[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Proposed Rules]
[Pages 47025-47032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17837]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / 
Proposed Rules  

[[Page 47025]]



DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Part 212

[CIS No. 2696-21; DHS Docket No. USCIS-2021-0013]
RIN 1615-AC74


Public Charge Ground of Inadmissibility

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Advance notice of proposed rulemaking and notice of virtual 
public listening sessions.

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SUMMARY: Under provisions of the Immigration and Nationality Act, the 
Department of Homeland Security (DHS) administers the public charge 
ground of inadmissibility as it pertains to applicants for admission 
and adjustment of status. DHS is publishing this advance notice of 
proposed rulemaking (ANPRM) to seek broad public feedback on the public 
charge ground of inadmissibility that will inform its development of a 
future regulatory proposal. DHS intends to propose a rule that will be 
fully consistent with law; that will reflect empirical evidence to the 
extent relevant and available; that will be clear, fair, and 
comprehensible for officers as well as for noncitizens and their 
families; that will lead to fair and consistent adjudications and thus 
avoid unequal treatment of the similarly situated; and that will not 
otherwise unduly impose barriers on noncitizens seeking admission to or 
adjustment of status in the United States. DHS also intends to ensure 
that its regulatory proposal does not cause undue fear among immigrant 
communities or present other obstacles to immigrants and their families 
accessing public services available to them, particularly in light of 
the COVID-19 pandemic and the resulting long-term public health and 
economic impacts in the United States. DHS welcomes input from 
individuals, organizations, government entities and agencies, and all 
other interested members of the public. Comments will be most helpful 
if they clearly identify the questions to which they are responding, 
offer concrete proposals, and/or articulate support or opposition to 
current or prior DHS public charge policies, and cite to relevant laws, 
regulations, data, and/or studies. DHS is also providing notice of 
public virtual listening sessions on the public charge ground of 
inadmissibility and this ANPRM.

DATES: Written comments and related material must be submitted on or 
before October 22, 2021.
    Listening Sessions Dates and Themes: The virtual public listening 
sessions (which will be opportunities for the public to speak directly 
to DHS on the questions raised in this ANPRM) will be held on--

------------------------------------------------------------------------
                 Date/time                              Theme
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September 14, 2021 at 2:00 pm ET..........  Listening Session for the
                                             General Public.
October 5, 2021 at 2:00 pm ET.............  State, Territorial, Local,
                                             and Tribal Benefits
                                             Granting Agencies and
                                             Nonprofit Organizations
                                             Only.
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    Registration to comment date: For an opportunity to provide oral 
comments during the virtual public listening sessions, you must 
register by 12:00 p.m. (noon) Eastern Time (ET) on the Sunday before 
the listening session in question. For registration instructions, see 
the Public Participation section below.

ADDRESSES: You may submit comments on this ANPRM, identified by DHS 
Docket No. USCIS-2021-0013, through the Federal eRulemaking Portal: 
https://www.regulations.gov. Follow the website instructions for 
submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to DHS or U.S. Citizenship and 
Immigration Services (USCIS) officials, will not be considered comments 
on the ANPRM and may not be considered by DHS in informing future 
rulemaking. Please note that DHS and USCIS cannot accept any comments 
that are hand-delivered or couriered. In addition, USCIS cannot accept 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs and USB drives. USCIS is not accepting mailed comments. If 
you cannot submit your comment by using https://www.regulations.gov, 
please contact Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, by telephone at 
(240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: Andrew Parker, Branch Chief, Residence 
and Admissibility Branch, Residence and Naturalization Division, Office 
of Policy and Strategy, U.S. Citizenship and Immigration Services, DHS, 
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 
721-3000 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
    A. Legal Authority
    B. Regulatory History
III. Request for Information
    A. Purpose and Definition of Public Charge
    B. Prospective Nature of the Public Charge Inadmissibility 
Determination
    C. Statutory Factors
    D. Affidavit of Support Under Section 213A of the INA
    E. Other Factors to Consider
    F. Public Benefits Considered
    G. Previous Rulemaking Efforts
    H. Bond and Bond Procedures
    I. Specific Questions for State, Territorial, Local, and Tribal 
Benefit Granting Agencies and Nonprofit Organizations

Table of Abbreviations

AFM--USCIS Adjudicator's Field Manual
ANPRM--Advance Notice of Proposed Rulemaking
BIA--Board of Immigration Appeals
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
DOS--Department of State
DOJ--Department of Justice
FAM--Department of State Foreign Affairs Manual
HCV--Housing Choice Voucher
HSA--Homeland Security Act
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRCA--Immigration Reform and Control Act
LPR--Lawful Permanent Resident

[[Page 47026]]

NPRM--Notice of Proposed Rulemaking
PRWORA--Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996
SNAP--Supplemental Nutrition Assistance Program
SSI--Supplemental Security Income
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

    DHS invites all interested parties to submit written data, views, 
comments, and arguments on all aspects of this ANPRM. Comments must be 
submitted in English, or an English translation must be provided. DHS 
welcomes comments on any aspects discussed in this ANPRM and has 
identified in Section ``III. Request for Information'' of this document 
the matters on which DHS will find public comments most helpful to its 
future rulemaking.
    Registration for listening sessions: To register and receive 
information on how to attend the virtual public listening sessions, 
please go to: https://www.uscis.gov/outreach/upcoming-national-engagements.
    Instructions for comments: All submissions may be posted, without 
change, to the Federal eRulemaking Portal at https://www.regulations.gov, and may include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to DHS. 
DHS may withhold information provided in comments from public viewing 
that it determines may impact the privacy of an individual or is 
offensive. For additional information, please read the Privacy and 
Security Notice available at https://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to https://www.regulations.gov, referencing 
DHS Docket No. USCIS-2021-0013. You may also sign up for email alerts 
on the online docket to be notified when comments are posted or a final 
rule is published.

