stating it runs counter to the
original purpose of the
[[Page 41459]]
public charge test and the 1999 Interim Field Guidance standard by
which individuals are becoming a public charge. A commenter expressed
disapproval of this section of the rule because it would impact family
members who rely on cash benefits.
Another commenter stated that the proposed rule could be
retroactively applied so that immigrants' receipt of benefits prior to
the effective date of the rule would be considered in a public charge
determination. The commenter provided readings of the proposed
regulatory text against the 1999 Interim Field Guidance, arguing that
SNAP, specifically, could ``fall through the cracks.'' Other commenters
stated that this part of the rule lacked clear guidance and proved
difficult to implement, providing examples and saying this section will
be unfair and unworkable. A commenter requested that DHS use the
``primarily dependent'' standard for TANF, SSI, and general assistance
benefits received prior to the effective date of the rule. A commenter
said this portion of the rule is in contrast with what many social
workers have advised their clients on in the past.
Response: DHS acknowledges that the public charge inadmissibility
standard in this final rule is a departure from the 1999 Interim Field
Guidance. However, this final rule as it pertains to public charge
inadmissibility will only apply to applications for admission or
adjustment of status postmarked (or if applicable, electronically
submitted) on or after the effective date of the rule. For any
application for admission or adjustment of status postmarked (or if
applicable, electronically submitted) and pending before the effective
date of the rule, USCIS will apply the 1999 Interim Field Guidance. For
the purposes of determining whether a case was postmarked before the
effective date of the rule, DHS will consider the postmark date for the
application or petition currently before USCIS, not the postmark date
for any previously-filed application or petition that USCIS rejected
pursuant to 8 CFR 103.2(a)(7)(ii).
Additionally, for any application for admission or adjustment of
status postmarked (or if applicable, electronically submitted) on or
after the effective date of the rule, if the alien received any
included public benefit listed in the 1999 Interim Field Guidance (cash
assistance for income maintenance, including SSI, TANF, and general
assistance) before the effective date of the rule, DHS will consider
those benefits as they would have been considered under the 1999
Interim Field Guidance. In other words, for adjustment of status
applications filed on or after the effective date of the rule, an
applicant's receipt of any of the benefits listed in the 1999 Interim
Field Guidance prior to the effective date of the rule will be treated
as a negative factor in the totality of the circumstances, as they were
in the 1999 Interim Field Guidance. Public benefits that were not
considered in the 1999 Interim Guidance, such as SNAP, would not be
considered at all in the public charge inadmissibility determination;
they would only be considered if received on or after the effective
date of the rule. However, regardless of the length of time such
benefits were received before the effective date of this rule, or the
monetary amount of such benefits, DHS will not treat the receipt of
these benefits as a heavily weighted negative factor, as set forth in 8
CFR 212.22(d).
DHS believes that it has minimized any adverse effects on
applicants as a result of having received benefits that were listed in
the 1999 Interim Field Guidance before the effective date of this rule.
DHS believes that recipients of public benefits listed in the 1999
Interim Field Guidance are being given adequate time to make decisions
about receiving public benefits on or after the effective date of this
rule. The NPRM's discussion of how DHS would treat past receipt of
benefits listed in the 1999 Interim Field Guidance, this rule's
explanation of how such benefits will be treated, and the proposed 60-
day effective date of the final rule, provide aliens an opportunity to
discontinue the receipt of any public benefits before filing an
application for admission or adjustment of status and provides an
opportunity for public benefit-granting agencies to communicate the
consequences of receiving public benefits, to the extent such agencies
deem appropriate.
With respect to the public benefit condition for extension of stay
and change of status, DHS will not consider any receipt of public
benefits that occurred before the effective date of this final rule.
Comment: A commenter proposed that a 3-year grace period be applied
for the consideration of previously excluded benefits. The commenter
indicated that, in some cases, the receipt of benefits for up to 3
years prior to the proposed rule's enactment could count against
immigrants, and that such an outcome would be absurd in light of the
standard 3-year cycle process for benefits. The commenter indicated
that people should not be punished for following the standard 3-year
cycle process for receiving benefits which are currently excluded from
the public charge determination, or for not being able to obtain a
termination letter quickly enough.
Response: DHS appreciates the suggestion but declines to
incorporate a 3-year grace period for previously received benefits. As
previously indicated, the rule will only consider all benefits as
listed in 8 CFR 212.21(b) if the application was filed on or after the
effective date. For benefits received before the effective date and
were also considered under the 1999 Interim Field Guidance, USCIS will
only consider the benefits as they would have been considered under the
1999 Interim Field Guidance. The rule will become effective within 60
days, which DHS believes is sufficient time for aliens to terminate any
currently received public benefits that may be reviewed in the public
charge inadmissibility determination.
Comment: Commenters stated that such a rule should not be applied
to immigrants already in the United States who are on a pathway to
``legalization'' (who are ``in line'').
Response: DHS disagrees with the comment that the rule will be
applied to applicants with applications pending on the day the rule
goes into effect. This rule only applies to applications for admission
or adjustment of status postmarked (or if applicable, electronically
submitted) on or after the effective date of the rule. Individuals who
have applications pending with DHS on the effective date of the rule
will not be subject to this rule; USCIS will adjudicate such
applications under the terms of the 1999 Interim Field Guidance.
Comment: A commenter argued that past acceptance of legally-
obtained Federal assistance programs or public benefits should not
count against immigrants already in the country, as it is often U.S.
born children who have qualified for and are receiving assistance
because their immigrant parents are struggling. Neither the parents nor
the children should be penalized for accepting public benefits that
were legally available for assistance.
Response: As noted elsewhere in this preamble, benefits received by
or on behalf of a U.S. citizen child are not considered in the public
charge inadmissibility determination.
Comment: A commenter requested that DHS use the ``primarily
dependent'' standard for TANF, SSI, and general assistance benefits
received prior to the effective date of the rule.
Response: As noted, under this rule, USCIS will continue to apply
the
[[Page 41460]]
criteria set forth in the 1999 Interim Field Guidance to applications
postmarked (or if applicable, electronically submitted) before, and
pending on, the effective date of this rule, and therefore, the receipt
of previously-included benefits in those applications will be
considered pursuant to the ``primary dependence'' standard. However,
for applications postmarked (or if applicable, electronically
submitted) on or after the effective date of this rule in which the
applicant received previously-included benefits before the effective
date of the rule, DHS will consider the receipt of those benefits as a
negative factor in the totality of the circumstances, but such receipt
will not be considered a heavily weighted negative factor.
U. Other Comments
Comment: A commenter indicated that DHS did not affirmatively
address whether it consulted with Federal benefit-granting agencies
such as HHS, USDA, and HUD in developing its proposed definition of
``public charge'' as ``an alien who receives one or more public
benefit[s]'' and abandoning the current ``primarily reliant'' standard.
Although the commenter acknowledged that the NPRM indicated that DHS
consulted these benefit-granting agencies on other, tangential issues
such as methodologies for considering and quantifying an immigrant's
receipt of non-cash, non-monetizable benefits, the commenter was
requesting that DHS address, in the next public action, whether or not
it formally consulted Federal benefit-granting agencies such as HHS,
USDA, and HUD in developing its proposed definition of ``public
charge,'' and if so, that DHS publicly disclose copies of any written
feedback it received from these agencies.
Response: Interagency discussions are a part of the internal
deliberative process associated with the rulemaking.
Comment: Another commenter indicated that the rule would
arbitrarily prevent immigrants from obtaining or maintaining lawful
immigration status, which data shows improves immigrants' hourly wages.
Response: DHS disagrees that the rule will impermissibly prevent
immigrants from obtaining or maintaining lawful immigration status.
This rule only addresses one ground of inadmissibility and does not
otherwise affect eligibility for public benefits. As discussed
elsewhere in this rule, DHS's objective in promulgating this rule is to
better ensure that aliens seeking admission, adjustment of status,
extension of stay, and change of status, rely on their own resources
and capabilities and the not government to meet their needs. DHS also
intends that this rule provide a clear regulatory framework for
assessing the factors Congress established as mandatory considerations
with respect to the public charge ground of inadmissibility.
Comment: An individual commenter proposed creating a ``self-
sufficiency program'' in place of the proposed rule. The commenter
suggested the program be modeled after the ORR's Voluntary Agencies
Matching Grant Program that provides intensive case management, English
language and vocational training, and a variety employment services. A
commenter suggested creating classes or having resources available to
aliens to help them understand the importance of self-sufficiency and
methods to obtain that ideal goal. The commenter indicated that those
kinds of programs would provide more incentive to the aliens to avoid
public assistance than revoking or denying their citizenship status
just because they needed some help or might need it in the future.
Response: DHS appreciates the suggestion. However, this rule
establishes guidelines for the inadmissibility of aliens based on the
public charge ground of inadmissibility as established by Congress. The
rule provides for the initial determination of admissibility; other
immigration related benefits or activities fall beyond the scope of the
rule. The programs offered to refugees are designated to assist people
who are not subject to the public charge inadmissibility ground.
Further, neither the statute nor this final rule permit revocation or
denial of citizenship status based on inadmissibility on public charge
grounds.
Comment: A commenter asked that a public information campaign be
implemented that is targeted towards the general public to explain the
rule changes.
Response: DHS will provide additional information and communication
materials on the rule and its provisions as part of the implementation
of the final rule.
Comment: Some commenters provided general comments and
recommendations on and other aspects of the immigration system.
Multiple commenters opposed the separation of families at the southwest
border. Several commenters stated that asylum seekers and refugees are
unfairly treated. Several commenters stated their support for
suspension of all immigration via section 212(f) of the Act, 8 U.S.C.
1182(f). Commenters expressed concern regarding the lack of support
provided to Iraqi translators in the search for asylum.
Response: DHS appreciates the comments. However, these comments are
outside of the scope of DHS's rulemaking. Through this rulemaking, DHS
is exercising its authority to regulations implementing the public
charge ground of inadmissibility and the public charge bond framework.
DHS is also setting a public benefit condition related to extension of
stay and change of status.
Comment: Some commenters stated that all individuals should be
treated with dignity, compassion, and kindness.
Response: DHS believes that this rule implements the public charge
ground of inadmissibility consistent with those values, as well as
other values prioritized by Congress.
Comment: One commenter suggested that DHS should issue work
authorization cards to all aliens subject to the public charge ground
of inadmissibility and that USCIS should amend the rule to include a
work authorization category for all pending applications. Another
commenter suggested that USCIS amend the rule to include a work
authorization category for all pending applications.
Response: These comments are outside of the scope of DHS's
rulemaking. DHS will not offer employment authorization to all aliens
subject to the public charge ground of admissibility. DHS notes that
aliens with pending adjustment of status application may apply for
employment authorization under 8 CFR 274a.12(c)(9).
Comment: One commenter requested that DHS affirmatively review and
incorporate into the administrative record for this rulemaking the
supporting evidence and authority cited in the approximately 300
footnotes contained in the commenter's submission. The commenter also
submitted to the docket 22 additional documents, which included some
but not all of the commenter's supporting evidence and authority.
Response: DHS has fulfilled its obligation to meaningfully consider
and respond to the public comments. With respect to the commenter's
additional request regarding the administrative record, the APA does
not require DHS to conduct the exercise requested by the commenter, and
DHS respectfully declines to do so.
Comment: A commenter recommended that the proposed rule include the
``protective effect of secure immigration status against abuse and
exploitation, as well as the bolstering effects on family stability.''
The
[[Page 41461]]
commenter indicated that as recognized under VAWA, admission to the
United States or adjustment of status can help victims access
employment and increase their ability to escape the violence or
overcome the trauma they've suffered. The commenter further stated that
a stable immigration status helps individuals obtain secure better
paying jobs, reducing the stress associated with exploitative working
conditions, leading to better short-term and long-term outcomes for
their families. The commenter provided information on research
conducted among immigrant victims across the United States that
indicated 65 percent of immigrant victims reported that their violent
partner had used some form of a threat of deportation after arrival in
the United States as a form of abuse. The commenter suggested that DHS
should consider the supportive and protective effects of stable
immigration status to victims. The commenter indicated that such a
consideration would support the purpose and guidance of the important
protections that Congress has afforded for victims in various Federal
laws, even if they are not seeking admission under an exempt victim-
specific category.
Response: DHS understands the concerns and emphasizes that VAWA, T
and U applicant categories are generally not subject to the public
charge inadmissibility determinations. Further DHS has provided that if
a person receives a public benefit during a status exempt from public
charge inadmissibility, and later applies for an immigration benefit
under a different status where admissibility is required, such public
benefit receipt would not be considered in the public charge
inadmissibility determination.
Comment: A commenter expressed concern about restricting the
possibility of filing Request for Fee Waiver (Form I-912), stating that
many applicants have an income below the Federal Tax Filling
Requirement Threshold, do not file tax returns, and will lack the
evidence to submit this request. The commenter went on to say that
forcing applicants to submit evidence through IRS tax filing will
increase the amount of tax return moneys that low-income tax payers are
eligible to obtain, thus canceling out any additional income received
by DHS if these applicants are unable to qualify for the fee waiver.
Response: This rule not change the eligibility or evidentiary
requirements of Form I-912. This comment seems misdirected as it
appears to relate to a routine revision of Form I-912 and not this
rule. Therefore, this comment is out of scope of this rule.
Comment: Some commenters provided general comments and
recommendations on public benefits and the welfare system in the United
States. For example, multiple commenters stated that immigrants are
putting a burden on public services and U.S. taxpayers. One commenter
summarized potential methods for saving money within the public welfare
system in the United States, as an alternative to changing how the
Government implements the public charge ground of inadmissibility. An
individual commenter in support of the rule provided information and
views regarding fraud and abuse in the U.S. public welfare system,
along with brief recommendations on how to address such issues.
Response: DHS appreciates these comments. However, DHS's public
charge inadmissibility rule is not intended to address public benefit
fraud and abuse specifically. Rather, this rule is intended to align
the self-sufficiency goals set forth by Congress with the public charge
ground of inadmissibility.
Comment: One commenter requested that USCIS ensure employers are
paying living wages to immigrants. The commenter stated that SNAP
participants are either employed or seeking jobs, or are children or
elderly. Similarly, another commenter asserted that, unless DHS is
willing to compel employers in agriculture and in other industries to
provide a living wage and health benefits, it is cruel and unjust to
punish hard-working immigrants who rely on public benefits but who also
benefit the United States.
Response: The vast majority of workers who enter the United States
on employment-based nonimmigrant and immigrant visas, including
temporary agricultural workers, enter based on the terms and the
conditions that have been certified by DOL.\794\ For a temporary
agricultural worker (H-2A nonimmigrant),\795\ the employer must offer
the appropriate wage rate \796\ and comply with other requirements as
set by law and regulations.\797\ As such, DOL deemed the financial
aspect and conditions of the employment itself sufficient for purpose
of the alien's status.
---------------------------------------------------------------------------
\794\ See 20 CFR parts 655 and 656.
\795\ See INA section 101(a)(15)(H)(ii)(a), 218, 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1188.
\796\ See 20 CFR 655.120(l). Employers must pay H-2A workers and
workers in corresponding employment, unless otherwise excepted by
the regulations, at least the highest of the Adverse Effect Wage
Rate (AEWR), the prevailing hourly wage rate, the prevailing piece
rate, the agreed-upon collective bargaining wage (if applicable), or
the Federal or State minimum wage in effect at the time the work is
performed.
\797\ See 20 CFR 655.100-185.
---------------------------------------------------------------------------
With this rulemaking, DHS prevent individuals from receiving public
benefits for which they are eligible. DHS understands that individuals
may be hesitant to apply for or receive public benefits in light of
this rulemaking. DHS, however, is implementing the congressional
mandate provided in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)
to assess, as part of an alien's application for admission or
adjustment of status, whether the alien is likely at any time to become
a public charge.
Comment: Commenters referenced DOS's January 2018, changes to
public charge in the FAM. One commenter stated that if DOS adopted a
standard similar to the proposed rule, it would result in significant
increases of visa denials.
Response: This rule only pertains to aliens who seek admission into
the United States as a nonimmigrant, or as an immigrant, or seek an
adjustment of status or a change of status or extension of stay.
Although the standards set forth in the rule pertain to DHS's
determinations as a whole, the rule's cost analysis focuses on the
impact to USCIS adjudications, as the rule most directly impacts USCIS
adjudication of applications for adjustment of status, as well as
applications for extension of stay and change of status. DHS did not
include an analysis of the costs and benefits associated with public
charge inadmissibility determinations made by the DOS in the immigrant
and nonimmigrant visa context. DHS defers to DOS on any information
related to the application of the public charge inadmissibility
determination as part of the immigrant and nonimmigrant visa process.
Comment: A commenter urged DHS to defer to the DOS's public charge
determination. Another commenter stated that DOS could further modify
its own public charge guidance in response to the proposed rule from
DHS. The commenters stated that this would cause more than one million
individuals that seek visas from DOS annually to be subjected to
arbitrary standards and potentially shut out of the country.
Response: DHS is collaborating with other departments and agencies
with regard to the regulatory changes promulgated by this final rules.
DHS is working, and will continue to work, with DOS to ensure
consistent application of the public charge ground of inadmissibility.
As noted in the NPRM, DHS expects that DOS will make any necessary
amendments to the FAM in order to harmonize its approach to public
charge inadmissibility
[[Page 41462]]
determinations with the approach taken in this final rule.\798\
---------------------------------------------------------------------------
\798\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51135 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Comment: A commenter discussed the rule's impact on consular
processing. A commenter stated that DOS is likely to adopt public
charge rules consistent with DHS's rules, thus exasperating and
extending costs to applicants to many types of visa programs. Multiple
commenters stated the rule would result in increased administrative
burdens to other organizations such as DOS, as the proposed rule would
require every adjudicator to be trained to apply the proposed rule,
which is already subjective and unclear.
Response: This rule provides a standard for determining whether an
alien who seeks admission into the United States as a nonimmigrant or
as an immigrant, or seeks adjustment of status, is likely at any time
in the future to become a public charge under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4). DHS defers to DOS as to the procedure and
timing for adopting changes consistent with the policy articulated in
this final rule, as well as on the impact of any changes to visa
processing times and costs incurred as a result of any such changes.
Comment: A commenter stated that DHS should consider the
implications of defining the inadmissibility ground at section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), on the public charge
deportability ground at section 237(a)(5) of the Act, 8 U.S.C.
1227(a)(5). The commenter stated that DHS should consider the impact
and reasonableness of the proposed NPRM definition in the deportability
context and how the definition ``might further heighten fear and
anxiety related to deportation among lawful permanent residents and
others.'' The commenter that the Administration ``will likely act
quickly to adopt it for deportation purposes.''
Response: DHS does not believe it is essential to consider the
impact on the public charge deportability ground. The rule is limited
to the ground of inadmissibility. Additionally, as explained in the
NPRM, standards applicable to DOJ continue to govern the standard
regarding the public charge deportability ground.\799\ While the
forward-looking inadmissibility ground and the past-looking
deportability grounds both use the phrase ``become a public charge,''
the two provisions are significantly different. Most notably, the
deportability ground requires a two-step determination absent in the
inadmissibility ground. Specifically, the public charge ground of
deportability applies to an alien who (1) within five years after the
date of entry, has become a public charge (2) from causes not
affirmatively shown to have arisen since entry.\800\ Whereas, the
public ground charge of inadmissibility is prospective and requires an
analysis to determine whether there is a likelihood that an alien will
become a public charge at any time in the future. In the event there
are any regulatory changes to the interpretation of the public charge
deportability ground, such changes will necessarily comply with the APA
and other statutory and regulatory requirements.
---------------------------------------------------------------------------
\799\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51134 (proposed Oct. 10, 2018).
\800\ See INA section 237(a)(5), 8 U.S.C. 1227(a)(5).
---------------------------------------------------------------------------
Comment: A commenter discussed the rule's impact on immigration
courts. The commenter indicated that although immigration judges are
not bound by DHS rules, DOJ is in the process of creating a public
charge rule that is likely to parallel the DHS proposed rule. However,
until a DOJ rule is finalized, the DHS proposed rule is likely to be
used as persuasive authority by immigration judges tasked with making
public charge assessments. The commenter pointed out that this will
occur in at least three scenarios: (1) Individuals without lawful
status seeking to adjust status in removal proceedings; (2) returning
lawful permanent residents who are treated as applicants for admission
under section 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C); and
(3) lawful permanent residents placed in removal proceedings who are
seeking to re-adjust status with a waiver under section 212(h) of the
Act, 8 U.S.C. 1182(h). Additionally, the commenter stated that the
adjudication of adjustment of status applications in immigration courts
will likely increase due to a 2018 policy change at USCIS, under which
NTAs are issued in any case in which USCIS issues a denial, leaving the
applicant with no legal status upon denial of the adjustment
application. This, according to the commenter, will result in an
increase of adjustment of status applications in front of an
immigration judge, increasing the frequency of cases requiring a public
charge adjudication. Until a DOJ rule is promulgated, ICE trial
attorneys, who are bound by DHS regulations, will likely argue that
immigration judges should apply the proposed rule's heightened
standards. Lacking any binding precedent on the interpretation of
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), some immigration
judges will agree and will rely on the proposed rule as a guide, while
other immigration judges will not. The commenter stated that this will
create inconsistencies in adjudication, and increase administrative
inefficiencies through additional appeals and motions; will take
significantly more court time for those cases already in front of the
judge due to the heightened evidentiary requirements; and need
additional and more detailed testimony. These heightened evidentiary
requirements will also impact ICE attorneys, who will be required to
review that evidence and prepare a response, as well as the respondent
and his or her counsel, if represented. With an immigration court
backlog that is already above 750,000 cases, the public charge rule
would further exacerbate an already record high case volume.
Additionally, increased evidentiary requirements, heightened scrutiny,
and uncertainty as to what standard to apply will delay adjudications,
add to the backlog, and result in inconsistent court adjudications.
Response: Comments regarding the manner in which EOIR will assess
public charge inadmissibility are beyond the scope of DHS's rule. DHS's
rule pertains to DHS's public charge inadmissibility determinations for
applicants seeking admission to the United States and for applicants
seeking adjustment of status. If DHS denies an adjustment of status
application and places the applicant into removal proceedings, the
alien may renew the adjustment of status application before an
immigration judge unless the immigration judge does not have
jurisdiction over the adjustment application.\801\ DHS has no authority
over EOIR's inadmissibility determinations.
---------------------------------------------------------------------------
\801\ 8 CFR 245.2(a)(5)(ii) and 8 CFR 1245.2(a)(1).
---------------------------------------------------------------------------
DHS notes that all inadmissibility determinations are made on a
case-by-case basis and depend on the facts and circumstances, as well
as the available evidence, in each case. As such, it is impossible to
anticipate the arguments that might be made or the evidence that might
be submitted in support of a charge of inadmissibility. However, as
noted above, under section 291 of the Act, 8 U.S.C. 1361, the burden of
proof is on an applicant for admission to establish that he or she is
not inadmissible to the United States under any provision of the Act.
Similarly, under section 240(c)(2)(A) of the Act, 8 U.S.C.
1229a(c)(2)(A), an applicant for admission in removal proceedings has
the burden of establishing that he or she is clearly and beyond doubt
entitled to
[[Page 41463]]
be admitted and is not inadmissible under section 212 of the Act, 8
U.S.C. 1182. As noted above, DHS believes that concerns about DOJ's
adjudication of cases pending before immigration courts, including
immigration court backlogs, are more appropriately addressed by DOJ in
the context of their public charge rulemaking.
V. Public Comments and Responses to the NPRM's Statutory and Regulatory
Requirements Section
1. Comments on Costs and Benefits
a. Population Seeking Extension of Stay or Change of Status
Comment: Commenters stated the rule will have a disproportionate
impact on South Asian immigrants seeking an extension of stay or change
of status, stating that more than 550,000 from South Asian countries
lawfully reside in the United States. Particularly, a commenter states
that the rule will have a detrimental impact because it requires
applicants for an extension or a change of status completing the Form
I-129 or Form I-539 to complete an additional Form I-944.
Response: DHS appreciates the commenters' concerns regarding the
impact this rule will have specifically on South Asian immigrants. DHS
does not believe that the rule would impact all of the 550,000 aliens
from South Asian countries that the commenter references, as it is
unclear that all aliens from these countries would apply for an
extension of stay or change of status. In addition, after reviewing the
comments, DHS removed the requirement that individuals must establish
that they are not likely to receive public benefits by submitting Form
I-944. Under the revised standard, aliens seeking to change or extend
their nonimmigrant status will have to demonstrate that they have not
received any public benefit since obtaining the nonimmigrant status the
alien is seeking to extend or change, as defined in 8 CFR 212.21, for
more than 12 months, in the aggregate, within a 36-month period.
However, to the extent that South Asians may seek extension of stay
or change of status in large numbers given their percentage of total
foreign nationals present in the United States, the public benefit
condition does not have a disparate impact that is ``unexplainable on
grounds other than'' national origin.\802\ Rather, under this rule, all
applicants for extension of stay and change of status, regardless of
national origin, will be required to demonstrate that they have not
received, since obtaining the nonimmigrant status they are seeking to
extend or change, any public benefit, as defined in 8 CFR 212.21(b),
for more than 12 months, in the aggregate, within a 36-month period.
Although this rule may impact aliens from South Asian countries to a
larger extent solely because they account for a larger percentage of
foreign nationals who may apply for an extension of stay or change of
status, DHS did not add the public benefits condition to extension of
stay and change of status applications in order to specifically target
aliens from South Asian countries or for any other discriminatory
purpose. Instead, in including the public benefits condition, DHS is
seeking to ensure that aliens present in the United States do not
depend on public benefits to meet their needs.
---------------------------------------------------------------------------
\802\ Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 266 (1977).
---------------------------------------------------------------------------
b. Other Comments on Affected Population
Comment: Multiple commenters stated that if the rule is finalized
it could negatively impact between 24 and 26 million immigrants and
their family members. Commenters stated that this estimate was based on
a study that determined the number of aliens and their family members
with incomes below 250 percent of FPG. Another commenter stated that
between 22.2 and 41.1 million noncitizens and their family members
could be impacted by the rule, and that out of this population, an
estimated 4.9 million legal immigrants would lose healthcare coverage.
Other commenters estimated that nearly 40 percent of individuals who
sought adjustment of status last year (380,000 of 1.1 million,
according to the commenters) would be subject to a public charge
determination.
A few commenters stated that the rule could increase the number of
immigrants that would be considered a public charge from the current
three percent to 47 percent. Other commenters argued the rule could
reduce naturalization overall because immigrants would be deterred from
adjusting status. Another commenter stated that DHS has not indicated
an estimate of the number of noncitizens that will be denied
admissibility under the rule.
Response: DHS appreciates the comments regarding the potential
negative effects of the rule and the number of individuals who may be
affected. The study the commenters cited estimated that 24 million to
26 million aliens and their family members would be affected by the
rule's potential chilling effect, i.e., a circumstance under which the
rule results in fear and confusion among aliens, who therefore
voluntarily disenroll from or forgo enrollment in public benefits.\803\
However, the study notes that most of the individuals who may
experience a chilling effect are those who will not be subject to a
public charge inadmissibility determination. DHS acknowledges that some
individuals may disenroll or forego enrollment in public benefits
programs even though they are not directly regulated by this rule. DHS
has provided an estimate of the number of individuals that may choose
to disenroll or forego enrollment due to the final rule, but it is
unclear how long such individuals would remain disenrolled or forego
enrollment.
---------------------------------------------------------------------------
\803\ See Fiscal Policy Institute, ``How a Trump Rule's Chilling
Effect Will Harm the U.S.'' Oct. 10, 2018. Available at http://fiscalpolicy.org/wp-content/uploads/2018/10/US-Impact-of-Public-Charge.pdf, (last visited May 21, 2019).
---------------------------------------------------------------------------
As shown in the economic analysis of this rule, DHS estimates that
the total population seeking to adjust status that will be subject to a
public charge review for inadmissibility is about 382,264 annually.
Further, DHS estimates that about 324,438 individuals who are members
of households with foreign-born non-citizens and about 9,632 households
with at least one foreign-born non-citizen will choose to disenroll
from or forego enrollment in a public benefits program, based on a 2.5
percent rate of disenrollment or foregone enrollment.
Moreover, DHS notes that this rule does not force individuals who
are eligible for public benefits to disenroll or forego enrollment in
such benefits programs and acknowledges that those who choose to
disenroll may need to rely on other means of support within their
family or community. Nonetheless, through this rule, DHS seeks to
better ensure that applicants for admission to the United States and
applicants for adjustment of status who are subject to the public
charge ground of inadmissibility are self-sufficient, i.e., do not
depend on public resources to meet their needs, but rely on their own
capabilities and the resources of their family, sponsor, and private
organizations.
Comment: Numerous commenters focused on the rule's impact on
children, with some providing estimates of the number of impacted
children. These include estimates that one in four children have at
least one foreign-born parent, between nine and 10 million children who
are U.S. citizens born of immigrant parents would be impacted by the
rule, and that approximately 18.4 million children live in immigrant
families and approximately 16 million
[[Page 41464]]
of those children were born in the United States. Other commenters
noted estimates that approximately 90 percent of the children of
foreign-born parents in the United States are citizens of the United
States. Many commenters estimated that 45 percent of children who
recently became permanent residents of the United States could have
multiple negative factors that could prevent adjustment of status. Some
commenters noted that approximately 14 million children enrolled in
CHIP live in a household with at least one immigrant parent. Many
commenters noted the support that public benefits programs, including
Medicaid and other health services as well as nutrition assistance,
provide for individuals and families, often pointing to the support
these programs provide to children. Some commenters stated the rule
would have negative consequences on families and ``grand families,''
including family separation.
Response: DHS refers the reader to DHS's response regarding
Potential Disenrollment Impacts in section III.D.5 of this preamble.
With respect to comments that specifically referenced DHS's initial
regulatory impact analysis, DHS notes that in consideration of the
comments, it has revised the analysis for this final rule to include a
range of potential disenrollment impacts.
Comment: Many commenters stated the rule would have a negative
effect on low-wage workers with some stating it would reduce economic
mobility and reduce the ability to support families. Commenters noted
workers in specific industries, such as healthcare, construction,
hospitality, agriculture, and recreation, would be negatively affected
by the rule, as would those who benefit from these industries.
Response: DHS reiterates that the goal of this regulation is to
ensure that aliens who are admitted to the United States, adjust
status, or obtain extension of stay or change of status, are self-
sufficient and do not depend on public benefits. This rule does not aim
to reduce economic mobility or the ability to support families, but
rather aims to do the opposite, by ensuring that those families who
enter or remain in the United States are self-sufficient.
Comment: A commenter states the projected annual average of
adjustment applicants subject to public charge review is
underestimated. The commenter suggested using the publicly available
USCIS datasets titled ``Data Set: All USCIS Application and Petition
Form Types,'' ``All USCIS Application and Petition Form Types,'' and
``Number of Service-wide Forms by Fiscal Year To-Date, Quarter, and
Form Status,'' rather than using internal data or data from approvals.
Response: DHS does not have historical data to serve as a basis of
how many applicants currently are subject to a negative public charge
determination or how many are ultimately denied admission due to
negative factors. Additionally, DHS notes that we use data from
internal and external sources as appropriate, and ensures that all data
are current, valid, reliable, and accurate. For this economic analysis,
DHS used publicly available data in various years of DHS statistical
reports, ``Yearbook of Immigration Statistics,'' which are thoroughly
vetted through the agency.\804\ DHS used these data not only because of
their quality, but because they provide the detailed classifications of
those adjusting status to determine those who are exempt from
inadmissibility based on the public charge ground and those who are
not. Additionally, the USCIS data that the commenter cites does not
provide enough detail to show the visa classifications of applicants
for admission and adjustment of status. The information is necessary
for DHS to tailor the analysis to those who are subject to the
inadmissibility based on the public charge ground. The data cited only
provide aggregate receipt totals whereby it is not possible to remove
individuals from the population count who are exempt from a public
charge review of inadmissibility. As the data used for the analysis
considers all applicants who obtained lawful permanent resident status,
the estimated number of individuals who disenroll or forego enrollment
due to the rule is likely overestimated.
---------------------------------------------------------------------------
\804\ See Dept. of Homeland Security. Yearbook of Immigration
Statistics. Available at: https://www.dhs.gov/immigration-statistics/yearbook (last visited July 26, 2019).
---------------------------------------------------------------------------
DHS notes that in the data cited by the commenter, there were
approximately 567,640 applications for adjustment of status annually
and about 532,887 approvals annually, based on the 5-year average
number of application received during the period fiscal year 2012 to
2016.\805\ The data the commenter cites only presents data in the broad
categories of adjustments, including family-based, employment-based,
asylum, and refugee, among others. In general, applicants in family-
based and employment-based classifications will be subject to a public
charge review of inadmissibility, while applicants in asylum, refugee,
and other classifications that are exempt from a public charge review.
