[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55472-55639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18867]



[[Page 55471]]

Vol. 87

Friday,

No. 174

September 9, 2022

Part II





Department of Homeland Security





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8 CFR Parts 103, 212, 213, et al.





Public Charge Ground of Inadmissibility; Final Rule

  Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / 
Rules and Regulations  

[[Page 55472]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 213, and 245

[CIS No. 2715-22; DHS Docket No. USCIS-2021-0013]
RIN 1615-AC74


Public Charge Ground of Inadmissibility

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is amending its 
regulations to prescribe how it determines whether noncitizens are 
inadmissible to the United States because they are likely at any time 
to become a public charge. Noncitizens who are applicants for visas, 
admission, and adjustment of status 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. Under 
this rule, DHS would determine that a noncitizen is likely at any time 
to become a public charge if the noncitizen is likely at any time to 
become primarily dependent on the government for subsistence, as 
demonstrated by either the receipt of public cash assistance for income 
maintenance or long-term institutionalization at government expense. On 
August 14, 2019, DHS issued a different rule on this topic, 
Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule), 
which is no longer in effect. This rule implements a different policy 
than the 2019 Final Rule.

DATES: This final rule is effective December 23, 2022. This final rule 
will apply to applications postmarked on or after the effective date.

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. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Legal Authority
    C. Summary of the Proposed Rule
    D. Summary of Changes From the NPRM to the Final Rule
    E. Implementation
    F. Summary of Costs and Benefits
II. Background
    A. Legal Authority
    B. The Public Charge Ground of Inadmissibility
    C. 2019 DHS Inadmissibility on Public Charge Ground Final Rule, 
Vacatur, and Litigation History
    D. Current Public Charge Inadmissibility Guidance
    E. Current Rulemaking
III. Response to Public Comments on the Proposed Rule
    A. Summary of Public Comments
    B. Comments Expressing General Support for the Proposed Rule
    C. Comments Expressing General Opposition to the Proposed Rule
    D. Comments Regarding Legal Authority and Statutory Provisions
    E. Chilling Effects
    F. Applicability of the Public Charge Ground of Inadmissibility
    G. Exemptions, Limited Exemption, and Waivers
    H. Definitions
    I. Factors
    J. Totality of the Circumstances
    K. Receipt of Public Benefits While Noncitizen Is in an 
Immigration Category Exempt From Public Charge Inadmissibility
    L. Receipt of Public Benefits by Those Granted Refugee Benefits
    M. Denial Decision
    N. Information Collection (Forms)
    O. Bonds and Bond Procedures
    P. Economic Analysis Comments & Responses
    Q. Out-of-Scope Comments
IV. Statutory and Regulatory Requirements
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    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
    J. Paperwork Reduction Act
V. List of Subjects and Regulatory Amendments

Table of Abbreviations

AAO--Administrative Appeals Office
ADA--Americans with Disabilities Act
ANPRM--Advance Notice of Proposed Rulemaking
ASC--Application Support Center
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CBP--Customs and Border Protection
CDC--Centers for Disease Control and Prevention
CFR--Code of Federal Regulations
CHIP--Children's Health Insurance Program
COS--Change of Status
COVID-19--Coronavirus Disease 2019
DACA--Deferred Action for Childhood Arrivals
DHS--U.S. Department of Homeland Security
DOD--Department of Defense
DOS--U.S. Department of State
DOJ--Department of Justice
E.O.--Executive Order
EOS--Extension of Stay
FAM--Department of State Foreign Affairs Manual
FBR--Federal Benefit Rate
FDA--Food and Drug Administration
FPG--Federal Poverty Guidelines
FOIA--Freedom of Information Act
HCBS--Home and Community-Based Services
HCV--Housing Choice Voucher
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act
HUD--U.S. Department of Housing and Urban Development
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
LRIF--Liberian Refugee Immigration Fairness Act
NACARA--Nicaraguan Adjustment and Central American Relief Act
NATO--North Atlantic Treaty Organization
NEPA--National Environmental Policy Act
NOID--Notice of Intent to Deny
NPRM--Notice of Proposed Rulemaking
OAW--Operation Allies Welcome
OMB--Office of Management and Budget
PHA--Public Housing Agency
PHE--Public Health Emergency
PRA--Paperwork Reduction Act
PRWORA--Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996
RFA--Regulatory Flexibility Act of 1980
RFE--Request for Additional Evidence
RIA--Regulatory Impact Analysis
SIPP--Survey of Income and Program Participation
SNAP--Supplemental Nutrition Assistance Program
SSA--Social Security Administration
SSI--Supplemental Security Income
TANF--Temporary Assistance for Needy Families
TPS--Temporary Protected Status
TVPA--Trafficking Victims Protection Act
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
VAWA--Violence Against Women Act
WIC--Special Supplemental Nutrition Program for Women, Infants, and 
Children

I. Executive Summary

A. Purpose of the Regulatory Action

    This rule implements the public charge ground of inadmissibility, 
found in section 212(a)(4) of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1182(a)(4), in a manner that will be

[[Page 55473]]

consistent with congressional direction; that will be clear and 
comprehensible for officers as well as for noncitizens \1\ and their 
families; and that will lead to fair and consistent adjudications, 
thereby mitigating the risk of unequal treatment of similarly situated 
individuals.
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    \1\ For purposes of this discussion, DHS uses the term 
``noncitizen'' to be synonymous with the term ``alien'' as it is 
used in the INA.
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    Under the INA, noncitizens are inadmissible and therefore (1) 
ineligible for a visa, (2) ineligible for admission, and (3) ineligible 
for adjustment of status, if, in the opinion of DHS (or the Department 
of Justice (DOJ)) or consular officers of the Departments of State 
(DOS), as applicable),\2\ they are likely at any time to become a 
public charge.\3\ While the statute does not define the term ``public 
charge,'' it does provide that in making an 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.'' \4\ The agencies may also consider 
an Affidavit of Support Under Section 213A of the INA submitted on the 
noncitizen's behalf when such is required.\5\
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    \2\ 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 to applicants for admission at or between ports of 
entry and when adjudicating certain applications for adjustment of 
status. 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 at the time of 
application for a visa. This rule does not revise DOS standards or 
processes. DOJ is responsible for applying the public charge ground 
of inadmissibility with respect to noncitizens in immigration court. 
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 revise DOJ standards or processes. 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 at the time of application for a visa. This 
rule does not revise DOS standards or processes.
    \3\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A). Congress 
has by statute exempted certain categories of noncitizens, such as 
asylees and refugees, from the public charge ground of 
inadmissibility. See, e.g., INA secs. 207(c)(3) and 209(c), 8 U.S.C. 
1157(c)(3) and 1159(c). A full list of exemptions is included in 
this rule.
    \4\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \5\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
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    Beginning in 1999, public charge inadmissibility determinations 
were made in accordance with 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).\6\ Under that approach, ``public charge'' 
was defined as a noncitizen 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.'' \7\ Under the 1999 Interim 
Field Guidance, a noncitizen's reliance on or receipt of non-cash 
benefits such as the Supplemental Nutrition Assistance Program (SNAP), 
also known as food stamps; Medicaid (except for support for long-term 
institutionalization); and housing vouchers and other housing subsidies 
were not considered by DHS in determining whether a noncitizen was 
deemed likely at any time to become a public charge.
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    \6\ 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.
    \7\ See ``Field Guidance on Deportability and Inadmissibility on 
Public Charge Grounds,'' 64 FR 28689, 28692 (May 26, 1999).
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    On August 14, 2019, DHS issued a rule on the public charge ground 
of inadmissibility, which is no longer in effect.\8\ The 2019 Final 
Rule expanded DHS's definition of ``public charge'' and imposed a heavy 
direct paperwork burden on applicants and DHS officers. The 2019 Final 
Rule was associated with widespread collateral effects as discussed in 
section III.E below, primarily with respect to those who were not even 
subject to the public charge ground of inadmissibility, such as U.S. 
citizen children in mixed-status households. Notwithstanding these 
widespread collateral effects, during the time that the 2019 Final Rule 
was in effect, of the 47,555 applications for adjustment of status to 
which the rule was applied, DHS issued only three denials (which were 
subsequently reopened and approved) and two Notices of Intent to Deny 
(which were ultimately rescinded, after which the applications were 
approved) based on the totality of the circumstances of a public charge 
inadmissibility determination under section 212(a)(4)(A) and (B) of the 
INA, 8 U.S.C. 1182(a)(4)(A) and (B).
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    \8\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR 
41292 (Aug. 14, 2019), as amended by ``Inadmissibility on Public 
Charge Grounds; Correction,'' 84 FR 52357 (Oct. 2, 2019).
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    This final rule would implement a different policy than the 2019 
Final Rule. As stated above, in this new rule, DHS will implement 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in a manner that 
will be clear and comprehensible for officers as well as for 
noncitizens and their families and will lead to fair and consistent 
adjudications, thereby mitigating the risk of unequal treatment of 
similarly situated individuals. In this rule, DHS has declined to 
include certain aspects of the 2019 Final Rule that in DHS's view 
caused undue fear and confusion, such as (1) a complicated and 
unnecessarily broad definition of ``public charge''; (2) mandatory 
consideration of past, current, and future receipt of certain 
supplemental public benefits, notwithstanding that most noncitizens 
subject to the public charge ground of inadmissibility would not have 
been eligible for such benefits at the time of application (and 
notwithstanding the potential collateral effects of this policy on U.S. 
citizen children in mixed-status households and noncitizens who are not 
subject to the public charge ground of inadmissibility); (3) burdensome 
and in some instances duplicative information collection requirements; 
(4) designation of certain factors or sets of factual circumstances as 
``heavily weighted''; and (5) imposition of a ``public benefit 
condition'' for extension of stay and change of status, notwithstanding 
that the nonimmigrant population to whom this condition applied is 
largely ineligible for such benefits.
    As discussed at greater length below, DHS believes that, in 
contrast to the 2019 Final Rule, this rule would effectuate a more 
faithful interpretation of the statutory phrase ``likely at any time to 
become a public charge''; avoid unnecessary burdens on applicants, 
officers, and benefits-granting agencies; and mitigate the possibility 
of widespread ``chilling effects'' \9\ with respect to individuals 
disenrolling or declining to enroll themselves or family members in 
public benefits programs for which they are eligible, especially with 
respect to individuals who are not subject to the public charge ground 
of inadmissibility. Under this rule, similar to the 1999 Interim Field 
Guidance that was in place for two decades prior to the

[[Page 55474]]

2019 Final Rule, noncitizens would be considered likely at any time to 
become a public charge if they are likely at any time to become 
primarily dependent on the government for subsistence, as demonstrated 
by either the receipt of public cash assistance for income maintenance 
or long-term institutionalization at government expense.
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    \9\ The term ``chilling effects'' used throughout this rule is 
meant to convey the indirect effect of chilling an individual's 
participation in public benefit programs, regardless of whether they 
are subject to the public charge ground of inadmissibility, based on 
fear of negative immigration consequences.
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    This final rule also makes important clarifications and changes as 
compared to the 1999 Interim Field Guidance. For instance, this rule 
clarifies DHS's approach to consideration of disability and long-term 
institutionalization at government expense; states a bright-line rule 
against considering the receipt of public benefits by an applicant's 
dependents (such as a U.S. citizen child in a mixed-status household); 
and changes the Form I-485 to collect additional information relevant 
to the public charge inadmissibility determination. DHS also added 
streamlined provisions to clarify acceptance, form, and amount of USCIS 
public charge bonds, as well as cancellation of public charge bonds. 
Finally, later in this preamble, in response to public comments, DHS 
further clarifies that primary dependence connotes significant reliance 
on the government for support, and means something more than dependence 
that is merely transient or supplementary.
    The rule also contains multiple additional provisions and 
definitions, some of which are consistent with aspects of the 1999 
Interim Field Guidance (and the 2019 Final Rule), and some of which 
differ in material respects.

B. Summary of Legal Authority

    The authority of the Secretary of Homeland Security (Secretary) for 
the regulatory amendments is found in section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4), which governs public charge inadmissibility 
determinations; section 235 of the INA, 8 U.S.C. 1225, which addresses 
applicants for admission; and section 245 of the INA, 8 U.S.C. 1255, 
which addresses eligibility criteria for applications for adjustment of 
status. In addition, section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3), 
authorizes the Secretary to establish such regulations as the Secretary 
deems necessary for carrying out the Secretary's authority under the 
INA.

C. Summary of the Proposed Rule

    On February 24, 2022, DHS published a notice of proposed 
rulemaking, Public Charge Ground of Inadmissibility (NPRM).\10\ The 
NPRM proposed to prescribe how DHS would determine whether a noncitizen 
is inadmissible to the United States under section 212(a)(4) of the 
INA). Under the NPRM, a noncitizen would be considered likely at any 
time to become a public charge if they are likely at any time to become 
primarily dependent on the government for subsistence, as demonstrated 
by either the receipt of public cash assistance for income maintenance 
or long-term institutionalization at government expense. In the NPRM, 
DHS proposed definitions for the terms ``likely at any time to become a 
public charge,'' ``public cash assistance for income maintenance,'' 
``long-term institutionalization at government expense,'' ``receipt (of 
public benefits),'' and ``government.''
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    \10\ 87 FR 10570 (Feb. 24, 2022).
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    In the NPRM, DHS proposed to adopt a standard similar to the one 
used in the 1999 Interim Field Guidance and related 1999 NPRM, which 
tied public charge inadmissibility to primary dependence on the 
government for subsistence, as demonstrated by the receipt of public 
cash assistance for income maintenance or long-term 
institutionalization at government expense. The NPRM also identified 
the groups of individuals generally subject to or exempt from the 
public charge inadmissibility ground and provided a list of statutory 
and regulatory exemptions from and waivers of the public charge ground 
of inadmissibility.
    DHS continues to believe that the ``primarily dependent'' standard 
properly balances the competing policy objectives established by 
Congress.\11\ Although the term ``public charge'' does not have a 
single clear meaning, its basic thrust is clear: significant reliance 
on the government for support. This has been the longstanding purpose 
of the public charge ground of inadmissibility; individuals who are 
unable or unwilling to work to support themselves, and who do not have 
other nongovernmental means of support such as family members, assets, 
or sponsors, are at the core of the term ``public charge.'' Individuals 
who are likely to primarily rely on their own resources, while 
secondarily relying on some government support, are less readily 
characterized as public charges. DHS does not believe that the term is 
best understood to include a person who receives benefits from the 
government to help to meet some needs but is not primarily dependent on 
the government and instead has one or more sources of independent 
income or resources upon which the individual primarily relies.
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    \11\ In the 2019 Final Rule, DHS canvassed a range of sources to 
support the proposition that the statute was ambiguous and that the 
new definition represented a reasonable interpretation of such 
ambiguity in light of the policy goals articulated in PRWORA. For 
example, DHS wrote that the rule ``is not inconsistent with 
Congress' intent in enacting the public charge ground of 
inadmissibility in [the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA)], or in enacting PRWORA.'' See 
``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 41317 
(Aug. 14, 2019). DHS noted that Congress enacted those two laws in 
the same year, that IIRIRA amended the public charge inadmissibility 
statute, and that PRWORA contained the statements of national 
policy. DHS continued by stating that the rule, ``in accordance with 
PRWORA, disincentivizes immigrants from coming to the United States 
in reliance on public benefits.'' Ibid. Similarly, in support of a 
similar definition of ``public charge'' in the 2018 NPRM, DHS wrote 
that ``the term public charge is ambiguous as to how much government 
assistance an individual must receive or the type of assistance an 
individual must receive to be considered a public charge. The 
statute and case law do not prescribe the degree to which an alien 
must be receiving public benefits to be considered a public charge. 
Given that neither the statute nor the case law prescribes the 
degree to which an alien must be dependent on public benefits to be 
considered a public charge, DHS has determined that it is 
permissible and reasonable to propose a different approach.'' See 
``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 51164 
(Oct. 10, 2018). DHS continues to believe that the statute is 
ambiguous, but for reasons discussed throughout this preamble, DHS 
now believes the interpretation contained in this rule reflects a 
reasonable and indeed the most appropriate interpretation of the 
statute.
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    To evaluate a person's likelihood to become primarily dependent on 
the government for subsistence, DHS proposed to designate a list of 
public benefits that would be considered for purposes of a public 
charge inadmissibility determination. DHS recognized that the universe 
of public benefits is quite large. In seeking to provide clear notice 
of the effects of the rule and to limit certain undesired collateral 
effects that may be associated with the rule (such as indirect effects 
on social service providers and chilling effects), DHS proposed to 
designate public cash assistance for income maintenance (i.e., 
Supplemental Security Income (SSI), cash assistance for income 
maintenance under the Temporary Assistance for Needy Families (TANF), 
and State, Tribal, territorial, or local cash benefit programs for 
income maintenance) and long-term institutionalization at government 
expense as the benefits that DHS would consider as part of the public 
charge inadmissibility determination.
    DHS believes that this approach--the ``primarily dependent'' 
standard and the focus on the specific benefits contained in the 
proposed rule--is consistent with a more faithful interpretation of the 
term ``public charge'' and has the additional benefit of being more 
administrable and

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consistent with longstanding practice than the 2019 Final Rule.\12\ DHS 
has also determined that this approach is less likely to result in the 
significant chilling effects among both noncitizens who are not subject 
to the public charge ground of inadmissibility and U.S. citizens, along 
with certain effects on State and local governments and social service 
providers (such as increases in inquiries regarding the public charge 
implications of receiving certain benefits and increases in 
uncompensated care), that were observed following promulgation of the 
2019 Final Rule.
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    \12\ The 2019 Final Rule also designated a specific list of 
public benefits as relevant to the public charge determination, 
which included benefits other than cash assistance for income 
maintenance and long-term institutionalization at government expense 
such as SNAP, most non-emergency forms of Medicaid, Section 8 
Housing Assistance under the Housing Choice Voucher (HCV) Program, 
Section 8 Project-Based Rental Assistance, and public housing under 
the Housing Act of 1937.
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    DHS sought comment on the proposal to consider cash assistance for 
income maintenance, but not non-cash benefits (apart from long-term 
institutionalization at government expense), in determining whether a 
noncitizen is likely at any time to become primarily dependent on the 
government for subsistence. As explained below, following receipt of a 
range of public comments on this topic (including proposals to narrow, 
expand, or maintain the proposed list of public benefits), DHS has 
decided to finalize this aspect of the proposed rule without change 
other than the inclusion of an additional provision in the final rule 
clarifying the continuation of this policy, which was articulated in 
the 1999 Interim Field Guidance and reiterated in the recent NPRM.
    In addition to proposing new definitions, DHS proposed the factors 
that DHS would consider in prospectively determining whether an 
applicant for admission or adjustment of status before DHS is 
inadmissible on the public charge ground in the totality of the 
circumstances. Those factors include the statutory minimum factors of 
age; health; family status; assets, resources, and financial status; 
and education and skills; as well as past receipt of designated public 
benefits. DHS specifically stated that the fact that an applicant has a 
disability, as defined by section 504 of the Rehabilitation Act 
(Section 504), would not alone be a sufficient basis to determine 
whether the noncitizen is likely at any time to become a public charge.
    In addition, DHS proposed to revise the existing information 
collection, Form I-485, Application to Register Permanent Residence or 
Adjust Status, to include additional questions regarding several of the 
statutory minimum factors: family status; assets, resources, and 
financial status; education and skills; as well as past receipt of the 
designated public benefits. As proposed, the additional questions would 
apply to only those applicants who are subject to the public charge 
ground of inadmissibility.
    DHS also proposed to require that all written denial decisions 
issued by USCIS to applicants reflect consideration of each of the 
statutory minimum factors, the Affidavit of Support Under Section 213A 
of the INA, where required, and the noncitizen's current and/or past 
receipt of public benefits, consistent with the standards set forth in 
the proposed rule, and to specifically articulate the reasons for the 
officer's determination.
    DHS also proposed to tailor its rule to limit the effects of 
certain regulatory provisions on discrete populations. DHS proposed not 
to consider public benefits received by a noncitizen during periods in 
which the noncitizen was present in the United States in an immigration 
category that is exempt from the public charge ground of 
inadmissibility, or for which the noncitizen received a waiver of 
public charge inadmissibility, as well as not to consider any public 
benefits received by a noncitizen who was made eligible by Congress for 
resettlement assistance, entitlement programs, and other benefits 
available to refugees, even if the noncitizen was not admitted as a 
refugee under section 207 of the INA, 8 U.S.C. 1157.
    Finally, DHS proposed amending regulations related to T 
nonimmigrant status holders, clarifying that these T nonimmigrants 
seeking adjustment of status are not subject to the public charge 
ground of inadmissibility.
    DHS received 223 comments on the proposed rule, the majority of 
which expressed support or qualified support for the policy approach 
articulated in the proposed rule. A few of the public comments 
supported a return to the framework contained in the 2019 Final Rule. 
The preamble to this final rule includes summaries of the significant 
issues raised in the comments, and includes responses to those comments 
and explanations for policy changes.

D. Summary of Changes From the NPRM to the Final Rule

    Following careful consideration of public comments received, DHS 
has made several changes to the regulatory text proposed in the 
NPRM.\13\ As discussed in detail in the comment responses, the changes 
in this final rule are as follows:
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    \13\ 87 FR at 10668-10671 (Feb. 24, 2022).
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1. Definitions
a. Definition of Household
    In response to public comments, DHS added a definition of 
``household'' to be used in connection with the family status and 
assets, resources, and financial status factors. The noncitizen's 
household will include:
     The noncitizen;
     If physically residing with the noncitizen, the 
noncitizen's spouse, parents, unmarried siblings under 21 years of age, 
and children;
     Any other individuals who are listed as dependents on the 
noncitizen's federal income tax return; and
     Any other individuals who list the noncitizen as a 
dependent on their federal income tax return.
    DHS notes that a noncitizen's household's income includes income 
provided to the household from sources who are not members of the 
household, including but not limited to alimony or child support.
b. Definition of Long-Term Institutionalization at Government Expense
    DHS replaced the term ``alien'' with the term ``beneficiary'' to 
clarify that the forward-looking nature of the public charge inquiry 
includes long-term institutionalization that occurs after the applicant 
for admission or adjustment of status is no longer an ``alien,'' as 
that term is defined in the INA.
c. Definition of Receipt (of Public Benefits)
    DHS replaced the term ``alien'' with the term ``individual'' to 
clarify that the forward-looking nature of the public charge 
determination includes public cash assistance for income maintenance 
that is received after the applicant for admission or adjustment of 
status is no longer an ``alien,'' as that term is defined in the INA.
2. Statutory Minimum Factors
    DHS modified 8 CFR 212.22(a)(1) from the proposed version in the 
following ways:
d. General
    DHS eliminated the duplicative text ``at a minimum'' from paragraph 
(a)(1).
e. Health
    DHS added text stating that DHS will consider the noncitizen's 
health as evidenced by a report of an immigration medical examination 
performed by a civil surgeon or panel physician where

[[Page 55476]]

such examination is required in making public charge inadmissibility 
determinations. DHS will generally defer to the report of the 
examination unless there is evidence that the report is incomplete.
f. Family Status
    DHS added text stating that DHS will consider the noncitizen's 
family status as evidenced by the noncitizen's household size. 
``Household'' is defined in 8 CFR 212.21(f).
g. Assets, Resources, and Financial Status
    DHS added text stating that DHS will consider the noncitizen's 
assets, resources, and financial status as evidenced by the 
noncitizen's household's income, assets, and liabilities (excluding any 
income from public benefits listed in 8 CFR 212.21(b) and income or 
assets from illegal activities or sources such as proceeds from illegal 
gambling or drug sales).
h. Education and Skills
    DHS added text stating that DHS will consider the noncitizen's 
education and skills as evidenced by the noncitizen's degrees, 
certifications, licenses, skills obtained through work experience or 
educational programs, and educational certificates.
3. Consideration of Current and/or Past Receipt of Public Benefits
    DHS clarified the regulatory text by stating that DHS will not 
consider the receipt of, or certification or approval for future 
receipt of, public benefits not referenced in 8 CFR 212.21(b) or (c), 
such as Supplemental Nutrition Assistance Program (SNAP) or other 
nutrition programs, Children's Health Insurance Program (CHIP), 
Medicaid (other than for long-term use of institutional services under 
section 1905(a) of the Social Security Act), housing benefits, any 
benefits related to immunizations or testing for communicable diseases, 
or other supplemental or special-purpose benefits. This policy was 
discussed at length in the proposed rule's preamble, but DHS has 
included a more direct statement to that effect in the final regulatory 
text. As further explained in the proposed rule's preamble and in 
response to comments below, DHS has opted for an approach in which it 
considers past or current receipt of the benefits most indicative of 
whether a person is likely to become primarily dependent on the 
government for subsistence while excluding from consideration a range 
of benefits that are less probative of primary dependence--and for 
which applicants for admission and adjustment of status are most often 
ineligible in any event. This choice, informed by on-the-record input 
from benefits-granting agencies, allows DHS to faithfully administer 
the statute without deterring eligible noncitizens and their families, 
including U.S. citizen children, from seeking important benefits for 
which they are eligible and which it is in the public interest for them 
to receive.
4. Public Charge Bonds
a. Cancellation and Breach of Public Charge Bonds
    DHS is amending 8 CFR 103.6(c)(1), relating to the cancellation and 
breach of public charge bonds. With these amendments, DHS is:
     Clarifying that a public charge bond will be cancelled 
upon death, permanent departure, or naturalization of the immigrant, 
provided that the immigrant did not breach such bond by receiving 
public cash assistance for income maintenance or long-term 
institutionalization at government expense;
     Stating that a public charge bond may be cancelled by 
USCIS after the fifth anniversary of the immigrant's admission or 
adjustment of status, provided the immigrant files a Form I-356, 
Request for Cancellation of Public Charge Bond, requesting the 
cancellation, and USCIS finds that the immigrant did not receive public 
cash assistance for income maintenance or long-term 
institutionalization at government expense prior to that fifth 
anniversary; and
     Making technical updates to clarify that bond cancellation 
authority lies with USCIS rather than district directors.
b. Public Charge Bond Acceptance, Form, and Amount
    DHS is amending 8 CFR 213.1, relating to the acceptance of public 
charge bonds. With these amendments, DHS is:
     Adding a new paragraph specifying that USCIS may invite 
adjustment of status applicants who are inadmissible only under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and whose applications are 
otherwise approvable, to submit a public charge bond in USCIS' 
discretion and clarifying that USCIS will set the bond amount and 
provide instructions for submission of the bond;
     Modifying the existing regulatory language relating to 
acceptance of bonds from noncitizens seeking immigrant visas from DOS, 
clarifying that USCIS will provide instructions for the submission of 
the bond, USCIS is the agency that accepts the bond, and that the 
consular officer will set the amount of the bond; and
     Revising the existing regulatory language about form and 
bond amount of public charge bonds by eliminating reference to a 
specific form number, stating that USCIS or the consular officer will 
set the amount of the bond of an amount no less than $1,000, and 
requiring USCIS to provide a receipt to the noncitizen or an interested 
party on a form designated by USCIS for such purpose.

E. Implementation

    DHS will begin implementing this final rule on its effective date 
(i.e., on December 23, 2022). This final rule will apply to 
applications for adjustment of status that are postmarked on or after 
the effective date. During the period between publication and the 
effective date, DHS will also conduct necessary public outreach to 
minimize the risk of confusion or chilling effects among both 
noncitizens and U.S. citizens. On or before this date, consistent with 
8 CFR 212.22(b) DHS will issue subregulatory guidance to inform, but 
not dictate the outcome of, officers' totality of the circumstances 
determinations.

F. Summary of Costs and Benefits

    The rule will result in new costs, benefits, and transfers. To 
provide a full understanding of the impacts of the rule, DHS considers 
the potential impacts of this final rule relative to two baselines. The 
No Action Baseline represents a state of the world under the 1999 
Interim Field Guidance, which is the policy currently in effect. The 
second baseline is the Pre-Guidance Baseline, which represents a state 
of the world before the issuance of the 1999 Interim Field Guidance 
(i.e., a state of the world in which the 1999 Interim Field Guidance 
did not exist). DHS also considers the potential effects of a 
regulatory alternative that is a rulemaking similar to the 2018 NPRM 
and the 2019 Final Rule. As DHS suggested in the 2019 Final Rule, those 
effects would primarily be experienced by persons who are not subject 
to the public charge ground of inadmissibility and who might disenroll 
from public benefits or forgo enrollment in public benefits due to fear 
and confusion regarding the scope of the regulatory alternative.\14\ 
Further discussion of the

[[Page 55477]]

regulatory alternative can be found in the ``Regulatory Alternative'' 
section.
---------------------------------------------------------------------------

    \14\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41313 (Aug. 14, 2019).
---------------------------------------------------------------------------

    Relative to the No Action Baseline, the primary source of 
quantified new direct costs for the final rule is the increase in the 
time required to complete Form I-485. DHS estimates that the rule would 
impose additional new direct costs of approximately $6,435,755 annually 
to applicants filing Form I-485. In addition, the rule will result in 
an annual savings for a subpopulation of affected individuals: T 
nonimmigrants applying for adjustment of status would no longer need to 
submit Form I-601 to seek a waiver of the public charge ground of 
inadmissibility. DHS estimates the total annual savings for this 
population will be approximately $15,359. DHS estimates that the total 
annual net costs will be approximately $6,420,396.\15\
---------------------------------------------------------------------------

    \15\ Calculations: Total annual net costs ($6,420,396) = Total 
annual costs ($6,435,755)--Total annual savings ($15,359).
---------------------------------------------------------------------------

    Over the first 10 years of implementation, DHS estimates the total 
net costs of the rule will be approximately $64,203,960 (undiscounted). 
In addition, DHS estimates that the 10-year discounted total net costs 
of this rule will be approximately $54,767,280 at a 3-percent discount 
rate and approximately $45,094,175 at a 7-percent discount rate.
    DHS expects the primary benefit of this final rule to be the non-
quantified benefit of increased clarity in the rules governing public 
charge inadmissibility determinations. By codifying into regulations 
the current practice under the No Action Baseline (the 1999 Interim 
Field Guidance) with some changes, the final rule reduces uncertainty 
and confusion.
    The following two tables provide a more detailed summary of the 
provisions and their impacts relative to the No Action Baseline and 
Pre-Guidance Baseline, respectively.

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II. Background

A. Legal Authority

    The Secretary's authority for issuing this rule is found in various 
sections of the INA (8 U.S.C. 1101 et seq.) and the Homeland Security 
Act of 2002 (HSA).\16\
---------------------------------------------------------------------------

    \16\ See Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. 
(2002).
---------------------------------------------------------------------------

    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. Section 101 
of the HSA, 6 U.S.C. 111, establishes that part of DHS's primary 
mission is to ensure that efforts, activities, and programs aimed at 
securing the homeland do not diminish either the overall economic 
security of the United States or the civil rights and civil liberties 
of persons.
    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.
    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 they are likely at any time to become a public charge.
    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.
    Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of 
applicants for admission, including inadmissibility 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. The Public Charge Ground of Inadmissibility

    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 they are likely at any time to become a public charge. 
The public charge ground of inadmissibility, therefore, applies to 
individuals applying for a visa to come to the United States 
temporarily or permanently (typically adjudicated by DOS consular 
officers), for admission (typically adjudicated by U.S. Customs and 
Border Protection officers and U.S. Border Patrol Agents, and governed 
by this rule), or for adjustment of status to that of a lawful 
permanent resident (governed by this rule when adjudicated by U.S. 
Citizenship and Immigration Services officers).\17\ By statute, some 
categories of noncitizens are exempt from the public charge ground of 
inadmissibility, while others may apply

[[Page 55486]]

for a waiver of the public charge inadmissibility ground.\18\
---------------------------------------------------------------------------

    \17\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
    \18\ See INA sec. 245(j), 8 U.S.C. 1255(j). See 8 CFR 245.11. 
See INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A). See INA sec. 
245(l)(2)(A), 8 U.S.C. 1255(l)(2)(A). See INA sec. 212(d)(3)(A), 8 
U.S.C. 1182(d)(3)(A).
---------------------------------------------------------------------------

    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.\19\ 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.\20\
---------------------------------------------------------------------------

    \19\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \20\ See INA sec. 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 or Form I-864EZ). With 
very limited exceptions, most noncitizens seeking family-based 
immigrant visas and 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 as likely at any 
time to become a public charge. See INA sec. 212(a)(4)(C) and (D), 8 
U.S.C. 1182(a)(4)(C) and (D).
---------------------------------------------------------------------------

    Additionally, 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.\21\
---------------------------------------------------------------------------

    \21\ See INA sec. 213, 8 U.S.C. 1183.
---------------------------------------------------------------------------

C. 2019 DHS Inadmissibility on Public Charge Ground Final Rule, 
Vacatur, and Litigation History

    In August 2019, DHS issued a final rule, Inadmissibility on Public 
Charge Grounds (2019 Final Rule).\22\ As explained in more detail in 
the NPRM,\23\ the 2019 Final Rule provided key definitions, including 
``public charge'' and ``public benefits,'' and provided a multi-factor 
framework along with associated evidentiary requirements through which 
USCIS would determine inadmissibility on the public charge ground. The 
2019 Final Rule added provisions that rendered certain nonimmigrants 
ineligible for extension of stay or change of status if they received 
public benefits for a certain period, and 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. The 2019 Final Rule did not interpret or change 
DHS's implementation of the public charge ground of deportability.\24\
---------------------------------------------------------------------------

    \22\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR 
41292 (Aug. 14, 2019), as amended by ``Inadmissibility on Public 
Charge Grounds; Correction,'' 84 FR 52357 (Oct. 2, 2019).
    \23\ See 87 FR at 10606 (Feb. 24, 2022).
    \24\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 
``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 41295 
(Aug. 14, 2019).
---------------------------------------------------------------------------

    Also as discussed in the NPRM,\25\ the 2019 Final Rule was set to 
take effect on October 15, 2019. Before it did, numerous Plaintiffs 
filed suits challenging the 2019 Final Rule in five district courts, 
across four circuits.\26\ Following a series of preliminary injunctions 
and stays or reversals of those injunctions, the 2019 Final Rule was 
ultimately vacated nationwide by a partial final judgment entered by 
the U.S. District Court for the Northern District of Illinois.\27\ DHS 
subsequently formally removed the 2019 Final Rule from the Code of 
Federal Regulations.\28\
---------------------------------------------------------------------------

    \25\ See 87 FR at 10586 (Feb. 24, 2022).
    \26\ CASA de Maryland, Inc., et al. v. Trump, 19-cv-2715 (D. 
Md.); City and County of San Francisco, et al. v. DHS, et al., 19-
cv-04717 (N.D.Ca.); City of Gaithersburg, et al. v. Trump, et al., 
19-cv-02851 (D. Md.); Cook County et al. v. McAleenan et al., 19-cv-
06334 (N.D. Ill.); La Clinica De La Raza, et al. v. Trump, et al., 
19-cv-4980 (N.D. Ca.); Make the Road New York, et al. v. Cuccinelli, 
et al., 19-cv-07993 (S.D.N.Y.); New York, et al. v. DHS, et al., 19-
cv-07777 (S.D.N.Y.); State of California, et al. v. DHS, et al., 19-
cv-04975 (N.D. Cal.); State of Washington, et al. v. DHS, et al., 
19-cv-05210 (E.D. Wa.).
    \27\ See Cook County v. Wolf, 498 F. Supp. 3d 999 (N.D. Ill. 
Nov. 2, 2020).
    \28\ See ``Inadmissibility on Public Charge Grounds; 
Implementation of Vacatur,'' 86 FR 14221 (Mar. 15, 2021).
---------------------------------------------------------------------------

    The litigation concerning the 2019 Final Rule continued, with 
attempts by certain States to intervene in the various cases. On May 
12, 2021, a collection of States filed motions to intervene in the U.S. 
District Court for the Northern District of Illinois for 
reconsideration of the grant of partial summary judgment and for other 
relief.\29\ The motions were denied, and prospective intervenors noted 
their appeal to the U.S. Court of Appeals for the Seventh Circuit.
---------------------------------------------------------------------------

    \29\ See Texas, et al. v. Cook County, Illinois, et al., 1:19-
cv-0633419 (N.D. Ill. May 12, 2021).
---------------------------------------------------------------------------

    Separately, on March 10, 2021, a collection of prospective 
intervenors, led by the State of Arizona, filed an unsuccessful motion 
to intervene before the U.S. Court of Appeals for the Ninth 
Circuit.\30\ The prospective intervenors then filed a motion before the 
Supreme Court seeking leave to intervene, which the Court ordered to be 
held in abeyance while the prospective intervenors filed a petition for 
certiorari from the Ninth Circuit intervention denial, which was filed 
on June 23, 2021.\31\ On October 29, 2021, the Supreme Court granted 
certiorari on a single issue of the three presented in the petition: 
``Whether States with interests should be permitted to defend a rule 
when the United States ceases to defend.'' On June 15, 2022, the 
Supreme Court dismissed the writ of certiorari as improvidently 
granted.\32\
---------------------------------------------------------------------------

    \30\ City and County of San Francisco, et al. v. USCIS et al., 
19-17213 (9th Cir.).
    \31\ Arizona, et al., v. City and County of San Francisco, et 
al., 20-1775 (U.S. Oct. 29, 2021).
    \32\ Arizona, et al., v. City and County of San Francisco, et 
al., 20-1775 (U.S. June 15, 2022).
---------------------------------------------------------------------------

    On June 27, 2022, the U.S. Court of Appeals for the Seventh Circuit 
ruled that the U.S. District Court for the Northern District of 
Illinois did not abuse its discretion in denying the States' motions to 
intervene in the proceedings concerning the 2019 Final Rule and request 
for relief from judgment under Rule 60(b).\33\ Other aspects of the 
litigation concerning the 2019 Final Rule have been stayed, with 
varying reporting requirements, pending the outcome of the intervention 
litigation.
---------------------------------------------------------------------------

    \33\ Cook County, Illinois, et al. v. State of Texas, et al., 37 
F. 4th 1335 (7th Cir. 2022).
---------------------------------------------------------------------------

D. Current Public Charge Inadmissibility Guidance

    As discussed in the NPRM, DHS currently makes public charge 
inadmissibility determinations in accordance with the statute and the 
1999 Interim Field Guidance.\34\ The guidance explains how the agency 
determines 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)(4). Under 
the guidance, officers can offer public charge bonds, but the guidance 
does not provide procedures for public charge bonds.
---------------------------------------------------------------------------

    \34\ See 87 FR at 10585 (Feb. 24, 2022).
---------------------------------------------------------------------------

E. Current Rulemaking

    On August 23, 2021, DHS published an Advance Notice of Proposed 
Rulemaking (ANPRM) to seek broad public feedback on the public charge 
ground of inadmissibility to inform its development of a future 
regulatory proposal.\35\ USCIS sought input from individuals, 
organizations, government entities and agencies, and all other 
interested members of the public. USCIS held two public listening 
sessions and accepted written comments and related

[[Page 55487]]

material through October 22, 2021. DHS reviewed all of the comments and 
considered them in developing the NPRM.\36\
---------------------------------------------------------------------------

    \35\ See ``Public Charge Ground of Inadmissibility,'' 86 FR 
47025 (Aug. 23, 2021).
    \36\ See 87 FR at 10597 (Feb. 24, 2022).
---------------------------------------------------------------------------

    On February 24, 2022, DHS published a proposed rule, Public Charge 
Ground of Inadmissibility.\37\ The public comment period closed on 
April 25, 2022. Following careful consideration of public comments 
received in response to the NPRM, DHS has made modifications to the 
regulatory text proposed in the NPRM, as described above and throughout 
this preamble.
---------------------------------------------------------------------------

    \37\ ``Public Charge Ground of Inadmissibility,'' 87 FR 10570 
(Feb. 24, 2022).
---------------------------------------------------------------------------

    The following section of this preamble includes a detailed summary 
and analysis of the public comments received on the NPRM. Comments made 
in response to the ANPRM and the NPRM may be reviewed at the Federal 
Docket Management System (FDMS) at https://www.regulations.gov, docket 
number USCIS-2021-0013.

III. Response to Public Comments on the Proposed Rule

A. Summary of Public Comments

    DHS received a total of 223 public comment submissions in Docket 
USCIS-2021-0013 in response to the proposed rule. The majority of 
comment submissions were from advocacy groups or individual commenters. 
Other commenters included anonymous commenters; healthcare providers; 
research institutes, universities, and academic researchers; law firms, 
individual attorneys, and other legal services providers; Federal, 
State, and local elected officials; State and local government 
agencies; religious and community organizations; unions; Federal 
Government officials; professional associations; and trade and business 
organizations. While some commenters opposed the rule and some 
commenters supported the rule in its entirety, the majority of 
commenters expressed support for the rule with suggestions for 
improvement, or indicated that they believed the proposed rule was 
flawed in some way, but a significant improvement over the 2019 Final 
Rule. A few of the public comments supported a return to the framework 
contained in the 2019 Final Rule.

B. Comments Expressing General Support for the Proposed Rule

    Comment: Many commenters were generally in favor of the proposed 
rule and expressed support for clarifying the public charge ground of 
inadmissibility. Some of those commenters stated that the rule ensures 
that the public charge ground of inadmissibility will be implemented in 
a clear, consistent, and fair manner. Several commenters praised the 
rule on the grounds that it requires less paperwork for applicants as 
compared to the 2019 Final Rule, and allows for administration of the 
public charge ground of inadmissibility without generating undue fear 
and confusion. Another commenter similarly stated that the rule is the 
best option because it respects the rights of the greatest number of 
stakeholders and produces the best outcome with the least harm. This 
commenter remarked that this rule would allow more people ``who are fit 
to immigrate a chance to'' do so, while keeping more families together. 
One commenter expressed support for the proposed rule, stating it is 
critical that DHS move quickly to finalize a more fair and equitable 
public charge rule that minimizes the harm to children and families, 
while recognizing the need to create an inclusive and anti-racist 
system. One commenter stated that they support the development of a 
rule that avoids the unequal treatment of similarly situated persons, 
and that a rule that is straightforward and administrable can be 
applied fairly and consistently.
    Response: DHS agrees that this rule will help ensure that public 
charge inadmissibility determinations are fair, consistent with law, 
and informed by relevant data and evidence. Additionally, DHS agrees 
that this rule reduces unnecessary burdens on applicants as compared to 
the 2019 Final Rule. Notwithstanding that the 2019 Final Rule resulted 
in very few adverse determinations, that rule introduced a new form and 
form instructions spanning over 45 pages, which was in addition to the 
more than 60 pages of form and form instructions associated with the 
Form I-485, Application to Register Permanent Residence or Adjust 
Status. This rule introduces a more targeted information collection 
that collects the necessary information under the statute and this rule 
without imposing an unnecessary paperwork burden on the public.
    Comment: Several commenters stated that immigrants fill valuable 
jobs that U.S. citizens may not generally favor, such as direct care 
work, which can be very challenging and important but poorly 
compensated. A commenter remarked that immigrants contribute to the 
United States through paying their taxes, and others stated that 
increased immigration would have a positive effect on the current 
pandemic economy. Two other commenters stated that the rule will allow 
more noncitizens to immigrate and access public education, which will 
allow them to obtain better jobs and support themselves and their 
families.
    Response: DHS appreciates commenters' support for this rule and 
notes that any impacts on the U.S. economy, job creation, or better 
access to education would be indirect effects of the rule, and the 
rule, designed to implement congressional directions, would be 
justified even in the absence of such benefits. The fundamental intent 
of this rule is to help ensure that public charge inadmissibility 
determinations will be consistent with law, fair, and informed by 
relevant data and evidence. DHS also expects that this rule will help 
alleviate the chilling effects caused by previous public charge 
policies. Historical evidence, both prior to the 2019 Final Rule and 
from the period of time during which that rule was in effect, does not 
suggest that this final rule is likely to meaningfully change the 
overall volume of immigration to the United States.
    Comment: One commenter commended USCIS on the overall direction of 
the NPRM and said that the proposed rule is a reasonable interpretation 
of the statutory public charge ground of inadmissibility that is 
generally consistent with long-time agency policy and an improvement on 
the 1999 Interim Field Guidance. Another commenter stated that the rule 
clearly seeks to avoid the barriers to immigration imposed by the 2019 
Final Rule while preserving the integrity of the enforcement of the 
public charge ground of inadmissibility.
    Response: DHS agrees that this rule is generally consistent with 
longstanding agency policy and is a reasonable interpretation of the 
statutory language in section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4). DHS believes this rule codifies a policy that is fully 
consistent with law, that reflects empirical evidence to the extent 
relevant and available, and that allows flexibility for officers to 
benefit from the emergence of new evidence as time passes. DHS believes 
that this rule will create clear and comprehensible adjudicative 
standards that will lead to fair and consistent adjudications and 
ensure equitable treatment of similarly situated individuals. DHS also 
believes that this rule will not unduly impose barriers for noncitizens 
or unduly interfere with the receipt of supplemental public benefits, 
especially by those who are not subject to the public charge ground of 
inadmissibility.
    Comment: One commenter indicated agreement with the rule and stated 
that a person who wants permission to enter

[[Page 55488]]

the United States should only be allowed to do so if they demonstrate 
that they would not become a public charge now or sometime in the 
future. Further, the commenter stated that anyone entering the country 
illegally should be sent back to their country if they cannot show that 
they will not become a public charge.
    Response: Consistent with section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), any noncitizen who is an applicant for a visa, admission, 
or adjustment of status must demonstrate that they are not likely at 
any time to become a public charge, unless Congress has expressly 
exempted them from this ground. If DHS determines an applicant for 
admission or adjustment of status who is subject to this 
inadmissibility ground is likely at any time to become a public charge, 
the applicant is inadmissible and will not be admitted to the United 
States or granted adjustment of status unless they are eligible for and 
receive a waiver or are offered and post a public charge bond.
    In regard to noncitizens who are entering the United States without 
authorization, to the extent that such noncitizens are applicants for 
admission, and subject to the public charge ground of inadmissibility, 
if they are unable to demonstrate that they are not likely at any time 
to become a public charge, they would not be admitted unless they are 
eligible for and receive a waiver or are offered and post a public 
charge bond. Such individuals may also be removable on other grounds.

C. Comments Expressing General Opposition to the Proposed Rule

    Comment: Many commenters stated that they opposed the rule because, 
in their opinion, the statutory public charge ground of inadmissibility 
and as a consequence the corresponding proposed rule are racist, 
xenophobic, based on white nationalism, or otherwise discriminatory. 
Several commenters stated that the United States should be doing more 
to help immigrants, and offering them aid and assistance. One commenter 
said that this rule is intended to prevent immigration, while another 
commenter stated that the proposed rule seeks to punish potential 
immigrants for the simple act of being born outside of the United 
States, and enforces a wealth test that counteracts the reason for the 
founding of this nation and the legacy of the American dream. A 
different commenter similarly said that the proposed rule went against 
the values of the United States. Some commenters stated that it is 
unfair to reject immigrants based on the public charge ground of 
inadmissibility because it would take away opportunities for them to 
have a better life.
    Response: DHS seeks to be faithful to the relevant statute and 
hence to congressional directions. For that reason, DHS disagrees with 
the suggestion that the rule is contrary to the laws and values of the 
United States, or that the rule implies that immigrants are inherently 
less worthy than U.S. citizens. DHS does not intend or expect that this 
rule will have a discriminatory effect based on race, nationality, 
gender, disability, or any other protected ground. Importantly, the 
statute does not direct DHS to consider a noncitizen's race, 
nationality, or gender.\38\ Under this rule, DHS will not consider such 
characteristics when making a public charge inadmissibility 
determination. DHS cannot rule out the possibility of disproportionate 
impacts on certain groups (whether as a consequence of the policy 
contained in this rule, the 1999 Interim Field Guidance, or any other 
policy), but this rule is neutral on its face and DHS in no way intends 
that it will have such impacts on any protected group. DHS is committed 
to applying this rule neutrally and fairly to all noncitizens who are 
subject to it and has included a provision requiring that USCIS denials 
on public charge grounds be accompanied by a written explanation that 
specifically articulates the reasons for the officer's 
determination.\39\
---------------------------------------------------------------------------

    \38\ INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
    \39\ See 8 CFR 212.22(c).
---------------------------------------------------------------------------

    Additionally, this rule does not apply a ``wealth test.'' 
Consistent with the governing statute, it looks only at whether an 
applicant for admission or adjustment of status is likely at any time 
in the future to become primarily dependent on the government for 
subsistence after consideration of several factors, none of which alone 
determine the final outcome. In that analysis, the consideration of 
assets, resources, and financial status is one factor to be considered 
in the totality of the noncitizen's circumstances.
    In addition, as discussed in the NPRM, DHS has taken care to 
address the potential collateral effects of this rule on the public, 
including potential chilling effects, by including a range of important 
provisions. For instance, this rule includes a clear list of statutory 
exemptions from the public charge ground of inadmissibility; excludes 
consideration of a noncitizen's past receipt of public benefits while 
in a status exempt from the public charge ground of inadmissibility; 
makes clear that a noncitizen's receipt of public benefits solely on 
behalf of another person (such as a U.S. citizen child) will not work 
to the noncitizen's disadvantage; and excludes consideration of most 
non-cash benefits (for which most noncitizens subject to the public 
charge ground of inadmissibility are ineligible), except in the limited 
circumstance of long-term institutionalization at government expense.
    DHS has concluded that this rule is generally consistent with 
longstanding agency policy and is a reasonable interpretation of the 
statutory language. DHS further intends that this rule will lead to 
fair and consistent adjudications, will avoid unequal treatment of 
similarly situated individuals, and will not otherwise unduly impose 
barriers for noncitizens seeking admission to or adjustment of status 
in the United States.\40\ Congress requires DHS to consider an 
applicant's age; health; family status; assets, resources, and 
financial status; and education and skills as part of the public charge 
inadmissibility determination. In the NPRM, DHS proposed to include an 
objective, data-informed consideration in the totality of the 
circumstances analysis and is retaining this consideration in this 
final rule. Namely, when DHS issues guidance to officers that informs 
the totality of the circumstances assessment, such guidance will 
consider how these factors affect the likelihood that a noncitizen will 
become a public charge at any time, and will be based on an empirical 
analysis of the best-available data as appropriate. The nature of the 
public charge inadmissibility determination under this rule--a 
prospective determination made in the totality of the circumstances 
``in the opinion'' of the immigration officer--renders it amenable to 
sub-regulatory guidance that identifies a range of nonbinding 
considerations and can be updated to account for advancements in the 
best-available data. DHS acknowledges that it cannot eliminate the 
possibility of officer bias, but USCIS adjudicators are trained 
professionals and as with other immigration determinations, 
adjudicators will specifically articulate the reasons for a proposed 
adverse determination and will provide an opportunity to respond.\41\
---------------------------------------------------------------------------

    \40\ See Executive Order (E.O.) 14012, ``Restoring Faith in Our 
Legal Immigration Systems and Strengthening Integration and 
Inclusion Efforts for New Americans,'' 86 FR 8277 (Feb. 5, 2021).
    \41\ See 8 CFR 212.22(c).