II. Background

A. Legal Authority

    The authority of the Secretary of Homeland Security (Secretary) for 
issuing regulations is found in various sections of the Immigration and 
Nationality Act (INA, 8 U.S.C. 1101 et seq.), and the Homeland Security 
Act of 2002 (HSA). \1\ Section 102 of the HSA, 6 U.S.C. 112, and 
section 103 of the INA, 8 U.S.C. 1103, charge the Secretary with the 
administration and enforcement of the immigration laws of the United 
States. In addition to establishing the Secretary's general authority 
for the administration and enforcement of immigration laws, section 103 
of the INA, 8 U.S.C. 1103, enumerates various related authorities, 
including the Secretary's authority to establish such regulations, 
prescribe such forms of bond, issue such instructions, and perform such 
other acts as the Secretary deems necessary for carrying out such 
authority.
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    \1\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. 
(Nov. 25, 2002).
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    Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), provides that an 
applicant for a visa, admission, or adjustment of status is 
inadmissible if he or she is likely at any time to become a public 
charge. The public charge ground of inadmissibility, therefore, applies 
to anyone applying for a visa to come to the United States temporarily 
or permanently, for admission to the United States, or for adjustment 
of status to that of a lawful permanent resident.\2\ Some categories of 
noncitizens are exempt from the public charge inadmissibility ground, 
while others may apply for a waiver of the public charge 
inadmissibility ground.\3\
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    \2\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
    \3\ See INA section 245(j), 8 U.S.C. 1255(j); 8 CFR 245.11; INA 
section 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B); INA 212(d)(3)(A), 8 
U.S.C. 1182(d)(3)(A).
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    The INA does not define the term ``public charge.'' It does, 
however, specify that when determining whether a noncitizen is likely 
at any time to become a public charge, consular officers and 
immigration officers must, at a minimum, consider the noncitizen's age; 
health; family status; assets, resources, and financial status; and 
education and skills.\4\ Additionally, section 212(a)(4)(B)(ii) of the 
INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits the consular officer or the 
immigration officer to consider any Affidavit of Support Under Section 
213A of the INA submitted on the applicant's behalf when determining 
whether the applicant is likely at any time to become a public 
charge.\5\ Most noncitizens seeking family-based immigrant visas or 
adjustment of status, and some noncitizens seeking employment-based 
immigrant visas or adjustment of status, must submit a sufficient 
Affidavit of Support Under Section 213A of the INA in order to avoid 
being found inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4).\6\
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    \4\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \5\ When required, the applicant must submit an Affidavit of 
Support Under Section 213A of the INA (Form I-864 or Form I-864EZ).
    \6\ See INA section 212(a)(4)(C), (D), 8 U.S.C. 1182(a)(4)(C), 
(D).
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    In general, under section 213 of the INA, 8 U.S.C. 1183, the 
Secretary has the discretion to admit into the United States a 
noncitizen who is determined to be inadmissible based only on the 
public charge ground upon the giving of a suitable and proper bond or 
undertaking approved by the Secretary.\7\ The purpose of issuing a 
public charge bond is to ensure that the noncitizen will not become a 
public charge in the future.\8\ Since the introduction of the Affidavit 
of Support Under Section 213A of the INA, the use of public charge 
bonds has decreased, and USCIS does not currently administer a public 
charge bond process.\9\
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    \7\ See INA section 213, 8 U.S.C. 1183.
    \8\ See Matter of Viado, 19 I&N Dec. 252 (BIA 1985).
    \9\ See Adjudicator's Field Manual (AFM) Ch. 61.1(b), available 
at https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm61-external.pdf (last visited June 4, 2021).
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    Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of 
applicants for admission, including admissibility determinations of 
such applicants.
    Section 245 of the INA, 8 U.S.C. 1255, generally establishes 
eligibility criteria for adjustment of status to that of a lawful 
permanent resident.

B. Regulatory History

    The public charge ground of inadmissibility has been the subject of 
numerous judicial and administrative decisions, as well as 
administrative guidance and regulations. On May 26, 1999, soon after 
enactment of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), which amended the public charge 
ground of inadmissibility,\10\ INS issued Interim Field Guidance on 
Deportability and Inadmissibility on Public Charge Grounds (1999 
Interim Field Guidance).\11\ This guidance identified

[[Page 47027]]