After removing the categories that are exempt from the data the
commenter cited, there were approximately 417,390 applications for
adjustment of status annually and about 388,724 approvals annually.
---------------------------------------------------------------------------
\805\ DHS notes that using the 5-year average over the period
fiscal year 2012 to 2016 is consistent with the economic analysis
that accompanies this rule, which can be found in the rule docket at
www.regulations.gov.
---------------------------------------------------------------------------
By contrast, the total population in the dataset DHS uses in its
economic analysis (including those who are exempt from public charge)
is about 544,246 lawful permanent resident approvals annually. After
removing the classifications that are exempt from a public charge
review of inadmissibility, DHS estimates approximately 382,264 law
approvals annually. Thus, the difference between the data cited by the
commenter that uses receipts with general categories of applicants that
are exempt from a public charge review of inadmissibility and the
approvals data DHS used in its analysis is approximately 35,126
applicants annually.
Comment: A commenter indicated that the NPRM fails to provide data
regarding the specific impact it might have on the individual, beyond
the opportunity cost of time taken to familiarize oneself with the
changes in policies and the time taken to accurately fill out new
forms.
Response: DHS provides the direct costs of this rule for
individuals, which include the familiarization costs of the rule and
the costs associated with filling out forms as well as any new or
adjusted form fees. The commenter did not provide DHS with any specific
data or additional costs for consideration. Additionally, the economic
analysis of this final rule discusses several indirect impacts that are
likely to occur because of the final regulatory changes in order to
provide a more thorough overview of the costs of this rule. However,
indirect costs are less certain and more variable, therefore making it
more difficult to reliably estimate what those costs may be. The long
term impacts are not known at this time.
c. Determination of Inadmissibility Based on Public Charge Grounds
Comment: A commenter noted that the cost estimates of filing Form
I-485, Form I-693, and Form I-912 should not be considered as new and
additional costs.
Response: DHS presents these forms and costs to establish the
baseline for this analysis. The Office of Management and Budget (OMB)
Circular A-4 directs agencies to include differences from the baseline
as costs, benefits, or transfers in the analysis of the rule. DHS also
provides estimates of the additional
[[Page 41465]]
costs associated with the rule's changes to some of these forms.
d. Other Comments on Baseline Estimates
Comment: A commenter stated that the rule incorrectly implies there
is rampant abuse of public benefits by immigrants. The commenter cites
the PRWORA and a Cato Institute working paper to note which immigrants
have access to Federal public benefit programs, those who are not
eligible for these programs, and who is likely to use certain public
benefit programs compared to native born or naturalized citizens.
Response: DHS did not intentionally use language that would imply
abuse of public benefits. DHS acknowledges the provisions in PRWORA
that limit public assistance to eligible classes of aliens and confirms
that this regulation is consistent with PRWORA. The Cato Institute
working paper, which is based on Census data (and the Medical
Expenditure Panel Survey), concludes that low-income non-citizen
immigrants are less likely to receive public benefits than low-income
native-born citizens and that the value of benefits received per
recipient is less for immigrant groups.\806\ These findings are not
inconsistent with this final rule.
---------------------------------------------------------------------------
\806\ The Use of Public Assistance Benefits by Citizens and Non-
Citizen Immigrants in the United States, Cato Institute Working
Paper; Leighton Ku and Brian Bruen, February 19, 2013. https://object.cato.org/sites/cato.org/files/pubs/pdf/workingpaper-13_1.pdf
(last visited July 26, 2019).
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e. Costs to Applicants To Adjust Status
Comment: Many commenters remarked the impact the rule would have on
applicants who may apply to adjust status. One individual commenter
stated that, given the overall objectives of this rule, the estimated
increased cost to immigrants seeking to adjust their status and
economic loss which might represent a significant barrier to filing the
application. The commenter stated that such a barrier might in fact
suit the agency's goals and therefore represent a benefit. The
commenter stated that greater concern are the costs borne by existing
resident aliens, with some existing status, who are not the target of
the rule and yet stand to be affected by it significantly. The
commenter suggested a careful review should be conducted to ensure that
this impact on a non-target group of people is warranted, or weigh
whether this group should be forced to file all or some of the new
forms.
Response: DHS agrees that there are benefits to this rule that
justify the new costs it will impose. DHS does not consider the
estimated opportunity cost of time for filling out the Form I-944 to be
a ``benefit'' of the rule. DHS estimated the costs of this rule on
those seeking to adjust status, or pursuing extension of stay or change
of status. DHS also notes that costs and/or benefits of a rule are
generally estimated from the perspective of what the societal costs
and/or benefits of the rule will be. We have reviewed the data provided
by commenters and where possible quantified the indirect impacts of the
rule. Where quantification was not possible, the economic analysis
provides a qualitative discussion of indirect impacts that might result
due to this rule. To be clear, aliens who are already lawful permanent
residents of the United States are not applying for adjustment of
status, extension of stay, or change of status, and therefore
generally, will not be directly affected by the rule. Elsewhere in this
preamble, DHS addresses the suggestion that DHS apply the rule
differently to those who are already in the United States, as compared
to those who seek admission from abroad. The Form I-944 is intended to
apply to all aliens who are subject to the public charge ground of
inadmissibility and who apply for adjustment of status before USCIS.
Comment: One commenter stated that the rule changes are intended to
prevent legal immigrants from applying to adjust status to lawful
permanent resident as the fee increases are enormous and the
bureaucratic hurdles outrageous.
Response: DHS disagrees the rule is intended to prevent eligible
individuals from adjusting status to that of a lawful permanent
resident. Rather, the rule is intended to better ensure that
individuals seeking admission or adjustment of status are able to
demonstrate that they are self-sufficient. DHS believes that the
benefits to this rule justify the new costs it will impose. Where
possible, DHS quantified the cost of completing the new forms.
f. Lack of Clarity
Comment: Multiple commenters noted costs related to a lack of
clarity and certainty around strongly positive and negative factors.
One commenter noted this lack of clarity would make estimating
compliance costs difficult. Another commenter wrote that the form is
highly confusing, because it conflates negative consideration of non-
monetary benefits if received for more than two months in the aggregate
within a 36-month period, and lacks questions seeking to elicit factors
that would provide a basis for a positive finding.
Response: DHS agrees that it is unable to quantify the full
compliance costs of this rule at this time. The Form I-944 is meant for
the alien to provide information about the factors, which an
immigration officer would then review to determine whether the alien is
likely to become a public charge at any time in the future. The form
has been updated for clarity.
Comment: Several commenters noted that applicants may incur
additional costs as a result of having to pay for a credit report, an
appraisal for a home, and retaining an attorney or accredited
representative, and that applicants will need to expend time and effort
to gather all documentation and estimate debts and assets from a
variety of sources.
Response: DHS notes that applicants may incur additional costs
associated with fulfilling the requirements of completing Form I-944
such as obtaining a credit report or appraisal for a home and includes
theses costs in the economic analysis, where possible. The economic
analysis that accompanies this rule can be found in the rule docket at
www.regulations.gov. Completion of Form I-944, which includes gathering
all necessary evidence, does entail time and cost burdens. DHS reported
estimated time and cost burdens in the NPRM and in this final rule in
compliance with the PRA.
Comment: A commenter stated that employers will likely not be able
to prepare Form I-944 on their employees' behalf like more general
immigration forms due to sensitive financial data requested.
Response: DHS has revised the public benefit condition for
extension of stay and change of status, such that officer will not
issue an RFE for the Form I-944 in that context. No employers will be
required to complete the Form I-944.
Comment: One commenter stated the rule may discourage nonimmigrants
from coming to or remaining in the United States, regardless of their
financial status, and that the rule will reinforce the view that the
United States has become an undesirable destination, damaging the
nation's status as a welcoming country, and could deprive the U.S.
economy of a substantial amount of tourism.
Response: The commenter did not provide evidence or sources to
support the claim that the rule will discourage nonimmigrants from
visiting, studying, or working in the United States. As stated above,
this rule is intended to better ensure that aliens inside the United
States ``do not depend on public resources to meet their needs, but
rather rely on their own capabilities and the
[[Page 41466]]
resources of their families, their sponsors, and private
organizations.'' \807\
---------------------------------------------------------------------------
\807\ 8 U.S.C. 1601(2)(A).
---------------------------------------------------------------------------
Comment: A commenter stated that an immigration service provider
would need to develop expertise in all public benefit programs
applicants may have used in any state where the applicant resided, that
it will be virtually impossible for people to obtain proof that they
did not trigger a negative factor for public charge test, and that
their group will likely invest $500,000 to $1 million in trainings to
assist the legal and service provider sector to understand this change,
although the commenter stated that it still would not be able to advise
with any certainty.
Response: The commenter did not explain how it developed the
estimated training costs of $500,000 to $1 million. As discussed above,
DHS will train and provide internal guidance to USCIS officials
processing these forms so they can accurately adjudicate cases. DHS
also notes that it considered the costs presented by commenters and
provided estimates for additional indirect costs that might result from
this rule in the RIA.
Comment: One commenter indicated there was no justification for
imposing compliance costs on every alien seeking to adjust status, or
on substantial numbers of nonimmigrants seeking routine extensions of
status, even where nothing in that person's background or circumstances
suggests the prospect that the public charge ground of inadmissibility
might be an issue.
Response: DHS believes that the questions posed in the I-944 are
relevant and necessary for the public charge inadmissibility
determination and allows the alien an opportunity to provide all
information regarding the factors as discussed in the rule. DHS
reiterates that the public charge inadmissibility ground does not apply
to those seeking a change of status or extension of stay. Additionally,
DHS has decided against asking nonimmigrants seeking to extend or
change such status to submit Form I-944. DHS notes that those
categories of aliens exempt from the public charge inadmissibility
ground by statute face no additional compliance costs as a result of
this rule.
g. Other Comments on Costs to Applicants
Comment: One commenter stated that the agency acknowledges that
most individuals this rule applies to would be making close to the
Federal minimum wage of $7.25 an hour. The commenter stated that the
agency's decision to base its estimates of opportunity cost of time on
the mean average for all occupations ($24.35 per hour) instead of the
mean national minimum wage ($10.66 per hour) suggests ``a desire to
minimize the negative impact of the proposed rule by offsetting the
negative impact with what appears to be a net positive, despite the
analyzed wage applying to only a small segment of the population that
this proposed rule seeks to reach.'' Another commenter stated that
USCIS should consider using a more varied rate for calculated
opportunity costs. The commenter further stated that the RIA uses
$10.66 an hour, but many individuals affected by the rule may have a
higher hourly rate.
Response: DHS does not understand the commenter's arguments
regarding minimizing the negative impact of the proposed rule. Where
appropriate and based on the population of focus, DHS uses various wage
rates to estimate opportunity costs of time. DHS uses the average
hourly wage for all occupations ($24.34 per hour plus benefits) to
estimate the opportunity cost of time for some, not all, populations in
the economic analysis. Populations for which this hourly wage is
applicable include those submitting an affidavit of support for an
immigrant seeking to adjust status and those requesting extension of
stay or change of status. For these populations, DHS assumes that
individuals are dispersed throughout the various occupational groups
and industry sectors of the U.S. economy. Therefore, DHS calculates the
average total rate of compensation as $35.78 per hour, where the mean
hourly wage is $24.34 per hour worked and average benefits are $11.46
per hour.808 809 As noted in the economic analysis of the
rule, DHS generally uses $10.66 per hour ($7.25 Federal minimum wage
base plus $3.41 weighted average benefits) as a reasonable proxy of
time valuation to estimate the opportunity costs of time for
individuals who are applying for adjustment of status and must be
reviewed for determination of inadmissibility based on public charge
grounds.\810\ DHS also uses $10.66 per hour to estimate the opportunity
cost of time for individuals who cannot, or choose not to, participate
in the labor market as these individuals incur opportunity costs and/or
assign valuation in deciding how to allocate their time. Moreover, this
analysis uses the Federal minimum wage rate since approximately 80
percent of the total number of individuals who obtained lawful
permanent resident status were in a class of admission under family-
sponsored preferences and other non-employment-based classifications
such as diversity, refugees and asylees, and parolees.\811\ Moreover,
approximately 70 percent of the total number of individuals who
obtained lawful permanent resident status were in a class of admission
that were also subject to the public charge inadmissibility
determination. Therefore, DHS assumes many of these applicants hold
positions in occupations that are likely to pay around the Federal
minimum wage.
---------------------------------------------------------------------------
\808\ The national mean hourly wage across all occupations is
reported to be $24.34. See Occupational Employment and Wage
Estimates United States. May 2017. Department of Labor, BLS,
Occupational Employment Statistics program; available at https://www.bls.gov/oes/2017/may/oes_nat.htm (last visited July 26, 2019).
\809\ The calculation of the weighted mean hourly wage for
applicants: $24.34 per hour * 1.47 = $35.779 = $35.78 (rounded) per
hour.
\810\ See 29 U.S.C. 206. See also U.S. Department of Labor, Wage
and Hour Division. The minimum wage in effect as of May 24, 2018.
Available at https://www.dol.gov/general/topic/wages/minimumwage
(last visited July 26, 2019).
\811\ See United States Department of Homeland Security.
Yearbook of Immigration Statistics: 2016, Table 7. Washington, DC,
U.S. Department of Homeland Security, Office of Immigration
Statistics, 2017. Available at https://www.dhs.gov/immigration-statistics/yearbook/2016 (last visited July 26, 2019).
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Comment: There were a number of other general comments on costs and
potential burdens to applicants:
One commenter stated that the costs and fees imposed on
applicants could burden non-citizens and require them to turn to public
assistance programs as a result.
Another commenter stated that USCIS did not consider
``departure costs'' such as plane tickets or broken leases/contracts
for individuals that will need to leave the country due to the NPRM's
provisions.
A commenter stated that the NPRM places a significant
burden on community organizations, requiring them to become experts on
requirements to explain them to the community.
Another commenter stated that NPRM would lead to a
substantial increase in general legal costs related to applications
citing a figure of $40 million for every 100,000 adjustments of status
or immigrant visa applications.
Response: DHS appreciates comments regarding costs to applicants
and the potential burdens that this rule may impose on those seeking
immigration benefits. DHS notes that the purpose of this rule is to
better ensure that aliens subject to the public charge inadmissibility
ground are self-sufficient, i.e., do not depend on public resources to
meet their needs, and rely on their own capabilities, as well as the
resources of family members, sponsors,
[[Page 41467]]
and private organizations.\812\ Moreover, DHS sets the fees associated
with requesting immigration benefits as necessary to recover the full
operating costs associated with administering the nation's lawful
immigration system, safeguarding its integrity, and efficiently and
fairly adjudicating immigration benefit requests.
---------------------------------------------------------------------------
\812\ See 8 U.S.C. 1601(1), (2)(A).
---------------------------------------------------------------------------
DHS appreciates receiving comments regarding the additional burden
this rule imposes on community organizations, requiring them to become
experts on the requirements in the rule to explain them to the
community. DHS acknowledges that the final rule will add new direct and
indirect impacts on various entities and individuals associated with
regulatory familiarization with the provisions of the rule.
Familiarization costs involve the time spent reading the details of a
rule to understand its changes. To the extent that an individual or
entity directly regulated by the rule incurs familiarization costs,
those familiarization costs are a direct cost of the rule. In addition
to those individuals or entities the rule directly regulates, a wide
variety of other entities would likely choose to read and understand
the rule and, therefore, would incur familiarization costs. For
example, immigration lawyers, immigration advocacy groups, health care
providers of all types, non-profit organizations, non-governmental
organizations, and religious organizations, among others, may need or
want to become familiar with the provisions of this final rule. DHS
believes such non-profit organizations and other advocacy groups might
choose to read the rule in order to provide information to those
foreign-born non-citizens that might be affected by a reduction in
Federal and state transfer payments. Familiarization costs incurred by
those not directly regulated are indirect costs such as those listed.
DHS estimates the time that would be necessary to read this final rule
would be approximately 16 to 20 hours per person, resulting in
opportunity costs of time. Additionally, an entity, such as a non-
profit or advocacy group, may have more than one person that reads the
rule.
With regard to USCIS' consideration of ``departure costs'' for
individuals who must leave the United States as a consequence of a
public charge inadmissibility determination, DHS agrees that some
people may be required to depart the United States due to the
requirements of this rule. However, DHS is unable to quantify the
departure costs listed by the commenter as we do not have enough
information on the number of immigrants who would incur departure costs
nor the amount that each immigrant would incur.
DHS appreciates comments asserting that the rule would lead to a
substantial increase in general legal costs related to applications of
around $40 million per 100,000 adjustment of status or immigrant visa
applications. DHS notes that the estimated costs of this rule are based
on the estimated populations for relevant forms and the requirements
for filing those forms, including any applicable filing fees,
opportunity costs of time, travel costs for fulfilling a filing
requirement such as submitting biometrics information, among other
requirements. DHS has updated the economic analysis to account for
additional legal costs as some applicants may retain a lawyer for help
in filling out and filing the forms.
With respect to the comment that this rule will also impact legal
costs associated with filing applications for immigrant visas, as noted
above, DHS has estimated the costs for the populations that are
directly regulated by this rule--applicants for adjustment of status,
and those seeking change of status or extension of stay. DHS is unable
to estimate costs and benefits associated with applicants for immigrant
visas filed with DOS.
Comment: An individual commenter wrote that if USCIS took on credit
score reporting costs from the beginning of the process it would lower
the cost burden for applicants.
Response: It appears that this commenter misunderstands the credit
report and score requirement in this rule and believes that DHS will
reimburse the cost of obtaining a credit score and/or report associated
with the public charge inadmissibility determination. However, under
this rule, DHS will not reimburse applicants for costs incurred as a
result of obtaining a credit score and/or report to individuals. Aliens
seeking immigration benefits who are subject to public charge
inadmissibility will bear the cost of obtaining a credit score and/or
report solely, as described in the final rule and economic analysis.
DHS notes that an applicant may obtain a credit report for free, but in
its estimates DHS assumed that applicants would pay for the report.
h. Costs Related to Public Charge Bond
Comment: One commenter noted that the public charge bond provision
in the NPRM would increase the overall costs for applicants, and that
USCIS has not provided sufficient evidence that public charge bonds
will achieve the administration's objective of ensuring immigrants
remain self-sufficient.
The commenter indicated that USCIS has failed to adequately
document and justify the costs related to how many people will secure
public charge bonds; costs of bond for those using them to overcome the
public charge definition; costs imposed on families; cost imposed on
families that fall on hard times with a public charge bond; upfront and
ongoing fees, bond cancellation fees, and fees related to ending a
bond; benefits to bond surety companies; and costs to state and
localities related to bonds.
A commenter wrote that the bond-related fees will never compensate
for the additional administrative costs incurred by operation of the
program, and these fees themselves will make the program cost
prohibitive for many applicants and their families. Similarly, a
commenter wrote that USCIS anticipates that the $25 filing fee for
Forms I-945 and I-356 would cover the necessary administrative costs,
but then later in the analysis suggests the fee would not fully recover
intake costs. Another commenter wrote that the public bond cost should
be subtracted from gross costs of the rule as it does not qualify as a
marginal benefit.
Response: Although DHS agrees that there may be a cost associated a
bond an alien choose to submit (if eligible), as described in the
economic analysis, DHS disagrees that the amount of the bond was not
properly justified. DHS had generally based the amount on the original
regulatory amount adjusted for inflation. However, in order to more
precisely match the effect of prior regulations, DHS has decided to
have the minimum amount of the bond to be the exact amount as adjusted
for inflation. The current 8 CFR 213.1 refers to a bond amount of at
least $1,000. 8 CFR 213.1 was promulgated in July of 1964. This
provision has not been updated and inflation has never been accounted
to represent present dollar values. Simply adjusting the amount for
inflation using CPI-U would bring the bond floor in June 2018 to about
$8,100.\813\
---------------------------------------------------------------------------
\813\ Calculation: Annual average for 1st half of 2018
(250.089)/annual average for 1964 (31) = 8.1; CPI-U adjusted present
dollar amount = $1,000 * 8.1 = $8,100.
---------------------------------------------------------------------------
Once the alien has been determined to likely to become a public
charge, and provided the opportunity to submit a bond, the bond acts a
deterrent and penalty if the bond is breach. Whether the public charge
bonds will achieve the administration's objective of ensuring
immigrants remain self-sufficient is not
[[Page 41468]]
a necessary consideration as DHS would have already determine that the
alien is likely to become a public charge and would be giving the alien
the opportunity to be admitted with the condition that he or she not
receive public benefits. Further, the bond provides was establish by
Congress and therefore a requirement for DHS to consider affording the
alien an opportunity to provide a bond even though he or she may be
likely to become a public charge.\814\
---------------------------------------------------------------------------
\814\ See INA section 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------
When posting a surety bond, an individual generally would pay
between 1 to 15 percent of the bond amount for a surety company to post
a bond.\815\ The percentage that an individual must pay may be
dependent on the individual's credit score where those with higher
credit scores would be required to pay a lower percentage of the bond
to be posted. DHS notes that an individual may be allowed to submit
cash or cash equivalent, such as a cashier's check or money order as
another possible option for securing a public charge bond.
---------------------------------------------------------------------------
\815\ See also Surety Bond Authority, Frequently Asked Questions
about Surety Bonds, https://suretybondauthority.com/frequently-asked-questions/ (last visited May 8, 2019) and Surety Bond
Authority, Learn More, https://suretybondauthority.com/learn-more/
(last visited May 8, 2019). DHS notes that the company cited is for
informational purposes only.
---------------------------------------------------------------------------
DHS will charge a filing fee of $25.00 to submit a public charge
bond using Form I-945 and $25.00 to request cancellation of a public
charge bond fee using Form I-356, which would cover the estimated
administrative costs of processing these forms. Where possible, DHS
sets fees at levels sufficient to cover the full cost of the
corresponding services associated with fairly and efficiently
adjudicating immigration benefit requests.\816\ Congress has provided
that USCIS may set fees for providing adjudication and naturalization
services at a level that will ensure recovery of the full costs of
providing all such services, including the costs of similar services
provided without charge to asylum applicants or other immigrants.\817\
Moreover, USCIS conducts biennial reviews of the fee amounts charged
for each immigration and naturalization benefit request. Fees are
collected from individuals and entities filing immigration benefit
requests and are deposited into IEFA. Those funds then are used to cost
of adjudicating immigration benefit requests, including those provided
without charge to refugee, asylum, and certain other applicants. The
primary objective of the fee review is to determine whether current
immigration and naturalization benefit fees will generate sufficient
revenue to fund the anticipated operating costs associated with
administering the nation's legal immigration system. Therefore, if the
results of this review indicate that current fee levels are
insufficient to recover the full cost of operations, DHS may propose to
adjust USCIS fees. For the forms used in the newly established public
charge bond process, should DHS determine that the fees set for these
forms are not sufficient to cover the full cost of the associated
services adjudicating these immigration benefit requests, the agency
will propose to adjust these form fees.
---------------------------------------------------------------------------
\816\ See INA section 286(m), 8 U.S.C. 1356(m), provides broader
fee-setting authority and is an exception from the stricter costs-
for-services-rendered requirements of the Independent Offices
Appropriations Act, 1952, 31 U.S.C. 9701(c) (IOAA). See Seafarers
Int'l Union of N. Am. v. U.S. Coast Guard, 81 F.3d 179 (DC Cir.
1996) (IOAA provides that expenses incurred by agency to serve some
independent public interest cannot be included in cost basis for a
user fee, although agency is not prohibited from charging applicant
full cost of services rendered to applicant which also results in
some incidental public benefits). Congress initially enacted
immigration fee authority under the IOAA. See Ayuda, Inc. v.
Attorney General, 848 F.2d 1297 (DC Cir. 1988). Congress thereafter
amended the relevant provision of law to require deposit of the
receipts into the separate Immigration Examinations Fee Account of
the Treasury as offsetting receipts to fund operations, and
broadened the fee-setting authority. Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1991, Public Law 101-515, section 210(d), 104
Stat. 2101, 2111 (Nov. 5, 1990). Additional values are considered in
setting Immigration Examinations Fee Account fees that would not be
considered in setting fees under the IOAA. See 72 FR at 29866-7.
\817\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------
A legal requirement to provide a monetized total cost estimate for
this rule does not exist. The public charge bond process is newly
established and, therefore, historical data is not available. DHS
explained in the NPRM the many factors that were not within the control
of DHS that would influence total costs. To the extent possible DHS
quantified the costs of the bond provision, for example DHS estimates
that approximately 960 aliens will be eligible to file for a public
charge bond annually using Form I-945 and approximately 25 aliens will
request to cancel a public charge bond annually using Form I-356. DHS
does not have enough information to estimate the costs imposed on
families that fall on hard times with a public charge bond, upfront and
ongoing fees, benefits to bond surety companies, and costs to state and
localities related to bonds.
With regard to the comment that the public bond cost should be
subtracted from gross costs of the rule as it does not qualify as a
marginal benefit, DHS notes that the public charge bond process is
being newly established and, therefore, any costs associated with the
bond process are considered to be new costs to the public.
Additionally, should DHS determine that the fees set for the relevant
forms related to the public charge review process, including those for
the bond process, are not sufficient to cover the full cost of the
associated services adjudicating immigration benefit requests, the
agency will propose to adjust these form fees in a subsequent fee rule.
DHS sets the fees associated with requesting immigration benefits as
necessary to recover the full operating costs associated with
administering the nation's lawful immigration system, safeguarding its
integrity, and efficiently and fairly adjudicating immigration benefit
requests. DHS also notes that the new costs estimated for the public
charge bond process are considered costs, not benefits. As shown in the
economic analysis, which can be found in the Public Charge final rule
docket at www.regulations.gov, DHS estimates the baseline cost of the
rule and then estimates the costs and benefits of the policy changes
that the final rule will implement. The difference between the
estimated current baseline costs and benefits and the estimated costs
and benefits of the policy changes are considered to be, and presented
as, the new costs and benefits of the final rule.
j. Costs to U.S. Employers
Comment: Many commenters stated that the rule would impose
significant compliance costs and administrative burdens on employers
that would interfere with hiring and staff retention. Commenters also
stated that search costs would increase for employers by reducing the
supply of low-wage workers and skilled workers. The commenter indicated
that the supply of skilled workers could be reduced as non-citizen
residents reduce investments in human capital and skilled non-citizens
are denied entry or discouraged from seeking entry into the United
States. A commenter stated that the analysis does not include the
effect on legal immigration to the United States, including how many
applicants would be issued RFEs or estimating a potential denial rate.
Several commenters stated that the RFE provision could cause potential
delays and backlogs causing increased costs to employers. Many
commenters stated that the rule change would make it harder for
employers to extend H-1B visas or change students from F-1 to H-1B
visas. A commenter stated the rule
[[Page 41469]]
could lead employers to make their own public charge determinations.
Multiple commenters wrote that a broad list of industries would
experience a reduction in immigrant labor force or face challenges
meeting their labor demand as a result of the rule.
Response: DHS disagrees with these commenters concerning the impact
on the supply of labor to employers. This rule is not intended to
change the composition of the labor market. Employers will still be
permitted to seek extensions of stay and change of status for eligible
nonimmigrants. Additionally, this rule is not intended to discourage
nonimmigrants from seeking to extend their nonimmigrant stays or
changing to another nonimmigrant status. Employers will still be
permitted to file immigrant visa petitions for potential alien
employees, who would still be able to file for adjustment of status.
Instead, this rule as it pertains to extension of stay and change of
status sets additional conditions, which are intended to better ensure
that aliens present in the United States continue to remain self-
sufficient for the duration of their nonimmigrant stay. DHS notes that
aliens seeking extension of stay and change of status are not subject
to the public charge ground of inadmissibility. Instead they are
subject only to the condition that the applicant has not received
public benefits since obtaining the nonimmigrant status from which he
or she seeks to change, as described in 8 CFR 212.21(b) for more than
12 months, in the aggregate, within a 36-month period.
i. Costs Related to Program Changes and Public Inquiries
Comment: Several commenters noted that states, localities,
universities, and healthcare providers will face the enormous task of
reprogramming computer software, redesigning application forms and
processes, and other aspects pertaining to benefit programs processes.
As an example, a commenter stated that online application portals for
public benefits often highlight disclaimers that applying for
assistance will not affect immigration status. One commenter stated
that in some states like Pennsylvania, individuals can submit an
application for healthcare coverage and simultaneously be eligible for
Medicaid, CHIP, or SNAP; however the rule will require local
authorities to provide new systems to shield applicants from public
charge risk. In addition, multiple commenters stated that ``churn'' is
associated with higher administrative costs, increased clinic time
spent on paperwork and certification process, and worsened healthcare
outcomes.
Response: DHS appreciates receiving comments regarding
administrative changes that will be needed in response to the rule
regarding, for example, reprogramming computer software and redesigning
application forms and processing. DHS agrees that some entities may
incur costs related to the changes commenters identified and describes
these costs in the economic analysis based on the data provided by
commenters. However, DHS is unable to determine the entities that will
choose to make administrative changes to their business processes.
Comment: Many organizations said that states, localities, and
healthcare providers will incur increased costs in many unprecedented
ways, including handling general inquiries related to the rule,
creating public awareness campaigns, providing notice to current
participants, retraining and educating staff, hiring additional
response staff, and providing aid to partner programs.
Other commenters said that states, localities, healthcare
providers, and housing providers will be bombarded with requests from
current and former program participants for official documentation
verifying that they have not received public benefits during a specific
time frame, requiring significant resources in gathering this
historical data and responding to these requests while also obeying
privacy restrictions and other technical constraints. According to a
commenter, many agencies will not have older documentation available in
their records, or records will be incomplete or inaccessible. According
to a commenter, state and local officials will likely see a significant
volume of communication related to questions about eligibility for
certain programs and the impact on immigration status.
Response: DHS acknowledges that the final rule will add new direct
and indirect impacts on various entities and individuals associated
with the provisions of the rule. However, in response to the
commenters' concerns about the availability of older documentation
related to receipt of public benefits, DHS does not agree that the new
requirements associated with public charge inadmissibility
determinations would pose an unnecessary administrative burden, as DHS
has determined that it is necessary to establish a public charge
inadmissibility rule. While age and availability of record of public
benefits receipts may vary among Federal and State agencies, it is the
responsibility of the individual seeking immigration benefits to
provide the required documents and information. Beyond the indirect
costs and other economic effects described in the economic analysis of
this rule, it is unclear the effect that this rule will have on the
entities mentioned by the commenters.
j. Costs Related to States and Local Governments, and Public Benefit-
Granting Agencies
Comment: A commenter stated that most states have already
established their budgets based on expected enrollment in programs such
as SNAP and Medicaid. Another commenter wrote that resources for
programs such as the USDA Community Eligibility Provision program are
allocated based on direct certification data, which is based on SNAP
enrollment, and that non-citizens in the program who disenroll based on
public charge provisions will cause additional administrative work for
the localities to adjust and compensate. Another commenter stated that
local governments have already adjusted and planned services based on
the location and living situations of immigrant communities that this
rule could greatly affect. A commenter wrote that their state's housing
investments could be destabilized by the rule.
Response: DHS appreciates the comments regarding the effects of the
rule on State and local budgets. As discussed above, DHS agrees that
some entities, such as State and local governments or other businesses
and organizations, would incur costs related to the changes commenters
identified. DHS considers these costs qualitatively in the final rule
since it is unclear how many entities will choose to make
administrative changes to their business processes and what the cost of
making such changes will be. DHS notes that, in the economic analysis
accompanying this rule, which can be found in the rule docket at
www.regulations.gov, we estimate the reduction in transfer payments
from federal and state governments to certain individuals who receive
public benefits and discusses certain indirect impacts that are likely
to occur because of the final regulatory changes. These indirect
impacts are borne by entities that are not specifically regulated by
this final rule, but may incur costs due to changes in behavior caused
by this final rule. The primary sources of the reduction in transfer
payments from the federal government are the disenrollment or foregone
enrollment of individuals in public benefits programs. The primary
sources of the consequences and indirect impacts of the final rule are
[[Page 41470]]
costs to various entities that the final rule does not directly
regulate, such as hospital systems, state agencies, and other
organizations that provide public assistance to aliens and their
households. Indirect costs associated with this rule include
familiarization with the rule for those entities that are not directly
regulated but still want to understand the final rule.