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[[Page 55489]]

    Comment: Several commenters stated that it is immoral for 
immigration policy to impoverish vulnerable individuals and their 
family members who are otherwise eligible for cash assistance, physical 
and mental health care, nutrition, or housing benefits. One commenter 
remarked that targeting social programs intended to help the general 
public is a waste of resources, and appears to suggest that the 
government should instead focus on people who are violating other laws.
    Response: This rule is designed to adhere to, and to implement, 
congressional instructions. It is not designed to impoverish 
individuals or require individuals to prove their particular utility to 
the U.S. economy. Consistent with the statutory directive to determine 
whether a noncitizen is likely at any time to become a public charge, 
this rule directs DHS to consider the past or current receipt of public 
cash assistance for income maintenance and long-term 
institutionalization at government expense. DHS will be doing so in the 
totality of the noncitizen's circumstances, and will also take into 
account the amount, duration, and recency of such receipt. Nothing in 
this rule directs noncitizens to stop receiving any public benefit 
considered in this rule, and past or current receipt of public benefits 
is not alone dispositive of whether or not a noncitizen will be 
determined to be inadmissible on the public charge ground. While the 
commenter did not explain why they thought this rule targets social 
programs or in which way, DHS disagrees with the statement that the 
NPRM or this final rule ``targets'' social programs. Nothing in this 
rule affects eligibility for any one or more public benefits. Instead, 
DHS is simply establishing which public benefits it will consider in 
public charge inadmissibility determinations. The benefits that DHS is 
considering in this rule are the benefits it believes are more 
indicative of whether a noncitizen is likely to become primarily 
dependent on the government for subsistence.
    DHS is also seeking to ensure that to the extent consistent with 
law, the rule will not unduly interfere with the receipt of public 
benefits, especially by those who are not subject to the public charge 
ground of inadmissibility. DHS has given consideration to the potential 
chilling effects of promulgating regulations governing the public 
charge inadmissibility determination. In considering such effects, DHS 
has taken into account the former INS's approach to chilling effects in 
the 1999 Interim Field Guidance and 1999 NPRM, the 2019 Final Rule's 
discussion of chilling effects, judicial opinions on the role of 
chilling effects, evidence of chilling effects following the 2019 Final 
Rule (as well as the minimal number of denials of applications for 
adjustment of status based on the public charge ground of 
inadmissibility,\42\) and public comments on chilling effects received 
in response to the August 2021 ANPRM and the NPRM. To this end, DHS has 
determined that public charge inadmissibility determinations will be 
limited to the specified statutory factors; the Affidavit of Support 
Under Section 213A of the INA where required; and current and/or past 
receipt of TANF; SSI; State, Tribal, territorial, or local cash benefit 
programs for income maintenance and long-term institutionalization at 
government expense.
---------------------------------------------------------------------------

    \42\ In the NPRM, DHS acknowledged that notwithstanding 
``widespread indirect effects [of the 2019 Final Rule], during the 
time that the 2019 Final Rule was in place, of the 47,555 
applications for adjustment of status to which the rule was applied, 
DHS issued only 3 denials (which were subsequently reopened and 
approved) and 2 Notices of Intent to Deny (which were ultimately 
rescinded, and the applications were approved) based on the totality 
of the circumstances public charge inadmissibility determination 
under section 212(a)(4)(A)-(B) of the INA, 8 U.S.C. 1182(a)(4)(A)-
(B).'' 87 FR at 10571 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: A commenter stated that noncitizens who enter the United 
States on nonimmigrant visas for certain periods of time have already 
shown that they can provide for themselves and these noncitizens also 
do not usually have the right to obtain public benefits. That commenter 
stated that the likelihood those individuals would become a public 
charge is extremely low because they have no choice but to support 
themselves or rely on their families. The commenter also stated that 
immigrants contribute to our society economically and to limit 
immigration is to limit economic growth, citing a 2019 report by the 
Center on Budget and Policy Priorities.\43\ Another commenter stated 
that DHS should do more to reduce barriers to obtaining lawful 
immigration status because doing so also creates positive 
externalities, including improved efficiency in the labor market, the 
creation of new business by immigrants, the filling of less desirable 
labor positions and economic gains from growth, earnings, tax revenues 
and jobs.
---------------------------------------------------------------------------

    \43\ See Arloc Sherman et al., ``Immigrants Contribute Greatly 
to U.S. Economy, Despite Administration's `Public Charge' Rule 
Rationale,'' Center on Budget and Policy Priorities (Aug. 15, 2019), 
https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations (last 
visited July 7, 2022).
---------------------------------------------------------------------------

    Response: DHS agrees with the commenter who pointed out that many 
noncitizens, including those present in the United States in 
nonimmigrant status, are not eligible for certain public benefits. 
PRWORA, which was passed in 1996, significantly restricted noncitizens' 
eligibility for many Federal, State, and local public benefits.\44\ In 
the NPRM, DHS included a table listing the major categories of 
noncitizens eligible for SSI, TANF, or Medicaid who would be subject to 
a public charge inadmissibility determination were they later to apply 
for adjustment of status or admission to the United States, unless 
another statutory exemption applies that is particular to their 
individual circumstances.\45\ DHS presents the table again here, for 
background purposes only. The table should not be used to determine 
benefits eligibility.\46\
---------------------------------------------------------------------------

    \44\ Public Law 104-193, tit. IV, 8 U.S.C. 1601 through 1646.
    \45\ 87 FR 10570, 10583 (Feb. 24, 2022).
    \46\ DHS included this table in the NPRM and welcomed proposed 
clarifications or corrections, but received no substantive comments.

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[[Page 55490]]

[GRAPHIC] [TIFF OMITTED] TR09SE22.008


[[Page 55491]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.009

    DHS notes that while the commenter focused on nonimmigrants, this 
rule will apply only to noncitizens applying for admission or 
adjustment of status. As discussed elsewhere in this preamble, 
including sections III.D.3.b. and III.F., unlike the 2019 Final Rule, 
this rule does not apply to nonimmigrants seeking extension of stay or 
change of status in the United States.
    DHS has concluded that this rule will faithfully administer the 
public charge ground of inadmissibility. As compared to the 1999 
Interim Field Guidance, the rule does not necessarily reduce burdens 
for applicants, but will provide important clarity and predictability 
as part of DHS's overall efforts to reduce barriers for applicants for 
admission and adjustment of status. As compared to the 2019 Final Rule, 
this rule does reduce burdens, including the direct paperwork burden 
imposed on applicants. Under this rule, DHS will not require a separate 
information collection form regarding the public charge ground of 
inadmissibility but will instead incorporate a more manageable set of 
questions in Form I-485, Application to Register Permanent Residence or 
Adjust Status, that will collect public charge-related information from 
applicants who are subject to section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4).
    DHS also notes that while the public charge ground of 
inadmissibility and this final rule include the consideration of an 
applicant's education and skills when assessing the likelihood at any 
time of becoming a public charge, DHS is not engaging in an analysis of 
the utility of a noncitizen to the U.S. labor market nor assessing the 
impact of an applicant for admission or adjustment of status on the 
broader U.S. economy. DHS addresses the economic impacts of this rule 
later in this preamble.
    Comment: One commenter stated that the rule places a 
disproportionate burden on noncitizens to avoid assistance, where U.S. 
citizens can use cash assistance and long-term institutionalization, 
such as a nursing home, without penalty, and also stated that using 
cash assistance and institutionalization does not automatically 
disqualify a person from being a productive member of society. Another 
commenter stated that the rule imposes undue immigration restrictions.
    Response: As a matter of law, the public charge ground of 
inadmissibility applies to noncitizens and not to citizens. It is 
therefore not inconsistent with law that a rule implementing the public 
charge ground of inadmissibility would affect noncitizens most 
directly. In developing this rule, DHS has taken into account the 
chilling effects historically associated with the public charge ground 
of inadmissibility \47\ and has created a rule that remains faithful to 
the statutory text and the underlying Congressional purpose, while 
remaining cognizant of the provisions of PRWORA restricting the use of 
certain public benefits by certain groups of noncitizens. In this final 
rule, DHS specifically indicates that public charge inadmissibility 
determinations must be based on the totality of the individual's 
circumstances and no one factor, other than the lack of a sufficient 
Affidavit of Support Under Section 213A of the INA, if required, should 
be the sole criterion for determining an applicant is likely at any 
time to become a public charge.\48\
---------------------------------------------------------------------------

    \47\ See, e.g., 87 FR at 10587-10592 (Feb. 24, 2022).
    \48\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: One commenter stated that this rule will effectively 
criminalize poverty and correspond to an increased number of 
noncitizens who reside in the United States without lawful status 
because those more likely to become public charges in the future are 
not likely to be able to afford the cost of departing the United 
States.
    Response: DHS disagrees that this rule will effectively criminalize 
poverty. The public charge ground of inadmissibility is not a criminal 
statute, and only applies to individuals when they apply for visas, 
admission, or adjustment of status. DHS is under an obligation to 
faithfully administer section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), regardless of whether DHS issues implementing 
regulations.\49\ This rule is intended to apply the public charge 
ground of inadmissibility in a manner that is consistent with the law, 
is clear, fair, and comprehensible, and takes into account the chilling 
effects resulting from previous policies on both noncitizens and U.S. 
citizens. DHS notes that this rule does not create a new ground of 
inadmissibility to which noncitizens are subject.
---------------------------------------------------------------------------

    \49\ In fact, the vast majority of the grounds of 
inadmissibility at section 212 of the INA, 8 U.S.C. 1182, have not 
been implemented by regulation at all, but are administered and 
enforced by DHS based on the statute.
---------------------------------------------------------------------------

    It is unclear why the above commenter believes that a rule 
implementing the public charge ground of inadmissibility would increase 
the number of noncitizens who reside in the United States unlawfully. 
The comment implies a connection between the rule discouraging public 
benefit use by noncitizens and those noncitizens being unable to afford 
the travel costs to depart the United States. DHS notes that the great 
majority of noncitizens are either ineligible for the public benefits 
covered by this rule prior to admission or adjustment of status or are 
eligible for those benefits but are exempt from a public charge 
inadmissibility determination under section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4). Given this, DHS believes it is unlikely that 
noncitizens would remain in the United States unlawfully as a result of 
the rule

[[Page 55492]]

rendering them unable to afford travel costs as the commenter suggests.
    Comment: Some commenters stated that the rule is ``ineffective'' 
and will encourage the use of public benefits by noncitizens while 
rendering the public charge ground of inadmissibility ``useless.'' 
Commenters wrote that, if finalized, the rule will be an incentive for 
more immigration to the United States by noncitizens who will rely on 
public benefits without fear of repercussions as they build their lives 
in the United States and eventually seek to obtain lawful status. They 
further stated that any changes to the proposed rule that create the 
appearance of facilitating access to public benefits will only attract 
more immigration during a time when many noncitizens are entering 
unlawfully at the southern border.
    Another commenter stated that immigrant families may include many 
family members, which can lead to higher taxes at the State and local 
level to support education if the children are non-English speaking. 
Commenters stated that the rule is more concerned with chilling effects 
but should be concerned with the national value of self-sufficiency 
established by Congress in more than a century of statutes, a concern 
also addressed elsewhere in this preamble.
    Response: DHS disagrees that the rule is ineffective or will 
encourage the use of public benefits by noncitizens who are subject to 
the public charge ground of inadmissibility.
    The rule establishes appropriate definitions and regulatory 
standards, and is accompanied by form changes that will allow DHS to 
collect information from applicants to make determinations under the 
public charge ground of inadmissibility. Under this rule, DHS will 
determine whether any noncitizen who Congress has decided is subject to 
the public charge ground of inadmissibility is likely at any time to 
become primarily dependent on the government for subsistence, as 
demonstrated by either the receipt of public cash assistance for income 
maintenance or long-term institutionalization at government expense. In 
making this determination, DHS considers the statutory factors, an 
Affidavit of Support Under Section 213A of the INA if required, and the 
applicant's current and/or past receipt of public cash assistance for 
income maintenance or long-term institutionalization at government 
expense, in the totality of the circumstances.\50\ It is apparent from 
DHS's approach in this rule, which considers public benefits receipt 
both as part of the definition for likely at any time to become a 
public charge as well as when making the public charge inadmissibility 
determination in the totality of the circumstances, that commenters' 
concern that this rule will render the public charge ground of 
inadmissibility ``ineffective'' or ``useless'' is unfounded.
---------------------------------------------------------------------------

    \50\ See 8 CFR 212.22(a).
---------------------------------------------------------------------------

    DHS notes that the commenters' preferred approach--the 2019 Final 
Rule or something similar--ultimately did not result in a single denial 
of adjustment of status on public charge grounds, although that rule 
apparently resulted in widespread disenrollment effects among those who 
were not covered by that rule to begin with.\51\ To the extent that 
commenters suggest that the effectiveness of this rule should be 
measured by disenrollment effects among those who are not subject to 
the public charge ground of inadmissibility, or that DHS must pursue 
public charge rulemaking for the sake of, or without regard to, 
disenrollment effects among that population, DHS respectfully 
disagrees. Reducing costs by causing confusion among those who are not 
covered by the rule, leading them to forgo benefits for which they are 
eligible, would not be a desirable effect even if the rule were found 
to have that effect.
---------------------------------------------------------------------------

    \51\ See, e.g., 87 FR at 10589 (Feb. 24, 2022).
---------------------------------------------------------------------------

    As discussed in the NPRM,\52\ noncitizens who are subject to the 
public charge ground of inadmissibility are generally not eligible for 
public benefits. PRWORA significantly restricted noncitizens' 
eligibility for many Federal, State, and local public benefits.\53\ 
PRWORA defines the term ``Federal public benefit'' \54\ and provides 
that an ``alien'' who is not a ``qualified alien'' is ineligible for 
such benefits,\55\ subject to certain exceptions.\56\ Among the 
exceptions established by Congress are eligibility among all 
noncitizens for medical assistance for the treatment of an emergency 
medical condition; short-term, in-kind, non-cash emergency disaster 
relief; and public health assistance related to immunizations and 
treatment of the symptoms of a communicable disease.\57\ The exceptions 
were further clarified by the Department of Justice (DOJ) and some of 
the agencies that administer these public benefits. On January 16, 
2001, DOJ published a notice of final order, ``Final Specification of 
Community Programs Necessary for Protection of Life or Safety Under 
Welfare Reform Legislation,'' \58\ which indicated that PRWORA does not 
preclude noncitizens from receiving certain other widely available 
programs, services, or assistance as well as certain benefits and 
services for the protection of life and safety.
---------------------------------------------------------------------------

    \52\ See 87 FR at 10580 (Feb. 24, 2022).
    \53\ Public Law 104-193, tit. IV, 8 U.S.C. 1601 through 1646.
    \54\ Public Law 104-193, sec. 401(c), 8 U.S.C. 1611(c).
    \55\ Public Law 104-193, sec. 401(a), 8 U.S.C. 1611(a).
    \56\ Public Law 104-193, sec. 401(b), 8 U.S.C. 1611(b).
    \57\ See Public Law 104-193, sec. 401(b)(1), 8 U.S.C. 
1611(b)(1). See ``Final Specification of Community Programs 
Necessary for Protection of Life or Safety Under Welfare Reform 
Legislation,'' 66 FR 3613 (Jan. 16, 2001); see also ``Interim 
Guidance on Verification of Citizenship, Qualified Alien Status and 
Eligibility Under Title IV of the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996,'' 62 FR 61344 (Nov. 17, 
1997).
    \58\ See ``Final Specification of Community Programs Necessary 
for Protection of Life or Safety Under Welfare Reform Legislation,'' 
66 FR 3613 (Jan. 16, 2001); see also ``Specification of Community 
Programs Necessary for Protection of Life or Safety Under Welfare 
Reform Legislation,'' 61 FR 45985 (Aug. 30, 1996).
---------------------------------------------------------------------------

    Under this rule, DHS will determine if a noncitizen is likely at 
any time to become primarily dependent on the government for 
subsistence, as demonstrated by either the receipt of public cash 
assistance for income maintenance or long-term institutionalization at 
government expense. This rule does not change eligibility for public 
benefits. Rather, officers will consider a noncitizen's past or current 
receipt of public cash assistance for income maintenance or long-term 
institutionalization at government expense when making public charge 
inadmissibility determinations.
    DHS also disagrees that the rule is likely to meaningfully change 
the overall volume of immigration, including unlawful migration. This 
rule certainly does not create any greater incentive for unlawful 
migration than PRWORA (which noted congressional concern with such 
incentives, and also created benefits eligibility rules for noncitizens 
to address them, at least in part) or the various subsequent statutory 
exceptions to PRWORA's general framework. The commenters provided no 
objective evidence that any of the above policies resulted in a 
significant increase in immigration, let alone objective evidence that 
this rule will have that effect. Even if this rule had a minor effect 
on immigration, due to the misperception that it alters the impact of 
the receipt of benefits by noncitizens residing in the United States 
unlawfully, DHS would still issue it because the rule is generally 
consistent with longstanding agency policy and is

[[Page 55493]]

a faithful interpretation of the statutory phrase ``likely at any time 
to become a public charge''; avoids unnecessary burdens on applicants, 
officers, and benefits-granting agencies; and mitigates the possibility 
of widespread ``chilling effects'' with respect to individuals 
disenrolling or declining to enroll themselves or family members in 
public benefits programs for which they are eligible, especially with 
respect to individuals who are not subject to the public charge ground 
of inadmissibility. As previously noted, this rule has no effect on the 
limited eligibility of noncitizens for public benefits under PRWORA or 
any other statute, and for this reason does not have an impact on the 
availability of public benefits to noncitizens in the United States. 
Nor should it create an incentive for immigration to the United States.
    DHS acknowledges that some non-cash benefits programs involve 
significant expenditures of government funds, but has concluded that 
the term ``public charge'' is best interpreted by reference to the 
degree of an individual's dependence on the government for support, 
rather than the scale of overall government expenditures for particular 
programs. DHS further discusses the impact of this rule on States' 
social welfare budgets later in this preamble.
    Finally, DHS notes that the commenter provided no data or sources 
for their statement that immigrants have larger families, which can 
lead to higher State and local taxes based on education costs. Under 
this rule, DHS will consider family status and household size as 
consistent with the standards in the proposed rule to determine whether 
an individual is likely at any time to become a public charge; it will 
not rely on generalizations about the relative size of immigrant 
households when considering family status.

D. Comments Regarding Legal Authority and Statutory Provisions

1. Statutory Text, Congressional Intent, and the Proposed Rule
    Comment: Some commenters said that DHS should be focused on self-
sufficiency, with some stating that the rule contradicts Congress' 
intent, as set forth in 8 U.S.C. 1601,\59\ that noncitizens be self-
sufficient, and not rely on public resources to meet their needs, but 
instead rely on their own skills and the resources of their families, 
their sponsors, and private organizations. These commenters further 
stated that the rule is inconsistent with 8 U.S.C. 1601 because it 
incentivizes immigration through the availability of public benefits 
rather than addressing ``the government's interest in ensuring 
noncitizens are self-reliant in accordance with national immigration 
policy.'' Another commenter stated that current eligibility rules for 
public assistance and unenforceable financial support agreements have 
not lived up to the intent of the laws to prevent individual 
noncitizens burdening the public benefits system. A commenter also 
stated that the role of the Executive Branch is to enforce the laws 
written by Congress, and suggested that this rule is not enforcing 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and is suspending 
and dispensing with the ground. A commenter stated that the rule's 
interpretation of public charge violates the statute's text, intent, 
and legislative history. A commenter stated that the proposed rule 
``fails to address the compelling government interest to enact new 
rules for eligibility and sponsorship agreements in order to assure 
that noncitizens be self-reliant in accordance with national 
immigration policy.'' The commenter also requested DHS remove the 
``incentives'' of the proposed rule and instead provide enforceable 
consequences to prevent further abuse of already strained public 
resources.
---------------------------------------------------------------------------

    \59\ Public Law 104-193, sec. 400, 8 U.S.C. 1601.
---------------------------------------------------------------------------

    Response: USCIS agrees that self-sufficiency is a principle 
discussed in 8 U.S.C. 1601,\60\ and that subsection (2) of this 
provision states 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.'' \61\ DHS disagrees that this 
rule contradicts Congress' intent with respect to those principles. The 
principles of self-sufficiency articulated in 8 U.S.C. 1601(2) are 
reflected in a range of statutory measures including, most directly, 
those measures specifically referenced in 8 U.S.C. 1601 itself. In that 
section, immediately after articulating the above policy, Congress--
---------------------------------------------------------------------------

    \60\ 8 U.S.C. 1601(1).
    \61\ 8 U.S.C. 1601(2)(A).
---------------------------------------------------------------------------

     expressed concern that ``[d]espite the principle of self-
sufficiency, aliens have been applying for and receiving public 
benefits from Federal, State, and local governments at increasing 
rates''; \62\
---------------------------------------------------------------------------

    \62\ 8 U.S.C. 1601(3) (emphasis added).
---------------------------------------------------------------------------

     concluded that ``[c]urrent eligibility rules for public 
assistance and unenforceable financial support agreements have proved 
wholly incapable of assuring that individual aliens not burden the 
public benefits system''; \63\
---------------------------------------------------------------------------

    \63\ 8 U.S.C. 1601(4) (emphasis added).
---------------------------------------------------------------------------

     identified ``a compelling government interest to enact new 
rules for eligibility and sponsorship agreements in order to assure 
that aliens be self-reliant in accordance with national immigration 
policy,'' and ``to remove the incentive for illegal immigration 
provided by the availability of public benefits''; \64\ and
---------------------------------------------------------------------------

    \64\ 8 U.S.C. 1601(5)-(6) (emphases added).
---------------------------------------------------------------------------

     stated that ``[w]ith respect to the State authority to 
make determinations concerning the eligibility of qualified aliens for 
public benefits in this chapter, a State that chooses to follow the 
Federal classification in determining the eligibility of such aliens 
for public assistance shall be considered to have chosen the least 
restrictive means available for achieving the compelling governmental 
interest of assuring that aliens be self-reliant in accordance with 
national immigration policy.'' \65\
---------------------------------------------------------------------------

    \65\ 8 U.S.C. 1601(7) (emphasis added).
---------------------------------------------------------------------------

    In short, Congress tied the statement of national policy most 
closely to two types of actions that have already been taken by 
Congress itself: further restrictions on noncitizen eligibility for 
public benefits and enhanced enforceability of the Affidavit of Support 
Under Section 213A of the INA. Neither of those actions is changed at 
all by this rule, nor does this rule interfere in any respect with a 
State's ability to follow the Federal classification in determining the 
eligibility of noncitizens for public assistance.
    DHS acknowledges a relationship between the statement of national 
policy and the public charge ground of inadmissibility. The two 
statutes relate to a similar subject matter; Congress has tied the 
Affidavit of Support Under Section 213A of the INA to the public charge 
ground of inadmissibility; and Congress enacted the statement of 
national policy close in time with revisions to the public charge 
ground of inadmissibility. But Congress left it to DHS (and other 
agencies administering the public charge ground of inadmissibility) to 
specify how best to account for this statement of national policy in 
the context of a public charge inadmissibility determination generally. 
DHS notes that while the policy goals articulated in 8 U.S.C. 1601(2) 
with respect to self-sufficiency and the receipt of public benefits 
inform DHS's administrative implementation of the public charge ground 
of inadmissibility, DHS believes it is permitted to consider other 
important goals in implementing this ground of inadmissibility, such as

[[Page 55494]]

clarity, fairness, national resilience, and administrability. Moreover, 
DHS believes that this rule is consistent with the goals set forth in 8 
U.S.C. 1601.\66\ Indeed, the rule's consideration of receipt of public 
cash assistance for income maintenance or long-term 
institutionalization at government expense helps ensure that DHS 
focuses its public charge inadmissibility determinations on applicants 
who are likely to become primarily dependent on the government for 
subsistence. As with all grounds of inadmissibility, DHS is bound to 
administer and enforce the public charge ground of inadmissibility, but 
DHS is not bound to issue regulations with respect to each and every 
ground. In fact, such regulations are exceedingly rare. To whatever 
extent 8 U.S.C. 1601(2) calls for a more systematic implementation of 
the public charge ground of inadmissibility, DHS has accomplished that 
goal through this rulemaking.
---------------------------------------------------------------------------

    \66\ 87 FR at 10611 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS also disagrees that, in publishing this rule, it is declining 
to enforce section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and is 
suspending and dispensing with the ground of inadmissibility. Contrary 
to this commenter's assertion, and as noted in the NPRM,\67\ this rule 
reflects DHS's faithful administration of the public charge ground of 
inadmissibility without making it needlessly difficult for individuals 
to apply for adjustment of status or obtain supplemental services for 
which they are eligible. This rule is wholly consistent with section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and 8 U.S.C. 1601, as well 
as longstanding case law (as discussed at length below), mirrors the 
approach the Executive Branch used in enforcing the provision for two 
decades, and provides a rule that is clear and fair to administer.
---------------------------------------------------------------------------

    \67\ 87 FR at 10611 (Feb. 24, 2022).
---------------------------------------------------------------------------

    In addition, while commenters state that DHS has failed to 
adequately account for government interests and the costs of 
noncitizens receiving public benefits, commenters critical of the 
proposed policy have not provided data that illustrate how and to what 
extent noncitizens subject to the public charge ground of 
inadmissibility are drawing on limited government resources that fund 
the public benefit programs DHS is excluding from consideration in 
public charge inadmissibility determinations. Furthermore, as DHS 
explained in the NPRM, even during the period when the 2019 Final Rule 
was in effect, when DHS took into consideration a broader list of 
public benefits, that approach ultimately did not result in any denials 
of applications for adjustment of status based on the public charge 
ground of inadmissibility.
    With respect to public comments that stated that current 
sponsorship agreements are ``unenforceable'' and that DHS has failed to 
propose or enact new rules for eligibility and sponsorship agreements 
to assure that noncitizens be self-reliant in accordance with national 
immigration policy, such comments are largely outside the scope of the 
proposed rule, which (like the 2019 Final Rule) did not include any 
changes on those topics. In addition, DHS notes that an Affidavit of 
Support Under Section 213A of the INA is enforceable by statute.\68\ 
Although DHS may issue regulations governing the Affidavit of Support 
process, Congress has not tasked DHS with the enforcement of the 
Affidavit of Support Under Section 213A of the INA; such enforcement 
may be sought by the sponsored immigrant or by ``the appropriate 
nongovernmental entity which provided such benefit or the appropriate 
entity of the Federal Government, a State, or any political subdivision 
of a State.'' \69\
---------------------------------------------------------------------------

    \68\ INA sec. 213A, 8 U.S.C. 1183a.
    \69\ INA sec. 213A(a)(1)(B), (b)(1)(A); 8 U.S.C. 1183a(a)(1)(B), 
(b)(1)(A).
---------------------------------------------------------------------------

    The commenters who opposed the proposed rule on this basis also did 
not provide data showing how many sponsored immigrants \70\ actually 
receive public benefits, and how often benefits-granting agencies have 
enforced sponsorship obligations.\71\
---------------------------------------------------------------------------

    \70\ See 8 CFR 213a.1 (``Sponsored immigrant means any alien who 
was an intending immigrant, once that person has been lawfully 
admitted for permanent residence, so that the affidavit of support 
filed for that person under this part has entered into force.'').
    \71\ DHS notes that in a proposed rule, ``Affidavit of Support 
on Behalf of Immigrants,'' 85 FR 62432 (Oct. 2, 2020), which was 
withdrawn on March 22, 2021, see ``Affidavit of Support on Behalf of 
Immigrants,'' 86 FR 15140 (Mar. 22, 2021), DHS acknowledged that it 
did ``not have data on reimbursement efforts or successful 
recoveries by benefits granting agencies. USCIS receives limited 
information from benefit granting agencies or other parties 
enforcing the Affidavit [Of Support Under Section 213A of the INA or 
Contract [Between Sponsor and Household Member], despite the 
information sharing provisions in the statute and regulations and 
thus is unable to determine whether the proposed rule's benefits are 
likely to exceed its costs.'' See ``85 FR at 62453 (Oct. 2, 2020).
---------------------------------------------------------------------------

    While DHS agrees that it did not propose in the NPRM to enact new 
rules related to the Affidavit of Support Under Section 213A of the 
INA, and notwithstanding that, changes to the Affidavit of Support 
regulations at 8 CFR part 213a would be outside the scope of this 
rulemaking, DHS observes that such changes would not be necessary to 
ensure that applicants for admission or adjustment of status will not 
become primarily dependent on the government for subsistence. This is 
because determining whether an applicant is likely at any time to 
become a public charge based on a review of the statutory minimum 
factors is separate and distinct from both determining the sufficiency 
of an Affidavit of Support Under section 213A of the INA and enforcing 
the sponsorship obligation and related reimbursement requirements that 
attach once the intending immigrant is admitted as a lawful permanent 
resident (although, as noted throughout this rule, there is a 
relationship between the two statutes, and the lack of a sufficient 
Affidavit of Support Under Section 213A of the INA, if required, 
renders a noncitizen inadmissible under the public charge ground of 
inadmissibility).
    Furthermore, the obligations and requirements related to the 
affidavit do not go into effect until after the public charge 
inadmissibility determination has already been made and the intending 
immigrant has been admitted as an immigrant or granted adjustment of 
status. Even if changes to such regulations had been contemplated in 
the proposed rule, DHS would decline to include any provisions 
regarding enforcement of the support obligation as part of the public 
charge inadmissibility determination, in part because they would be 
unduly cumbersome to incorporate into the predictive public charge 
inadmissibility determination.
    Comment: One commenter expressed support for the rule, noting that 
diminishing chilling effects among groups of immigrants who are 
eligible for public benefits and not subject to the public charge 
ground of inadmissibility serves both the public welfare and 
Congressional intent, as stated in 7 U.S.C. 2011 and the United States 
Housing Act of 1937. The commenter cited 7 U.S.C. 2011, quoting the 
statute stating that ``[i]t is declared to be the policy of Congress, 
in order to promote the general welfare, to safeguard the health and 
well-being of the Nation's population by raising levels of nutrition 
among low-income households.'' The commenter also cited and quoted the 
United States Housing Act of 1937 stating that assistance under the 
Housing Act advances ``the national policy of the United States to 
promote the general welfare'' to help States and localities ``remedy 
the unsafe and insanitary housing conditions and the acute shortage of 
decent, safe, and sanitary dwellings for families of low income, in 
rural or urban communities, that are injurious to the health, safety,

[[Page 55495]]

and morals of the citizens of the Nation.'' \72\
---------------------------------------------------------------------------

    \72\ Public Law 75-412, sec. 1, 50 Stat. 888, 888 (Sept. 1, 
1937).
---------------------------------------------------------------------------

    Response: In promulgating this final rule, DHS is implementing the 
public charge ground of inadmissibility in a way that is consistent 
with the statutory text of and Congressional intent underlying section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), while also ensuring that the 
implementing regulations are clear, fair, and understandable for the 
public and officers. As discussed in the NPRM, when deciding which 
public benefits to consider when looking at past or current receipt of 
public benefits for the purpose of making public charge inadmissibility 
determinations, DHS determined that it should not consider special 
purpose and supplemental programs such as SNAP and affordable housing 
programs. DHS agrees with the commenter that programs such as SNAP and 
housing assistance contribute to the well-being of both low-income 
individuals and communities at large and assist individuals in 
ultimately depending on themselves and their families and sponsors 
rather than the government for subsistence. While DHS notes that very 
few categories of noncitizens who are subject to the public charge 
ground of inadmissibility are eligible for SNAP and housing benefits, 
DHS notes that the exclusion of SNAP and housing benefits from public 
charge inadmissibility determinations may also reduce the chilling 
effects among individuals who are not subject to the public charge 
ground of inadmissibility but who were deterred from enrolling or 
continuing to receive those benefits due to confusion about the 2019 
Final Rule.
    Comment: Several commenters stated that the rule ignores 
Congressional intent dating back to the late nineteenth century, relies 
on interim guidance that was never meant to be the equivalent of a 
final rule, and seeks to narrowly define critical concepts including 
``public charge'' and the types of public benefits used in a public 
charge inadmissibility determination.
    Response: First, DHS disagrees with the commenters who argued that 
the NPRM's definition of ``public charge'' conflicts with longstanding 
Congressional intent. Further discussion of how the NPRM's and this 
rule's standard aligns with long-standing congressional intent is 
discussed below in this same section in response to other comments.
    In addition, DHS disagrees with how these commenters characterized 
the government's longstanding policy with respect to the public charge 
ground of inadmissibility. While DHS acknowledges that the 1999 Interim 
Field Guidance was interim guidance and not a final rule, the 
Government has interpreted the public charge ground of inadmissibility 
consistent with that guidance for over 20 years, with the exception of 
the short period of time during which the 2019 Final Rule was in 
effect. Accordingly, it is reasonable that DHS reviewed and considered 
the guidance's provisions when developing the NPRM and this rule. At 
the same time, DHS disagrees with any insinuation by commenters that 
DHS did not independently consider the merits of the guidance when 
developing this rule. Although this rule ultimately adopts portions of 
the guidance as regulations, DHS did not simply adopt the guidance 
wholesale without further analysis, and, in fact, there are a number of 
differences between the guidance and this rule.\73\ Ultimately, as 
explained in the NPRM, DHS believes that the approach taken by the 1999 
Interim Field Guidance, as further refined in the NPRM and this final 
rule, reflects a reasonable interpretation of the public charge ground 
of inadmissibility and is consistent with the statutory text and with 
Congressional intent, and longstanding caselaw.
---------------------------------------------------------------------------

    \73\ See, e.g., 8 CFR 212.22(a)(4) (providing specific guidance 
that was not in the 1999 guidance regarding the treatment of 
disabilities in the context of public charge adjudications); 8 CFR 
212.21 (providing definitions for key terms, including ``receipt (of 
public benefits)''and ``household.'').
---------------------------------------------------------------------------

    DHS has determined that not all public benefits should be 
considered in public charge inadmissibility determinations because, 
among other things, not all benefits are equally indicative of primary 
dependence on the government for subsistence. For one thing, as 
discussed in more detail later in the preamble, many modern public 
benefit programs take the form of payments or in-kind benefits to help 
individuals meet particular needs and are not limited to individuals 
without a separate primary means of support. For another, as both the 
1999 Interim Field Guidance and the NPRM explained, under PRWORA, most 
noncitizens are not eligible for most types of public benefits. 
Moreover, most categories of noncitizens eligible for public benefits 
under PRWORA are also statutorily exempt from the public charge ground 
of inadmissibility.\74\ In addition, and as discussed in more detail 
elsewhere in this rule, some public benefits like public housing and 
SNAP assist individuals and families to remain employed and support 
themselves and their families but are on their own insufficient to meet 
all or even a substantial portion of their needs. This point is 
illustrated in the case of SNAP; as USDA informed DHS in its on-the-
record letter, SNAP is supplemental in nature; SNAP benefits are 
relatively modest; and most SNAP supports work.\75\ In short, the 
benefits excluded from consideration under this rule are less probative 
of primary dependence than the benefits that are considered; their 
consideration would add scant value for officers while--as detailed 
elsewhere--deterring noncitizens and their families (including U.S. 
citizens and those not subject to the public charge ground of 
inadmissibility) from seeking benefits for which they are eligible. 
Nothing in the statute dictates that receipt of such supplemental or 
special-purpose benefits must be considered for public charge 
inadmissibility determinations.
---------------------------------------------------------------------------

    \74\ See, e.g., Cook County v. Wolf, 962 F.3d 208, 236-37 (7th 
Cir. 2020) (Barrett, J., dissenting) (``The upshot is that the [2019 
Final Rule] will rarely apply to a noncitizen who has received 
benefits in the past . . . . Notwithstanding all of this, many 
lawful permanent residents, refugees, asylees, and even naturalized 
citizens have disenrolled from government-benefit programs since the 
public charge rule was announced. Given the complexity of 
immigration law, it is unsurprising that many are fearful about how 
the rule might apply to them. Still, the pattern of disenrollment 
does not reflect the rule's actual scope.'').
    \75\ See Letter from USDA Deputy Under Secretary on Public 
Charge (Feb. 15, 2022), https://www.regulations.gov/document/USCIS-2021-0013-0199 (last visited July 12, 2022).
---------------------------------------------------------------------------

    Comment: One commenter stated concern that the proposed rule 
mentioned that ``Congress has sought to exclude noncitizens who pose a 
threat to the safety or general welfare of the country,'' and expressed 
concern that such exclusion may be based on a range of acts, 
conditions, or conduct that would cause a noncitizen to be excluded 
during a public charge inadmissibility determination.
    Response: This comment quotes the NPRM, which in turn quotes Fiallo 
v. Bell,\76\ for the encapsulation of the government's general 
authority over inadmissibility and exclusion of noncitizens from the 
United States. While this statement is contained in the NPRM, it was 
not intended to suggest that public charge inadmissibility 
determinations would be based on an unspecified range of acts, 
conditions, and conduct. Rather the NPRM, and the regulatory text in 
particular, included relevant definitions and factors that would be 
considered were the proposal

[[Page 55496]]

contained therein to be finalized in a final rule. Such definitions and 
factors are also in this final rule. USCIS intends to issue additional 
guidance for officers and the public to further clarify how these 
definitions and factors should be applied in individual public charge 
inadmissibility determinations.
---------------------------------------------------------------------------

    \76\ 430 U.S. 787, 787 (1977) (``The Supreme Court has `long 
recognized [that] the power to expel or exclude aliens [i]s a 
fundamental sovereign attribute exercised by the Government's 
political departments largely immune from judicial control.' '').
---------------------------------------------------------------------------

    Comment: One commenter stated that the rule's definition of 
``likely at any time to become a public charge'' is in line with 
Congressional intent and that the public charge test was never designed 
to prevent immigration of low- and moderate-income families who may at 
some point need access to public programs to overcome temporary 
setbacks. In addition, twenty-six members of Congress submitted a joint 
comment from the House Judiciary Committee indicating that the rule is 
consistent with the intent of Congress to apply the public charge 
ground of inadmissibility to those who are primarily dependent on the 
government for subsistence, and urged DHS to finalize the rule as it 
will provide certainty to applicants and petitioners navigating our 
immigration system. Another commenter stated that DHS should reject any 
assertion that the definitions of ``public charge'' in the 1933 and 
1951 editions of Black's Law Dictionary, and a 1929 immigration 
treatise, Arthur Cook et al., Immigration Laws of the United States 
Sec.  285 (1929)), show that receipt of ``any'' amount of public 
benefits historically rendered the recipient a public charge. The 
commenter stated that all three of these sources mistakenly rely on a 
single case, Ex Parte Kichmiriantz (involving a noncitizen who had been 
institutionalized and was ``unable to care for himself in any 
way.'').\77\ The commenter stated that contrary to what the three 
sources indicate, Kichmiriantz reflects the consistent historical focus 
of the term on those unable to care for themselves and without other 
support.
---------------------------------------------------------------------------

    \77\ 283 F. 697 (N.D. Cal. 1922).
---------------------------------------------------------------------------

    Response: DHS generally agrees with these commenters. As an initial 
matter, DHS acknowledges that Congress has never, in enacting or 
reenacting the public charge ground of inadmissibility, defined 
``public charge,'' ``likely to become a public charge,'' or ``likely at 
any time to become a public charge.'' In the 1996 amendments, Congress 
specified which factors, at a minimum, the relevant government agencies 
must consider when making public charge inadmissibility determinations; 
Congress did not provide a specific definition of the term ``public 
charge'' or the phrase ``likely at any time to become a public 
charge.'' In addition, Congress has long made clear that DHS has broad 
discretion to administer and interpret the statute. The statute itself 
uses the words ``in the opinion of,'' which emphasizes the 
discretionary nature of the determination.\78\ The INA also authorizes 
the Secretary of Homeland Security to promulgate rules to guide public 
charge inadmissibility determinations.\79\
---------------------------------------------------------------------------

    \78\ INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
    \79\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
---------------------------------------------------------------------------

    In the 2018 proposed rule, DHS indicated that its understanding of 
the term ``public charge'' is consistent with various dictionary 
definitions of that term.\80\ DHS stated that the [then] current 
edition of the Merriam-Webster Dictionary defines public charge simply 
as ``one that is supported at public expense.'' \81\ DHS further relied 
on Black's Law Dictionary (6th ed.) that further defines public charge 
as ``an indigent; a person whom it is necessary to support at public 
expense by reason of poverty alone or illness and poverty.'' \82\ In 
addition, DHS indicated that the term ``charge'' is defined in Merriam-
Webster Dictionary as ``a person or thing committed into the care of 
another'' \83\ and Black's Law Dictionary defines charge as ``a person 
or thing entrusted to another's care,'' e.g., ``a charge of the 
estate.'' \84\ DHS concluded that the definitions generally suggest 
that an impoverished or ill individual who receives public benefits for 
a substantial component of their support and care can be reasonably 
viewed as being a public charge. DHS also concluded that the then-
proposed definition of public charge was also consistent with the 
concept of an indigent, which is defined as ``one who is needy and poor 
. . . and ordinarily indicates one who is destitute of means of 
comfortable subsistence so as to be in want.'' \85\ In the 2019 Final 
Rule, DHS rejected commenters' assertions that its reliance on 
dictionary definitions referenced in the proposed rule was flawed 
because DHS failed to consider the definition of the term ``support,'' 
which Merriam-Webster defined as ``pay[ing] the cost of'' or 
``provid[ing] a basis for the existence or subsistence of.'' \86\ DHS 
indicated that the dictionary definitions did not specify the degree of 
assistance, noting that the Merriam-Webster's dictionary also defines 
``support'' as ``assist, help.'' \87\
---------------------------------------------------------------------------

    \80\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 
51158 (Oct. 10, 2018) (``DHS believes that a person should be 
considered a public charge based on the receipt of financial support 
from the general public through government funding (i.e., public 
benefits). This is consistent with various dictionary definitions of 
public charge and `charge' also support a definition that involves 
the receipt of public benefits.'').
    \81\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 
51158 (Oct. 10, 2018) (citing Merriam-Webster Online Dictionary, 
Definition of Public Charge, https://www.merriamwebster.com/dictionary/public%20charge).
    \82\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 
51158 (Oct. 10, 2018) (citing Black's Law Dictionary 233 (6th ed. 
1990), http://www.republicsg.info/dictionaries/1990_black's-law-
dictionary-edition6.pdf).
    \83\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 
51158 (Oct. 10, 2018) (citing Merriam-Webster Online Dictionary, 
Definition of Charge, https://www.merriamwebster.com/dictionary/charge).
    \84\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 
51158 (Oct. 10, 2018) (citing Black's Law Dictionary, Charge (10th 
ed. 2014)).
    \85\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 51114, 
51158 (Oct. 10, 2018) (citing Black's Law Dictionary 773 (6th ed. 
1990), http://www.republicsg.info/dictionaries/1990_black's-law-
dictionary-edition6.pdf).
    \86\ ``Inadmissibility and Deportability on Public Charge 
Grounds,'' 84 FR 41292, 41354 (Aug. 14, 2019) (citing Webster's 
Dictionary 1828 Online Edition, definition of ``charge,'' http://webstersdictionary1828.com/Dictionary/charge).
    \87\ ``Inadmissibility and Deportability on Public Charge 
Grounds,'' 84 FR 41292, 41354 (Aug. 14, 2019) (citing Merriam-
Webster Online Dictionary, Definition of Support, https://www.merriamwebster.com/dictionary/support).
---------------------------------------------------------------------------

    DHS continues to conclude that dictionary definitions of the 
relevant terms do not dictate a specific meaning of the term ``public 
charge'' nor clearly prescribe the level of dependence on the 
government necessary to render a person a public charge. Although many 
dictionary definitions suggest primary or total dependence on the 
government for subsistence, others may be read to suggest a lesser 
level of dependence.\88\
---------------------------------------------------------------------------

    \88\ See also, e.g., Cook County v. Wolf, 962 F.3d 208, 223 (7th 
Cir. 2020) (``Enter the dueling dictionaries. In Cook County's 
corner, we have the Century Dictionary, defining a `charge' as a 
person who is `committed to another's custody, care, concern or 
management,' Century Dictionary 929 (William Dwight Whitney, ed., 
1889) (emphasis added); and Webster's Dictionary, likewise defining 
a `charge' as a `person or thing committed to the care or management 
of another,' Webster's Condensed Dictionary of the English Language 
84 (Dorsey Gardner, ed., 1884). These suggest primary, long-term 
dependence. In DHS's corner, we have dictionaries defining a 
`charge' as `an obligation or liability,' as in a `pauper being 
chargeable to the parish or town,' Dictionary of Am. and English Law 
196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a 
`burden, incumbrance, or lien,' Glossary of the Common Law 56 
(Frederic Jesup Stimson, ed., 1881). These definitions can be read 
to indicate that a lesser reliance on public benefits is enough. 
Finding no clarity here, we move on.'').
---------------------------------------------------------------------------

    The legislative history at the time of the first introduction of a 
public charge ground of inadmissibility also does not establish a 
specific definition of the term ``public charge.'' Congress first 
included a public charge ground of inadmissibility in the Immigration 
Act of 1882, which prohibited the entry, inter alia, of ``any person 
unable to take care of himself or herself without becoming a public 
charge.'' \89\ Debate in

[[Page 55497]]

the House of Representatives at the time of enactment indicates that 
Congress was concerned about preventing the future immigration to the 
United States of people who would depend on or would be ``committed 
to'' the country's ``poor-houses and alms-houses.'' \90\ The record--
which relates to a broader list of grounds of inadmissibility, of which 
public charge was only one--contains references to people committed to 
poor-houses and almshouses, paupers, and people who had no earnings in 
recent years and were wholly destitute, all of whom would likely be 
covered by the definition adopted in this final rule.
---------------------------------------------------------------------------

    \89\ 22 Stat. 214.
    \90\ 13 Cong. Rec. 5109 (1882).
---------------------------------------------------------------------------

    Over the years, judicial decisions interpreting the public charge 
ground generally did not focus exclusively on whether noncitizens 
seeking admission or adjustment of status had low earnings or were 
impoverished at the time of the inadmissibility determination. Rather, 
officers focused on whether, notwithstanding the current condition of 
poverty, noncitizens could prospectively support themselves. For 
example, in In re Feinknopf, a federal district court suggested that 
evidence regarding an individual's age, profession, presence of family 
members, assets, and future employability are relevant to determining 
whether an immigrant is likely to become a public charge.\91\
---------------------------------------------------------------------------

    \91\ 47 F. 447, 447, 451 (E.D.N.Y. 1891). The court held that 
``there must be a determination by the inspection officer of the 
fact that the immigrant is likely to become a public charge, made 
upon competent evidence tending to show such to be the fact . . . 
.''
---------------------------------------------------------------------------

    In Gegiow v. Uhl, the Supreme Court concluded that a noncitizen 
could not ``be declared likely to become a public charge on the ground 
that the labor market in the city of his immediate destination is 
overstocked.'' \92\ The court found that ``[t]he persons enumerated, in 
short, are to be excluded on the ground of permanent personal 
objections accompanying them irrespective of local conditions.'' \93\ 
In the 2019 Final Rule, DHS concluded that Gegiow did not conclusively 
establish the contours of the public charge ground of 
inadmissibility.\94\ DHS continues to hold that view, but believes that 
the Supreme Court's statements there about the public charge ground are 
nevertheless supportive of the interpretation adopted in this final 
rule.
---------------------------------------------------------------------------

    \92\ 239 U.S. 3, 9-10 (1915).
    \93\ 239 U.S. at 10 (1915).
    \94\ 84 FR 41292, 41350 n.317 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In 1917, Congress amended the public charge provision by moving it 
to the end of a list of factors rendering an ``alien'' 
inadmissible.\95\ The revised statute rendered inadmissible, among 
others, ``persons . . . who are . . . mentally or physically defective, 
such physical defect being of a nature which may affect the ability of 
such alien to earn a living; persons who have been convicted of or 
admit having committed a felony or other crime or misdemeanor involving 
moral turpitude; polygamists, or . . . persons likely to become a 
public charge.'' \96\ Legislative history suggests that Congress may 
have done so ``in order to indicate the intention . . . that aliens 
shall be excluded upon [the public charge] ground for economic as well 
as other reasons'' and did so, specifically, ``to overcom[e] the 
decision of the Supreme Court in [Gegiow].'' \97\ Even assuming that 
Congress moved the placement of the public charge provision to respond 
to Gegiow, it still did not define ``public charge'' or ``likely to 
become a public charge,'' leaving the application of the provision in 
the hands of immigration officials and the executive branch.
---------------------------------------------------------------------------