how the agency would determine if a person is likely to become a public 
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), for 
admission and adjustment of status purposes, and whether a person is 
deportable as a public charge under section 237(a)(5) of the INA, 8 
U.S.C. 1227(a)(5). INS proposed promulgating these policies as 
regulations in a proposed rule issued on May 26, 1999, but no final 
rule was issued.\12\ The Department of State (DOS) also issued a cable 
to its consular officers at that time implementing similar guidance for 
visa adjudications, and similarly updated its Foreign Affairs Manual 
(FAM).\13\ Until 2019, INS and later, USCIS, followed the 1999 Interim 
Field Guidance in their adjudications. DOS followed its public charge 
guidance as set forth in the FAM.\14\
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    \10\ Public Law 104-208, div. C, 110 Stat 3009-546. DHS notes 
that a few months after IIRIRA was enacted, Congress enacted the 
Personal Responsibility and Work Opportunity Reconciliation Act of 
1996 (PRWORA), Public Law 104-193, 11 Stat. 2105, which included a 
statement of national policy regarding immigration and welfare 
generally. The statement provides, among other things, that ``it 
continues to be the immigration policy of the United States that 
aliens within the Nation's borders not depend on public resources to 
meet their needs, but rather rely on their own capabilities and the 
resources of their families, their sponsors, and private 
organizations, and the availability of public benefits not 
constitute an incentive for immigration to the United States.'' See 
8 U.S.C. 1601.
    \11\ 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.
    \12\ See Inadmissibility and Deportability on Public Charge 
Grounds, 64 FR 28676 (May 26, 1999).
    \13\ See 9 FAM 40.41.
    \14\ See 9 FAM 302.8-2(B)(2), Determining ``Totality of 
Circumstances,'' (g) Public Charge Bonds, available at https://fam.state.gov/fam/09fam/09fam030208.html. Note that on January 3, 
2018, DOS amended its FAM guidance, which retained the definitions 
and framework from the prior guidance, but changed the manner in 
which DOS evaluated the Affidavit of Support Under Section 213A of 
the INA as well as how it considered the receipt of non-cash 
benefits by applicants, sponsors, and family members.
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    In August 2019, DHS issued a final rule titled Inadmissibility on 
Public Charge Grounds (2019 Final Rule).\15\ The 2019 Final Rule 
redefined the term public charge to mean ``an alien who receives one or 
more public benefits, as defined in [the 2019 Final 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).'' \16\ It also defined the term public benefit to include cash 
assistance for income maintenance (other than tax credits), 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.\17\ The 
applicability of some provisions of the 2019 Final Rule was limited in 
certain ways, including with respect to active duty military members 
and their spouses and children, and for children in certain 
contexts.\18\
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    \15\ See 84 FR 41292 (Aug. 14, 2019); see also 84 FR 52357 (Oct. 
2, 2019) (making corrections). In October 2019, DOS issued a 
conforming rule. See 84 FR 54996 (Oct. 11, 2019).
    \16\ See 84 FR 41292 (Aug. 14, 2019).
    \17\ See 84 FR 41292 (Aug. 14, 2019).
    \18\ See 84 FR 41292 (Aug. 14, 2019). For example, under that 
rule, public benefits did not include benefits received by a person 
who, at the time of receipt, filing the application for admission or 
adjustment of status, or adjudication, was enlisted in the U.S. 
Armed Forces, serving in active duty or in the Ready Reserve 
component of the U.S. Armed Forces, or benefits received by the 
spouse or child of such a service member. Moreover, under that rule, 
public benefits did not include benefits received by children of 
U.S. citizens whose lawful admission for permanent residence would 
result in automatic acquisition of U.S. citizenship.
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    The 2019 Final Rule also established an evidentiary framework for 
USCIS' consideration of public charge inadmissibility and explained how 
DHS would interpret the minimum statutory factors for determining 
whether, ``in the opinion of'' \19\ the officer, a noncitizen is likely 
at any time to become a public charge. Specifically, for adjustment of 
status applications before USCIS, DHS created a new Declaration of 
Self-Sufficiency, Form I-944, that collected information from 
applicants relevant to the 2019 Final Rule's approach to the statutory 
factors.\20\
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    \19\ See INA section 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
    \20\ The Declaration of Self-Sufficiency requirement only 
applied to adjustment of status applicants and not to applicants for 
admission at a port of entry.
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    The 2019 Final Rule also revised DHS regulations governing the 
Secretary's discretion to accept a public charge bond under section 213 
of the INA, 8 U.S.C. 1183, for those seeking adjustment of status.\21\
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    \21\ See 84 FR 41292 (Aug. 14, 2019). The 2019 Final Rule also 
contained provisions that would render certain nonimmigrants 
ineligible for extension of stay or change of status if they 
received one or more public benefits for more than 12 months in the 
aggregate within any 36-month period since obtaining the 
nonimmigrant status they sought to extend or change.
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    The 2019 Final Rule was preliminarily enjoined by U.S. district 
courts in the Southern District of New York, District of Maryland, 
Northern District of California, Eastern District of Washington, and 
Northern District of Illinois.\22\ Following a series of stays of the 
preliminary injunctions,\23\ DHS began applying the Final Rule on 
February 24, 2020. Since that time, preliminary injunctions against the 
Final Rule were affirmed by the Second, Seventh, and Ninth Circuit 
Courts of Appeals.\24\ On November 2, 2020, the U.S. District Court for 
the Northern District of Illinois issued a Rule 54(b) judgment vacating 
the rule on the merits.\25\ On November 3, 2020, the Seventh Circuit 
granted an administrative stay of the district court's judgment and, on 
November 19, 2020, the Seventh Circuit granted a stay pending appeal. 
On March 9, 2021, DHS moved to dismiss its appeal before the Seventh 
Circuit, the Seventh Circuit dismissed the appeal, and the Rule 54(b) 
judgment went into effect.
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    \22\ See City and Cnty. of San Francisco v. USCIS, 408 F. Supp. 
3d 1057 (N.D. Cal. 2019); Cook County, Ill. v. McAleenan, 417 F. 
Supp. 3d 1008 (N.D. Ill. 2019); Casa de Md. v. Trump, 414 F. Supp. 
3d 760 (D. Md. 2019) Make the Road New York v. Cuccinelli, 419 F. 
Supp. 3d 647 (S.D.N.Y. 2019); Wash. v. DHS, 408 F. Supp. 3d 1191 
(E.D. Wash. 2019).
    \23\ See Wolf v. Cook County, 140 S. Ct. 681 (2020) (staying 
preliminary injunction from the Northern District of Illinois); DHS 
v. New York, 140 S. Ct. 599 (2020) (staying preliminary injunctions 
from the Southern District of New York); City and Cnty. of San 
Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019) (staying 
preliminary injunctions from the Eastern District of Washington and 
Northern District of California); CASA de Md. v. Trump, No. 19-2222 
(4th Cir. Dec. 9, 2019) (staying preliminary injunction from the 
District of Maryland).
    \24\ See New York v. DHS, 969 F.3d 42 (2d Cir. 2020); Cook 
County, Ill. v. Wolf, 962 F.3d 208 (7th Cir. 2020); City and Cnty. 
of San Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2020); see also 
Casa de Md. v. Trump, 981 F.3d 311 (4th Cir. 2020) (granting en banc 
review and vacating a panel opinion that had reversed a preliminary 
injunction). In July 2020, the Southern District of New York issued 
a second preliminary injunction against the Final Rule for reasons 
related to the COVID-19 pandemic, which the Second Circuit later 
stayed. See New York v. DHS, 475 F. Supp. 3d 208 (S.D.N.Y. 2020), 
injunction stayed, 974 F.3d 210 (2d Cir. 2020).
    \25\ See Cook County, Ill. v. Wolf, No. 19-C-6334, 2020 WL 
6393005 (N.D. Ill. Nov. 2, 2020).
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    As a result of the judgment, DHS ceased to apply the 2019 Final 
Rule and instead reverted to the policy that was in effect prior to 
that rule, i.e., the 1999 Interim Field Guidance. DHS also removed the 
regulatory text that DHS had promulgated in the 2019 Final Rule and 
that had been vacated by the district court, thereby restoring the 
regulatory text to appear as it did prior to the 2019 Final Rule's 
issuance.\26\
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    \26\ 86 FR 14221 (Mar. 15, 2021).
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    DHS notes that on February 2, 2021, President Biden issued 
Executive Order 14012, Restoring Faith in Our Legal Immigration System 
and Strengthening Integration and Inclusion Efforts for New 
Americans.\27\ In the Executive Order, the President declared a 
national policy ``to ensure that our laws and policies encourage full 
participation by immigrants, including refugees, in our civic life; 
that immigration processes and other benefits are delivered effectively 
and efficiently; and that the Federal Government eliminates sources of 
fear and other barriers that prevent immigrants from accessing 
government services available to them.'' \28\ The President also 
specifically directed a review of public charge policies by the 
Secretary of State, the Attorney General, and the Secretary of Homeland 
Security, in consultation with the heads of relevant agencies.
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    \27\ 86 FR 8277 (Feb. 5, 2021).
    \28\ 86 FR 8277 (Feb. 5, 2021).