The commenter's statement that the rule could destabilize the
state's housing investments is unclear. This rule does not directly
regulate the availability of Federal housing benefits and how states
choose to allocate those funds. Rather, the rule directly regulates
only aliens who, at the time of application for admission or adjustment
of status, are subject to the public charge inadmissibility ground, as
well as aliens seeking extension of stay or change of status who are
subject to the public benefits condition on eligibility. DHS is
prescribing how it will determine whether an alien is inadmissible
because he or she is likely at any time in the future to become a
public charge and identifying the types of public benefits that will be
considered in the public charge determinations. An alien applying for
admission or adjustment of status generally must establish that he or
she is not likely at any time in the future to become a public charge.
k. Regulatory Familiarization Costs
Comment: Many commenters expressed concerns that NPRM was very
complex and therefore would cause confusion, stress, and fear among
those directly and indirectly affected by it, including the immigrant
community, lawyers, government agencies, educational and social service
providers, and community and charitable organizations. Other commenters
noted that familiarization costs would be particularly burdensome for
applicants with multiple jobs or limited English proficiency, small and
medium sized businesses, as well as large complex healthcare providers,
groups assisting applicants including advocacy groups and state and
local agencies. Some commenters argue that the complexity of the rule
would result in almost all applicants needing legal assistance. Other
commenters noted that the complexity of the rule, and the resulting
confusion, could lead immigrants to face discrimination, receive
incorrect legal advice, or forego public benefits even if they are not
affected by this rule. Many commenters believe substantial training and
administrative work would be needed in order to provide accurate
guidance to immigrant applicants and their families, specifically
mentioned were issues related to education and employment. A commenter
stated that state and local officials will incur costs related to not
just familiarizing officials with the rule, but also in understanding
recommendations, policies, and procedures with the general public. Some
commenters said the rule would discourage workforce professionals, such
as healthcare professionals and social workers, from providing advice
to clients because of the risk of increased liability caused by
providing advice beyond these workforce professionals' expertise. Some
commenters wrote that USCIS would incur familiarization costs
associated with the rule as well as understanding State laws and
procedures associated with programs such as Medicaid eligibility.
Research organizations suggested that the familiarization costs of
eight to 10 hours is an underestimate and should be increased because
of time spent on translation, public outreach, training, research,
legal consultation, fielding questions, and dealing with the ``chilling
effect.''
Response: DHS increased the expected familiarization burden to
range between 16 to 20 hours after reviewing the time estimates in
response to comments we received. DHS does not quantify the potential
population that may incur familiarization costs associated with the
rule due to the uncertainty surrounding the estimated number of people
that will familiarize themselves with this rule. The net effect this
rule will have on the population seeking an adjustment of status in
terms of additional assistance sought is not known. However, to the
extent possible DHS has incorporated the costs provided by commenters
into the economic analysis.
As discussed above, USCIS has a robust stakeholder communication
and engagement program that covers all aspects of the agency's
operations. This program will engage stakeholders when this rule
becomes final to help ensure that applicants for immigration benefits
and their representatives fully understand the new rule. With respect
to comments about healthcare professionals and social workers being
concerned about liability and not providing advice, DHS notes that
these professionals can provide information and disseminate that
guidance that USCIS will issue to assist individuals understand and
comply with this rule, but should not be providing legal advice without
being licensed to practice law in the state.
l. Costs to the Federal Government
Comment: Several commenters discussed the costs of the rule to the
Federal Government. Many commenters said the rule will add new
adjudication costs to the Government while increasing the already
overstretched and delayed processing and regulatory burden. Many
commenters stated that the rule would impose an immense administrative
burden on USCIS and require USCIS to conduct individualized public
charge determinations and adjudications of Form I-944 for hundreds of
thousands of applicants with increased evidentiary requirements,
heightened scrutiny, and uncertainty as to what standards will apply.
Multiple commenters highlighted the increased administrative burdens to
USCIS and other organizations such as DOS, as the rule will require
every adjudicator to be trained to apply rules which are already
subjective and unclear.
According to a commenter, the increased complexity of applying the
public charge definition would lead to increased work for USCIS related
to adjudicating appeals. An individual commenter suggested USCIS would
face additional costs related to removal proceedings as a result of the
rule by requiring it to issue more NTAs. A couple of commenters said
public charge assessments of individuals making requests to extend or
change nonimmigrant status creates additional and unnecessary
administrative burden on USCIS.
Response: DHS believes that the burdens associated with improved
administration of the public charge ground of inadmissibility,
including the expanded information collection, are justified.
Adjudicators will be appropriately trained on Form I-944 and will make
their determinations in as timely a manner as possible. In addition,
DHS does not agree that the new requirements associated with public
charge inadmissibility determinations would waste resources and be an
unnecessary administrative burden, as DHS has determined that it is
necessary to establish a public charge inadmissibility rule. Should DHS
determine that the fees set for the relevant forms related to the
public charge review process are not sufficient to cover the full cost
of the associated services adjudicating immigration benefit requests,
the agency will propose to adjust these form fees in a subsequent fee
rule. DHS sets the fees associated with requesting immigration benefits
as necessary to recover the full operating costs associated with
[[Page 41471]]
administering the nation's lawful immigration system, safeguarding its
integrity, and efficiently and fairly adjudicating immigration benefit
requests. DHS does not believe the costs of additional NTAs will be
significant. As discussed above, while the rule may increase USCIS
processing times, such is the burden of robust enforcement of the law.
m. Costs to Non-Citizens and Their Communities
Comment: A number of commenters highlighted the impact the proposed
rule would have on non-citizens and their communities. Commenters
stated that the rule holds non-citizen workers responsible for the low
wages offered by employers utilizing visa programs, when instead the
costs of the public charge determination should be placed on employers.
Response: DHS appreciates the comments concerning the impact on
noncitizens and their communities. DHS does not agree that this rule
holds noncitizen workers responsible for low wages offered by employers
using visa programs. DHS also does not agree that employers should
incur the costs of the public charge determination. As the alien has
the burden of proof of establishing admissibility into the United
States, the cost burden is appropriately on the individual seeking the
immigration benefit in the United States.
n. Healthcare-Related Costs
Comment: A commenter wrote that the rule would increase costs
related to general administrative burdens having to manage
disenrollment, reenrollment, and inquiries related to the rule. A
commenter stated that Medicaid coverage is heavily linked to the
economic health of hospitals and, as a result, hospitals could realize
significant costs due to the rule. Similarly, a commenter wrote that
the rule could see administrative costs and uncompensated care
significantly increase. Finally, another commenter wrote about concerns
regarding costs related to the privacy of patient data and security as
the rule may require USCIS to seize health records.
Response: As discussed elsewhere, this rule furthers the
Government's interest, as set forth in PRWORA, to minimize the
incentive of aliens to attempt to immigrate to the United States due to
the availability of public benefits, as well as promote the self-
sufficiency of aliens within the United States.\818\ DHS addresses the
rule's potential ``chilling effect,'' as well as the eligibility of
affected aliens for the designated benefits, elsewhere in the preamble.
---------------------------------------------------------------------------
\818\ See 8 U.S.C. 1601.
---------------------------------------------------------------------------
DHS appreciates concerns expressed about increasing healthcare
costs, worse health outcomes, increased use of emergency rooms, and the
economic health of hospitals. As explained in greater detail elsewhere
in this rule, DHS has made a number of changes in the final rule
itself. DHS has excluded the Medicare Part D LIS, receipt of public
benefits by children eligible for acquisition of citizenship, and
Medicaid receipt by aliens under the age of 18 from the definition of
public benefit in the public charge determination. In addition, DHS is
not including CHIP in the public benefit definition. DHS also adopted a
simplified, uniform duration standard for public charge determinations
for assessing the use of public benefits.
Finally, DHS does not agree that USCIS will ``seize'' health
records of patients. Most adjustment of status applicants are already
required to undergo an immigration medical examination and submit Form
I-693 with their adjustment application. As noted previously, DHS will
rely on the medical information provided by civil surgeons on the Form
I-693, or report of a panel physician, to assess whether the alien has
been diagnosed with a medical condition that is likely to require
extensive medical treatment or institutionalization, or that will
interfere with the alien's ability to provide and care for himself or
herself, to attend school, or to work upon admission or adjustment of
status. The data collected on Form I-693 is collected and kept in an
alien's administrative record consistent with the Privacy Act and SORN.
DHS must comply with the Privacy Act in safeguarding information in the
applicable systems of records. As noted on the instructions to Form I-
693, consistent with the Privacy Act, DHS may share the information an
alien and the civil surgeon provide on Form I-693 with Federal, State,
local, and foreign government agencies, and authorized organizations
for law enforcement purposes, or in the interest of national security.
The civil surgeon may share the results of the immigration medical
examination with public health authorities.
o. Housing and Homelessness-Related Costs
Comment: Some commenters cited various studies regarding the costs
of housing, homelessness, and healthcare. Another commenter referenced
research showing that providing access to public housing to those with
serious mental illness would reduce healthcare costs by 24 percent,
arguing that housing is pivotal to healthcare. Low-income households
with children that pay more than half of their monthly income on rent
spend considerably less on other basic necessities--they spend $200
less per month on food, nearly $100 less on transportation, and about
$80 less on healthcare. An individual commenter stated that a homeless
person on the street may cost more to public service providers and
healthcare facilities, such as ambulances, city street clean-up, law
enforcement, etc., than the annual cost of providing them housing. The
commenter stated that housing is a basic need that provides stability
for all things needed to be contributing members of society and that
without quality affordable housing, families are forced to pay for
unsafe and unsanitary living conditions, which results in negative
consequences for society.
A commenter cited studies where more students may experience
homelessness under this rule. Commenters stated there is an affordable
housing and homelessness crisis across the country that would be
exacerbated by this rule, including overcrowding, long wait lists and
inundated housing authorities, and make public housing more necessary
for immigrants and citizens. A commenter stated that the Government
failed to consider a potential increased cost of homelessness to local
governments and cited a cost benefit analysis. Commenters stated that
they use HCV as additional funding to cover costs and support permanent
public housing, arguing that this rule would add to their overall
costs. Another commenter stated that even with access to food
assistance, 57 percent of households that face food-insecurity are
forced to choose between buying enough food and paying for housing. The
commenter further stated that due in large part to California's booming
economy, there is a significant need for affordable housing in the
state. Renters struggle to find affordable housing, particularly in
California cities, where the cost of living is higher than the national
average (nearly one-third of renter households in California spend at
least half of their income on rent). The commenter stated that of the
approximately 491,000 low-income households in California that use
Federal housing rental assistance, 90 percent include children, the
elderly, or the disabled who would be disproportionately impacted by
the rule.
Response: DHS appreciates the comments regarding the potential
effects and costs the rule may have regarding
[[Page 41472]]
housing, homelessness, and healthcare and the citation to various
studies that address and estimate these issues. However, in most cases,
the studies that commenters reference are not the focus of the NPRM and
its economic analysis, but instead look at different populations of
interest (e.g., specific metropolitan areas or very low-income
individuals/households), and/or are not generalizable. For example, the
commenter who referenced research showing that providing access to
public housing to those with serious mental illness would reduce
healthcare costs by 24 percent cited a case study that examines the
Mercy Maricopa Integrated Care contract for the Phoenix, Arizona area,
which is highly localized and not generalizable to the wider U.S.
population.
Regarding the effect of this rule on homelessness, this rule does
not directly regulate eligibility for Federal housing benefits or other
public benefits that individuals who are homeless, or at risk of being
homeless, may rely upon. Rather, the rule directly regulates only
aliens who, at the time of application for admission or adjustment of
status, are subject to the public charge inadmissibility ground, as
well as aliens seeking extension of stay or change of status who are
subject to the public benefits condition on eligibility.\819\ Moreover,
this rule does not eliminate funding for public benefits programs. As a
result, DHS only estimated the potential effect on individuals who
choose to disenroll or forego enrollment in a public benefits program.
DHS provides estimates of the amount of the reduction in transfer
payments from the Federal and State governments to certain individuals
who receive public benefits in the RIA, which can be found in the
public docket of this final rule.
---------------------------------------------------------------------------
\819\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Comment: A commenter stated that any disenrollment or return of
housing assistance will not result in any cost savings to public
housing authorities (PHA) or federal programs because the demand for
such assistance far outstrips the available assistance. The commenter
stated that PHAs will be faced with increased administrative costs
given the anticipated disenrollment/new enrollment turnover. As a
result, PHAs will have to proceed with processing the next individual
on the waiting list, as well as closing out the family that is exiting
the program.
Another commenter stated that the DHS estimates of reduce housing
assistance payments by $71 million per year is highly problematic. That
commenter takes issue with the assertion of federal savings in housing
programs, because HUD rental assistance programs are discretionary
programs, not entitlements, and are provided with a fixed amount of
funding that falls very far below what is needed to serve all eligible
households. The commenter stated that therefore, net transfer payments
for housing assistance would remain roughly the same as a result of the
proposed rule and would yield no net savings for the Federal
Government.
Response: DHS appreciates the comment regarding the effect the rule
may have on PHAs. The commenter mischaracterizes ``cost savings'' in
their comment to DHS. As DHS shows in the economic analysis of the
rule, the effect of disenrollment or foregone enrollment by individuals
in public benefits programs are likely to result in a reduction in
transfer payments from Federal and State governments to certain
individuals who receive public benefits, not a cost savings. Transfer
payments are monetary payments from one group to another that do not
affect total resources available to society. The reduction in transfer
payments are quantified in the transfer payments section of the
economic analysis of this rule in accordance with OMB's Circular A-4.
However, DHS notes that there is great uncertainty regarding the
effects that changes in transfer payments will have on the broader
economy and estimating those effects are beyond the scope of this rule.
Additionally, with regard to administrative costs that PHAs may
incur due to the rule, DHS agrees that some entities may incur costs,
but these costs are considered to be indirect costs of the rule since
this rule does not directly regulate these entities and does not
require them to make changes to their business processes. DHS considers
these indirect costs as qualitative, unquantified effects of the final
rule since it is unclear how many entities will choose to make
administrative changes to their business processes and the cost of
making such changes.
p. Economic Costs
Comment: A number of commenters had broad concerns about costs the
rule would have on the economy as well as innovation and growth.
Commenters wrote that the rule is essentially an unfunded mandate to
businesses, nonprofits, and educational organizations with substantial
compliance costs. A commenter wrote that the rule would stifle economic
risk taking and the entrepreneurial spirit in immigrants, thus costing
the American economy over the long term. One commenter stated that the
rule would reduce immigration and hurt the country's economic future
given the need for immigrant workers to replenish an increasingly aging
population. Similarly, a commenter stated that demographic shifts mean
that immigrant communities represented the future of their state, and
the rule would significantly harm those communities. A commenter wrote
that approximately 20 percent of their local businesses are run by
foreign-born individuals and, therefore, the rule would hurt not just
non-citizen families, but also local communities.
Response: DHS appreciates the comments regarding the potential
effect of the rule on the economy, innovation, and growth. Beyond the
indirect costs and other economic effects described in the economic
analysis of this rule, DHS is unable to determine the effect this rule
will have on every economic entity mentioned or all aspects of future
economic growth. DHS agrees that there may be effects on the U.S.
economy and on individuals seeking immigration benefits. DHS describes
the potential economic effects in the economic analysis of this rule,
which can be found in the rule docket at www.regulations.gov.
However, this rule does not directly regulate businesses,
nonprofits, or educational organizations. DHS notes that this rule
directly regulates only aliens who, at the time of application for
admission, or adjustment of status, are deemed likely at any time in
the future to become a public charge or who are seeking extension of
stay or change of status.\820\ DHS is prescribing how it will determine
whether an alien is inadmissible because he or she is likely at any
time to become a public charge and identify the types of public
benefits that will be considered in the public charge determination or
the public benefit condition.
---------------------------------------------------------------------------
\820\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
Comment: Commenters stated that the number of noncitizens who will
be forced to avoid benefits will have a significant impact on the U.S.
economy. Commenters quoted cost estimates associated with the rule,
including some estimates as high as $164.4 billion. Several commenters
quoted an economic impact of $33.8 billion and a loss of 230,000 jobs.
Similarly, one commenter stated that the annual income of workers
potentially impacted by the rule is $96 billion, and losing these
workers would have a $68 billion impact on the economy with $168
billion in damages total. A commenter wrote that the rule would have
national
[[Page 41473]]
effects across a number of sectors and industries in the economy. A
commenter wrote that effects of the rule could total between $453
million and $1.3 billion due to various effects of increased poverty,
reduced productivity, etc. Another commenter wrote that the rule would
result in an increase in healthcare costs for their city of at least
$45 million annually.
Response: DHS appreciates the comments regarding the impact of the
rule on the U.S. economy. DHS does not agree that noncitizens will be
forced to avoid benefits. Although individuals may choose to disenroll
from or forego enrollment in public benefits programs for which they
are eligible, this rule does not, and cannot, require individuals to do
so and does not change the eligibility requirements for public
benefits. Under the rule, DHS will conduct a public charge
inadmissibility determination when an alien seeks an adjustment of
status, by evaluating an alien's particular circumstances, including an
alien's age; health; family status; assets, resources, and financial
status; education and skills; required affidavit of support; and any
other factor or circumstance that may warrant consideration in the
public charge inadmissibility determination.\821\ In addition, DHS will
only consider the applicant's own receipt of public benefits.
---------------------------------------------------------------------------
\821\ See 8 CFR 212.22.
---------------------------------------------------------------------------
DHS also appreciates the comments that included cost estimates and
the potential effects of the rule on the U.S. economy. DHS agrees that
there may be some effects on the U.S. economy and on individuals
seeking immigration benefits from the United States. In the economic
analysis of this rule, which can be found in the rule docket at
www.regulations.gov, DHS estimates the direct and indirect costs
according to the methodology presented using the best available data;
DHS also estimates the amount of the reduction in transfer payments
from the Federal Government to individuals who may choose to disenroll
from or forego enrollment in a public benefits program.
In response to the commenter stating that the rule will cost as
much as $164.4 billion dollars, DHS notes that this estimate is not
comparable to the estimates DHS presents in the economic analysis that
accompanies this rule, which can be found in the rule docket at
www.regulations.gov. The $164.4 billion estimated cost of the rule the
commenter cites comes from an analysis from New American Economy and is
comprised of the total annual income of workers who could be affected
by this rule.\822\ In addition, the analysis estimates that there would
be about $68 billion in indirect economic effects as part of the
estimated $164.4 billion total cost. However, the validity and
reliability of the analysis cited by the commenter is unclear as the
calculations of the analysis are not presented, which makes it
difficult to assess comparability with DHS's economic analysis.
---------------------------------------------------------------------------
\822\ See New American Economy Research Fund, ``How Proposed
Rule Change Could Impact Immigrants and U.S. Economy.'' Oct. 31,
2018. Available at: https://research.newamericaneconomy.org/report/economic-impact-of-proposed-rule-change-inadmissibility-on-public-charge-grounds/ (last visited July 26, 2019).
---------------------------------------------------------------------------
The final rule, under section 3(f)(1) of E.O. 12866, is designated
a ``significant regulatory action'' that is economically significant
since it is estimated that the final rule would have an annual effect
on the economy of $100 million or more (annualized costs are estimated
to range from about $89.8 million to $144.4 million). In addition, DHS
estimates approximately $2.47 billion for a reduction in transfer
payments from the Federal Government and State governments to public
benefits recipients who are members of households that include foreign-
born non-citizens, which includes the estimated federal- and state-
level shares of transfer payments to foreign-born non-citizens. While
the commenters mentioned above provided estimates of the costs of the
rule, DHS will maintain the cost and transfer payments estimates we
presented in the economic analysis of the rule, which can be found in
the rule docket at www.regulations.gov. Where possible, DHS discusses
the costs presented by commenters and provides a range of additional
costs that states, cities, businesses and people could incur because of
this rule. However, DHS was unable to determine the number of entities
and people that would be affected.
Comment: Some commenters noted the economic costs the rule would
impose on aliens who have low income. One commenter stated that the
most significant costs of the rule will be concentrated on the poorest
communities in cities with large numbers of immigrants. A commenter
wrote that if the Federal Government reduces transfer payments, the
costs will be passed onto other entities such as food banks, pantries,
religious organizations, etc. According to another commenter, the rule
will incur costs to housing providers who will need to be prepared to
answer inquiries from tenants and others related to the rule, and
possibly provide materials on request.
Response: DHS does not intend the rule to disproportionately affect
poor communities. As described elsewhere, the purpose of the rule is to
ensure the self-sufficiency of aliens who are subject to the public
charge ground of inadmissibility. As described in the economic analysis
accompanying this rule, which can be found in the rule docket at
www.regulations.gov, some may incur indirect costs of the rule.
Additionally, the final rule does not force individuals who are
eligible for public benefits to disenroll or forego enrolling in public
benefits programs and acknowledges that those who choose to disenroll
may need to rely on other means of support within their family or
community. Individuals may choose to disenroll from or forego
enrollment in public benefits programs for which they are eligible, but
this rule does not, and cannot, require individuals to do so and does
not change the eligibility requirements for public benefits. As such,
the Federal Government is not intentionally reducing transfer payments
for public benefits programs through this rule, but DHS estimates there
is likely to be a reduction in transfer payments from individuals to
federal and state governments because a number of individuals may
choose to disenroll from or forego enrollment in public benefits
program for which they are eligible.
Comment: A number of commenters provided input on the cost analysis
of the rule provided by USCIS. A commenter wrote that the rule does not
attempt to engage with strategies for avoiding the costs imposed by the
rule's changes to the public charge inadmissibility determination. A
commenter wrote that USCIS did not accurately estimate of the number of
people who will disenroll from or forego enrollment in public benefits
programs as a result of the rule. The commenter also noted that DHS did
not did not monetize the costs of this disenrollment and foregone
enrollment; did not account for the costs to the U.S. economy of
deeming a greater number of foreign[hyphen]born noncitizens
inadmissible to the country; did not account for the
non[hyphen]financial costs of adverse public charge determinations for
affected foreign[hyphen]born noncitizens; and did not provide any
evidence for its low estimate of the rule's familiarization costs. One
commenter wrote that the rule acknowledges effects of changes on
communities that could be harmful, but it fails to quantify this
effect.
[[Page 41474]]
Response: DHS appreciates receiving comments regarding aspects of
the cost-benefit analysis of this rule. The purpose of the economic
analysis is not to provide suggestions for avoiding costs that
regulated entities may impose. Instead, the purpose of the economic
analysis is to estimate the costs and benefits of policy changes the
agency is implementing through a regulation compared to current
practices. Elsewhere in this preamble, DHS addresses specific
alternatives and cost-saving recommendations submitted by commenters.
The final rule will affect individuals who are present in the
United States and are seeking an adjustment of status to that of a
lawful permanent resident and who are not expressly exempted, and
individuals seeking extension of stay or change of status. DHS
estimated the effect of the rule on foreign-born non-citizens as
accurately as possible given the requirements that are being
implemented for aliens to submit to a review for a public charge
determination. However, due to serious data limitations, DHS is not
able to estimate the effect of being deemed inadmissible as a public
charge.
Comment: Commenters wrote that the inability to submit forms
related to the rule electronically increases costs.
Response: DHS does not agree that not having the option to submit
forms related to the rule electronically increases costs. Submitting
forms via mail to USCIS is current practice, which is not changing with
this final rule, and therefore estimated costs are expected to remain
the same. However, USCIS is taking steps towards implementing a system
for electronic filing of all immigration forms in the future, including
the forms affected by this rule, which is expected to reduce costs to
the agency and ultimately those who file forms with USCIS to request
immigration benefits.
Comment: One commenter stated that DHS has disregarded the costs
associated with the proposed age standard.
Response: DHS is unable to estimate the specific cost to
individuals, society, or the Government, that a single factor
considered as part of public charge reviews for inadmissibility may
have because the public charge inadmissibility determination will be
conducted based on an individual's ``totality of the circumstances.''
r. Economic Impact and Job Loss
Comment: Commenters cited studies pointing to the substantial
impact on local economies and healthcare systems due to a significant
drop in enrollment from public benefit programs, such as Medicaid and
SNAP. Several commenters stated that this rule would pose substantial
costs to New York City, which is home to a large number of immigrants
and children with foreign-born parents. Other commenters provided data
detailing the rule's economic impact to Los Angeles County, CA; Austin,
TX; Minneapolis, MN; San Jose, CA; Philadelphia, PA; St. Paul, MN;
Boston, MA; and Dallas, TX.
One commenter stated that the rule will undermine our nation's
global competitiveness because a highly-educated workforce spurs
economic growth and strengthens state and local economies. Similarly, a
commenter noted that the rule will undermine our competitive advantage
and allow other countries permitting natural immigration flows to take
the United States' place on the global economic stage. The same
commenter continued by writing that innovation carried out by
immigrants has the potential to increase the productivity of native-
born Americans, likely raising economic growth per capita. This
commenter also cited a report finding that immigration has positive
effects, with little to no negative effects, on wages and employment
for native-born Americans.
Additionally, at the state level, several commenters noted that in
California (the 5th largest economy in the world if it were a country),
studies project a $718 million to $1.67 billion reduction in public
benefits would lead to 7,600 to 17,700 lost jobs, $1.2 to 2.8 billion
in lost economic output, and $65 to $151 million in lost State and
local tax revenue. Several commenters cited a study concluding that
reduced participation in California's Medicaid program, Medi-Cal, and
California's SNAP program, CalFresh, could result in tens of thousands
of jobs lost in California, as well as billions of dollars in lost
federal funding and more than $150 million in lost tax revenue in
California. Some commenters provided data relating to the rule's
economic impact on specific states, such as Michigan, Oregon, New York,
Washington, Pennsylvania, Rhode Island, Colorado, Florida, Ohio,
Kentucky, Massachusetts, Illinois, Pennsylvania, Wisconsin, Maine,
Georgia, Maryland, and North Carolina.
Response: DHS appreciates the comments concerning immigration and
U.S. economic competitiveness. The final rule does not limit the number
of individuals who may seek immigration benefits or restrict the
existing categories of immigrants and nonimmigrants. Additionally, DHS
does not agree that this final rule will have a negative effect on U.S.
competitiveness or economic growth. Rather, through this final rule DHS
seeks to better ensure that applicants for admission to the United
States and applicants for adjustment of status who are subject to the
public charge ground of inadmissibility, as well as applicants for
extension of stay and change of status, are self-sufficient, i.e., do
not depend on public resources to meet their needs, but rely on their
own capabilities and the resources of their family, sponsor, and
private organizations.\823\
---------------------------------------------------------------------------
\823\ See 8 U.S.C. 1601(2).
---------------------------------------------------------------------------
Comment: Several commenters stated that DHS's assessment of the
downstream economic impacts of the rule is insufficient. A commenter
said DHS provides no basis for its assertion that the state share of
the total transfer impact of the rule would be 50 percent of the
federal share, concluding that evaluation of the rule's impact on
states should be part of any sound justification for the rule. A
commenter similarly referenced DHS's statement that half of the savings
will be from lower transfers from State and local governments and
stated that, should DHS accept the commenter's recommendations to end
various additional exemptions from the list of public charge-related
benefits, these transfer payment savings would increase significantly.
This commenter also stated that the cost-benefit ratio as proposed
would thus be very favorable, between $14 to $37 in taxpayer saving for
every dollar expended by the agency and the applicant to prepare and
review documentation for a public charge determination.
Response: DHS appreciates the comments regarding downstream
economic effects of the rule as well as DHS's estimate for the amount
of transfer payments at the state-level. DHS notes there is not a legal
requirement to provide a monetized total cost estimate for this rule.
DHS explained in the proposed rule the many factors that were not
within the control of DHS that would influence total costs. As
previously explained, DHS described and monetized, where possible, the
types of costs that would result from this rule and has added many
additional costs that were provided by the commenters. For those costs
and benefits that DHS was not able to quantify and monetize to
calculate a total cost, the economic analysis includes a description of
those costs and benefits and a reasoned discussion about why they could
not be quantified or monetized.
[[Page 41475]]
DHS addressed its assumption that the state-level share of transfer
payments is 59 percent of the estimated amount of Federal transfer
payments. Because state participation in these programs may vary
depending on the type of benefit provided, DHS is only able to estimate
the impact of state transfers. For example, the Federal Government
funds all SNAP food expenses, but only 59 percent of allowable
administrative costs for regular operating expenses.\824\ Similarly,
Federal Medical Assistance Percentages (FMAP) in some HHS programs,
like Medicaid, can vary from between 50 percent to an enhanced rate of
100 percent in some cases.\825\ However, upon consideration of the
commenter's point and further review of the published FMAPs for each
state and territory of the United States, DHS has revised its estimates
of the state share of transfer payments from 50 percent to 59 percent,
which is the national average FMAP.
---------------------------------------------------------------------------
\824\ Per section 16(a) of the Food and Nutrition Act of 2008.
See also USDA, FNS Handbook 901, p. 41 available at: https://fns-prod.azureedge.net/sites/default/files/apd/FNS_HB901_v2.2_internet_Ready_Format.pdf (last visited July 26,
2019).
\825\ See Dept. of Health and Human Services, ``Federal
Financial Participation in State Assistance Expenditures; Federal
Matching Shares for Medicaid, the Children's Health Insurance
Program, and Aid to Needy Aged, Blind, or Disabled Persons for
October 1, 2016 through September 30, 2017.'' ASPE FMAP 2017 Report.
Dec. 29, 2015. Available at https://aspe.hhs.gov/basic-report/fy2017-federal-medical-assistance-percentages (last visited July 26,
2019).
---------------------------------------------------------------------------
Comment: Commenters said the strength of America's economic future
is dependent on the well-being and success of children, who are our
future workforce and tax base, and the rule could jeopardize our
country's economic future by causing tax-paying individuals who are
legally eligible for support to forego it.
Response: DHS appreciates the comments regarding children and the
economic future of the United States. DHS agrees that children are part
of what will continue to make the U.S. economy strong into the future.
However, DHS does not agree that this rule will jeopardize the economic
future of the United States. While DHS acknowledges the potential
disenrollment (or foregone enrollment) from public benefits by aliens
based on the final rule, the final rule does not force individuals who
are legally eligible for public benefits to disenroll or forego
enrolling in such benefits programs. Instead, through this final rule
DHS seeks to better ensure that applicants for admission to the United
States and applicants for adjustment to lawful permanent resident
status who are subject to the public charge ground of inadmissibility,
as well as aliens seeking extension of stay or change of status, are
self-sufficient, i.e., do not depend on public resources to meet their
needs, but rely on their own capabilities and the resources of their
family, sponsor, and private organizations.\826\
---------------------------------------------------------------------------
\826\ See 8 U.S.C. 1601(2).
---------------------------------------------------------------------------
s. Economic Impact on Healthcare System
Comment: Some commenters stated that the rule will result in
decreased tax revenue and lower productivity for individuals who delay
primary care.
Response: DHS appreciates the comment regarding decreased tax
revenue and lower productivity for individuals who delay primary care.
DHS agrees that working age individuals who fall ill would have lower
productivity at their jobs and possibly cause decreased tax revenue if
such individuals are forced to take unpaid sick leave or must quit
working altogether. However, DHS does not agree that this rule would be
the cause of such unfortunate events. DHS reiterates that the main
purpose of the rule is to provide guidance on the public charge
inadmissibility ground statutory provision for those seeking admission
or adjusting status in establishing that the person is not likely at
any time in the future to become a public charge.
Comment: Multiple commenters stated that the rule would cause
reductions in reimbursement, patient use, and collectability, which
would have substantial negative financial impacts on hospitals and
health centers, with many citing supporting data on potentially lost
revenue. Some commenters pointed to a study showing that enrollees
affected by the rule account for $68 billion in Medicaid and CHIP
healthcare services. One commenter calculated the amount of hospital
Medicaid payments at risk for 13 million beneficiaries who are likely
to experience a chilling effect from this rule, finding that hospitals
could lose up to $17 billion annually in payments from these programs.
Many commenters stated that the rule would negatively impact the
healthcare workforce, particularly direct care workers. Commenters
cited data indicating that the rule will impact health and long-term
care agencies' ability to hire and retain their health care workers, as
approximately 25 percent of healthcare support workers, such as nursing
and home health aides, are immigrants, many of whom are paid low wages
and rely on public assistance who would either leave the profession or
forego health coverage and put their health at risk. Some commenters
emphasized that this obstacle to expanding the workforce would be
particularly impactful at a time when the need for home care workers is
growing rapidly due to an aging U.S. population. Commenters state that
an exacerbated direct care workforce shortage would particularly impact
people with disabilities since many direct care workers are immigrants
who often rely on publicly-funded programs due to low wages. Some
commenters stated that if home health care workers are unable to
continue working, vulnerable populations may be forced to leave their
homes and receive more expensive care in nursing homes. Commenters
stated that this would not only put these vulnerable populations at
risk, but also would destroy decades of federal and state efforts,
including millions of federal dollars spent, to reduce the number of
individuals residing in nursing homes. Some commenters said the costs
to hospitals and the public health system would amount to more than any
cost-savings from lower enrollment in public programs.