    \95\ In addition, Congress amended the immigration laws three 
other times between the introduction of the public charge ground in 
1882 and 1917, but none of the amendments provided a definition of 
``public charge.'' See Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213; 
Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898; Act of Mar. 26, 1910, 
ch. 128, 36 Stat. 263.
    \96\ Act of Feb. 5, 1917, ch. 29, Sec.  3, 39 Stat. 874, 875-76.
    \97\ See 70 Cong. Rec. 3620 (1929).
---------------------------------------------------------------------------

    DHS continues to believe that the 1917 amendments clarified that 
Congress intended the Executive Branch to consider something more than 
``permanent personal objections,'' and in particular to consider 
certain economic factors, when making public charge inadmissibility 
determinations, and does not consider this decision as limiting its 
discretion to find individuals inadmissible even if there is evidence 
that dependence on the government is not complete or permanent. DHS has 
not designated local labor market conditions as a regulatory factor to 
determine whether a noncitizen is likely at any time to become a public 
charge. DHS is considering a noncitizen's education and skills, as 
evidenced by their degrees, certifications, licenses, skills obtained 
through work experience or educational programs, and educational 
certificates. DHS may also consider other information in the record in 
the totality of the circumstances, such as a noncitizen's work history, 
if applicable. While there may be evidence that factors into a factual 
conclusion that a particular noncitizen is likely to be wholly and/or 
permanently dependent on the government for subsistence (whether based 
on ``immutable'' characteristics or not), DHS's inquiry under this rule 
is broader; under the rule, DHS may determine that a person is 
inadmissible on public charge grounds even when the record suggests a 
level of dependence that is less than complete or permanent.
    In Wallis v. United States ex rel. Mannara, the Second Circuit 
defined a person likely to become a public charge as ``one whom it may 
be necessary to support at public expense by reason of poverty, 
insanity and poverty, disease and poverty, idiocy and poverty.'' \98\ 
In that case, the immigrant family's primary income earner was 
``certified for senility'' and thus would not be ``capable of continued 
self-support.'' \99\ The court noted that the family had ``insufficient 
[means] to provide for their necessary wants [for] any reasonable 
length of time'' and no private sources of support.\100\ Similarly, in 
Howe v. United States ex rel. Savitsky, immigration officers sought to 
exclude a noncitizen under the public charge ground because the 
noncitizen engaged in a dishonest practice (writing a bad check, and 
being accused of selling another person's equipment and keeping the 
proceeds). The Ninth Circuit indicated that it was ``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.'' \101\ And in Ex parte Hosaye Sakaguchi, the Ninth 
Circuit held that an immigrant woman with the skills to support herself 
was not likely to become a public charge.\102\ It ruled that the 
government had to present evidence of ``mental or physical disability 
or any fact tending to show that the burden of supporting the 
[immigrant] is likely to be cast upon the public.'' \103\ The court in 
that case did not explain how much of a burden on the government would 
make a person a public charge. In the 2019 Final Rule, DHS indicated 
that it was aware of the Howe and Sakaguchi decisions but that it did 
not believe that these cases are inconsistent with the public charge 
definition set forth in the 2019 Final Rule or with the suggested link 
between public charge and the receipt of public

[[Page 55498]]

benefits.\104\ DHS expressed a belief that courts generally have 
quantified neither the level of public support nor the type of public 
support required for purposes of a public charge inadmissibility 
finding.\105\ DHS continues to agree with that broad statement; DHS 
further believes that judicial and administrative decisions since the 
enactment of the public charge provision are clearly consistent with a 
primary dependence standard in that they focus on a noncitizen's 
ability to support themselves, without treating the possibility that 
the noncitizen might need publicly subsidized medical care at a 
hospital, for example, as sufficient to demonstrate that the immigrant 
is likely to become a public charge.
---------------------------------------------------------------------------

    \98\ 273 F. 509, 510-11 (2d Cir. 1921).
    \99\ 273 F. at 510 (2d Cir. 1921).
    \100\ 273 F. at 510 (2d Cir. 1921).
    \101\ 247 F. 292, 294 (9th Cir. 1917).
    \102\ 277 F. 913, 916 (9th Cir. 1922).
    \103\ 277 F. at 916 (9th Cir. 1922).
    \104\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41350 (Aug. 14, 2019).
    \105\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41350 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In United States ex rel. De Sousa v. Day, the Second Circuit stated 
that ``[i]n the face of [Gegiow] it is hard to say that a healthy adult 
immigrant, with no previous history of pauperism, and nothing to 
interfere with his chances in life but lack of savings, is likely to 
become a public charge within the meaning of the statute.'' \106\ This 
rule is consistent with that decision as well.
---------------------------------------------------------------------------

    \106\ 22 F.2d 472, 473-74 (2d Cir. 1927).
---------------------------------------------------------------------------

    In 1952, Congress amended the INA in a way that uses the language 
of discretion: it deemed inadmissible immigrants ``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 application for 
admission, are likely at any time to become public charges.'' \107\ 
This language clarifies the temporal dimension of the public-charge 
determination, but it says nothing about the degree of assistance 
required. In the special legalization provision under the Immigration 
Reform and Control Act (IRCA),\108\ Congress did not define the term 
``public charge,'' but provided that ``[a]n alien is not ineligible for 
adjustment of status under [that provision] due to being [a public 
charge] if the alien demonstrates a history of employment in the United 
States evidencing self-support without receipt of public cash 
assistance.'' \109\ The Immigration Act of 1990 also lacked a 
definition of ``public charge.'' \110\
---------------------------------------------------------------------------

    \107\ An Act to Revise the Laws Relating to Immigration, 
Naturalization, and Nationality; and for Other Purposes, Public Law 
82-414, sec. 212(a)(15), 66 Stat. 163, 183 (1952).
    \108\ Immigration Reform and Control Act of 1986, Public Law 99-
603, 100 Stat. 3359.
    \109\ Public Law 99-603, tit. II, sec. 201 (Nov. 6, 1986) 
(codified at section 245A(d)(2)(B)(ii)(IV) of the INA, 8 U.S.C. 
1255a(d)(2)(B)(ii)(IV)) (emphasis added); see also id. at secs. 302, 
303 (similar provision for Special Agricultural Workers).
    \110\ Public Law 101-649, sec. 601, 104 Stat. 4978, 5067.
---------------------------------------------------------------------------

    As noted above, in the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Congress for the first time 
provided guidance on what factors the government agencies tasked with 
administering the public charge ground of inadmissibility must consider 
when determining whether a noncitizen is likely to become a public 
charge.\111\ The amended provision instructs government officials ``at 
a minimum'' to look at age; health; family status; assets, resources, 
and financial status; and education and skills.\112\ They also could 
consider whether an immigrant had an Affidavit of Support Under Section 
213A of the INA from a third party.\113\ Furthermore, Congress rejected 
a proposal to define ``public charge'' to cover ``any alien who 
receives [means-tested public benefits] for an aggregate of at least 12 
months.'' \114\
---------------------------------------------------------------------------

    \111\ Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-546, 
3009-674 (1996).
    \112\ Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-546, 
3009-674 (1996).
    \113\ Public Law 104-208, Div. C, sec. 531, 110 Stat. 3009-546, 
3009-674 (1996).
    \114\ 142 Cong. Rec. 24313, 24425 (1996).
---------------------------------------------------------------------------

    During the same period that Congress amended the public charge 
ground of inadmissibility through IIRIRA to add the consideration of 
certain factors and enforceable affidavit of support requirements, it 
also enacted PRWORA.\115\ As DHS noted in the 2019 Final Rule, language 
in that statute expresses Congress's desire that immigrants be self-
sufficient and not come to the United States with the purpose of 
benefitting from public welfare programs.\116\ To that end, Chapter 14 
of Title 8 of the U.S. Code restricts most noncitizens from eligibility 
for many federal and State public benefits. It grants most lawful 
permanent residents access to means-tested public benefits only after 
they have spent five years as a lawful permanent resident.\117\ But the 
exclusions are not absolute. Congress specified instead that immigrants 
may at any time receive emergency medical assistance; immunizations and 
testing for communicable diseases; short-term, in-kind emergency 
disaster relief; various in-kind services such as short-term shelter 
and crisis counseling; and certain housing and community development 
assistance.\118\
---------------------------------------------------------------------------

    \115\ Public Law 104-193 (1996), 110 Stat. 2105.
    \116\ 8 U.S.C. 1601.
    \117\ Public Law 104-193 (1996), secs. 401, 403, 411, 8 U.S.C. 
1611, 1613, 1621, 110 Stat. 2105.
    \118\ 8 U.S.C. 1611, 1613, 1621.
---------------------------------------------------------------------------

    In addition, a series of administrative decisions after the passage 
of the INA of 1952 clarified that more than a possibility of receipt of 
public benefits is needed to lead to a finding of likelihood of 
becoming a public charge. The cases focused on the presence of more 
``permanent'' characteristics along with a relative lack of non-
governmental sources of support. In Matter of Martinez-Lopez, the 
Attorney General opined that the statute

require[d] more than a showing of a possibility that the alien will 
require public support. . . . A healthy person in the prime of life 
cannot ordinarily be considered likely to become a public charge, 
especially where he has friends or relatives in the United States 
who have indicated their ability and willingness to come to his 
assistance in case of emergency.\119\
---------------------------------------------------------------------------

    \119\ 10 I&N Dec. 409, 421-23 (BIA 1962; Att'y Gen. 1964) 
(emphasis added).

    Furthermore, in Matter of Perez, the Board of Immigration Appeals 
(BIA) held that ``[t]he determination of whether an alien is likely to 
become a public charge . . . is a prediction based upon the totality of 
the alien's circumstances at the time he or she applies for an 
immigrant visa or admission to the United States. The fact that an 
alien has been on welfare does not, by itself, establish that he or she 
is likely to become a public charge.'' \120\ This decision supports 
DHS's position that evidence of past or current receipt of public 
benefits, alone, is not outcome determinative. In Matter of Harutunian, 
the INS Regional Commissioner determined that public charge 
inadmissibility determinations should take into consideration factors 
such as a noncitizen's age, incapability of earning a livelihood, a 
lack of sufficient funds for self-support, lack of persons in this 
country willing and able to assure that the noncitizen will not need 
public support, and the expectation that the noncitizen will depend on 
old age assistance, a form of financial assistance for low income older 
adults.\121\ In the 2019 Final Rule, DHS cited Harutunian and Matter of 
Vindman \122\ for the general proposition that ``[a]bsent a clear 
statutory or regulatory definition,

[[Page 55499]]

some courts and administrative authorities have tied the public charge 
ground of inadmissibility to the receipt of public benefits.'' \123\ 
This remains DHS's view of those cases--i.e., that they are indicative 
of the relatively wide ambit of DHS's interpretive authority--although 
DHS also notes that both cases involved receipt of cash assistance.
---------------------------------------------------------------------------

    \120\ 15 I&N Dec. 136, 137 (BIA 1974).
    \121\ 14 I&N Dec. 583, 583-89 (Reg'l Comm'r 1974) (finding that 
the applicant who was 70 years old, lacked means of supporting 
herself, had no one responsible for her support, and who expected to 
be dependent for support on old-age assistance was ineligible for a 
visa, as likely to become a public charge).
    \122\ Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l Comm'r 
1977) 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 chances of becoming self-
supporting decrease as time passes'').
    \123\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41349 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In the 1999 Interim Field Guidance, the INS interpreted the 1996 
statutory scheme by defining ``public charge'' as someone who is 
``primarily dependent on the government for subsistence, as 
demonstrated by either (i) the receipt of public cash assistance for 
income maintenance or (ii) institutionalization for long-term care at 
government expense.'' \124\ Consistent with an earlier 1987 rule 
addressing the IRCA \125\ legalization program,\126\ and based on input 
from benefits-granting agencies, the 1999 Interim Field Guidance stated 
that ``officers should not place any weight on the receipt of non-cash 
public benefits (other than institutionalization) or the receipt of 
cash benefits for purposes other than for income maintenance with 
respect to determinations of admissibility or eligibility for 
adjustment on public charge grounds.'' \127\
---------------------------------------------------------------------------

    \124\ ``Field Guidance on Deportability and Inadmissibility on 
Public Charge Grounds,'' 64 FR 28689 (May 26, 1999).
    \125\ Immigration Reform and Control Act of 1986, Public Law 99-
603, 100 Stat. 3359.
    \126\ ``Adjustment of Status for Certain Aliens,'' 52 FR 16205, 
16211-16212, 16216 (May 1, 1987).
    \127\ ``Field Guidance on Deportability and Inadmissibility on 
Public Charge Grounds,'' 64 FR 28689 (May 26, 1999).
---------------------------------------------------------------------------

    Following PRWORA, later statutory enactments lightened some of the 
statutory restrictions on noncitizens receiving benefits, in order to 
allow additional categories of these individuals to qualify for certain 
benefits without a five-year waiting period.\128\
---------------------------------------------------------------------------

    \128\ See Farm Security and Rural Investment Act of 2002, Public 
Law 107-171, sec. 4401, 116 Stat. 34, 333 (2002); Children's Health 
Insurance Program Reauthorization Act of 2009, Public Law 111-3, 
sec. 214, 123 Stat. 8, 56 (2009).
---------------------------------------------------------------------------

    Some of the courts in recent litigation against the 2019 Final Rule 
generally agreed that the meaning of the term ``public charge'' is 
ambiguous, that it has evolved over time, and that Congress granted 
wide discretion to the Executive Branch to interpret that term.\129\ 
DHS agrees with those principles. Other courts found that the term 
``public charge'' has an unambiguous meaning and/or that the 2019 Final 
Rule definition was contrary to the historical understanding of that 
term.\130\ This conclusion likewise does not preclude the rule at issue 
here.
---------------------------------------------------------------------------

    \129\ See Cook County v. Wolf, 962 F.3d 208, 226 (7th Cir. 2020) 
(``[T]he question before us is not whether Cook County has offered a 
reasonable interpretation of the law. It is whether the statutory 
language unambiguously leads us to that interpretation. We cannot 
say that it does. As our quick and admittedly incomplete overview of 
this byzantine law has shown, the meaning of `public charge' has 
evolved over time as immigration priorities have changed and as the 
nature of public assistance has shifted from institutionalization of 
the destitute and sick, to a wide variety of cash and in-kind 
welfare programs. What has been consistent is the delegation from 
Congress to the Executive Branch of discretion, within bounds, to 
make public-charge determinations.''); id. at 248, 253 (Barrett, J., 
dissenting) (noting that ``DHS could have exercised its discretion 
differently'' than it chose to do in the 2019 Final Rule and that 
``the term `public charge' is indeterminate enough to leave room for 
interpretation.''); Casa de Maryland v. Trump, 971 F.3d 220, 229 
(4th Cir. 2020) (``[T]he public charge provision has led for almost 
a century and a half a long and varied life, with different 
administrations advancing varied interpretations of the provision, 
depending on the needs and wishes of the nation at a particular 
point in time. To be sure, the public charge provision ties alien 
admissibility to prospective alien self-sufficiency. But within that 
broad framework, Congress has charged the executive with defining 
and implementing what can best be described as a purposefully 
elusive and ambiguous term.''), rehearing en banc granted, 981 F.3d 
311 (4th Cir. 2020).
    \130\ See New York v. DHS, 969 F.3d 42, 74-75 (2d Cir. 2020) 
(``The prevailing administrative and judicial interpretation of 
`public charge' ratified by Congress understood the term to mean a 
non-citizen who cannot support himself, in the sense that he `is 
incapable of earning a livelihood, . . . does not have sufficient 
funds in the United States for his support, and has no person in the 
United States willing and able to assure that he will not need 
public support[.]' . . . We think it plain on the face of these 
different interpretations that the Rule falls outside the statutory 
bounds marked out by Congress. . . . Whatever gray area may exist at 
the margins, we need only decide today whether Congress `has 
unambiguously foreclosed the [specific] statutory interpretation' at 
issue. . . . And we conclude that Congress's intended meaning of 
`public charge' unambiguously forecloses the Rule's expansive 
interpretation. We are not persuaded by DHS's efforts to argue 
otherwise.'' (internal citations omitted)); City and County of San 
Francisco v. United States Citizenship and Immigration Services, 981 
F.3d 742, 756-58 (9th Cir. 2020) (``From the Victorian Workhouse 
through the 1999 Guidance, the concept of becoming a `public charge' 
has meant dependence on public assistance for survival. Up until the 
promulgation of this Rule, the concept has never encompassed persons 
likely to make short-term use of in-kind benefits that are neither 
intended nor sufficient to provide basic sustenance . . . For these 
reasons we conclude the plaintiffs have demonstrated a high 
likelihood of success in showing that the Rule is inconsistent with 
any reasonable interpretation of the statutory public charge bar and 
therefore is contrary to law.'').
---------------------------------------------------------------------------

    With respect to commenters who indicated that Ex parte Kichmiriantz 
\131\ reflects the historical understanding of the term public charge, 
and does not contemplate a standard under which a person is a public 
charge if they impose any level of burden upon the public, DHS agrees, 
although of course that individual case is not dispositive. In that 
case, the court concluded that a noncitizen who was institutionalized 
in a mental hospital was not a public charge because his family was 
paying for the institutionalization. The court opined that ``the words 
`public charge,' as used in the Immigration Act, mean . . . a money 
charge upon, or an expense to, the public for support and care.'' The 
court indicated that when ``a state receives from the relatives what it 
has fixed as an adequate compensation for such support,'' the 
noncitizen so cared for is not a public charge, ``within the meaning of 
the act,'' \132\ even if the physical condition of the person suggest a 
significant level of dependence on others for their basic care. Given 
that the court was opining about the meaning of the term ``public 
charge'' in the context of long-term institutionalization, DHS agrees 
that this case does not stand for the proposition that ``any'' reliance 
on the government for subsistence would render a noncitizen likely at 
any time to become a public charge, and thus inadmissible.
---------------------------------------------------------------------------

    \131\ 283 F. 697, 698 (N.D. Cal. 1922).
    \132\ 283 F. 697, 698 (N.D. Cal. 1922).
---------------------------------------------------------------------------

    In short, DHS has determined that it is appropriate in light of the 
statute's text and purpose, as well as longstanding judicial and 
administrative precedent to focus on primary dependence on the 
government for subsistence, and to do so by reference to public cash 
assistance for income maintenance and long-term institutionalization at 
government expense in particular. In addition, when considering past, 
current, and future receipt of such public benefits, DHS believes it is 
appropriate to take into consideration the amount, duration, and 
recency of receipt along with other factors.
    Comment: One commenter stated that facilitating the use of public 
benefits generally by immigrants, even those who may be eligible by the 
benefits' authorizing statutes, directly conflicts with Congressional 
intent in enacting the public charge ground of inadmissibility, and 
that the rule, which ``significantly'' raises the threshold of 
permissible means-tested benefits usage for purposes of public charge 
inadmissibility determinations, should be withdrawn. The commenter also 
stated that Congress, in enacting PRWORA and IIRIRA very close in time, 
must have recognized that it made certain public benefits available to 
some noncitizens who are also subject to the public charge ground of 
inadmissibility, even though receipt of such benefits could render the 
noncitizen inadmissible as likely to become a

[[Page 55500]]

public charge. The commenter cited data and studies, including those 
conducted by the Center for Immigration Studies,\133\ for the 
proposition that a high percentage of ``immigrant-led'' households 
depended on safety-net public benefit programs, and that a change in 
policy by DHS could result in significant cost savings in the context 
of Medicaid as well as other public benefit programs.
---------------------------------------------------------------------------

    \133\ See Steven Camarota and Karen Ziegler, ``63% of Non-
Citizen Households Access Welfare Programs,'' Center for Immigration 
Studies (Nov. 2018), https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Response: While DHS agrees with commenters that Congress was aware 
that some noncitizens who are eligible for public benefits under PRWORA 
are also subject to the public charge ground of inadmissibility and may 
have their past or current receipt of some benefits considered in the 
context of public charge inadmissibility determinations, DHS disagrees 
with the suggestion that it should withdraw the proposed rule. As noted 
above, the congressional statement of policy at 8 U.S.C. 1601(2) 
relates most directly to other policy measures enacted (and in fact 
later relaxed) by Congress, and does not mandate a specific result in 
this rulemaking.
    DHS believes that the rule draws reasonable distinctions consistent 
with Congressional intent between cash benefits intended for income 
maintenance and special-purpose and supplemental benefits intended to 
help recipients remain self-sufficient. Furthermore, DHS has determined 
that very few noncitizens are both eligible for public benefits and 
subject to the public charge ground of inadmissibility. DHS has also 
determined that a great number of households not subject to the public 
charge ground of inadmissibility could be deterred from receiving 
important supports (such as medical care or preventive services needed 
to combat or prevent the spread of communicable disease, or 
supplemental nutrition assistance for children) because of the chilling 
effects that would be associated with expanding the list of public 
benefits considered in making public charge inadmissibility 
determinations, as this commenter suggested. DHS is uncertain how the 
commenter arrived at the estimated $4.9 billion in savings in Medicaid 
by the year 2030 but disagrees that any direct impacts of the rule on 
the population regulated thereby would result in significant cost 
savings in the context of Medicaid; rather DHS believes that the 
commenter is suggesting that chilling effects that could be caused by 
the rule, influencing primarily those individuals not subject to the 
rule, would result in what they view as a desirable outcome and cost 
savings. DHS disagrees that such a policy objective--which depends on 
confusion about the scope and effect of the rule--is consistent with 
Congressional intent or that it is desirable.
    DHS also notes that the analysis by the Center for Immigration 
Studies cited by the commenter is methodologically flawed, which 
results in inflated and inaccurate estimates of benefit use. The 
analysis examined benefit use by ``non-citizen-headed households'' 
rather than by noncitizens themselves.\134\ While that analysis showed 
generally low use of SSI and TANF by such households, even those low 
rates of use are misleading in the context of a public charge 
inadmissibility determination. Under both the 2019 Final Rule, favored 
by the commenter, and this rule, only public benefits received by the 
noncitizen, where the noncitizen is listed as a beneficiary, are 
considered in a public charge inadmissibility determination. Given that 
this analysis cited by the commenter attributes to the noncitizen 
``head of household'' any use of benefits by any member of the 
household, including U.S. citizens, the rates of SSI and TANF use by 
such households is unrelated to public charge inadmissibility 
determinations under both the 2019 Final Rule and this rule.
---------------------------------------------------------------------------

    \134\ See Steven Camarota and Karen Ziegler, ``63% of Non-
Citizen Households Access Welfare Programs,'' Center for Immigration 
Studies (Nov. 20, 2018), https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Since Congress sharply limited the eligibility for public benefits 
for noncitizens in PRWORA (and, as noted, provided exceptions to the 
public charge ground of inadmissibility for most categories of 
noncitizens eligible for benefits), the members of the ``non-citizen-
headed households'' actually receiving the SSI and TANF in this 
analysis are most likely not the noncitizen heading the household but 
rather other members of the family.
    The SIPP data used by the analysts at the Center for Immigration 
Studies does allow for a more accurate assessment of public benefit use 
by noncitizens themselves, using individuals as the basis for analysis, 
which was the approach taken by DHS in the 2019 Final Rule and in this 
rule. However, the Center for Immigration Studies used household as the 
basis for analysis which resulted in inflated and inaccurate estimates 
of benefit use.
2. Support for Changes to the Public Charge Ground of Inadmissibility
    Comment: One commenter stated that immigrants deserve a right to 
benefits when they migrate because they may come to the United States 
with nothing and may be migrating out of a need for survival rather 
than because they feel they are entitled to benefits. This commenter 
said that it is unjust to assume immigrants will be able to support 
themselves shortly after leaving dangerous situations and short-term 
government assistance should be an option for those experiencing 
traumatic situations in their home countries. Another commenter stated 
that all noncitizens should have access to public benefits, including 
housing, Medicaid, food stamps, and other benefits Congress intended. 
Another commenter stated that many U.S.-born citizens have needed 
government assistance, so it is reasonable that immigrants starting 
over in the United States would also need support from the government 
and should receive that support. Another commenter stated that for 
whatever reason people become public charges, they are often grateful 
for the help and do the best they can to contribute back to our 
society.
    Response: To the extent that these commenters suggest that DHS 
should, through this rulemaking, expand the public benefits available 
to noncitizens, DHS disagrees. As explained in more detail above, 
Congress has the authority to legislate which noncitizens are eligible 
to apply for and receive Federal public benefits and did so when it 
enacted PRWORA. Neither the statutory public charge ground of 
inadmissibility nor this final rule govern eligibility for public 
benefits. This final rule does not intend to decide or impact which 
categories of noncitizens are, or should be, eligible to receive public 
benefits, but rather to indicate when a noncitizen is inadmissible 
under the public charge ground of inadmissibility. DHS therefore 
declines to make any changes in response to these commenters.
    Comment: Many commenters suggested that the public charge 
inadmissibility determination should be eliminated entirely. Others 
suggest that while DHS waits for Congress to eliminate the public 
charge ground of inadmissibility, it should not apply it. One commenter 
suggested DHS inform Congress of the ``many issues of the Public Charge 
rules and regulations.'' One commenter stated that the public charge 
ground of inadmissibility is dehumanizing to immigrants because it 
punishes them for accessing support for basic human needs in the 
adjudication

[[Page 55501]]

of immigration benefit applications. One commenter opposed the public 
charge ground of inadmissibility because it is dehumanizing to force 
individuals to prove their utility to the U.S. economy before 
permitting them to stay in the country and implies that noncitizens are 
inherently worth less than U.S. citizens. Another commenter stated that 
the statute has historically been used to erect barriers to immigrants 
of color.
    Response: To the extent that these commenters suggest that DHS has 
the authority to eliminate or ignore the public charge ground of 
inadmissibility, DHS disagrees. DHS recognizes that the public charge 
ground of inadmissibility could result in the denial of admission or 
adjustment of status for certain applicants, but DHS notes that the 
commenters' concerns with respect to the existence and structure of 
this ground of inadmissibility should be directed to Congress, not to 
DHS. The public charge ground of inadmissibility was established by 
Congress in some of the earliest immigration laws \135\ and, as 
discussed in the NPRM,\136\ has existed in its current form since 
1996.\137\ As Congress has determined that all applicants for visas, 
admission, and adjustment of status are inadmissible if they are 
determined to be likely at any time to become a public charge, DHS is 
required to apply the public charge ground of inadmissibility to all 
noncitizens seeking admission or adjustment of status unless otherwise 
expressly exempted by Congress.
---------------------------------------------------------------------------

    \135\ Immigration Act of 1882, Public Law 47-376, 22 Stat. 214 
(1882).
    \136\ 87 FR at 10579 (Feb. 24, 2022).
    \137\ Public Law 104-208, div. C, 110 Stat 3009-546, 3009-674.
---------------------------------------------------------------------------

    However, DHS does have the authority to define ``likely at any time 
to become a public charge,'' \138\ as it has in this rule, and in doing 
so, decide which public benefits are considered for the purposes of 
this rule.
---------------------------------------------------------------------------

    \138\ See Homeland Security Act of 2002, Public Law 107-296, 
sec. 102, 116 Stat. 2135, 2142 (2002) (codified at 6 U.S.C. 112); 
INA sec. 103, 8 U.S.C. 1103.
---------------------------------------------------------------------------

    DHS notes that it did not codify this final rule to discriminate 
against noncitizens based on their race or color. Rather, as noted in 
the NPRM,\139\ this rule is intended to be a faithful execution of the 
public charge ground of inadmissibility that is clear and 
comprehensible, and that would lead to fair and consistent 
adjudication. DHS believes that this rule accomplishes that goal, 
avoids unequal treatment, and avoids imposing undue barriers for 
noncitizens applying for admission or adjustment of status. Indeed, 
through this rulemaking, DHS is promulgating a clear and concise 
regulation that implements the public charge ground of inadmissibility 
by evaluating each noncitizen applying for adjustment of status or 
admission for public charge inadmissibility in the totality of the 
circumstances, absent statutory exemptions.
---------------------------------------------------------------------------

    \139\ 87 FR at 10599 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: Another commenter stated that the statute is in conflict 
with E.O. 14012, ``Restoring Faith in Our Legal Immigration Systems and 
Strengthening Integration and Inclusion Efforts for New Americans,'' as 
neither efficient nor a removal of barriers. While several commenters 
acknowledged that amending or repealing the statute is not within DHS's 
authority, one commenter stated that the statute compromises the 
overall goal of DHS to prioritize and incorporate equity into the rule.
    Response: As noted above, DHS lacks the authority to make any 
changes to the statute underlying the public charge ground of 
inadmissibility; only Congress can do so. To the extent that these 
commenters are suggesting that this this rule conflicts with the 
Administration's goals to achieve equality and inclusion, as set forth 
in E.O. 14012,\140\ DHS disagrees. As explained above, this rule is 
intended to be a faithful execution of the public charge ground of 
inadmissibility that is clear and comprehensible, and that would lead 
to fair and consistent adjudication for similarly situated 
applications. DHS believes that this rule avoids unequal treatment and 
avoids imposing undue barriers for noncitizens applying for admission 
or adjustment of status.
---------------------------------------------------------------------------

    \140\ See ``Restoring Faith in Our Legal Immigration Systems and 
Strengthening Integration and Inclusion Efforts for New Americans,'' 
86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------

3. Other Legal Arguments
a. Comments on Litigation Relating to the 2019 Final Rule
    Comment: A commenter representing a State remarked that the changes 
in this rule are being proposed even though the 2019 Final Rule was 
still being litigated, and DHS removed the 2019 Final Rule from the 
Federal Register without notice and comment based entirely on the 
``unreviewed, nationwide vacatur'' issued by the District Court for the 
Northern District of Illinois, despite multiple States seeking to 
intervene. The commenter wrote that ``multiple states (including the 
undersigned) have sought to intervene in the Northern District of 
Illinois for the purpose of challenging that vacatur, and that matter 
is currently pending before the Seventh Circuit. Multiple states 
(including the undersigned) have also sought to intervene in a similar 
case in the Ninth Circuit, and that matter is currently pending before 
the United States Supreme Court. These cases are ongoing and could 
easily result in a reversal of the Northern District of Illinois's 
vacatur of the 2019 Rule, which was the sole justification for the 
immediate removal of the 2019 Rule from the Federal Register without 
notice and comment.'' \141\ Another commenter stated that if DHS were 
to finalize the proposed rule, the commenter would pursue litigation 
against the rule.
---------------------------------------------------------------------------

    \141\ Internal footnotes omitted.
---------------------------------------------------------------------------

    Response: Comments regarding the basis for the vacatur 
implementation rule are outside the scope of this rulemaking. To the 
extent that the commenter suggests that DHS should delay issuance of 
this final rule pending resolution of all litigation regarding the 2019 
Final Rule, the vacatur of the 2019 Final Rule, and the implementation 
of that vacatur, the comment is arguably within the scope of the 
rulemaking, but DHS respectfully disagrees with the commenter's 
suggestion. First, as a factual matter, in the time since the commenter 
submitted the above comments, the Supreme Court dismissed the writ of 
certiorari in one case as improvidently granted, and the Seventh 
Circuit upheld the U.S. District Court for the Northern District of 
Illinois' denial of intervention. Although it is conceivable that these 
issues will continue to be litigated, DHS sees no reason to delay 
issuance of this rule pending resolution of all possible litigation.
    Second, DHS does not see how delaying issuance of this notice-and-
comment rulemaking would meaningfully address concerns about the 
adequacy of the rulemaking process for the vacatur implementation rule. 
The expressed concern regarding that rule was the absence of notice and 
comment, but in this rulemaking, DHS has completed multiple rounds of 
notice and comment, including an ANPRM and virtual public listening 
sessions, as well as the notice-and-comment process in which this 
commenter took advantage of the opportunity to participate. This 
rulemaking process has provided ample opportunity for public 
participation. The commenter's suggestion that DHS should delay issuing 
this rule pending further litigation is therefore unwarranted.
    Third, DHS notes that although this rule does not replace the 2019 
Final Rule, throughout the rulemaking process, DHS has considered and 
welcomed comment related to various

[[Page 55502]]

aspects of the content and effects of that rule. DHS has analyzed the 
effects of this rule against the 1999 Interim Field Guidance, a Pre-
Guidance Baseline, and an alternative similar to the 2019 Final Rule. 
To whatever extent the commenter expresses concern regarding the 
availability of notice and comment regarding whether to issue a rule 
similar to the 2019 Final Rule, this rulemaking process has addressed 
the matter squarely.
    Finally, DHS acknowledges the significant public interest in public 
charge issues. The 2018 NPRM resulted in over 266,000 comments, vastly 
more than any other rulemaking in the history of the Department. This 
rulemaking resulted in a much smaller number of public comments. 
Although in both rulemaking proceedings the vast majority of comments 
expressed opposition to the 2019 Final Rule or a return to a similar 
framework, in this rulemaking proceeding, DHS has carefully considered 
comments from all quarters and representing all perspectives. 
Ultimately, following careful consideration of the public comments 
received in response to the 2021 ANPRM and the 2022 NPRM, and for the 
reasons expressed throughout this preamble, DHS determined that this 
rule represented the most appropriate path forward.
    DHS understands that some commenters intend to pursue litigation 
against this rule. Although DHS is confident that this rule is fully 
consistent with law, DHS notes its intention that the provisions of the 
rule be treated as severable to the maximum extent possible, such that 
if any court of competent jurisdiction were to deem any provision of 
the rule to be invalid or unenforceable in any respect, all other parts 
of the rule will remain in effect to the maximum extent permitted by 
law.
b. Allegations That the Proposed Rule Is Arbitrary and Capricious
    Comment: Several commenters stated that DHS failed to adequately 
explain its decision to take a different approach from the previous 
Administration's rule and appears to simply express its disagreement 
with the 2019 Final Rule. Commenters stated that, although DHS is 
within its discretion to take a different approach than DHS did in 2019 
as long as that approach is consistent with the law, proposed rules 
must include justification and reasoning for the approaches taken. 
Commenters stated that DHS appears to be motivated simply by issuing a 
rule that is different from the 2019 Final Rule.
    Response: DHS disagrees that it failed to adequately explain that 
it was considering adopting an approach different than the approach set 
forth in the 2019 Final Rule. In fact, DHS explained at the outset of 
the NPRM that, rather than simply disagreeing with the approach taken 
in the 2019 Final Rule, DHS was aiming to implement a rule that 
provided a more faithful interpretation of the public charge ground of 
inadmissibility that would also, to the extent possible, minimize the 
unnecessary paperwork burdens, confusion, and chilling effects 
associated with the 2019 Final Rule.\142\
---------------------------------------------------------------------------

    \142\ 87 FR at 10571 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Moreover, throughout the NPRM, DHS noted where this rule 
substantively differed from the 2019 Final Rule and explained why DHS 
had opted to take a different approach. For example, in the NPRM, in 
explaining the definition for ``likely at any time to become a public 
charge,'' DHS explained in detail why the degree of dependence on the 
government that would give rise to inadmissibility under this rule--
primary dependence on the government for subsistence--as compared to 
the degree of dependence in the 2019 Final Rule--reliance over a 
specific threshold for duration of receipt--was a more sound 
interpretation of the public charge ground of inadmissibility and 
appropriately balanced the policy objectives set forth in PRWORA and 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\143\
---------------------------------------------------------------------------

    \143\ 87 FR at 10606 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Additionally, DHS explained in detail in the NPRM why, after 
consulting with Federal benefits-granting agencies like HHS and USDA, 
it was proposing to consider a narrower list of public benefits than 
the more extensive list of public benefits that were considered under 
the 2019 Final Rule.\144\ For instance, DHS explained that it proposed 
not to include SNAP benefits and most Medicaid benefits, as receipt of 
such was described by the relevant benefits-granting agencies as not 
being indicative of an individual being or likely to become primarily 
dependent on the government for subsistence.\145\ DHS further explained 
in the NPRM that its approach to this rule was based on the objective 
to faithfully execute the public charge ground of inadmissibility while 
avoiding policies that unduly discourage individuals from availing 
themselves to the public benefits for which they are eligible.\146\ 
Following consideration of public comments received on the NPRM, DHS 
continues to believe this to be the case.
---------------------------------------------------------------------------

    \144\ 87 FR at 10609-10610 (Feb. 24, 2022).
    \145\ 87 FR at 10610 (Feb. 24, 2022).
    \146\ 87 FR at 10610 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: Several commenters stated that DHS fails to provide any 
reasoned analysis concerning why noncitizens changing or extending 
their nonimmigrant status in the United States should not be subject to 
the proposed rule. The commenters reasoned that if these classes of 
noncitizens may ultimately be able to utilize certain public benefit 
programs, States have a right to understand why DHS intends to exercise 
its discretion this way, and saying that certain noncitizens may not 
presently be eligible for benefits is insufficient and does not provide 
a meaningful opportunity to comment on the proposed rule. Another 
commenter acknowledged that DHS has the discretion to decide whether to 
set conditions on extension of stay and change of status applications, 
but said DHS is arbitrarily declining to include a public benefits 
condition in this rule.
    Response: DHS disagrees that it failed to explain why this rule 
does not impose conditions on extension of stay and change of status 
applications and petitions based on the receipt of public benefits. 
Although DHS has the authority to set conditions on requests for 
extension of stay and change of status,\147\ as explained in the 
NPRM,\148\ DHS cannot apply the public charge ground of inadmissibility 
to such requests because the plain language of the statute provides 
that the ground only applies to applications for a visa, admission, and 
adjustment of status under the INA.\149\ Requests for extension of stay 
and change of status are not applications for visa, admission, or 
adjustment of status, and therefore are not subject to the public 
charge ground of inadmissibility.
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    \147\ INA secs. 214 and 248, 8 U.S.C. 1184 and 1258.
    \148\ 87 FR at 10600-10601 (Feb. 24, 2022).
    \149\ INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
---------------------------------------------------------------------------

    Furthermore, as explained in the NPRM,\150\ DHS does not believe 
that it needs to require, as a condition of an application or petition 
for extension of stay or change of status, that the nonimmigrant not 
become a public charge or not receive public benefits, because such a 
condition would be applicable to very few nonimmigrants, if any. This 
is because nonimmigrants are generally barred from receiving the public 
benefits considered in this proposed rule, such as SSI, TANF, and 
Medicaid for long-term institutionalization.\151\ Additionally, to

[[Page 55503]]

the extent that commenters are concerned that a nonimmigrant seeking an 
extension of stay or change of status may not be self-reliant, these 
concerns are, for many nonimmigrant categories, addressed by both the 
requirements for obtaining such status in the first instance as well as 
the requirements applicable to their applications and petitions for 
extension of stay and change of status.
---------------------------------------------------------------------------

    \150\ 87 FR at 10600-10601 (Feb. 24, 2022).
    \151\ Public Law 104-193, sec. 431(b), Public Law 104-208, div. 
C, sec. 501 (amending Public Law 104-193 by adding sec. 431(c)), 8 
U.S.C. 1641(b) and (c) (defining ``qualified aliens'' for Federal 
public benefits purposes); Public Law 104-193, sec. 411, 8 U.S.C. 
1621 (describing eligibility for State and local public benefits 
purposes).
---------------------------------------------------------------------------

    For example, in some of the employment-based nonimmigrant cases, 
the petitioning employer is required to comply with certain wage 
requirements applicable to such classifications. In the temporary 
agricultural worker (H-2A nonimmigrant) context,\152\ the employer must 
offer the appropriate wage rate \153\ and comply with other 
requirements as set by law and regulations.\154\ Other nonimmigrants, 
such as F and M nonimmigrant students, need to demonstrate that they 
have sufficient funds to pay tuition and related costs as part of the 
application for extension of stay or change of status to such 
nonimmigrant categories.\155\ Therefore, DHS believes that it has 
adequately explained its reasons for not imposing conditions related to 
the receipt of public benefits on nonimmigrants seeking an extension of 
stay or change of status and as a result declines to add provisions in 
this regard to the final rule.
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    \152\ See INA secs. 101(a)(15)(H)(ii)(a), 218, 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1188.
    \153\ 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.
    \154\ See 20 CFR 655.100 through 655.185.
    \155\ See 8 CFR 214.1(f)(1)(i)(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 214.2(m)(1)(i)(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)); USCIS, ``Adjudicator's Field Manual (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), 
https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm30-external.pdf (last visited Aug. 16, 2022); 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); 22 CFR 41.62(a)(2) (requiring that J-1 visa 
applicants possess sufficient funds to cover expenses or have made 
other arrangements to provide for expenses before a DOS consular 
officer can approve the visa).
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    Comment: Several commenters suggested that the proposed rule 
reflects DHS's intention to ignore its authority with respect to public 
charge bonds without adequate justification.
    Response: DHS disagrees with commenters' assertion that it is 
ignoring its bond authority without justification. On the contrary, DHS 
acknowledged its discretionary bond authority in the NPRM,\156\ and DHS 
reiterates, in this rule, that it has authority under section 213 of 
the INA, 8 U.S.C. 1183, to consider whether to exercise its discretion 
on a case-by-case basis to admit noncitizens who are inadmissible only 
under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), upon the 
submission of a suitable and proper public charge bond.
---------------------------------------------------------------------------

    \156\ 87 FR at 10597 (Feb. 24, 2022).
---------------------------------------------------------------------------

    However, as explained more fully in the bond section below, after 
careful consideration of public comments and feedback, DHS has revised 
the bond provisions to reflect DHS's statutory authority to consider 
offering public charge bonds, in its discretion, to adjustment of 
status applicants inadmissible only under section 212(a)(4) of the INA, 
8 U.S.C. 1183.\157\ These additional provisions will help ensure that 
DHS adequately addresses how DHS will exercise its discretion to offer 
public charge bonds in the context of adjustment of status applications 
and will help ensure that public charge bonds remain operationally 
feasible in such cases. Under this rule, DHS will consider offering 
adjustment of status applicants who are inadmissible only under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), the opportunity to submit a 
bond as a condition of adjustment of status.\158\ When USCIS 
determines, in its discretion, to offer an adjustment of status 
applicant the opportunity to submit a public charge bond, USCIS will 
set the bond amount at an amount of no less than $1,000 and provide 
instructions for the submission of a public charge bond.\159\ USCIS 
will also amend the other regulations pertaining to public charge 
bonds. USCIS will provide officers with guidance and training to ensure 
that this discretionary authority is exercised in a fair, efficient, 
and consistent manner.
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    \157\ 8 CFR 213.1.
    \158\ See 8 CFR 213.1(a) and (c).
    \159\ See 8 CFR 213.1(a) and (c).
---------------------------------------------------------------------------

c. Allegations That the Proposed Rule Is Inconsistent With the Statute
    Comment: Commenters opposed to the rule generally stated that the 
rule markedly departs from the standards in the 2019 Final Rule and is 
contrary to law.
    Response: Although DHS agrees that this rule is different than the 
standards set forth in the 2019 Final Rule, DHS disagrees that this 
rule is contrary to law. DHS noted that neither the statute nor case 
law require DHS to interpret the statute as was done in the 2019 Final 
Rule. On the contrary, when Congress enacted the public charge ground 
of inadmissibility without defining what it meant to be a ``public 
charge'' or ``likely at any time to become a public charge,'' Congress 
authorized the agencies administering this ground of inadmissibility to 
determine and specify what those terms meant and how such 
inadmissibility determinations would be made.\160\ DHS has concluded, 
consistent with the NPRM,\161\ that this rule is a permissible and 
faithful implementation of the public charge ground of inadmissibility. 
With this rule, DHS is providing important definitions and guidance to 
implement the public charge ground of inadmissibility, such as defining 
``likely at any time to become a public charge,'' that Congress left 
for DHS to implement. Also as noted in the NPRM,\162\ this rule 
provides a close connection to the language used in the statute and 
reflects the forward-looking subjective aspect of the statutory 
standard. DHS has further determined, consistent with the NPRM,\163\ 
that this rule better balances the overlapping policy objectives 
established by Congress when it enacted PRWORA \164\ in close proximity 
to enacting the current public charge ground of inadmissibility, 
without unnecessarily harming separate efforts related to the health 
and well-being of people whom Congress made eligible for supplemental 
supports, let alone those eligible for benefits and not subject to the 
public charge ground of inadmissibility.
---------------------------------------------------------------------------

    \160\ See Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-
546, 3009-674 (1996) (amending INA sec. 212(a)(4), 8 U.S.C. 
1182(a)(4)).
    \161\ 87 FR at 10571, 10606-10610 (Feb. 24, 2022).
    \162\ 87 FR at 10606 (Feb. 24, 2022).
    \163\ 87 FR at 10610 (Feb. 24, 2022).
    \164\ See Public Law 104-193, sec. 400, 110 Stat. 2105, 2260 
(1996) (codified at 8 U.S.C. 1601).
---------------------------------------------------------------------------

    Comment: One commenter stated that the rule conflicts with section 
101 of the HSA, 6 U.S.C. 111, which requires DHS to protect the 
economic security of the United States. The commenter said that 
providing public benefits, even with an approved sponsor, bond or 
undertaking approved by the Secretary, has the potential to impede the 
economic security of the United States and its citizens.

[[Page 55504]]

    Response: DHS disagrees with this commenter's characterization of 6 
U.S.C. 111(b)(1)(F), and further disagrees that this rule conflicts 
with that provision. 6 U.S.C. 111(b)(1)(F) provides that among other 
primary missions, DHS should ``ensure that the overall economic 
security of the United States is not diminished by efforts, activities, 
and programs aimed at securing the homeland . . . .'' \165\ Consistent 
with this mission set forth in the statute, DHS has determined that 
this rule properly achieves the policy objective set by Congress in 
ensuring that those who are likely at any time to become a public 
charge are not admitted into the United States or permitted to adjust 
status, without diminishing the overall economic security of the United 
States.
---------------------------------------------------------------------------

    \165\ Public Law 107-296, sec. 101(b)(1)(F), 6 U.S.C. 
111(b)(1)(F).
---------------------------------------------------------------------------

    Moreover, to the extent that this commenter suggests that this rule 
provides public benefits to noncitizens that will diminish the economic 
security of the United States, DHS strongly disagrees.
    Neither the public charge ground of inadmissibility nor this final 
rule govern eligibility for public benefits. Rather, the public charge 
ground of inadmissibility and this final rule pertain to whether an 
applicant for admission or adjustment of status is likely at any time 
to become a public charge. This final rule thus does not determine 
which noncitizens are, or should be, eligible to apply for and receive 
public benefits. And in any event, DHS disagrees that a contraction of 
eligibility for public benefits (or a change in incentives for or fear 
and confusion about their use) would have a positive effect on the 
economic security of the United States. DHS has determined that using 
the public charge ground of inadmissibility to deter the use of health 
and nutrition benefits primarily among people who are not subject to 
the public charge ground of inadmissibility (such as U.S. citizen 
children in mixed-status households) would not further the nation's 
economic security. Accordingly, DHS declines to make any changes in 
response to the comment.
    Comment: One commenter stated an opposition to PRWORA and the 
restriction for eligibility for federal means-tested benefits within 
PRWORA.
    Response: The comment is outside the scope of the rulemaking. As 
explained more fully above, this rule does not govern eligibility for 
public benefits. Rather, this final rule governs the determination of 
whether an applicant for admission or adjustment of status is likely at 
any time to become a public charge.