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[[Page 47028]]

III. Request for Information

    DHS is publishing this ANPRM to seek broad public feedback on the 
public charge ground of inadmissibility that will inform DHS's 
consideration of further rulemaking action. DHS is in the process of 
preparing a regulatory proposal that will be fully consistent with law; 
that will reflect empirical evidence to the extent relevant and 
available; that carefully considers public comments; that will be 
clear, fair, and comprehensible for officers as well as for noncitizens 
and their families; that will lead to fair and consistent adjudications 
and thus avoid unequal treatment of similarly situated individuals; and 
that will not otherwise unduly impose barriers for noncitizens seeking 
admission or adjustment of status in the United States.\29\ DHS also 
intends to ensure that any regulatory proposal does not unduly 
interfere with the receipt of public benefits by applicants and their 
families, particularly in light of the COVID-19 pandemic and the 
resulting long-term public health and economic impacts in the United 
States.\30\
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    \29\ See Executive Order 14012 (Restoring Faith in Our Legal 
Immigration System and Strengthening Integration and Inclusion 
Efforts for New Americans), 86 FR 8277 (Feb. 5, 2021).
    \30\ See, e.g., International Labor Organization, Food and 
Agricultural Organization of the United Nations, International Fund 
for Agricultural Development, and World Health Organization Joint 
Statement, ``Impact of COVID-19 on people's livelihoods, their 
health and our food systems'' (2020), https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people's-livelihoods-their-health-
and-our-food-systems (last visited Jul. 14, 2021); Pew Research 
Center, A Year Into the Pandemic, Long-Term Financial Impact Weighs 
Heavily on Many Americans (2021), https://www.pewresearch.org/social-trends/wp-content/uploads/sites/3/2021/03/PSD_03.05.21.covid_.impact_fullreport.pdf (last visited Jul. 14, 
2021); Health Affairs, Spillover Effects of the COVID-19 Pandemic 
Could Drive Long-Term Health Consequences for Non-COVID-19 Patients 
(2020), https://www.healthaffairs.org/do/10.1377/hblog20201020.566558/full/ (last visited Jul. 14, 2021).
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    DHS welcomes and will carefully consider public input on all 
aspects of public charge inadmissibility in its ongoing rulemaking 
efforts in this area, consistent with its broad authority to administer 
the U.S. immigration system. In addition to inviting written comments, 
DHS is providing the public with the opportunity to participate in 
virtual public listening sessions. For information about those 
sessions, please see the Public Participation and Dates sections of 
this document.

A. Purpose and Definition of Public Charge

1. Background
    As noted, the INA does not define the term ``public charge,'' but 
specifies that consular and immigration officers must, at a minimum, 
consider the noncitizen's age; health; family status; assets, 
resources, and financial status; and education and skills when making 
public charge inadmissibility determinations.\31\
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    \31\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
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    As part of this rulemaking, DHS expects to codify a definition of 
public charge that (1) is consistent with law; (2) is easily 
understood; (3) is straightforward to apply in a fair, consistent, and 
predictable manner; (4) reflects consideration of relevant national 
policies; and (5) will not unduly impose barriers for noncitizens 
seeking admission or adjustment of status in the United States.
2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic described 
above, and would particularly benefit from commenters addressing one or 
more of the following questions, including the reasoning, data, and 
information behind their comments:
    1. How should DHS define the term ``public charge''?
    2. What data or evidence is available and relevant to how DHS 
should define the term ``public charge''?
    3. How might DHS define the term ``public charge'', or otherwise 
draft its rule, so as to minimize confusion and uncertainty that could 
lead otherwise-eligible individuals to forgo the receipt of public 
benefits?
    4. What national policies, including the policies referenced 
throughout this ANPRM, policies related to controlling paperwork 
burdens on the public, and policies related to promoting the public 
health and general well-being, should DHS consider when defining the 
term ``public charge'' and administering the statute more generally?
    5. What potentially disproportionate negative impacts on 
underserved communities (e.g., people of color, persons with 
disabilities) could arise from the definition of ``public charge'' and 
how could DHS avoid or mitigate them?
    6. What tools and approaches can DHS use to ensure that future 
rulemaking is appropriately informed by available evidence? \32\
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    \32\ Consistent with Executive Orders 12866 and 13563, DHS is 
committed to evidence-based policymaking. DHS is aware of at least 
one recent attempt to use available data and machine-learning tools 
to estimate the probability of a noncitizen becoming a public charge 
(as that term was defined under the 2019 Final Rule). See Mitra 
Akhtari et al., Estimating the Likelihood of Becoming a ``Public 
Charge,'' N.Y.U. J. Legis. & Pub. Pol'y Quorum (Aug. 2, 2021), 
https://nyujlpp.org/quorum/estimating-the-empirical-likelihood-of-becoming-a-public-charge/ (accessed Aug. 4, 2021). DHS welcomes 
comments on the approach described in that paper; alternative 
approaches that may appropriately leverage available evidence and 
tools; and the potential implications of such approaches for this 
rulemaking.
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B. Prospective Nature of the Public Charge Inadmissibility 
Determination