Response: DHS agrees that some entities such as hospitals would
incur costs related to the rule such as rule familiarization costs and
various administrative costs. DHS considers these costs as qualitative,
unquantified effects of the final rule since it is unclear how many
entities will choose to make administrative changes to their business
processes and the cost of making such changes.
Additionally, in response to commenters' concern that this rule
will cause a direct care worker shortage, DHS is unable to quantify or
confirm these effects because DHS does not know how aliens will change
their behavior in response to this rule. DHS reiterates that the intent
of this rule is not to prevent individuals such as these from working,
but to provide guidance on determining whether an alien seeking
admission or adjustment of status is likely at any time in the future
to become a public charge.
Comment: One commenter stated that, without the contributions made
by immigrants to the healthcare system, health insurance premiums could
be expected to rise for Americans who rely on that coverage, concluding
that the rule neither mentions nor considers these costs to U.S.
citizens in its economic analysis. This commenter also said DHS should
take into account that
[[Page 41476]]
the rule would actually increase Federal Medicaid expenditures for HHS.
The commenters points to three factors that were included in the
proposed rule, or could be included in the final rule, that would
exacerbate their concern. The commenters recommended not including them
as part of the final rule. The concerns were: (1) Including Medicaid or
Medicare Part D LIS as negative factors in public charge
determinations; (2) including the Children's Health Insurance Program
(CHIP) in public charge determinations; and (3) considering premium tax
credits for purchasing individual market coverage in a public charge
determination.
Response: The commenter states that health insurance premiums could
rise and Federal Medicaid expenditures will increase as an effect of
the rule. DHS notes that the Public Charge final rule no longer
includes Medicare Part D LIS as a public benefits program considered in
public charge determinations, nor does it include CHIP or Medicaid for
aliens under the age of 21 or pregnant women. In addition, the final
rule does not consider premium tax credits in public charge
determinations. Therefore, these changes to the final rule is
responsive to a number of the commenters' concerns.
Comment: Several commenters stated that, in the long-run, some of
the uncompensated care incurred by hospitals will be reimbursed by the
Federal Government in the form of Medicare and Medicaid
disproportionate share hospital payments, which is another instance of
unaccounted for cost shifting that the rule will cause. One commenter
requested that USCIS systematically research the increased costs that
this rule will cost our healthcare system. An individual commenter
cited DHS's reference to the decrease in particular healthcare
providers' revenues, but asserted that there is no reference to
findings showing either an increased or a decreased percentage of
uncompensated care. To determine if including both non-monetary and
monetary public benefits is a positive, the commenter said there must
be some information on the amount of uncompensated care that healthcare
providers provide to non-citizen aliens.
Response: DHS acknowledges in the economic analysis accompanying
this rule that various entities may incur indirect costs associated
with the rule. Additionally, in the economic analysis that accompanies
this rule, which can be found in the rule docket at
www.regulations.gov, DHS notes there are a number of consequences that
could occur because of follow-on effects of the reduction in transfer
payments identified in the final rule. DHS is provides a list of the
primary non-monetized potential consequences of the final rule where
disenrollment or foregoing enrollment in public benefits programs by
aliens who are otherwise eligible could lead to issues such as
increases in uncompensated care in which a treatment or service is not
paid for by an insurer or patient. However, DHS notes that it is not
able to estimate such costs at this time.
t. Impact on U.S. Workforce
Comment: Some commenters pointed to a study indicating that over 91
percent of all adults active in the labor force who would be affected
by the public charge rule are employed in critical industries, such as
farming, construction, mining, hospitality, manufacturing, and
professional and business services. A commenter provided data
indicating the rule's destabilizing impact on multiple sectors of the
California workforce that are comprised of a large number of low-wage
immigrants, including agriculture, construction, child care and early
education, and students. Some commenters provided data regarding the
rule's impact on the workforce in Massachusetts, particularly in the
construction field. A commenter wrote about the rule's potential impact
on the immigrants in the construction industry who have been helping to
rebuild Houston after Hurricane Harvey and who contribute billions each
year in state and local taxes. The commenter notes that this rule would
prevent immigrants from partaking in benefits that their tax dollars
help support and will cause confusion in the immigrant community for
using benefits that lead to a better life. Another commenter stated
that Maine faces extraordinary demands to replace an aging and retiring
workforce.
Two commenters described the rule's impact on the workforce in
areas such as agriculture, ranching, hotels, and restaurants. Two other
individual commenters provided input on the rule's impact on the horse
industry, stating that putting immigrants in situations where they are
working in physically demanding jobs with no access to healthcare could
be ``disastrous'' for all involved. Another individual commenter stated
that, because the disenrollment and foregone enrollment figures are
unclear or uncalculated, it is impossible to know what the immediate
economic impact will be in agriculture, healthcare, retail, and rental
markets.
After asserting that the rule will cause job losses and economic
decline, a commenter said restricting the number of immigrants to the
United States could leave the nation at a vulnerable position given the
current national employment boom.
Response: DHS appreciates the comments regarding the impact on the
U.S. workforce, particularly the effect that the rule will have on
specific industries. DHS does not anticipate that this rule will have a
strong or extensive effect on the U.S. workforce overall or across
specific industries as discussed in the economic analysis that
accompanies this rule, which can be found in the rule docket at
www.regulations.gov, and the Final Regulatory Flexibility Analysis. DHS
estimates the potential impacts to businesses, states and small
entities using the data provided by commenters. Small entities that
could be impacted by this final rule are those who file Form I-129 or
Form I-129CW as petitioners on behalf of beneficiaries requesting an
extension of stay or change of status as well as obligors that would
request a cancellation of a public charge bond.
u. Economic Impacts Related to Nutrition Programs
Comment: Some commenters said a significant drop in use of food
stamps and other food programs will negatively affect farmers, local
growers, and grocery sales at retailers and farmers markets. A
commenter said reduced enrollment in SNAP will shift the burden to
local communities and food banks that are already stretched to meet
demand. A commenter stated that in 2017 more than $22.4 million in SNAP
benefits were spent at farmers markets. The commenter also asserted
that many small farmers, farm workers, and their families are
beneficiaries of SNAP, which the commenter concluded meant that they
would be hit doubly hard by the proposed rule. Similarly, an academic
commenter stated that limiting the ability of immigrants to use SNAP
would hurt the American farming community and destabilize the American
food system, reasoning that the revenues of farmers would be reduced
and some farmworkers would lose access to SNAP benefits.
A commenter said the rule would withdraw nearly $200 million in
Federal SNAP funding, amounting to approximately $358 million in lost
economic activity when taking the economic multiplier into account. A
couple of commenters stated that SNAP is an economic driver in local
economies, especially rural communities. Commenters stated that
[[Page 41477]]
lower participation in SNAP means less federal funding to support local
economies and lower worker productivity. Other commenters provided
estimates for the amount of economic activity that would be lost in
certain states as a result of immigrants foregoing critical nutritional
benefits.
Response: DHS appreciates the comments regarding the economic
effects of disenrollment or foregone enrollment in the SNAP benefits
program. As noted in the NPRM, DHS recognizes that reductions in
federal and state transfers under Federal benefit programs may have
downstream impacts on state and local economies, large and small
businesses, and individuals. However, DHS is generally not able to
quantify these impacts due to uncertainty and availability of data. DHS
estimated these impacts or discussed them qualitatively to the extent
possible in the economic analysis for this final rule. For example, the
rule might result in reduced revenues for grocery retailers
participating in SNAP, agricultural producers who grow foods that are
eligible for purchase using SNAP benefits, or landlords participating
in federally funded housing programs. DHS notes that the economic
impact will result in a reduction in transfer payments from the Federal
Government and State governments to individuals who may choose to
disenroll from or forego enrollment in a public benefits program.
However, the same amount of funding for public benefits programs, such
as SNAP, will be available for qualified individuals. This final rule
does not appropriate or disappropriate funding for public benefits
programs, but ensures that applicants for admission to the United
States and applicants for adjustment of status to lawful permanent
resident who are subject to the public charge ground of
inadmissibility, as well as aliens seeking extension of stay or change
of status, are self-sufficient, i.e., do not depend on public resources
to meet their needs, but rely on their own capabilities and the
resources of their family, sponsor, and private organizations.\827\
---------------------------------------------------------------------------
\827\ See id.
---------------------------------------------------------------------------
Comment: A commenter stated that a reduction in SNAP enrollment
could also reduce school reimbursement for free and reduced lunches in
states that have extended SNAP benefits above 130 percent of FPL. A
commenter indicated an expectation to see a decline in families willing
to complete the forms in the Child and Adult Care Food Program center-
based child care programs, which would result in less federal nutrition
funding to support healthy meals for children, the local retail and
agriculture food economy, and revenue for child care businesses.
Response: DHS appreciates the comment regarding the effect of the
final rule on enrollment in reduced and free school lunches. DHS does
not believe the rule will reduce school reimbursement for reduced and
free school lunches beyond the effect of individuals who may choose to
disenroll from or forego enrollment in a public benefits program.
Again, the final rule only regulates applicants for admission to the
United States and applicants for adjustment of status to lawful
permanent resident who are subject to the public charge ground of
inadmissibility, as well as aliens seeking change of status or
extension of stay.\828\
---------------------------------------------------------------------------
\828\ See id.
---------------------------------------------------------------------------
v. Other Economic Impacts
Comment: A commenter stated the rule will adversely impact colleges
and universities, as even a slight decrease in international student
enrollment has drastic impacts on higher education institutions because
international students often receive little or no financial aid and pay
higher out-of-state tuition at public universities. Similarly, a school
said colleges across the country could see significant decrease in
enrollment and increased burden on student health centers.
Response: DHS appreciates the comments regarding the effect of the
rule on colleges and universities, including student health centers, as
it relates to international student enrollment. However, this rule does
not regulate international student enrollment in colleges and
universities nor the amount of financial aid awards or the rate of
tuition that colleges and universities charge. The final rule also does
not regulate student health centers located at colleges and
universities. Rather, the rule directly regulates aliens who, at the
time of application for admission or adjustment of status, are deemed
likely at any time in the future to become a public charge, as well as
aliens seeking extension of stay or change of status.\829\ DHS is
prescribing how it will determine whether an alien is inadmissible
because he or she is likely at any time in the future to become a
public charge and identify the types of public benefits that will be
considered in the public charge determinations. An alien applying for
admission or adjustment of status generally must establish that he or
she is not likely at any time in the future to become a public charge.
---------------------------------------------------------------------------
\829\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
As explained in the preamble of the rule,\830\ DHS believes that
the government interest in ensuring the self-sufficiency and non-
reliance on public benefits of aliens, including nonimmigrants, as
articulated by Congress in PRWORA,\831\ applies to all aliens within
the United States, including to those whose stays are temporary.
Moreover, although the extension of stay or change of status provisions
in the INA and the regulations do not specifically reference an alien's
self-sufficiency, consideration of an alien's self-sufficiency in these
applications is consistent with the principles of PRWORA and aligns
DHS's administration of the INA to those principles.\832\
---------------------------------------------------------------------------
\830\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51135-36 (proposed Oct. 10, 2018).
\831\ See 8 U.S.C. 1601.
\832\ See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 47 (1942)
(requiring ``careful accommodation of one statutory scheme to
another. . . .'').
---------------------------------------------------------------------------
w. DHS Estimates of Discounted Direct Costs and Reduced Transfer
Payments
Comment: A commenter stated that USCIS characterization of reduced
transfer payments as the primary benefit of the rule ignores long-
standing principles of regulatory cost-benefit analysis distinguishing
between benefits and transfers. This commenter suggests that the cost-
benefit analysis should estimate the net effect that the reduced
transfer payments would have on the larger economy. A commenter stated
the exactness of the values used in our range of estimates leave little
room for error as well as suggesting a more enhanced analysis given the
broadness of the estimated range.
Another commenter questioned USCIS' approach in estimating costs
and benefits of the rule stating that the reduction in transfer
payments to non-citizens is itself a cost to those individuals per the
guidelines of OMB Circular A-4 and should be defined as such in the
regulatory impact analysis (RIA). A commenter also stated that cost
savings of $2.27 billion will not be realized due to the effect on
temporary visa applications and the potential that DOS starts applying
public charge standards to applicants abroad. Another commenter said
that the cost benefit analysis did not have sufficient documentation,
and the rule's cost savings of $2.2 billion was chosen for its ``wow''
factor.
Finally, a commenter stated that USCIS highlights $23 billion in
savings related to Medicaid, but fails to account for the beneficial
impacts of the program
[[Page 41478]]
and the effects of losing Medicaid coverage.
Response: DHS appreciates the comments regarding transfer payments.
DHS notes that the $2.27 billion in cost savings that a commenter
refers to are actually the estimated transfer payments of the rule as
shown in the economic analysis, which can be found in the rule docket
at www.regulations.gov. The method and calculation of the estimated
transfer payments is shown as clearly as possible in the economic
analysis of the rule. As previously discussed, DHS estimates the
reduction in transfer payments from the Federal and State governments
to certain individuals who receive public benefits and discusses
certain indirect impacts that are likely to occur because of the final
regulatory changes. The primary sources of the reduction in transfer
payments from the Federal and State governments of this final rule are
the disenrollment or foregone enrollment of individuals in public
benefits programs. DHS notes there is not a legal requirement to
provide a monetized total cost estimate for this rule. As previously
explained, DHS described and monetized where possible the types of
costs that would result from this rule and has added many additional
costs provided by the commenters. For those costs and benefits that DHS
was not able to quantify and monetize to calculate a total cost, the
economic analysis includes a description of those costs and benefits
and a reasoned discussion about why they could not be quantified or
monetized. DHS does not agree that it is not adhering to long-standing
principles of regulatory cost-benefit analysis. The economic analysis
for this final rule was conducted based on the guidelines set forth in
OMB's Circular A-4, which provides guidance to agencies for conducting
cost-benefit analyses and, in this case, a discussion on the
distinction between cost and/or benefits and transfer payments.\833\ As
noted in OMB Circular A-4 (p. 38), ``[b]enefit and cost estimates
should reflect real resource use. Transfer payments are monetary
payments from one group to another that do not affect total resources
available to society.'' The reduction in transfer payments are
quantified in the transfer payments section of the economic analysis of
this rule, in accordance with OMB's Circular A-4. A reduction in
transfer payments is not quantified in the benefits section of this
rule. There is great uncertainty regarding the effects that changes in
transfer payments will have on the broader economy and DHS is unable to
estimate those effects.
---------------------------------------------------------------------------
\833\ OMB Circular A-4 is available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last accessed July 26, 2019).
---------------------------------------------------------------------------
x. Benefits of Proposed Regulatory Changes
Comment: A few commenters provided input on the benefits of the
rule. A benefit noted by commenters is that the rule enforces the
requirement that immigrants should be self-sufficient. One commenter
provided scenarios and personal experiences as examples of fraudulent
claims and behavior of immigrants. An educational institution said the
rule ensures participation of immigrant families in federal or state-
funded public benefit programs are monitored and limited. Two
individual commenters provided comments, data, or studies relating to
immigrants' dependence on public assistance programs causing continued
decay on American culture. One commenter stated that the rule would
save American taxpayers money. Another commenter noted the rule is non-
discriminatory by creating a uniform process, and that the additional
forms will allow better collection of information.
Response: DHS appreciates these comments. DHS's public charge
inadmissibility rule is neither intended to address public benefit
fraud and abuse nor ensure that alien access to public benefit programs
is monitored and limited. As stated throughout this preamble, this rule
is intended to align the self-sufficiency goals set forth in the PRWORA
with the public charge ground of inadmissibility.
y. Cost Benefit Analysis Issues
Comment: Some commenters stated that DOS's January changes to
public charge has led to improper denials, and that the rule may
exacerbate that problem and lead to administrative inconsistency.
Another commenter argued that DHS failed to adequately consider the
costs of the rule on CBP application of the rule, citing studies.
Response: Although the standards set forth in the rule pertain both
to whether an alien who seeks admission as a nonimmigrant or immigrant
or seeks adjustment of status is inadmissible, the rule's economic
analysis, which can be found in the rule docket at www.regulations.gov,
focuses on the impact to USCIS adjudications, as the rule primarily
impacts USCIS' adjudication of applications for adjustment of status,
as well as applications for extension of stay and change of status. DHS
is working closely with the Department of State to ensure that they are
aware of the requirements of this rule and to prevent any
administrative inconsistency. In addition, DHS did not include an
analysis of costs and benefits associated with public charge
inadmissibility determinations made by CBP in the admission context.
This rule would potentially limit entries into the United States in
that CBP officers would deny admission to aliens at the ports of entry
on public charge grounds, but CBP is already responsible for
administering the public charge ground of inadmissibility and we do not
anticipate a meaningful change in the amount of time the determination
would take.
Comment: A commenter remarked on USCIS' approach to estimating
costs and benefits of the rule noting that USCIS states the rule will
have no effect on wages or growth, but this is unlikely given the rule
will cause a fundamental change in future working populations. The
commenter cited research with data and suggested using it as a model
for this rule's economic analysis.\834\
---------------------------------------------------------------------------
\834\ See MPI, Gauging the Impact of DHS' Proposed Public-Charge
Rule on U.S. Immigration (Nov. 2019), available at https://www.migrationpolicy.org/sites/default/files/publications/MPI-PublicChargeImmigrationImpact_FinalWeb.pdf (last visited April, 18,
2019).
---------------------------------------------------------------------------
Response: DHS does not expect this rule to have a direct effect on
wages or economic growth as this rule does not regulate hiring
practices of employers in the United States. This final rule requires
an individual seeking admission or adjusting status to establish that
he or she is not likely at any time in the future to become a public
charge, and that aliens seeking change of status or extension of stay
meet the public benefits condition. Moreover, DHS notes that the
research the commenter cites is not relevant to a discussion of wages
or economic growth that may result from this rule.\835\ The research
cited primarily discusses the effects on applicants when they are
reviewed for public charge based on the factors that will be considered
in the ``totality of the circumstances.''
---------------------------------------------------------------------------
\835\ See Capps, et al. (2018). Gauging the Impact of DHS'
Proposed Public-Charge Rule on U.S. Immigration. Washington, DC:
Migration Policy Institute, available at https://www.migrationpolicy.org/sites/default/files/publications/MPI-PublicChargeImmigrationImpact_FinalWeb.pdf (last visited April, 18,
2019).
---------------------------------------------------------------------------
Comment: Several commenters provided suggestions on how the
analysis could have been done differently overall. One commenter said
that USCIS should consider a general equilibrium analysis to better
analyze the holistic impacts of the rule throughout the entire economy.
Another commenter said in order to develop an
[[Page 41479]]
accurate portrayal of the rule's cost and benefits, USCIS must use
actual benefit receipt information to determine the affected population
rather than DHS summary statistics.
Response: DHS appreciates the commenters' suggestions. DHS did not
consider a general equilibrium analysis to be appropriate here. We do
not have enough data to build a general equilibrium model that would be
able to estimate the impact of this rule. In addition, due to the
complexity of potential benefits, issues of confidentiality, and data
limitations, it was not possible to use actual benefit receipt
information for the analysis.
Comment: A commenter stated that USCIS has not made any attempt to
detail costs related to processing delays and noted that public charge
determinations will inevitably slow down federal agency processing
times, for which DHS did not estimate the opportunity cost of such
delays.
Response: DHS appreciates the comment. DHS was unable to quantify
such costs at this time. DHS notes that delays in processing various
forms may occur, but that every effort is taken to avoid such delays
whenever possible. DHS does not agree that the new requirements
associated with public charge inadmissibility determinations would
waste resources and be an unnecessary administrative burden, as DHS has
determined that it is necessary to establish a public charge
inadmissibility rule. Should DHS determine that the fees set for the
relevant forms related to the public charge review process are not
sufficient to cover the full cost of the associated services
adjudicating immigration benefit requests, the agency will propose to
adjust these form fees in a subsequent fee rule. DHS sets the fees
associated with requesting immigration benefits as necessary to recover
the full operating costs associated with administering the nation's
lawful immigration system, safeguarding its integrity, and efficiently
and fairly adjudicating immigration benefit requests. As discussed
above, while the rule may increase USCIS processing times, such is the
burden of robust enforcement of the law.
Comment: A commenter stated that USCIS fails to properly estimate
the impact of effects such as immigrants foregoing noncash benefits and
other reductions in transfer payments. Another commenter stated that
the impact that a loss of public benefits would have on immigrant
communities should be calculated in a more robust way by using
actuarial models or models used in personal injury litigation that
accurately capture the pain and suffering these individuals would
undergo.
Response: DHS conducted its economic analysis to the best of its
ability given the complexity of the analysis and the availability of
data. DHS does not agree that the economic analysis should employ
``actuarial models or models used in personal injury litigation'' to
estimate the economic effects of this rule. Actuarial models assess
risk and probabilities utilizing a given set of parameters.
Unfortunately, DHS does not have enough data on the usage of various
subsidies nor the rate of disenrollment needed to create an accurate
model. More specifically, in the case of actuarial models used in
personal injury litigation, each person's situation is unique and DHS
would need to know the specific impacts for each person in order to
utilize that type of model. DHS reiterates that the main purpose of the
rule is to provide guidance on the public charge inadmissibility ground
statutory provision for those seeking admission or adjusting status in
establishing that the person is not likely at any time in the future to
become a public charge.
Comment: A commenter stated that the cost benefit analysis fails to
consider the upward mobility of immigrant communities, the impact of
lower levels of immigration on the economy, and other costs such as
separation of families, businesses losing workers, and families going
without needed assistance.
Response: Where possible, DHS has tried to quantify the indirect
impacts of this rule, but DHS is unable to fully quantify the impact of
lower immigration on the economy and other costs that could indirectly
result from this rule.
Comment: A commenter stated that the cost benefit analysis details
an increase in the number of denials for adjustment of status
applications, but it does not provide a monetization of these impacts.
A commenter stated that the proposed rule requires additional
sensitivity analysis. Another commenter stated that USCIS fails to
consider key impacts centered around increased denials for admission,
change of status, or re-entry, and USCIS should complete a further
literature review around these issues.
Response: DHS was able to detail an increase in the number of
denials for adjustment of status applications, but did not have enough
detailed information on specific aliens to monetize the impacts such
denials may have on the economy. DHS disagrees that the rule requires
additional sensitivity analysis.
Comment: A commenter stated that USCIS significantly overestimated
the average cost of housing assistance per person in calculating costs
and benefits.
Response: DHS used the publicly available HUD Federal Rental
Assistance and HUD HCV programs report data on the household level in
order to estimate the number of households that may be receiving
housing benefits. The average annual benefit of $8,121.16 is the
estimate DHS calculated per household. DHS recognizes that actual
average annual benefits may be less due to the size and location of a
particular household.
Comment: A commenter stated that USCIS failed to estimate the
number of applicants who will be deemed inadmissible, and the
associated effects.
Response: DHS is unable to estimate the number of applicants who
will be deemed inadmissible due to this rule. The review for public
charge inadmissibility will be based on the totality of the
circumstances that considers many positive and negative factors that
are specific to each applicant. Therefore, DHS is unable to estimate
the number of individuals who may be deemed inadmissible based on
public charge. However, DHS estimated the annual population that will
be subject to a public charge review for inadmissibility in the
economic analysis for this rule, which can be found in the rule docket
at www.regulations.gov.
Comment: A commenter stated that USCIS should monetize the costs of
reduced participation in public benefits programs.
Response: DHS appreciates the comment regarding monetizing the
costs of reduced participation in public benefits programs. DHS
monetized the effect of disenrollment in public benefits programs to
the extent possible based on the best available data. While DHS
provides estimates of the direct costs of the final rule in the
economic analysis, we also provide estimates and detailed methodology
of the reduction in transfer payments from the Federal and State
governments to certain individuals who receive public benefits such as
those individuals who choose to disenroll or forego future enrollment
in public benefits programs due to fear or confusion. As noted in OMB
Circular A-4 (p. 38), ``[b]enefit and cost estimates should reflect
real resource use. Transfer payments are monetary payments from one
group to another that do not affect total resources available to
society.'' The reduction in transfer payments are quantified in the
transfer section of the economic analysis
[[Page 41480]]
of this rule, in accordance with OMB's Circular A-4. However, a
reduction in transfer payments are not quantified in the benefits
section of this rule. DHS notes that there is great uncertainty
regarding the effects changes in transfer payments will have on the
broader economy, and estimating those effects are beyond the scope of
this rule.
Comment: A commenter stated that USCIS includes the removal of Form
I-864W as a benefit, but does not present a primary, minimum, or
maximum estimate of the benefits.
Response: As noted in the economic analysis, which can be found in
the rule docket at www.regulations.gov, DHS is eliminating Form I-864W
and instead individuals will be required to provide the information
previously requested on the Form I-864W using Form I-485. Based on the
information provided in the Form I-485, an adjudication officer can
verify whether an immigrant is statutorily required to file an
affidavit of support. DHS estimated the cost per petitioner for filing
Form I-864W, but was unable to determine the number filings of Form I-
864W and was unable to estimate the total annual cost savings of
eliminating this form.
Comment: A commenter stated that the lack of a sufficient economic
model showing the potential impact this could have on families and the
economy should be grounds to reject the proposed rule.
Response: DHS does not agree that DHS did not conduct a sufficient
economic analysis for this final rule. E.O. 12866 directs agencies
subordinate to the President to assess costs and benefits of available
regulatory alternatives and, when regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages, distributive impacts, and equity). In implementing E.O.
12866, OMB has provided further internal guidance to agencies through
OMB Circular A-4 (Sept. 17, 2003), found at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf. OMB Circular A-4
states that it ``is designed to assist analysts in the regulatory
agencies by defining good regulatory analysis . . . and standardizing
the way benefits and costs of Federal regulatory actions are measured
and reported.'' OMB Circular A-4, at 3.
As previously explained, DHS described and monetized where possible
the types of costs that would result from this rule and has added many
additional costs provided by the commenters. For those costs and
benefits that DHS was not able to quantify and monetize to calculate a
total cost, the economic analysis includes a description of those costs
and benefits and a reasoned discussion about why they could not be
quantified or monetized.
Comment: One commenter submitted a detailed comment on the cost-
benefit analysis accompanying the proposed rule stating that over half
of foreign-born spouses eligible for green cards would be impacted by
USCIS' rule.\836\ The commenter also stated that USCIS has not provided
sufficient analysis to determine how many temporary visitors to the
United States would be impacted, that the number of individuals likely
to be impacted by the proposed rule's Form I-944 requirement on an
annual basis is 436,029 as opposed to 382,264, and that the opportunity
costs model used by USCIS is flawed largely due to the use of a
weighted minimum wage rather than the average prevailing wage. The
commenter stated that the number of individuals impacted by the
proposed rule who receive minimum wage is likely significantly lower
than 28.5%, and the minimum wage is often higher in a number of states
than the national average. The commenter stated that the cost of
attorney fees to applicants will be significantly higher than DHS
recognizes. When correcting for these effects, the proposed rule would
incur total costs of $2,260,448,302, or about 17 times greater than
USCIS' estimate. A commenter stated that the cost savings related to
healthcare provisions were unworkable given the disjointed nature of
exempting some health services such as immunizations but punishing use
of Medicaid and CHIP. A commenter stated that the proposed rule would
lead to significant increase in administrative costs to deal with
public charge provisions.
---------------------------------------------------------------------------
\836\ See Looming Immigration Directive Could Separate Nearly
200,000 Married Couples Each Year, Boundless Immigration Inc. (Sept.
24, 2018),https://www.boundless.com/blog/looming-immigration-directive-separate-nearly-200000-married-couples. (last visited July
26, 2019).
---------------------------------------------------------------------------
Response: DHS appreciates these comments. The analysis used the
Federal minimum wage rate since approximately 80 percent of the total
number of individuals who obtained lawful permanent resident status
were in a class of admission under family-sponsored preferences and
other non-employment-based classifications such as diversity, refugees
and asylees, and parolees.\837\ Further, the benefits-to-wage
multiplier raised the Federal minimum wage to $10.59, which could
account for wages above $7.25 that do not receive non-wage
benefits.\838\ The cost savings presented in the analysis were based on
the provisions of the proposed rule and have been updated in the final
rule. Administrative costs were not calculated.
---------------------------------------------------------------------------
\837\ See United States Department of Homeland Security.
Yearbook of Immigration Statistics: 2016, Table 7. Washington, DC,
U.S. Department of Homeland Security, Office of Immigration
Statistics, 2017. Available at https://www.dhs.gov/immigration-statistics/yearbook/2016. (last visited July 26, 2019).
\838\ Note that the benefits-to-wage multiplier of 1.47 used in
the proposed rule has been updated to 1.46 for the final rule based
on an annual data update released by the Bureau of Labor Statistics.
Therefore, DHS updated its wage estimate using the Federal minimum
wage plus benefits from $10.66 per hour to $10.59 per hour.
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The analysis does not quantify potential effects on admissibility,
as opposed to adjustment of status. Instead, the purpose of the rule is
to determine whether an alien is inadmissible to the United States
under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), because an
alien is likely at any time in the future to become a public charge.
Aliens who seek adjustment of status or a visa, or who are applicants
for admission, must establish that they are not likely at any time to
become a public charge, unless Congress has expressly exempted them
from this ground of inadmissibility or has otherwise permitted them to
seek a waiver of inadmissibility. Moreover, DHS will require all aliens
seeking an extension of stay or change of status to demonstrate that
they have not, since obtaining the nonimmigrant status they wish to
extend or change, received public benefits, as defined in this rule,
for more than 12 months in the aggregate within any 36-month period
unless the nonimmigrant classification that they seek to extend, or to
which they seek to change, is exempt from the public charge ground of
inadmissibility.
In addition, DHS acknowledges the commenter's estimate of the
population that would be affected by this rule's requirement to submit
the new Form I-944. However, DHS notes that we use data from internal
and external sources as appropriate, and ensures that all data are
current, valid, reliable, and accurate. DHS declines use the
commenter's population estimate in favor of the estimates we present in
the economic analysis that accompanies this rule, which can be found in
the rule docket at www.regulations.gov. The data DHS used for its
estimates were necessary since it provides detailed information showing
the classes of applicants for admission, adjustment of status, or
registry according to statute or regulation that are exempt from
[[Page 41481]]
inadmissibility based on the public charge ground. Other data that are
available are informative, but only provide aggregate receipt totals
whereby it is not possible to remove individuals from the population
count who are exempt from a public charge review of inadmissibility.
Finally, based on comments received, DHS amended its economic
analysis, where possible, to account for individuals who choose to hire
an attorney for legal representation on their behalf.
Comment: A commenter noted that though the rule impacts only a
small number of immigrants, its chilling effect impacts will outweigh
its intentional impacts. This, the commenter and others commenters
asserted, is an abdication of DHS's APA duties to consider costs and
benefits. Further, a commenter stated that DHS failed to satisfactorily
justify the prospective harm of the chilling effect of this rule.
Another commenter stated that DHS's cost analysis is arbitrary, stating
that its estimates appear in some cases to reflect a range based on
simply moving decimal places rather than evidence. Elsewhere, the
commenters say estimates are inconsistent, such as the Form I-944 cost
estimates in the PRA analysis versus elsewhere in the proposed rule. A
few commenters noted that the public charge definition is not supported
by or tied to any benefit to ``health, well-being, businesses,
economies, or communities.'' One commenter stated that the rule ``does
not point to any expected benefits for individual or public health, for
national, state or local economies, for businesses, for healthcare
systems, or for our communities.''
Response: DHS disagrees with these comments. E.O. 13563 directs
agencies to propose or adopt a regulation only upon a reasoned
determination that its benefits justify its costs; the regulation is
tailored to impose the least burden on society, consistent with
achieving the regulatory objectives; and in choosing among alternative
regulatory approaches, the agency has selected those approaches that
maximize net benefits. E.O. 13563 recognizes that some benefits are
difficult to quantify and provides that, where appropriate and
permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
2. Federalism Comments
Comment: A commenter stated that DHS did not conduct an adequate
analysis of the NPRM's federalism implications. The commenter further
stated that because of the serious impact the NPRM will have on the
States, it is improper for DHS to forego the federalism summary impact
statement. The commenter also stated that E.O. 13132 requires DHS to
produce a federalism summary impact statement. One commenter stated
that DHS did not engage in adequate consultation with governors
pursuant to E.O. 13132, and requested that DHS engage in a meaningful
and formal way before taking further action on the public charge rule.