E. Chilling Effects

1. Impacts of Previous Public Charge Policies
    Comment: Many commenters opposed the previous public charge policy 
enacted by the 2019 Final Rule due to the confusion and fear it caused 
with respect to the immigration consequences of utilizing public 
benefits, with some remarking that the 2019 Final Rule had a profound 
chilling effect. One commenter noted that a court decision concerning 
the 2019 Final Rule, Cook County v. Wolf,\166\ observed that much of 
the chilling effect was a result of the 2019 Final Rule's complexity.
---------------------------------------------------------------------------

    \166\ 962 F.3d 208 (7th Cir. 2020).
---------------------------------------------------------------------------

    Several commenters stated generally that the chilling effects 
caused older adults and their families to forgo benefits, including 
Medicaid and SNAP, due to the feared immigration consequences, with a 
disproportionate impact on older adults and people with disabilities. 
Commenters cited published research and studies that found that the 
mere announcement of a public charge rule in 2018 led to declines in 
safety-net participation, with an analysis of State-reported data 
showing that the announcement of public charge regulations was 
associated with a decrease in child enrollment in Medicaid of 
approximately 260,000 from 2017 levels.\167\ Commenters submitted 
studies that found evidence that enrollment by all individuals in 
Medicaid, SNAP, and CHIP, as well as enrollment in WIC, even though 
CHIP and WIC were not included in the 2019 Final Rule, declined.\168\ A 
different commenter noted a study that found that 30 percent of adults 
in low-income immigrant families with children reported that they or a 
family member had avoided non-cash government programs or other 
assistance with their basic needs because of concerns about the impact 
on their immigration status. Another commenter cited research on the 
impact of the 2019 Final Rule on immigrant families, which they 
described as showing that 48 percent of immigrant families avoided the 
SNAP program, 45 percent avoided Medicaid and CHIP, and 35 percent 
avoided housing subsidies because of the fear of risking their ability 
to obtain a green card.\169\ The commenter also cited a 2020 report by 
the Center for Law and Social Policy stating that some parents were 
also reluctant to send their children to school or childcare, although 
the report did not attribute that claim to a specific study.\170\ 
Another commenter stated that the Asian American, Native Hawaiian, and 
Pacific Islander population was especially affected by the chilling 
effects of the 2019 Final Rule, and continues to be affected in 
Medicaid and CHIP enrollment and renewals. Some commenters said that 
the 2019 Final Rule also affected U.S. citizen children, whose parents 
elected to disenroll or not enroll them in CHIP due to fear of 
immigration consequences.
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    \167\ Jeremy Barofsky et al., ``Spreading Fear: The Announcement 
of the Public Charge Rule Reduced Enrollment in Child Safety-Net 
Programs,'' Health Affairs (Oct. 2020), https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763 (last visited 
Aug. 16, 2022).
    \168\ Jeremy Barofsky et al., ``Spreading Fear: The Announcement 
of the Public Charge Rule Reduced Enrollment in Child Safety-Net 
Programs,'' Health Affairs (Oct. 2020), https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763 (last visited 
Aug. 16, 2022),; Jeremy Barofsky et al., ``Putting Out the 
`Unwelcome Mat:' The Announced Public Charge Rule Reduced Safety Net 
Enrollment among Exempt Noncitizens,'' J. of Behav. Pub. Admin. 
(Oct. 2021), https://doi.org/10.30636/jbpa.42.200 (last visited Aug. 
16, 2022); Hamutal Bernstein et al., ``Amid Confusion over the 
Public Charge Rule, Immigrant Families Continued Avoiding Public 
Benefits in 2019,'' Urban Institute (May 2020), https://www.urban.org/research/publication/amid-confusion-over-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-2019 (last visited Aug. 16, 2022).
    \169\ Hamutal Bernstein et al., ``Amid Confusion over the Public 
Charge Rule, Immigrant Families Continued Avoiding Public Benefits 
in 2019,'' Urban Institute (May 2020), https://www.urban.org/research/publication/amid-confusion-over-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-2019 (last 
visited Aug. 16, 2022).
    \170\ Rebecca Ullrich, ``The Public Charge Rule & Young 
Children: Q&A on the New Regulation,'' Center for Law and Social 
Policy (Feb. 2020), https://www.clasp.org/sites/default/files/publications/2020/02/2020.02.24%20Public 
%20Charge%20Young%20Children %20Final%20Rule%20QA_update.pdf (last 
visited Aug. 16, 2022).
---------------------------------------------------------------------------

    One commenter cited a study showing that from 2016 to 2019, U.S. 
citizen children living in low-income households with at least one 
noncitizen saw:
     An 18 percent drop in Medicaid participation compared to 
an 8 percent drop in participation for U.S. citizen children living in 
households with only U.S. citizens;
     a 36 percent drop in SNAP participation compared to a 17 
percent drop in participation for U.S. citizen children living in 
households with only U.S. citizens; and
     A 36 percent drop in TANF, General Assistance, and similar 
cash assistance programs compared to a 20 percent drop in participation 
for U.S. citizen children living in households with only U.S. 
citizens.\171\
---------------------------------------------------------------------------

    \171\ Randy Capps et al., ``Anticipated `Chilling Effects' of 
the Public-Charge Rule Are Real: Census Data Reflect Steep Decline 
in Benefits Use by Immigrant Families,'' Migration Policy Institute 
(Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (last visited Aug. 16, 
2022).

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[[Page 55505]]

    A commenter cited data suggesting that the local SNAP program in 
the City and County of San Francisco (known as CalFresh) experienced a 
15 percent decline in the caseload associated with households 
containing at least one noncitizen, and a much smaller decline 
associated with citizen-only households.
    One commenter cited stories from survivors of domestic violence and 
sexual assault who stated they did not enroll in programs specifically 
designed for them, including domestic violence transitional housing, 
food pantry assistance, and sexual assault nurse examination and 
associated counseling services due to fear of the impact of the public 
charge ground of inadmissibility, and that they also withdrew from 
assistance programs that supported their basic needs. The commenter 
urged DHS to promptly publish a rule that advances victim and public 
safety and health; encourages victims to seek or utilize safety net 
benefits that are crucial to their ability to escape or recover from 
abuse and trauma; does not serve to punish victims for the violence 
they have experienced; and strengthens their ties to their families, 
who are essential sources of support in escaping and recovering from 
abuse.
    Commenters wrote about the particularly harmful effects on a number 
of States, including California, New York, Maryland, and Illinois, 
stating that a rule similar to the 2019 Final Rule would result in 
coverage losses, decreased access to care, and worsened health outcomes 
for entire families, including children, many of whom are U.S. 
citizens. They also wrote about jeopardized access to health services 
for legal immigrants across individual States, affecting children, 
seniors, people with disabilities, and those with chronic conditions, 
which could exacerbate medical conditions and lead to sicker patients 
and greater reliance on hospital emergency departments, which would 
subsequently raise costs for all residents. Several commenters stated 
that the 2019 Final Rule deterred eligible individuals from accessing 
health care, particularly preventive care, which harmed the community 
and forced their county to shoulder the costs of expensive, last-minute 
emergency-department interventions. This is in agreement with another 
comment that predicted that failing to guarantee access to health care 
services for all people, including immigrants, will cause an increased 
use of emergency rooms and emergency care as a method of primary health 
care due to delayed treatment.
    Several commenters indicated that the 2019 Final Rule had chilling 
effects on students from households with mixed immigration and 
citizenship status, with one commenter--a coalition of the nation's 
largest central city school districts--stating that frequent 
``fluctuations in federal immigration policy have resulted in 
significant upheaval in the lives of many school children and their 
families, and have manifested in school absenteeism, behavior 
incidents, mental health issues, and declining academic performance for 
many affected students.'' The commenter stated that the 2019 Final Rule 
``exacerbated disruptions for the families of tens of thousands of 
school children with such mixed immigration and citizenship status 
affecting their financial, emotional, and physical well-being.''
    Another commenter stated that a rule similar to the 2019 Final Rule 
could lead to emotional trauma resulting from family separations due to 
denials of admission or adjustment of status based on public charge 
inadmissibility.
    One commenter indicated that the chilling effects of the 2019 Final 
Rule will continue despite the publication of a new rule due to fears 
of reinstatement of the 2019 Final Rule as the result of future 
election outcomes, with another similarly stating that one aspect 
contributing to the chilling effect is a concern that a future 
administration will adopt a new public charge policy that penalizes 
people for using public benefits that are not included in the current 
public charge rule.
    Response: DHS acknowledges that the 2019 Final Rule caused fear and 
confusion among U.S. citizens and noncitizens and had a significant 
chilling effect on the use of public benefits by noncitizens, even 
among those who were not subject to the rule and with respect to public 
benefits that were not covered by the rule. DHS is aware of evidence 
that the 2019 Final Rule, and the rulemaking process that preceded it, 
resulted in significant disenrollment effects among noncitizens and 
U.S. citizens in immigrant families. DHS also acknowledges the 
challenges associated with measuring chilling effects with precision, 
and notes that different studies use different data, methodologies, and 
periods and populations of analysis and therefore reach different 
estimates of chilling effects.\172\
---------------------------------------------------------------------------

    \172\ At the same time, no commenters submitted studies 
suggesting that there was no chilling effect.
---------------------------------------------------------------------------

    DHS appreciates the commenter's concerns regarding family unity, 
but notes that the potential for a portion of a family to be deemed 
inadmissible is inherent in the concept of an individual 
inadmissibility determination. As compared to the 2019 Final Rule, 
however, this rule likely strengthens immigrant and mixed-citizenship 
families by virtue of avoiding certain chilling effects.
    In this rule, given the significant evidence of the deleterious 
collateral effects of the 2019 Final Rule, DHS gives more thorough 
consideration to the potential chilling effects of promulgating 
regulations governing the public charge inadmissibility determination. 
DHS believes that in fashioning this rule, it is appropriate to 
consider the widespread collateral effects of the 2019 Final Rule, 
including loss of nutrition and medical assistance by, for instance, 
U.S. citizen children in mixed-status households. Such effects are not 
solely the consequence of the policy contained in the 2019 Final Rule, 
but they are attributable to the 2019 Final Rule at least in part and 
are potentially very harmful for some people, including U.S. citizen 
children, and are not an inevitable consequence of public charge 
policy. In fact, as DHS has noted elsewhere, the public charge ground 
of inadmissibility identifies a range of relevant considerations, but 
does not require DHS to consider past or current receipt of any 
specific public benefits; most noncitizens who are subject to the 
public charge ground of inadmissibility are not eligible for the public 
benefits covered by either the 2019 Final Rule or this rule; and the 
2019 Final Rule, notwithstanding its broader construction of the term 
``public charge'' (which resulted in such chilling effects) and various 
other policy features (including a heavy paperwork burden), ultimately 
did not result in any final denials of adjustment of status based on 
the totality of the circumstances public charge inadmissibility 
determination under section 212(a)(4)(A) and (B) of the INA, 8 U.S.C. 
1182(a)(4)(A) and (B).\173\ The 2019 Final Rule thus produced 
significant adverse collateral effects with no corresponding increase 
in the number of noncitizens found to be inadmissible on the public 
charge ground.
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    \173\ As noted above, while the 2019 Final Rule was in effect, 
DHS issued only three denials, which were subsequently reopened and 
approved.

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[[Page 55506]]

    In considering chilling effects, DHS took into account the former 
INS's approach to chilling effects in the 1999 Interim Field Guidance 
and 1999 NPRM, the 2019 Final Rule's discussion of chilling effects, 
judicial opinions on the role of chilling effects, evidence of chilling 
effects following the 2019 Final Rule, and public comments on chilling 
effects following the August 2021 ANPRM and the 2022 NPRM. While DHS 
cannot predict how future administrations will act and what policies 
will be put into place, with this rule DHS commits itself to issuing 
guidance in a manner that will be clear and comprehensible for officers 
as well as for noncitizens and their families and that will lead to 
fair and consistent adjudications, thereby mitigating the risk of 
unequal treatment of similarly situated individuals.
    Comment: Commenters said that older adults and people with 
disabilities, particularly in low-income communities and communities of 
color, have been disproportionately impacted by the COVID-19 pandemic. 
A national association of children's hospitals stated that the COVID-19 
pandemic created significant pressures on health care providers, which 
are only made worse by policies that deter eligible individuals from 
enrolling in coverage, and said that any increase in uncompensated care 
as a result of increased uninsured rates exacerbates the unprecedented 
strains faced by children's hospitals nationwide due to the pandemic, 
the continuing mental health crisis amongst our children and youth, and 
an ongoing and worsening workforce shortage. This commenter stated that 
those strains threaten to undermine our pediatric health care system 
and the health of our children. Two commenters particularly emphasized 
the adverse health effects that resulted from the 2019 Final Rule 
during the pandemic when eligible individuals did not access Medicaid 
due to the chilling effects of the 2019 Final Rule, noting a 2021 
Kaiser Family Foundation study that found that 35 percent of immigrants 
expressed concern that getting the COVID-19 vaccine would negatively 
impact their immigration status, and that the chilling effects 
continued even after and despite the fact that DHS issued guidance 
excluding Medicaid coverage of COVID-19 testing and treatment from the 
public charge inadmissibility determination.\174\ Commenters also cited 
a 2021 report by Protecting Immigrant Families stating that even after 
the beginning of the COVID-19 pandemic, research shows that immigrant 
families avoided non-cash benefits or other assistance because of 
public charge or other immigration concerns.\175\ These commenters 
stated that these alarming trends have significant implications for the 
long-term health and well-being of children in immigrant families and 
threaten our nation's future prosperity and ability to recover from the 
pandemic. One commenter similarly stated that COVID-19 will be harder 
to control and eradicate if people are afraid of seeking medical 
benefits. Commenters said that the impacts of the 2019 Final Rule 
severely impair their city's overall ability to recover from the COVID-
19 pandemic, particularly affecting older adults and people with 
disabilities, that the chilling effects have put public health at risk 
during the pandemic, and that the 2019 Final Rule undermined some of 
the States' most effective tools for protecting the public's health and 
well-being during a crisis and promoting our nation's recovery. One 
commenter cited a national survey of adults primarily in families with 
mixed immigration or citizenship status that found that 46 percent of 
surveyed families that needed assistance during the COVID-19 pandemic 
did not apply for it due to concerns over immigration status.\176\
---------------------------------------------------------------------------

    \174\ Liz Hamel et al., ``KFF COVID-19 Vaccine Monitor: COVID-19 
Vaccine Access, Information, and Experiences Among Hispanic Adults 
in the U.S.,'' Kaiser Fam. Found. (May 2021), https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-access-informationexperiences-hispanic-adults/ (last visited Aug. 
16, 2022).
    \175\ Protecting Immigrant Families, ``Research Documents Harm 
of Public Charge Policy During the COVID-19 Pandemic,'' (Jan. 2022), 
https://protectingimmigrantfamilies.org/wp-content/uploads/2022/01/PIF-Research-Document_Public-Charge_COVID-19_Jan2022.pdf (last 
visited Aug. 16, 2022).
    \176\ No Kid Hungry, ``Public Charge was Reversed--But Not 
Enough Immigrant Families Know'' (Dec. 2021), https://www.nokidhungry.org/sites/default/files/2021-12/NKH_Public%20Charge_Micro-Report_English_0.pdf (last visited Aug. 
15, 2022).
---------------------------------------------------------------------------

    Response: DHS acknowledges that the COVID-19 pandemic began to 
affect the United States at the same time as DHS began implementing the 
2019 Final Rule. As discussed in the NPRM, the pandemic had widespread 
effects, including on the population that changed its behavior in 
response to the 2019 Final Rule--and this population was largely not 
even subject to the 2019 Final Rule. DHS also fully understands that 
although the COVID-19 pandemic has evolved, the pandemic's effects 
continue, in a variety of ways, to this day. DHS notes that some 
noncitizens in the United States may be especially vulnerable to the 
direct and indirect effects of the pandemic due to higher employment in 
high-risk occupations, greater fear of seeking care and enrolling in 
public benefit programs, comparatively limited healthcare and financial 
assistance options, limited English proficiency, and higher levels of 
poverty than U.S. citizens.\177\
---------------------------------------------------------------------------

    \177\ DHS Office of Immigration Statistics and DHS Countering 
Weapons of Mass Destruction Office, ``COVID-19 Vulnerability by 
Immigration Status'' (May 2021), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/research_reports/research_paper_covid-19_vulnerability_by_immigration_status_may_2021.pdf (last visited 
Aug. 15, 2022).
---------------------------------------------------------------------------

    Although DHS believes that the approach contained in this rule 
would be warranted, on both legal and policy grounds, regardless of the 
effects of the COVID-19 pandemic, this current pandemic has shown that 
pandemics are not a hypothetical concern and illustrates the importance 
of policy accounting for the possibility of similar occurrences in the 
future.
    Comment: Two commenters pointed out that the 2019 Final Rule 
resulted in few adverse actions, which suggests that any public charge 
rule would only very narrowly protect the country's economic security, 
but a rule like the 2019 Final Rule would create widespread chilling 
effects extending to individuals not even subject to the public charge 
ground of inadmissibility.
    Response: DHS agrees with these commenters that the 2019 Final Rule 
was not very consequential, during its period of implementation, in 
terms of the number of denials of adjustment of status applications. 
DHS acknowledges that the 2019 Final Rule resulted in widespread fear 
and confusion of being denied admission or adjustment of status, when 
in reality, as stated above, during the time that the 2019 Final Rule 
was in effect, of the 47,555 applications for adjustment of status to 
which the rule was applied, DHS issued only 3 denials (which were 
subsequently reopened and approved) and 2 Notices of Intent to Deny 
(which were ultimately rescinded, and the applications were approved). 
In promulgating this rule, DHS has given more thorough consideration to 
the potential chilling effects of promulgating regulations governing 
the public charge inadmissibility determination. DHS has concluded that 
this rule is consistent with the nation's economic security and will 
help ensure that public charge inadmissibility determinations will be 
fair, consistent with law, and informed by relevant data and evidence.
    Comment: One commenter remarked that the 2019 Final Rule 
dramatically

[[Page 55507]]

increased the burden placed on adjustment of status or admission 
applicants. Other commenters, including a trade association of home 
builders and a nonprofit organization serving farmworkers, similarly 
opposed the 2019 Final Rule as significantly discouraging lawful 
immigration by requiring Form I-944, Declaration of Self-Sufficiency, 
which created an impediment for employers, particularly small 
businesses, and negatively affected industries that required immigrant 
workers. Another commenter remarked that the public charge formula in 
the 2019 Final Rule was so complex and layered that it was 
extraordinarily difficult even for service providers to understand 
whether and how it applied.
    Response: The 2019 Final Rule imposed a range of burdens separate 
and apart from the chilling effects that many commenters expressed 
their concern about. DHS agrees with the commenters who stated that the 
2019 Final Rule was too burdensome on applicants by requiring 
additional information collection and evidence and its complex 
requirements. For example, Form I-944, together with its instructions, 
spanned 30 pages and requested a wide range of information on the 
statutory minimum factors, some of which was duplicative of other 
filings.
    DHS believes that, in contrast to the 2019 Final Rule, this rule 
will avoid unnecessary burdens on applicants, officers, and benefits-
granting agencies. In the 2019 Final Rule, DHS responded to multiple 
comments on the then-proposed Form I-944. In response to those 
comments, DHS revised certain fields to eliminate some redundancies or 
provide greater flexibility or clarity, and acknowledged that the time 
necessary to complete Form I-944 would vary by applicant (such that, 
for instance, a child without assets would not pose the same paperwork 
burden as an adult with assets).\178\ DHS also emphasized that it was 
required to collect much of the information on the form in order to 
consider the statutory minimum factors. In the end, DHS finalized a 
lengthy and complex form that, according to the vast majority of 
comments that addressed the issue in that rulemaking and in this 
rulemaking, took many hours to complete.
---------------------------------------------------------------------------

    \178\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41483-41484 (Aug. 14, 2019).
---------------------------------------------------------------------------

    This rule also ensures that DHS collects information regarding each 
of the statutory minimum factors, but does not require any additional 
forms and imposes a comparatively smaller paperwork burden. DHS has 
determined that the Form I-485, with some amendments, will sufficiently 
collect information regarding the factors that will be considered in a 
public charge inadmissibility determination. DHS reviewed the current 
form and proposed several additional questions regarding the factors 
used to make a public charge inadmissibility determination that were 
not already included in the form's information collection, including 
information about an applicant's household size, income, assets, 
liabilities, an applicant's education or skills, an applicant's use of 
public cash assistance for income maintenance, and any long-term 
institutionalization of the applicant at government expense. The form 
also informs applicants that additional space is available if 
applicants need to provide more information. DHS did not include 
additional questions or request additional evidence from applicants 
that is not related to a public charge inadmissibility determination. 
In order to reduce the burden on applicants not subject to section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), DHS also included a question 
asking applicants if they are subject to the public charge ground of 
inadmissibility and, if not, instructing that they may skip the 
subsequent related questions. DHS believes that these updated questions 
to the Form I-485 are necessary for DHS to make an accurate 
inadmissibility determination under the statutory public charge ground 
and will not impose undue burdens on applicants.
    Comment: Consistent with many comments stating the 2019 Final Rule 
was discriminatory, one commenter remarked that the 2019 Final Rule 
contained no clear justifications beyond discriminating against 
immigrants and satisfying voters who expressed anti-immigrant 
sentiments, with other commenters calling it a direct assault on the 
health and well-being of low-income immigrant households. One commenter 
stated that the 2019 Final Rule stood as a direct refutation of 
generations of immigrants who built this nation by dramatically 
broadening the classes of public benefits that could trigger a finding 
of public charge inadmissibility; instituting a durational test for 
measuring dependence on the unprecedented, expanded set of benefits; 
penalizing the mere application for benefits, even for those not 
subject to the public charge ground of inadmissibility; and replacing 
the totality of circumstances test with a rigid formula. One commenter 
stated that the 2019 Final Rule precluded immigrants with disabilities 
from applying for adjustment of status; put immigrant children with 
disabilities, such as those with diagnoses of autism spectrum disorder 
or failure to thrive, substantially at risk of worse outcomes due to 
limits in access to care; and contributed to creating and exacerbating 
life barriers, including timely medical attention. One commenter stated 
that the definition of ``public charge'' in the 2019 Final Rule 
resulted in almost all immigrants becoming ineligible for U.S. 
citizenship, and that people in America should not be deterred from 
help due to fear of deportation.
    Response: DHS appreciates the commenters' concerns about the 2019 
Final Rule and notes that comments about the intention of the 2019 
Final Rule fall outside the scope of this rulemaking. However, to the 
extent these commenters intended to express concern about this final 
rule discriminating against low-income immigrants, DHS notes that 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), requires DHS to 
consider how a noncitizen's age; health; family status; assets, 
resources, and financial status; and education and skills impact 
whether the noncitizen is likely at any time to become a public charge. 
Under the statute, DHS may also consider an applicant's Affidavit of 
Support Under Section 213A of the INA, if applicable.
    Furthermore, to the extent that commenters are suggesting that this 
rule will make most noncitizens ineligible for naturalization, DHS 
disagrees. This rule addresses how DHS determines inadmissibility based 
on the public charge ground and does not apply to individuals applying 
for naturalization.\179\
---------------------------------------------------------------------------

    \179\ See INA sec. 318, 8 U.S.C. 1429. 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. 
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 sec. 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.
---------------------------------------------------------------------------

    Comment: Commenters stated that the 2019 Final Rule did not take 
into account the contributions of immigrants to the economy and that 
the cost of issuing a rule similar to the 2019 Final Rule would 
outweigh the potential benefit to taxpayers because immigrants are less 
likely to use government benefits compared to people born in the United 
States. The commenters stated that the argument that taxpayers will be 
supporting immigrants is unfair, as

[[Page 55508]]

millions of citizens born in the United States access public benefits 
and the effect on individual taxpayers is minimal. One commenter also 
stated that portraying any group of people solely as assets to the U.S. 
economy is dehumanizing and that it is important to consider human 
lives and basic human needs.
    One commenter quoted a report from the National Immigration Law 
Center stating that the 2019 Final Rule made it harder for service 
providers to do their jobs due to the need for service providers and 
outreach workers to research the rule, understand its implications, and 
explain it to the clients as well as overcome misinformation from the 
media, social networks, and immigration attorneys.\180\
---------------------------------------------------------------------------

    \180\ See Holly Straut-Eppsteiner, ``Documenting Harm through 
Service Provider Accounts Harm Caused by the Department of Homeland 
Security's Public Charge Rule'' (Feb. 2020), https://www.nilc.org/wp-content/uploads/2020/02/dhs-public-charge-rule-harm-documented-2020-02.pdf (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Another commenter stated that the 2019 Final Rule was an 
unreasonable and arbitrary interpretation of section 212(a)(4) of the 
INA, 8 U.S.C. 1182(a)(4), and has burdened the States with additional 
healthcare costs and harmed the public health and economic well-being 
of residents, disproportionately impacting communities of color and 
people with disabilities, which only intensified during the COVID-19 
pandemic.
    Response: Many commenters opposed the 2019 Final Rule for economic 
reasons. While the stated intent of the 2019 Final Rule was to ensure 
that noncitizens subject to the public charge inadmissibility ground 
are self-sufficient, the 2019 Final Rule had many additional 
consequences that DHS acknowledges in promulgating this rule. DHS 
recognizes the burden on applicants and the time spent by service 
providers helping the public understand the nuances of the 2019 Final 
Rule. Furthermore, the burden on States and the harm to public health 
and the well-being of residents has been well-documented.\181\ In 
drafting this rule, DHS has determined that it is issuing a policy that 
is fully consistent with the law; that reflects empirical evidence to 
the extent relevant and available; that is clear 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 impose 
undue barriers for noncitizens seeking admission or adjustment of 
status in the United States.
---------------------------------------------------------------------------

    \181\ See 87 FR at 10589-10593 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: A commenter stated that noncitizens have been applying for 
and receiving public benefits from Federal, State, and local 
governments at increasing rates, and in many cases more often than U.S. 
citizens, since the 1960s. The commenter stated that current 
eligibility rules for public assistance and unenforceable financial 
support agreements have not lived up to the intent of the laws to 
prevent individual noncitizens burdening the public benefits system. 
The commenter--a nationwide network of attorneys, law students, and 
paralegals who ``support strong enforcement of federal immigration law 
and protecting the United States' sovereignty''--stated that several of 
its members were themselves immigrants, and that at the time of their 
arrival, ``it was both written and understood that `self-reliance' was 
required with the promise of expulsion should an immigrant apply and/or 
receive public benefits.'' The commenter supported the approach taken 
in the 2019 Final Rule, which allowed immigration officials to consider 
noncash benefits such as housing vouchers in a public charge 
inadmissibility determination, stating that previous guidelines only 
resulted in a few hundred applicants being found inadmissible and 
increased financial burdens upon States and their residents. This 
commenter went on to express its support for the 2019 Final Rule as 
aligning more closely with the intent of Congress and policies of self-
sufficiency.
    Response: DHS respectfully disagrees with the commenter's 
assertions. The commenter did not cite any sources to support its 
claims regarding the insufficiency of eligibility restrictions, the 
insufficiency of the affidavit of support, past increases in public 
benefits use by noncitizens, or written policies regarding the use of 
different types of public benefits by noncitizens. DHS notes that most 
noncitizens who are eligible for public benefits are not subject to the 
public charge ground of inadmissibility.
2. Impacts of the 2022 Proposed Rule
    Comment: Many commenters supported the proposed rule as a means to 
mitigate the chilling effects of prior public charge policies. 
Commenters stated that the rule will avoid unnecessary burdens on 
applicants, officers, and benefits-granting agencies while mitigating 
the possibility of widespread chilling effects with respect to 
individuals disenrolling or declining to enroll themselves or family 
members in public benefits programs for which they are eligible. 
Commenters also stated that the rule will allow immigrants better 
access to nutritional services and healthcare and in turn lower 
mortality rates among immigrant communities and improve the overall 
U.S. economy. One commenter also remarked that the rule would limit 
negative impacts by reducing the number of individuals who disenroll or 
elect to not enroll in healthcare programs and, due to the reduction of 
disenrollment from these programs, no longer shift the cost of care 
from less costly preventive care to the more costly emergency care.
    Response: DHS agrees that this rule will avoid some of the chilling 
effects of prior public charge policies by ensuring that the rules 
governing the application of the public charge ground of 
inadmissibility are clear and that public charge inadmissibility 
determinations will be fair, consistent with law, and informed by 
relevant data and evidence. DHS also agrees that the rule will avoid 
unnecessary burdens on applicants, officers, and benefits-granting 
agencies while mitigating the possibility of widespread chilling 
effects with respect to individuals disenrolling or declining to enroll 
themselves or family members in public benefits programs for which they 
are eligible. In this rulemaking effort, DHS considered the former 
INS's approach to chilling effects in the 1999 Interim Field Guidance 
and 1999 NPRM, the 2019 Final Rule's discussion of chilling effects, 
judicial opinions on the role of chilling effects, evidence of chilling 
effects following the 2019 Final Rule, and public comments on chilling 
effects received in response to the ANPRM and the NPRM.
    Comment: Many commenters stated that this rule will discourage 
noncitizens from seeking needed public assistance, with one commenter 
stating that non-enrollment persists despite those noncitizens helping 
to fund those programs through income taxes. Commenters who opposed the 
proposed rule stated that regardless of the actual definitions and 
text, it will only exacerbate mass homelessness, poverty, unemployment, 
hunger, and deteriorating mental and economic health, and lead to more 
of the chilling effects that resulted from the 2019 Final Rule, 
negatively impacting the health, safety, and well-being of immigrants. 
Another commenter stated that to enforce a rule that prevents those in 
need from obtaining necessary medical and nutritional assistance is 
immoral, particularly while in the midst of a pandemic. One commenter 
feared that this rule will disproportionately cause

[[Page 55509]]

chilling affects among noncitizens with disabilities, because people 
may not apply for the services they need and to which they are legally 
entitled because they are afraid of the immigration consequences. 
Another commenter also said the chilling effect makes it more difficult 
for community-based providers to reach older adults and people with 
disabilities most in need of support.
    Some commenters generally supported the approach taken in the 
proposed rule as compared to the 2019 Final Rule, but expressed concern 
that adding clarity to the public charge definition will do little to 
eliminate chilling effects and that the chilling effects not only have 
an impact on immigrants, but on communities as a whole. They wrote that 
including State and local benefits, current and past use of public 
benefits, as well as Medicaid for long-term institutionalization, still 
increases fear and confusion, and the chilling effects caused by the 
2019 Final Rule will not be alleviated and mixed-status families will 
suffer.
    Several commenters stated that the best way to reduce the chilling 
effect is to remove any consideration of public benefits from the 
public charge inadmissibility determination and to conduct robust 
outreach and education to explain the elimination of the 2019 Final 
Rule. One of those commenters stated that the consideration of public 
benefits creates an administrative burden to local government to keep 
immigrants informed and contributes to the harmful misperception that 
immigrants are present in the United States only to take and receive, 
which results in immigrants experiencing mistreatment and even 
violence, and harms overall public health and the economy.
    Response: DHS disagrees that this rule will perpetuate the chilling 
effects of prior rulemaking efforts. While DHS acknowledges that that 
2019 Final Rule caused fear and confusion among U.S. citizens and 
noncitizens, even among those who were not subject to the rule and with 
respect to public benefits that were not covered by the rule, with this 
rule DHS is working to mitigate the effects of that prior rulemaking. 
In drafting this rule, DHS endeavored to give more thorough 
consideration to the potential chilling effects of promulgating 
regulations governing the public charge ground of inadmissibility. In 
considering such effects, DHS took into account the former INS's 
approach to chilling effects in the 1999 Interim Field Guidance and 
1999 NPRM, the 2019 Final Rule's discussion of chilling effects, 
judicial opinions on the role of chilling effects, evidence of chilling 
effects following the 2019 Final Rule, and public comments on chilling 
effects submitted in response to the ANPRM and NPRM.
    DHS appreciates that the consideration of the past and current 
receipt of certain benefits in public charge inadmissibility 
determinations has resulted and may continue to result in chilling 
effects, notwithstanding that few categories of noncitizens are subject 
to the public charge ground of inadmissibility and eligible for such 
public benefits. However, DHS nonetheless believes that it is important 
to consider a noncitizen's past or current receipt of certain benefits, 
to the extent that such receipt occurs, as part of the public charge 
inadmissibility determination, as such receipt can be indicative of 
future primary dependence on the government for subsistence. DHS notes 
that Congress appears to have recognized that past receipt of at least 
some public benefits may be properly considered in determining the 
likelihood of someone becoming a public charge, as evidenced by its 
prohibition against considering the receipt of public benefits that 
were authorized under 8 U.S.C. 1641(c) for certain battered 
noncitizens.\182\ As DHS wrote in the 2019 Final Rule, DHS believes 
that Congress' prohibition of consideration of prior receipt of public 
benefits by a specific class of noncitizens indicates that Congress 
understood and accepted consideration of past receipt of public 
benefits in other circumstances. However, DHS has never believed that 
this requires DHS to consider receipt of all such benefits.
---------------------------------------------------------------------------

    \182\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------

    Comment: One commenter stated that the proposed rule should be 
revoked, as it is very similar to the 2019 Final Rule, which was deemed 
unlawful and is dangerous for the public at large, and had harmful 
consequences for the U.S. economy in the midst of a pandemic.
    Response: DHS disagrees that this rule is unlawful, dangerous to 
the public, or harmful to the U.S. economy. DHS has determined that, in 
contrast to the 2019 Final Rule, this rule would effectuate a more 
faithful interpretation of the statutory phrase ``likely at any time to 
become a public charge''; avoid unnecessary burdens on applicants, 
officers, and benefits-granting agencies; and mitigate the possibility 
of widespread ``chilling effects'' with respect to individuals 
disenrolling or declining to enroll themselves or family members in 
public benefits programs for which they are eligible, especially with 
respect to individuals who are not subject to the public charge ground 
of inadmissibility.
    Comment: One commenter stated that the proposed rule has a chilling 
effect on parents with children in U.S. schools, and that school 
districts should not forward household income information used to 
determine eligibility for critical school services that can be later 
used to deport a parent or caregiver based on current or past financial 
status.
    Response: As indicated elsewhere in this rule, in making public 
charge inadmissibility determinations, DHS would consider the statutory 
minimum factors, the affidavit of support (if required), and receipt of 
cash assistance for income maintenance and long-term 
institutionalization at government expense. DHS did not propose to 
collect any information from schools and has not imposed such a 
requirement here. The specific suggestion, as it relates to the actions 
of school districts, is outside the scope of the rulemaking, 
particularly because this rule does not apply to any determinations 
regarding deportability.
3. General Suggestions for Addressing or Limiting Chilling Effects
    Comment: Commenters stated that DHS should be aware that clear and 
simple rules are the least likely to have chilling effects and will 
benefit officers and organizations. One commenter wrote that while the 
1999 Interim Field Guidance was ``indisputably superior'' to the 2019 
Final Rule, even the 1999 Interim Field Guidance ``created confusion 
and an unnecessary chilling effect.'' \183\ They suggested DHS begin 
the final rule with a simply worded executive summary or prominently 
displayed simple and clear description of the limited circumstances in 
which noncitizens already in the United States are and are not subject 
to a public charge inadmissibility assessment, and the effective date 
of the new regulations and proposed public charge inadmissibility 
determination process. Two commenters also recommended that multiple 
government agencies that administer public benefits issue public 
letters annually clarifying which programs that they administer are 
considered in public charge inadmissibility determinations and which 
are not. Commenters stated that the incorporation of clear language 
will help service providers respond to immigrant families' concerns 
that they will be penalized under some future rule for receiving 
benefits that the proposed rule does not take into consideration 
because immigrants and their families receive critical support from a 
variety of programs funded by

[[Page 55510]]

various entities. One commenter emphasized the importance of clear 
guidance for how to apply the rule and prioritizing communication given 
that any changes to public charge policy will lead to misinformation 
about which benefits will impact a noncitizen's ability to enter the 
United States or adjust their immigration status. One commenter stated 
that any lack of clarity regarding the implementation of the various 
elements of the rule permits reviewing officers to exercise discretion 
in a way that invites personal bias against applicants.
    Another commenter similarly suggested that to mitigate the chilling 
effects of the 2019 Final Rule and this rule, DHS should expressly 
clarify in this final rule that utilization of Medicaid for healthcare, 
SNAP, and public housing, whether past or current, should never be 
considered in a public charge inadmissibility determination.
    Response: DHS appreciates and understands commenters' concerns 
about using clear and clarifying language in this rule. In drafting 
this rule, DHS believes it provided clarification in its definitions as 
well as to which public benefits will be considered in a public charge 
inadmissibility determination. For example, as noted in the NPRM, 
defining ``likely at any time to become a public charge'' as likely at 
any time to become primarily dependent on the government for 
subsistence provides a clear connection between the exact language used 
in section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and the 
regulatory definition.\184\ Additionally, this rule establishes key 
regulatory definitions for ``public cash assistance for income 
maintenance,'' ``long-term institutionalization at government 
expense,'' ``receipt (of public benefits),'' ``government,'' and 
``household.''
---------------------------------------------------------------------------

    \184\ 87 FR at 10607 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS appreciates the suggestion that chilling effects could be 
ameliorated by public communications efforts, including annual letters, 
by benefits-granting agencies which clarify how the programs that they 
administer interact with this rule, if at all. Although such 
communications materials are not part of the rulemaking, DHS is 
planning a robust communication effort in conjunction with and 
immediately following the publication of this rule and notes the 
helpful suggestions of commenters that such efforts involve 
collaboration with agencies that administer public benefits.
    Some commenters suggested DHS begin this rule with a simply worded 
executive summary and DHS has obliged (see above Executive Summary 
section). As for the comment suggesting that DHS expressly clarify in 
the rule that DHS will not consider the receipt of SNAP, public 
housing, or Medicaid for anything other than long-term 
institutionalization in a public charge inadmissibility determination, 
DHS has added language to 8 CFR 212.22(a)(3) stating that DHS will not 
consider receipt of, or certification or approval for future receipt 
of, public benefits not referenced in 8 CFR 212.21(b) or (c), such as 
Supplemental Nutrition Assistance Program (SNAP) or other nutrition 
programs, Children's Health Insurance Program (CHIP), Medicaid (other 
than for long-term use of institutional services under section 1905(a) 
of the Social Security Act), housing benefits, any benefits related to 
immunizations or testing for communicable diseases, or other 
supplemental or special-purpose benefits. As for the suggestion that 
using clear language about which benefits are, and are not, considered 
under this rule may help service providers respond to immigrant 
families' concerns that they will be penalized under some future rule 
for receiving such benefits, DHS notes that it cannot affect the policy 
decisions in future rules by the use of such language but changes to 
the clarifying regulatory text discussed above would require an 
amendment to the regulations.
    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.
    Comment: Commenters expressed appreciation for DHS's acknowledgment 
of chilling effects and the attempts to lessen their harm through this 
rulemaking but expressed fear that the chilling effects would continue 
unless DHS engaged in a comprehensive information campaign. Many 
commenters suggested that DHS clearly communicate to the public that 
the 2019 Final Rule is no longer in effect so that the health and care 
of people in need will be better sustained.
    Commenters stated that DHS should clearly and prominently list in 
all communications about the final rule and in the executive summary of 
the final rule all the benefits that will be considered as part of the 
public charge inadmissibility determination and emphasize that no other 
benefits will be taken into account. One commenter pointed out that a 
list, rather than a technical definition, is more useful and 
comprehensible for those seeking to understand the scope of the public 
charge assessment. The commenter cited a 2021 study by No Kid Hungry 
that found that in a survey of adults with family or friends who are 
noncitizens, 50 percent of respondents said that knowledge about 
changes to public charge regulations would make them more likely to use 
safety net programs when necessary.\185\ One commenter suggested DHS 
maintain a streamlined mechanism for submitting questions about 
benefits that may be considered in a public charge inadmissibility 
determination, which will allow noncitizens to be more confident and 
certain they can access listed programs without endangering their 
immigration status, result in fewer calls to a State program, and make 
it easier for the State to serve the community by allowing them to 
streamline training and communications.
---------------------------------------------------------------------------

    \185\ No Kid Hungry, ``Public Charge was Reversed--But Not 
Enough Immigrant Families Know'' (Dec. 2021). https://
www.nokidhungry.org/sites/default/files/2021-12/
NKH_Public%20charge_Micro-Report_English_0.pdf (last visited Aug 15, 
2022).
---------------------------------------------------------------------------

    Several commenters recommended that multiple government agencies 
draft letters that distinguish SSI and TANF from other ``cash-related'' 
programs that their agencies oversee, to be posted on DHS's public 
charge resource page and updated annually to include new programs in 
order to reduce the chilling effect of this rule and the previous 2019 
Final Rule. Many commenters stated that communication and outreach 
efforts must be available in multiple languages and have clear links to 
translated versions on the web page. Commenters suggested a variety of 
communication strategies and materials, emphasizing the importance of 
multilingual outreach and diverse methods of performing this outreach. 
Commenters stated that immigration policies should not discourage 
immigrants and their family members from seeking physical or mental 
health care, nutrition, or housing benefits for which they are 
eligible, and recommended DHS make a concerted effort to educate and 
affirm that an individual's temporary use of assistance will not 
negatively impact their immigration status.
    Some commenters recommended that in furtherance of the Biden 
administration's commitment to promote equity and restore faith in our 
immigration systems, DHS partner with Federal and State agencies that 
operate public health programs to implement a nationwide outreach and 
education

[[Page 55511]]

effort to combat fear of utilization of public assistance programs and 
restore trust among immigrant families. Commenters said that DHS should 
also clearly communicate to parents of all children, both noncitizen 
children and U.S. citizen children, to reinforce that benefits received 
by children are not considered as part of any public charge 
inadmissibility determination, because both U.S. citizen children and 
noncitizen children have been detrimentally impacted by the false 
belief that a child's use of benefits would have immigration 
consequences for their parents or family members and it is important 
that families understand a child's use of benefits will not have 
immigration consequences. One commenter recommended that DHS clearly 
communicate to parents and caregivers that their own use of benefits, 
other than TANF and SSI, will not be considered in a public charge 
inadmissibility determination. For example, they recommended that DHS 
clarify that SNAP benefits and housing benefits supporting the whole 
family will not be taken into account so that parents and caregivers 
can access these programs without fear of immigration consequences and 
children's access to critical benefits will not be impacted. Commenters 
suggested DHS provide sample language to or coordinate with States and 
benefit granting agencies to create easy-to-understand materials with 
government agency logos to include on forms and public-facing websites.
    Response: DHS remains interested in public input regarding ways to 
shape public communications around the final rule to mitigate chilling 
effects among U.S. citizens and noncitizens, including the great 
majority of noncitizens who are either ineligible for the public 
benefits covered by this rule prior to admission or adjustment of 
status or are exempt from the public charge ground of inadmissibility. 
Although such communications materials are not part of the rulemaking, 
DHS is keenly aware of the established effects of its actions in this 
policy area and wishes to ensure that the final rule faithfully applies 
the public charge ground of inadmissibility without causing undue 
confusion among the public. To further this, DHS is planning a robust 
communication effort in conjunction with and immediately following the 
publication of this rule.
    Comment: Many commenters recommended that DHS provide funding to 
trusted community organizations, including health and social services 
organizations, that will provide outreach and education to noncitizens 
and their families related to this rule such as ``know your rights'' 
presentations, hotline services, phone banks, social media engagement, 
and train the trainer presentations to community leaders, because 
community organizations are trusted by noncitizens.
    Response: DHS appreciates the recommendations made by commenters to 
provide funding to community organizations that provide outreach and 
education related to this rule. As discussed elsewhere in this 
preamble, USCIS intends to conduct its own robust outreach in advance 
of implementing this final rule. Although recommendations for new grant 
programs are outside the scope of the rulemaking, DHS will take them 
under advisement as it implements and monitors the effects of this 
rule.
    Comment: Commenters indicated that DHS should invest significantly 
in training and retraining immigration officers and case workers.
    Response: USCIS plans to provide its officers with a solid 
foundation on and knowledge of public charge inadmissibility 
determinations by conducting training for officers to ensure 
consistency in adjudications. Additionally, 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, officers, and the 
public.
    Comment: Commenters stated that despite previous alert boxes and 
updates on the USCIS web page seeking to clarify that testing, 
treatment, and vaccination related to COVID-19 would not be considered 
as part of a public charge inadmissibility determination, there 
remained widespread fear that prevented many immigrants and their 
family members from seeking medical care, and the best way to ensure 
that people are not afraid to access health care is to provide a clear, 
concise statement that receiving government-funded health care or 
insurance will never have negative immigration consequences for 
immigrants or their family members. Another commenter similarly stated 
that the rule and outreach materials should also state that public 
health assistance for immunizations for any vaccine-preventable 
diseases and testing and treatment of symptoms of communicable diseases 
whether or not such symptoms are caused by a communicable disease are 
not included in a public charge inadmissibility determination.
    Response: With respect to the comment that the rule should state 
that public health assistance for immunizations for any vaccine-
preventable diseases and testing and treatment of symptoms of 
communicable diseases whether or not such symptoms are caused by a 
communicable disease are not considered in a public charge 
inadmissibility determination, DHS notes that it has made clear in the 
regulatory text that DHS will not consider the receipt of, or 
certification or approval for future receipt of, public benefits not 
referenced in 8 CFR 212.21(b) or (c), such as SNAP, CHIP, Medicaid 
(other than for long-term use of institutional services under section 
1905(a) of the Social Security Act), housing benefits, benefits related 
to immunizations or testing for communicable diseases, or other 
supplemental or special-purpose benefits.\186\
---------------------------------------------------------------------------

    \186\ 8 CFR 212.22(a)(1)(3).
---------------------------------------------------------------------------

    Regarding providing information about immunizations for any 
vaccine-preventable diseases and testing and treatment of symptoms of 
communicable diseases that are not considered under this rule in 
outreach materials, DHS notes that although such communications 
materials are not part of the rulemaking, DHS is keenly aware of the 
established effects of its actions in this policy area and wishes to 
ensure that the final rule faithfully applies the public charge ground 
of inadmissibility without causing undue confusion among the public. 
DHS previously indicated in the NPRM, is reiterating here, and will 
reiterate again in follow-on guidance, that it will not consider 
receipt of treatments or preventative services related to COVID-19, 
including vaccinations, in a public charge inadmissibility 
determination.