1. Background
    As noted in the 1999 Interim Field Guidance, the existing test for 
adjudicating public charge inadmissibility ``has been developed in 
several Service, BIA, and Attorney General decisions and has been 
codified in the Service regulations implementing the legalization 
provisions of the Immigration Reform and Control Act of 1986. These 
decisions and regulations, and section 212(a)(4) itself, create a 
`totality of the circumstances' test.'' \33\ The vacated 2019 Final 
Rule also required that the public charge inadmissibility determination 
``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.'' 
\34\ Under the vacated 2019 Final Rule, at a minimum, officers were to 
consider all of the mandatory factors set forth in the statute, as well 
as the noncitizen's prospective immigration status and expected period 
of admission, and (where applicable) a sufficient Affidavit of Support 
Under Section 213A of the INA.\35\
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    \33\ See 64 FR 28689, 28690 (May 26, 1999).
    \34\ See 84 FR 41292, 41502 (Aug. 14, 2019).
    \35\ See 84 FR 41292, 41423 (Aug. 14, 2019).
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    Through a future rulemaking, DHS may seek to clarify how officers 
should consider a noncitizen's past and present circumstances in 
determining the likelihood that they will become a public charge at any 
time in the future.
2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic described 
above, but would particularly benefit from commenters addressing one or 
more of the following questions, including the reasoning, data, and 
information that inform their comments:

[[Page 47029]]

1. To the extent that DHS considers a noncitizen's past or current 
receipt of public benefits, for what period of time before the public 
charge inadmissibility determination should DHS consider the 
noncitizen's receipt of public benefits? Why is that time period 
relevant?

C. Statutory Factors

1. Background
    Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), states 
that DHS must, at a minimum, consider the noncitizen's age; health; 
family status; assets, resources, and financial status; and education 
and skills.\36\ DHS may also consider any Affidavit of Support under 
Section 213A of the INA, which is described below in Section D.\37\
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    \36\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \37\ See INA section 212(a)(4)(B)(ii), 8 U.S.C. 
1182(a)(4)(B)(ii).
---------------------------------------------------------------------------

    In the 1999 Interim Field Guidance, the former INS noted that 
officers must consider the mandatory statutory factors, as well as any 
Affidavit of Support Under Section 213A of the INA submitted, and that 
``[e]very denial order based on public charge must reflect 
consideration of each of these factors and specifically articulate the 
reasons for the officer's determination.'' \38\ The guidance suggested 
that factors would be either positive or negative,\39\ but did not 
explain what evidence officers should consider in evaluating these 
factors listed in section 212(a)(4)(B) of the INA, 8 U.S.C. 
1182(a)(4)(B), or the weight to be given to a particular factor, in the 
totality of the circumstances.\40\
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    \38\ See 64 FR 28689, 28689-90 (May 26, 1999).
    \39\ See 64 FR 28689, 28689-90 (May 26, 1999).
    \40\ See 64 FR 28689, 28689-90 (May 26, 1999). As explained more 
fully elsewhere in this document, the 1999 Interim Field Guidance 
included consideration of the past and present receipt of cash 
assistance for income maintenance and noted that less weight would 
be assigned the longer ago the benefits were received. 64 FR at 
28690. The 1999 Interim Field Guidance also noted that applicants 
who received cash assistance for income maintenance could overcome 
such receipt by being employed full-time or having a sufficient 
Affidavit of Support Under Section 213A of the INA. 64 FR at 28690.
---------------------------------------------------------------------------

    In the vacated 2019 Final Rule, DHS also required officers to 
consider the mandatory statutory factors, as well as a sufficient 
Affidavit of Support Under Section 213A of the INA, if submitted, in 
the totality of the circumstances, when assessing an applicant's 
likelihood of becoming a public charge at any time in the future.\41\ 
That rule provided certain standards for officers to use in assessing 
each factor and also identified evidence that USCIS deemed relevant for 
the consideration of these factors.\42\
---------------------------------------------------------------------------

    \41\ See 84 FR 41307. As explained more fully elsewhere, the 
rule also required consideration of an additional factor not 
referenced in the statute.
    \42\ See 84 FR 41292 (Aug. 14, 2019).
---------------------------------------------------------------------------

    Through a future rulemaking, DHS may seek to clarify how officers 
should consider the statutory factors in making a public charge 
inadmissibility determination, as well as any other factors relevant to 
assessing an applicant's likelihood of becoming a public charge at any 
time.
2. Questions for the Public
    DHS welcomes public comment on the topic described above, but would 
particularly benefit from commenters addressing one or more of the 
following questions including the reasoning, data, and information 
behind their comments:
    1. Which factors (whether statutory factors or any other relevant 
factors identified by the commenter) are most predictive of whether a 
noncitizen is likely (or is not likely) to become a public charge? To 
the extent that data exist on this question, how can DHS use such data 
to improve public charge policymaking and adjudication?
    2. How can DHS address the potential for perceived or actual 
unfairness or discrimination in public charge inadmissibility 
adjudications, whether due to cognitive, racial, or other biases; 
arbitrariness; variations in outcomes across cases with similar facts; 
or other reasons?
    3. What kinds of tools (in regulation or policy guidance) could DHS 
provide to the public and adjudicators to make the totality of the 
circumstances determination more predictable and less subject to 
variation in different cases presenting similar facts?
    4. Should DHS give any more or less consideration to any one or 
more of the statutory factors, the Affidavit of Support Under Section 
213A of the INA, or any additional factors DHS may add through the 
rulemaking process in a public charge inadmissibility determination?
    5. In the adjustment of status context, how should DHS request the 
necessary information to consider the mandatory statutory factors for 
each adjudication, without imposing undue paperwork burdens on the 
public and adjudicators?
a. Age
    1. How should an applicant's age be considered as part of the 
public charge inadmissibility determination?
b. Health
    1. How should DHS define health for the purposes of a public charge 
inadmissibility determination?
    2. Should DHS consider disabilities and/or chronic health 
conditions as part of the health factor? If yes, how should DHS 
consider these conditions and why?
    3. How should the Rehabilitation Act of 1973's prohibition of 
discrimination on the basis of disability be considered in DHS's 
analysis of the health factor? \43\
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    \43\ Note that under Executive Order 12250, DOJ is charged with 
coordinating the implementation and enforcement by Executive 
agencies of Section 504 of the Rehabilitation Act.
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    4. How should DHS consider the Report of Medical Examination and 
Vaccination Record, Form I-693, as part of the health factor?
    5. Should DHS account for social determinants of health to avoid 
unintended disparate impacts on historically disadvantaged groups? If 
yes, how should DHS consider this limited access and why?
c. Family Status
    1. How should DHS define and consider family status for the 
purposes of a public charge inadmissibility determination?
    2. How should an applicant's household size be considered as part 
of the family status factor? What definition of an applicant's 
household size should DHS use for the public charge inadmissibility 
determination?
d. Assets, Resources, and Financial Status
    1. What types of assets and resources are relevant to a public 
charge inadmissibility determination?
    2. Whose assets and resources should be considered as part of this 
factor?
    3. How should DHS define financial status for the purposes of a 
public charge inadmissibility determination?
    4. How should DHS address the challenges faced by those not served 
by a bank or similar financial institution in demonstrating their 
assets, resources, and financial status?
    5. Should DHS consider an applicant's financial obligations (such 
as child or spousal support), debt, or bankruptcy in a public charge 
inadmissibility determination? If yes, how should DHS consider an 
applicant's debt, bankruptcy, or financial obligations when evaluating 
an applicant's financial status and why?
    6. Should DHS address its assessment of the relationship between 
the applicant's assets, resources, and financial status in the context 
of his or her particular circumstances (e.g., costs of living in the 
applicant's geographic location) in its rulemaking? If yes, how so?