The commenter noted that the rule would likely impose significant
financial and administrative burdens on states, including costly and
labor-intensive changes in how states implement their shared
eligibility systems among human services and health programs.
Response: This final rule does not have federalism implications
because it does not have substantial direct effects on the States, on
the relationship between the Federal Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Although this rule defines public benefit to include
certain cash and non-cash benefits, some of which may be fully or
partially administered by states or local governments, DHS is not
purporting to regulate which aliens may receive such benefits or how
states and local governments administer such programs. DHS does not
expect that this final rule will impose substantial direct compliance
costs on State and local governments, or preempt State law.
Accordingly, in accordance with section 6 of E.O. 13132, this rule
requires no further agency action or analysis.
Comment: A commenter stated that this rule impinges on a state's
right to provide healthcare services and increases federal intrusion
into local issues.
Response: DHS disagrees that this rule impinges on state's rights
to provide healthcare services and increases federal intrusion into
local issues. This rule enforces a law that has been in place, in one
form or another, since the late 19th century. The review of public
charge inadmissibility, which is an immigration matter, is a matter of
Federal jurisdiction alone, as indicated by the Supreme Court.\839\
---------------------------------------------------------------------------
\839\ See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941); see
also Arizona v. United States, 567 U.S. 387, 394 (2012) (``The
Government of the United States has broad, undoubted power over the
subject of immigration and the status of aliens.'').
---------------------------------------------------------------------------
Comment: A commenter indicated that as a matter of law and
effective policy, USCIS must consult with States and localities about
the impact of the public charge rule on state and local choice and
policy. The need for this consultation was apparent because the
formulation of the guidance document this regulation proposes to
replace considered state and local public health concerns.
Response: DHS has considered the relevant public comments and
engaged in many meetings with state and local entities as part of the
E.O. 12866 process. Aliens entitled to public benefits under State or
local law may elect to receive such benefits and this rule does not,
and cannot, change that fact. However, DHS believes that the
consideration of an alien's receipt of designated public benefits is
consistent with congressional intent, as set forth in PRWORA, that the
receipt of public benefits should not be an incentive to come to the
United States, and aligns DHS's administration of the INA to those
principles.\840\
---------------------------------------------------------------------------
\840\ See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 47 (1942)
(requiring ``careful accommodation of one statutory scheme to
another.'').
---------------------------------------------------------------------------
Comment: Some commenters stated that the rule violates state's
rights to provide benefits to children and immigrants experiencing
short-term crises. Some commenters said this rule impinges on a state's
right to provide healthcare services and increases federal intrusion
into local issues. Commenters stated that some state statutes and
constitutions, as well as DHS's own 1999 Interim Field Guidance, make
it a state interest to provide certain benefits to non-citizens.
Several commenters stated that the proposed rule impermissibly
overrides state authority. Others stated that the proposed rule would
bar their states' from providing state-funded aid to their own
residents, regardless of immigration status. A commenter stated that
the proposed rule violates the 10th Amendment of the U.S. Constitution
because it commandeers state resources by compelling agencies to
implement the rule, especially in providing notice and information to
applicants. Another commenter stated that the rule violates a
federalism principle by imposing an unfunded mandate. One commenter
stated that the proposed rule will impose substantial costs on State
and local governments such that federalism concerns are implicated.
Other commenters stated that the proposed rule would harm their states.
A commenter stated that the proposed rule would undermine a state
statute that was passed with bipartisan support in order to extend
CHIP.
[[Page 41482]]
Another commenter asserted that, even if the proposed rule were
passed in the form of a statute, it would violate Article I of the
Spending Clause for coercively restricting state use of Federal grant
money.
Response: DHS did not propose in the NPRM to, in any way, regulate
or circumscribe the ability of states to offer public benefits to
children and immigrants, or to require states to implement the DHS
rule. Similarly, this final rule neither prohibits states from
providing benefits to children and immigrants nor prohibits any
category of immigrants from receiving any state or local benefits for
which they are eligible. Furthermore, the rule's definition of public
benefit does not include emergency aid, emergency medical assistance,
or disaster relief. Likewise, the rule does not impact the Spending
Clause since it does not restrict a state's ability to use Federal
funds.
3. Family Assessment Comments
Comment: One commenter said that the rule violated Section 654 of
the Treasury General Appropriations Act, 1999, Public Law 105-277,
which requires agencies to assess their policies' impact on family
stability, families' ability to function, and other indicators of
family well-being. Another commenter stated that DHS's Family
Policymaking Assessment failed to fully and meaningfully evaluate the
rulemaking's effects on family well-being under section 654(c)(1) and
did not address 654(c)(2)-(7) at all. Other commenters generally agreed
that the family assessment in the proposed rule is insufficient.
Several commenters stated this rule will unnecessarily harm family
unity, such as by making it difficult for some spouses of U.S. citizens
to enter the United States or adjust status. A commenter generally
stated that the proposed rule's definition of ``household,'' along with
the asset and income standards, would pressure families to separate.
The commenter also stated that the proposal to subject residents to
public charge determinations upon reentering the United States would
discourage immigrants from preserving contact with family outside of
the United States. A commenter added that it would make it especially
difficult for immigrants to let their parents join them in the United
States. Another commenter cited an article noting that there are
9,000,000 mixed status families in the United States, and many would be
faced with the threat of coerced separation.
Another commenter stated that this rule could result in the
separation of at least 200,000 married couples annually. Another
commenter provided data on the impact of the study on marriage-based
permanent residency applications, saying the proposed rule would
undermine family unity and stability. A commenter stated that the
proposed rule would chill access to their state's Department of
Children and Families and Juvenile Court, leading to children remaining
dependent on state child welfare programs.
Many commenters said this rule would dramatically hurt and
jeopardize families, as well as place undue burden on all family
members. A commenter stated that the proposed rule fails to analyze the
rule's effect on the well-being of families, especially its impact to
family stability, and on the disposable income of families and
children. Some commenters provided studies showing how children could
be severely and irreversibly harmed, including children's health, by
separation as part of a strategy to prevent immigrants from legalizing
their status.
A commenter stated that the rule contravenes international and
domestic policies that support children's best interests, citing the
U.N. Convention on the Rights of the Child.
Response: Section 654 of the Treasury and General Government
Appropriations Act, 1999 \841\ requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. Agencies must assess whether: (1) The action strengthens or
erodes the stability or safety of the family and, particularly, the
marital commitment; (2) the action strengthens or erodes the authority
and rights of parents in the education, nurture, and supervision of
their children; (3) the action helps the family perform its functions,
or substitutes governmental activity for the function; (4) the action
increases or decreases disposable income or poverty of families and
children; (5) the proposed benefits of the action justify the financial
impact on the family; (6) the action may be carried out by State or
local government or by the family; and whether (7) the action
establishes an implicit or explicit policy concerning the relationship
between the behavior and personal responsibility of youth, and the
norms of society.
---------------------------------------------------------------------------
\841\ Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998).
---------------------------------------------------------------------------
As discussed in the NPRM,\842\ DHS has determined that the rule may
decrease disposable income and increase the poverty of certain families
and children, including U.S. citizen children. And as discussed
previously, DHS has modified some provisions in ways that will mitigate
the impact on families, such as by exempting receipt of Medicaid by
aliens under 21 and pregnant women. Ultimately, however, DHS continues
to believe that the financial impact on the family is justified.
---------------------------------------------------------------------------
\842\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51277 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
Additionally, because the final rule considers receipt of public
benefits that were not considered under the 1999 Interim Field
Guidance, DHS determined that the aliens found inadmissible under
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), will likely
increase. However, given the compelling legal and policy reasons
associated with this rulemaking, including but not limited to, better
ensuring self-sufficiency, DHS determined that this rulemaking's impact
is justified and no further actions are required. DHS also determined
that this final rule will not have any impact on the autonomy or
integrity of the family as an institution.
Furthermore, with this rulemaking, DHS does not intend to separate
families. DHS's intent is to implement Congress' mandate to assess
whether an alien has met his or her burden to demonstrate that he or
she is not likely at any time to become a public charge under section
212(a)(4)(A) of the Act, 8 U.S.C. 1182(a)(4), given the congressional
policy to ensure that those coming to the United States should be self-
sufficient and not rely on the government for assistance to meet their
needs.\843\
---------------------------------------------------------------------------
\843\ See 8 U.S.C. 1601(1) and (2).
---------------------------------------------------------------------------
DHS agrees that family unity is a significant tenet of the family-
based immigration system. As indicated above, the rule does not alter
eligibility criteria for a family-based immigrant petition, although it
could have some impact on the ultimate outcome of such petitions. DHS
has taken certain steps that mitigate the potential effects of this
rule on families. For instance, DHS will not attribute U.S. citizen
children's receipt of public benefits to their parents who are subject
to the public charge inadmissibility ground. Like all other applicants
for admission or adjustment of status who are subject to the public
charge or any other ground of inadmissibility, aliens are not
guaranteed admission or adjustment of status merely by virtue of their
[[Page 41483]]
relationship to a U.S. citizen or lawful permanent resident.\844\
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\844\ See Agyeman v. INS, 296 F.3d 871, 879 (9th Cir. 2002)
(``[A]pproval of the I-130 petition does not automatically entitle
the alien to adjustment of status as an immediate relative of a
United States citizen.'').
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4. Paperwork Reduction Act Comments
Comment: A commenter stated that the newly proposed Form I-944 is
duplicative and unnecessary in light of the Form I-864. Another
commenter stated that DHS has not shown that there are not less
burdensome ways of gaining the information from I-944 than the form
requires.
Response: DHS disagrees that the Form I-944 duplicates information
collected on Form I-864 and is therefore duplicative. However, DHS has
updated the forms to remove the questions about employment that are
also on the I-485. In addition, DHS added language to the forms,
indicating to the applicant that if tax forms were submitted as part of
Form I-485, Form I-864 or Form I-944, the same tax returns do not need
to be submitted with the I-864. Any document that is submitted as part
of another form related to the immigrant benefit does not need to be
submitted multiple times. Form I-864 is an affidavit of support
submitted by an intending immigrant's sponsor, as required for certain
categories of aliens subject to the affidavit of support requirements
under section 213A of the Act, 8 U.S.C. 1183a. Form I-864 is a contract
between the sponsor and the U.S. Government in which the sponsor agrees
to use his or her income, assets, and resources to support the
intending immigrants named in Form I-864, if it becomes necessary. The
sponsor completing and signing Form I-864 must show that he or she has
enough income and/or assets to maintain the intending immigrants listed
on the affidavit and the rest of the sponsor's household at 125 percent
of the FPG. The sponsor, therefore, is largely submitting information
regarding his or her financial situation.
However, Form I-944 is completed by the intending immigrant, i.e.,
applicant for adjustment of status, and requests information on the
relevant factors as established by section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), and the final rule, which are distinct from the
requirements of the affidavit of support.
Comment: A commenter suggested a simplification of the declaration
of self-sufficiency that targets aliens that might trigger public
charge concerns, rather than, for example, all aliens who seek to
adjust status. Another commenter stated that Form I-944 imposes undue
burdens and that DHS has failed to justify requiring it.
Response: DHS disagrees that the Form I-944 needs to be simplified
and more carefully targeted or is overly burdensome. Form I-944
requests information about all the relevant factors as established by
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), and the rule to
determine whether the alien is inadmissible based on public charge
ground.
The Form I-944 instructions state that only applicants filing Form
I-485 who are subject to the public charge ground of inadmissibility
must file Form I-944. The Form I-944 instructions also explain that an
alien who is exempt from the public charge ground of inadmissibility
does not need to file Form I-944, and subsequently lists all categories
of aliens that are exempt from the public charge ground of
inadmissibility. Therefore, DHS believes the declaration of self-
sufficiency is appropriately targeted to the aliens that might trigger
public charge concerns.
Comment: A commenter noted that there was no way to specify the
receipt of public benefits was for an emergency on the Form I-944, nor
did the form indicate that such services were excluded.
Response: DHS appreciates the comment and has updated the form to
include questions regarding the exemptions and updated the description
of the designated public benefits to clarify the information being
sought.
Comment: A commenter opposed requiring that employees provide
employers with certain information, whether through Form I-129, Form I-
539, or Form I-944. The commenter stated that requiring a nonimmigrant
to provide such personal information to his or her employer or
prospective employer to overcome the presumption that he or she is or
could become a public charge, such as medical payments, tax return
transcripts, W-2s, or documents for temporary housing needs, is an
unfair and unreasonable imposition on any employee. The commenter
stated the employer should not know such personal information, and that
the requirement could potentially expose an employer to liability. The
commenter stated further that it is unclear who would be responsible to
pay for the Form I-944, especially in the context of H-1B-based change
or extension of status petitions, where the employer is generally
required to pay the fees associated with the filing.
Response: Employees seeking employment-based nonimmigrant visas and
those seeking to extend of change to an employment-based nonimmigrant
category, must provide certain biographical information to employers as
part of the application process. Form I-129 and Form I-539/Form I-539A
already provide for some information from both employers and employees
when the benefit is related to employment-based immigration. As noted
on the instructions for USCIS forms, the failure to provide requested
information, or any other requested evidence, may delay adjudication or
result in a denial of the benefit requested.
Comment: A commenter stated that DHS appears to be acting on the
basis of either conflicting information or no information at all. For
example, in the context of its PRA analysis, DHS estimates that 382,264
individuals will be required to fill out Form I-944, that the hour
burden per response will be 4 hours, and that the monetary burden is
$59,931,350. Those figures seem to directly conflict with DHS's earlier
estimates that Form I-944 would take 4.5 hours to fill out and that the
annual cost would be $25,963,371.\845\ The commenter notes that the
number of applicants is similarly in conflict. DHS also appears to
assume that only applicants for adjustment will fill out Form I-
944.\846\ DHS overtly states, however, that at least some nonimmigrant
visa applicants would have to fill out that form as well, and it
provides statistics showing annual averages of those applicants over
200,000.\847\ The commenter concludes from this information that DHS
does not know how many people will have to fill out the form, how long
it will take them, or how much it will cost on an annualized basis.
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\845\ 83 FR 51284-85, at 51254.
\846\ 83 FR 51284-85, at 51240 (calculating that 382,769
adjustment applicants would be subject to public charge review).
\847\ 83 FR 51284-85, at 51243-44.
---------------------------------------------------------------------------
Response: DHS has corrected an error in the estimated time burden
for Form I-944 from 4 hours to 4.5 hours. DHS uses historical data to
estimate the populations and burdens reported. In some instances, DHS
does not have historical data on a population and may need to derive
these populations using statistical methods. For example, the 5-year
average of those filing Form I-485 who are not exempt from the public
charge inadmissibility determination is estimated at 382,264. DHS used
this population for the Form I-944 estimate. Additionally, as part of
the calculation of the 5-year average estimated population, DHS used
the FY 2016 population of those who are not exempt
[[Page 41484]]
from public charge review (382,769 filers), which is very close to the
5-year average estimate. In sum, the economic analysis used the 5-year
average of those filing Form I-485 of 382,264 and the FY 2016
population of those not exempt from public charge review, to estimate
the population that will be subject to public charge inadmissibility
determination and, therefore, will have to submit Form I-944.
Finally, DHS is required to estimate cost burden in multiple ways:
(1) The PRA requires estimating cost burden based on the average hourly
wage of the respondent; (2) the PRA also requires estimating the annual
cost burden based on expenses incurred to complete the information
collection including but not limited to attorney's fees, shipping and
handling, etc., and (3) E.O. 12866 requires estimating the benefits and
costs of the regulation, including the opportunity cost of time, among
other costs.
Comment: A commenter stated that the proposed rule would also
impose unreasonable burdens and financial costs on immigration benefit
applicants and petitioners, specifically mentioning Form I-944. The
comment indicated that though DHS projects an average Form I-944
preparation time of 4 hours and 30 minutes, the evidentiary
requirements associated with the form and the public charge assessment
overall suggest that DHS has seriously underestimated the time
commitment. For example, using a method of assessing ``household size''
that differs significantly from the long-accepted definition used to
evaluate Form I-864, the proposed rule and Form I-944 instructions
require individuals to submit extensive supporting documentation of the
financial status of the applicant's household, including all sources of
household income and all cash and non-cash assets that can be converted
into cash within 12 months. For every such asset, an applicant must
provide a description of the asset, along with the value, basis of the
claim for the value, and proof of ownership. The net value of a home
may be included as an asset, but only if accompanied by documentation
of ownership, evidence of all secured loans or liens, and a recent
appraisal completed by a licensed appraiser (estimated to cost an
average of $300 to $400 for a single family home). The commenter
indicated that these requirements alone could consume significant
amounts of time beyond the DHS estimate. In addition, multiple
commenters stated that the documentation and information applicants
would be required to collect and present is extensive (the commenter
stated that the Form I-944 would require the alien to list the name of
every household member, amount of current assets and resources, recent
Federal tax return history for the applicant and household members,
credit score, proof of debts and liabilities, complete list of all
public benefits applied for or received, and education and employment
history), and that accurately completing the form and providing all
required information with documentation would be a significant effort
for non-citizens and their families.
Response: DHS acknowledges that the time that it would take each
individual to complete Form I-944 could be more or less time than the
reported estimated average time burden, depending on the applicant's
individual facts and circumstances. For example, some applicants would
be children who do not have extensive education, assets, and
liabilities to report on the Form I-944. In contrast, an older
applicant could have extensive education, assets, and liabilities to
report on the Form I-944. Moreover, in estimating the time burden, DHS
does not include the time burden already accounted for by other
information collections subject to the PRA nor inactive time to obtain
the necessary evidence required. DHS also notes that an alien does not
always have to provide information about the net value of a home and
the related evidence. In general, the alien would need to provide
information regarding the home and its net value if aliens using the
home as evidence of his or her assets or resources. DHS will maintain
the estimated time burden at 4.5 hours.
Comment: One commenter detailed several issues with Form I-944 and
its requirements, saying that it will disproportionately harm low-
income applicants and their families, place an unreasonable burden on
families especially those who apply with their minor children, impose
costly administrative burdens on Federal, State, and local government
agencies, generate a huge workload for social services agencies, and
undermine privacy rights of applicants. The commenter also noted that
the rule will likely make it more difficult for low-income and
vulnerable immigrants to remain on the path to U.S. citizenship, will
dissuade many potential applicants from pursuing adjustment due to the
costs of the application process, create financial hardship for people,
and result in processing delays and lengthy wait times. One commenter
said that the Form I-944 requirement would require states and counties
to develop new work processes, require system updates, and would likely
result in hiring and specially training additional personnel. The
commenter further indicated that counties will need to work with their
respective states to develop standardized processes for receiving
requests and providing information across the state that safeguards
personal data. The commenter stated that this is not only a significant
workload but also would include potentially major automation costs,
given the level of detail required.
Response: The purpose of Form I-944 is to demonstrate that an
adjustment of status applicant subject to the public charge ground of
inadmissibility is not likely at any time in the future to become a
public charge, as required by Congress in section 212(a)(4) of the Act,
8 U.S.C. 1182(a)(4). Form I-944 collects information relevant to the
mandatory factors, such as age, family status, assets, resources,
financial status, education, and skills. DHS is required to assess an
applicant's assets and resources as part of the public charge
inadmissibility determination, which entails a review of the alien's
income. These factors are mandated by Congress in section 212(a)(4) of
the Act, and DHS does not have the authority to disregard these
factors. Additionally, the estimated burden on any alien submitting
Form I-944 was provided in the NPRM.
DHS acknowledges in the economic analysis accompanying this rule
that various government agencies may incur indirect costs associated
with the rule such as, for example, the potential need to update
administrative processes and provide additional training. However, Form
I-944 imposes no requirements on Federal, State, or local government
agencies. Instead, applicants required to submit Form I-944 must submit
certain evidence from Federal, State, and local government agencies
such as Federal income tax returns and documentation of receipt of
public benefits. DHS has reviewed the data provided by commenters and
updated the cost estimates to account for the indirect effects of this
rule, where possible.
IV. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is
[[Page 41485]]
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 13771 directs agencies to reduce regulation and control
regulatory costs.
The Office of Information and Regulatory Affairs has designated
this final rule as a ``significant regulatory action'' that is
economically significant since it is estimated that the final rule
would have an annual effect on the economy of $100 million or more,
under section 3(f)(1) of E.O. 12866. Accordingly, OMB has reviewed this
final regulation.
This rule is a regulatory action under E.O. 13771.
1. Summary
As discussed above, DHS is modifying its regulations to add new
regulatory provisions for inadmissibility determinations based on the
public charge ground under the INA. DHS is prescribing how it will
determine whether an alien is inadmissible because he or she is likely
at any time in the future to become a public charge and is identifying
the types of public benefits that will be considered in the public
charge determinations. An alien applying for admission at the port of
entry, or adjustment of status generally must establish that he or she
is not likely at any time in the future to become a public charge. DHS
will weigh certain factors positively or negatively, depending on how
the factor impacts the immigrant's likelihood to become a public
charge. DHS is also revising existing regulations to require all aliens
seeking an extension of stay or change of status to demonstrate that
they have not received public benefits, as defined in this rule unless
the nonimmigrant classification that they seek to extend or to which
they seek to change is exempt from the public charge ground of
inadmissibility. Finally, DHS is revising its regulations governing the
Secretary's discretion to accept a public charge bond or similar
undertaking under section 213 of the Act, 8 U.S.C. 1183. Similar to a
waiver, a public charge bond permits an alien deemed inadmissible on
the public charge ground to obtain adjustment of status, if otherwise
admissible.\848\
---------------------------------------------------------------------------
\848\ There is no mention of ``waiver'' or ``waive'' in INA
section 213, 8 U.S.C. 1183. However, the BIA has viewed that
provision as functioning as a waiver of the public charge ground of
inadmissibility. See Matter of Ulloa, 22 I&N Dec. 725, 726 (BIA
1999).
---------------------------------------------------------------------------
This final rule will impose new costs on the population applying to
adjust status using Form I-485 that are subject to the public charge
ground of inadmissibility who will now be required to file the new Form
I-944 as part of the public charge inadmissibility determination. DHS
will require any adjustment applicants subject to the public charge
inadmissibility ground to submit Form I-944 with their Form I-485 to
demonstrate they are not likely at any time in the future to become a
public charge. The final rule will also impose additional costs for
completing Forms I-485, I-129, I-129CW, and I-539 as the associated
time burden estimate for completing each of these forms will increase.
Moreover, the final rule will impose new costs associated with the new
public charge bond process, including new costs for completing and
filing Forms I-945 and I-356. DHS estimates that the additional total
cost of the final rule will be approximately $35,202,698 annually to
the population applying to adjust status who is also required to file
Form I-944, for the opportunity cost of time associated with the
increased time burden estimates for Forms I-485, I-129, I-129CW, and I-
539, and for requesting or cancelling a public charge bond using Form
I-945 and Form I-356, respectively.
Over the first 10 years of implementation, DHS estimates the total
quantified new direct costs of the final rule will be about
$352,026,980 (undiscounted). In addition, DHS estimates that the 10-
year discounted total direct costs of this final rule will be about
$300,286,154 at a 3 percent discount rate and about $247,249,020 at a 7
percent discount rate.
The final rule will also potentially impose new costs on obligors
(individuals or companies) if an alien has been determined to be likely
at any time in the future to become a public charge and will be
permitted to submit a public charge bond, for which USCIS will use the
new Form I-945. DHS estimates the total cost to file Form I-945 will
be, at minimum, about $34,166 annually.\849\
---------------------------------------------------------------------------
\849\ Calculation: $35.59 (cost per obligor to file Form I-945)
* 960 (estimated annual population who would file Form I-945) =
$34,166.40 = $34,166 (rounded) annual total cost to file Form I-945.
---------------------------------------------------------------------------
Moreover, the final rule will potentially impose new costs on
aliens or obligors who submit Form I-356 as part of a request to cancel
the public charge bond. DHS estimates the total cost to file Form I-356
would be approximately $824 annually.\850\
---------------------------------------------------------------------------
\850\ Calculation: $33.00 (cost per obligor to file Form I-356)
* 25 (estimated annual population who would file Form I-356) =
$825.00 annual total cost to file Form I-356.
---------------------------------------------------------------------------
The final rule will also result in a reduction in transfer payments
from the Federal Government to individuals who may choose to disenroll
from or forego enrollment in a public benefits program. Individuals who
might choose to disenroll from or forego future enrollment in a public
benefits program include foreign-born non-citizens as well as U.S.
citizens who are members of mixed-status households,\851\ who otherwise
may be eligible for the public benefits. DHS estimates that the total
reduction in transfer payments from the Federal and State governments
will be approximately $2.47 billion annually due to disenrollment or
foregone enrollment in public benefits programs by foreign-born non-
citizens who may be receiving public benefits. DHS estimates that the
10-year discounted federal and state transfer payments reduction of
this final rule will be approximately $21.0 billion at a 3 percent
discount rate and about $17.3 billion at a 7 percent discount rate.
However, DHS notes there may be additional reductions in transfer
payments, or categories of transfers such as increases in uncompensated
health care or greater reliance on food banks or other charities, that
we are unable to quantify.
---------------------------------------------------------------------------
\851\ DHS uses the term ``foreign-born non-citizen'' since it is
the term the U.S. Census Bureau uses. DHS generally interprets this
term to mean alien in this analysis. In addition, DHS notes that the
Census Bureau publishes much of the data used in this analysis.
---------------------------------------------------------------------------
There also may be additional reductions in transfer payments from
states to individuals who may choose to disenroll from or forego
enrollment in a public benefits program. For example, the Federal
Government funds all SNAP food expenses, but only 50 percent of
allowable administrative costs for regular operating expenses.\852\
Similarly, FMAP in some HHS programs, like Medicaid, can vary from
between 50 percent to an enhanced rate of 100 percent in some
cases.\853\ Since the state
[[Page 41486]]
share of FFP varies from state to state, DHS uses the average FMAP
across all states and U.S. territories of 59 percent to estimate the
amount of state transfer payments. Therefore, the estimated 10-year
undiscounted amount of state transfer payments that could occur as a
result of the provisions of this final rule is about $1.01 billion
annually. The estimated 10-year discounted amount of state transfer
payments of the provisions of this final rule would be approximately
$8.63 billion at a 3 percent discount rate and about $7.12 billion at a
7 percent discount rate. Finally, DHS recognizes that reductions in
federal and state transfers under Federal benefit programs may have
downstream impacts on state and local economies, large and small
businesses, and individuals. For example, the rule might result in
reduced revenues for healthcare providers participating in Medicaid,
companies that manufacture medical supplies or pharmaceuticals, grocery
retailers participating in SNAP, agricultural producers who grow foods
that are eligible for purchase using SNAP benefits, or landlords
participating in federally funded housing programs.
---------------------------------------------------------------------------
\852\ Per section 16(a) of the Food and Nutrition Act of 2008,
Pub. L. 110-234, tit. IV, 122 Stat. 923, 1092 (May 22, 2008)
(codified as amended at 7 U.S.C. 2025). See also USDA, FNS Handbook
901, at p. 41 (2017). Available at: https://fns-prod.azureedge.net/
sites/default/files/apd/FNS_HB901_v2.2_Internet_Ready_Format.pdf,
(last visited May 7, 2019).
\853\ See Dept. of Health and Human Servs. Notice, Federal
Financial Participation in State Assistance Expenditures; Federal
Matching Shares for Medicaid, the Children's Health Insurance
Program, and Aid to Needy Aged, Blind, or Disabled Persons for
October 1, 2016 through September 30, 2017, 80 FR 73779 (Nov. 25,
2015).
---------------------------------------------------------------------------
Additionally, the final rule will have new direct and indirect
impacts on various entities and individuals associated with regulatory
familiarization with the provisions of the rule. Familiarization costs
involve the time spent reading the details of a rule to understand its
changes. A foreign-born non-citizen (such as those contemplating
disenrollment or foregoing enrollment in a public benefits program)
might review the rule to determine whether she or he is subject to its
provisions and may incur familiarization costs. To the extent that an
individual or entity directly regulated by the rule incurs
familiarization costs, those familiarization costs are a direct cost of
the rule. In addition to those individuals or entities the rule
directly regulates, a wide variety of other entities would likely
choose to read and understand the rule and, therefore, would incur
familiarization costs. For example, immigration lawyers, immigration
advocacy groups, health care providers of all types, non-profit
organizations, non-governmental organizations, and religious
organizations, among others, may need or want to become familiar with
the provisions of this final rule. DHS believes such non-profit
organizations and other advocacy groups might choose to read the rule
in order to provide information to those foreign-born non-citizens that
might be affected by a reduction in federal and state transfer
payments. Familiarization costs incurred by those not directly
regulated are indirect costs.
DHS estimates the time that would be necessary to read this final
rule would be approximately 16 to 20 hours per person depending on an
individual's average reading speed and level of review, resulting in
opportunity costs of time. An entity, such as a non-profit or advocacy
group, may have more than one person that reads the rule. Using the
average total rate of compensation as $36.47 per hour for all
occupations, DHS estimates that the opportunity cost of time will range
from about $583.52 to $729.40 per individual who must read and review
the final rule.
The final rule will produce some quantified benefits due to the
regulatory changes DHS is making. The final rule will produce some
benefits for T nonimmigrants applying for adjustment of status based on
their T nonimmigrant status, as this population will no longer need to
submit Form I-601 seeking a waiver on the public charge ground of
inadmissibility. DHS estimates the total benefits for this population
is $15,176 annually.\854\
---------------------------------------------------------------------------
\854\ Calculation: $14,880 (Filing fees for Form I-601) +
$296.48 (Opportunity cost of time for Form I-601) = $15,176.48 =
$15,176 (rounded) total current estimated annual cost for filing T
nonimmigrants filing Form I-601 seeking a waiver of grounds of
inadmissibility. Therefore, the estimated total benefits of the
final rule for T nonimmigrants applying for adjustment of status
using Form I-601 seeking a waiver on grounds of inadmissibility will
equal the current cost to file Form I-601 for this population.
---------------------------------------------------------------------------
The primary benefit of the final rule would be to better ensure
that aliens who are admitted to the United States, seek extension of
stay or change of status, or apply for adjustment of status are not
likely to receive public benefits and will be self-sufficient, i.e.,
individuals will rely on their own financial resources, as well as the
financial resources of the family, sponsors, and private
organizations.\855\ DHS also anticipates that the final rule will
produce some benefits from the elimination of Form I-864W. The
elimination of this form will potentially reduce the number of forms
USCIS would have to process. DHS estimates the amount of cost savings
that will accrue from eliminating Form I-864W will be about $36.47 per
petitioner.\856\ However, DHS is unable to determine the annual number
of filings of Form I-864W and, therefore, currently is unable to
estimate the total annual cost savings of this change. Additionally, a
public charge bond process will also provide benefits to applicants as
they potentially will be given the opportunity for adjustment if
otherwise admissible, at the discretion of DHS, after a determination
that he or she is likely to become a public charge.
---------------------------------------------------------------------------
\855\ 8 U.S.C. 1601(2).
\856\ Calculation of savings from opportunity cost of time for
no longer having to complete and submit Form I-864W: ($36.47 per
hour * 1.0 hours) = $36.47.
---------------------------------------------------------------------------
Table 2 provides a more detailed summary of the final provisions
and their impacts.
Table 2--Summary of Major Provisions and Economic Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
Provision Purpose Expected impact of final rule
----------------------------------------------------------------------------------------------------------------
Revising 8 CFR 212.18. Application for To clarify that T Quantitative:
Waivers of Inadmissibility in nonimmigrants seeking Benefits:
connection with an application for adjustment of status are not Benefits of $15,176 annually to
adjustment of status by T subject to public charge T nonimmigrants applying for adjustment
nonimmigrant status holders. ground of inadmissibility. of status who will no longer need to
Revising 8 CFR 245.23. Adjustment of submit Form I-601 seeking a waiver on
aliens in T nonimmigrant public charge grounds of
classification. inadmissibility.
Costs:
None.
----------------------------------------------------------------------------------------------------------------
[[Page 41487]]
Adding 8 CFR 212.20. Purpose and To define the categories of Quantitative:
applicability of public charge aliens that are subject to Benefits:
inadmissibility. the public charge Benefits of $36.47 per
Adding 8 CFR 212.21. Definitions...... determination. applicant from no longer having to
Adding 8 CFR 212.22. Public charge To establish key definitions, complete and file Form I-864W.
determination. including ``public charge,'' Costs:
``public benefit,'' ``likely DHS anticipates a likely
to become a public charge,'' increase in the number of denials for
``household,'' and ``receipt adjustment of status applicants based
of public benefits.''. on public charge inadmissibility
Clarifies that evaluating determinations due to formalizing and
public charge is a standardizing the criteria and process
prospective determination for inadmissibility determinations.
based on the totality of the Quantitative:
circumstances.. Benefits:
Outlines minimum and Better ensure that aliens who
additional factors considered are seeking admission to the United
when evaluating whether an States or apply for adjustment of
alien immigrant is status are self-sufficient through an
inadmissible based on the improved review process of the
public charge ground. mandatory statutory factors.