F. Applicability of the Public Charge Ground of Inadmissibility

    Comment: Some commenters agreed that DHS should not consider the 
receipt of public benefits when adjudicating extension of stay and 
change of status requests. However, some commenters requested that DHS 
amend the rule to include a requirement that noncitizens seeking an 
extension of stay or change of status demonstrate that they have not, 
since obtaining their existing status, become a public charge or 
received public benefits sufficient to be determined to be a public 
charge. A commenter remarked that DHS has the authority to impose 
conditions on extension of stay and change of status and that doing so 
ensures noncitizens present in the United States are self-sufficient. 
The commenter suggested

[[Page 55512]]

that DHS should require disclosure of any public benefit on extension 
of stay and change of status applications as well as the submission of 
a Declaration of Self Sufficiency by any noncitizen who discloses the 
use of a public benefit.
    Response: Although DHS agrees that it has the authority to set 
conditions on requests for extension of stay and change of status,\187\ 
as explained in more detail in the Other Legal Arguments section of 
this rule, consistent with the NPRM,\188\ DHS has concluded that it 
will not require, as a condition of an application or petition for 
extension of stay or change of status, that a nonimmigrant disclose the 
use, if any, of public benefits since obtaining the nonimmigrant status 
that they wish to extend or change. Because such conditions would apply 
to very few, if any nonimmigrants, DHS finds that the burden of this 
inquiry outweighs any possible benefit that could result. This is, in 
part, because nonimmigrants are generally barred from receiving many of 
the public benefits considered in this rule, such as SSI, TANF, and 
Medicaid for long-term institutionalization.\189\
---------------------------------------------------------------------------

    \187\ INA secs. 214 and 248, 8 U.S.C. 1184 and 1258.
    \188\ 87 FR at 10600-10601 (Feb. 24, 2022).
    \189\ 8 U.S.C. 1641(b) and (c) (defining ``qualified aliens'' 
for Federal public benefits purposes); 8 U.S.C. 1621 (describing 
eligibility for State and local public benefits purposes).
---------------------------------------------------------------------------

    Additionally, to the extent that commenters are concerned that a 
nonimmigrant seeking an extension of stay or change of status may not 
be self-reliant, these concerns are, for many nonimmigrant categories, 
addressed both by the requirements for obtaining such status in the 
first instance \190\ as well as the requirements applicable to their 
applications and petitions for extension of stay and change of 
status.\191\ In sum, DHS believes that it has adequately explained its 
reasons for not imposing conditions related to the receipt of public 
benefits on nonimmigrants seeking an extension of stay or change of 
status and, as a result, declines to add provisions in this regard to 
the rule.
---------------------------------------------------------------------------

    \190\ See, e.g., 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).
    \191\ See USCIS, ``Adjudicator's Field Manual,'' 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) https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm30-external.pdf (last visited Aug. 16, 2022); USCIS, ``Adjudicator's 
Field Manual,'' Chapter 30.2(c)(3)(D) (DHS will consider an 
applicant's ``financial ability to maintain the status sought'' when 
determining whether to grant change of status in the exercise of 
discretion) https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm30-external.pdf (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

G. Exemptions, Limited Exemption, and Waivers

    Comment: Some commenters recommended excluding children and 
teenagers from the public charge ground of inadmissibility because of 
the difficulty in accurately predicting a child or teenager's future 
likelihood of becoming primarily dependent on the government for 
subsistence.
    Response: DHS disagrees that it should not apply the public charge 
ground of inadmissibility to children because it is difficult to 
predict a child's likelihood of becoming primarily dependent on the 
government for subsistence. While DHS acknowledges that the public 
charge inadmissibility determination is a complex assessment, the 
language of section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), requires 
that this be a predictive assessment. This is evidenced by Congress' 
use of the terms ``likely at any time'' and ``become,'' which clearly 
indicate that the assessment should be a prediction based on the 
factors that Congress said must be considered when determining the 
likelihood of becoming a public charge. These statutory mandatory 
factors include considering an applicant's age when determining whether 
a noncitizen is likely to become a public charge at any time in the 
future.
    While DHS understands that there are many circumstances that may 
affect whether a child ultimately is likely to become primarily 
dependent on the government for subsistence, DHS is required to make 
this predictive assessment when a child is applying for admission or 
adjustment of status unless the child is within one of the categories 
expressly exempted by Congress. DHS notes that Congress did not exclude 
children from the public charge ground of inadmissibility, and, 
therefore, DHS must apply the ground to applications for admission or 
adjustment of status by a child unless the child is seeking admission 
or adjustment of status in a classification exempted from the public 
charge ground of inadmissibility, for example adjustment of status as a 
special immigrant juvenile.\192\
---------------------------------------------------------------------------

    \192\ INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
---------------------------------------------------------------------------

    Comment: Some commenters recommended that DHS include in the rule a 
presumption that children cannot be a public charge, barring compelling 
evidence to the contrary. One commenter wrote that children are far 
more likely than adults to be enrolled in TANF (77 percent of total 
TANF enrollees were children in FY 2021),\193\ that use of benefits by 
a child does not indicate their likelihood to be a public charge as an 
adult, and that children are not accountable for their presence in the 
United States nor any application for public benefits on their behalf.
---------------------------------------------------------------------------

    \193\ Administration for Children and Families, ``Temporary 
Assistance for Needy Families (TANF) Caseload Data--Fiscal Year (FY) 
2021'' (Dec. 20, 2021), https://www.acf.hhs.gov/sites/default/files/documents/ofa/fy2021_tanf_caseload.pdf.
---------------------------------------------------------------------------

    Response: DHS disagrees with the suggestion that there should be a 
presumption that children are not likely at any time to become public 
charges absent compelling evidence to the contrary. Section 212(a)(4) 
of the INA, 8 U.S.C. 1182(a)(4), neither permits DHS to focus the 
public charge inadmissibility determination solely on the applicant's 
age (specifically, the fact that the applicant is a child), nor 
supports a presumption that an applicant who is a child is not likely 
at any time to become a public charge. On the contrary, an applicant's 
age is but one of the statutory minimum factors that DHS must consider 
as part of a public charge inadmissibility determination.\194\ 
Regardless of an applicant's age, Congress mandated that DHS, in every 
case except where there is an insufficient Affidavit of Support Under 
Section 213A of the INA when required, consider all of the statutory 
minimum factors in assessing whether an applicant is likely at any time 
to become a public charge.\195\
---------------------------------------------------------------------------

    \194\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \195\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
---------------------------------------------------------------------------

    While DHS acknowledges that children are far more likely than 
adults to be enrolled in TANF, the HHS data provided by the commenter 
does not distinguish between TANF recipients based on immigration or 
citizenship status.\196\ DHS notes that the great majority of 
noncitizens (including children) are either ineligible for TANF prior 
to admission or adjustment of status or are exempt from the public 
charge ground of inadmissibility. It is unlikely that the children 
receiving TANF are both noncitizens who are not yet lawful permanent 
residents and subject to the public charge ground of inadmissibility. 
DHS understands that according to the commenter, the study and book 
cited by the commenter state

[[Page 55513]]

that public benefit use by children may lead to increased income 
throughout their lifetimes.\197\ However, under section 212(a)(4)(A) of 
the INA, 8 U.S.C. 1182(a)(4)(A), DHS must determine if a noncitizen 
``is likely at any time to become a public charge'' (emphasis added). 
``At any time,'' certainly includes the period soon after a 
noncitizen's potential admission or adjustment of status. The questions 
that DHS must consider, therefore, are not only whether a child 
applicant is likely to become a public charge at some point during 
adulthood but, whether the child applicant is likely to become a public 
charge immediately after admission or adjustment of status, while still 
a child. Finally, Congress has provided exemptions from the public 
charge ground of inadmissibility for certain groups, including groups 
to which children belong, for example applicants for adjustment of 
status based on special immigrant juvenile classification.\198\ 
However, Congress has not created a general exemption for children from 
the public charge ground of inadmissibility, nor has Congress indicated 
that this ground of inadmissibility only applies to noncitizens who are 
``accountable'' for being in the United States or who intended to 
immigrate. Similarly, the statute does not suggest that Congress 
intended DHS to consider whether an applicant received public benefits 
because someone applied for such benefits on their behalf or whether 
the applicant had any choice in someone applying for a benefit on their 
behalf as part of a public charge inadmissibility determination.
---------------------------------------------------------------------------

    \196\ Administration for Children and Families, ``Temporary 
Assistance for Needy Families (TANF) Caseload Data--Fiscal Year (FY 
2021)'' (Dec. 20, 2021), https://www.acf.hhs.gov/sites/default/files/documents/ofa/fy2021_tanf_caseload.pdf.
    \197\ The commenter cites to Edwin Park, et al., ``Jeopardizing 
a Sound Investment: Why Short-Term Cuts to Medicaid Coverage During 
Pregnancy and Childhood Could Result in Long-Term Harm'' (Dec. 
2020), https://www.commonwealthfund.org/sites/default/files/2020-12/Park_Medicaid_short_term_cuts_long-term-effects_ib_v2.pdf and 
National Academies of Sciences, Engineering, and Medicine, ``A 
Roadmap to Reducing Child Poverty'' (2019), https://nap.nationalacademies.org/download/25246 (last visited Aug. 16, 
2022).
    \198\ INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
---------------------------------------------------------------------------

    Therefore, DHS declines to add a provision to this rule that would 
direct officers to treat an applicant's age, specifically the fact that 
an applicant is a child, as either outcome-determinative or as creating 
a presumption that the applicant is not inadmissible under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Instead, under this rule and 
as noted in the NPRM, in making public charge inadmissibility 
determinations, DHS will consider the statutory minimum factors as set 
forth in the rule and the applicant's current and past receipt of 
public benefits in the totality of the circumstances \199\ as well as 
favorably consider a sufficient Affidavit of Support Under Section 213A 
of the INA (i.e., a positive factor that makes an applicant less likely 
at any time to become a public charge in the totality of the 
circumstances). Finally, DHS acknowledges the unique position of 
children and will provide guidance to officers on how to faithfully 
apply the statute and this final rule given the circumstances 
particular to children.
---------------------------------------------------------------------------

    \199\ 8 CFR 212.22(a)(2), (b).
---------------------------------------------------------------------------

    Comment: Many commenters expressed support for the proposed rule's 
listing of exemptions, limited exemptions, and waivers, with some 
requesting that DHS update public-facing guidance quickly and regularly 
to reflect this list and reduce the chilling effect on the legitimate 
use of benefits for those individuals who are exempt from the public 
charge ground of inadmissibility.
    Response: In addition to including a comprehensive list of 
exemptions from the public charge ground of inadmissibility, which 
includes a ``catch-all'' exemption in the event that Congress adds 
other exemptions by legislation,\200\ USCIS plans to issue policy 
guidance in its Policy Manual (https://www.uscis.gov/policy-manual), 
which will include information from the NPRM and this final rule 
regarding the exemptions from the public charge ground of 
inadmissibility and can be accessed by potential applicants. USCIS will 
update its Policy Manual as appropriate to reflect any changes made by 
Congress, if any, to the exemptions from the public charge ground of 
inadmissibility.
---------------------------------------------------------------------------

    \200\ 8 CFR 212.23.
---------------------------------------------------------------------------

    Comment: Several commenters also recommended DHS add certain 
categories to the list of exempt categories, including withholding of 
removal, parole, suspension of deportation, Deferred Enforced 
Departure, Deferred Action for Childhood Arrivals, and deferred action. 
These commenters recommended that DHS clarify that the ``catch all'' 
exemption in proposed 8 CFR 212.23(a)(29) includes these categories as 
well as all ``categories of lawfully present immigrants,'' which are 
not subject to the public charge ground of inadmissibility but may 
qualify for certain cash assistance programs. One commenter noted that 
this recommendation is aimed at helping to prevent chilling effects and 
provide ``protection against adverse consideration of such benefits for 
as many applicable categories of immigrants as possible.'' In the 
alternative to adding these categories of noncitizens to the exempt 
categories listed in 8 CFR 212.23(a), some commenters recommended that 
DHS add provisions to 8 CFR 212.22 stating that even though such 
noncitizens are not exempt from the public charge ground of 
inadmissibility, DHS would not consider public benefits received by 
such noncitizens while they were present in the United States in such 
immigration categories.
    Response: The public charge ground of inadmissibility applies to 
all applicants for visas, admission, and adjustment of status unless 
exempted from the ground by Congress.\201\ The exemptions that are 
listed in 8 CFR 212.23 reflect the classes of noncitizens who are 
applicants for admission or adjustment of status but who, as the 
commenters acknowledged, Congress has designated are exempt from the 
public charge ground of inadmissibility. DHS notes, however, that 
requests for withholding of removal, parole, Deferred Enforced 
Departure, Deferred Action for Childhood Arrivals, and deferred action 
are not applications for visas, admission, or adjustment of status, 
and, therefore, are not subject to the public charge ground of 
inadmissibility. Additionally, DHS notes that it does not need to 
include suspension of deportation under sections 202(a) and 203 of the 
Nicaraguan Adjustment and Central American Relief Act (NACARA) \202\ in 
the list of exemptions in 8 CFR 212.23(a) because they are already 
included in this rule, in 8 CFR 212.23(a)(7).
---------------------------------------------------------------------------

    \201\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
    \202\ See Public Law 105-100, 111 Stat. 2193 (1997), as amended, 
8 U.S.C. 1255 note.
---------------------------------------------------------------------------

    Furthermore, to the extent that these commenters believe that DHS 
should not consider in a public charge inadmissibility determination 
any benefits received during a period in which the noncitizen was 
present in the United States while benefiting from withholding of 
removal, parole, Deferred Enforced Departure, Deferred Action for 
Childhood Arrivals, deferred action generally, or in any of the 
``categories of lawfully present immigrants to whom public charge 
inadmissibility grounds are inapplicable,'' DHS notes that Congress has 
not prohibited DHS from considering any public benefits received by 
such noncitizens. In the absence of such instruction, DHS believes that 
to not consider all benefit use by noncitizens in such categories, 
which would encompass all the categories of noncitizens eligible for 
SSI, TANF, or

[[Page 55514]]

Medicaid for long-term institutionalization whose past or current 
benefit use may be considered in a public charge inadmissibility 
determination, would be inconsistent with Congressional intent.
    Congress, in enacting PRWORA and IIRIRA very close in time, made 
certain public benefits available to a small number of noncitizens who 
are also subject to the public charge ground of inadmissibility, even 
though receipt of some such benefits could influence a determination of 
whether the noncitizen is inadmissible as likely at any time to become 
a public charge.
    Under the statute crafted by Congress, noncitizens generally will 
not be issued visas, admitted to the United States, or permitted to 
adjust status if they are likely at any time to become a public charge. 
Congress nonetheless recognized that certain noncitizens present in the 
United States who are subject to the public charge ground of 
inadmissibility might reasonably find themselves in need of public 
benefits that, if obtained, could influence a determination of whether 
they are inadmissible as likely at any time to become a public charge. 
Consequently, in PRWORA, Congress allowed certain noncitizens to be 
eligible for some public benefits even though they may later seek a 
visa, admission, or adjustment of status and thereby be subject to the 
public charge ground of inadmissibility. However, Congress, except in 
very limited circumstances,\203\ did not prohibit DHS from considering 
the receipt of such benefits in a public charge inadmissibility 
determination under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). 
In other words, although a noncitizen may obtain public benefits for 
which they are eligible, DHS may consider the receipt of those benefits 
for the purposes of a public charge inadmissibility determination.
---------------------------------------------------------------------------

    \203\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------

    It is consistent with Congressional intent for DHS to not consider 
public benefits received by noncitizens during periods in which they 
were (1) present in an immigration category that is exempt from the 
public charge ground of inadmissibility or (2) eligible for 
resettlement assistance, entitlement programs, and other benefits 
available to refugees admitted under section 207 of the INA, 8 U.S.C. 
1157 as described in this rule. The categories comprise a long list of 
vulnerable populations or groups of noncitizens of particular policy 
significance for the United States. Congress expressed a policy 
preference that individuals in these categories should be able to 
receive public benefits without risking adverse immigration 
consequences. DHS believes that Congress did not intend to later 
penalize such noncitizens for using benefits while in these categories 
because such consideration would undermine the intent of their 
exemption. Given the nature of these populations and the fact that, 
consistent with specific statutory authority, they would be exempt from 
the public charge ground of inadmissibility if applying for admission 
or, as permitted, adjustment of status under those categories, it is 
reasonable for DHS to exclude from consideration those benefits that an 
applicant received while in a status that is exempt from the public 
charge ground of inadmissibility. However, the same Congressional 
intention has not been expressed for other categories of noncitizens. 
DHS therefore will consider current and/or past benefit receipt by 
these other categories of noncitizens (i.e., parolees, granted 
withholding of removal, or any other categories of lawfully present 
immigrants) who received those benefits when they apply for admission 
or adjustment in a category that is subject to a public charge 
inadmissibility determination. We note, however, that many of those 
categories of noncitizens would not be eligible for most public 
benefits to begin with. For these reasons, DHS declines to add the 
suggested changes to 8 CFR 212.23.
    Comment: Many commenters recommended DHS strengthen the scope of 
protection provisions for vulnerable immigrants in certain categories 
by adding clauses recognizing that the exemption from the public charge 
ground of inadmissibility attaches regardless of their pathway to 
adjustment of status. Specifically, they recommended that DHS add such 
provisions for Violence Against Women Act (VAWA) self-petitioners and 
``qualified aliens'' under 8 U.S.C. 1641(c), similar to provisions in 
the NPRM for T-nonimmigrant and U-nonimmigrant exemptions. The 
commenters suggested that such additions would remove unnecessary 
barriers for adjustment of status of noncitizens in these categories.
    Response: Under section 212(a)(4)(E) of the INA, 8 U.S.C. 
1182(a)(4)(E), certain ``qualified alien'' victims are exempt from the 
public charge ground of inadmissibility. This includes, as the 
commenters note, a noncitizen who ``is a qualified alien described in'' 
8 U.S.C. 1641(c) and who is ``a VAWA self-petitioner,'' or an applicant 
for or recipient of U nonimmigrant status under section 101(a)(15)(U) 
of the INA, 8 U.S.C. 1101(a)(15)(U).
    The commenters were under the impression that because proposed 8 
CFR 212.23(a)(18) and (19) specifically mention ``seeking an 
immigration benefit for which admissibility is required, including, but 
not limited to, adjustment of status under section 245(a) of the Act,'' 
that the absence of such language in proposed 8 CFR 212.23(a)(20) and 
(21) suggested that the statutory exemptions from the public charge 
ground of inadmissibility for VAWA self-petitioners and ``qualified 
aliens'' described in 8 U.S.C. 1641(c) were dependent upon the 
particular pathway to LPR status being sought by the noncitizen. 
However, DHS notes that these commenters are mistaken in their 
interpretation of the proposed regulatory text. As they correctly 
stated, a noncitizen who ``is a VAWA self-petitioner'' or who ``is a 
qualified alien described in'' 8 U.S.C. 1641(c) is exempt from INA sec. 
212(a)(4)(A)-(C), 8 U.S.C. 1182(a)(4)(A)-(C), and this exemption does 
not depend on the particular pathway to LPR status being sought by the 
noncitizen.
    The language that the commenters praised in proposed 8 CFR 
212.23(a)(18) and (19) and recommended including in 8 CFR 212.23(a)(20) 
and (21) is present due to statutory ambiguities unique to the 
adjustment of status of T and U nonimmigrants. Specifically, there is 
an inconsistency between INA sec. 212(a)(4)(E)(iii), 8 U.S.C. 
212(a)(4)(E)(iii), and INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2), as the 
former provides an exemption from INA sec. 212(a)(4)(A)-(C), 8 U.S.C. 
1182(a)(4)(A)-(C), while the latter states that the public charge 
inadmissibility ground applies to T nonimmigrants but a waiver is 
available. This inconsistency is due to Congress' failure to amend INA 
sec. 245(l)(2), 8 U.S.C. 1255(l)(2), when it created INA sec. 
212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E), in its current form. Because the 
amendments to INA sec. 212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E),\204\ 
occurred later in time than the creation of INA sec. 245(l), 8 U.S.C. 
1255(l),\205\ DHS considers the text and exemption in INA sec. 
212(a)(4)(E)(iii), 8 U.S.C. 1182(a)(4)(E)(iii), controlling. Given the 
conflicting statutory provisions, it is important for DHS to clarify in 
the regulatory text of 8 CFR 212.23(a)(18) that despite INA sec. 
245(l), 8 U.S.C. 1255(l), the exemption applies in the adjustment of 
status context.
---------------------------------------------------------------------------

    \204\ See, Sec. 803, Violence Against Women Reauthorization Act 
of 2013, Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013).
    \205\ See, Sec. 107(f) of the Victims of Trafficking and 
Violence Protection Act of 2000, Public Law 106-386, 114 Stat. 1464 
(Oct. 8, 2000).

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

[[Page 55515]]

    While U nonimmigrants do not have conflicting statutory provisions 
as just described for T nonimmigrants, one could read the exemption 
language in INA sec. 212(a)(4)(E)(ii), 8 U.S.C. 1182(a)(4)(E)(ii), as 
limited to applying for and being granted U nonimmigrant status rather 
than being inclusive of adjustment of status and any other immigration 
benefit for which admissibility is required. Due to this potential 
ambiguity, DHS in this rule (and in the 2019 Final Rule) clarified in 8 
CFR 212.23(a)(19) that the exemption applies to all immigration 
benefits for which admissibility is required, including, but not 
limited to, adjustment of status.
    Unlike the T and U nonimmigrants, the statutory language relating 
to the exemptions from INA sec. 212(a)(4)(A)-(C), 8 U.S.C. 
1182(a)(4)(A)-(C), for VAWA self-petitioners and ``qualified aliens'' 
described in 8 U.S.C. 1641(c) (apart from the T nonimmigrants) is 
straightforward and clear. If the noncitizen ``is'' in one of those two 
categories, INA sec. 212(a)(4)(A)-(C), 8 U.S.C. 1182(a)(4)(A)-(C), 
shall not apply to them. There is no ambiguity in the statutory 
language or a conflicting statutory provision that requires DHS to 
clarify the issue within the regulatory text. For this reason, DHS 
declines to make the proposed changes to the rule.
    While not raised by the commenters, DHS points out that the 
exemptions found in INA sec. 212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E), do 
not apply to INA sec. 212(a)(4)(D), 8 U.S.C. 1182(a)(4)(D). Congress 
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). DHS must presume that 
Congress acted intentionally in requiring all noncitizens described in 
paragraph (D) to file the requisite Affidavit of Support Under Section 
213A of the INA, even if they are described in paragraph (E).\206\ 
Accordingly, in the unlikely event that a noncitizen described in 
paragraph (E) seeks 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 they 
are not likely at any time to become a public charge.
---------------------------------------------------------------------------

    \206\ 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)).
---------------------------------------------------------------------------

    Comment: One commenter suggested that DHS clearly provide waivers 
for individuals who would otherwise qualify for protections provided 
for victims of domestic violence, sexual assault, and human trafficking 
afforded under VAWA, the Trafficking Victims Protection Act (TVPA), and 
other humanitarian immigration provisions, but who have not sought such 
protections or benefits and are seeking admission or adjustment of 
status under another provision in the INA, such as through family or 
employment sponsorship, the diversity visa program, or other programs. 
The commenter explained that this waiver would provide increased 
protection for survivors and reduce burden on the immigration system by 
decreasing additional processing of immigration applications and 
reducing pressure on immigration court dockets.
    Response: The waivers that are listed in 8 CFR 212.23(c) reflect 
the classes of noncitizens who are applicants for admission or 
adjustment of status, and therefore subject to the public charge ground 
of inadmissibility, but who Congress has designated as eligible to seek 
a waiver of inadmissibility. DHS notes that only Congress can establish 
a waiver for this ground of inadmissibility. Accordingly, to the extent 
that this commenter believes that DHS should expand the waivers of the 
public charge ground of inadmissibility to include victims of domestic 
violence, sexual assault, and human trafficking who might be eligible 
for certain benefits under VAWA, the TVPA, and other humanitarian 
immigration provisions, but who have not sought such benefits and who 
are seeking admission or adjustment of status under a category to which 
the public charge ground of inadmissibility applies, DHS disagrees.
    Congress, through legislation, decides to whom the public charge 
ground of inadmissibility applies, which classes of noncitizens are 
exempt from the ground, and which can obtain a waiver of the ground. 
Although DHS understands the desire to expand waivers to be available 
to victims of domestic violence, sexual assault, and human trafficking, 
the only waivers presently available are for applicants for admission 
as nonimmigrants under section 101(a)(15)(S) of the INA, 8 U.S.C. 
1101(a)(15)(S), nonimmigrants admitted under that provision who are 
applying for adjustment of status under section 245(j) of the INA, 8 
U.S.C. 1255(j), and the waiver under INA sec. 212(d)(3), 8 U.S.C. 
1182(d)(3), for noncitizens applying for a nonimmigrant visa or 
admission as a nonimmigrant. DHS is not authorized to expand the 
waivers beyond those decided by Congress and as a result, DHS declines 
to adopt this commenter's recommendation.
    Comment: Several commenters recommended removing the requirement 
that T and U nonimmigrants must be in valid T or U visa status at the 
time of filing the application for adjustment of status as well as at 
the time of adjudication of the adjustment of status application in 
order to adjust under section 245(a) of the INA, 8 U.S.C. 1255(a), or 
to seek another immigration benefit for which admissibility is 
required, as this limitation is unnecessary and could undermine the 
effectiveness of the exemptions at protecting these immigrants.
    Response: As noted above, section 804 of VAWA 2013, which added 
section 212(a)(4)(E)(iii) of the INA, 8 U.S.C. 1182(a)(4)(E)(iii), 
specifically excludes noncitizens, such as ``qualified aliens'' 
described in 8 U.S.C. 1641(c) (including those granted T nonimmigrant 
status and those with a pending prima facie application for T 
nonimmigrant status) and noncitizens who are applicants for or have 
been granted U nonimmigrant status, from section 212(a)(4)(A), (B), and 
(C) of the INA, 8 U.S.C. 1182(a)(4)(A), (B), and (C). Additionally, T 
nonimmigrants seeking to adjust status under section 245(a) of the INA, 
8 U.S.C. 1255(a) (with a limited exception), and section 245(l) of the 
INA, 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 provided that the T nonimmigrants are 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.\207\ 
As with the U

[[Page 55516]]

nonimmigrants discussed below, DHS points out that Congress used 
present tense language ``is a qualified alien described in'' 8 U.S.C. 
1641(c) in describing the exemption for T nonimmigrants. If a 
noncitizen was in the past ``a qualified alien described in'' 8 U.S.C. 
1641(c) but no longer is such a ``qualified alien'' at the time that 
their benefit request is filed with USCIS or at the time that the 
benefit request is adjudicated, the noncitizen no longer meets the 
requirements of INA sec. 212(a)(4)(E)(iii), 8 U.S.C. 
1182(a)(4)(E)(iii), and INA sec. 212(a)(4)(A)-(C), 8 U.S.C. 
1182(a)(4)(A)-(C), would apply to the noncitizen.
---------------------------------------------------------------------------

    \207\ See 8 CFR 103.2(b)(1) (an applicant or petitioner must 
establish that they are eligible for the requested benefit at the 
time of filing 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''). DHS notes that although VAWA 2013 did not 
amend section 245(l)(2) of the INA, 8 U.S.C. 1255(l)(2), 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 INA, 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), 
are controlling.
---------------------------------------------------------------------------

    Furthermore, consistent with section 804 of VAWA 2013,\208\ which, 
as noted above, added new section 212(a)(4)(E) of the INA, 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. However, DHS believes that for this exemption from the 
public charge ground of inadmissibility 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.\209\ U nonimmigrant status 
is not indefinite but rather is granted for a finite period of time, 
generally not to exceed 4 years in the aggregate.\210\ In addition, U 
nonimmigrant status can be revoked.\211\ DHS believes that the most 
reasonable interpretation of ``or is granted, nonimmigrant status 
under'' INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U), is that the 
exemption only applies while the noncitizen has an active grant of U 
nonimmigrant status given the present tense of ``is granted.'' If 
Congress had intended for the exemption to persist even after the 
noncitizen was no longer in U nonimmigrant status, they could have 
indicated this in the statutory text by choosing a different verb 
tense. The law does not permit DHS to add language to the statute.
---------------------------------------------------------------------------

    \208\ See Public Law 113-4, 127 Stat. 54 (2013).
    \209\ See 8 CFR 212.23(a)(19)(ii).
    \210\ See 8 CFR 214.14(g)(1).
    \211\ See 8 CFR 214.14(h).
---------------------------------------------------------------------------

H. Definitions

    Comment: One commenter stated that the lack of enrollment in public 
benefits due to ongoing fear and confusion in the immigrant community 
will not improve without clear definitions of ``public charge,'' 
``primarily,'' ``public cash assistance,'' and ``long-term 
institutionalization.''
    Response: Rather than defining the term ``public charge'' 
separately, DHS believes that defining ``likely at any time to become a 
public charge'' to mean ``likely at any time to become primarily 
dependent on the government for subsistence, as demonstrated by either 
the receipt of public cash assistance for income maintenance or long-
term institutionalization at government expense,'' \212\ as well as 
defining the phrases ``public cash assistance for income maintenance'' 
\213\ and ``long-term institutionalization at government expense,'' 
\214\ achieves the necessary clarity. Officers have been applying a 
similar standard for over 20 years before and after the 2019 Final Rule 
was in effect, and DHS does not believe that further clarification is 
necessary.
---------------------------------------------------------------------------

    \212\ See 8 CFR 212.21(a).
    \213\ See 8 CFR 212.21(b).
    \214\ See 8 CFR 212.21(c).
---------------------------------------------------------------------------

    DHS again emphasizes that the intent of this rule is to ensure fair 
public charge inadmissibility determinations consistent with section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). DHS also anticipates that 
this rule will help alleviate the chilling effects caused by the 2019 
Final Rule.
1. Likely at Any Time To Become a Public Charge
    Comment: Several commenters supported the definition of ``likely at 
any time to become a public charge'' proposed by DHS in its entirety. 
One of those commenters noted that case law reflects that from the time 
the term ``public charge'' was first used by Congress in 1882 until the 
2019 Final Rule, ``public charge'' was broadly understood to mean a 
person primarily or entirely dependent on the government for 
subsistence.\215\
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    \215\ The commenter cited to City and County of San Francisco v. 
USCIS, 981 F.3d 756 (9th Cir. 2020) and New York v. DHS, 969 F.3d 
42, 74 (2d Cir. 2020).
---------------------------------------------------------------------------

    Response: DHS agrees that the definition for ``likely at any time 
to become a public charge'' in this rule is consistent with the 
historical understanding of the public charge inadmissibility ground. 
This position is reinforced by the cases cited by the commenter, which 
highlight that the historical understanding of ``public charge'' has 
been one of ``dependence on public assistance for survival'' \216\ and 
a reliance ``on the government for subsistence.'' \217\
---------------------------------------------------------------------------

    \216\ City and County of San Francisco v. USCIS, 981 F.3d 756 
(9th Cir. 2020).
    \217\ New York v. DHS, 969 F.3d 42, 74 (2d Cir. 2020).
---------------------------------------------------------------------------

    Comment: One commenter opposed allowing officers to make a 
prospective assessment in a public charge inadmissibility 
determination, as it invites officers' subjective biases into the 
determination.
    Response: The public charge inadmissibility determination is 
necessarily prospective in nature based on the language of the statute. 
Indeed, through this rulemaking, DHS is implementing the congressional 
mandate to assess an applicant's likelihood at any time of becoming a 
public charge based on, at a minimum, the factors that Congress put 
into place.\218\ As DHS noted in the NPRM,\219\ this rule is consistent 
with the statutory wording, in that the statute uses the phrase 
``likely at any time,'' which suggests that the public charge 
inadmissibility determination is a forward-looking, prospective 
determination that is made at the time of the application for a visa, 
admission, or adjustment of status.
---------------------------------------------------------------------------

    \218\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
    \219\ 87 FR at 10606-10607 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS also agrees, as noted in the NPRM,\220\ that the public charge 
inadmissibility determination is inherently subjective in nature given 
the express wording of section 212(a)(4)(A) of the INA, 8 U.S.C. 
1182(a)(4)(A), which states that the public charge inadmissibility 
determination is ``in the opinion of'' DHS.\221\ Insofar as this rule 
reflects the prospective nature of this ground of inadmissibility and 
the subjective nature of the determination as set by Congress, DHS 
declines to eliminate the prospective determination.
---------------------------------------------------------------------------

    \220\ 87 FR at 10579 (Feb. 24, 2022).
    \221\ 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)); see also 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.'').
---------------------------------------------------------------------------

    Comment: One commenter recommended DHS clarify the word ``likely,'' 
as the lack of specificity in the definition creates an opportunity for 
confusion or over-reach.
    Response: To the extent that this commenter suggests that DHS 
should define the term ``likely'' to avoid officers

[[Page 55517]]

applying the statute inconsistently or abusing their discretion, DHS 
disagrees that a separate definition is needed. DHS has been applying 
the ``likely to become primarily dependent on the government for 
subsistence'' standard for public charge inadmissibility determinations 
for over 20 years (with the exception of the period during which the 
2019 Final Rule was in effect) and believes that the definitions in the 
rule sufficiently explain to officers that the focus of the inquiry is 
on whether an applicant is likely to become primarily dependent on the 
government for subsistence. As explained in the NPRM, DHS defined the 
term ``likely'' as ``more likely than not'' in the 2019 Final 
Rule.\222\ DHS continues to believe that this interpretation is 
appropriate. Therefore, DHS does not believe that it needs to further 
define the term ``likely'' to ensure that officers properly exercise 
the fact-specific, discretionary determination required by Congress in 
the statute,\223\ and declines to make changes to the rule in this 
regard.
---------------------------------------------------------------------------

    \222\ 87 FR at 10607-10608 (Feb. 24, 2022).
    \223\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A) (``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.'').
---------------------------------------------------------------------------

    Comment: One commenter recommended DHS adjust the definition for 
``likely at any time to become a public charge'' to clearly indicate 
that public charge inadmissibility determinations are prospective, and 
to include the relevant time for likelihood of becoming a public charge 
is ``at any time in the future.'' Another commenter recommended that 
DHS clarify the phrase ``at any time'' to avoid confusion.
    Response: As noted above, section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), uses the term ``at any time,'' which indicates that the 
public charge inadmissibility determination is a forward-looking, 
prospective determination that is made at the time of the application 
for a visa, admission, or adjustment of status. Consistent with the 
wording Congress used in enacting the public charge ground of 
inadmissibility, DHS has included a provision in this final rule that 
makes it clear that the public charge inadmissibility determination is 
a determination of a noncitizen's likelihood of becoming a public 
charge at any time in the future, based on the totality of the 
circumstances.\224\ Insofar as DHS has already clarified that the 
public charge inadmissibility determination is forward-looking, DHS 
does not believe it is necessary to add ``in the future'' to the 
definition of ``likely at any time to become a public charge'' and 
declines this commenter's suggestion.
---------------------------------------------------------------------------

    \224\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: One commenter suggested that the final rule could be 
strengthened by including a time limit for the prospective test to 
create a clearer standard for officers, which would lead to more 
consistent adjudication. For instance, DHS could limit the forward-
looking part of the test to 5 years, which is the length of time it 
generally takes for an LPR to be eligible to apply for naturalization. 
The same commenter suggested 3 years as an alternative, based on the 
length of time it generally takes for an LPR married to a U.S. citizen 
to be eligible to apply for naturalization, or to limit the forward-
looking period to any time prior to naturalization. The commenter 
justified the recommendation of a fixed time limit to provide a clearer 
standard for USCIS officers and increase the likelihood that the 
standard would be implemented consistently. The commenter also noted 
that given an indefinite window, almost anyone is at risk of 
experiencing financial distress that could lead to public benefit use.
    Response: DHS disagrees with limiting the forward-looking aspect of 
the public charge ground of inadmissibility to any specific period of 
time, including five years or three years as the commenter suggests. 
While commenters are correct that lawful permanent residents generally 
are eligible to naturalize after five years,\225\ the public charge 
ground of inadmissibility does not have such specific temporal limits. 
Indeed, Congress directed the agencies administering the public charge 
ground of inadmissibility to determine whether the applicant is likely, 
at any time, to become a public charge, without explicit mention of the 
fact that the applicant may ultimately naturalize. While DHS 
appreciates the commenter's proposal and acknowledges that a fixed time 
limit for the prospective determination might be easier for DHS to 
implement, DHS declines to adopt this suggestion because Congress has 
not authorized DHS to set specific temporal limits on the prospective 
public charge inadmissibility determination.
---------------------------------------------------------------------------

    \225\ See INA sec. 316(a), 8 U.S.C. 1427(a).
---------------------------------------------------------------------------

a. Comments on ``Primarily Dependent''
    Comment: Many commenters supported the standard of primary 
dependence, with some emphasizing the supplementary nature of some 
public benefits and stating that the definition allows for the 
possibility of an applicant having and maintaining their main source of 
income and being assisted by non-cash benefits if needed, without being 
primarily dependent on the government. Commenters remarked that the 
primarily dependent language strikes an appropriate balance between 
providing a definition in line with the statutory intent without overly 
confining definitions; and appropriately avoids any numerical analysis 
or threshold that is likely to be over-inclusive.
    Response: As explained in the NPRM and throughout this final rule, 
DHS believes that this rule's ``primarily dependent on the government 
for subsistence'' standard, which is evidenced by the receipt of public 
cash assistance for income maintenance or by long-term 
institutionalization at government expense, is more consistent with 
Congressional intent, as well as the historical meaning of the term 
``public charge,'' than the definition contained in the 2019 Final 
Rule.
    Comment: One commenter recommends that DHS define ``likely at any 
time to become a public charge'' as likely to become primarily 
dependent on the government for subsistence, as demonstrated by the 
long-term receipt of Federal cash assistance for income maintenance. 
This commenter indicated that these modifications to the definition 
would clarify that dependence must be prolonged and would limit the 
public benefits considered to Federal cash assistance for income 
maintenance. The commenter stated that federal courts have recognized 
that these definitions and clarifications align with well-established 
legal and historical understandings of ``public charge.'' \226\
---------------------------------------------------------------------------

    \226\ Citing City and County of San Francisco v. USCIS, 981 F. 
3d 742, 756 (9th Cir. 2020). New York v. DHS, 969 F.3d 42, 74 (2d 
Cir. 2020), cert dismissed, 141 S. Ct. 1292 (2021). Cook County v. 
Wolf, 962 F.3d 208, 216 (7th Cir. 2020) (quoting ``Inadmissibility 
and Deportability on Public Charge Grounds,'' 64 FR 28676, 28677 
(May 26, 1999)). See also New York, 969 F.3d at 71 (determining 
meaning of public charge based on ``historical administrative and 
judicial interpretations'').
---------------------------------------------------------------------------

    Response: DHS does not believe that these modifications to the 
definition are warranted. As explained elsewhere in this preamble, DHS 
believes that the standard in this rule is clear and familiar to both 
the public and DHS officers, as it was the standard that DHS used for 
over 20 years before and after the 2019 Final Rule was in effect. The 
``primary dependence'' standard identifies individuals who are 
dependent on the government without other sufficient means of support. 
DHS

[[Page 55518]]

believes that receipt of public cash assistance for income maintenance, 
even for a short period of time, may reasonably be considered as part 
of the totality of the circumstances analysis. As the 1999 Interim 
Field Guidance stated, the longer ago a noncitizen received such cash 
benefits (or was institutionalized on a long-term basis at government 
expense), the less weight these factors will have as a predictor of 
future receipt. In addition, the longer a noncitizen has received cash 
income-maintenance benefits in the past and the greater the amount of 
benefits, the stronger the implication that the noncitizen is likely to 
become a public charge. Positive factors in the noncitizen's case 
demonstrating an ability to be self-supporting may overcome the 
negative implication of past receipt of such benefits or past 
institutionalization.\227\
---------------------------------------------------------------------------

    \227\ See ``Field Guidance on Deportability and Inadmissibility 
on Public Charge Grounds,'' 64 FR 28689, 28690 (May 26, 1999).
---------------------------------------------------------------------------

    Ultimately, DHS believes that the ``primary dependence'' standard 
identifies individuals who are dependent on the government without 
other sufficient means of support, as opposed to individuals whose 
dependence on the government for income or institutionalization is 
transient or merely supplementary. So, for example, 
institutionalization for a short period of rehabilitation would not 
constitute primary dependence. However, dependence on public cash 
assistance for income maintenance need not be ``prolonged'' to 
constitute primary dependence.
    As DHS discusses in more detail below, DHS does not believe that it 
is reasonable to focus exclusively on the receipt of Federal cash 
assistance for income maintenance given that receipt of State, Tribal, 
territorial, or local cash assistance generally serves the same purpose 
and can be similarly indicative of future primary dependence on the 
government for subsistence, depending on the recency, amount, and 
duration of receipt.
    Comment: Commenters suggested that receipt of public benefits to 
address temporary situations, such as pregnancy, should not be 
considered primary dependence. The commenters reasoned that accessing 
safety-net programs when pregnant is important for ensuring prenatal 
health, which can prevent long-term health needs. Commenters also 
stated that the receipt of benefits during natural disasters or other 
extraordinary circumstances, such as the COVID-19 pandemic or in the 
aftermath of hurricanes and wildfires, is due entirely to external 
events and does not provide any information on the recipient's 
likelihood of becoming primarily reliant on government assistance at a 
future date.
    One commenter additionally recommended advertising that 
participation in basic nutrition programs does not demonstrate primary 
dependence on the government, because school nutrition professionals 
serving communities with large immigrant populations have stated that 
families are increasingly hesitant to apply for critical nutrition 
benefits due to confusion on the interpretation of public charge.
    Response: Under this rule, DHS will not consider receipt of non-
cash benefits, with the exception of long-term institutionalization at 
government expense (including Medicaid when used for that 
purpose).\228\ Therefore, DHS will not consider most Medicaid benefits, 
as well as SNAP, CHIP, WIC, or other non-cash, supplemental, or 
special-purpose benefit programs. These programs assist many low-income 
individuals in remaining employed and self-sufficient. As indicated in 
the NPRM, DHS, and the INS before it, have never considered free or 
subsidized school lunches, home energy assistance, childcare 
assistance, or special nutritional benefits for children and pregnant 
individuals to be the types of public benefits that should be 
considered in a public charge inadmissibility determination, 
notwithstanding that each could conceivably have some nexus to future 
primary dependence on the government (or, in the case of the 2019 Final 
Rule, some nexus to future receipt of designated benefits above that 
rule's durational threshold).\229\
---------------------------------------------------------------------------

    \228\ See 8 CFR 212.22(a)(3).
    \229\ See ``Field Guidance on Deportability and Inadmissibility 
on Public Charge Grounds,'' 64 FR 28689, 28692-28693 (May 26, 1999).
---------------------------------------------------------------------------

    As indicated previously, DHS will consider the recency, amount, and 
duration of receipt of any cash assistance for income maintenance, as 
well as any long-term institutionalization at government expense, when 
determining whether a noncitizen is likely to become primarily 
dependent on the government for subsistence. Given the list of public 
benefits considered, and that most noncitizens are not eligible for 
these programs, however, these considerations will not often be 
present. As a result, DHS does not think that it should exclude from 
consideration all public benefits received by pregnant persons during 
pregnancy and after, although if a covered benefit was received during 
pregnancy, DHS could take the surrounding circumstances into account in 
the totality of the circumstances.
    In addition, DHS will not consider disaster or pandemic assistance 
as those benefits are for a specific purpose--dealing with the natural 
disasters (including hurricanes or wildfires) or pandemics and their 
aftermath.
    Comment: Several commenters disagreed with the ``primarily 
dependent'' definition as the standard of determining whether a 
noncitizen is likely at any time to become a public charge. One 
commenter stated that Congressional policy objectives are reflected in 
more than a century of statutes aimed at ensuring that noncitizens do 
not rely on public benefits, and the policies behind those statutes are 
summed up in PRWORA. Several commenters stated that the proposed rule 
uses the guise of long-standing precedent to narrowly define critical 
concepts, including public charge and the types of public benefits that 
could lead to such a determination. Another commenter stated that the 
narrow definitions distort the actual cost of immigrants' participation 
in public assistance programs and ignore the harm that such costs 
inflict on the States. Several commenters stated that Congress 
explicitly did not want noncitizens drawn to the United States by the 
promise of reliance on public benefits at taxpayer expense. These 
commenters stated that limiting the determination of a public charge to 
a noncitizen who is primarily dependent on public benefits ignores the 
fact that the noncitizen may still rely heavily on public benefits, 
even if they do not rely primarily on a benefit for subsistence, would 
allow many noncitizens to receive substantial public benefits without 
being determined to be a public charge. One of these commenters stated 
that this will encourage the use of public benefits while 
simultaneously rendering useless the public charge ground of 
inadmissibility.
    Commenters disagreed with DHS's statement that the definition 
should not include a person who receives benefits from the government 
to help meet some needs but is not primarily depending on the 
government because the person also has one or more sources of 
independent income or resources upon which the individual primarily 
relies. These commenters stated that Congress' express policy is to 
avoid reliance on the government for support and contended that it is 
unclear why a noncitizen who relies on support, regardless of the type 
or purpose,

[[Page 55519]]

should not be determined to be a public charge.
    Response: DHS disagrees with these commenters. As discussed in the 
section dealing with Congressional intent, DHS believes that the rule's 
definition of public charge is consistent with Congressional intent. 
While DHS agrees that Congress has stated that the availability of 
public benefits should not form an incentive for immigration, DHS does 
not believe that Congress intended the exclusion of individuals who 
merely receive special-purpose benefits to supplement existing income 
or bridge temporary circumstances. In addition, DHS believes that the 
policy contained in this rule appropriately accounts for other 
important congressional policy objectives, such as protecting public 
health, the wellbeing of U.S. citizen children, and the stability of 
families and communities.
    For instance, under the 2019 Final Rule, which the above commenters 
favored, a noncitizen could be deemed inadmissible if DHS found the 
noncitizen likely to receive as little as $20 a month in SNAP benefits 
for a year. DHS does not believe that the term ``public charge'' 
necessarily encompasses such a circumstance. In addition, the past or 
current existence of such a circumstance is of limited value in 
determining whether a person is likely at any time to become primarily 
dependent on the government for subsistence.\230\
---------------------------------------------------------------------------

    \230\ See Memorandum from Sasha Gersten-Paal, Director, Program 
Development Division, Food and Nutrition Service, U.S. Department of 
Agriculture, to All State Agencies, ``SNAP--Fiscal Year 2022 Cost-
of-Living Adjustments'' (Aug. 16, 2021), https://www.fns.usda.gov/snap/fy-2022-cost-living-adjustments (last visited Aug. 15, 2022) 
(``The minimum benefit for the 48 states and DC will increase to $20 
and will also increase in Alaska, Guam, Hawaii and the U.S. Virgin 
Islands.'').
---------------------------------------------------------------------------

    In the 2019 Final Rule, DHS acknowledged that some people might 
receive the designated public benefits in small amounts but noted that 
(at the household level) this happened rarely relative to circumstances 
in which the household received over $150 a month. DHS reasoned that 
the 2019 Final Rule's adverse treatment of low-level benefit receipt 
was ``to some extent a consequence of having a bright-line rule that 
(1) provides meaningful guidance to aliens and officers, (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.'' \231\ DHS ultimately concluded that the standard in 
that rule ``appropriately balance[d] 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 [that] rule.'' 
\232\
---------------------------------------------------------------------------

    \231\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41361 (Aug. 14, 2019).
    \232\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41361 (Aug. 14, 2019).
---------------------------------------------------------------------------

    DHS has reconsidered its position on this matter and does not 
believe that the approach taken in the 2019 Final Rule was necessary to 
achieve an administrable rule or to effectuate a policy consistent with 
the principle of immigrant self-sufficiency. Moreover, with respect to 
the specific point made by the commenter, DHS observes that this rule 
is far more consistent with historical approaches to the public charge 
ground of inadmissibility than a rule that takes into consideration all 
or nearly all use of formerly designated public benefits, let alone a 
rule that would define a person as a public charge for having received 
benefits of such little monetary value.
    DHS also disagrees with the comments stating that the definitions 
in this rule distort the cost of immigrants' participation in public 
benefit programs. While the commenters wrote that the 2019 Final Rule 
``saved states money,'' they did not adequately explain this claim or 
provide evidence to support it. Instead, they assert generally that the 
disenrollment effects of the 2019 Final Rule reduced both the costs for 
States to administer the programs as well as the States' portion of the 
benefits themselves, and alleged that the proposed rule would increase 
those costs. DHS notes that most applicants for admission and 
adjustment of status are not eligible for public benefits, and most 
categories of noncitizens who are eligible for such benefits are also 
exempt, by statute, from the public charge ground of 
inadmissibility.\233\ Reducing costs by causing confusion among those 
who are not covered by the rule, leading them to forgo benefits for 
which they are eligible, would not be a desirable effect even if the 
rule were found to have that effect. This comment is addressed in more 
detail in the Costs and Impacts, Economic Analysis Comments & Responses 
section.
---------------------------------------------------------------------------

    \233\ See, e.g., Cook County v. Wolf, 962 F.3d 208, 236-37 (7th 
Cir. 2020) (Barrett, J., dissenting) (``The upshot is that the [2019 
Final Rule] will rarely apply to a noncitizen who has received 
benefits in the past. . . . Notwithstanding all of this, many lawful 
permanent residents, refugees, asylees, and even naturalized 
citizens have disenrolled from government-benefit programs since the 
public charge rule was announced. Given the complexity of 
immigration law, it is unsurprising that many are fearful about how 
the rule might apply to them. Still, the pattern of disenrollment 
does not reflect the rule's actual scope.'').
---------------------------------------------------------------------------

    Comment: Some commenters suggested that DHS should modify the 
``primarily dependent'' standard. One commenter suggested an 
alternative definition of ``likely at any time to become a public 
charge'' by replacing the word ``primarily'' with the words 
``exclusively and persistently.'' This commenter stated that 
``primarily'' is a vague formulation that lacks clear standards to 
evaluate benefits received and provides no guidance on concrete time 
periods or objective elements to assess the reasons why a person 
obtained benefits. The commenter further stated that the ``primarily 
dependent'' standard invites arbitrary and inconsistent public charge 
adjudications. The commenter stated that reliance on government 
benefits should count negatively only in those narrow situations where 
there is no probability that the applicant would ever be capable of 
self-support under any scenario, independent of government benefits, in 
a totality of circumstances review. The commenter stated that this 
approach would align with the Second Circuit's view that the term 
public charge has a settled meaning reflecting a persistent dependence 
that goes beyond mere receipt of public benefits.\234\ The commenter 
further stated that DHS should not penalize individuals for obtaining 
benefits designed to help people make ends meet when wages are 
insufficient or nonexistent or to secure adequate housing, nutrition, 
health services, or even training and education and that people should 
be able to receive benefits for periods of time to cover periods of 
illness, dislocation, etc. until they are able to provide for 
themselves.
---------------------------------------------------------------------------

    \234\ New York v. DHS, 969 F.3d 42, 74 (2d Cir. 2020).
---------------------------------------------------------------------------

    One commenter said that using ``exclusively'' would accurately 
capture DHS's stated intention that a public charge is a person who 
relies on government support without other means, while ``primarily'' 
is ambiguous, invites discretion, is overly broad, and is inconsistent 
with the stated intent. Several other commenters recommended the 
definition require that reliance on the government be necessary to 
avoid destitution. Another commenter supported the longstanding 
``primary dependence'' standard but recommended that DHS further refine 
the definition to require that dependence on government support be 
permanent. This commenter indicated that DHS should not count short-
term

[[Page 55520]]

reliance on public benefits against individuals, particularly when such 
reliance is due to job loss, illness, or other temporary conditions.
    Response: DHS disagrees with the commenter's statements that the 
``primarily dependent'' standard is vague and subject to inconsistent 
application. DHS has been applying this standard since the 1999 Interim 
Field Guidance was published (with the exception of the time period 
during which the 2019 Final Rule was in effect). To the extent that 
difficulties in applying the standard arise, DHS may issue 
interpretative guidance informed by the terms of the statute and rule, 
as well as the relevant data. DHS agrees that evidence of persistent 
and/or exclusive dependence on the government for subsistence without 
any countervailing evidence that a noncitizen would be able to support 
themselves in the future would likely lead to the finding that a 
noncitizen is likely at any time to be primarily dependent on the 
government for subsistence. In addition, while DHS agrees that some 
degree of persistent dependence is reflected in the primary dependence 
standard (e.g., long-term institutionalization suggests persistent 
dependence), DHS does not agree that such dependence must be exclusive 
(i.e., that there must be evidence that a noncitizen is unable to meet 
any of their needs without government assistance).
    Similarly, to the extent that commenters are suggesting that when 
looking at the likelihood of becoming primarily dependent on the 
government for subsistence, DHS should be assessing the likelihood of 
becoming primarily dependent on the government solely on a permanent 
basis, DHS disagrees. DHS notes, however, that evidence establishing 
that an applicant is primarily dependent on the government for 
subsistence on a permanent basis would lead to a finding that an 
applicant is inadmissible on the public charge ground.
    DHS also disagrees that the statute demands such a high standard. 
While DHS acknowledges that the Second Circuit issued the strongest 
pronouncement regarding the statutory meaning of the term ``public 
charge,'' \235\ it was not the only court to consider the meaning of 
the term. The Ninth Circuit found that the agency departed from the 
historical interpretation of the term,\236\ and the Fourth and Seventh 
Circuits found the term to be ambiguous and open to reasonable agency 
interpretation, and the Supreme Court stayed the injunctions that were 
upheld by the Second (and Seventh) Circuits.\237\
---------------------------------------------------------------------------