[[Page 47030]]

    7. What data sources and criteria should DHS use to assess the 
sufficiency of the applicant's assets, resources, and financial status?
    8. Should DHS consider the varied economic opportunities afforded 
to applicants to avoid unintended disparate impacts? If yes, how should 
DHS consider these limited opportunities and why?
e. Education and Skills
    1. How should DHS consider an applicant's education and skills in 
making a public charge inadmissibility determination?
    2. What education and skills should DHS consider in making a public 
charge inadmissibility determination?
    3. Should DHS consider the varied access to educational 
opportunities afforded to applicants to avoid disparate impacts? If 
yes, how should DHS consider this limited access and why?

D. Affidavit of Support Under Section 213A of the INA

1. Background
    Most family-based and some employment-based applicants for 
adjustment of status are required to submit an Affidavit of Support 
Under Section 213A of the INA, Form I-864 or Form I-864EZ, executed by 
a sponsor, which is usually the U.S. citizen or LPR who filed the 
immigrant visa petition on the adjustment applicant's behalf.\44\ The 
absence of a sufficient Affidavit of Support Under Section 213A of the 
INA, where required, will result in a finding of inadmissibility under 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), without 
consideration of the mandatory statutory factors.\45\ Under section 
212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), DHS may 
consider a sufficient Affidavit of Support Under Section 213A of the 
INA \46\ for the purposes of determining the applicant's likelihood of 
becoming a public charge at any time.
---------------------------------------------------------------------------

    \44\ See INA sections 212(a)(4)(C), (D) and 213A, 8 U.S.C. 
1182(a)(4)(C) and (D).
    \45\ See INA sections 212(a)(4)(C), (D) and 213A, 8 U.S.C. 
1182(a)(4)(C) and (D).
    \46\ A sufficient Affidavit of Support Under Section 213A of the 
INA is one in which the sponsor has demonstrated that he or she has 
enough income and/or assets to maintain the sponsored noncitizen and 
the rest of the sponsor's household at 125% of the Federal Poverty 
Guidelines (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). See INA section 213A, 8 U.S.C. 1183a.
---------------------------------------------------------------------------

    The 1999 Interim Field Guidance did not specifically address how 
officers should consider the Affidavit of Support Under Section 213A of 
the INA for the purposes of the totality of the circumstances 
determination as set forth in section 212(a)(4)(B)(ii) of the INA, 8 
U.S.C. 1182(a)(4)(B)(ii), focusing instead on how a sponsor's receipt 
of means-tested public benefits was considered for the purposes of 
determining the sufficiency of the affidavit.\47\ However, in the 
vacated 2019 Final Rule, DHS described how officers would consider a 
sufficient Affidavit of Support Under Section 213A of the INA.\48\ In 
that rule, DHS provided that adjudicators would consider the likelihood 
that the sponsor would actually provide the statutorily required amount 
of financial support to the noncitizen as part of the totality of the 
circumstances determination.\49\
---------------------------------------------------------------------------

    \47\ See 64 FR 28689, 28693 (May 26, 1999).
    \48\ See 84 FR 41292, 41440 (Aug. 14, 2019).
    \49\ See 84 FR 41292, 41504 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In a future rulemaking, DHS may seek to address the manner in which 
a sufficient Affidavit of Support Under Section 213A of the INA is 
considered as part of a public charge inadmissibility determination.
2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic described 
above, but would particularly benefit from commenters addressing one or 
more of the following questions, including the reasoning, data, and 
information behind their comments:
    1. How should DHS consider a sufficient Affidavit of Support Under 
Section 213A of the INA in the public charge inadmissibility 
determination?
    2. What weight should DHS give to a sufficient Affidavit of Support 
Under Section 213A of the INA in comparison to the mandatory statutory 
factors in the public charge inadmissibility determination?