Positive and negative factors
are weighed to determine an
individual's likelihood of
becoming a public charge at
any time in the future..
Adding 8 CFR 212.23. Exemptions and Outlines exemptions and
waivers for public charge ground of waivers for inadmissibility
inadmissibility. based on the public charge
ground.
----------------------------------------------------------------------------------------------------------------
Adding 8 CFR 214.1(a)(3)(iv) and To provide, with limited Quantitative:
amending 8 CFR 214.1(c)(4)(iv). exceptions, that an Costs:
Nonimmigrant general requirements. application for extension of $6.1 million annually for an
Amending 8 CFR 248.1(a) and adding 8 stay or change of increased time burden for completing
CFR 248.1(c)(4). Change of nonimmigrant status will be and filing Form I-129;
nonimmigrant classification denied unless the applicant $0.12 million annually for an
eligibility. demonstrates that he or she increased time burden for completing
has not received public and filing Form I-129CW;
benefits since obtaining the $2.4 million annually for an
nonimmigrant status that he increased time burden for completing
or she is seeking to extend and filing Form I-539.
or change, as defined in Quantitative:
final 8 CFR 212.21(b), for 12 Benefits:
months, in the aggregate, Better ensures that aliens who
within a 36 month period. are seeking to extend or change to a
status that is not exempt from the
section 212(a)(4) inadmissibility
ground who apply for extension of stay
or change of status continue to be self-
sufficient during the duration of their
nonimmigrant stay.
----------------------------------------------------------------------------------------------------------------
Amending 8 CFR 245. Adjustment of To outline requirements that Quantitative:
status to that of person admitted for aliens submit a declaration Direct Costs:
lawful permanent residence. of self-sufficiency on the Total annual direct costs of
form designated by DHS and the final rule will range from about
any other evidence requested $45.5 to $131.2 million, including:
by DHS in the public charge $25.8 million to applicants who
inadmissibility determination. must file Form I-944;
$0.69 million to applicants
applying to adjust status using Form I-
485 with an increased time burden;
$0.34 million to public
charge bond obligors for filing Form
I-945; and
$823.50 to filers for filing
Form I-356.
Total costs over a 10-year
period will range from:
$352.0 million for
undiscounted costs;
$300.1 million at a 3
percent discount rate; and
$247.2 million at a 7
percent discount rate.
Transfer Payments
Total annual transfer payments
of the final rule would be about $2.47
billion from foreign-born non-citizens
and their households who disenroll from
or forego enrollment in public benefits
programs. The federal-level share of
annual transfer payments will be about
$1.46 billion and the state-level share
of annual transfer payments will be
about $1.01 billion.
Total transfer payments over a
10-year period, including the combined
federal- and state-level shares, will
be:
$24.7 billion for
undiscounted costs;
$21.0 billion at a 3 percent
discount rate; and
$17.3 billion at a 7 percent
discount rate.
Quantitative:
Benefits:
Potential to make USCIS' in the
review of public charge inadmissibility
more effective.
Costs:
[[Page 41488]]
DHS anticipates a likely
increase in the number of denials for
adjustment of status applicants based
on public charge inadmissibility
determinations due to formalizing and
standardizing the criteria and process
for public charge determination.
Costs to various entities and
individuals associated with regulatory
familiarization with the provisions of
the final rule. Costs will include the
opportunity cost of time to read the
final rule and subsequently determine
applicability of the final rule's
provisions. DHS estimates that the time
to read this final rule in its entirety
would be 16 to 20 hours per individual.
DHS estimates that the opportunity cost
of time will range from about $583.52
to $729.40 per individual who must read
and review the final rule. However, DHS
cannot determine the number of
individuals who will read the final
rule.
----------------------------------------------------------------------------------------------------------------
Public Charge Bond Provisions
----------------------------------------------------------------------------------------------------------------
Amending 8 CFR 103.6. Public charge To set forth the Secretary's Quantitative:
bonds. discretion to approve bonds, Costs:
cancellation, bond schedules, $34,166 annually to obligors
and breach of bond, and to for submitting Public Charge Bond (Form
move principles governing I-945); and
public charge bonds to final $823.50 annually to filers for
8 CFR 213.1. submitting Request for Cancellation of
Public Charge Bond (Form I-356).
Amending 8 CFR 103.7. Fees............ To add fees for new Form I- Fees paid to bond companies to
945, Public Charge Bond, and secure public charge bonds. Fees could
Form I-356, Request for range from 1-15 percent of the public
Cancellation of Public Charge charge bond amount based on an
Amending 8 CFR 213.1. Admission or Bond. individual's credit score.
adjustment of status of aliens on In 8 CFR 213.1, to add Quantitative:
giving of a public charge bond. specifics to the public Benefits:
charge bond provision for Potentially enable an alien who
aliens who are seeking was found inadmissible only on the
adjustment of status, public charge ground to adjust his or
including the discretionary her status by posting a public charge
availability and the minimum bond with DHS.
amount required for a public
charge bond.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
DHS has prepared a full analysis according to E.O.s 12866 and
13563, and can be found in the docket for this rulemaking or by
searching for RIN 1615-AA22 on www.regulations.gov. In addition to the
impacts summarized above and as required by OMB Circular A-4, Table 8
presents the prepared accounting statement showing the costs associated
with this final regulation.\857\
---------------------------------------------------------------------------
\857\ OMB Circular A-4 is available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
Table 8--OMB A-4 Accounting Statement
[$, 2018]
----------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
----------------------------------------------------------------------------------------------------------------
BENEFITS:
----------------------------------------------------------------------------------------------------------------
Monetized Benefits.................. The final rule will produce some benefits for T RIA.
nonimmigrants applying for adjustment of status based
on their T nonimmigrant status, as this population
will no longer need to submit Form I-601 seeking a
waiver on grounds of inadmissibility. DHS estimates
the total benefits for this population is $15,176
annually.
Form I-485 applicants will no longer have to file Form ..................
I-864W. Benefits to applicants will be approximately
$36.47 per petition based on the opportunity cost of
time.
--------------------------------------------------------
Annualized quantified, but un- ................. ................. ................ RIA.
monetized, benefits.
--------------------------------------------------------
Unquantified Benefits............... The primary benefit of the final rule is to ensure RIA.
that aliens who are admitted to the United States or
apply for adjustment of status will not use or
receive one or more public benefits for which they
are entitled to receive, and instead, will rely on
their financial resources, and those of family
members, sponsors, and private organizations.
[[Page 41489]]
Potential to improve the efficiency for USCIS in the ..................
review process for public charge inadmissibility.
----------------------------------------------------------------------------------------------------------------
COSTS:
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (discount (3%) $35,202,698 N/A N/A RIA.
rate in parenthesis). (7%) $35,202,698. N/A.............. N/A.............
--------------------------------------------------------
Annualized quantified, but un- N/A. ..................
monetized, costs.
Qualitative (unquantified) costs.... DHS anticipates a likely increase in the number of RIA.
denials for adjustment of status applicants based on
public charge inadmissibility determinations due to
formalizing and standardizing the criteria and
process for public charge determination.
Costs to various entities and individuals associated
with regulatory familiarization with the provisions
of the rule. Costs will include the opportunity cost
of time to read the final rule and subsequently
determine applicability of the final rule's
provisions. DHS estimates that the time to read this
final rule in its entirety would be 16 to 20 hours
per individual. DHS estimates that the opportunity
cost of time will range from about $583.52 to $729.40
per individual who must read and review the final
rule. However, DHS cannot determine the number of
individuals who will read the final rule.
Fees paid by aliens to obligors to secure public
charge bond.
Other qualitative, unquantified effects of the final
rule could include:
Potential lost productivity,
Adverse health effects,
Additional medical expenses due to delayed
health care treatment, and
Increased disability insurance claims
Administrative changes to business processes
such as reprogramming computer software and
redesigning application forms and processing.
----------------------------------------------------------------------------------------------------------------
TRANSFERS:
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``on ($1,455,724,086) N/A N/A RIA.
budget''.
--------------------------------------------------------
From whom to whom?.................. Reduction in transfer payments from the federal RIA.
government to public benefits recipients who are
members of households that include foreign-born non-
citizens. This amount includes the estimated federal-
level shares of transfer payments to members of
households that include foreign-born non-citizens.
--------------------------------------------------------
Annualized monetized transfers: ($1,011,604,874) N/A N/A ..................
``off-budget''.
--------------------------------------------------------
From whom to whom? Reduction in transfer payments from state governments
to public benefits recipients who are members of
households that include foreign-born non-citizens.
This amount includes the estimated state-level shares
of transfer payments to members of households that
include foreign-born non-citizens. DHS estimates that
the state-level share of transfer payments is 59
percent of the estimated amount of federal transfer
payments. DHS estimates the annual federal-level
share would be about $1.46 billion and the annual
state-level share of transfer payments would be about
$1.01 billion.
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category Effects Source citation
----------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal DHS believes that the rule may have indirect RIA.
governments. effects on state, local, and/or tribal
government, but DHS does not know the full
extent of the effect on state, local, and/or
tribal governments. There may be costs to
various entities associated with
familiarization of and compliance with the
provisions of the rule, including salaries
and opportunity costs of time to monitor and
understand regulation requirements,
disseminate information, and develop or
modify information technology (IT) systems as
needed. It may be necessary for many
government agencies to update guidance
documents, forms, and webpages. It may be
necessary to prepare training materials and
retrain staff at each level of government,
which will require additional staff time and
will generate associated costs.
Effects on small businesses............ DHS believes there may be some impacts to RIA.
those small entities that file Form I-129 or
Form I-129CW for beneficiaries that extend
stay or change status. These petitioners will
have an increase in time burden for
completing and filing Form I-129 or Form I-
129CW and possibly have labor turnover costs
if the Form I-129 or Form I-129CW EOS/COS
request is denied and the beneficiary has to
leave the United States or the Commonwealth
of the Northern Mariana Islands (CNMI),
respectively. DHS also believes that some
surety companies that are small entities may
be impacted by filing Form I-356. DHS
estimates the total annual cost to file Form
I-356 will be about $823.50.
[[Page 41490]]
Effects on wages....................... None.......................................... None.
Effects on growth...................... None.......................................... None.
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), imposes certain requirements
on Federal agency rules that are subject to the notice and comment
requirements of the APA, 5 U.S.C. 553(b), and are likely to have a
significant economic impact on a substantial number of small entities.
The RFA requires Federal agencies to consider the potential impact of
regulations on small businesses, small governmental jurisdictions, and
small organizations during the development of their rules. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, or governmental jurisdictions with
populations of less than 50,000.\858\ This final rule requires an
individual seeking admission at the port of entry or adjusting status
to establish that he or she is not likely at any time in the future to
become a public charge. Most of this rule's regulatory changes do not
fall under the RFA because they directly regulate individuals who are
not, for purposes of the RFA, within the definition of small entities
established by 5 U.S.C. 601(6). However, DHS recognizes that there may
be some provisions of this final rule that would directly regulate
small entities, and, therefore, DHS has examined the impact of this
final rule on small entities.
---------------------------------------------------------------------------
\858\ A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------
This final rule would increase the time burden by an additional 30
minutes for petitioners who file Form I-129 or Form I-129CW on behalf
of a beneficiary requesting an extension of stay or change of status,
which would impose direct costs on these petitioners. Additionally, the
provisions to establish a public charge bond process included in this
final rule would allow for either an alien or an obligor (individual or
an entity) to request a cancellation of a public bond. As a result,
this final rule could have direct impacts on small entities that are
obligors. DHS also recognizes that a Form I-129 or Form I-129CW
beneficiary, for whom a Form I-129 or Form I-129CW petitioner (i.e.,
the employer) sought either an extension of stay or a change of status,
may have to leave the United States if the employer's request was
denied. In these cases, the petitioner may lose the beneficiary as an
employee and may incur labor turnover costs. DHS presents this Final
Regulatory Flexibility Analysis (FRFA) to examine these impacts.
1. Final Regulatory Flexibility Analysis
The small entities that could be impacted by this final rule are
those who file Form I-129 or Form I-129CW as petitioners on behalf of
beneficiaries requesting an extension of stay or change of status as
well as obligors that would request a cancellation of a public charge
bond.
a. A Statement of the Need for, and Objectives of, the Rule
DHS seeks to better ensure that applicants for admission to the
United States and applicants for adjustment of status to lawful
permanent resident who are subject to the public charge ground of
inadmissibility are self-sufficient, i.e., they will rely on their own
financial resources as well as the financial resources of their family,
sponsors, and private organizations as necessary.\859\ Under section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), an alien is inadmissible if,
at the time of an application for admission or adjustment of status, he
or she is likely at any time to become a public charge. The statute
requires DHS to consider the following minimum factors that reflect the
likelihood that an alien will become a public charge: The alien's age;
health; family status; assets, resources, and financial status; and
education and skills. In addition, DHS may consider any affidavit of
support submitted by the alien's sponsor and any other factors relevant
to the likelihood of the alien becoming a public charge.
---------------------------------------------------------------------------
\859\ See 8 U.S.C. 1601(2).
---------------------------------------------------------------------------
Separate from these requirements, as a condition for permitting
extension of stay or change of status for certain nonimmigrant aliens,
this rule requires such aliens (or their petitioning employer) to
establish that they have not received certain public benefits above a
particular threshold since obtaining the nonimmigrant status that they
wish to extend or change. This ``public benefit condition'' serves the
same policy goals as the rule generally.
b. A statement of the significant issues raised by the public comments
in response to the initial regulatory flexibility analysis, a statement
of the assessment of the agency of such issues, and a statement of any
changes made in the proposed rule as a result of such comments.
Comment: Some commenters stated that the rule will negatively
impact small businesses. An individual commenter stated that the rule
would undercut small and mid-sized businesses' ability to manage their
talent pipelines. The commenter stated that nearly 48 percent of
private-sector workers in the United States are employed in these small
and mid-sized businesses, and that small businesses rely on strategic
partnerships and related tools to ensure a strong talent pipeline of
workers who are equipped with the skills they need. The commenter
stated that the rule would penalize individuals who often draw upon
public benefits to support themselves or their families during their
training period or even when they first begin work. The commenter
stated that in view of currently low unemployment, employers need
access to labor that is able to attend training while still relying on
public benefits programs to provide for their families' basic needs.
A commenter stated that the RFA mandates that DHS consider more
impacts than it has such as labor turnover costs, or reduced
productivity and educational attainment.
Response: DHS appreciates the comments regarding the effect of the
rule on small entities, including small business, and DHS's RFA
analysis. The RFA analysis discusses and estimates the potential direct
costs that small businesses could incur and explains the limitations
for providing a more thorough quantification of the potential costs to
small businesses. Additionally, the economic analysis that accompanies
this rule, which can be found in the rule docket at
www.regulations.gov, discusses the direct and indirect effects of the
rule, including on small businesses. Most of this rule's regulatory
effects, such as the effects described in the comment summary above, do
not fall under the RFA because they directly
[[Page 41491]]
regulate individuals who are not, for purposes of the RFA, within the
definition of small entities established by 5 U.S.C. 601(6). However,
DHS recognizes that there may be some provisions of this final rule
that would directly regulate small entities, and, therefore, DHS has
examined the impact of this final rule on small entities.
The primary effect on small entities is that this rule will
increase the time burden for petitioners who file Form I-129 or Form I-
129CW on behalf of a beneficiary requesting an extension of stay or
change of status, which would impose direct costs on these petitioners
via opportunity costs of time. DHS also recognizes that a Form I-129 or
Form I-129CW beneficiary, for whom a Form I-129 or Form I-129CW
petitioner (i.e., the employer) sought either an extension of stay or a
change of status, may have to leave the United States if the employer's
request was denied. In these cases, the petitioner may lose the
beneficiary as an employee and may incur labor turnover costs.
Additionally, this rule could have direct impacts on small entities as
the provisions establish a public charge bond process included in this
final rule would allow for either an alien or an obligor (individual or
an entity) to request a cancellation of a public bond.
DHS believes it has considered all impacts that the RFA requires.
The courts have held that the RFA requires an agency to perform a
regulatory flexibility analysis of small entity impacts only when a
rule directly regulates them.\860\ However, DHS notes that we have also
considered other, indirect impacts in the economic analysis that
accompanies this rule.
\860\ See U.S. Small Business Administration, Office of
Advocacy. The RFA in a Nutshell: A Condensed Guide to the Regulatory
Flexibility Act. Oct. 2010. Available at: https://www.sba.gov/advocacy/rfa-nutshell-condensed-guide-regulatory-flexibility-act
(Last visited July 25, 2019).
---------------------------------------------------------------------------
c. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the proposed rule, and a detailed statement of any change made to
the proposed rule in the final rule as a result of the comments.
No comments were filed by the Chief Counsel for Advocacy of the
Small Business Administration (SBA).
d. A description of and an estimate of the number of small entities to
which the rule will apply or an explanation of why no such estimate is
available.
This final rule will increase the time burden by an additional 30
minutes for petitioners who file Form I-129 or Form I-129CW on behalf
of a beneficiary requesting an extension of stay or change of status,
which would impose direct costs on these petitioners and entities.\861\
As previously discussed in the E.O. 12866 section of this final rule,
DHS estimates an annual population of 336,335 beneficiaries seeking
extension of stay or change of status through a petitioning employer
using Form I-129. In addition, DHS estimates an annual population of
6,307 beneficiaries seeking extension of stay or change of status
through a petitioning employer using Form I-129CW. DHS estimates that
the 30-minute increase in the estimated time burden for these
populations would increase the opportunity cost of time for completing
and filing Form I-129 and Form I-129CW and would result in about $6.1
million and about $115,040 million in costs, respectively.
---------------------------------------------------------------------------
\861\ In the context of Form I-129, a petitioner is typically an
employer or the representative of an employer who files on behalf of
a nonimmigrant worker (or beneficiary) to come to the United States
temporarily to perform services or labor, or to receive training.
See https://www.uscis.gov/i-129.
---------------------------------------------------------------------------
The provisions regarding the bond process included in this final
rule will allow a surety company to become an obligor on a public
charge bond (Form I-945) and, later, to request a cancellation of such
a bond (Form I-356). Therefore, this final rule could have some impacts
to surety companies, some of which are small entities. A request for
cancellation of a public bond using Form I-356 includes a time burden
of 15 minutes per request and a fee to DHS of $25.00. The number of
surety bond companies that might complete and file Forms I-945 and I-
356 is not known due to a lack of historical data and uncertainty in
the number individuals that may be granted the opportunity to post a
public charge bond. However, DHS estimates that the filing volume for
Form I-945 might be about 960 and the filing volume for Form I-356
might be approximately 25. While DHS cannot predict the exact number of
surety companies that might be impacted by this final rule, nine out of
273 Treasury-certified surety companies in fiscal year 2015 posted new
immigration bonds with ICE.\862\ DHS found that of the nine surety
companies, four entities were considered ``small'' based on the number
of employees or revenue being less than their respective SBA size
standard.\863\ Assuming these nine surety companies post public charge
bonds with USCIS, we can assume that four surety companies may be
considered as small entities. However, USCIS cannot predict the exact
impact to these small entities at this time. We expect that obligors
would be able to pass along the costs of this rulemaking to the aliens.
\862\ See DHS, Procedures and Standards for Declining Surety
Immigration Bonds and Administrative Appeal Requirement for Breaches
NPRM, 83 FR 25951, 25962-25965 (June 5, 2018).
\863\ U.S. Small Business Administration, Table of Small
Business Size Standards Matched to North American Industry
Classification System (NAICS) Codes, October 1, 2017. https://www.sba.gov/sites/default/files/files/Size_Standards_Table_2017.pdf
(Last visited July 26, 2019).
---------------------------------------------------------------------------
e. A description of the projected reporting, recordkeeping, and other
compliance requirements of the rule, including an estimate of the
classes of small entities that will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record.
In addition to time burden costs discussed in Section 4 of this
FRFA, DHS recognizes that a Form I-129 or Form I-129CW beneficiary, for
whom a Form I-129 or Form I-129CW petitioner (i.e., the employer)
sought either an extension of stay or a change of status, may have to
leave the United States if the employer's request is denied. In these
cases, the petitioner may lose the beneficiary as an employee and may
incur labor turnover costs. A 2012 report published by the Center for
American Progress surveyed several dozen studies that considered both
direct and indirect costs and determined that turnover costs per
employee ranged from 10 to 30 percent of the salary for most salaried
workers.\864\ An employer paid an average of about 20 percent of the
worker's salary in total labor turnover costs. Specifically, for
workers earning $50,000 or less, and for workers earning $75,000 or
less, the average turnover cost was about 20 percent for both earning
levels. According to the study, these earning levels corresponded to
the 75th and 90th percentiles of typical earnings, respectively.
Assuming Form I-129 and Form I-129CW beneficiaries are employed, DHS
believes it is reasonable to assume an annual mean wage of $50,620
across all occupations.\865\ Assuming an average labor turnover cost of
20 percent of $50,620, on average, an employer could incur costs of
approximately $10,124 per beneficiary
[[Page 41492]]
that would be separated from employment as a result of a denied request
for an extension of stay or change of status. However, DHS does not
know the number of small entities within this population of petitioners
that might incur labor turnover costs.
---------------------------------------------------------------------------
\864\ See ``There Are Significant Business Costs to Replacing
Employees,'' by Heather Boushey and Sarah Jane Glynn (2012), Center
for American Progress, available: https://www.americanprogress.org/issues/economy/reports/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/ (last visited July 26, 2019).
\865\ Bureau of Labor Statistics, May 2017 National Occupational
Employment and Wage Estimates, All Occupations https://www.bls.gov/oes/2017/may/oes_nat.htm (last visited July 26, 2019).
---------------------------------------------------------------------------
Additionally, DHS also recognizes that a Form I-129 or Form I-129CW
beneficiary, for whom a Form I-129 or Form I-129CW petitioner (i.e.,
the employer) sought either an extension of stay or a change of status
and the request was denied, may still be able to get a visa and return
to the U.S., including pursuant to other means.
DHS does not believe it would be necessary for Form I-129 or Form
I-129CW petitioners, or for surety bond companies (obligors) to acquire
additional types of professional skills as a result of this final rule.
These petitioners and obligors should already possess the expertise to
fill out the associated forms for this final rule. Additionally, these
petitioners and obligors would be familiar with the final rule and such
familiarization costs are accounted for the in the E.O. 12866 sections.
f. Description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
DHS considered a range of potential alternatives to the final rule.
First, under a ``no action'' alternative, DHS would continue
administering the public charge ground of inadmissibility under the
1999 Interim Field Guidance, and would not impose a public benefit
condition for extension of stay and change of status. For reasons
explained more fully elsewhere in the preamble to the final rule, DHS
determined that this alternative would not adequately ensure the self-
sufficiency of aliens subject to the public charge ground of
inadmissibility. Second, DHS considered including a more expansive
definition of ``public benefit,'' potentially to include a range of
non-cash benefit programs falling in specific categories (such as other
programs that provide assistance for basic food and nutrition, housing,
and healthcare). For reasons explained more fully elsewhere in the
preamble to the final rule, DHS chose the approach contained in this
final rule--a more limited list of cash benefits for income maintenance
and high-expenditure non-cash benefits. DHS expects that, as compared
to the broader alternative, the approach DHS decided to pursue may
reduce the overall effect of the rule on transfers, but enhance its
administrability and predictability. Employers filing Forms I-129 and
I-129CW, and surety companies will have a better understanding of the
types of non-cash benefits that may be covered under this final rule
than they would under the broader alternative, and may realize cost
savings as a result. In addition, certain indirect effects of the rule
may be different as a result of the decision to reject this
alternative.
DHS has revised the final rule to eliminate the future-looking
aspect of the public benefit condition, which will reduce burden on
small entities.
C. Congressional Review Act
DHS has sent this final rule to the Congress and to the Comptroller
General under the Congressional Review Act, 5 U.S.C. 801 et seq. The
Administrator of the Office of Information and Regulatory Affairs has
determined that this rule is a ``major rule'' within the meaning of the
Congressional Review Act. The rule therefore requires at least a 60-day
delayed effective date.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may directly result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector. The
inflation-adjusted value of $100 million in 1995 is approximately $165
million in 2018 based on the Consumer Price Index for All Urban
Consumers (CPI-U).\866\
---------------------------------------------------------------------------
\866\ U.S. Bureau of Labor Statistics, Historical Consumer Price
Index for All Urban Consumers (CPI-U): U.S. City Average, All Items,
available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-201902.pdf (last visited April 25, 2019).
---------------------------------------------------------------------------
This final rule does not contain such a mandate as it does not
include any Federal mandate that may result in increased expenditures
by State, local, or tribal governments; nor does it increase private
sector expenditures by more than $165 million annually (inflation
adjusted); nor does it significantly or uniquely affect small
governments. Accordingly, the UMRA requires no further agency action or
analysis.
E. Executive Order 13132 (Federalism)
This final rule does not have federalism implications because it
does 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. Accordingly, E.O. 13132, Federalism, requires no further
agency action or analysis.
F. Executive Order 12988 (Civil Justice Reform)
This final rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This final rule was written to provide a
clear legal standard for affected conduct and was carefully reviewed to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal court system. DHS has determined that
this final rule meets the applicable standards provided in section 3 of
E.O. 12988.
G. Executive Order 13175 Consultation and Coordination With Indian
Tribal Governments
This final rule does not have ``tribal implications'' because it
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.
H. Family Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
Agencies must assess whether the regulatory action: (1) Impacts the
stability or safety of the family, particularly in terms of marital
commitment; (2) impacts the authority of parents in the education,
nurture, and supervision of their children; (3) helps the family
perform its functions; (4) affects disposable income or poverty of
families and children; (5) if the regulatory action financially impacts
families, are justified; (6) may be carried out by State or local
government or by the family; and (7) establishes a policy
[[Page 41493]]
concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If the determination
is affirmative, then the Agency must prepare an impact assessment to
address criteria specified in the law. As discussed in the NPRM,\867\
DHS has determined that the rule may decrease disposable income and
increase the poverty of certain families and children, including U.S.
citizen children. DHS continues to be of the opinion that the benefits
of the action justify the financial impact on the family. Additionally,
because the final rule considers public benefits for purposes of the
inadmissibility determination that were not considered under the 1999
Interim Field Guidance, DHS determined that the aliens found
inadmissible under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4),
will likely increase. However, given the compelling need for this
rulemaking, including but not limited to ensuring self-sufficiency and
minimizing the incentive to immigrate based on the U.S. social safety
net, DHS determined that this rulemaking's impact is justified and no
further actions are required. DHS also determined that this final rule
will not have any impact on the autonomy or integrity of the family as
an institution.
---------------------------------------------------------------------------
\867\ See Inadmissibility on Public Charge Grounds, 83 FR 51114,
51277 (proposed Oct. 10, 2018).
---------------------------------------------------------------------------
I. National Environmental Policy Act (NEPA)
DHS analyzes actions to determine whether NEPA applies to them and
if so what degree of analysis is required. DHS Directive (Dir) 023-01
Rev. 01 and Instruction Manual (Inst.) 023-01-001 Rev. 01 establish the
procedures that DHS and its components use to comply with NEPA and the
Council on Environmental Quality (CEQ) regulations for implementing
NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal
agencies to establish, with CEQ review and concurrence, categories of
actions (``categorical exclusions'') which experience has shown do not
individually or cumulatively have a significant effect on the human
environment and, therefore, do not require an Environmental Assessment
(EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii),
1508.4. DHS Instruction 023-01-001 Rev. 01 establishes such Categorical
Exclusions that DHS has found to have no such effect. Inst. 023-01-001
Rev. 01 Appendix A Table 1. For an action to be categorically excluded,
DHS Inst. 023-01-001 Rev. 01 requires the action to satisfy each of the
following three conditions:
(1) The entire action clearly fits within one or more of the
Categorical Exclusions;
(2) the action is not a piece of a larger action; and
(3) no extraordinary circumstances exist that create the potential
for a significant environmental effect.
Inst. 023-01-001 Rev. 01 section V.B(1)-(3).
DHS has analyzed this action and has concluded that NEPA does not
apply due to the excessively speculative nature of any effort to
conduct an impact analysis. This final rule fits within the Categorical
Exclusion found in DHS Inst. 023-01-001 Rev. 01, Appendix A, Table 1,
number A3(d): ``Promulgation of rules . . . that interpret or amend an
existing regulation without changing its environmental effect.'' This
final rule is not part of a larger action. This final rule presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this final rule is categorically
excluded from further NEPA review.
This final rule applies to applicants for admission or adjustment
of status, as long as the individual is applying for an immigration
status that is subject to the public charge ground of inadmissibility.
In addition, this final rule would potentially affect individuals
applying for an extension of stay or change of status because these
individuals would have to demonstrate that they have not received,
since obtaining the nonimmigrant status they are seeking to extend or
change, public benefits for a duration of more than 12 months in the
aggregate within a 36-month period. As discussed in detail above, this
final rule establishes a definition of public charge and expands the
types of public benefits that DHS would consider as part of its public
charge inadmissibility determinations. The final rule also proposes to
establish a regulatory framework based on the statutory factors that
must be considered in public charge determinations, including enhanced
evidentiary requirements for public charge inadmissibility
determinations by USCIS. Finally, the final rule revises the public
charge bond process. Overall, the final rule requires an in-depth
adjudication that may result in additional findings of inadmissibility,
ineligibility for adjustment of status on public charge grounds, or
denials of requests for extension of stay or change of status based on
the public benefit condition.
DHS cannot estimate with any degree of certainty the extent to
which any potentially increased findings of inadmissibility on public
charge grounds would result in fewer individuals being admitted to the
United States. DHS is similarly unable to estimate the extent to which
there would be an increased denial of applications for extension of
stay or change of status. Even if DHS could estimate any of these
numerical effects, any assessment of derivative environmental effect at
the national level would be unduly speculative. This final rule is not
part of a larger action. This final rule presents no extraordinary
circumstances creating the potential for significant environmental
effects. Therefore, this final rule is categorically excluded from
further NEPA review.
J. Paperwork Reduction Act
Under the PRA, all Departments are required to submit to OMB, for
review and approval, any reporting requirements inherent in a rule. See
Public Law 104-13, 109 Stat. 163 (May 22, 1995). Table 9 below is a
listing of all forms impacted by this rule.
[[Page 41494]]
Table 9--Summary of Forms
----------------------------------------------------------------------------------------------------------------
Applicability to
Form Form name New or updated General purpose General categories public charge
forms of form filing rule
----------------------------------------------------------------------------------------------------------------
I-944......... Declaration of New.............. This form is used Anyone who is subject This form is the
Self-Sufficiency. to demonstrate to a public charge primary basis
that an alien is inadmissibility for determining
not likely to determination. See whether an
become a public Tables 2-7 for a applicant is
charge. full list. inadmissible on
public charge
grounds, as it
asks questions
about the
factors
considered.
I-356......... Request for Update--Previousl This form is used An obligor who posted This form is
Cancellation of y discontinued. to request Form I-945 on the used to seek
a Public Charge cancellation of alien's behalf or an cancellation of
Bond. the bond that alien who posted the Form I-945
was submitted on Form I-945 posted on the criteria as
Form I-945, his or her own provided in the
Public Charge behalf, and who rule.
Bond, on behalf seeks to cancel Form
of an alien. I-945 because the
alien has
permanently departed
the United States,
naturalized, or
died; the obligor or
the alien seeks
cancellation of the
bond following the
alien's fifth
anniversary of
admission to the
United States as a
lawful permanent
resident; or the
alien, following the
initial grant of
lawful permanent
resident status,
obtains an
immigration status
that is exempt from
the public charge
ground of
inadmissibility.
I-945......... Public Charge New.............. This form is the For aliens If an alien
Bond. bond contract inadmissible only seeking
between USCIS based on public adjustment of
and the obligor. charge and who are status has been
permitted to post found
bond. The form is inadmissible he
completed by the or she may be
obligor, who posts admitted to the
the bond on the United States
alien's behalf. upon the
posting of a
suitable and
proper a bond
at the
discretion of
DHS.
