[Federal Register Volume 86, Number 219 (Wednesday, November 17, 2021)]
[Rules and Regulations]
[Pages 64070-64071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25038]


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DEPARTMENT OF STATE

22 CFR Part 40

[Public Notice: 11566]
RIN 1400-AE87


Visas: Ineligibility Based on Public Charge Grounds

AGENCY: State Department.

ACTION: Interim final rule; reopening of public comment period.

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SUMMARY: On October 11, 2019, the Department of State (``the 
Department'') published an interim final rule (``IFR'') regarding visa 
ineligibility on public charge grounds and accepted public comments on 
the rule through November 12, 2019. Given the many changed 
circumstances since publication of the IFR, the Department is 
soliciting additional information from the public by reopening the 
public comment period for an additional 60 days.

DATES: The Department of State will accept comments until January 18, 
2022.

ADDRESSES: To provide comments go to https://www.regulations.gov, enter 
Docket DOS-2021-0034 and RIN 1400-AE87. Alternatively, you may submit 
comments by any of the following methods:
     Email: You may submit comments via email to 
[email protected]. You must include the RIN in the subject line of 
your message.
     Mail paper submissions: You may submit comments via 
physical mail to Regulatory Coordinator, Visa Services, Bureau of 
Consular Affairs, Department of State, 600 19th St. NW, Washington, DC 
20006. You must include the RIN in the Attention Line in the address.

FOR FURTHER INFORMATION CONTACT: Andrea B. Lage, Acting Regulatory 
Coordinator, Visa Services, Bureau of Consular Affairs, Department of 
State, 600 19th St. NW, Washington, DC 20006, (202) 485-7586, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Public Participation

    All interested parties are invited to respond to this Reopening of 
Public Comment Period by submitting written views and comments on the 
IFR regarding visa ineligibility on public charge grounds. Comments 
must be submitted in English or commenters must submit an English 
translation. Comments that will provide the most assistance to the 
Department in considering recommendations will reference a specific 
existing regulation, order, guidance, policy, or any other similar 
agency action, explain the reason for any recommended change, and 
include information that supports the recommended change.

II. Background

    On August 14, 2019, the Department of Homeland Security (``DHS'') 
issued a final rule outlining its new interpretation of the public 
charge ground of inadmissibility. See Inadmissibility on Public Charge 
Grounds, 84 FR 41292, as amended on October 2, 2019 by Inadmissibility 
on Public Charge Grounds; Correction, 84 FR 52357 (``DHS Public Charge 
Final Rule''). The Department issued an IFR on October 11, 2019, 
amending 22 CFR 40.41 by prescribing how consular officers determine 
whether a noncitizen is ineligible for a visa under section 212(a)(4) 
of the Immigration and Nationality Act (``INA''), 8 U.S.C. 1182(a)(4), 
and 6 U.S.C. 236(b), because they are likely at any time to become a 
public charge. See Visas: Ineligibility Based on Public Charge Grounds, 
84 FR 54996.
    The Department issued its IFR in significant part to ensure that 
consular officers were applying standards consistent with the DHS 
Public Charge Final Rule. Specifically, the IFR could have helped avoid 
situations where a consular officer evaluates a visa applicant's 
circumstances and concludes that the applicant is not likely at any 
time to become a public charge, only for DHS to find the applicant 
inadmissible on public charge grounds under the same facts when they 
seek admission to the United States. See, e.g., 84 FR at 55011 
(``Coordination of Department and DHS implementation of the public 
charge inadmissibility ground is critical to the Department's interest 
in preventing inconsistent adjudication standards and different 
outcomes between determinations of visa eligibility and determinations 
of admissibility at a port of entry.'').\1\
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    \1\ The IFR is currently under a preliminary injunction issued 
by the Southern District of New York on July 29, 2020. See Make the 
Road New York v. Pompeo, 475 F. Supp. 3d 232 (S.D.N.Y. 2020).
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    In the time since the Department first issued the IFR, a court 
order vacating the DHS Public Charge Final Rule nationwide went into 
effect after the government moved to voluntarily dismiss an appeal of 
that order.\2\ Due to the vacatur of the DHS Public Charge Final Rule, 
DHS immediately stopped applying its Public Charge Final Rule to all 
pending applications and petitions that would have been subject to that 
rule.\3\ DHS is now implementing the public charge inadmissibility 
statute using the former-Immigration and Nationalization Service's 1999 
Interim Field Guidance on Deportability and Inadmissibility on Public 
Charge Grounds (64 FR 28689, May 26, 1999) issued by the former 
Immigration and Naturalization Service, which was in place before the 
2019 DHS Public Charge Final Rule was implemented, for immigration 
petitions, applications for admission and adjustment of status. On 
August 23, 2021, DHS published an Advance Notice of Proposed Rulemaking 
(``ANPRM'') and notice of virtual public listening sessions to seek 
broad public feedback on the public charge ground of inadmissibility 
that will inform its development of a future regulatory proposal.\4\
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    \2\ Cook County v. Wolf, 498 F. Supp. 3d 999 (N.D. Ill. 2020), 
appeal dismissed, 2021 WL 1608766 (7th Cir. Mar. 9, 2021).
    \3\ See USCIS, ``Inadmissibility on Public Charge Grounds Final 
Rule: Litigation'' https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/inadmissibility-on-public-charge-grounds-final-rule-litigation (last visited Aug. 24, 2021).
    \4\ Public Charge Ground of Inadmissibility, 86 FR 47025 (Aug. 
23, 2021).
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III. Change in Circumstances

    With the vacatur of the 2019 DHS Public Charge Final Rule the 
original reason for the Department's adoption of the 2019 IFR may no 
longer apply. Further, with the publication of the DHS ANPRM, DHS has 
indicated an intention to develop a new regulatory proposal that may 
substantively differ from the IFR.
    Additionally, just months after the Department issued its IFR, the 
COVID-19 pandemic swept the globe. The pandemic's ongoing effects on 
public health and economic conditions have been vast and have 
underscored the importance of ensuring that individuals are able to 
access public health and other programs for which they and their

[[Page 64071]]

family members are eligible, without undue fear or confusion. The 
Department welcomes comments on the potential effects of the IFR on 
public health measures in response to the pandemic, as well as other 
ways that the Department should consider the intervening circumstances 
of the COVID-19 pandemic in relation to the IFR.
    Consequently, the Department has concluded that it should review 
the IFR to determine (1) if the IFR should be rescinded or revised, and 
(2) what final rule should be adopted, if any. If the IFR is rescinded, 
Sec.  40.41 would logically revert to its prior text pending any new 
rulemaking; such an outcome would likely be preferable to a regulatory 
void, which the Department did not propose in the 2019 IFR. See 22 CFR 
40.41 (2018).\5\
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    \5\ Prior text of Sec.  40.41 available at https://www.govinfo.gov/content/pkg/CFR-2018-title22-vol1/pdf/CFR-2018-title22-vol1-chapI-subchapE.pdf, page 8.
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IV. Request for Public Comment

    The Department invites comment on any issues that may be pertinent 
to its review of the IFR to determine (1) if the IFR should be 
rescinded or revised, and (2) what final rule should be adopted, if 
any. Reopening the comment period gives interested persons an 
opportunity to comment on these issues.

Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of 
State.
[FR Doc. 2021-25038 Filed 11-16-21; 8:45 am]
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