    \235\ New York v. DHS, 969 F.3d 42, 64, 74 (2d Cir. 2020) (``We 
start our analysis below by considering whether Congress has spoken 
to its intended meaning of the statutory term `public charge' and 
conclude that it has done so. . . . The settled meaning of `public 
charge,' as the plain meaning of the term already suggests, is 
dependency: being a persistent `charge' on the public purse. And as 
we explain further below, the mere receipt of benefits from the 
government does not constitute such dependency.'').
    \236\ City and County of San Francisco v. USCIS, 981 F.3d 742, 
756-58 (``From the Victorian Workhouse through the 1999 Guidance, 
the concept of becoming a `public charge' has meant dependence on 
public assistance for survival. Up until the promulgation of this 
Rule, the concept has never encompassed persons likely to make 
short-term use of in-kind benefits that are neither intended nor 
sufficient to provide basic sustenance . . . For these reasons we 
conclude the plaintiffs have demonstrated a high likelihood of 
success in showing that the Rule is inconsistent with any reasonable 
interpretation of the statutory public charge bar and therefore is 
contrary to law.'').
    \237\ See Cook County v. Wolf, 962 F.3d 208, 226 (7th Cir. 
2020). (``As the district court recognized, there is abundant 
evidence supporting Cook County's interpretation of the public-
charge provision as being triggered only by long-term, primary 
dependence. But the question before us is not whether Cook County 
has offered a reasonable interpretation of the law. It is whether 
the statutory language unambiguously leads us to that 
interpretation. We cannot say that it does. As our quick and 
admittedly incomplete overview of this byzantine law has shown, the 
meaning of `public charge' has evolved over time as immigration 
priorities have changed and as the nature of public assistance has 
shifted from institutionalization of the destitute and sick, to a 
wide variety of cash and in-kind welfare programs. What has been 
consistent is the delegation from Congress to the Executive Branch 
of discretion, within bounds, to make public-charge 
determinations.''); Casa de Maryland v. Trump, 971 F.3d 220, 229 
(4th Cir. 2020) (rehearing granted) (``[T]he public charge provision 
has led for almost a century and a half a long and varied life, with 
different administrations advancing varied interpretations of the 
provision, depending on the needs and wishes of the nation at a 
particular point in time. To be sure, the public charge provision 
ties alien admissibility to prospective alien self-sufficiency. But 
within that broad framework, Congress has charged the executive with 
defining and implementing what can best be described as a 
purposefully elusive and ambiguous term.'').
---------------------------------------------------------------------------

    As noted in the NPRM,\238\ although the term ``public charge'' does 
not have a single clear meaning, its basic thrust is clear: significant 
reliance on the government for support. This has been the longstanding 
purpose of the public charge ground of inadmissibility; individuals who 
are unable or unwilling to work to support themselves, and who do not 
have other nongovernmental means of support such as family members, 
assets, or sponsors, are at the core of the term's meaning. Individuals 
who are likely to primarily rely on their own resources as well as some 
government support--even if they could be reliably identified--are less 
readily characterized as likely to become public charges. DHS does not 
believe that the term is best understood to include a person who 
receives benefits from the government to help to meet some needs but is 
not primarily dependent on the government, and instead has one or more 
sources of independent income or resources upon which the individual 
primarily relies.
---------------------------------------------------------------------------

    \238\ 87 FR at 10606 (Feb. 24, 2022).
---------------------------------------------------------------------------

    As indicated in the NPRM, and this final rule, when making public 
charge inadmissibility determinations, DHS intends to analyze the 
factors set forth in this rule in the context of each noncitizen's 
individual circumstances.\239\ When looking at past or current receipt 
of public benefits as potentially indicative of a likelihood of primary 
dependence on the government for subsistence, DHS will look at the 
recency, amount, and duration of such dependence. Finally, DHS plans to 
issue guidance for officers and the public. While not outcome 
determinative, this guidance would be intended to better ensure that 
the regulatory standard is appropriately and consistently applied. In 
conclusion, DHS is declining to modify the standard in accordance with 
the above suggestions.
---------------------------------------------------------------------------

    \239\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

b. General Comments on the Inclusion or Exclusion of Specific Public 
Benefits
    Comment: Several commenters stated that DHS should exclude from 
consideration all current or past receipt of public benefits. Other 
commenters focused on exclusion of all temporary current or past 
receipt of public benefits. Others asked DHS to exclude all non-cash 
benefits, including long-term institutionalization. One of those 
commenters stated that they opposed consideration of public benefits 
because nonimmigrant visa holders and undocumented immigrants are 
ineligible for Federal means-tested public benefits and there should 
therefore be no current or past public benefit use for DHS to consider. 
Other commenters similarly opposed the inclusion of consideration of 
receipt of any public benefits because of a concern that people will 
avoid all benefits due to the confusion regarding the scope of the 
public charge inadmissibility determination. Still other commenters 
opposed such inclusion because the consideration is not mandated by 
either PRWORA or IIRIRA.
    Response: DHS disagrees with commenters that it should eliminate 
all consideration of current or past receipt of public benefits, or 
that it should not consider temporary use of such benefits. While DHS 
acknowledges that relatively few noncitizens subject to the public 
charge ground of inadmissibility are eligible for the public benefits

[[Page 55521]]

considered under this rule prior to applying for a visa, admission or 
adjustment of status, DHS believes that when certain public benefits 
are received, such receipt can be indicative of future primary 
dependence on the government for subsistence. Moreover, Congress 
appears to have recognized that past receipt of public benefits is 
properly considered in determining likelihood of someone becoming a 
public charge, as evidenced by its prohibition against considering the 
receipt of public benefits that were authorized under 8 U.S.C. 1641(c) 
for certain battered noncitizens.\240\ DHS believes that Congress' 
prohibition of consideration of prior receipt of public benefits by a 
specific class of noncitizens indicates Congress understood and 
accepted consideration of past receipt of public benefits in other 
circumstances.
---------------------------------------------------------------------------

    \240\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------

    DHS notes that section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
only designates statutory minimum factors and otherwise grants 
discretion to the Secretary to establish a regulatory framework for 
making public charge inadmissibility determinations. As part of the 
exercise of that discretion, DHS has added the consideration of past 
and current receipt of certain public benefits to the list of factors 
officers will consider when making public charge inadmissibility 
determinations. While not required to do so, DHS has determined that 
past or current receipt of public cash assistance for income 
maintenance or long-term institutionalization at government expense is 
probative for determining whether a noncitizen will become primarily 
dependent on the government for subsistence in the future. As discussed 
throughout this final rule, DHS will take any such receipt into 
consideration in the totality of the circumstances including the 
recency, duration, and amount of receipt.
    Comment: One commenter recommended that DHS not consider direct 
cash assistance, SSI, or other public benefits used by individuals with 
disabilities who are using those benefits specifically because they are 
individuals with disabilities. The commenter acknowledged that use of 
public benefits is only one part of the public charge inadmissibility 
determination, but stated that because officers have high caseloads and 
make decisions using paper evidence, they may fail to consider the 
relationship between using one public benefit and another. The 
commenter stated that eliminating the consideration of public benefits 
would benefit immigrants with disabilities who rely on these programs. 
The commenter recommended instead that USCIS ``limit the discussion to 
an immigrant's financial circumstances sans their receipt of public 
benefits, as is required by law. In situations where the immigrant's 
only income is public benefits, we recommend that this be recorded 
neutrally without reference to specific benefits (such as by stating 
that the immigrant does not earn income and having this fact, rather 
than the individual benefits, be considered relevant to the 
determination).''
    Response: As discussed in more detail below, DHS disagrees that it 
should exclude from consideration all public benefits used by 
individuals with disabilities. As for other applicants, current or 
prior use of public cash assistance for income maintenance or long-term 
institutionalization at government expense could, in conjunction with 
other factors, be predictive of primary dependence on the government 
for subsistence. To be clear, this final rule is unequivocal on the 
point that DHS cannot use the very fact of disability alone to conclude 
that a noncitizen is likely at any time to become a public charge.
    It was not clear from these comments why the commenter believed 
that officers would have difficulty considering the relationship 
between different kinds of benefit use for this or any other pool of 
applicants. However, officers will only consider the receipt of public 
cash assistance for income maintenance and long-term 
institutionalization at government expense. As explained in the NPRM, 
DHS will not consider the use of home and community-based services 
(HCBS), and will also take into consideration any evidence that a 
person was long-term institutionalized at government expense in 
violation of their rights. DHS has clarified in this final rule that 
the noncitizen's household income does not include income from public 
benefits listed in 8 CFR 212.21(b).\241\ In addition, relevant changes 
to the Form I-485 collect information regarding the noncitizen's 
household income, assets, and financial status separately from 
information about past or current receipt of public benefits.
---------------------------------------------------------------------------

    \241\ 8 CFR 212.22(a)(1)(iv).
---------------------------------------------------------------------------

    Comment: One commenter stated that healthcare received by asylees, 
refugees, and noncitizens without lawful status should be considered in 
a public charge inadmissibility determination until the Biden 
Administration shifts funding from USAID or the UN to reimburse U.S. 
taxpayers for funding short- and long-term ``charity'' hospital care.
    Response: Refugees and asylees are exempt from the public charge 
ground of inadmissibility by statute, and those exemptions are 
reflected in new 8 CFR 212.23(a)(1) and (2). DHS will not consider any 
public benefits received by these populations. Some populations of 
noncitizens who entered the United States without inspection or are in 
the United States without a lawful immigration status may be subject to 
the public charge ground of inadmissibility if they seek to adjust 
status to that of a lawful permanent resident. In instances where the 
public charge ground of inadmissibility applies, DHS will consider such 
noncitizens' past or current receipt of public cash assistance for 
income maintenance or long-term institutionalization at government 
expense. In addition, to the extent these individuals are subject to 
the affidavit of support requirement, benefit-granting agencies can 
move to enforce such affidavits of support in order to be reimbursed 
for the cost of benefits provided. However, DHS is not the Federal 
agency tasked with the enforcement of affidavits of support. Similarly, 
DHS is not aware of any initiatives whereby USAID or the UN would cover 
the cost of medical care for certain noncitizens.
    Comment: One commenter commended DHS for obtaining on-the-record 
letters from HHS and USDA concerning the public charge ground of 
inadmissibility and the benefits that those agencies administer. The 
commenter strongly encouraged DHS to obtain similar letters from six 
other federal agencies, implying that those letters should similarly 
discuss the benefits that the agencies administer and the relationship 
of those benefits to the public charge ground of inadmissibility.
    Response: DHS will not be including any additional letters with 
this final rule. In the published NPRM, DHS included letters from both 
HHS and USDA, and DHS believes those letters continue to support 
issuance of this final rule.
c. Comments on ``Subsistence''
    Comment: One commenter expressed agreement with DHS's standard of 
``primarily dependent,'' but recommended replacing ``for subsistence'' 
with ``for a recent and sustained amount of time with little prospect 
for change.'' The commenter stated that the 1999 Interim Field Guidance 
indicated that recency and length are more predictive, and that DHS 
should not define subsistence by

[[Page 55522]]

reference to benefits that families use to support work, such as health 
care, nutrition, or housing assistance. The commenter stated that this 
recommended definition is aligned with the longstanding interpretation 
of the law.
    Response: DHS agrees with the commenter that it should consider the 
recency and duration of public benefit receipt when making a 
determination regarding whether a noncitizen is likely at any time to 
become primarily dependent on the government. However, DHS is also 
limiting the list of public benefits considered as part of a public 
charge inadmissibility determination to those benefits most indicative 
of primary dependence on the government, namely public cash assistance 
for income maintenance and long-term institutionalization at government 
expense. As explained throughout this final rule, this approach 
satisfies DHS's objective to faithfully administer this ground of 
inadmissibility while also being mindful of the potential indirect 
effects of its actions on a wide range of government programs. DHS is 
not adopting the suggestion proposed by this commenter, given that the 
regulatory framework finalized in this rule already takes into account 
the recency and duration of public benefit receipt.
d. Proposals for Specific Thresholds
    Comment: One commenter recommended that DHS further define 
``primarily dependent'' to indicate cash assistance for income 
maintenance comprising 75 percent to 100 percent of a person's income, 
so as to clarify the definition and reduce the chilling effect of the 
use of common cash benefit programs. Another commenter indicated that 
DHS should avoid any numerical analysis or threshold because an attempt 
to find a one-size-fits all threshold is likely to be over-inclusive 
and not sufficiently nimble to account for the myriad of ways in which 
older adults access government benefits.
    Response: DHS appreciates these recommendations and has decided not 
to define ``primarily dependent'' in terms of a numerical threshold in 
this final rule. DHS believes that setting a numerical threshold in 
this context is unnecessary and might in certain respects or 
circumstances be viewed as arbitrary. In addition, this approach would 
be unnecessarily inflexible and take away from the individualized 
determinations that are contemplated by the statutory language. DHS 
considers the word ``primarily'' to have its ordinary meaning--namely 
main, chief, principal, of first importance, or foremost.\242\ The 
longstanding ``primarily dependent'' standard has never been 
accompanied by a numerical threshold, and the commenter did not provide 
any examples of past standards setting a numerical threshold in this 
respect.
---------------------------------------------------------------------------

    \242\ See, e.g., Board of Governors v. Agnew, 329 U.S. 441, 446 
(1947) (holding that the word ``primarily'' means ``first,'' 
``chief,'' or ``principal'' but can also mean ``essentially,'' 
``fundamentally,'' or ``substantially'' (such that more than one 
activity could be principal)); Malat v. Riddell, 383 U.S. 569, 571-
72 (1966) (holding that ``primarily'' means ``of first importance'' 
or ``principally'').
---------------------------------------------------------------------------

2. Public Cash Assistance for Income Maintenance
    Comment: Two commenters supported the rule's determination that 
public cash assistance for income maintenance includes SSI, TANF, or 
State, Tribal, territorial, or local cash benefit programs for income 
maintenance because they are intended to maintain a person at a minimum 
level of income. One commenter stated that by modifying the definition 
to ``cash assistance,'' the rule mitigates the impact of an applicant's 
use of public benefits and is a positive modification to the public 
charge standard.
    Most commenters supported DHS's proposal to exclude most noncash 
benefits from consideration. Many commenters agreed that noncash 
benefits are supplemental benefits and that DHS should exclude programs 
not intended for income maintenance, such as CHIP, SNAP, or Medicaid, 
other than Medicaid for long-term institutionalization at government 
expense, from a public charge inadmissibility determination. Commenters 
added that numerous public benefit programs and resources are vital to 
foster healthy individuals and communities, including public assistance 
programs that provide medical care and health insurance, food and 
nutrition, and housing assistance. One commenter stated that most 
immigrants who receive benefits like SNAP or Medicaid are employed or 
are married to someone who works--a sign that their family is working 
but workers are in low-paid jobs. The commenter described an analysis 
of Census data showing that 77 percent of working-age immigrants (18 to 
64) who received one or more of six benefits (TANF, SSI, Medicaid, 
SNAP, housing assistance, or General Assistance) during 2020 also 
worked during the year or were married to a worker. For half of 
working-age immigrants who received benefits, the work was year-round, 
that is, 50 weeks of the year or more.\243\ The share who are working 
or married to a worker would be higher if one looks over multiple 
years. The commenter wrote that because a large majority of people who 
are immigrants and receive these benefits are in families that include 
people who work, the commenter agreed that it is consistent with the 
intent of the law not to include noncash benefits including SNAP, 
housing assistance, and Medicaid in the definition of public benefits.
---------------------------------------------------------------------------

    \243\ The commenter reported that it analyzed the March 2021 
Current Population Survey and considered participation in six forms 
of assistance covered by the 2019 Final Rule and available in the 
annual Census data: the individual's Medicaid or SSI participation 
and the family's SNAP, housing, TANF, or General Assistance 
participation.
---------------------------------------------------------------------------

    These commenters support not including these benefits in the list 
of public benefits considered in public charge inadmissibility 
determinations.
    Response: DHS agrees with these commenters. As discussed in the 
NPRM, the structure of means-tested benefits programs--many of which 
were changed significantly in 1996, one month after the last amendment 
to the public charge ground of inadmissibility--supports the view that 
predicted participation in non-cash programs is not a good indicator 
that a noncitizen is likely to become a public charge. Many modern 
public assistance programs take the form of payments or in-kind 
benefits to help individuals meet particular needs and are not limited 
to individuals without a separate primary means of support. The 
Medicaid program, subsidized housing, and SNAP provide benefits to 
millions of individuals and families across the nation, many of whom 
also work.\244\ One analysis of the 2019 Final Rule found that ``[i]n a 
single year, 24 percent--nearly 1 in 4--of U.S.-born citizens receive 
one of the main benefits in the [rule's] definition . . . . Looking at 
benefit receipt at any point over a 20-year period, approximately 41 to 
48 percent of U.S.-born citizens received at least one of the main 
benefits in the public charge definition.'' \245\ Although

[[Page 55523]]

the public charge ground of inadmissibility does not apply to most 
participants in these programs, and notwithstanding that the 2019 Final 
Rule took a different view as a consequence of a different approach to 
the concept of ``self-sufficiency'' and a decision to cover a wider 
range of public benefits, it would seem not to comport with common 
usage to describe so many Americans as being public charges.\246\ 
Relatedly, all such non-cash program participants require a separate 
source of income to meet a number of basic needs. Cash assistance 
programs, on the other hand, are typically reserved for individuals 
with few if any other sources of income.\247\ In addition, because cash 
assistance is not restricted to particular uses, receipt of cash 
assistance--which often coincides with the receipt of other means-
tested benefits \248\--allows an individual to become dependent on the 
government in a way that participation in one or more non-cash benefits 
programs cannot. For example, an individual who receives only non-cash 
assistance would need another source of income to acquire various basic 
necessities like clothing or household items, while an individual who 
receives cash assistance could rely on that assistance, potentially 
combined with non-cash government benefits, to the exclusion of any 
other independent source of income or support.
---------------------------------------------------------------------------

    \244\ For instance, in July 2021, over 76 million individuals 
were enrolled in Medicaid, of whom between 42 and 44 million were 
adults. See Medicaid.gov, ``July 2021 Medicaid & CHIP Enrollment 
Trends Snapshot,'' https://www.medicaid.gov/medicaid/national-medicaid-chip-program-information/downloads/july-2021-medicaid-chip-enrollment-trend-snapshot.pdf (last visited Aug. 18, 2022).
    \245\ Danilo Trisi, ``Administration's Public Charge Rules Would 
Close the Door to U.S. to Immigrants Without Substantial Means,'' 
Center on Budget and Policy Priorities (Nov. 11, 2019), at 4, 
https://www.cbpp.org/research/immigration/administrations-public-charge-rules-would-close-the-door-to-us-to-immigrants (last visited 
Aug. 15, 2022). The analysis also observed that ``[i]n contrast, 
only about 5 percent of U.S.-born citizens meet the [1999 Interim 
Field Guidance] benefit-related criteria in the public charge 
[inadmissibility] determination.'' Ibid.
    \246\ In the 2018 NPRM, DHS stated that ``[c]ash aid and non-
cash benefits directed toward food, housing, and healthcare account 
for significant federal expenditure on low-income individuals and 
bear directly on self-sufficiency,'' and emphasized the significant 
impact, in terms of overall expenditures, of non-cash benefit 
programs such as Medicaid and SNAP. See ``Inadmissibility on Public 
Charge Grounds,'' 83 FR 51114, 51160 (Oct. 10, 2018). At the same 
time, DHS acknowledged that ``receipt of noncash public benefits is 
more prevalent than receipt of cash benefits'' (ibid.), and DHS 
cited data indicating that over 20 percent of the U.S. population 
receives Medicaid, SNAP, or Federal housing assistance, whereas 3.5 
percent of the U.S. population receives cash benefits (id. at 
51162). DHS acknowledges that non-cash benefits programs involve 
significant expenditures of government funds, but the Department 
believes that the term ``public charge'' is best interpreted by 
reference to the degree of an individual's dependence on the 
government for support, rather than the scale of overall government 
expenditures for particular programs. And DHS has limited 
consideration of past receipt of public benefits to the benefits 
covered by this rule for the reasons stated throughout this 
preamble.
    \247\ See, e.g., HHS Office of Family Assistance, 
``Characteristics and Financial Circumstances of TANF Recipients, FY 
2010'' (Aug. 8, 2012), https://www.acf.hhs.gov/ofa/data/characteristics-andfinancial-circumstances-tanf-recipients-fiscal-year2010 (last visited Aug. 15, 2022) (``In FY 2010, about 17 
percent of TANF families had non-TANF income.''); SSA, ``Fast Facts 
& Figures About Social Security'' (2021), https://www.ssa.gov/policy/docs/chartbooks/fast_facts/2021/fast_facts21.pdf (among SSI 
recipients, ``[e]arned income was most prevalent (4.1%) among those 
aged 18-64''); GAO, GAO-17-558, ``Federal Low-Income Programs: 
Eligibility and Benefits Differ for Selected Programs Due to Complex 
and Varied Rules'' (June 2017), at 23-24 (illustrating income 
eligibility thresholds for a hypothetical family of three, and 
showing lower income eligibility thresholds for SSI ($1,551) and 
TANF ($0 to $1,660, depending on the State) as compared to SNAP 
($2,184), Housing Choice Vouchers ($1,613 to $4,925, depending on 
the program and State), and Medicaid ($218 to $5,359, depending on 
the beneficiary's age and the State)).
    \248\ See, e.g., Center on Budget and Policy Priorities, 
``Policy Basics: Supplemental Security Income'' (Feb. 8, 2021), 
https://www.cbpp.org/research/social-security/supplemental-security-income (``Over 60 percent of SSI recipients also get SNAP (food 
stamps) and about one-quarter receive housing assistance.'') (last 
visited Aug. 18, 2022).
---------------------------------------------------------------------------

    When deciding to limit consideration to public cash assistance for 
income maintenance and ``institutionalization for long-term care'' at 
government expense,\249\ both the former INS and DHS consulted with 
benefit-granting agencies. The former INS concluded that cash 
assistance for income maintenance and long-term institutionalization at 
government expense constituted the best evidence of whether a 
noncitizen is primarily dependent on the government for 
subsistence.\250\ DHS's general approach to public benefits in this 
rule also better advances the multiple policy objectives established by 
Congress. This rule is an effort to faithfully implement the public 
charge ground of inadmissibility without unnecessarily and at this 
point, predictably, harming separate efforts related to health and 
well-being of people whom Congress has made eligible for supplemental 
supports.
---------------------------------------------------------------------------

    \249\ As explained more fully below, for the purposes of this 
rule, DHS is replacing the term ``institutionalization for long-term 
care at government expense'' that was used in the 1999 NPRM and 1999 
Interim Field Guidance with the term ``long-term 
institutionalization.''
    \250\ See ``Inadmissibility and Deportability on Public Charge 
Grounds,'' 64 FR 28676, 28677 (May 26, 1999). The former INS 
consulted primarily with HHS, SSA, and USDA in formulating the list 
of public benefits that it would have considered. Ibid.
---------------------------------------------------------------------------

    Comment: Many commenters suggested explicitly including a list in 
the regulatory text, not just the preamble of the final rule, of public 
benefits that would not be included in a public charge inadmissibility 
determination, as well as providing a non-exclusive list of examples of 
public benefits not included. These commenters explained that this 
would clearly communicate to entities administering these benefits, 
recipients of benefits, and officers those benefits which benefits are 
not covered.
    Response: DHS has included such a non-exclusive list in the final 
regulatory text. DHS intends to further address this issue in future 
guidance.
a. Comments on Proposed Inclusion of SSI and TANF
    Comment: Many commenters recommended limiting public charge 
consideration to only the two listed Federal cash-assistance programs, 
TANF and SSI. Commenters stated limiting the definition to include only 
two Federal benefits is simpler to communicate and understand, less 
likely to create confusion among immigrants and their families, and 
less likely to deter participation in public benefit programs that 
promote healthy communities. One commenter stated that even if the rule 
were amended to further define income maintenance or provide exclusions 
in regulation, there will always be too much variety to clearly include 
and exclude all programs. Thus, the commenter said that DHS should 
remove non-Federal cash assistance programs from the rule.
    Response: DHS is declining to exclude the consideration of State, 
Tribal, territorial, and local cash assistance for income maintenance. 
DHS believes that such programs serve similar purposes to Federal 
programs and are generally readily identifiable as general assistance 
programs. DHS is concerned about distinguishing between benefits that 
serve the same basic purpose, solely on the basis of funding source or 
authority. If questions arise about which cash benefits are considered 
and not considered, DHS may address the matter in interpretative 
guidance. DHS believes that excluding all such programs from 
consideration would be inconsistent with Congressional intent, because 
receipt of cash assistance for income maintenance from such State, 
Tribal, territorial, or local governments is fairly indicative of 
primary dependence on the government for subsistence.
    Comment: Several commenters opposed the inclusion of SSI in a 
public charge inadmissibility determination, saying this targets people 
with disabilities and older adults. The commenters recommended DHS 
revise the language to include only long-term use of SSI. One commenter 
also mentioned that short-term use of SSI benefits may help individuals 
to stabilize their living and employment situation and should not 
prevent them from adjusting status in the United States.
    Response: DHS thanks commenters for these suggestions. While DHS 
disagrees that it should exclude SSI from consideration in public 
charge inadmissibility determinations, DHS notes that current or past 
receipt of SSI, or any other covered public benefit, is

[[Page 55524]]

not alone dispositive with respect to whether a noncitizen will be 
found likely at any time to become a public charge. As proposed in the 
NPRM, and retained in this final rule, DHS will consider not only the 
fact of receipt in the totality of the circumstances, but also the 
recency, duration, and amount of public benefits received when 
determining whether a noncitizen is likely at any time to become 
primarily dependent on the government for subsistence, and thus likely 
to become a public charge. While DHS agrees that SSI, by design, is 
reserved for specific populations of individuals (namely those who are 
over the age of 65, are blind, or have disabilities), DHS notes that 
SSI is included in the list of considered public benefits not because 
it is received by certain groups of individuals sharing such 
characteristics, but because of the degree of dependence on the 
government for subsistence that receipt of SSI may indicate. DHS is 
separately tasked by section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
to consider whether age and health could make a noncitizen likely to at 
any time become a public charge.
    Comment: One commenter stated that by including SSI in the 
consideration of a public charge inadmissibility determination, DHS is 
indirectly including the receipt of Medicaid-funded long-term services 
and supports into a public charge inadmissibility determination, even 
when they are supports delivered by the community. The commenter stated 
that most people with disabilities who rely on Medicaid-funded HCBS 
also rely on SSI and other cash assistance programs, and that including 
SSI in the public charge inadmissibility consideration would 
discriminate against people with disabilities who require HCBS. Another 
commenter stated that SSI and long-term institutionalization are 
factors that solely apply to people with disabilities.
    Response: As explained in the NPRM, DHS is excluding the 
consideration of HCBS in large part because HCBS help older adults and 
persons with disabilities live, work, and fully participate in their 
communities, promoting employment and decreasing reliance on costly 
government-funded institutional care. As indicated by HHS in its letter 
to DHS supporting the February 24, 2022 NPRM, HHS distinguished HCBS 
from long-term institutionalization at government expense by stating 
that HCBS do not provide ``total care for basic needs'' because HCBS do 
not pay for room and board. To the extent HCBS are coupled with receipt 
of cash assistance for income maintenance, such as SSI, DHS believes 
that such receipt of SSI could be indicative or predictive of primary 
dependence on the government for subsistence. Because SSI is similarly 
situated to other cash assistance for income maintenance programs, DHS 
does not believe that it would be reasonable to exclude SSI from 
consideration. DHS disagrees that considering SSI discriminates against 
older adults or people with disabilities; such consideration treats 
them on par with other recipients of cash assistance for income 
maintenance.
    Comment: Several commenters disagreed that cash-support programs, 
such as TANF, are indicative of the likelihood of an individual being 
primarily dependent on the government for subsistence and argued that 
DHS should accordingly not consider these programs. For example, 
commenters explained that: TANF has its own built-in protections 
against abuse and long-term reliance; in at least some jurisdictions 
TANF recipients receive a low amount of funds compared to the high 
costs of living; and TANF recipients must comply with work requirements 
and are limited to 60 months of receipt. One commenter also stated that 
assessment of public charge inadmissibility based on TANF receipt is 
weak, given low-income noncitizen immigrants are much less likely to 
receive TANF benefits than similar U.S.-born adults, their use of 
benefits declines over time, and people generally cannot receive TANF 
benefits for more than five years.
    Response: DHS disagrees that DHS should exclude TANF from 
consideration in public charge inadmissibility determinations. However, 
as DHS indicated in the NPRM and in this final rule, the consideration 
of prior or current receipt of TANF, and other programs providing cash 
assistance for income maintenance, is not dispositive in a public 
charge inadmissibility determination. Rather, DHS will consider all the 
factors in new 8 CFR 212.22, including the noncitizen's household 
income and assets, as well as liabilities, exclusive of any income 
received from public benefits or illegal activities or sources and an 
Affidavit of Support Under Section 213A of the INA if required, and 
will also take into consideration the recency, amount, and duration of 
receipt of public benefits received, including TANF, in the totality of 
the circumstances. DHS believes that these considerations are more 
relevant to assessing the likelihood of becoming primarily dependent on 
the government for subsistence than overall statistics about costs of 
living in a particular geographic area.
    While DHS appreciates the study analyzing the SIPP data cited by 
the commenter comparing benefit use among citizens versus noncitizens 
and how noncitizen benefit use varies over time,\251\ DHS does not 
think that a lower rate of receipt of TANF by noncitizens supports 
exclusion of TANF from consideration. Although fewer noncitizens than 
citizens may be receiving TANF, especially prior to applying for a 
visa, admission, or adjustment of status, DHS finds that, based on 
information provided by HHS during this rulemaking, cash assistance 
programs under TANF are much more frequently used as a primary source 
of subsistence. As a result, such past and current receipt can still be 
indicative of primary dependence on the government for subsistence. 
Therefore, TANF is properly considered in the totality of the 
circumstances.
---------------------------------------------------------------------------

    \251\ Leighton Ku and Erin Brantley, ``Immigrants' Progress: 
Changes in Public Charge Policies Can Promote The Economic Mobility 
of Immigrants and Their Contribution to the U.S. Economy,'' Social 
Science Research Network (Apr. 18, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4086782 (``Census Bureau data [] 
demonstrates immigrants are often poor and in need when they first 
arrive in the US, but rapidly improve their economic status the 
longer they remain. Longitudinal analysis further shows that low-
income non-citizen immigrants are less than half as likely to 
receive cash assistance thru Temporary Assistance for Needy Families 
(TANF) and less than one-seventh as likely to receive Supplemental 
Security Income (SSI) than similar low-income US-born citizens.'') 
(last visited Aug. 15, 2022).
---------------------------------------------------------------------------

    Comment: One commenter specifically indicated agreement with the 
exclusion of child-only TANF cases from a public charge inadmissibility 
determination because cash assistance like TANF reduces child poverty 
and improves children's long-term health and educational and economic 
outcomes. The commenter stated that immigration-related concerns should 
not impede children from receiving these critical benefits.
    Response: DHS appreciates these comments but is declining to 
exclude all consideration of TANF received by children from public 
charge inadmissibility determinations. DHS did propose and is 
finalizing the proposal in this final rule to not attribute the receipt 
of cash assistance for income maintenance to a noncitizen if the 
noncitizen is receiving a public benefit (in this case TANF) solely on 
behalf of another, such as a child. However, if the applicant is a 
child and is subject to the public charge ground of inadmissibility, 
DHS would still consider the receipt by the child of TANF or other 
covered public benefits under new 8 CFR

[[Page 55525]]

212.21(b). Such consideration is not outcome determinative given that 
it is only one among a number of factors to be considered, and that DHS 
would still look at the recency, amount, and duration of receipt when 
determining whether a child noncitizen is likely at any time to become 
primarily dependent on the government for subsistence. In addition, DHS 
is not precluded from considering empirical evidence that receiving 
public benefits as a child could lead to better long-term outcomes, and 
make a child less likely at any time to become a public charge.
b. Comments on Proposed Inclusion of Other Cash Benefit Programs for 
Income Maintenance
    Comment: Many commenters, including a group of 13 United States 
Senators, opposed the inclusion of State, Tribal, territorial, or local 
benefits, including programs providing cash assistance for income 
maintenance, as part of the public charge inadmissibility determination 
and recommended DHS delete this clause from the regulatory text. 
Commenters explained that programs funded by State and local government 
are an exercise of the powers reserved to the States themselves and 
that counting programs provided by Tribal governments is a violation of 
Tribal sovereignty and self-determination.
    Commenters specifically provided examples of State-funded benefits 
that provide rental assistance, medical insurance, earned income tax 
credits, nutrition programs, guaranteed income pilots, and cash 
assistance that are temporary and act as pathways to self-sufficiency 
and said that DHS should not punish participants in these programs by 
being subject to the public charge inadmissibility determination. One 
of these commenters specifically referenced the New York Safety Net 
Assistance program (SNA) that is available to individuals not eligible 
for TANF. The commenter stated that the cash assistance portion of the 
benefit is mandatory (even if insignificant) and said that the program 
is aimed at preventing homelessness and primarily comprises rental and 
medical assistance. The commenter characterized the program as a proven 
path to self-sufficiency. Some commenters pointed to States that may 
have elected to provide State-funded coverage to immigrants who are in 
the United States lawfully but who do not qualify for Federal means-
tested public benefits, and said that some States may provide veteran 
services benefits to dependents who may not be eligible for Federal 
veterans' benefits. Those commenters also remarked that State and local 
programs can be dynamic and variable among States in name and form, 
which makes the rule complicated to explain to impacted individuals, as 
well as complicated to administer and which will contribute to 
confusion among the public for public charge inadmissibility 
determinations. Commenters stated that public charge concerns should 
not limit the ability of States and localities to create support 
programs and that the rule should not penalize immigrants in any way 
for accepting the benefits for which they are eligible at the State and 
local level.
    Some commenters additionally stated that exempting State and local 
programs would better allow local governments to provide services and 
increase trust within communities and improve constituents' quality of 
life, but not exempting these programs would require detailed policy 
and legal assessments for appropriate messaging and targeted outreach. 
One commenter also wrote about the difficulties and costs of constantly 
training staff and community partners on the potential immigration 
consequences of the receipt of new State and local public benefits.
    Response: While DHS appreciates these comments, DHS is not 
excluding State, Tribal, territorial, or local cash assistance for 
income maintenance from this final rule. As discussed previously, DHS 
is concerned about distinguishing between benefits that serve the same 
basic purpose, solely on the basis of funding source or authority. DHS 
disagrees that considering benefits interferes with State rights or 
Tribal sovereignty. This final rule does not regulate which benefits or 
programs States and other governmental entities may provide. DHS is 
taking into consideration those programs that are more indicative of 
primary dependence on the government for subsistence in the totality of 
the noncitizen's circumstances. As indicated in the NPRM, these 
considerations exclude any special-purpose or supplemental programs, as 
well as disaster and similar assistance. With respect to the New York's 
SNA program, if the program provides a combination of non-cash and cash 
benefits, DHS would only consider the cash portion of the benefit in 
the totality of the circumstances, and such receipt would never alone 
be outcome determinative. If an individual receives a small amount of 
cash assistance for a limited period of time, such receipt would be 
unlikely to result in an adverse public charge inadmissibility 
determination. DHS also notes that applicants who are uncertain whether 
a benefit they are receiving is cash assistance for income maintenance 
can include information about the program to assist officers in 
determining whether the benefit should be considered.
    In addition, DHS is only considering State, Tribal, territorial, or 
local programs providing medical coverage in narrow circumstances of 
long-term institutionalization at government expense. As with Medicaid, 
DHS is not considering application for, or approval to receive medical 
coverage or the fact that the individual is getting medical care or 
treatments through the State, Tribal, territorial, or local program, 
unless that care is long-term institutionalization.
    Comment: One commenter stated that if DHS chooses to retain 
consideration of State and local benefits, DHS should explicitly 
distinguish State, local, territorial, or Tribal tax credits and other 
cash assistance programs from ``cash assistance for income 
maintenance.'' One commenter indicated that while USCIS has been clear 
that it will not consider tax credits, including the child tax credit, 
in public charge inadmissibility determinations, there is a concern 
that the rule would not explicitly protect a future child allowance 
that is not delivered through the tax system from consideration in a 
public charge inadmissibility determination. The commenter also noted 
that even when a child allowance was delivered through the tax system, 
focus groups and parents in mixed status families reported concerns 
that the CTC would have an impact on their immigration status.
    Response: DHS is not considering tax credits as cash assistance for 
income maintenance, whether they are Federal, State, Tribal, 
territorial, or local, because many people with moderate or higher 
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, as 
the Department of the Treasury has noted, ``[i]t can be challenging to 
distinguish between the portion of a credit that offsets an individual 
tax liability versus the portion that is refundable. Determining the 
impact of a refundable tax credit depends on multiple variables, 
including other return elements and information the taxpayer provides, 
some of which are unrelated to the refundable tax credit in question.'' 
\252\ DHS also has no interest in any action that may cause fear or

[[Page 55526]]

confusion in relation to the payment of income taxes. Finally, these 
tax credits may be combined with other tax credits between spouses. One 
spouse may be a U.S. citizen, and the couple may file the tax return 
jointly. In such a case, DHS would not be able to determine whether the 
noncitizen or the U.S. citizen received the tax credit.
---------------------------------------------------------------------------

    \252\ See Dep't of the Treasury, ``Agency Financial Report: 
Fiscal Year 2021'' (2021), at 198, https://home.treasury.gov/system/files/266/Treasury-FY-2021-AFR.pdf (last visited Aug. 10, 2022).
---------------------------------------------------------------------------

    In addition, while DHS is clear that it will not consider the Child 
Tax Credit (CTC), DHS would consider any other general cash assistance 
that is available to families with children, which is similarly 
situated to programs like TANF, to be cash assistance for income 
maintenance, unless it could be classified as a special-purpose 
program. TANF, for example, is available to pregnant individuals or 
those responsible for one or more children under the age of 19, but 
there are no restrictions on the use of TANF cash assistance. 
Therefore, if similar general assistance is not provided as a tax 
credit and is not restricted in how it may be used, DHS would consider 
such assistance cash assistance for income maintenance. If, on the 
other hand, a future allowance is restricted in how it may be used--for 
example, cash or cash equivalent that may only be used to pay for 
daycare or school, then DHS would consider such assistance special-
purpose and would not consider it in public charge inadmissibility 
determinations.
    Comment: One commenter stated generally that DHS should not include 
cash assistance and that DHS should instead treat it on par with 
general health, nutrition, and housing programs, among others. The 
commenter stated that including cash assistance will only confuse 
people who may assume that COVID-19 stimulus checks, tax returns, and 
credits are included, particularly citing the need to specifically 
exclude coverage for testing and treatment for COVID-19. Another 
commenter stated that the use of cash assistance for designated 
purposes does not accurately predict whether a person is likely to 
become a public charge because individuals who receive these benefits 
can also independently earn income or have resources.
    Response: As discussed previously in this final rule, DHS is not 
eliminating the consideration of cash assistance for income 
maintenance. However, such cash assistance does not include special-
purpose benefits like disaster assistance. Finally, DHS was very clear 
in the NPRM, and is reiterating in this final rule, that DHS will not 
consider receipt of treatments or preventive services related to COVID-
19 for purposes of public charge determinations. While COVID-19 
vaccines, for example, are free to anyone who desires to get one, DHS 
is not considering healthcare coverage (except for long-term 
institutionalization at government expense), so DHS would not consider 
medications to treat COVID-19 or hospitalization in this context.
    Comment: Other commenters also requested the explicit exclusion of 
benefits used by survivors of domestic violence or other serious crimes 
or benefits used by anyone during natural disasters, such as State-
funded emergency relief funds, or other extraordinary circumstances, 
for example COVID-19-related relief funds that have been made available 
to everyone, including noncitizens without lawful status in the United 
States. They stated that use of these benefits is due entirely to 
external events and does not provide any information on the recipient's 
likelihood of becoming primarily reliant on government assistance.
    Response: As indicated throughout this final rule, the only 
benefits DHS is considering are Federal (SSI and TANF), State, Tribal, 
territorial, and local cash assistance for income maintenance and any 
program (including Medicaid) that provides or covers the costs of long-
term institutionalization at government expense. DHS is not considering 
disaster assistance, COVID-19 stimulus payments, or other similarly 
situated benefits. DHS notes that at least some survivors of domestic 
violence are exempt from the public charge ground of inadmissibility. 
Where the ground does not apply, DHS would not consider any public 
benefits received by those individuals. DHS is not adding a separate 
exclusion for all victims of crime and/or domestic violence because 
such an exclusion may overlap with existing exemptions and because an 
exclusion for all victims of crime would not take into account whether 
a noncitizen is receiving benefits because they were victimized or 
whether the benefits had nothing to do with the noncitizen's victim 
status. An applicant may always supplement their application with an 
explanation of the temporary circumstances that gave rise to benefits 
receipt covered by the rule.
    Comment: A commenter also raised concerns with the consideration of 
``general assistance'' and ``guaranteed income'' programs in public 
charge inadmissibility determinations. The commenter stated that 
``[o]nly half of the states in the nation provide any type of general 
assistance, and it is only available to very few of those in need,'' 
noting that ``[s]ome are only available to individuals with a 
disability, and have maximum grant levels below the federal poverty 
level in all but two states and below one-quarter of the federal 
poverty level in half the programs.'' The commenter said that these 
State- and locally-funded programs are by definition guided by State 
and local priorities, and that DHS should not include them in public 
charge inadmissibility determinations because they do not provide 
enough income for ``income maintenance'' that would indicate ``primary 
dependence'' on the government, and because they are not funded nor 
guided by priorities set by the federal government. The commenter also 
flagged a ``growing trend'' around the country known as ``Guaranteed 
Income'' programs, which range between $200 and $1,000 monthly to 
households with eligibility and prioritization chosen by the locality 
or State implementing the program. The commenter stated that 
``Guaranteed Income'' programs are not intended to be the sole source 
of income for the recipient households, but instead a support to allow 
the households to meet their other needs without creating dependence on 
the programs due to their time-limited nature. The commenter also 
expressed concern that looking at the amount and duration of benefit 
receipt would create disparate treatment among recipients given that 
different jurisdictions have differing resources available.
    Response: As indicated previously, DHS is declining to exclude from 
consideration State, Tribal, territorial, and local cash assistance for 
income maintenance because such assistance can be indicative of primary 
dependence on the government for subsistence. The definition of 
government is not limited to the Federal government, and, as indicated 
in other comment responses, DHS has concluded that it would not be 
reasonable to distinguish between cash assistance recipients solely 
because of the source of the funds (i.e., solely because the funds came 
from the Federal government, as opposed to State, Tribal, territorial, 
or local government). To the extent that ``guaranteed income'' programs 
are not the same as cash assistance for income maintenance in that they 
typically do not provide the primary source of income for recipients, 
or are made available without income-based eligibility rules, DHS would 
not consider these programs.

[[Page 55527]]

c. Suggestions That Other Benefit Programs Be Included in Public Cash 
Assistance for Income Maintenance
    Comment: A commenter requested that DHS include the Earned Income 
Tax Credit (EITC) and Child Tax Credit (CTC) programs in the definition 
of public cash assistance for income maintenance. The commenter stated 
that although these payments are employment-based subsidies, they are 
still means-tested transfer payments for which noncitizens must 
individually qualify and are evidence that such noncitizens are not 
self-sufficient without a government subsidy. The commenter stated that 
at a minimum, DHS should exclude payments under either program from the 
definition of gross annual household income.
    Response: DHS appreciates the comments regarding the EITC and CTC 
but is declining to add these to the definition of public cash 
assistance for income maintenance in new 8 CFR 212.21(b). Although EITC 
and the CTC benefits provided could be considered a particular form of 
cash assistance, DHS is not including the consideration of tax credits 
in this final rule because many people with moderate or higher 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, as the Department of 
the Treasury has noted, ``[i]t can be challenging to distinguish 
between the portion of a credit that offsets an individual tax 
liability versus the portion that is refundable. Determining the impact 
of a refundable tax credit depends on multiple variables, including 
other return elements and information the taxpayer provides, some of 
which are unrelated to the refundable tax credit in question.'' \253\ 
DHS also has no interest in any action that may cause fear or confusion 
in relation to the payment of income taxes. Finally, these tax credits 
may be combined with other tax credits between spouses. One spouse may 
be a U.S. citizen, and the couple may file the tax return jointly. 
Therefore, DHS would not be able to determine whether the noncitizen or 
the U.S. citizen received the tax credit. DHS is also not including the 
suggestion to exclude from the household income any amounts 
attributable to these tax credits, in part because of the same 
practical limitations.
---------------------------------------------------------------------------

    \253\ See Dep't of the Treasury, ``Agency Financial Report: 
Fiscal Year 2021'' (2021), at 198, https://home.treasury.gov/system/files/266/Treasury-FY-2021-AFR.pdf (last visited Aug. 10, 2022).
---------------------------------------------------------------------------

d. Requests That Non-Cash Benefits Other Than Long-Term 
Institutionalization at Government Expense Be Considered
    Comment: A commenter recommended that DHS withdraw the definition 
of public benefit and promulgate a new NPRM that defines public benefit 
in a manner that the commenter believes would be more commensurate with 
Congressional intent and with the way States and the Federal government 
distribute monies for public benefits, as the commenter does not 
believe it is appropriate to exclude entire programs, like Medicaid, 
that cost billions of dollars a year. Another commenter wrote that that 
PRWORA broadly defined federal public benefits and indicated that the 
proposed definition of public benefits in the NPRM is too restrictive. 
Another commenter wrote that in differentiating between types of 
benefits, DHS ignores Congressional intent in favor of an interim 
guidance memorandum that was never meant to be the equivalent of a 
final agency rule. Several commenters stated that by limiting the 
public charge inadmissibility determination to only cash benefits for 
income maintenance or long-term institutionalization, the definition 
improperly restricts the benefits that DHS could consider in the 
analysis. Several commenters stated that distinguishing between cash 
and noncash benefits is ``contrary to our national principle of self-
sufficiency.'' One commenter said that the proposed rule's removal of 
the consideration of any supplemental or in-kind benefits is not a 
permissible construction of the statute, a claim they stated is 
supported by history and Congress's 1996 statutory amendments and 
additions. That commenter stated that many recognize that the 1996 
affidavit of support provision reflects Congress's ``preference that 
the Executive consider even supplemental dependence in enforcing the 
public charge exclusion.'' \254\ Another commenter similarly 
recommended the rule require officers to consider all means-tested 
public benefits, including public benefits provided by State, Tribal, 
territorial, and local governments to ``nonqualified aliens'' under 
PRWORA, consistent with Congress's scheme in limiting access to public 
benefits and the provisions of the INA, which according to the 
commenter state that the law is intended to protect each of these 
entities and allow them to recover lost benefits they may have 
provided.
---------------------------------------------------------------------------

    \254\ Cook County v. Wolf, 962 F.3d 208, 248 (7th Cir. 2020) 
(Barrett, J., dissenting).
---------------------------------------------------------------------------

    Response: Congress itself previously distinguished between cash and 
non-cash benefits in the same manner as this rule in the IRCA 
legalization provision, which provided that ``[a]n alien is not 
ineligible for adjustment of status under [that provision] due to being 
[a public charge] if the alien demonstrates a history of employment in 
the United States evidencing self-support without receipt of public 
cash assistance.'' \255\ Further, INS made this same distinction in the 
1999 Interim Field Guidance, after which Congress amended the 
applicability of section 212(a)(4) of the INA multiple times, but only 
to limit the application of the ground of inadmissibility to certain 
populations or to limit consideration of certain benefits in certain 
circumstances.\256\ As noted previously, Congress has long deferred to 
the Executive to interpret the meaning of ``likely at any time to 
become a public charge.'' DHS is not treading new ground by exercising 
that discretion in the way presented in this rule. DHS believes 
Congress' prohibition of consideration of prior receipt of public 
benefits by a specific class of noncitizens when making public charge 
inadmissibility determinations \257\ indicates that Congress believed 
that the consideration of receipt of at least some public benefits was 
relevant to determining whether an applicant is likely at any time to 
become a public charge and that DHS should considered the receipt in 
all other circumstances when making a public charge inadmissibility 
determination. However, Congress left it to the agencies administering 
the ground to specify which public benefits should be considered when 
defining key statutory terms and standards, such as the forward-looking 
and predictive ``likely at any time to become a public charge,'' and 
the ``factors to be taken into account,'' which entails assessing 
current and past behavior in order make the prediction of possible 
future likelihood of becoming a public charge.
---------------------------------------------------------------------------

    \255\ Public Law 99-603, tit. II, sec. 201 (Nov. 6, 1986) 
(codified at section 245A(d)(2)(B)(ii)(IV) of the INA, 8 U.S.C. 
1255a(d)(2)(B)(ii)(IV)) (emphasis added); see also id. at secs. 302, 
303 (similar provision for Special Agricultural Workers).
    \256\ See, e.g., Public Law 113-4, sec. 804 (2013) (codified as 
amended at section 212(a)(4)(E)(i)-(iii) of the INA, 8 U.S.C. 
1182(a)(4)(E)(i)-(iii)); Public Law 106-386, sec. 1505(f).(2000) 
(codified as amended at section 212(s) of the INA, 8 U.S.C. 
1182(s)).
    \257\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------

    Comment: Some commenters stated that that the distinction that DHS 
drew between monetary and non-monetary benefits is artificial. A few 
commenters also stated that the proposed rule uses semantics rather 
than facts to argue