I-485......... Application to Update--adds This form is used For aliens applying Adjustment of
Register questions and by aliens for adjustment of status
Permanent instructions to present in the status including: applicants
Residence or clarify what United States to Immediate relatives generally must
Adjust Status. categories need obtain lawful (spouses, children, be admissible,
to file Form I- permanent and parents of U.S. including with
944 and Form I- resident status.. citizens) Family- regard to the
864. based immigrants public charge
(principal inadmissibility
beneficiaries and ground.
their dependents)
Employment-based
immigrants
(principal
beneficiaries and
their dependents)
Those who entered as
Ks (Fiance(e)s or
certain spouses of
U.S. citizens, and
their children) who
are seeking lawful
permanent resident
status based on the
primary
beneficiary's
marriage to the U.S.
citizen petitioner.
I-864......... Affidavit of Update--reference Statement/ Most family-based The affidavit of
Support Under to Form I-864W, contract immigrants and some support, when
Section 213A of which is being provided by a employment-based required, is
the INA. discontinued. sponsor to show immigrants must have part of the
that the sponsor a sponsor submit public charge
has adequate this form. See inadmissibility
financial additional Tables 2- determination.
resources to 7 for a full list.
support the
alien.
[[Page 41495]]
I-864EZ....... Affidavit of Update--reference Statement/ The sponsor is the The affidavit of
Support Under to Form I-864W, contract person who filed or support, when
Section 213A of which is being provided by is filing Form I- required, is
the Act. discontinued. sponsor to show 130, Petition for part of the
that the sponsor Alien Relative, for public charge
has adequate a relative being inadmissibility
financial sponsored; the determination.
resources to relative the sponsor
support the is sponsoring is the
alien. This is a only person listed
simpler version on Form I-130; and
of Form I-864. the income the
sponsor is using to
qualify is based
entirely on the
sponsor's salary or
pension and is shown
on one or more
Internal Revenue
Service (IRS) Form W-
2s provided by the
sponsor's employers
or former employers.
I-864W........ Request for Discontinued--inf Certain classes Aliens who have Although some
Exemption for ormation of immigrants earned 40 quarters people may be
Intending incorporated are exempt from of SSA coverage. exempt from the
Immigrant's into Form I-485. the affidavit of Children who will affidavit of
Affidavit of support, Form I- become U.S. citizens support
Support. 864, requirement upon entry or requirement,
and therefore adjustment into the the person may
must file Form I- United States under still be
864W instead. INA 320. Self- subject to
Petitioning public charge.
Widow(er) Form I-
360, Petition for
Amerasian, Widow(er)
or Special
Immigrant; Self-
Petitioning bettered
spouse or child.
I-129......... Petition for Update--adds This form issued E-2 CNMI-- As a condition
Nonimmigrant questions and by an employer treaty investor of granting
Worker. instructions to petition exclusively in the extension of
about receipt of USCIS for an Commonwealth of the stay and change
public benefits. alien Northern Mariana of status, the
beneficiary to Islands (CNMI). applicant must
come temporarily H-1B-- show that he or
to the United specialty occupation she has not
States as a worker; an alien received, since
nonimmigrant to coming to perform obtaining the
perform services services of an nonimmigrant
or labor, or to exceptional nature status he or
receive that relate to a she is seeking
training. This U.S. Department of to extend or
form is also Defense-administered change public
used by certain project; or a benefits, as
nonimmigrants to fashion model of defined in 8
apply for EOS or distinguished merit CFR 212.21(b),
COS. and ability. for more than
H-2A-- 12 months in
temporary the aggregate,
agricultural worker. within a 36-
H-2B-- month period.
temporary
nonagricultural
worker.
H-3--trainee
L-1--
intracompany
transferee.
O-1--alien
of extraordinary
ability in arts,
science, education,
business, or
athletics.
O-2--
accompanying alien
who is coming to the
United States to
assist in the
artistic or athletic
performance of an O-
1 artist or athlete.
P-1--major
league sports.
P-1--
internationally
recognized athlete/
entertainment group.
P-1S--
essential support
personnel for a P-1.
P-2--artist/
entertainer in
reciprocal exchange
program.
P-2S--
essential support
personnel for a P-2.
P-3--artist/
entertainer coming
to the United States
to perform, teach,
or coach under a
program that is
culturally unique.
P-3S--
essential support
personnel for a P-3.
Q-1--alien
coming temporarily
to participate in an
international
cultural exchange
program. Extension
of Status.
E-1--treaty
trader.
E-2--treaty
investor (not
including E-2 CNMI
treaty investors).
E-3--Free
Trade Agreement
professionals from
Australia. Free
Trade Nonimmigrants--
H-1B1 specialty
occupation workers
from Chile or
Singapore and TN
professionals from
Canada or Mexico.
R-1--
religious worker.
[[Page 41496]]
I-129CW....... Petition for a Update--adds ................. This form is used by As a condition
CNMI-Only questions and an employer to of granting
Nonimmigrant instructions request an extension extension of
Transitional about receipt of of stay or change of stay and change
Worker. public benefits. status for a of status, the
Commonwealth of the applicant must
Northern Mariana show that he or
Islands (CNMI) she has not
temporarily to received, since
perform services or obtaining the
labor as a CW-1, nonimmigrant
CNMI-Only status he or
Transitional Worker. she is seeking
to extend or
change public
benefits, as
defined in 8
CFR 212.21(b),
for more than
12 months in
the aggregate
within a 36-
month period.
I-539......... Application to Update--adds This form is used CNMI residents As a condition
Extend/Change questions and by certain applying for an of granting
Nonimmigrant instructions nonimmigrants initial grant of extension of
Status. about receipt of (principal status; Student (F) stay and change
public benefits filers) to apply and vocational of status, the
for principal for an extension students (M) applicant must
aliens. of stay or applying for show that he or
change of reinstatement; and she has not
status. In Persons seeking V received since
certain nonimmigrant status obtaining the
circumstances, or an extension of nonimmigrant
this form may be stay as a V status he or
used as an nonimmigrant (spouse she is seeking
initial or child of a lawful to extend or
nonimmigrant permanent resident from which he
status, or who filed a petition or she is
reinstatement of on or before seeking to
F-1 or M-1 December 21, 2000). change public
status benefits, as
(students). defined in 8
CFR 212.21(b),
for more than
12 months in
the aggregate
within a 36-
month period.
I-539A........ ................. Update--adds This form is used Co-Applicants of I- As a condition
questions and by certain 539 principal filers. of granting
instructions nonimmigrants extension of
about receipt of (co-applicants stay and change
public benefits of the primary I- of status, the
by co-applicants 539 applicants) co-applicant
of I-539 to apply for an must show that
applicants. extension of he or she has
stay or change not received,
of status. since obtaining
the
nonimmigrant
status he or
she is seeking
to extend or
from which he
or she is
seeking to
change, public
benefits, as
defined in 8
CFR 212.21(b),
for more than
12 months in
the aggregate
within a 36-
month period.
[[Page 41497]]
I-912......... Request for Fee Update--provides This form may be Certain Form I-485 A request of a
Waiver. a notice that a filed with applicants, fee waiver is a
request for a certain USCIS generally those who factor in the
fee waiver may applications, are not subject to determination
be a factor in petitions, and the public charge of Public
the public requests in ground of Charge.
charge order to request inadmissibility and
determination. a fee waiver. those applying under
certain humanitarian
programs, may
request a fee waiver
on Form I-912.
Applicants for E-2
CNMI investor
nonimmigrant status
under 8 CFR
214.2(e)(23) filing
Form I-129 or Form I-
539 may request a
fee waiver..
I-407......... Record of No changes....... This form is used An alien who wants to If a public
Abandonment of to record an record the voluntary charge bond has
Lawful Permanent alien's abandonment of his been posted on
Resident Status. abandonment of or her lawful the alien's
status as a permanent resident behalf, the
lawful permanent status. obligor or the
resident in the alien may
United States. request that
the bond be
cancelled
because the
alien
permanently
departed the
United States.
The alien shows
that he or she
voluntarily
abandoned his
or her status
by submitting
proof that he
or she executed
Form I-407 and
that he or she
physically
departed the
United States.
I-693......... Report of Medical No changes....... This form is used Generally, adjustment Form I-693 is
Examination and to report of status applicants used as part of
Vaccination results of an are required to the health
Record. immigration submit Form I-693. factor to
medical Nonimmigrants identify
examination seeking a change or medical
performed by a extension of status conditions that
civil surgeon to are generally not will affect an
USCIS.. required to submit applicant's
Form I-693, except ability to
for nonimmigrants provide and
seeking a change of care for
status to spouse of himself or
legal permanent herself, to
resident (V) status. attend school
See table in https:// or to work.
www.uscis.gov/
policymanual/HTML/
PolicyManual-Volume8-
PartB-Chapter3.html.
----------------------------------------------------------------------------------------------------------------
To conform with the requirements set forth by the PRA, on October
10, 2018, at 83 FR 51114, USCIS requested comments on the following
information collection. USCIS did receive comments on some of these
information collections after publishing that notice. USCIS responded
to these comments above in Section III. At this time, the following
forms are not open for comment.
USCIS Form I-944
(1) Type of Information Collection Request: New Collection.
(2) Title of the Form/Collection: Declaration of Self-Sufficiency.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-944; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
will require an individual applying to adjust status to lawful
permanent residence (Form I-485) and who is subject to the public
charge ground of inadmissibility to file Form I-944. The data collected
on these forms will be used by USCIS to determine the likelihood of a
declarant becoming a public charge based on the factors regarding age;
health; family status; assets, resources, and financial status; and
education and skills. The information collection serves the purpose of
standardizing public charge evaluation metrics and ensures that
declarants provide all essential information required for USCIS to
assess self-sufficiency and adjudicate the declaration. If USCIS
determines that a declarant is likely to become a public charge, the
declarant may need to provide additional evidence to overcome this
determination.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-944 is
382,264 and the estimated hour burden per response is 4.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 1,720,188 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $177,943,892.
[[Page 41498]]
USCIS Form I-356
(1) Type of Information Collection Request: New Collection.
(2) Title of the Form/Collection: Request for Cancellation of
Public Charge Bond.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-356; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or household, business
or other for profits. The alien (on whose behalf a public charge bond
has been posted) or the obligor (surety) (who is the obligor who posted
a bond on the alien's behalf). The form is used to request cancellation
of the public charge bond because of the alien's naturalization,
permanent departure, or death. The form is also used by the alien or
the obligor to request cancellation of the public charge bond upon the
fifth anniversary of the alien's admission to the United States as a
lawful permanent resident.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-356 is 25
and the estimated hour burden per response is 0.75 hour.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 19 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $6,250.
USCIS Form I-945
(1) Type of Information Collection Request: New Collection.
(2) Title of the Form/Collection: Public Charge Bond.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-945; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households, business
or other for profit. In certain instances, a surety bond, or cash or
any cash equivalent and contract to secure the bond, can be posted on
behalf of the alien to guarantee a set of conditions set by the
Government concerning an alien, i.e., that the alien will not become a
public charge as defined in 8 CFR 212.21 because he or she will not
receive public benefits, as defined in the rule, after the alien's
adjustment of status to that of a lawful permanent resident. An
acceptable surety is generally any company listed on the Department of
the Treasury's Listing of Approved Sureties (Department Circular 570)
in effect on the date the bond is requested or an individual or an
entity that deposits cash or a cash equivalent, such as a cashier's
check or money order for the full value of the bond.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-945 is 960
and the estimated hour burden per response is one hour.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 960 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $0.
USCIS Form I-485
(1) Type of Information Collection Request: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application to Register Permanent
Residence or Adjust Status.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-485; Supplement A; and Supplement
J; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. The
information collected is used to determine eligibility to adjust status
under section 245 of the INA.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-485 is
382,264 and the estimated hour burden per response is 6.42 hours. The
estimated total number of respondents for the information collection
Supplement A is 36,000 and the estimated hour burden per response is
1.25 hours. The estimated total number of respondents for the
information collection Supplement J is 28,309 and the estimated hour
burden per response is one hour. The estimated total number of
respondents for the information collection of Biometrics is 305,811 and
the estimated hour burden per response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 2,885,243 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $131,116,552.
USCIS Forms I-864; I-864A; I-864EZ
(1) Type of Information Collection Request: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Affidavit of Support Under
Section 213A of the INA; Contract Between Sponsor and Household Member;
Affidavit of Support under Section 213 of the Act.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-864; Form I-864A; and Form I-
864EZ; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
864: USCIS uses the data collected on Form I-864 to determine whether
the sponsor has the ability to support the sponsored alien under
section 213A of the INA. This form standardizes evaluation of a
sponsor's ability to support the sponsored alien and ensures that basic
information required to assess eligibility is provided by petitioners.
The information collection required on Form I-864A is necessary for
public benefit agencies to enforce the affidavit of support in the
event the sponsor used income of his or her household members to reach
the required income level and the public benefit agencies are
requesting reimbursement from the sponsor. Form I-864A: Form I-864A is
a contract between the sponsor and the sponsor's household members. It
is only required if the sponsor used income of his or her household
members to reach the required 125 percent of the FPG. The contract
holds these household members jointly and severally liable for the
support of the sponsored immigrant. The information collection required
on Form I-864A is necessary for public benefit agencies to enforce the
affidavit of support in the event the sponsor used income of his or her
household members to reach the required income level and the public
benefit agencies are requesting reimbursement from the sponsor. Form I-
864EZ: USCIS uses Form I- 864EZ in exactly the same way as Form I-864;
however, USCIS collects less information from the sponsors as
[[Page 41499]]
less information is needed from those who qualify in order to make an
adjudication.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-864 is
453,345 and the estimated hour burden per response is 6 hours. The
estimated total number of respondents for the information collection I-
864A is 215,800 and the estimated hour burden per response is 1.75
hours. The estimated total number of respondents for the information
collection I-864EZ is 100,000 and the estimated hour burden per
response is 2.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 3,347,720 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $135,569,525.
USCIS Form I-129
(1) Type of Information Collection Request: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-129; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit. USCIS
uses the data collected on this form to determine eligibility for the
requested nonimmigrant petition and/or requests to extend or change
nonimmigrant status. An employer (or agent, where applicable) uses this
form to petition USCIS for an alien to temporarily enter as a
nonimmigrant. An employer (or agent, where applicable) also uses this
form to request an extension of stay or change of status on behalf of
the alien worker. The form serves the purpose of standardizing requests
for nonimmigrant workers, and ensuring that basic information required
for assessing eligibility is provided by the petitioner while
requesting that beneficiaries be classified under certain nonimmigrant
employment categories. It also assists USCIS in compiling information
required by Congress annually to assess effectiveness and utilization
of certain nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-129 is
552,000 and the estimated hour burden per response is 2.84 hours. The
estimated total number of respondents for the information collection I-
129, E-1/E-2 Classification Supplement is 4,760 and the estimated hour
burden per response is 0.67 hours. The estimated total number of
respondents for the information collection I-129, Trade Agreement
Supplement is 3,057 and the estimated hour burden per response is 0.67
hours. The estimated total number of respondents for the information
collection I-129, H Classification Supplement is 255,872 and the
estimated hour burden per response is two hours. The estimated total
number of respondents for the information collection I-129, H-1B and H-
1B1 Data Collection and Filing Fee Exemption Supplement is 243,965 and
the estimated hour burden per response is one hour. The estimated total
number of respondents for the information collection I-129, L
Classification Supplement is 37,831 and the estimated hour burden per
response is 1.34 hours. The estimated total number of respondents for
the information collection I-129, O and P Classifications Supplement is
22,710 and the estimated hour burden per response is one hour. The
estimated total number of respondents for the information collection I-
129, Q-1 Classification Supplement is 155 and the estimated hour burden
per response is 0.34 hours. The estimated total number of respondents
for the information collection I-129, R-1 Classification is 6,635 and
the estimated hour burden per response is 2.34 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 2,417,609 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $132,368,220.
USCIS Form I-129CW
(1) Type of Information Collection Request: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for a CNMI-Only
Nonimmigrant Transitional Worker.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-129CW; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for profit. USCIS
uses the data collected on this form to determine eligibility for the
requested immigration benefits. An employer uses this form to petition
USCIS for an alien to temporarily enter as a nonimmigrant into the CNMI
to perform services or labor as a CNMI-Only Transitional Worker (CW-1).
An employer also uses this form to request an extension of stay or
change of status on behalf of the alien worker. The form serves the
purpose of standardizing requests for these benefits, and ensuring that
the basic information required to determine eligibility, is provided by
the petitioners. USCIS collects biometrics from aliens present in the
CNMI at the time of requesting initial grant of CW-1 status. The
information is used to verify the alien's identity, background
information and ultimately adjudicate their request for CW-1 status.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-129CW is
3,749 and the estimated hour burden per response is 3.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 13,122 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $459,253.
USCIS Form I-539 and Form I-539A
(1) Type of Information Collection Request: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application to Extend/Change
Nonimmigrant Status.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-539; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. This form
will be used for nonimmigrants to apply for an extension of stay, for a
change to another nonimmigrant classification, or for obtaining V
nonimmigrant classification.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to
[[Page 41500]]
respond: The estimated total number of respondents for the information
collection Form I-539 paper filers is 174,289 and the estimated hour
burden per response is two hours. The estimated total number of
respondents for the information collection Form I-539 e-filers is
74,696 and the estimated hour burden per response is 1.08 hours. The
estimated total number of respondents for the information collection I-
539A is 54,375 and the estimated hour burden per response is 0.5 hour.
The estimated total number of respondents for the information
collection of Biometrics is 248,985 and the estimated hour burden per
response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 747,974 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $56,121,219.
USCIS Form I-912
Under the PRA DHS is required to submit to OMB, for review and
approval, covered reporting requirements inherent in a rule. This rule
will require non-substantive edits to USCIS Form I-912, Request for Fee
Waiver. These edits make clear to those who request fee waivers that an
approved fee waiver can negatively impact eligibility for an
immigration benefit that is subject to the public charge
inadmissibility determination. Accordingly, USCIS has submitted a PRA
Change Worksheet, Form OMB 83-C, and amended information collection
instrument to OMB for review and approval in accordance with the PRA.
USCIS Form I-407
Under the PRA, DHS is required to submit to OMB, for review and
approval, covered reporting requirements inherent in a rule. This rule
requires the use of USCIS Form I-407 but does not require any changes
to the form or instructions and does not impact the number of
respondents, time or cost burden. This form is currently approved by
OMB under the PRA. The OMB control number for this information
collection is 1615-0130.
USCIS Form I-693
Under the PRA, DHS is required to submit to OMB, for review and
approval, covered reporting requirements inherent in a rule. This rule
requires the use of USCIS Form I-693 but does not require any changes
to the form or instructions and does not impact the number of
respondents, time or cost burden. This form is currently approved by
OMB under the PRA. The OMB control number for this information
collection is 1615-0033.
V. List of Subjects and Regulatory Amendments
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Immigration, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 213
Immigration, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982
Comp., p.166; 8 CFR part 2; Pub. L. 112-54.
0
2. Section 103.6 is amended by:
a. Revising paragraphs (a)(1), (a)(2)(i), and (c)(1);
0
b. Adding paragraph (d)(3); and
0
c. Revising paragraph (e) The revisions and additions read as follows:
Sec. 103.6 Surety bonds.
(a) * * *
(1) Extension agreements; consent of surety; collateral security.
All surety bonds posted in immigration cases must be executed on the
forms designated by DHS, a copy of which, and any rider attached
thereto, must be furnished to the obligor. DHS is authorized to approve
a bond, a formal agreement for the extension of liability of surety, a
request for delivery of collateral security to a duly appointed and
undischarged administrator or executor of the estate of a deceased
depositor, and a power of attorney executed on the form designated by
DHS, if any. All other matters relating to bonds, including a power of
attorney not executed on the form designated by DHS and a request for
delivery of collateral security to other than the depositor or his or
her approved attorney in fact, will be forwarded to the appropriate
office for approval.
(2) Bond riders--(i) General. A bond rider must be prepared on the
form(s) designated by DHS, and attached to the bond. If a condition to
be included in a bond is not on the original bond, a rider containing
the condition must be executed.
* * * * *
(c) * * *
(1) Public charge bonds. Special rules for the cancellation of
public charge bonds are described in 8 CFR 213.1.
* * * * *
(d) * * *
(3) Public charge bonds. The threshold bond amount for public
charge bonds is set forth in 8 CFR 213.1.
(e) Breach of bond. Breach of public charge bonds is governed by 8
CFR 213.1. For other immigration bonds, a bond is breached when there
has been a substantial violation of the stipulated conditions. A final
determination that a bond has been breached creates a claim in favor of
the United States which may not be released by the officer. DHS will
determine whether a bond has been breached. If DHS determines that a
bond has been breached, it will notify the obligor of the decision, the
reasons therefor, and inform the obligor of the right to appeal the
decision in accordance with the provisions of this part.
0
3. Section 103.7 is amended by adding paragraphs (b)(1)(i)(LLL) and
(MMM) to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(LLL) Public Charge Bond, Form I-945. $25.
(MMM) Request for Cancellation of Public Charge Bond, Form I-356.
$25.
[[Page 41501]]
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
4. The authority citation for part 212 continues to read as follows:
Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and
note, 1102, 1103, 1182 and note, 1184, 1185 note (section 7209 of
Pub. L. 108-458), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 CFR
part 2.
0
5. Amend Sec. 212.18 by revising paragraph (b)(2) and (3) to read as
follows:
Sec. 212.18 Application for Waivers of inadmissibility in connection
with an application for adjustment of status by T nonimmigrant status
holders
* * * * *
(b) * * *
(2) If an applicant is inadmissible under section 212(a)(1) of the
Act, USCIS may waive such inadmissibility if it determines that
granting a waiver is in the national interest.
(3) If any other applicable provision of section 212(a) renders the
applicant inadmissible, USCIS may grant a waiver of inadmissibility if
the activities rendering the alien inadmissible were caused by or were
incident to the victimization and USCIS determines that it is in the
national interest to waive the applicable ground or grounds of
inadmissibility.
0
6. Add Sec. Sec. 212.20 through 212.23 to read as follows:
Sec.
* * * * *
212.20 Applicability of public charge inadmissibility.
212.21 Definitions.
212.22 Public charge inadmissibility determination.
212.23 Exemptions and waivers for public charge ground of
inadmissibility.
Sec. 212.20 Applicability of public charge inadmissibility.
8 CFR 212.20 through 212.23 address the public charge ground of
inadmissibility under section 212(a)(4) of the Act. Unless the alien
requesting the immigration benefit or classification has been exempted
from section 212(a)(4) of the Act as listed in 8 CFR 212.23(a), the
provisions of Sec. Sec. 212.20 through 212.23 of this part apply to an
applicant for admission or adjustment of status to lawful permanent
resident, if the application is postmarked (or, if applicable,
submitted electronically) on or after October 15, 2019.
Sec. 212.21 Definitions.
For the purposes of 8 CFR 212.20 through 212.23, the following
definitions apply:
(a) Public Charge. Public charge means an alien who receives one or
more public benefits, as defined in paragraph (b) of this section, for
more than 12 months in the aggregate within any 36-month period (such
that, for instance, receipt of two benefits in one month counts as two
months).
(b) Public benefit. Public benefit means:
(1) Any Federal, State, local, or tribal cash assistance for income
maintenance (other than tax credits), including:
(i) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
(ii) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601
et seq.; or
(iii) Federal, State or local cash benefit programs for income
maintenance (often called ``General Assistance'' in the State context,
but which also exist under other names); and
(2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011
to 2036c;
(3) Section 8 Housing Assistance under the Housing Choice Voucher
Program, as administered by HUD under 42 U.S.C. 1437f;
(4) Section 8 Project-Based Rental Assistance (including Moderate
Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42
U.S.C. 1437f); and
(5) Medicaid under 42 U.S.C. 1396 et seq., except for:
(i) Benefits received for an emergency medical condition as
described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(ii) Services or benefits funded by Medicaid but provided under the
Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et
seq.;
(iii) School-based services or benefits provided to individuals who
are at or below the oldest age eligible for secondary education as
determined under State or local law;
(iv) Benefits received by an alien under 21 years of age, or a
woman during pregnancy (and during the 60-day period beginning on the
last day of the pregnancy).
(6) Public Housing under section 9 of the U.S. Housing Act of 1937.
(7) Public benefits, as defined in paragraphs (b)(1) through (b)(6)
of this section, do not include any public benefits received by an
alien who at the time of receipt of the public benefit, or at the time
of filing or adjudication of the application for admission or
adjustment of status, or application or request for extension of stay
or change of status is--
(i) Enlisted in the U.S. Armed Forces under the authority of 10
U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(ii) Serving in active duty or in the Ready Reserve component of
the U.S. Armed Forces, or
(iii) Is the spouse or child, as defined in section 101(b) of the
Act, of an alien described in paragraphs (b)(7)(i) or (ii) of this
section.
(8) In a subsequent adjudication for a benefit for which the public
charge ground of inadmissibility applies, public benefits, as defined
in this section, do not include any public benefits received by an
alien during periods in which the alien was present in the United
States in an immigration category that is exempt from the public charge
ground of inadmissibility, as set forth in 8 CFR 212.23(a), or for
which the alien received a waiver of public charge inadmissibility, as
set forth in 8 CFR 212.23(b).
(9) Public benefits, as defined in this section, do not include any
public benefits that were or will be received by--
(i) Children of U.S. citizens whose lawful admission for permanent
residence and subsequent residence in the legal and physical custody of
their U.S. citizen parent will result automatically in the child's
acquisition of citizenship, upon meeting the eligibility criteria of
section 320(a)-(b) of the Act, in accordance with 8 CFR part 320; or
(ii) Children of U.S. citizens whose lawful admission for permanent
residence will result automatically in the child's acquisition of
citizenship upon finalization of adoption (if the child satisfies the
requirements applicable to adopted children under INA 101(b)(1)), in
the United States by the U.S. citizen parent(s), upon meeting the
eligibility criteria of section 320(a)-(b) of the Act, in accordance
with 8 CFR part 320; or
(iii) Children of U.S. citizens who are entering the United States
for the purpose of attending an interview under section 322 of the Act
in accordance with 8 CFR part 322.
(c) Likely at any time to become a public charge. Likely at any
time to become a public charge means more likely than not at any time
in the future to become a public charge, as defined in 212.21(a), based
on the totality of the alien's circumstances.
(d) Alien's household. For purposes of public charge
inadmissibility determinations under section 212(a)(4) of the Act:
(1) If the alien is 21 years of age or older, or under the age of
21 and married, the alien's household includes:
[[Page 41502]]
(i) The alien;
(ii) The alien's spouse, if physically residing with the alien;
(iii) The alien's children, as defined in 101(b)(1) of the Act,
physically residing with the alien;
(iv) The alien's other children, as defined in section 101(b)(1) of
the Act, not physically residing with the alien for whom the alien
provides or is required to provide at least 50 percent of the
children's financial support, as evidenced by a child support order or
agreement a custody order or agreement, or any other order or agreement
specifying the amount of financial support to be provided by the alien;
(v) Any other individuals (including a spouse not physically
residing with the alien) to whom the alien provides, or is required to
provide, at least 50 percent of the individual's financial support or
who are listed as dependents on the alien's federal income tax return;
and
(vi) Any individual who provides to the alien at least 50 percent
of the alien's financial support, or who lists the alien as a dependent
on his or her federal income tax return.
(2) If the alien is a child as defined in section 101(b)(1) of the
Act, the alien's household includes the following individuals:
(i) The alien;
(ii) The alien's children as defined in section 101(b)(1) of the
Act physically residing with the alien;
(iii) The alien's other children as defined in section 101(b)(1) of
the Act not physically residing with the alien for whom the alien
provides or is required to provide at least 50 percent of the
children's financial support, as evidenced by a child support order or
agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided by
the alien;
(iv) The alien's parents, legal guardians, or any other individual
providing or required to provide at least 50 percent of the alien's
financial support to the alien as evidenced by a child support order or
agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided to
the alien;
(v) The parents' or legal guardians' other children as defined in
section 101(b)(1) of the Act physically residing with the alien;
(vi) The alien's parents' or legal guardians' other children as
defined in section 101(b)(1) of the Act, not physically residing with
the alien for whom the parent or legal guardian provides or is required
to provide at least 50 percent of the other children's financial
support, as evidenced by a child support order or agreement, a custody
order or agreement, or any other order or agreement specifying the
amount of financial support to be provided by the parents or legal
guardians; and
(vii) Any other individual(s) to whom the alien's parents or legal
guardians provide, or are required to provide at least 50 percent of
such individual's financial support or who is listed as a dependent on
the parent's or legal guardian's federal income tax return.
(e) Receipt of public benefits. Receipt of public benefits occurs
when a public benefit-granting agency provides a public benefit, as
defined in paragraph (b) of this section, to an alien as a beneficiary,
whether in the form of cash, voucher, services, or insurance coverage.
Applying for a public benefit does not constitute receipt of public
benefits although it may suggest a likelihood of future receipt.
Certification for future receipt of a public benefit does not
constitute receipt of public benefits, although it may suggest a
likelihood of future receipt. An alien's receipt of, application for,
or certification for public benefits solely on behalf of another
individual does not constitute receipt of, application for, or
certification for such alien.
(f) Primary caregiver means an alien who is 18 years of age or
older and has significant responsibility for actively caring for and
managing the well-being of a child or an elderly, ill, or disabled
person in the alien's household.
Sec. 212.22 Public charge inadmissibility determination.
This section relates to the public charge ground of inadmissibility
under section 212(a)(4) of the Act.
(a) Prospective determination based on the totality of
circumstances. The determination of an alien's likelihood of becoming a
public charge at any time in the future must be based on the totality
of the alien's circumstances by weighing all factors that are relevant
to whether the alien is more likely than not at any time in the future
to receive one or more public benefits, as defined in 8 CFR 212.21(b),
for more than 12 months in the aggregate within any 36-month period.
Except as necessary to fully evaluate evidence provided in paragraph
(b)(4)(ii)(E)(3) of this section, DHS will not specifically assess
whether an alien qualifies or would qualify for any public benefit, as
defined in 8 CFR 212.21(b).
(b) Minimum factors to consider. A public charge inadmissibility
determination must at least entail consideration of the alien's age;
health; family status; education and skills; and assets, resources, and
financial status, as follows:
(1) The alien's age--(i) Standard. When considering an alien's age,
DHS will consider whether the alien's age makes the alien more likely
than not to become a public charge at any time in the future, such as
by impacting the alien's ability to work, including whether the alien
is between the age of 18 and the minimum ``early retirement age'' for
Social Security set forth in 42 U.S.C. 416(l)(2).
(ii) [Reserved]
(2) The alien's health--(i) Standard. DHS will consider whether the
alien's health makes the alien more likely than not to become a public
charge at any time in the future, including whether the alien has been
diagnosed with a medical condition that is likely to require extensive
medical treatment or institutionalization or that will interfere with
the alien's ability to provide and care for himself or herself, to
attend school, or to work upon admission or adjustment of status.
(ii) Evidence. USCIS' consideration includes but is not limited to
the following:
(A) A report of an immigration medical examination performed by a
civil surgeon or panel physician where such examination is required (to
which USCIS will generally defer absent evidence that such report is
incomplete); or
(B) Evidence of a medical condition that is likely to require
extensive medical treatment or institutionalization or that will
interfere with the alien's ability to provide and care for himself or
herself, to attend school, or to work upon admission or adjustment of
status.
(3) The alien's family status--(i) Standard. When considering an
alien's family status, DHS will consider the alien's household size, as
defined in 8 CFR 212.21(d), and whether the alien's household size
makes the alien more likely than not to become a public charge at any
time in the future.
(ii) [Reserved]
(4) The alien's assets, resources, and financial status--(i)
Standard. When considering an alien's assets, resources, and financial
status, DHS will consider whether such assets, resources, and financial
status excluding any income from illegal activities or sources (e.g.,
proceeds from illegal gambling or drug sales, and income from public
benefits listed in 8 CFR 212.21(b)), make the alien more likely than
not to become a public charge at any time in the future, including
whether:
[[Page 41503]]
(A) The alien's household's annual gross income is at least 125
percent of the most recent Federal Poverty Guideline (100 percent for
an alien on active duty, other than training, in the U.S. Armed Forces)
based on the alien's household size as defined by section 212.21(d);
(B) If the alien's household's annual gross income is less than 125
percent of the most recent Federal Poverty Guideline (100 percent for
an alien on active duty, other than training, in the U.S. Armed
Forces), the alien may submit evidence of ownership of significant
assets. For purposes of this paragraph, an alien may establish
ownership of significant assets, such as savings accounts, stocks,
bonds, certificates of deposit, real estate or other assets, in which
the combined cash value of all the assets (the total value of the
assets less any offsetting liabilities) exceeds:
(1) If the intending immigrant is the spouse or child of a United
States citizen (and the child has reached his or her 18th birthday),
three times the difference between the alien's household income and 125
percent of the FPG (100 percent for those on active duty, other than
training, in the U.S. Armed Forces) for the alien's household size;
(2) If the intending immigrant is an orphan who will be adopted in
the United States after the alien orphan acquires permanent residence
(or in whose case the parents will need to seek a formal recognition of
a foreign adoption under the law of the State of the intending
immigrant's proposed residence because at least one of the parents did
not see the child before or during the adoption), and who will, as a
result of the adoption or formal recognition of the foreign adoption,
acquire citizenship under section 320 of the Act, the difference
between the alien's household income and 125 percent of the FPG (100
percent for those on active duty, other than training, in the U.S.