E. Other Factors To Consider

1. Background
    Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), states 
that DHS must, at minimum, consider the individual's age; health; 
family status; assets, resources, and financial status; and education 
and skills. DHS may also consider any Affidavit of Support Under 
Section 213A of the INA, which is described above in Section D. The 
statute's inclusion of the words ``at minimum'' suggests that other 
factors, beyond those listed and the Affidavit of Support Under Section 
213A of the INA, may be considered when determining whether an 
individual is likely to become a public charge.
    While the 1999 Interim Field Guidance suggests that there are other 
factors besides the mandatory factors and the Affidavit of Support 
Under Section 213A of the INA that are considered in the totality of 
the circumstances, that guidance did not specify or explain those other 
factors.\50\ The vacated 2019 Final Rule, however, promulgated one 
additional factor apart from the factors set forth in section 
212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B)--the noncitizen's 
prospective immigration status and expected period of admission.\51\
---------------------------------------------------------------------------

    \50\ See 64 FR 28689, 28690 (May 26, 1999).
    \51\ See 84 FR 41292, 41423 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In a future rulemaking, DHS may seek to address whether there are 
factors other than those identified in section 212(a)(4)(B) of the INA, 
8 U.S.C. 1184(a)(4)(B), that should be considered as part of a public 
charge inadmissibility determination.
2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic described 
above, but would particularly benefit from commenters addressing the 
following questions including the reasoning, data, and information 
behind their comments:
    1. What other factors, if any, should DHS consider as part of the 
public charge inadmissibility determination and why?
    2. How, if at all, should DHS account for the fact that there are 
differences in the duration of time noncitizens are authorized to stay 
in the United States, and that many noncitizens subject to the public 
charge ground of inadmissibility are expected to remain in the United 
States for only a brief period of time?
    3. What data or evidence is available and relevant to the question 
above?

F. Public Benefits Considered

1. Background
    The former INS, in the 1999 Interim Field Guidance, recognized a 
link between public charge and the receipt of public benefits by 
defining public charge in terms of primary dependence on the government 
for subsistence, and in directing officers to consider the receipt of 
public cash assistance for income maintenance or institutionalization 
for long-term care at government expense.\52\ In tying the receipt of 
cash assistance for income maintenance to public charge, the former INS 
believed it would be able to ``identify those who are primarily 
dependent on the government for subsistence without inhibiting access 
to non-cash benefits that serve important public interests.'' \53\ The 
former INS's focus on cash assistance for income maintenance reflected 
the determination

[[Page 47031]]

that receipt of benefits under these programs was more reflective of 
poverty or dependence, while such was not the case for most non-cash 
benefits, which (with the exception of institutionalization for long-
term care at government expense) were not considered.\54\ Finally, the 
former INS also tried to address the negative impacts on public health 
and general welfare caused by individuals forgoing the receipt of such 
non-cash benefits to avoid negative immigration consequences.\55\
---------------------------------------------------------------------------

    \52\ See 64 FR 28689, 28692 (May 26, 1999).
    \53\ See 64 FR 28689, 28692 (May 26, 1999).
    \54\ See 64 FR 28689, 28692 (May 26, 1999).
    \55\ See 64 FR 28689, 28692 (May 26, 1999).
---------------------------------------------------------------------------

    In the vacated 2019 Final Rule, DHS also recognized a link between 
public charge and receipt of public benefits, but determined ``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 [set forth in the 1999 
Interim Field Guidance] . . . .'' \56\ Emphasizing the policy 
statements contained in PRWORA,\57\ the vacated 2019 Final Rule 
expanded the types of public benefits considered as part of a public 
charge inadmissibility determination to include not only public cash 
assistance for income maintenance but also certain designated public 
non-cash benefits.\58\
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    \56\ See 84 FR 41292, 41349 (Aug. 14, 2019).
    \57\ See 8 U.S.C. 1601.
    \58\ See 84 FR 41292, 41439 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In a future rulemaking, DHS may seek to clarify whether and which 
public benefits should be considered as part of a public charge 
inadmissibility determination.
2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic discussed 
above, but would particularly benefit from commenters addressing one or 
more of the following questions including the reasoning, data, and 
information behind their comments:
    1. Should DHS consider the receipt of public benefits (past and/or 
current) in the public charge inadmissibility determination? If yes, 
how should DHS consider the receipt of public benefits and why?
    2. Which public benefits should be considered as part of a public 
charge inadmissibility determination?
    3. Which public benefits, if any, should not be considered as part 
of a public charge inadmissibility determination?
    4. How should DHS address the possibility that individuals who are 
eligible for public benefits, including U.S. citizen relatives of 
noncitizens, would forgo the receipt of those benefits as a result of 
DHS's consideration of certain public benefits in the public charge 
inadmissibility determination? What data and information should DHS 
consider about the direct and indirect effects of past public charge 
policies in this regard?

G. Previous Rulemaking Efforts

1. Background
    DHS and its predecessor, INS, engaged in two previous rulemaking 
efforts as discussed in greater detail above in Part II, Section C. On 
May 26, 1999, INS issued a NPRM, which proposed how the agency would 
determine if a noncitizen is likely at any time to become a public 
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a), for 
admission and adjustment of status purposes, and whether a noncitizen 
in and admitted to the United States has become a public charge within 
5 years after the date of entry for causes not affirmatively shown to 
have arisen since entry under section 237(a)(5) of the INA, 8 U.S.C. 
1227(a)(5).\59\ That NPRM, and the related 1999 Interim Field Guidance, 
provided a definition for public charge, specified the public benefits 
that would and would not be considered as part of a public charge 
determination, established a prospective totality of the circumstances 
framework that considered the factors set forth in section 212(a)(4)(B) 
of the INA, 8 U.S.C. 1182(a)(4)(B), and clarified how the Affidavit of 
Support Under Section 213A of the INA is used. INS and later DHS never 
finalized the 1999 NPRM.
---------------------------------------------------------------------------

    \59\ See Inadmissibility and Deportability on Public Charge 
Grounds, 64 FR 28676 (May 26, 1999).
---------------------------------------------------------------------------

    On August 14, 2019, DHS issued a final rule addressing the public 
charge ground of inadmissibility.\60\ The rule provided a new 
definition for public charge; specified the public benefits that would 
be considered as part of a public charge inadmissibility determination; 
established a prospective totality of the circumstances framework that 
required consideration of all of the factors set forth in section 
212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), as well as one 
additional factor; specified the standards and evidence that would be 
considered in the public charge inadmissibility determination; created 
a new Form I-944 for public charge inadmissibility determinations in 
the adjustment of status context; and changed the regulations for 
public charge bonds.\61\
---------------------------------------------------------------------------

    \60\ See 84 FR 41292 (Aug. 14, 2019), as amended by 
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 
(Oct. 2, 2019).
    \61\ See 84 FR 41292 (Aug. 14, 2019), as amended by 
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 
(Oct. 2, 2019).
---------------------------------------------------------------------------

2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic described 
above, but would particularly benefit from commenters addressing one or 
more of the following questions including the reasoning, data, and 
information behind their comments:
    1. What aspects of the 1999 Interim Field Guidance, if any, should 
be included in a future public charge inadmissibility rulemaking and 
why?
    2. What aspects of the 1999 NPRM, if any, should be included in a 
future public charge inadmissibility rulemaking and why?
    3. What aspects of the vacated 2019 Final Rule, if any, should be 
included in a future public charge inadmissibility rulemaking and why?
    4. What data are available to estimate any potential direct and 
indirect effects, economic or otherwise, of the public charge ground of 
inadmissibility, the 1999 Interim Field Guidance, or the vacated 2019 
Final Rule? For instance, what data are available to estimate any 
potential direct and indirect effects, economic or otherwise, on 
individuals, social service organizations, hospitals, businesses, and 
other persons and entities?