[[Page 55528]]

substantive differences between cash and non-cash benefits. Commenters 
stated that Congress was concerned about noncitizens relying on all 
government-funded welfare programs, not only receiving income-deriving 
benefits, and indicated that there is simply no functional difference 
between a cash and a non-cash benefit. Both stem from public funds used 
for public benefits that are equally relied on by those who cannot 
afford to meet some need. The commenter wrote that a recipient of 
federal or State housing assistance significantly relies on the 
government, as do the recipients of Medicaid or other State low or no-
cost medical benefits. Another commenter also indicated that there is 
no difference between being reliant on benefits for a certain need, 
rather than reliant on benefits for income. One commenter stated that 
DHS relies on a flawed premise that, for public charge purposes, the 
analysis should rest on how the benefit is used by the individual, but 
instead DHS should only look to whether an individual is, in fact, 
relying on a public benefit. The commenter said that if the goal is to 
ensure that the noncitizen is not reliant on the government, the focus 
should be on how much the government spends on the benefit, not whether 
the benefit is income-deriving. A commenter supporting the exclusion of 
noncash benefits and advocating for exclusion of cash benefits as well 
stated that the distinction between cash and noncash benefits is 
arbitrary and confusing, and indicated that the assertion that cash 
benefits allow individuals to become dependent on the government in a 
way that participation in non-cash benefit programs did not was not 
supported by DHS with statistics. The commenter said that including 
this distinction would risk perpetuating and exacerbating disparities 
in access to stability and opportunities.
    Response: DHS disagrees that it is drawing an artificial or 
arbitrary distinction between cash and non-cash benefits or that it is 
contradicting Congress' statements regarding self-sufficiency and 
dependence on public benefits. In determining to exclude most non-cash 
benefits as part of the definition of ``likely at any time to become a 
public charge,'' DHS has concluded, based on feedback from benefits-
granting agencies, that non-cash benefits generally are less indicative 
of primary dependence on the government for subsistence than those 
benefits included in this rule for consideration. During the 
development of the NPRM, DHS consulted with benefits-granting agencies. 
In its on-the-record letter,\258\ USDA advised that participation in 
nutrition programs, such as SNAP, ``is not an appropriate indicator of 
whether an individual is likely to become primarily dependent on the 
government for subsistence.'' The letter explained that SNAP is 
supplementary in nature as the benefits are calculated to cover only a 
portion of a household's food costs with the expectation that the 
household will use its own resources to provide the rest. The letter 
also stated that SNAP benefits are modest and tailored based on the 
Thrifty Food Plan (TFP), USDA's lowest cost food plan, and that an 
individual or family could not subsist on SNAP alone. USDA emphasized 
that a recipient can only use SNAP benefits for the purchase of food, 
such as fruits and vegetables, dairy products, breads, and cereals, or 
seeds and plants that produce food for the household to eat. The 
recipient may not convert SNAP benefits to cash or use them to purchase 
hot foods or any nonfood items. Receiving SNAP benefits only pertains 
to a need for supplemental food assistance and does not address all 
food needs or other general needs such as cooking equipment, hygiene 
items, or clothing, for example. USDA also stated that most SNAP 
recipients work and that there is no research demonstrating that 
receipt of SNAP benefits is a predictor of future dependency.
---------------------------------------------------------------------------

    \258\ See Letter from USDA Deputy Under Secretary on Public 
Charge (Feb. 15, 2022), https://www.regulations.gov/document/USCIS-2021-0013-0199 (last visited July 12, 2022).
---------------------------------------------------------------------------

    Similarly, in its on-the-record consultation letter,\259\ HHS 
evaluated the Medicaid program within the context of a public charge 
definition based on primary dependence on the government for 
subsistence. HHS stated that ``with the exception of long-term 
institutionalization at government expense, receipt of Medicaid 
benefits is . . . not indicative of a person being or likely to become 
primarily dependent on the government for subsistence.'' This 
conclusion was based on HHS's assessment that Medicaid, except for 
long-term institutionalization, does not provide assistance to meet 
basic subsistence needs. In addition, HHS highlighted developments 
since 1999 that ``reaffirm Medicaid's status as a supplemental 
benefit.'' These developments include Congressional action that has 
expanded Medicaid coverage, such that in many States individuals and 
families are eligible for Medicaid despite having income substantially 
above the HHS poverty guidelines. HHS also noted that among working age 
adults without disabilities who participate in the Medicaid program, 
most are employed.\260\ HHS also agreed with DHS that ``receipt of cash 
assistance for income maintenance, in the totality of the 
circumstances, is evidence that an individual may be primarily 
dependent on the government for subsistence.'' HHS addressed the TANF 
program, which it administers, and stated that unlike Medicaid, cash 
assistance programs under TANF have remained limited to families with 
few sources of other income and are much more frequently used as a 
primary source of subsistence. DHS acknowledges the possibility of 
opposing views,\261\ but believes that the information in these letters 
provides ample support for the distinction that DHS has historically 
drawn between cash and noncash benefits.
---------------------------------------------------------------------------

    \259\ See Letter from HHS Deputy Secretary on Public Charge 
(Feb. 16, 2022), https://www.regulations.gov/document/USCIS-2021-0013-0206 (last visited July 12, 2022).
    \260\ See Rachel Garfield, et al., ``Work Among Medicaid Adults: 
Implications of Economic Downturn and Work Requirements,'' Kaiser 
Family Foundation (Feb. 11, 2021), https://www.kff.org/coronavirus-covid-19/issue-brief/work-among-medicaid-adults-implications-of-economic-downturn-and-work-requirements/ (last visited Aug. 15, 
2022).
    \261\ See, e.g., Cook County, 962 F.3d 208, 249 (7th Cir. 2020) 
(Barrett, J., dissenting) (suggesting that DHS might reasonably 
decline to distinguish between ``$500 for groceries or $500 worth of 
food'').
---------------------------------------------------------------------------

    DHS also notes that, based on experience with the 2019 Final Rule, 
DHS knows that including non-cash benefits as part of a public charge 
inadmissibility determination, both in the definition and in the 
factors considered, predictably results in widespread chilling effects 
based on a misunderstanding of the law, while ultimately not resulting 
in any denials under that rule. As DHS explained in the NPRM, the 
inclusion of non-cash benefits in the 2019 Final Rule had a significant 
chilling effect on enrollment in Federal and State public benefits, 
including Medicaid, resulting in fear and confusion among both 
noncitizens and U.S. citizens. Concerns over actual and perceived 
adverse legal consequences tied to seeking public benefits have 
affected whether or not immigrants seek to enroll in public benefit 
programs, including Medicaid and CHIP, and have resulted in a decrease 
in health insurance rates among eligible immigrants, particularly 
Latinos.\262\ Medicaid provides critical

[[Page 55529]]

health care services including vaccination, testing and treatment for 
communicable diseases; the importance of these services has been 
demonstrated during the COVID-19 pandemic.\263\
---------------------------------------------------------------------------

    \262\ HHS, Assistant Secretary for Planning and Evaluation, 
Office of Health Policy, ``Health Insurance Coverage and Access to 
Care for Immigrants: Key Challenges and Policy Options'' (Dec. 17, 
2021), https://aspe.hhs.gov/sites/default/files/documents/96cf770b168dfd45784cdcefd533d53e/immigrant-health-equity-brief.pdf .
    \263\ See Centers for Medicare & Medicaid Services (CMS), 
``Coverage and Reimbursement of COVID-19 Vaccines, Vaccine 
Administration, and Cost-Sharing under Medicaid, the Children's 
Health Insurance Program, and Basic Health Program'' (updated May 
2021), https://www.medicaid.gov/state-resource-center/downloads/covid-19-vaccine-toolkit.pdf; CMS State Health Official letter #12-
006, ``Mandatory Medicaid and CHIP Coverage of COVID-19-Related 
Treatment under the American Rescue Plan Act of 2021'' (issued Oct. 
22, 2021), https://www.medicaid.gov/federal-policy-guidance/downloads/sho102221.pdf; CMS State Health Official letter #21-003, 
``Medicaid and CHIP Coverage and Reimbursement of COVID-19 Testing 
under the American Rescue Plan Act of 2021 and Medicaid Coverage of 
Habilitation Services'' (issued Aug. 30, 2021) https://www.medicaid.gov/federal-policy-guidance/downloads/sho-21-003.pdf.
---------------------------------------------------------------------------

    The final rule is guided by data and input from expert agencies 
regarding the nature of certain noncash benefits, as well as a 
recognition of the predicted and documented effects of the 2019 Final 
Rule's chilling effects that reduced noncitizens accessing critical 
benefits, including health benefits.\264\ By focusing on those public 
benefits that are most indicative of primary dependence on the 
government for subsistence, DHS can faithfully administer the public 
charge ground of inadmissibility without exacerbating challenges 
confronting individuals who work, go to school, and contribute 
meaningfully to our nation's social, cultural, and economic fabric. 
This approach is consistent with the INA, PRWORA, and this country's 
long history of welcoming immigrants seeking to build a better life. By 
focusing on cash assistance for income maintenance and long-term 
institutionalization at government expense, DHS can identify those 
individuals who are likely at any time to become primarily dependent on 
the government for subsistence, without interfering with the 
administrability and effectiveness of other benefit programs that serve 
important public interests.
---------------------------------------------------------------------------

    \264\ See Hamutal Bernstein et al., ``Immigrant Families 
Continued Avoiding the Safety Net during the COVID-19 Crisis,'' 
Urban Institute (2021), at 1, https://www.urban.org/sites/default/files/publication/103565/immigrant-families-continued-avoiding-the-safety-net-during-the-covid-19-crisis.pdf (last visitedAug. 17, 
2022).
---------------------------------------------------------------------------

    Importantly, as noted above receipt of most non-cash public 
benefits by applicants for visas, admission, and adjustment of status 
who are subject to the public charge ground of inadmissibility is 
uncommon.\265\ It would be exceedingly rare to encounter a non-
institutionalized person who is primarily dependent on the government 
for subsistence, but who does not receive any degree of cash assistance 
for income maintenance from the government.
---------------------------------------------------------------------------

    \265\ See, e.g., 8 U.S.C. 1611; 8 U.S.C. 1621.
---------------------------------------------------------------------------

    Comment: Some commenters stated that drawing a distinction between 
cash and noncash benefits does not make economic sense. One commenter 
cited estimates in the 2019 Final Rule that the rule would 
``cumulatively save the States $1.01 billion annually,'' and also 
stating that the federal government only pays a portion of the 
costs.\266\ The commenter stated that the States need that savings in 
order to adequately provide for the economically disadvantaged. Another 
commenter also remarked that the distinction between cash and noncash 
benefits ignores costs to the States. And another commenter stated that 
it is not appropriate to exclude whole programs where any State is 
spending billions of dollars per year, although they supported a de 
minimis exception to certain benefit programs.
---------------------------------------------------------------------------

    \266\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR 
41292, 41301 (Aug. 14, 2019). City & County of San Francisco v. U.S. 
Citizenship & Immigr. Servs., 981 F.3d 742, 754 (9th Cir. 2020).
---------------------------------------------------------------------------

    Response: DHS disagrees that treating non-cash benefits differently 
than cash benefits is irrational. As discussed in some detail above, 
DHS is drawing a reasonable line between, on the one hand, cash 
assistance for income maintenance and long-term institutionalization at 
government expense (which DHS views as more probative of primary 
dependence on the government for subsistence) and, on the other hand, 
supplemental and special-purpose non-cash benefits (which are less 
probative of such dependence). In addition, DHS is taking into 
consideration the impacts of the 2019 Final Rule on families, 
communities, States, and localities that suffered economically due to 
reduction in food security, adverse impacts on public health, and 
increase in uncompensated medical care, including during the COVID-19 
pandemic, as a result of chilling effects caused by the 2019 Final 
Rule.\267\ DHS recognizes that a regulatory alternative that would 
consider a wider range of non-cash benefits similar to the 2019 Final 
Rule would likely result in a reduction of payments by States to 
beneficiaries as a result of disenrollment/forgone enrollment. However, 
DHS notes that this particular transfer effect may be attributable to a 
very significant extent to confusion and uncertainty among populations 
that are not directly regulated by this rule. In addition, a range of 
downstream consequences for the general public and for State and local 
governments may accompany such an effect (such as avoidance of 
preventative medical care, children's immunizations, and nutrition 
programs, primarily by persons not even subject to the public charge 
ground of inadmissibility). DHS therefore disagrees that the line drawn 
in this rule with regard to which benefits DHS will consider for public 
charge purposes ignores the economic effects on States; DHS is aware of 
such effects, but in light of the nature of the public charge inquiry 
and the applicability of the ground of inadmissibility, DHS has chosen 
to address the problem differently than some commenters prefer. DHS 
also does not believe that using this rule to deter those who are not 
subject to the public charge ground of inadmissibility from accessing 
benefits for which they are eligible would be an appropriate or valid 
exercise of authority.
---------------------------------------------------------------------------

    \267\ See generally, 87 FR at 10587-10597 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS acknowledges that the economic analysis for the 2019 Final Rule 
accounted for a 2.5 percent rate of disenrollment/forgone enrollment 
from public benefit programs for ``individuals who are members of 
households with foreign-born non-citizens,'' resulting in an 
anticipated reduction in transfer payments from both Federal and State 
governments to individuals, and that it referenced ``the 10-year 
undiscounted amount of state transfer payments of the provisions of 
[the 2019] final rule [of] about $1.01 billion annually.'' However, as 
DHS noted in the NPRM and discusses later in this final rule, there are 
challenges associated with measuring chilling effects with precision. 
With respect to the chilling effects associated with the 2019 Final 
Rule, different studies have used different data, methodologies, and 
periods and populations of analysis, each with their own potential 
advantages and disadvantages, yet all found some degree of chilling 
effect.
    As DHS noted in the NRPM, the estimated rate of disenrollment/
forgone enrollment used in the 2019 Final Rule was based on a 
potentially overinclusive population sample, at least as it relates to 
the population that would be directly regulated by the 2019 Final Rule. 
\268\ As

[[Page 55530]]

discussed at length later in this preamble, DHS has included estimates 
of a similar disenrollment rate in the economic analysis for this rule. 
DHS developed the estimates following consideration of a range of 
studies of the effects of the 2019 Final Rule, and cautions that any 
quantified estimate is subject to significant uncertainty.
---------------------------------------------------------------------------

    \268\ As discussed in the Regulatory Alternative section, a 2.5 
percent rate of disenrollment/forgone enrollment from public benefit 
programs appears to have resulted in an underestimate due to the 
documented chilling effects associated with the 2019 Final Rule 
among other parts of the noncitizen and citizen populations who were 
not included as adjustment applicants or members of households of 
adjustment applicants as well as other noncitizens who were not 
adjustment applicants.
---------------------------------------------------------------------------

    Despite this uncertainty as to its precise magnitude, as DHS 
explained in the NPRM, a variety of evidence indicates that the 
inclusion of non-cash benefits in the 2019 Final Rule had significant 
chilling effect on enrollment in Federal and State public benefits, 
including Medicaid, resulting in fear and confusion among both 
noncitizens and U.S. citizens. Concerns over actual and perceived 
adverse legal consequences tied to seeking public benefits have 
affected whether or not immigrants seek to enroll in public benefit 
programs, including Medicaid and CHIP, and have depressed health 
insurance uptake among eligible immigrants.\269\ Medicaid provides 
critical health care services including vaccination, testing and 
treatment for communicable diseases.\270\ By focusing on those public 
benefits that are indicative of primary dependence on the government 
for subsistence, DHS can faithfully administer the public charge ground 
of inadmissibility without exacerbating challenges confronting 
individuals who work, go to school, and contribute meaningfully to our 
nation's social, cultural, and economic fabric. This approach is 
consistent with the INA, PRWORA, and this country's long history of 
welcoming immigrants seeking to build a better life. By focusing on 
cash assistance for income maintenance and long-term 
institutionalization at government expense, DHS can identify those 
individuals who are likely at any time to become primarily dependent on 
the government for subsistence, without interfering with the 
administrability and effectiveness of other benefit programs that serve 
important public interests.
---------------------------------------------------------------------------

    \269\ See HHS, Assistant Secretary for Planning and Evaluation, 
Office of Health Policy, ``Health Insurance Coverage and Access to 
Care for Immigrants: Key Challenges and Policy Options'' (Dec. 17, 
2021), https://aspe.hhs.gov/sites/default/files/documents/96cf770b168dfd45784cdcefd533d53e/immigrant-health-equity-brief.pdf 
(last visited Aug. 18, 2022); Kaiser Family Foundation, ``Health 
Coverage of Immigrants'' (Apr. 6, 2022), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/ 
(last visited Aug. 18, 2022).
    \270\ See CMS, ``Coverage and Reimbursement of COVID-19 
Vaccines, Vaccine Administration, and Cost-Sharing under Medicaid, 
the Children's Health Insurance Program, and Basic Health Program'' 
(updated May 2021) https://www.medicaid.gov/state-resource-center/downloads/covid-19-vaccine-toolkit.pdf; CMS State Health Official 
letter #12-006, ``Mandatory Medicaid and CHIP Coverage of COVID-19-
Related Treatment under the American Rescue Plan Act of 2021'' 
(issued Oct. 22, 2021), https://www.medicaid.gov/federal-policy-guidance/downloads/sho102221.pdf; CMS State Health Official letter 
#21-003, ``Medicaid and CHIP Coverage and Reimbursement of COVID-19 
Testing under the American Rescue Plan Act of 2021 and Medicaid 
Coverage of Habilitation Services'' (issued Aug. 30, 2021), https://www.medicaid.gov/federal-policy-guidance/downloads/sho-21-003.pdf.
---------------------------------------------------------------------------

    As discussed in the NPRM, based on the review of sources looking at 
the impacts of the 2019 Final Rule, DHS concluded that inclusion of 
non-cash benefits in the definition of ``likely at any time to become a 
public charge'' or in the list of ``factors to consider'' is not only 
unnecessary to faithfully implement the INA but would lead to 
predictably harmful chilling effects.\271\ DHS believes that this rule 
is consistent with the goals set forth in 8 U.S.C. 1601.\272\ Indeed, 
the rule's consideration of receipt of public cash assistance for 
income maintenance or long-term institutionalization at government 
expense helps ensure that DHS focuses its public charge inadmissibility 
determinations on applicants who are likely to become primarily 
dependent on the government for subsistence and therefore lack self-
sufficiency. DHS further notes that its administrative implementation 
of the public charge ground of inadmissibility is informed not only by 
the policy goals articulated in 8 U.S.C. 1601(2) with respect to self-
sufficiency and the receipt of public benefits but also by other 
relevant and important policy considerations, such as clarity, 
fairness, national resilience, and administrability.\273\ Therefore, 
DHS declines to adopt these suggestions.
---------------------------------------------------------------------------

    \271\ 84 FR at 10589-10591 (Feb. 24, 2022).
    \272\ 87 FR at 10611 (Feb. 24, 2022).
    \273\ See, e.g., 6 U.S.C. 111(b)(1)(F).
---------------------------------------------------------------------------

3. Long-Term Institutionalization at Government Expense
    Comment: One commenter recommended DHS provide officers appropriate 
training to ensure public charge inadmissibility determinations support 
robust compliance with the Americans with Disabilities Act, the 
Rehabilitation Act, and the Supreme Court's decision in Olmstead v. 
L.C., particularly with respect to persons at serious risk of 
institutionalization or segregation but not limited to individuals 
currently in institutional or other segregated settings. Other 
commenters stated that DHS should not subject an individual 
institutionalized in violation of federal law to a public charge 
inadmissibility determination. Commenters recommended that DHS should 
direct officers not to assume the lack of evidence that an applicant's 
past or current institutionalization violates federal law means 
institutionalization was voluntary or lawful. Two commenters similarly 
stated that if the final rule includes consideration of past or current 
long-term institutionalization as part of the public charge 
inadmissibility determination, DHS should include a presumption that 
the institutionalization was improper because Olmstead v. L.C.\274\ 
places the burden on the government rather than the individual to show 
that community placement is improper and thus the public charge 
inadmissibility determination should do the same. One commenter also 
stated that the lack of evidence that past or current 
institutionalization is in violation of Federal law should never be 
construed against the applicant, recommending deleting the reference in 
the regulatory text that evidence be ``submitted by the applicant.'' 
Additionally, one commenter added that there is no simple way to 
establish that a person was institutionalized in violation of federal 
anti-discrimination laws or because of a lack of access of services. 
Another commenter said that DHS should examine the impact on children 
with special health care needs of the inclusion of ``long-term 
institutionalization at government expense'' as grounds for 
inadmissibility in public charge inadmissibility determinations.
---------------------------------------------------------------------------

    \274\ 527 U.S. 581 (1999).
---------------------------------------------------------------------------

    Response: DHS agrees that it will need to provide training to 
officers on all aspects of this final rule and specifically on how it 
should consider disability in the totality of the circumstances 
analysis, as well as how it should consider evidence that a 
noncitizen's rights were violated in instances where the noncitizen was 
eligible for but unable to obtain HBCS in lieu of long-term 
institutionalization. As proposed in the NPRM, DHS will not consider 
disability as sufficient evidence that an applicant for admission or 
adjustment of status is likely at any time to become a public charge. 
For example, DHS will not presume that an individual having a 
disability in and of itself means that the individual is in poor health 
or is likely to receive cash assistance for income maintenance or 
require long-term institutionalization at government expense. DHS will 
also not presume that disability in and of itself negatively impacts 
the analysis of the other factors in new 8 CFR 212.22.
    DHS also recognizes that there are some circumstances where an

[[Page 55531]]

individual may be institutionalized long-term in violation of Federal 
antidiscrimination laws, including the Americans with Disabilities Act 
(ADA) and Section 504. The ADA requires public entities, and Section 
504 requires recipients of Federal financial assistance, to provide 
services to individuals in the most integrated setting appropriate to 
their needs.\275\ As discussed in the NPRM, the Supreme Court in 
Olmstead v. L.C.,\276\ held that unjustified institutionalization of 
individuals with disabilities by a public entity is a form of 
discrimination under the ADA and Section 504. Given the significant 
advancements in the availability of Medicaid-funded HCBS since the 1999 
Interim Field Guidance was issued,\277\ individuals who previously 
experienced long-term institutionalization may not need long-term 
institutionalization in the future. The public charge ground of 
inadmissibility is designed to render inadmissible those persons who, 
based on their own circumstances, would need to rely on the government 
for subsistence, and not those persons who might be confined in an 
institution without justification. The possibility that an individual 
will be confined without justification thus should not contribute to 
the likelihood that the person will be a public charge. Therefore, 
while DHS will consider current or past long-term institutionalization 
as having a bearing on whether a noncitizen is likely at any time to 
become primarily dependent on the government for subsistence, DHS will 
also consider evidence that past or current institutionalization is in 
violation of Federal law, including the Americans with Disabilities Act 
or the Rehabilitation Act.\278\ However, DHS will not implement the 
commenter's suggestion to strike the reference in the regulatory text 
that evidence that the past or current institutionalization is in 
violation of Federal law is to be submitted by the applicant. DHS notes 
that an applicant for admission or adjustment of status bears the 
burden of proof to establish eligibility for the immigration benefit 
sought and DHS declines to shift this burden of proof to itself.
---------------------------------------------------------------------------

    \275\ See U.S. Department of Justice, Civil Rights Division, 
Disability Rights Section, ``Statement of the Department of Justice 
on Enforcement of the Integration Mandate of Title II of the 
Americans with Disabilities Act and Olmstead v. L.C.,'' https://www.ada.gov/olmstead/q&a_olmstead.htm (last updated Feb. 25, 2020) 
(last visited Aug. 16, 2022).
    \276\ 527 U.S. 581 (1999).
    \277\ For example, Congress has expanded access to HCBS as an 
alternative to long-term institutionalization since 1999 by 
establishing a number of new programs, including the Money Follows 
the Person program and the Balancing Incentive Program, and new 
Medicaid State plan authorities, including Community First Choice 
(42 U.S.C. 1396n(k)) and the HCBS State plan option (42 U.S.C. 
1396n(i)). Most recently, Congress provided increased funding to 
expand HCBS in the American Rescue Plan. These programs are in 
addition to the HCBS waiver program (42 U.S.C. 1396n(c)), first 
authorized in the Social Security Act in the early 1980s. As a 
result of a combination of these new HCBS programs and authorities 
and the Supreme Court's Olmstead decision in 1999, States have 
expanded HCBS. See, e.g., CMS, ``Long-Term Services and Supports 
Rebalancing Toolkit'' (Nov. 2020), https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf.
    \278\ See new 8 CFR 212.22(a)(3).
---------------------------------------------------------------------------

    In addition, DHS again confirms in this final rule that HCBS are 
not considered long-term institutionalization.
    Comment: Several commenters supported the change in language from 
the 1999 Interim Field Guidance ``institutionalization for long-term 
care at government expense'' to the rule's ``long-term 
institutionalization at government expense,'' because it clarifies that 
short-term residential care for rehabilitation or mental health 
treatment is not included, as well as the statement that long-term 
institutionalization is the only category of Medicaid-funded services 
that DHS would consider in public charge inadmissibility 
determinations.
    One commenter supported adoption of an objective metric for long-
term institutionalization, such as a stay of 30 or more days in a 
nursing facility or other specifically listed type of institutional 
setting. Another commenter suggested that long-term be defined as five 
or more years. Another commenter also stated that if DHS does continue 
to consider long-term institutionalization, it should only consider it 
if it is current and has lasted for at least five years. A commenter 
stated that it is important to define long-term in the rule because to 
one officer it may mean six months and to another six years. A 
commenter, who received support from other commenters on this point, 
stated that they did not support a time-based definition of ``long-
term'' because it is likely to be overly inclusive. They stated that 
DHS should define ``long-term institutionalization'' to refer to 
someone who is permanently residing in an institution, an approach that 
they stated aligns with HHS's recommendation during the 1999 
rulemaking. They stated that HHS defined ``long-term institutionalized 
care'' as ``the limited case of [a noncitizen] who permanently resides 
in a long-term care institution (e.g., nursing facilities) and whose 
subsistence is supported substantially by public funds (e.g., 
Medicaid).'' Another commenter recommended clearly stating that long-
term means uninterrupted, extended periods of stay in an institution. 
One commenter stated that long-term care is hard to define precisely, 
citing an article on the National Institutes of Health website.\279\ 
Several commenters recommended clarifying that ``long-term'' means 
``permanently'' to narrow the definition and limit confusion. One 
commenter thought that a two- or three-tiered medical evaluation is 
more helpful than setting a time limit of ``long-term'' to the 
institutional care.
---------------------------------------------------------------------------

    \279\ Penny Feldman and Robert Kane, ``Strengthening Research to 
Improve the Practice and Management of Long-Term Care,'' The 
Millbank Quarterly (June 2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690214/ (last visited Aug. 18, 2022).
---------------------------------------------------------------------------

    Response: With respect to commenters' suggestions to set a specific 
threshold for long-term institutionalization, DHS appreciates the 
comments that it received on this topic. DHS is declining to adopt a 
specific length of time to define ``long-term'' and is not aware of a 
definitional standard in Medicaid or other benefit programs that would 
support a specific numerical threshold. However, DHS, in collaboration 
with HHS, will develop sub-regulatory guidance to help assess evidence 
of institutionalization. Relevant considerations in determining whether 
a person is institutionalized on a long-term basis may include the 
duration of institutionalization and (where applicable) whether the 
person has been assessed and offered, and has declined, comparable 
services and supports such as HCBS, and availability of such services 
in the geographic area where the individual resides.
    While DHS believes that permanent institutionalization would be the 
most likely to contribute to an inadmissibility determination as part 
of the totality of circumstances, DHS believes that 
institutionalization of indefinite duration, or shorter than indefinite 
duration, may also qualify. As discussed throughout this final rule, 
DHS will take into consideration whether the noncitizen's rights were 
violated because the noncitizen was eligible but was not provided the 
opportunity to receive care through HCBS rather than long-term 
institutionalization. Lastly, DHS is uncertain what the commenter meant 
by a ``two- or three-tiered medical evaluation'' or how such evaluation 
would help DHS determine the likelihood that an individual would become 
long-term institutionalized at government expense. As a result, DHS is

[[Page 55532]]

not making any changes to the final rule based on that comment.
    Comment: One commenter stated that allowing USCIS to incorporate 
into its standard an assessment of whether the institutionalization of 
any given individual was consistent with the Americans with 
Disabilities Act, Olmstead v. L.C., and related authorities for the 
prospect of obtaining immigration relief would create distorted 
incentives and needlessly complicate both areas of law. The commenter 
explained that the courts, not USCIS, are best situated to elevate such 
disputes.
    Response: DHS concluded that considering evidence that a noncitizen 
was institutionalized in violation of their rights is an important 
guardrail in public charge inadmissibility determinations. DHS 
understands that services available to individuals may not be in full 
compliance with disability rights laws, depending on their place of 
residence. For that reason, individuals who might otherwise receive 
HCBS are institutionalized at government expense instead. Given this, 
DHS has expressly stated in the regulatory text that DHS will consider 
evidence submitted by the applicant that their institutionalization 
violates Federal law, in the totality of the circumstances, and has 
updated the instructions for Form I-485 to inform applicants that they 
should submit such evidence.
    Comment: Several commenters recommended DHS not include ``long-term 
institutionalization'' in the definition of ``likely at any time to 
become a public charge.'' One commenter stated that long-term 
institutionalization is a factor that only applies to people with 
disabilities. The commenter stated that if long-term 
institutionalization is included, they support the limitations that DHS 
has proposed and that they urge as narrow of a definition as possible 
that places minimum weight on past institutionalization. Some 
commenters further stated that the inclusion of long-term 
institutionalization discriminates against people with disabilities and 
older people and disproportionately affects people of color, with one 
commenter stating that considering long-term institutionalization 
negatively in a public charge inadmissibility determination is at odds 
with DHS's statement that disability will not alone be a sufficient 
basis to determine whether a noncitizen is likely to become a public 
charge. One commenter stated that DHS should not consider Medicaid 
benefits, including the provision of HCBS, and disagreed that long-term 
institutionalization is a suitable exception in determining whether one 
is likely to become a public charge. The commenter added that if DHS 
does continue to consider long-term institutionalization, it should do 
so only if DHS can demonstrate that the individual had a meaningful, 
affordable, and available option, known to them, to receive HCBS 
instead of institutionalization; and that institutionalization is 
current and has lasted for at least 5 years. One commenter stated that 
including long-term institutionalization at government expense would 
continue to discriminate against people with developmental disabilities 
by making them more likely to be found to be public charges since only 
people with disabilities and older adults experience long-term 
institutionalization. One commenter stated that including long-term 
institutional care in a public charge inadmissibility determination 
contributes to substantial opportunity costs that are borne by 
immigrant families, particularly women, who must then provide the 
needed care themselves, citing a study that found family caregivers who 
leave the workforce to care for a family member experience an average 
of $303,880 in lost income and benefits over their lifetime. The 
commenter remarked that including long-term institutional care financed 
by Medicaid likely would disproportionately and adversely impact women 
economically and have ripple effects throughout family structures and 
help perpetuate disparities across American society.\280\
---------------------------------------------------------------------------

    \280\ See Peter Arno et al., ``The MetLife Study of Caregiving 
Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring 
for Their Parents,'' MetLife Mature Market Institute (June 2011), 
https://www.caregiving.org/wp-content/uploads/2011/06/mmi-caregiving-costs-working-caregivers.pdf. The study estimated ranges 
from a total of $283,716 for men to $324,044 for women, or $303,880 
on average. The average figure breaks down as follows: $115,900 in 
lost wages, $137,980 in lost Social Security benefits, and 
conservatively $50,000 in lost pension benefits.
---------------------------------------------------------------------------

    Response: DHS appreciates these comments but is declining to omit 
long-term institutionalization from consideration in this final rule. 
DHS disagrees that the provision discriminates on the basis of 
disability, race, or any other protected ground. In a decision 
affirming a preliminary injunction against the 2019 Final Rule, the 
Seventh Circuit wrote that the public charge statute's ``health'' 
criterion and the Rehabilitation Act ``can live together comfortably, 
as long as we understand the `health' criterion in the INA as referring 
to things such as contagious disease and conditions requiring long-term 
institutionalization, but not disability per se.'' \281\ This rule is 
not inconsistent with that view.
---------------------------------------------------------------------------

    \281\ 962 F.3d 208, 228 (7th Cir. 2020).
---------------------------------------------------------------------------

    As stated previously, considering the past or current receipt of 
long-term institutionalization at government expense is a longstanding 
element of the public charge inadmissibility analysis. In DHS's view, 
this scenario is at the core of the public charge statute. Past or 
current receipt of long-term institutionalization at government expense 
can be predictive of future dependence on those same benefits. However, 
such consideration is not alone dispositive. In addition, as indicated 
previously, DHS will take into consideration any credible and probative 
evidence that an individual was institutionalized in violation of 
disability laws.
    Comment: Another commenter stated that DHS should not include long-
term institutionalization in the public charge assessment. They stated 
that the preamble to the 1999 proposed regulations lists ``the 
historical context of public dependency when the public charge 
immigration provisions were first enacted more than a century ago'' as 
support for the agency's proposed definition of public charge. However, 
they stated that modern long-term institutionalization is unlike the 
turn of the century almshouses. Specifically, the commenter stated that 
while only a small portion of the population resided in institutional 
settings at that time, today long-term institutionalization is more 
widespread. They also stated their view that the need for long-term 
care is expected to grow over time as the population ages and medical 
advances increase the lifespans of people with disabilities or health 
challenges.\282\ Commenters stated that while approximately 60 million 
Americans receive taxpayer-funded health care through Medicare, the 
program does not cover the costs of custodial long-term care. As a 
result, the commenters said, Medicaid is the primary payer for long-
term care in the United States, covering over 60 percent of nursing 
home residents.\283\ Given its pervasiveness, the commenters wrote, 
Medicaid funding for long-term care is more like

[[Page 55533]]

a general public health program than evidence of an individual's 
dependency.
---------------------------------------------------------------------------

    \282\ See Administration for Community Living, ``How Much Care 
Will You Need?,'' https://acl.gov/ltc/basic-needs/how-much-care-will-you-need (last modified Feb. 18, 2020) (estimating that almost 
70 percent of people turning 65 will require long-term services and 
supports, with 37 percent requiring care outside of their own homes) 
(last visited Aug. 18, 2022).
    \283\ Medicaid and CHIP Payment and Access Commission, ``Nursing 
facilities: Long-Term Services and Supports,'' https://www.macpac.gov/subtopic/nursing-facilities/ (last visited Aug. 18, 
2022).
---------------------------------------------------------------------------

    Response: While DHS acknowledges that more individuals reside in 
institutional facilities today than at the turn of the century, the 
population of the United States is also much larger, and the portion of 
the overall population residing in such facilities remains very small. 
The study cited by the commenter found 84,108 ``paupers'' residing in 
almshouses in 1910,\284\ out of a total population of 92,228,496, or 
0.09%.\285\ By contrast, the 2020 Census found 1,697,989 \286\ 
individuals residing in nursing facilities/skilled-nursing facilities, 
or other institutional facilities (excluding correction facilities for 
adults and juvenile facilities) out of a total population of 
331,449,281, or 0.5%.\287\ While DHS acknowledges that relatively 
larger percentage of U.S. residents live in nursing facilities or other 
institutional facilities today than the population residing in 
almshouses in 1910, that percentage is still very small.
---------------------------------------------------------------------------

    \284\ Department of Commerce, Bureau of the Census, Bulletin 
120, ``Paupers in Almshouses: 1910'' (1914), at 46, https://www2.census.gov/prod2/decennial/documents/03322287no111-121ch7.pdf 
(last visited July 21, 2022).
    \285\ United States Census Bureau, ``History Through The 
Decades: 1910 Fast Facts,'' https://www.census.gov/history/www/through_the_decades/fast_facts/1910_fast_facts.html (last visited 
July 21, 2022).
    \286\ United States Census Bureau, ``Group Quarters Population 
by Major Group Quarters Type'' (Aug. 2021), https://data.census.gov/cedsci/table?q=group%20quarter&tid=DECENNIALPL2020.P5 (last visited 
July 21, 2022).
    \287\ United States Census Bureau, ``Apportionment Population, 
Resident Population, and Overseas Population: 2020 Census and 2010 
Census'' (Apr. 26, 2021), https://www2.census.gov/programs-surveys/decennial/2020/data/apportionment/apportionment-2020-tableA.pdf 
(last visited July 21, 2022).
---------------------------------------------------------------------------

    As this commenter and many others have noted, the United States has 
made significant advances both for older adults and for individuals 
with disabilities, since the publication of the 1999 Interim Field 
Guidance. This is reflected in the decreasing population (and 
percentage of the overall population) residing in such facilities 
during that time period. If, as the commenter states, the need for 
certain services is growing over time ``as the population ages and 
medical advances increase the lifespans of people with disabilities or 
health challenges,'' Census data shows that U.S. residents are 
increasingly receiving such services outside of institutional settings. 
In the 2000 Census, 1,954,740 \288\ individuals resided in nursing 
homes or other institutional facilities, out of a total population of 
281,421,906,\289\ or 0.7%. As a comparison to the 2020 figures above 
shows, even with an increasing population, an aging population, and the 
medical advances noted by the commenter, both the total number and 
percentage over the overall population residing in such facilities fell 
over that two-decade period.
---------------------------------------------------------------------------

    \288\ United States Census Bureau, ``Population in Group 
Quarters by Type, Sex and Age, for the United States: 2000'' (Nov. 
10, 2003), https://www2.census.gov/programs-surveys/decennial/2000/phc/phc-t-26/tab01.pdf (last visited July 21, 2022).
    \289\ United States Census Bureau, ``Resident Population of the 
50 States, the District of Columbia, and Puerto Rico: Census 2000'' 
(Dec. 2000), https://www2.census.gov/programs-surveys/decennial/2000/phc/phc-t-26/tab01.pdf (last visited July 21, 2022).
---------------------------------------------------------------------------

    Since the population residing in nursing facilities or other 
institutional settings (both overall and as a percentage of the total 
population) remains small and has decreased over the past two decades, 
even if Medicaid is the primary source of funding for 62 percent of 
nursing home residents,\290\ such a small percentage of the overall 
population is residing in nursing homes and institutions providing 
long-term care that Medicaid funding for long-term care cannot be said 
to be ``a general public health program.'' Long-term 
institutionalization at government expense remains rare among the U.S. 
population as a whole, and given DHS's conclusion that it is indicative 
of primary dependence on the government for subsistence, DHS declines 
to exclude long-term institutionalization at government expense from 
consideration in public charge inadmissibility determinations.
---------------------------------------------------------------------------

    \290\ Medicaid and CHIP Payment and Access Commission, ``Nursing 
facilities: Long-Term Services and Supports,'' https://www.macpac.gov/subtopic/nursing-facilities/ (last visited Aug. 18, 
2022).
---------------------------------------------------------------------------

    Comment: One commenter stated that there is no bright line between 
long-term and short-term institutionalization for rehabilitation 
purposes. The commenter wrote that many people return to their 
community after being institutionalized for long-term care, but their 
ability to do so can depend on the availability of HCBS, other 
resources in their area, their health status, and their access to 
rehabilitative services while in long-term care. As they and other 
commenters have noted, the availability of alternatives to 
institutionalization varies greatly by geography and a person's 
disability, age, and wealth. The commenter stated that these factors 
also affect the availability of other resources needed to transition 
from long-term care into the community.\291\ A person's likelihood of 
transitioning from long-term care back to the community can also depend 
on the characteristics of the long-term care facility.\292\ The 
commenter stated that DHS should not penalize immigrants for the 
structural deficiencies of the country's healthcare system. Finally, 
the commenter wrote that inviting officers to forecast whether an 
individual is likely to use government programs to pay for future long-
term institutionalization is particularly speculative given the 
potential for medical advances and changes in the healthcare delivery 
system.
---------------------------------------------------------------------------

    \291\ The commenter referenced Julie Robinson et al., 
``Challenges to community transitions through Money Follows the 
Person,'' 55 Health Servs. Res. 3 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7240761/ (last visited Aug. 16, 
2022).
    \292\ The commenter cited Amanda Holup et al., ``Community 
Discharge of Nursing Home Residents: The Role of Facility 
Characteristics,'' 51 Health Servs. Res. 2 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4799895/ (last visited Aug. 16, 
2022).
---------------------------------------------------------------------------

    Response: As discussed in the NPRM, DHS will not consider HCBS in 
public charge inadmissibility determinations. DHS will, however, 
consider evidence that individuals were institutionalized in violation 
of their rights. Where such evidence is credible, it will have the 
tendency of offsetting evidence of current or past 
institutionalization. DHS acknowledges that there may be limitations on 
the resources and services available to individuals, and that many 
factors could have an impact on whether an individual is 
institutionalized for long-term care or receives care through HCBS.
    With respect to commenter requests to exclude from public charge 
inadmissibility determinations the consideration of past or current 
long-term institutionalization, particularly focusing on the prevalence 
of nursing home care for older adults, and the impacts on adult 
children who are caregivers, DHS is not adopting this request. As noted 
above, long-term institutionalization at government expense is at the 
core of the public charge statute. Although some individuals may 
ultimately enter institutional care at government expense because of 
problems associated with local health care systems, at bottom, this 
type of benefit tracks most closely to the almshouse concept closely 
associated with the public charge ground of inadmissibility. DHS 
acknowledges the difficulties associated with predicting that an 
individual will be institutionalized in the future, let alone the 
difficulties associated with predicting the funding source for such 
institutionalization. DHS will ensure that officers make predictive 
public

[[Page 55534]]

charge inadmissibility determinations on the basis of available 
evidence to the extent appropriate, and without unduly speculating as 
to an applicant's future circumstances.
    Comment: Several commenters supported including long-term 
institutionalization at government expense in the public charge 
inadmissibility determination, with one commenter reasoning that DHS 
should account for immigrants who may come to the United States for 
free medical care. Another commenter similarly emphasized that places 
like nursing homes may take advantage of the use of Medicaid, and 
policies should focus on managing that concern.
    Response: DHS agrees that it should continue to consider long-term 
institutionalization at government expense. DHS does not agree that it 
should include other forms of Medicaid or other healthcare coverage at 
government expense. With respect to comments about Medicaid abuse, DHS 
notes that it does not have authority to regulate how Medicaid is used 
in nursing homes. DHS is simply considering in public charge 
inadmissibility determinations whether or not the noncitizen has been, 
is currently, or is likely at any time to be institutionalized long-
term at government expense. This approach is consistent with long-
standing interpretation of section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4).
    Comment: Many commenters stated that they supported DHS's decision 
not to consider use of HCBS by a noncitizen in a public charge 
inadmissibility determination. One commenter recommended DHS explicitly 
clarify in the preamble of the final rule and in sub-regulatory 
guidance that it will not consider HCBS in a public charge 
inadmissibility determination. One commenter cited the material 
differences between the use of HCBS and reliance on institutional long-
term care, as well as the public health interest of reducing the spread 
of infection in congregate settings and the national economic interest 
of reducing the cost of long-term care and promoting individuals' 
independence, and recommended DHS include clarification in the preamble 
of the rule and sub-regulatory guidance and policies for adjudicating 
officers to ensure that they will not consider Medicaid HCBS in a 
public charge inadmissibility determination. The commenter also 
requested clarification in the preamble that HCBS are not included.
    Response: DHS agrees with commenters that HCBS and Medicaid 
generally (with the exception of long-term institutionalization at 
government expense) should not considered in public charge 
inadmissibility determinations. DHS is retaining this clarification in 
this final rule. DHS intends to also retain this clarification in any 
sub-regulatory guidance issued for officers and the public.
    Comment: Some commenters stated that there were issues with the 
inclusion of long-term institutionalization at government expense and 
the exclusion of HCBS. One commenter stated that due to an Indiana law 
that requires a person to qualify for SSI in order to remain in HCBS 
programs, the rule will negatively affect every person receiving HCBS 
who is 18 years or older in Indiana. Other commenters also pointed out 
that studies have found there is unequal minority access to HCBS, which 
adds to another layer of bias to which this community is subject, and 
stated that DHS should not punish immigrants with disabilities because 
their State does not offer HCBS. Another commenter stated that, if the 
rule does not exclude all of Medicaid, older immigrants may be afraid 
to access any type of HCBS or other health support. One commenter 
disagreed with the inclusion of long-term institutionalization unless 
DHS can demonstrate that the individual had a meaningful, affordable, 
and available option to receive HCBS instead and that the 
institutionalization was current. Some commenters similarly stated that 
institutionalization for long-term care at government expense should 
not be a barrier to immigration unless DHS can demonstrate that the 
individual had access to HCBS rather than institutionalization. The 
commenters said that DHS should require officers to assess the 
availability of alternatives to institutionalization, including waiting 
lists for HCBS, average time to be placed into HCBS, and availability 
of transition services. A commenter appreciated DHS's clarification in 
the preamble that HCBS are not to be included. The commenter stated 
that older adults receive HCBS from a variety of programs, including 
Medicaid, Medicare, and Older Americans Act programs.
    Response: As noted above, consistent with the NPRM, DHS will 
consider evidence that long-term institutionalization of an individual 
was in violation of federal law. This would include circumstances where 
the individual has experienced long-term institutionalization due to 
lack of HCBS availability, and may include consideration of evidence 
regarding HCBS waiting lists, States' compliance with disability rights 
laws, etc. DHS declines, however, to shift the burden to itself to 
demonstrate that long-term institutionalization was not in violation of 
an individual's rights because the applicant for admission or 
adjustment of status has the burden of proof to establish eligibility 
for the immigration benefit sought. With respect to the comment 
regarding eligibility for SSI and HCBS, if a noncitizen is receiving 
SSI, then they are receiving public cash assistance for income 
maintenance. While their receipt of HCBS would not be considered in a 
public charge inadmissibility determination, DHS would consider their 
receipt of SSI.
    Comment: A few commenters suggested that DHS include guidance 
directing the consideration of the role an individual's family would 
have in overseeing the individual's care, as well as the impact the 
denial of an individual's application for permanent resident status 
based on a public charge inadmissibility determination would have on a 
family.
    Response: DHS will consider whether the noncitizen is likely at any 
time to become primarily dependent on the government for subsistence by 
taking into consideration the totality of the circumstances. Where 
there is evidence that a noncitizen has a medical condition that 
impacts their ability to care for themselves, DHS can also take into 
consideration whether the noncitizen is being cared for and/or 
supported by their family or sponsor(s). DHS does not believe that it 
should take into consideration the impact of an inadmissibility 
determination on a family because the impact on the family may not make 
a noncitizen more or less likely to become primarily dependent on the 
government for subsistence. However, in the context of the assets, 
resources, and financial status factor, DHS is taking into 
consideration the household assets and resources, including income, 
rather than solely one individual's. DHS acknowledges that it would 
take into consideration insufficient assets and resources that may be a 
direct result of, for example, a member of a household no longer being 
able to provide financial support because they must depart the United 
States due to an inadmissibility finding. In addition, and similar to 
the approach that DHS took in the 2019 Final Rule, DHS could take into 
consideration in the totality of the circumstances that a noncitizen in 
the household subject to the public charge ground of inadmissibility is 
a primary caregiver to another member of the household and while not 
contributing income to the household is providing an in-kind 
contribution to the household. However,

[[Page 55535]]

``impact on the family'' is not a relevant factor in the public charge 
inadmissibility determination, as the assessment is related to the 
noncitizen's likelihood at any time to become a public charge.
    Comment: One commenter supported the rule's provision that use of 
Medicaid alone does not render an individual inadmissible on the public 
charge ground, because the Department of Health and Human Services has 
stated that Medicaid ``does not provide assistance to meet basic 
subsistence needs such as food or housing, with the exception of long-
term institutionalization, and as such the receipt of Medicaid is not 
indicative of a person being or likely to become primarily dependent on 
the government for subsistence.'' Another commenter stated that the 
rule's anticipated positive effect on healthcare enrollment, including 
in Medicaid and other publicly funded and administered health insurance 
programs, will leave the States in a better position to assist public 
health and relief efforts during COVID-19 and future public health 
crises. This increased access to healthcare, as well as to nutritional 
services, will reduce disruptions in benefits and result in long-term 
net benefits for States and their residents, according to the 
commenter. The commenter also noted the rule will alleviate 
administrative costs to State benefits-granting agencies, which were 
forced to devote scarce time and resources to attempt to counteract the 
fear and confusion caused by the 2019 Final Rule. Another commenter 
specifically pointed to the positive effect Medicaid coverage has with 
regular check-ups and access to prescription medications and ultimately 
mortality rates. This commenter cited that deferring or delaying care 
will often result in increased rates of poverty and housing instability 
and reduced rates of productivity and educational attainment, and that 
the rule will help alleviate the apprehension of noncitizens from 
enrolling in Medicaid and help maintain the financial viability of the 
emergency care safety net.
    Response: DHS agrees that enrollment in Medicaid, compared with 
those benefits considered under this rule, is less indicative of 
primary dependence on the government for subsistence, with the 
exception of long-term institutionalization at government expense. DHS 
agrees that Medicaid and other public health services provide many 
socially beneficial services, and also play an important role in public 
health, as evidenced by the important role it plays in combatting the 
spread and effects of COVID-19. Therefore, DHS is not considering the 
receipt of Medicaid in this final rule, with the exception of Medicaid-
funded long-term institutionalization at government expense.
    Comment: Many commenters, including a group of thirteen United 
States Senators, stated that DHS should exclude all Medicaid and 
Medicare coverage, including long-term institutionalization, from 
consideration. An association wrote that its members were over 300 
hospitals that provide a disproportionate share of the nation's 
uncompensated care--$56 million in uncompensated care annually. The 
commenter wrote that the 2019 Final Rule hampered the public health 
response to COVID-19 and that patients forgoing public insurance 
programs and seeking care at hospitals without insurance strained the 
tight budgets of essential hospitals. The commenter wrote that the 
Medicaid program is an integral part of the American health care 
system, providing coverage of primary care, prenatal care, mental 
health and substance misuse services, specialty care, prescription drug 
coverage, and a variety of wraparound services. The commenter also 
stated that Medicaid also is a critical source of coverage for 
children, paying for routine check-ups, oral and vision care, and 
treatment for chronic conditions. Citing studies, the commenter stated 
that care reimbursed by Medicaid drives improved outcomes; reduces 
emergency department use and unnecessary hospitalizations; and helps 
decrease infant and child mortality rates.\293\ The commenter also 
stated that the benefits of Medicaid go beyond health care--individuals 
who receive Medicaid go on to become productive members of the 
workforce and realize better employment and educational attainment, 
thus strengthening the economy.
---------------------------------------------------------------------------