Armed Forces) for the alien's household size; or
(3) In all other cases, five times the difference between the
alien's household income and 125 percent of the FPG (100 percent for
those on active duty, other than training, in the U.S. Armed Forces)
for the alien's household size.
(C) The alien has sufficient household assets and resources to
cover any reasonably foreseeable medical costs, including as related to
a medical condition that is likely to require extensive medical
treatment or institutionalization or that will interfere with the
alien's ability to provide care for himself or herself, to attend
school, or to work;
(D) The alien has any financial liabilities; and whether
(E) The alien has applied for, been certified to receive, or
received public benefits, as defined in 8 CFR 212.21(b), on or after
October 15, 2019.
(ii) Evidence. USCIS' consideration includes, but is not limited to
the following:
(A) The alien's annual gross household income including, but not
limited to:
(1) For each member of the household whose income will be
considered, the most recent tax-year transcript from the U.S. Internal
Revenue Service (IRS) of such household member's IRS Form 1040, U.S.
Individual Income Tax Return; or
(2) If the evidence in paragraph (b)(4)(ii)(A)(1) of this section
is unavailable for a household member, other credible and probative
evidence of such household member's income, including an explanation of
why such transcript is not available, such as if the household member
is not subject to taxation in the United States.
(B) Any additional income from individuals not included in the
alien's household provided to the alien's household on a continuing
monthly or yearly basis for the most recent calendar year and on which
the alien relies or will rely to meet the standard at 8 CFR
212.22(b)(4)(i);
(C) The household's cash assets and resources. Evidence of such
cash assets and resources may include checking and savings account
statements covering 12 months prior to filing the application;
(D) The household's non-cash assets and resources, that can be
converted into cash within 12 months, such as net cash value of real
estate holdings minus the sum of all loans secured by a mortgage, trust
deed, or other lien on the home; annuities; securities; retirement and
educational accounts; and any other assets that can easily be converted
into cash;
(E) Evidence that the alien has:
(1) Applied for or received any public benefit, as defined in 8 CFR
212.21(b), on or after October 15, 2019 or disenrolled or requested to
be disenrolled from such benefit(s); or
(2) Been certified or approved to receive any public benefit, as
defined in 8 CFR 212.21(b), on or after October 15, 2019 or withdrew
his or her application or disenrolled or requested to be to disenrolled
from such benefit(s);
(3) Submitted evidence from a Federal, State, local, or tribal
agency administering a public benefit, as defined in 212.21(b), that
the alien has specifically identified as showing that the alien does
not qualify or would not qualify for such public benefit by virtue of,
for instance, the alien's annual gross household income or prospective
immigration status or length of stay;
(F) Whether the alien has applied for or has received a USCIS fee
waiver for an immigration benefit request on or after October 15, 2019,
unless the fee waiver was applied for or granted as part of an
application for which a public charge inadmissibility determination
under section 212(a)(4) of the Act was not required.
(G) The alien's credit history and credit score in the United
States, and other evidence of the alien's liabilities not reflected in
the credit history and credit score (e.g., any mortgages, car loans,
unpaid child or spousal support, unpaid taxes, and credit card debt);
and
(H) Whether the alien has sufficient household assets and resources
(including, for instance, health insurance not designated as a public
benefit under 8 CFR 212.21(b)) to pay for reasonably foreseeable
medical costs, such as costs related to a medical condition that is
likely to require extensive medical treatment or institutionalization
or that will interfere with the alien's ability to provide care for
himself or herself, to attend school, or to work;
(5) The alien's education and skills. (i) Standard. When
considering an alien's education and skills, DHS will consider whether
the alien has adequate education and skills to either obtain or
maintain lawful employment with an income sufficient to avoid being
more likely than not to become a public charge.
(ii) Evidence. USCIS' consideration includes but is not limited to
the following: (A) The alien's history of employment, excluding
employment involving illegal activities, e.g., illegal gambling or drug
sales. The alien must provide the following:
(1) The last 3 years of the alien's tax transcripts from the U.S.
Internal Revenue Service (IRS) of the alien's IRS Form 1040, U.S.
Individual Income Tax Return; or
(2) If the evidence in paragraph (b)(5)(ii)(A)(1) of this section
is unavailable, other credible and probative evidence of the alien's
history of employment for the last 3 years, including an explanation of
why such transcripts are not available, such as if the alien is not
subject to taxation in the United States;
(B) Whether the alien has a high school diploma (or its equivalent)
or has a higher education degree;
[[Page 41504]]
(C) Whether the alien has any occupational skills, certifications,
or licenses; and
(D) Whether the alien is proficient in English or proficient in
other languages in addition to English.
(E) Whether the alien is a primary caregiver as defined in 8 CFR
212.21(f), such that the alien lacks an employment history, is not
currently employed, or is not employed full time. Only one alien within
a household can be considered a primary caregiver of the same
individual within the household. USCIS' consideration with respect this
paragraph includes but is not limited to evidence that an individual
the alien is caring for resides in the alien's household, evidence of
the individual's age, and evidence of the individual's medical
condition, including disability, if any.
(6) The alien's prospective immigration status and expected period
of admission.
(i) Standard. DHS will consider the immigration status that the
alien seeks and the expected period of admission as it relates to the
alien's ability to financially support for himself or herself during
the duration of the alien's stay, including:
(A) Whether the alien is applying for adjustment of status or
admission in a nonimmigrant or immigrant classification; and
(B) If the alien is seeking admission as a nonimmigrant, the
nonimmigrant classification and the anticipated period of temporary
stay.
(ii) [Reserved]
(7) An affidavit of support under section 213A of the Act, when
required under section 212(a)(4) of the Act, that meets the
requirements of section 213A of the Act and 8 CFR 213a--(i) Standard.
If the alien is required under sections 212(a)(4)(C) or (D) to submit
an affidavit of support under section 213A of the Act and 8 CFR part
213a, and submits such a sufficient affidavit of support, DHS will
consider the likelihood that the sponsor would actually provide the
statutorily-required amount of financial support to the alien, and any
other related considerations.
(A) Evidence. USCIS consideration includes but is not limited to
the following:
(1) The sponsor's annual income, assets, and resources;
(2) The sponsor's relationship to the applicant, including but not
limited to whether the sponsor lives with the alien; and
(3) Whether the sponsor has submitted an affidavit of support with
respect to other individuals.
(c) Heavily weighted factors. The factors below will weigh heavily
in a public charge inadmissibility determination. The mere presence of
any one heavily weighted factor does not, alone, make the alien more or
less likely than not to become a public charge.
(1) Heavily weighted negative factors. The following factors will
weigh heavily in favor of a finding that an alien is likely at any time
in the future to become a public charge:
(i) The alien is not a full-time student and is authorized to work,
but is unable to demonstrate current employment, recent employment
history, or a reasonable prospect of future employment;
(ii) The alien has received or has been certified or approved to
receive one or more public benefits, as defined in Sec. 212.21(b), for
more than 12 months in the aggregate within any 36-month period,
beginning no earlier than 36 months prior to the alien's application
for admission or adjustment of status on or after October 15, 2019;
(iii)(A) The alien has been diagnosed with a medical condition that
is likely to require extensive medical treatment or
institutionalization or that will interfere with the alien's ability to
provide for himself or herself, attend school, or work; and
(B) The alien is uninsured and has neither the prospect of
obtaining private health insurance, nor the financial resources to pay
for reasonably foreseeable medical costs related to such medical
condition; or
(iv) The alien was previously found inadmissible or deportable on
public charge grounds by an Immigration Judge or the Board of
Immigration Appeals.
(2) Heavily weighted positive factors. The following factors will
weigh heavily in favor of a finding that an alien is not likely to
become a public charge:
(i) The alien's household has income, assets, or resources, and
support (excluding any income from illegal activities, e.g., proceeds
from illegal gambling or drug sales, and any income from public
benefits as defined in Sec. 212.21(b)) of at least 250 percent of the
Federal Poverty Guidelines for the alien's household size;
(ii) The alien is authorized to work and is currently employed in a
legal industry with an annual income, excluding any income from illegal
activities such as proceeds from illegal gambling or drug sales, of at
least 250 percent of the Federal Poverty Guidelines for the alien's
household size; or
(iii) The alien has private health insurance, except that for
purposes of this paragraph (c)(2)(iii), private health insurance must
be appropriate for the expected period of admission, and does not
include health insurance for which the alien receives subsidies in the
form of premium tax credits under the Patient Protection and Affordable
Care Act, as amended.
(d) Treatment of benefits received before October 15, 2019. For
purposes of this regulation, DHS will consider, as a negative factor,
but not as a heavily weighted negative factor as described in paragraph
(c)(1) of this section, any amount of cash assistance for income
maintenance, including Supplemental Security Income (SSI), Temporary
Assistance for Needy Families (TANF), State and local cash assistance
programs that provide benefits for income maintenance (often called
``General Assistance'' programs), and programs (including Medicaid)
supporting aliens who are institutionalized for long-term care,
received, or certified for receipt, before October 15, 2019, as
provided under the 1999 Interim Field Guidance, also known as the 1999
Field Guidance on Deportability and Inadmissibility on Public Charge
Grounds. DHS will not consider as a negative factor any other public
benefits received, or certified for receipt, before October 15, 2019.
Sec. 212.23 Exemptions and waivers for public charge ground of
inadmissibility.
(a) Exemptions. The public charge ground of inadmissibility under
section 212(a)(4) of the Act does not apply, based on statutory or
regulatory authority, to the following categories of aliens:
(1) Refugees at the time of admission under section 207 of the Act
and at the time of adjustment of status to lawful permanent resident
under section 209 of the Act;
(2) Asylees at the time of grant under section 208 of the Act and
at the time of adjustment of status to lawful permanent resident under
section 209 of the Act;
(3) Amerasian immigrants at the time of application for admission
as described in sections 584 of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act of 1988, Public Law
100-202, 101 Stat. 1329-183, section 101(e) (Dec. 22, 1987), as
amended, 8 U.S.C. 1101 note;
(4) Afghan and Iraqi Interpreter, or Afghan or Iraqi national
employed by or on behalf of the U.S. Government as described in section
1059(a)(2) of the National Defense Authorization Act for Fiscal Year
2006 Public Law 109-163 (Jan. 6, 2006), as amended, and section 602(b)
of the Afghan Allies Protection Act of 2009, Public Law 111-8, title VI
[[Page 41505]]
(Mar. 11, 2009), as amended, 8 U.S.C. 1101 note, and section 1244(g) of
the National Defense Authorization Act for Fiscal Year 2008, as amended
Public Law 110-181 (Jan. 28, 2008);
(5) Cuban and Haitian entrants applying for adjustment of status
under section 202 of the Immigration Reform and Control Act of 1986
(IRCA), Public Law 99-603, 100 Stat. 3359 (Nov. 6, 1986), as amended, 8
U.S.C. 1255a note;
(6) Aliens applying for adjustment of status under the Cuban
Adjustment Act, Public Law 89-732 (Nov. 2, 1966), as amended, 8 U.S.C.
1255 note;
(7) Nicaraguans and other Central Americans applying for adjustment
of status under sections 202(a) and section 203 of the Nicaraguan
Adjustment and Central American Relief Act (NACARA), Public Law 105-
100, 111 Stat. 2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255 note;
(8) Haitians applying for adjustment of status under section 902 of
the Haitian Refugee Immigration Fairness Act of 1998, Public Law 105-
277, 112 Stat. 2681 (Oct. 21, 1998), as amended, 8 U.S.C. 1255 note;
(9) Lautenberg parolees as described in section 599E of the Foreign
Operations, Export Financing, and Related Programs Appropriations Act
of 1990, Public Law 101-167, 103 Stat. 1195, title V (Nov. 21, 1989),
as amended, 8 U.S.C. 1255 note;
(10) Special immigrant juveniles as described in section 245(h) of
the Act;
(11) Aliens who entered the United States prior to January 1, 1972,
and who meet the other conditions for being granted lawful permanent
residence under section 249 of the Act and 8 CFR part 249 (Registry);
(12) Aliens applying for or re-registering for Temporary Protected
Status as described in section 244 of the Act in accordance with
section 244(c)(2)(A)(ii) of the Act and 8 CFR 244.3(a);
(13) A nonimmigrant described in section 101(a)(15)(A)(i) and
(A)(ii) of the Act (Ambassador, Public Minister, Career Diplomat or
Consular Officer, or Immediate Family or Other Foreign Government
Official or Employee, or Immediate Family), in accordance with section
102 of the Act and 22 CFR 41.21(d);
(14) A nonimmigrant classifiable as C-2 (alien in transit to U.N.
Headquarters) or C-3 (foreign government official), 22 CFR 41.21(d);
(15) A nonimmigrant described in section 101(a)(15)(G)(i), (G)(ii),
(G)(iii), and (G)(iv), of the Act (Principal Resident Representative of
Recognized Foreign Government to International Organization, and
related categories), in accordance with section 102 of the Act and 22
CFR 41.21(d);
(16) A nonimmigrant classifiable as NATO-1, NATO-2, NATO-3, NATO-4
(NATO representatives), and NATO-6 in accordance with 22 CFR 41.21(d);
(17) An applicant for nonimmigrant status under section
101(a)(15)(T) of the Act, in accordance with 8 CFR 212.16(b);
(18) Except as provided in section 212.23(b), an individual who is
seeking an immigration benefit for which admissibility is required,
including but not limited to adjustment of status under section 245(a)
of the Act and section 245(l) of the Act and who:
(i) Has a pending application that sets forth a prima facie case
for eligibility for nonimmigrant status under section 101(a)(15)(T) of
the Act, or
(ii) Has been granted nonimmigrant status under section
101(a)(15)(T) of the Act, provided that the individual is in valid T
nonimmigrant status at the time the benefit request is properly filed
with USCIS and at the time the benefit request is adjudicated;
(19) Except as provided in Sec. 212.23(b),
(i) A petitioner for nonimmigrant status under section
101(a)(15)(U) of the Act, in accordance with section 212(a)(4)(E)(ii)
of the Act; or
(ii) An individual who is granted nonimmigrant status under section
101(a)(15)(U) of the Act in accordance with section 212(a)(4)(E)(ii) of
the Act, who is seeking an immigration benefit for which admissibility
is required, including, but not limited to, adjustment of status under
section 245(a) of the Act, provided that the individual is in valid U
nonimmigrant status at the time the benefit request is properly filed
with USCIS and at the time the benefit request is adjudicated.
(20) Except as provided in section 212.23(b), any alien who is a
VAWA self-petitioner under section 212(a)(4)(E)(i) of the Act;
(21) Except as provided in section 212.23(b), a qualified alien
described in section 431(c) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, 8 U.S.C. 1641(c), under section
212(a)(4)(E)(iii) of the Act;
(22) Applicants adjusting status who qualify for a benefit under
section 1703 of the National Defense Authorization Act, Public Law 108-
136, 117 Stat. 1392 (Nov. 24, 2003), 8 U.S.C. 1151 note (posthumous
benefits to surviving spouses, children, and parents);
(23) American Indians born in Canada determined to fall under
section 289 of the Act;
(24) Texas Band of Kickapoo Indians of the Kickapoo Tribe of
Oklahoma, Public Law 97-429 (Jan. 8, 1983);
(25) Nationals of Vietnam, Cambodia, and Laos applying for
adjustment of status under section 586 of Public Law 106-429 under 8
CFR 245.21;
(26) Polish and Hungarian Parolees who were paroled into the United
States from November 1, 1989 to December 31, 1991 under section 646(b)
of the IIRIRA, Public Law 104-208, Div. C, Title VI, Subtitle D (Sept.
30, 1996), 8 U.S.C. 1255 note; and
(27) Any other categories of aliens exempt under any other law from
the public charge ground of inadmissibility provisions under section
212(a)(4) of the Act.
(b) Limited Exemption. Aliens described in Sec. Sec. 212.23(a)(18)
through (21) must submit an affidavit of support as described in
section 213A of the Act if they are applying for adjustment of status
based on an employment-based petition that requires such an affidavit
of support as described in section 212(a)(4)(D) of the Act.
(c) Waivers. A waiver for the public charge ground of
inadmissibility may be authorized based on statutory or regulatory
authority, for the following categories of aliens:
(1) Applicants for admission as nonimmigrants under 101(a)(15)(S)
of the Act;
(2) Nonimmigrants admitted under section 101(a)(15)(S) of the Act
applying for adjustment of status under section 245(j) of the Act
(witnesses or informants); and
(3) Any other waiver of the public charge ground of inadmissibility
that is authorized by law or regulation.
PART 213--PUBLIC CHARGE BONDS
0
7. The authority citation for part 213 is revised to read as follows:
Authority: 8 U.S.C. 1103; 1183; 8 CFR part 2.
0
8. Revise the part heading to read as set forth above.
0
9. Revise Sec. 213.1 to read as follows:
Sec. 213.1 Adjustment of status of aliens on submission of a public
charge bond.
(a) Inadmissible aliens. In accordance with section 213 of the Act,
after an alien seeking adjustment of status has been found inadmissible
as likely at any time in the future to become a public charge under
section 212(a)(4) of the Act, DHS may allow the alien to submit a
public charge bond, if the alien is otherwise admissible, in accordance
with the requirements of 8 CFR 103.6 and this section. The public
charge
[[Page 41506]]
bond must meet the conditions set forth in 8 CFR 103.6 and this
section.
(b) Discretion. The decision to allow an alien inadmissible under
section 212(a)(4) of the Act to submit a public charge bond is in DHS's
discretion. If an alien has one or more heavily weighted negative
factors as defined in 8 CFR 212.22 in his or her case, DHS generally
will not favorably exercise discretion to allow submission of a public
charge bond.
(c) Public Charge Bonds. (1) Types. DHS may require an alien to
submit a surety bond, as listed in 8 CFR 103.6, or cash or any cash
equivalents specified by DHS. DHS will notify the alien of the type of
bond that may be submitted. All surety, cash, or cash equivalent bonds
must be executed on a form designated by DHS and in accordance with
form instructions. When a surety bond is accepted, the bond must comply
with requirements applicable to surety bonds in 8 CFR 103.6 and this
section. If cash or a cash equivalent, is being provided to secure a
bond, DHS must issue a receipt on a form designated by DHS.
(2) Amount. Any public charge bond must be in an amount decided by
DHS, not less than $8,100, annually adjusted for inflation based on the
Consumer Price Index for All Urban Consumers (CPI-U), and rounded up to
the nearest dollar. The bond amount decided by DHS may not be appealed
by the alien or the bond obligor.
(d) Conditions of the bond. A public charge bond must remain in
effect until USCIS grants a request to cancel the bond in accordance
with paragraph (g) of this section, whereby the alien naturalizes or
otherwise obtains U.S. citizenship, permanently departs the United
States, dies, the alien has reached his or her 5-year anniversary since
becoming a lawful permanent resident, or the alien changes immigration
status to one not subject to public charge ground of inadmissibility.
An alien on whose behalf a public charge bond has been submitted may
not receive any public benefits, as defined in 8 CFR 212.21(b), for
more than 12 months in the aggregate within any 364month period (such
that, for instance, receipt of two benefits in one month counts as two
months, after the alien's adjustment of status to that of a lawful
permanent resident, until the bond is cancelled in accordance with
paragraph (g) of this section. An alien must also comply with any other
conditions imposed as part of the bond.
(e) Submission. A public charge bond may be submitted on the
alien's behalf only after DHS notifies the alien and the alien's
representative, if any, that a bond may be submitted. The bond must be
submitted to DHS in accordance with the instructions of the form
designated by DHS for this purpose, with the fee prescribed in 8 CFR
103.7(b), and any procedures contained in the DHS notification to the
alien. DHS will specify the bond amount and any other conditions, as
appropriate for the alien and the immigration benefit being sought.
USCIS will notify the alien and the alien's representative, if any,
that the bond has been accepted, and will provide a copy to the alien
and the alien's representative, if any, of any communication between
the obligor and the U.S. government. An obligor must notify DHS within
30 days of any change in the obligor's or the alien's physical and
mailing address.
(f) Substitution. (1) Substitution Process. Either the obligor of
the bond previously submitted to DHS or a new obligor may submit a
substitute bond on the alien's behalf. The substitute bond must specify
an effective date. The substitute bond must meet all of the
requirements applicable to the initial bond as required by this section
and 8 CFR 103.6, and if the obligor is different from the original
obligor, the new obligor must assume all liabilities of the initial
obligor. The substitute bond must also cover any breach of the bond
conditions which occurred before DHS accepted the substitute bond, in
the event DHS did not learn of the breach until after DHS accepted the
substitute bond.
(2) Acceptance. Upon submission of the substitute bond, DHS will
review the substitute bond for sufficiency as set forth in this
section. If the substitute bond is sufficient DHS will cancel the bond
previously submitted to DHS, and replace it with the substitute bond.
If the substitute bond is insufficient, DHS will notify the obligor of
the substitute bond to correct the deficiency within the timeframe
specified in the notice. If the deficiency is not corrected within the
timeframe specified, the previously submitted bond will remain in
effect.
(g) Cancellation of the Public Charge Bond. (1) An alien or obligor
may request that DHS cancel a public charge bond if the alien:
(i) Naturalized or otherwise obtained United States citizenship;
(ii) Permanently departed the United States;
(iii) Died;
(iv) Reached his or her 5-year anniversary since becoming a lawful
permanent resident; or
(v) Obtained a different immigration status not subject to public
charge inadmissibility, as listed in 8 CFR 212.23, following the grant
of lawful permanent resident status associated with the public charge
bond.
(2) Permanent Departure Defined. For purposes of this section,
permanent departure means that the alien lost or abandoned his or her
lawful permanent resident status, whether by operation of law or
voluntarily, and physically departed the United States. An alien is
only deemed to have voluntarily lost lawful permanent resident status
when the alien has submitted a record of abandonment of lawful
permanent resident status, on the form prescribed by DHS, from outside
the United States, and in accordance with the form's instructions.
(3) Cancellation Request. A request to cancel a public charge bond
must be made by submitting a form designated by DHS, in accordance with
that form's instructions and the fee prescribed in 8 CFR 103.7(b). If a
request for cancellation of a public charge bond is not filed, the bond
shall remain in effect until the form is filed, reviewed, and a
decision is rendered. DHS may in its discretion cancel a public charge
bond if it determines that an alien otherwise meets the eligibility
requirements of paragraphs (g)(1) of this section.
(4) Adjudication and Burden of Proof. The alien and the obligor
have the burden to establish, by a preponderance of the evidence, that
one of the conditions for cancellation of the public charge bond listed
in paragraph (g)(1) of this section has been met. If DHS determines
that the information included in the cancellation request is
insufficient to determine whether cancellation is appropriate, DHS may
request additional information as outlined in 8 CFR 103.2(b)(8). DHS
must cancel a public charge bond if DHS determines that the conditions
of the bond have been met, and that the bond was not breached, in
accordance with paragraph (h) of this section. For cancellations under
paragraph (g)(1)(iv) of this section, the alien or the obligor must
establish that the public charge bond has not been breached during the
5-year period preceding the alien's fifth anniversary of becoming a
lawful permanent resident.
(5) Decision. DHS will notify the obligor, the alien, and the
alien's representative, if any, of its decision regarding the request
to cancel the public charge bond. When the public charge bond is
cancelled, the obligor is released from liability. If the public charge
bond has been secured by a cash deposit or a cash equivalent, DHS will
refund the cash deposit and any interest earned to the obligor
consistent with 8 U.S.C. 1363 and 8 CFR 293.1. If DHS denies the
request to cancel the bond,
[[Page 41507]]
DHS will notify the obligor and the alien, and the alien's
representative, if any, of the reasons why, and of the right of the
obligor to appeal in accordance with the requirements of 8 CFR part
103, subpart A. An obligor may file a motion pursuant to 8 CFR 103.5
after an unfavorable decision on appeal.
(h) Breach. (1) Breach and Claim in Favor of the United States. An
administratively final determination that a bond has been breached
creates a claim in favor of the United States. Such claim may not be
released or discharged by an immigration officer. A breach
determination is administratively final when the time to file an appeal
with the Administrative Appeals Office (AAO) pursuant to 8 CFR part
103, subpart A, has expired or when the appeal is dismissed or
rejected.
(2) Breach of Bond Conditions. (i) The conditions of the bond are
breached if the alien has received public benefits, as defined in 8 CFR
212.21(b), for more than 12 months in the aggregate within any 36-month
period (such that, for instance, receipt of two benefits in one month
counts as two months), after the alien's adjustment of status to that
of a lawful permanent resident and before the bond is cancelled under
paragraph (g) of this section. DHS will not consider any public
benefits, as defined in 8 CFR 212.21(b), received by the alien during
periods while an alien was present in the United States in a category
that is exempt from the public charge ground of inadmissibility or for
which the alien received a waiver of public charge inadmissibility, as
set forth in 8 CFR 212.21(b) and 8 CFR 212.23, and public benefits
received after the alien obtained U.S. citizenship, when determining
whether the conditions of the bond have been breached. DHS will not
consider any public benefits, as defined in 8 CFR 212.21 (b)(1) through
(b)(3), received by an alien who, at the time of receipt filing,
adjudication or bond breach or cancellation determination, is enlisted
in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B)
or 10 U.S.C. 504(b)(2), serving in active duty or in the Ready Reserve
component of the U.S. Armed Forces, or if received by such an
individual's spouse or child as defined in section 101(b) of the Act;
or
(ii) The conditions of the bond otherwise imposed by DHS as part of
the public charge bond are breached.
(3) Adjudication. DHS will determine whether the conditions of the
bond have been breached. If DHS determines that it has insufficient
information from the benefit-granting agency to determine whether a
breach occurred, DHS may request additional information from the
benefit-granting agency. If DHS determines that it has insufficient
information from the alien or the obligor, it may request additional
information as outlined in 8 CFR part 103 before making a breach
determination. If DHS intends to declare a bond breached based on
information that is not otherwise protected from disclosure to the
obligor, DHS will disclose such information to the obligor to the
extent permitted by law, and provide the obligor with an opportunity to
respond and submit rebuttal evidence, including specifying a deadline
for a response. DHS will send a copy of this notification to the alien
and the alien's representative, if any. After the obligor's response,
or after the specified deadline has passed, DHS will make a breach
determination.
(4) Decision. DHS will notify the obligor and the alien, and the
alien's representative, if any, of the breach determination. If DHS
determines that a bond has been breached, DHS will inform the obligor
of the right to appeal in accordance with the requirements of 8 CFR
part 103, subpart A. With respect to a breach determination for a
surety bond, the alien or the alien's representative, if any, may not
appeal the breach determination or file a motion.
(5) Demand for Payment. Demands for amounts due under the terms of
the bond will be sent to the obligor and any agent/co-obligor after a
declaration of breach becomes administratively final.
(6) Amount of Bond Breach and Effect on Bond. The bond must be
considered breached in the full amount of the bond.
(i) Exhaustion of administrative remedies. Unless an administrative
appeal is precluded by regulation, a party has not exhausted the
administrative remedies available with respect to a public charge bond
under this section until the party has obtained a final decision in an
administrative appeal under 8 CFR part 103, subpart A.
(ii) [Reserved]
PART 214--NONIMMIGRANT CLASSES
0
10. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643,
Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
0
11. Section 214.1 is amended by:
0
a. Adding paragraph (a)(3)(iv),
0
b. Removing the term, ``and'' in paragraph (c)(4)(iii);
The additions read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(3) * * *
(iv) Except where the nonimmigrant classification for which the
alien seeks to extend is exempt from section 212(a)(4) of the Act or
that section has been waived, as a condition for approval of extension
of status, the alien must demonstrate that he or she has not received
since obtaining the nonimmigrant status he or she seeks to extend one
or more public benefits as defined in 8 CFR 212.21(b), for more than 12
months in the aggregate within any 36-month period (such that, for
instance, receipt of two benefits in one month counts as two months).
For the purposes of this determination, DHS will only consider public
benefits received on or after October 15, 2019 for petitions or
applications postmarked (or, if applicable, submitted electronically)
on or after that date.
* * * * *
PART 245--ADJUSTMENT OF STATUS TO THAT OF A PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
12. The authority citation for part 245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100,
section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112
Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.
0
13. Amend Sec. 245.4 by redesignating the undesignated text as
paragraph (a) and adding paragraph (b) to read as follows:
Sec. 245.4 Documentary requirements.
* * * * *
(b) For purposes of public charge determinations under section
212(a)(4) of the Act and 8 CFR 212.22, an alien who is seeking
adjustment of status under this part must submit a declaration of self-
sufficiency on a form designated by DHS, in accordance with form
instructions.
0
14. In Sec. 245.23, revise paragraph (c)(3) to read as follows:
Sec. 245.23 Adjustment of aliens in T nonimmigrant classification.
* * * * *
(c) * * *
(3) The alien is inadmissible under any applicable provisions of
section 212(a) of the Act and has not obtained a waiver of
inadmissibility in accordance with 8 CFR 212.18 or
[[Page 41508]]
214.11(j). Where the alien establishes that the victimization was a
central reason for the applicant's unlawful presence in the United
States, section 212(a)(9)(B)(iii) of the Act is not applicable, and the
applicant need not obtain a waiver of that ground of inadmissibility.
The alien, however, must submit with the Form I-485 evidence sufficient
to demonstrate that the victimization suffered was a central reason for
the unlawful presence in the United States. To qualify for this
exception, the victimization need not be the sole reason for the
unlawful presence but the nexus between the victimization and the
unlawful presence must be more than tangential, incidental, or
superficial.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
0
15. The authority citation for part 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
0
16. Section 248.1 is amended by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (e) as paragraphs (c) through
(f), respectively; and
0
c. Adding a new paragraph (b); and
0
d. Revising newly redesignated paragraph (c)(4).
The revisions and additions read as follows:
Sec. 248.1 Eligibility.
(a) General. Except for those classes enumerated in Sec. 248.2 of
this part, any alien lawfully admitted to the United States as a
nonimmigrant, including an alien who acquired such status in accordance
with section 247 of the Act who is continuing to maintain his or her
nonimmigrant status, may apply to have his or her nonimmigrant
classification changed to any nonimmigrant classification other than
that of a spouse or fiance(e), or the child of such alien, under
section 101(a)(15)(K) of the Act or as an alien in transit under
section 101(a)(15)(C) of the Act. Except where the nonimmigrant
classification to which the alien seeks to change is exempted by law or
regulation from section 212(a)(4) of the Act, as a condition for
approval of a change of nonimmigrant status, the alien must demonstrate
that he or she has not received since obtaining the nonimmigrant status
from which he or she seeks to change, public benefits, as described in
8 CFR 212.21(b), for more than 12 months in the aggregate within any
36-month period (such that, for instance, receipt of two benefits in
one month counts as two months). DHS will only consider public benefits
received on or after October 15, 2019 for petitions or applications
postmarked (or, if applicable, submitted electronically) on or after
that date . An alien defined by section 101(a)(15)(V) or 101(a)(15)(U)
of the Act may be accorded nonimmigrant status in the United States by
following the procedures set forth in 8 CFR 214.15(f) and 214.14,
respectively.
(b) Decision in change of status proceedings. Where an applicant or
petitioner demonstrates eligibility for a requested change of status,
it may be granted at the discretion of DHS. There is no appeal from the
denial of an application for change of status.
(c) * * *
(4) As a condition for approval, an alien seeking to change
nonimmigrant classification must demonstrate that he or she has not
received, since obtaining the nonimmigrant status from which he or she
seeks to change, one or more public benefits, as defined in 8 CFR
212.21(b), for more than 12 months in the aggregate within any 36-month
period (such that, for instance, receipt of two benefits in one month
counts as two months). For purposes of this determination, DHS will
only consider public benefits received on or after October 15, 2019 for
petitions or applications postmarked (or, if applicable, submitted
electronically) on or after that date. This provision does not apply to
classes of nonimmigrants who are explicitly exempt by law or regulation
from section 212(a)(4) of the Act.
* * * * *
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-17142 Filed 8-12-19; 8:45 am]
BILLING CODE 9111-97-P