H. Bond and Bond Procedures

1. Background
    If a noncitizen is determined to be inadmissible based on the 
public charge ground, but is otherwise admissible, the person may be 
admitted in the discretion of the Secretary of Homeland Security upon 
the giving of a suitable and proper bond under section 213 of the INA, 
8 U.S.C. 1183. That section authorizes the Secretary to establish the 
amount and conditions of such bond. Regulations implementing the public 
charge bond were promulgated in 1964 and 1966,\62\ and are currently 
found at 8 CFR 103.6 and 8 CFR 213.1.
---------------------------------------------------------------------------

    \62\ See Miscellaneous Amendments to Chapter, 29 FR 10579 (July 
30, 1964); Miscellaneous Edits to Chapter, 31 FR 11713 (Sept. 7, 
1966).
---------------------------------------------------------------------------

    The 1999 Interim Field Guidance noted that the agency had the 
discretionary authority to offer public charge bonds, but did not 
otherwise explain the manner in which the agency would exercise that 
discretion.\63\ In the vacated 2019 Final Rule, DHS established a 
framework to offer public charge bonds under section 213 of the

[[Page 47032]]

INA, 8 U.S.C. 1183, to adjustment of status applicants inadmissible 
only on the public charge ground, which included the minimum bond 
amount, conditions under which a bond was breached, and when a public 
charge bond would be cancelled.\64\
---------------------------------------------------------------------------

    \63\ See 64 FR 28689, 28693 (May 26, 1999).
    \64\ See 84 FR 41292, 41299 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In a future rulemaking, DHS may seek to establish a public charge 
bond process.
2. Questions for the Public
    DHS welcomes public comment on all aspects of the topic described 
above, but would particularly benefit from commenters addressing one or 
more of the following questions including the reasoning, data, and 
information behind their comments:
    1. What standard should DHS use to determine whether to exercise 
its discretion and authorize a noncitizen inadmissible only under the 
public charge ground to submit a public charge bond?
    2. Should DHS establish a minimum bond amount? If yes, how should 
DHS establish that minimum bond amount and how should DHS adjust that 
minimum bond amount over time?
    3. What factors should DHS consider in establishing a bond amount 
for a particular inadmissible noncitizen?
    4. Under what circumstances should DHS consider a public charge 
bond breached?
    5. Under what circumstances should DHS consider a public charge 
bond cancelled?

I. Specific Questions for State, Territorial, Local, and Tribal Benefit 
Granting Agencies and Nonprofit Organizations

1. Background
    DHS acknowledges that benefit granting agencies and nonprofit 
organizations may have valuable information and data regarding the 
receipt of public benefits and how benefit use intersects with the 
public charge ground of inadmissibility. DHS intends to formally 
consult with relevant Federal agencies, including benefits granting 
agencies, in connection with future rulemaking actions addressing the 
public charge ground of inadmissibility. As part of this ANPRM, DHS is 
specifically seeking feedback from state, territorial, local, and 
tribal benefit granting agencies, as well as nonprofit organizations.
2. Questions for State, Territorial, Local, and Tribal Benefit Granting 
Agencies and Nonprofit Organizations
    DHS welcomes public comment on all aspects of the topic described 
above, but would particularly benefit from commenters addressing one or 
more of the following questions including the reasoning, data, and 
information behind their comments:
    1. What costs, if any, has your agency or organization incurred in 
order to implement changes in public charge policy, such as revising 
enrollment procedures and public-facing materials? Please provide 
relevant data.
    2. What costs, if any, has your agency or organization incurred as 
a result of reduction in enrollment, or disenrollment in public 
benefits programs generally? Please provide relevant data.
    3. What costs, if any, has your agency or organization incurred as 
a result of disenrollment or reduction in enrollment in public benefits 
programs caused by the public charge ground of inadmissibility, the 
1999 Interim Field Guidance, or the vacated 2019 Final Rule? Please 
provide relevant data.
    4. With respect to the specific types of public benefits overseen 
by your agency, under what circumstances is the receipt of such 
benefits relevant, if at all, to assessing whether or not an individual 
is likely at any time to become a public charge?
    5. What, if any, specific concerns does your agency or organization 
have about how DHS applies the public charge ground of inadmissibility 
and how should DHS address those concerns?
    6. What data does your agency or organization have that can be 
shared to demonstrate any potential impact of the public charge ground 
of inadmissibility, the 1999 Interim Field Guidance, or the vacated 
2019 Final Rule on applications for or disenrollment from public 
benefits by individuals who are eligible for such benefits?
    7. What information, data, or studies does your agency or 
organization have that can be shared that would help DHS identify 
factors or patterns of benefit use (e.g., duration, frequency, or 
extent of benefits use) that suggest whether and to what extent 
individuals would be likely to use public benefits in the future?
    8. How should DHS reduce the possibility that individuals who are 
eligible for public benefits overseen by your agency would decide to 
forgo the receipt of those benefits out of concern that receipt of such 
benefits will make them (or a family member or household member) 
inadmissible on public charge grounds, even if receipt of such a 
benefit would not be considered by DHS in a public charge 
determination, or would not be a decisive factor in a public charge 
inadmissibility determination?

Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2021-17837 Filed 8-20-21; 8:45 am]
BILLING CODE 9111-97-P