    \293\ Laura Wherry et al., ``Childhood Medicaid Coverage and 
Later Life Health Care Utilization'' (Feb. 2015), https://www.nber.org/papers/w20929 (last visited July 21, 2022). Andrew 
Goodman-Bacon, ``Public Insurance and Mortality: Evidence from 
Medicaid Implementation'' (Nov. 2015), http://www-
personal.umich.edu/~ajgb/medicaid_ajgb.pdf (last visited July 21, 
2022).
---------------------------------------------------------------------------

    Several commenters, one citing various studies, wrote about the 
chilling effect of including any Medicaid, and stated that families may 
forgo accessing necessary healthcare because of fear of affecting the 
whole family's immigration status.\294\ A commenter said that insurance 
coverage helps keep families stable and leads to a vibrant and strong 
local economy. One commenter wrote about the heavy burden State 
benefit-granting agencies will be put under to fill gaps in Federal 
benefits for long-term institutionalization and care. Commenters also 
stated that many nursing home residents have qualified for Medicaid 
only after having first exhausted the maximum time covered by Medicare, 
any private long-term care insurance, and their savings, and that DHS 
should not penalize older adults who have no alternative to 
institutionalization for the structural limitations of the U.S. 
healthcare system. One commenter said there would be increased hospital 
costs and unsustainable financial burdens on healthcare systems if 
Medicaid is not extended to all people, not just those eligible under 
current immigration laws. Some commenters also stated that there is a 
growing number of older adults with conditions that require some level 
of care, and that who becomes institutionalized and for how long has 
changed over the years, with the result that substantial portions of 
the U.S. population will likely end up in an institution on a long-term 
basis, such as in a nursing facility, at some point in their lifetime. 
Commenters also remarked upon the variability of availability of 
alternatives to institutionalization by geography, disability, age, and 
wealth.
---------------------------------------------------------------------------

    \294\ Randy Capps et al., ``Anticipated `Chilling Effects' of 
the Public-Charge Rule Are Real: Census Data Reflect Steep Decline 
in Benefits Use by Immigrant Families,'' Migration Policy Institute 
(Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (last visited Aug. 16, 
2022). HHS, Assistant Secretary for Planning and Evaluation, 
``Caring for Immigrants: Health Care Safety Nets in Los Angeles, New 
York, Miami, and Houston'' (Jan. 31, 2001), https://aspe.hhs.gov/reports/caring-immigrants-health-care-safety-nets-los-angeles-new-york-miami-houston#main-content (last visited Aug. 18, 2022). 
Hamutal Bernstein et al., ``Immigrant Serving Organizations' 
Perspectives on the COVID-19 Crisis,'' Urban Institute (Aug. 2020), 
https://www.urban.org/research/publication/immigrant-serving-organizations-perspectives-covid-19-crisis (last visited Aug. 17, 
2022).
---------------------------------------------------------------------------

    Commenters also stressed the importance of not including Medicaid 
in a public charge inadmissibility determination, with one stating that 
discouraging access to proper mental health care may put a patient at 
risk to themselves or others and punishes these people for having 
legitimate illnesses. Another commenter stated that access to Medicaid 
and other health care programs provide a critical lifeline for 
survivors of domestic violence, sexual assault, and human trafficking 
to treat significant health consequences of abuse, as healthcare is a 
benefit that many survivors cannot afford. Commenters stated that the 
definition of public charge should explicitly state that any form of 
Medicaid and other

[[Page 55536]]

health insurance and health care services will not be considered for 
public charge inadmissibility determinations, particularly with an 
extension of Medicaid and CHIP eligibility for pregnant and postpartum 
noncitizens. One commenter stated that Medicaid covers almost half of 
childbirths in the United States, and agreed that including Medicaid in 
the public charge inadmissibility determination would contribute to a 
chilling effect where immigrants of all statuses are wary of seeking 
the maternity care they need.
    One commenter cited a Kaiser Family Foundation finding that in the 
United States one in three people turning 65 will require nursing 
facility care in their lives. One commenter stated that DHS should 
recognize that including long-term institutionalization is particularly 
outdated, given the much larger and different role than publicly 
founded almshouses played in the early days of the public charge 
doctrine. One commenter also remarked that programs like Medicaid allow 
intergenerational households the ability to earn income and contribute 
to their communities without placing their loved ones at risk of going 
without care for fear of immigration consequences. Commenters added 
that an inclusion of long-term care creates confusion about the receipt 
of Medicaid more broadly and it would be far easier and clearer to 
exclude all Medicaid coverage completely. One commenter also remarked 
that reducing access to healthcare for parents will subsequently reduce 
access to their children, putting families at greater risk of medical 
debt, unpaid bills, and bankruptcy. Commenters stated that including 
any form of Medicaid coverage in public charge inadmissibility 
determinations will introduce confusion for immigrants and have 
measurable chilling effects, and that immigrant women, who are more 
likely to live in poverty than immigrant men or U.S. citizens, would be 
disproportionately harmed by the resulting chilling effects. One 
commenter stated that DHS should not put access to Medicaid at risk or 
discourage enrollment in any programs that serve to keep older adults 
and people with disabilities healthy, together with their families, and 
integrated in their communities. The commenter stated that Medicaid is 
particularly critical to helping people with disabilities, including 
older adults, live in the community because it covers services and 
supports that private insurance does not, such as personal care, 
transportation, and home modifications. The commenter stated that they 
are concerned that if the rule does not exclude all of Medicaid that 
older immigrants may be nonetheless afraid to access any kind of HCBS 
or other health support.
    Response: DHS emphasizes that it will generally not consider non-
cash public benefits, including government-funded healthcare coverage 
such as Medicaid or Medicare. The only healthcare service included in 
the public charge inadmissibility determination is long-term 
institutionalization at government expense (including when funded by 
Medicaid). The regulatory text clearly identifies the only benefits 
that DHS considers both for the purposes of ``defining likely at any 
time to become a public charge'' \295\ and for making a public charge 
determination.\296\ Moreover, DHS has provided regulatory text that 
explains the types of institutionalizations that do not qualify as 
long-term institutionalization at government expense as defined in 8 
CFR 212.21--such as short-term rehabilitation and imprisonment. DHS is 
committed to mitigating chilling effects and intends to also make this 
point clear in guidance and any communication materials stemming from 
this final rule in order to ensure that the public understands that DHS 
does not consider other forms of Medicaid in public charge 
inadmissibility determinations.
---------------------------------------------------------------------------

    \295\ See 8 CFR 212.21(a).
    \296\ See 8 CFR 212.21(b) and (c).
---------------------------------------------------------------------------

    With respect to long-term institutionalization in a nursing home 
for older individuals, DHS is aware of the prevalence of nursing home 
care for older individuals, both native-born and intending immigrants 
who reach a certain age. While the public charge inadmissibility 
determination is based on the statutory language ``likely at any 
time,'' DHS acknowledges that the further out in time an event may 
occur, the more difficult it is for officers to determine whether such 
an event is likely to occur. For example, where an applicant for 
admission or adjustment of status is in the prime of their life, 
healthy, and able to support themself, DHS is unlikely to determine 
that the noncitizen is inadmissible because they may need long-term 
nursing home care at government expense at a later point in their life. 
However, where a noncitizen is older, has one or more serious health 
conditions, and limited resources, DHS may conclude that such 
noncitizen is likely at any time to become primarily dependent on the 
government for subsistence, based in part on the likelihood that the 
noncitizen may need nursing home care at government expense.
    Comment: One commenter suggested that DHS create an internal 
structure to expedite appeals and allow families an easier way to 
clarify the status of their loved ones who require long-term services 
and supports for noncitizens denied based on a public charge 
inadmissibility determination.
    Response: DHS is not adopting the proposal to create a special 
appellate process for public charge inadmissibility determinations. 
Although not specific to this rule, in cases in which an applicant has 
not submitted all required initial evidence or the evidence submitted 
does not demonstrate eligibility, USCIS has the discretion to issue a 
Request for Evidence (RFE) or Notice of Intent to Deny (NOID) with 
respect to any basis for ineligibility, including the public charge 
ground of inadmissibility, in accordance with 8 CFR 103.2(b)(8) and 
USCIS policy in regard to RFEs, NOIDs, and denials.
    DHS notes that there is no administrative appeal available from a 
denial of an application for adjustment of status issued by USCIS,\297\ 
but an applicant may file a motion to reopen/reconsider as set forth in 
8 CFR 103.5, and USCIS may certify any such case to the Administrative 
Appeals Office (AAO) if it involves an unusually complex or novel issue 
of law or factor.\298\ If the noncitizen is placed in removal 
proceedings, they can renew the denied adjustment of status application 
before an immigration judge.\299\ With respect to inadmissibility 
determinations made by CBP, if found inadmissible, CBP will generally 
place the individual in removal proceedings in which the individual can 
seek relief or protection from removal.
---------------------------------------------------------------------------

    \297\ 8 CFR 245.2(a)(5)(ii).
    \298\ 8 CFR 103.4(a)(1).
    \299\ 8 CFR 245.2(a)(5)(ii).
---------------------------------------------------------------------------

    Comment: One commenter stated that including institutionalization 
for long-term care financed by Medicaid in a public charge 
inadmissibility determination likely contributes to uncompensated care 
costs currently borne by providers relating to medication non-adherence 
and accidental falls. The commenter reasoned that long-term 
institutionalization helps patients that are vulnerable to missing 
their medications and accidental falls by having skilled professionals 
take care of them and that, if they fear immigration consequences, 
immigrant families may avoid this professional care.

[[Page 55537]]

    Response: DHS agrees with commenters that long-term 
institutionalization at government expense provides relevant and 
important services to individuals who need such care. Nonetheless, DHS 
is declining to exclude past or current institutionalization from 
consideration, or from the definition of ``likely at any time to become 
a public charge.'' As indicated elsewhere in this final rule, DHS 
believes that past or current institutionalization at government 
expense, together with other factors, can be indicative of future 
primary dependence on the government for subsistence. DHS recognizes 
that individuals and families may need to make decisions regarding 
reliance on public benefits' impact on their immigration status; 
however, DHS does not consider excluding the fact of such 
institutionalization to be justified.
    Comment: Some commenters stated that if DHS decides to continue to 
consider long-term institutionalization, it should clarify that 
involuntary civil commitment in criminal proceedings is excluded from 
its definition. Commenters also suggested to exclude involuntary 
observation or commitment to a civil psychiatric facility pursuant to a 
judicial order pending or after a finding of incompetence to stand 
trial in a criminal proceeding for lack of responsibility for criminal 
conduct by reason of mental illness. The commenter stressed that the 
standards and purposes of civil commitment in criminal proceedings 
differ from those of voluntary admission to a care facility and DHS 
should make clear to officers that they should not equate the two. 
Another commenter similarly supported the rule's clarification that 
imprisonment for conviction of a crime would not be considered in a 
public charge inadmissibility determination.
    Response: DHS notes that involuntary observation or commitment to a 
psychiatric facility pursuant to judicial order pending or after a 
finding of incompetence to stand trial in a criminal proceeding may be 
considered in the totality of the circumstances under the health factor 
if the underlying condition is identified on Form I-693, and DHS is not 
adding an exception for these circumstances. However, commitment to a 
facility, rather than prison, resulting from a criminal proceeding 
would not be considered long-term institutionalization at government 
expense. Rather, under the health factor, DHS could take into 
consideration the underlying medical/psychiatric condition in the 
totality of the circumstances when making a determination regarding 
whether the noncitizen is likely to be primarily dependent on the 
government in the future. In addition, DHS notes that criminal activity 
may separately subject a noncitizen to criminal grounds of 
inadmissibility, even if the noncitizen is determined not likely to 
become a public charge at any time in the future.
    DHS is not taking into consideration current or past incarceration 
for a crime in a public charge inadmissibility determination, but notes 
that the fact of such incarceration may lead the noncitizen to be 
excluded and/or removed from the United States based on the criminal 
inadmissibility standards.
    Comment: One commenter recommended that due to historical and 
ongoing racism and xenophobia in the United States health care system 
and health policies resulting in low-income immigrant women facing high 
rates of maternal morbidity, all receipt of Medicaid, including 
Medicaid for long-term institutionalization, by pregnant people be 
excluded from a public charge inadmissibility determination. The 
commenter stated that pregnant individuals have significantly higher 
instances of COVID-19 hospitalization and case fatality than similarly 
aged adults and are at risk of severe or critical disease and preterm 
birth, complications that are heightened for low-income immigrant 
women. The commenter also recommended Medicaid use, including Medicaid 
for long-term institutionalization, for children be excluded from a 
public charge inadmissibility determination because childhood 
institutionalization is not an indicator of long-term 
institutionalization and reliance on the government, and because COVID-
19 has also affected children, with hospitalization rates especially 
high for children under 5 who were not at the time of the comment 
eligible for vaccinations. Another commenter similarly stated that DHS 
should exclude Medicaid for institutional long-term care for children 
because Medicaid supports many children with special health care needs, 
and Medicaid and CHIP cover almost half of all children in the United 
States with special health needs, children who are more likely to be 
low-income, from marginalized communities, and younger than children on 
private insurance only. The commenter stated that considering 
children's use of Medicaid for long-term institutionalization is likely 
to discriminate against children with disabilities and children from 
marginalized communities. The commenter expressed concern that allowing 
any type of Medicaid coverage to be included in the rule will cause 
confusion and perpetuate the chilling effect caused by the 2019 Final 
Rule. The commenter noted that it is also important to realize that not 
all children who receive long-term care may require it into adulthood, 
and that considering its use would discriminate against children with 
disabilities. One commenter also stated that many older adults and 
individuals with disabilities rely on Medicaid for long-term care, and 
recommended that DHS exclude any type of Medicaid benefit from 
consideration because it discriminates against this population. The 
commenter also stated that it is difficult to provide clear messages to 
people who need Medicaid now that their use of Medicaid for non-
institutional purposes will not be used to indicate that they will rely 
on Medicaid should they need long-term care in the future.
    Response: DHS is not excluding past or current long-term 
institutionalization from consideration in this final rule, nor is DHS 
adding exclusions for pregnant individuals, children, or older adults. 
DHS has made clear that considering any receipt of public benefits, 
including long-term institutionalization at government expense, is not 
alone dispositive in determining whether a noncitizen is likely at any 
time to become primarily dependent on the government for subsistence. 
Instead, DHS will perform a totality of the circumstances analysis, and 
will also look at the recency and duration of such long-term 
institutionalization. In addition, in the NPRM DHS distinguished long-
term institutionalization at government expense from periodic or 
intermittent stays in an institution. Additionally, receipt of Medicaid 
for the purpose of obtaining preventive services or treatment for 
COVID-19 will not be considered under this final rule. Finally, as 
indicated in the NPRM, the population of individuals who are both 
subject to the public charge ground of inadmissibility and 
institutionalized for long-term care at government expense is 
anticipated to be very small.
    With respect to the commenter's assessment that inclusion of long-
term institutionalization at government expense will discriminate 
against children and individuals from low-income, marginalized 
communities, DHS notes that Medicaid, for example, provides long-term 
institutionalization even for wealthier individuals if they are 
determined to be ``medically needy''

[[Page 55538]]

through spend-down programs.\300\ In addition, given the purpose and 
history of the public charge ground of inadmissibility, DHS is not able 
to exclude long-term institutionalization at government expense from 
consideration, given that such institutionalization can provide the 
most probative evidence of likely future primary dependence on the 
government for subsistence. That said, and as discussed throughout this 
final rule, such past or current institutionalization will be taken 
into account in the totality of the circumstances. With respect to the 
institutionalization of children, DHS notes that it can and will 
consider in the totality of the circumstances any evidence supplied by 
the applicant that the child's condition is not permanent, or can be 
managed through HCBS, rather than long-term institutionalization, as 
well as any evidence that the child was or is institutionalized in 
violation of their rights.
---------------------------------------------------------------------------

    \300\ See Letty Carpenter, ``Medicaid eligibility for persons in 
nursing homes,'' 10 Health Care Financing Review 2, 67-77 (Winter 
1988), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4192916/pdf/hcfr-10-2-67.pdf (last visited Aug. 16, 2022) (``Basically, there is 
no absolute upper limit on the amount of income that a medically 
needy applicant can start with. Anyone who is otherwise eligible 
(e.g., who belongs to one of the groups that the State has chosen to 
cover and whose assets are within allowable ceilings) can 
potentially qualify, provided their medical expenses are high 
relative to their income . . . In the process known as spend down, a 
medically needy person establishes eligibility once income, after 
deducting expenses the person has incurred for medical or remedial 
services, has been reduced to welfare-related thresholds. In 
spending down, the medically needy are assumed to use income in 
excess of these thresholds to pay their medical bills, including 
nursing home bills.'').
---------------------------------------------------------------------------

    While DHS is concerned about chilling effects that might have 
resulted from the 2019 Final Rule and has taken considerable efforts to 
reduce or reverse such chilling effects, DHS believes that the policy 
contained in this final rule faithfully administers the public charge 
ground of inadmissibility while taking care to avoid potential chilling 
effects that could arise as a result of the policy reflected in this 
final rule. DHS is again noting that it is not considering non-cash 
benefits, including healthcare coverage under this final rule, with the 
narrow exception of long-term institutionalization.
    Comment: One commenter stated that if DHS considers long-term 
institutionalization in a public charge inadmissibility determination, 
DHS should consider only current institutionalization, as the fact that 
a person was institutionalized in the past does not suggest a 
likelihood of future institutionalization.
    Response: DHS agrees with this commenter in part. As indicated in 
the NPRM and this final rule, DHS will consider the duration and 
recency of benefit receipt, which will also apply to long-term 
institutionalization at government expense. If such 
institutionalization occurred many years ago it is unlikely to affect 
the inadmissibility determination in terms of future 
institutionalization. If, however, it was recent, or there is evidence 
of repeat long-term institutionalization, then it is more likely to be 
probative evidence related to future primary dependence at any time.
4. Receipt of Public Benefits
    Comment: Many commenters supported the clarification that applying 
for or receiving benefits on behalf of another will not be considered 
in the public charge inadmissibility determination. The commenters 
stated that this clarification is critical to ensuring that children in 
immigrant families continue to receive benefits for which they are 
eligible. Some commenters stated that this definition will greatly 
assist States' public benefits program staff in effectively 
communicating to families concerning the public charge inadmissibility 
determination.
    Response: DHS agrees that the clarification that the receipt of 
public benefits occurs when a public benefit-granting agency provides 
public benefits to a noncitizen, but only where the noncitizen is 
listed as a beneficiary; applying for a public benefit on one's own 
behalf or on behalf of another, and receiving public benefits on behalf 
of another, would not constitute receipt of public benefits by the 
noncitizen applicant. Similarly, approval for future receipt of a 
public benefit on the noncitizen's own behalf or on behalf of another 
would not constitute receipt of public benefits by the noncitizen 
applicant, though if information or evidence of such approval is in the 
record, DHS will consider it in the totality of the circumstances. Any 
evidence of approval for future receipt of a public benefit on behalf 
of an applicant, while not constituting receipt of public benefits, 
would indicate a probability of future receipt of public benefits and 
be considered by DHS as probative of being likely of becoming a public 
charge in the future. Finally, the noncitizen's receipt of public 
benefits solely on behalf of another, or the receipt of public benefits 
by another individual (even if the noncitizen assists in the 
application process), would also not constitute receipt of public 
benefits by the noncitizen. DHS believes that this approach, which is 
similar to the policy approach to ``receipt'' in the 2019 Final Rule, 
is appropriate.
    Comment: Several commenters suggested that DHS should clarify what 
does not count as receipt of a public benefit; for example, it should 
state that an intending immigrant who is not eligible for a particular 
benefit will not be considered to have received that benefit 
themselves, even if another person in the household receives it or if 
they are listed as a member of the household by the benefits granting 
agency to provide greater ease of administration and mitigation of the 
chilling effect. Commenters said that the rule should also clearly 
state that children in mixed-status families will not impact a public 
charge inadmissibility determination for their families by accessing 
certain benefits to which they are legally entitled because data 
demonstrates that eligible children miss out on essential benefits 
because of their parents' immigration concerns.
    Commenters' suggestions for clarification of the definition 
included citing the use of language such as ``child only'' TANF 
benefits and ``serving as the representative payee'' for someone under 
the SSI program, and specifically stating that recipients of a benefit 
do not include those assisting with an application for the benefit. 
Commenters further suggested the definition of receipt should include 
common words that do not necessarily equate to receipt, such as 
``payee,'' ``representative payee,'' ``head of household,'' and receipt 
``on behalf of,'' and should also include that approval for long-term 
institutional care without being the resident of the designated care 
facility does not count as receipt of public benefits and other 
guidance on what does not count as ``receipt.'' Several commenters 
suggested the definition should specifically state that issuance or 
provision of service of the actual benefit is essential to the 
definition of receipt of a public benefit. One commenter further stated 
that DHS should add additional rules as to what is not counted as 
receipt and add a non-exclusive list of examples of what does not count 
as receipt of benefits by an intending immigrant.
    Response: DHS appreciates the commenters' thoughtful consideration 
of the proposed definition of receipt of public benefits and their 
corresponding suggestions. DHS has determined that receipt of public 
benefits occurs when a public benefit-granting agency provides public 
cash assistance for income maintenance or long-term 
institutionalization at government

[[Page 55539]]

expense to a noncitizen, where the noncitizen is listed as a 
beneficiary. DHS included the clarifications that applying for a public 
benefit on one's own behalf or on behalf of another does not constitute 
receipt of public benefits by such noncitizen, and approval for future 
receipt of a public benefit on one's own behalf or on behalf of another 
does not constitute receipt of public benefits (although, as noted, 
approval for future receipt on one's own behalf can be considered in 
the totality of the circumstances). DHS also clarified that a 
noncitizen's receipt of public benefits solely on behalf of another 
individual does not constitute receipt of public benefits, and if a 
noncitizen assists another individual with the application process, 
this assistance does not constitute receipt for such noncitizen.\301\ 
Further, DHS believes that by indicating that ``receipt of public 
benefits occurs when a public benefit-granting agency provides public 
cash assistance for income maintenance or long-term 
institutionalization at government expense to a noncitizen,'' \302\ the 
rule sufficiently indicates that a public benefits granting agency must 
issue such benefit to the noncitizen beneficiary to meet the definition 
of receipt.
---------------------------------------------------------------------------

    \301\ See 8 CFR 212.21(d).
    \302\ See 8 CFR 212.21(d) (emphasis added).
---------------------------------------------------------------------------

    DHS believes this language clearly indicates that a noncitizen who 
is not a named beneficiary of a public benefit is not considered to 
have received that public benefit. Therefore, if a member of the 
noncitizen's household receives a benefit, the noncitizen will not be 
considered to have received a public benefit if the noncitizen is not 
identified as a named beneficiary of such benefit. Due to the wide 
variety of programs that provide or fund public cash assistance for 
income maintenance and long-term institutionalization at government 
expense, and the varying requirements and procedures for such programs, 
individuals may be confused about whether DHS would consider their or 
their family members' participation in or contact with such programs in 
the past, currently, or in the future to be ``receipt'' of such 
benefits. DHS believes that this rule's definition will help alleviate 
such confusion and unintended chilling effects that resulted from the 
2019 Final Rule by clarifying that only the receipt of specific 
benefits covered by the rule, only by the noncitizen applying for the 
immigration benefit, and only where such noncitizen is a named 
beneficiary would be taken into consideration. By extension, DHS would 
not consider public benefits received by the noncitizen's relatives 
(including U.S. citizen children or relatives).
    DHS disagrees that the regulatory language requires additional 
clarifying language to emphasize that only those benefits \303\ for 
which a noncitizen is the named beneficiary and are actually received 
by that noncitizen will be considered in a public charge 
inadmissibility determination. However, DHS will consider providing 
more extensive examples of what is and is not considered receipt of 
public benefits when issuing guidance related to this rule.
---------------------------------------------------------------------------

    \303\ As defined in 8 CFR 212.21(b).
---------------------------------------------------------------------------

    Comment: An advocacy group recommended DHS include a noncitizen's 
dependent's receipt of public benefits when making a public charge 
inadmissibility determination, stating that an analysis of a 
noncitizen's financial status and likelihood of becoming a public 
charge is incomplete without assessing any public benefits that are 
used by the noncitizen's dependents because a noncitizen is not self-
reliant if required to depend upon public benefits to support children 
or other dependent family members.
    Response: DHS disagrees that it should consider a noncitizen's 
dependent's receipt of public benefits in a public charge 
inadmissibility determination. DHS recognizes that past policies, such 
as the 1999 Interim Field Guidance and the rules implementing IRCA 
legalization, allowed for consideration of a dependent's receipt of 
public benefits. But the statute does not require such a policy, and 
neither the NPRM, nor the 2019 Final Rule, provided for a scenario in 
which a noncitizen is incentivized to disenroll a dependent (such as a 
U.S. citizen child) to avoid an adverse public charge inadmissibility 
determination. DHS expects that it would be quite rare for a noncitizen 
to subsist primarily on their dependents' benefits, such that it would 
be necessary to expand the aperture of DHS's inquiry in the manner 
proposed by the commenter. DHS also observes that a variety of programs 
provide or fund public cash assistance for income maintenance and long-
term institutionalization at government expense, and that if DHS were 
to adopt the policy proposed by the commenter, individuals may be 
confused about whether DHS would consider their or their family 
members' participation in or contact with such programs in the past, 
currently, or in the future to be ``receipt'' of such benefit. DHS 
believes that this rule's definition of receipt of public benefits will 
help alleviate such confusion. Accordingly, under this final rule, DHS 
will only consider the receipt of the benefits listed in 8 CFR 
212.21(b) and (c), and only if received by the noncitizen applying for 
the immigration benefit as a named beneficiary of the public benefit. 
DHS will not consider public benefits received by the noncitizen's 
relatives (including U.S. citizen children or relatives).
    Comment: One commenter suggested that DHS should expressly clarify 
in this final rule that utilization of Medicaid for healthcare, SNAP, 
and public housing, whether past or current, should never be considered 
in a public charge inadmissibility determination.
    Response: DHS appreciates the commenter's suggestion, and has added 
language to 8 CFR 212.22(a)(3) stating that DHS will not consider 
receipt of, or certification or approval for future receipt of, public 
benefits not referenced in 8 CFR 212.21(b) or (c), such as Supplemental 
Nutrition Assistance Program (SNAP) or other nutrition programs, 
Children's Health Insurance Program (CHIP), Medicaid (other than for 
long-term use of institutional services under section 1905(a) of the 
Social Security Act), housing benefits, any benefits related to 
immunizations or testing for communicable diseases, or other 
supplemental or special-purpose benefits. While this was implicit in 
the regulatory text of the NPRM that identified only the benefits that 
DHS would consider, and DHS was clear in the NPRM that it would not 
consider any benefits other than those referenced in 8 CFR 212.22(a)(3) 
in making a public charge inadmissibility determination, DHS agrees 
with the commenter that stating this explicitly within the regulatory 
text will help clarify this important point for the public and 
potentially reduce uncertainty and disenrollment effects from these 
programs.
5. Government
    Comment: Commenters stated that the definition of government should 
only include the Federal government, eliminating references to State, 
Tribal, or local cash benefit programs for income maintenance, and 
clarify that SSI and TANF are the specific programs that may be 
considered in a public charge inadmissibility determination as this 
decision to provide this assistance is constitutionally reserved by the 
States. One of those commenters went further in stating that rather 
than defining ``government,'' if DHS would clarify that the only public 
benefits to be considered in a public charge inadmissibility 
determination are cash assistance for income maintenance

[[Page 55540]]

received through SSI and TANF then providing that specificity would 
obviate any need to define the word government.
    A commenter noted that although the 1999 Interim Field Guidance and 
1999 NPRM include State and local governments in the definition of 
government, neither explained the basis for this conclusion. Another 
commenter stated that the definition of government should only include 
the Federal government, because immigration is a matter regulated by 
the Federal government and because one government agency should not 
penalize anyone for appropriately accessing services promoted and 
provided by another government agency.
    Response: DHS disagrees with the commenters who stated that the 
definition of government should only include the Federal government and 
not include State, Tribal, territorial, or local government entity or 
entities of the United States. DHS declines to exclude the 
consideration of State, Tribal, territorial, and local cash assistance 
for income maintenance because excluding those programs would unfairly 
distinguish recipients of Federal aid from those receiving aid from 
States, Tribes, territories, and localities. Furthermore, DHS believes 
that excluding all such programs from consideration would be contrary 
to Congressional intent to the extent that receipt of non-Federal 
benefits, such as State, Tribal, territorial, or local benefits, may be 
no less indicative of primary dependence on the government for 
subsistence than Federal benefits.
    In this rule, DHS has chosen to consider the same list of public 
benefits that are considered under the 1999 Interim Field Guidance with 
certain clarifications. These benefits are public cash assistance for 
income maintenance and long-term institutionalization at government 
expense (including when funded by Medicaid). DHS believes that this 
approach is consistent with a more faithful interpretation of the term 
``public charge'' and has the additional benefit of being more 
administrable and consistent with long-standing practice than the 2019 
Final Rule. DHS also believes this approach is less likely to result in 
the significant chilling effects and effects on State and local 
governments and social service providers (such as increases in 
inquiries regarding the public charge implications of receiving certain 
benefits and increases in uncompensated care) that were observed 
following promulgation of the 2019 Final Rule.
    As noted by one commenter, the 1999 NPRM defined government as any 
Federal, State, or local government entity or entities of the United 
States but did not explain the basis for the definition.\304\ However, 
both the 1999 Interim Field Guidance and the 1999 NPRM suggest that the 
definition for public charge is tied to the fact that the types of 
benefits that are indicative of primary dependence on the government 
for subsistence are public cash assistance for income maintenance 
provided by Federal, State, and local benefits-granting agencies as 
well as institutionalization at Federal, State, and local entities' 
expense.\305\ Similarly, DHS currently believes that it is appropriate 
to use a definition of government that includes all U.S. government 
entities. For much of the time that the concept of public charge has 
been part of our immigration statutes, States, Tribes, territories, and 
localities provided much of the public support available to noncitizens 
and although the Federal government has increased its role in providing 
benefits, the social safety net in the United States continues to 
consist of a variety of Federal, State, Tribal, territorial, and local 
programs that operate collaboratively to provide support for 
individuals. These non-Federal programs play an important role and are 
interwoven with Federal programs (some programs are funded by the 
Federal Government as well as States, Tribes, territories, and 
localities).
---------------------------------------------------------------------------

    \304\ ``Inadmissibility and Deportability on Public Charge 
Grounds,'' 64 FR 28676, 28681 (May 26, 1999).
    \305\ ``Field Guidance on Deportability and Inadmissibility on 
Public Charge Grounds,'' 64 FR 28689, 28692 (May 26, 1999); 
``Inadmissibility and Deportability on Public Charge Grounds,'' 64 
FR 28676, 28677 (May 26, 1999).
---------------------------------------------------------------------------

    Moreover, there are provisions of law that demonstrate 
Congressional concern not only with noncitizens' receipt of Federal 
public benefits, but also noncitizens' receipt of State, Tribal, 
territorial, and local public benefits. For example, in addition to 
codifying Federal deeming provisions in 8 U.S.C. 1631, Congress 
included State ``deeming'' provisions in 8 U.S.C. 1632, which allow 
States to consider the income and resources of a noncitizen's sponsor 
and spouse in ``determining the eligibility and the amount of 
benefits'' of a noncitizen. Consistent with Congress' focus on benefits 
provided by Federal, State, Tribal, territorial, and local entities, 
and its focus on reimbursing and holding harmless those entities, DHS 
believes that it is appropriate and consistent with Congressional 
purpose to define government to ``mean[] any Federal, State, Tribal, 
territorial, or local government entity or entities of the United 
States.'' \306\
---------------------------------------------------------------------------

    \306\ See 8 CFR 212.21(e).
---------------------------------------------------------------------------

    Comment: Some commenters supported the definition of government 
including Federal, State, Tribal, territorial, and local governments 
for public charge inadmissibility determination purposes. One of the 
commenters stated further that to so define government would clarify 
for noncitizens that receipt of cash assistance from private or non-
governmental entities will not have any implication on their 
applications to adjust their status.
    Response: DHS agrees with the commenters who stated that the term 
DHS should define ``government'' as any Federal, State, Tribal, 
territorial, or local government entity or entities of the United 
States, and this rule accordingly retains the same definition proposed 
in the NPRM. As stated in the NPRM, this definition identifies which 
public cash assistance and long-term institutionalization programs DHS 
will consider in a public charge inadmissibility determination.\307\
---------------------------------------------------------------------------

    \307\ See 87 FR at 10615 (Feb. 24, 2022).
---------------------------------------------------------------------------

6. Other Definitions
    Comment: Two commenters suggested using the definition of household 
size as defined in connection with the Affidavit of Support Under 
Section 213A of the INA, with one commenter stating that an additional 
definition is superfluous and would add confusion and inconsistency.
    One commenter stated that DHS should define a noncitizen's 
household and should use the definition of household used in the 2019 
Final Rule, taking into account the number of household members and the 
number of individuals for whom a noncitizen or noncitizen's parent or 
guardians provide at least 50 percent of financial support. The 
commenter stated that DHS should consider the noncitizen's household 
size as the primary element of the family status factor.
    Another commenter recommended that household remain undefined, as 
it does not appear in the statute or elsewhere in the proposed 
regulations. Several commenters remarked that when household was given 
a distinct definition in the 2019 Final Rule it caused harm and 
confusion.
    Response: DHS appreciates all of the commenters who responded to 
DHS's request in the NPRM to comment on how, if at all, DHS should 
define ``household'' for use in in applying the statutory minimum 
factors, as it did in the 2019 Final Rule. Because a

[[Page 55541]]

definition of household provides important clarity for the public and 
for officers as to how DHS will be considering both the family status 
and assets, resources, and financial status factors, DHS disagrees with 
the commenter who suggested the regulations should not define 
household.
    DHS considered the calculation used to determine a sponsor's 
household size in connection with an Affidavit of Support Under Section 
213A of the INA, but notes that the sponsor's household size 
calculation pertaining to Affidavit of Support Under Section 213A of 
the INA is designed to demonstrate that a sponsor's income and assets 
are sufficient to support their household at the corresponding HHS 
Poverty Guideline. Because the intent for a public charge 
inadmissibility determination is not a direct comparison of a 
noncitizen's income with a noncitizen's household size, DHS decided to 
use a simpler definition of household in the public charge 
inadmissibility determination that would better reflect whether an 
individual is likely at any time to become a public charge in a 
totality of the circumstances assessment. Accordingly, this rule 
defines a noncitizen's household as ``(1) The alien; (2) The alien's 
spouse, if physically residing with the alien; (3) If physically 
residing with the alien, the alien's parents, the alien's unmarried 
siblings under 21 years of age, and the alien's children as defined in 
section 101(b)(1) of the INA; (4) Any other individuals (including a 
spouse or child as defined in section 101(b)(1) of the Act not 
physically residing with the alien) who are listed as dependents on the 
alien's federal income tax return; and (5) Any other individual(s) who 
list the alien as a dependent on their federal income tax return.'' 
\308\
---------------------------------------------------------------------------

    \308\ See 8 CFR 212.21(f).
---------------------------------------------------------------------------

    DHS believes that the definition from the 2019 Final Rule 
classifying people as household members depending on a threshold of 
either 50 percent or more financial support from or to the noncitizen 
places an unnecessary burden of quantification and analysis on 
applicants. As commenters to the 2019 Final Rule noted, such a 
definition could also disadvantage larger households who must show 
larger incomes or resources to support the larger numbers being 
counted, regardless of the reality of the economic benefits certain 
family members might provide to such households, or such households may 
be providing to society.\309\ This could also disadvantage members of 
families who provide financial assistance to extended family members in 
cases of emergencies or for other short-term periods of time without 
being legally required to do so because counting those individuals as 
part of a noncitizen's ``household'' would increase the household size 
and decrease the household income even in circumstances that may be 
temporary. DHS recognizes that it could define ``household'' in ways 
that are potentially more expansive (as in the 2019 Final Rule) or less 
expansive, but DHS believes that this rule's definition of household 
provides officers with a sufficiently accurate representation of the 
assets and resources available to a noncitizen, recognizing that 
multiple household members may contribute to the overall financial 
picture of the household as a whole, without at the same time creating 
a system that is potentially unworkable or overinclusive.
---------------------------------------------------------------------------

    \309\ See 84 FR 41292, 41393-41396 (Aug. 14, 2019).
---------------------------------------------------------------------------

I. Factors

1. Statutory Minimum Factors
    Comment: A number of commenters stated that they supported the 
NPRM's proposed return to the statutory factors and use of the 
Affidavit of Support Under Section 213A of the INA over the approach 
taken in the 2019 Final Rule. Several of the commenters further stated 
support for DHS forgoing defining the statutory factors and merely 
relying on the statutory language because the 2019 Final Rule created 
complicated definitions that required USCIS officers to review 
voluminous amounts of documentation and assign negative or positive 
weight to evidence and what commenters stated led to inconsistent 
results. Furthermore, some commenters stated that defining the factors 
would invite potential abuse by officers and result in a more 
complicated and discretionary determination that is unnecessary and 
harmful.
    Response: DHS acknowledges the commenters' concerns about 
complicated and potentially harmful interpretations of the statutory 
minimum factors. In this rule, DHS is maintaining the longstanding and 
straightforward framework set forth in the 1999 Interim Field Guidance, 
in which officers consider the statutory minimum factors, the Affidavit 
of Support Under Section 213A of the INA, where required, and current 
and/or past receipt of public benefits, in the totality of the 
circumstances, without separately codifying evidence required for each 
factor as was done in the 2019 Final Rule. DHS believes this will 
reduce burdensome and unnecessary evidentiary and information 
collection requirements pertaining to the statutory minimum factors, 
which in turn will decrease the burdens on DHS when reviewing and 
evaluating information and evidence.
    While DHS is neither codifying specific evidentiary requirements 
for the statutory minimum factors nor creating a separate form to 
collect information and evidence about those factors, following receipt 
of public comments, DHS has made changes to the provisions addressing 
the following statutory minimum factors to identify information 
relevant to such factors: health, family status; assets, resources, and 
financial status; and education and skills. In accordance with those 
changes, DHS has made changes to Form I-485 to effectuate the relevant 
information collection. The identification and collection of this 
relevant information will help officers make public charge 
inadmissibility determinations without being unnecessarily burdensome 
for the public and for DHS, and will provide clarity to the public 
regarding what information is relevant and needed to make public charge 
inadmissibility determinations.
    DHS will make a public charge inadmissibility determination based 
on the totality of a noncitizen's circumstances.\310\ The rule 
explicitly states that none of the statutory minimum factors other than 
the lack of a sufficient Affidavit of Support Under Section 213A of the 
INA, if required, ``should be the sole criterion for determining if an 
alien is likely to become a public charge.'' \311\ As noted in the 
NPRM,\312\ this rule includes elements consistent with the standard 
previously in place for over 20 years.
---------------------------------------------------------------------------

    \310\ See 8 CFR 2 12.22(b).
    \311\ See 8 CFR 212.22(b).
    \312\ See 87 FR at 10621 (Feb. 24, 2022).
---------------------------------------------------------------------------

    In addition, consistent with 8 CFR 212.22(b), DHS plans to issue 
subregulatory guidance to officers to inform (but not dictate the 
outcome of) the totality of the circumstances assessment, which will 
address how the factors identified in the rule may affect the 
likelihood that a given noncitizen will become primarily dependent on 
the government for subsistence at any time as informed by an empirical 
analysis of the best-available data. DHS plans to issue such guidance 
prior to the implementation date of this rule, and expects that this 
guidance will promote consistency in adjudication as well as

[[Page 55542]]

transparency for applicants and other stakeholders. DHS may 
periodically update this guidance as needed to reflect current data.
    To illustrate the approach taken in this rule, consider the 
following hypothetical examples of noncitizens applying for adjustment 
of status by submitting to USCIS, for instance, the Form I-485, 
Application to Register Permanent Residence or Adjust Status; a valid 
Form I-693, Report of Medical Examination and Vaccination Record; a 
sufficient Form I-864, Affidavit of Support Under Section 213A of the 
INA, if required; and all other required supporting evidence. Note that 
the following examples are meant as illustrations only, and that in any 
individual case, an officer's consideration of each factor identified 
in the rule would entail a detailed review and analysis.
    (1) The officer considers the noncitizen's age; health; family 
status; assets, resources, and financial status; education and skills; 
past and current receipt of public cash assistance of income 
maintenance or long-term institutionalization at government expense; 
sufficient Affidavit of Support Under Section 213A of the INA; and the 
guidance. The guidance includes an empirical analysis of how these 
factors (except for the sufficient Affidavit of Support Under Section 
213A of the INA) may affect the likelihood that a noncitizen would at 
any time of becoming primarily dependent on the government for 
subsistence, based on the best-available data. The officer determines 
that the noncitizen's combination of factors does not contain any 
adverse indications (such as past or current receipt of public cash 
assistance for income maintenance or inadequate assets, resources, or 
financial status). As a result, the officer finds in the totality of 
the circumstances that the applicant has met their burden of 
demonstrating they are not inadmissible under section 212(a)(4) of the 
INA, 8 U.S.C. 1182(a)(4).
    (2) The officer considers the factors and empirical evidence in the 
guidance in the manner described above except that the evidence 
reflects that the noncitizen received public cash assistance for income 
maintenance several years ago, which comprised a small portion of the 
noncitizen's income and did not last for an extended period of time. 
The officer's determination therefore entails consideration of the 
duration and recency of public cash assistance for income maintenance, 
which in this hypothetical case occurred several years ago, comprised a 
small portion of the individual's income and did not last for an 
extended period of time. The officer ultimately determines, following 
consideration of the guidance and the individual circumstances 
presented by the applicant (such as the applicant's health, education, 
and income), that the applicant has met their burden of demonstrating 
they are not inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4).
    (3) The officer considers the factors and empirical evidence in the 
manner described above, except that the evidence reflects that the 
noncitizen's receipt of public cash assistance for income maintenance 
has occurred over an extended period of time and continues to this day, 
and the noncitizen has almost no other sources of income. Following 
consideration of this information, together with the other factors 
(such as the noncitizen's education and skills), the officer determines 
in the totality of the circumstances that the applicant is inadmissible 
under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
    Comment: One commenter disagreed with considering statutory minimum 
factors in a public charge inadmissibility determination, stating that 
the use of those factors may still be discriminatory against 
individuals with disabilities. The commenter stated that having a 
disability can affect every single aspect of one's life, so the fact 
that disability alone cannot lead to a finding of inadmissibility does 
not account for the ways in which the individual's disability may 
impact the other factors considered. Another commenter stated that many 
immigrants come to the United States to improve the factors used to 
make a public charge inadmissibility determination and encouraged DHS 
to remember the inalienable rights of life, liberty, and the pursuit of 
happiness.
    Response: Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
officers are required to consider specific factors, at a minimum, in 
determining whether an applicant seeking admission to the United States 
or seeking to adjust status to that of lawful permanent resident is 
likely at any time to become a public charge. These factors are the 
noncitizen's age; health; family status; assets, resources, and 
financial status; and education and skills.\313\ The statute does not 
indicate the circumstances under which any of these factors are to be 
treated positively or negatively, how much weight the factors should be 
given, or what evidence or information is relevant to the each of the 
statutory minimum factors. DHS may not alter or dismiss the factors as 
set forth by Congress in the statute. DHS is maintaining the 
longstanding and straightforward framework set forth in the 1999 
Interim Field Guidance, in which officers consider the statutory 
minimum factors and the Affidavit of Support Under Section 213A of the 
INA, where required, in the totality of the circumstances, without 
separately codifying initial supporting evidence that must be submitted 
for each factor as was done in the 2019 Final Rule. DHS believes that 
this will reduce burdensome and unnecessary evidentiary and information 
collection requirements pertaining to the statutory minimum factors, 
which in turn will decrease the burdens on DHS when reviewing and 
evaluating information and evidence. DHS also believes that this focus 
on a totality of the circumstances framework is the fairest and most 
equitable way to apply the public charge ground of inadmissibility.
---------------------------------------------------------------------------

    \313\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 
The statute also permits, but does not require, the consideration of 
a sufficient Affidavit of Support Under Section 213A of the INA, if 
required. See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------

a. Age
    Comment: A number of commenters disagreed that a person's age may 
impact their ability to work or is relevant to the likelihood of 
becoming a public charge. One commenter stated that employers are 
prohibited from discriminating against people who are 40 and over based 
on the Age Discrimination in Employment Act of 1967 \314\ and, thus, 
DHS should caution its officers to the potential for abuse of this 
specific criterion. One commenter noted that many older immigrants make 
important contributions to their households, including providing 
income, caregiving, and other support that enables other household 
members to work outside the home. The commenter further stated that 
these contributions in turn benefit our communities and our economy.
---------------------------------------------------------------------------

    \314\ Public Law 90-202, 81 Stat. 602 (1967).
---------------------------------------------------------------------------

    Response: Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
officers are required to consider specific minimum factors in 
determining whether an applicant seeking admission to the United States 
or seeking to adjust status to that of lawful permanent resident is 
likely at any time to become a public charge. These factors include the 
noncitizen's age.\315\ However, DHS appreciates commenters' concerns 
that a person's age may not determine their likelihood of becoming a 
public charge.

[[Page 55543]]

For this reason, DHS notes that in this rule DHS specifically indicates 
that the determination of an individual's likelihood of becoming a 
public charge must be based on the totality of the individual's 
circumstances and no one factor, other than the lack of a sufficient 
Affidavit of Support Under Section 213A of the INA, if required, should 
be the sole criterion for determining if an individual is likely to 
become a public charge.\316\ Age is not the only factor taken into 
account in a public charge inadmissibility determination and does not 
automatically determine if a noncitizen is likely at any time to become 
a public charge.
---------------------------------------------------------------------------

    \315\ See INA sec. 212(a)(4)(B)(i)(I), 8 U.S.C. 
1182(a)(4)(B)(i)(I).
    \316\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    In order to ensure that DHS officers are making clear, fair, and 
consistent public charge inadmissibility determinations, the 
regulations also state that every written denial decision issued by 
USCIS should reflect consideration of each of the factors outlined in 
this rule and specific articulation of the reasons for the officer's 
determination.\317\ DHS believes this will help ensure that public 
charge inadmissibility determinations do not reflect a misunderstanding 
of age discrimination laws.
---------------------------------------------------------------------------

    \317\ See 8 CFR 212.22(c).
---------------------------------------------------------------------------

    Comment: A few commenters suggested that children should not be 
penalized when considering age as a factor, or that age for minor 
children should not be a consideration, despite the INA not containing 
an explicit exemption for children. Other commenters similarly 
suggested that DHS positively interpret the statutory factor of age for 
children and require officers to apply a heightened standard for 
finding that a child is likely at any time to become a public charge. 
Commenters urged that, if a child is found to be inadmissible under the 
public charge ground of inadmissibility, officers should include 
specific reasoning including the consideration of this heightened 
standard.
    Some commenters suggested alternatively that DHS create a child-
specific framework for the statutory factors for cases that involve 
children in guidance to officers, not ignoring or exempting children 
from the statutory minimum factors but acknowledging that children are 
different from adults and interpreting the factors in a child-
appropriate manner. For example, children's dependence on family is 
normal and not an indication of their likelihood of becoming a public 
charge in the future. The commenters also suggested that DHS view being 
in school and having strong family support as factors in a child's 
favor, as research shows that the earlier a child has access to strong 
social networks and educational opportunities the better their future 
earnings and outcomes.
    Response: As noted previously, DHS disagrees with commenters who 
suggested that the public charge ground of inadmissibility should not 
be applied to children because it is difficult to predict a child's 
likelihood of becoming primarily dependent on the government for 
subsistence. While DHS acknowledges that the public charge 
inadmissibility determination is a complex assessment, the language of 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), requires that this 
be a predictive assessment, and only those categories designated by 
Congress are exempt from the public charge ground of 
inadmissibility.\318\ DHS notes that Congress did not exclude children 
from the public charge ground of inadmissibility and therefore, unless 
a child is seeking admission or adjustment of status in a 
classification that Congress expressly exempted from the public charge 
ground of inadmissibility, for example adjustment of status as a 
special immigrant juvenile,\319\ DHS must apply the ground to 
applications for admission or adjustment of status.
---------------------------------------------------------------------------

    \318\ See 8 CFR 212.23.
    \319\ INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
---------------------------------------------------------------------------

    DHS recognizes that it must apply the statutory minimum factors to 
individuals' specific circumstances, and as such, has made clear that a 
public charge inadmissibility determination should be based on the 
totality of a noncitizen's circumstances. These factors include the 
noncitizen's age; health; family status; assets, resources, and 
financial status; and education and skills.\320\ As stated throughout 
this rule, no one factor other than the lack of a sufficient Affidavit 
of Support Under Section 213A of the INA, if required, ``should be the 
sole criterion for determining if an alien is likely to become a public 
charge'' \321\ and ``DHS may periodically issue guidance to officers to 
inform the totality of the circumstances assessment.'' \322\ DHS 
believes that a public charge inadmissibility determination that takes 
into account the totality of a noncitizen's circumstances, including 
their age, is consistent with a the statute. While DHS will not create 
a different standard for children, DHS intends to issue guidance as 
appropriate that will clarify considerations that are relevant to 
considering a child's receipt of public benefits in the totality of the 
circumstances.
---------------------------------------------------------------------------

    \320\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 
The statute also permits, but does not require, the consideration of 
a sufficient Affidavit of Support Under Section 213A of the INA, if 
required. See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
    \321\ See 8 CFR 212.22(b).
    \322\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    To address the comment requesting that officers be required to 
include specific reasoning for a public charge inadmissibility finding 
for children, DHS notes that the regulations state that every written 
denial decision issued by USCIS should reflect consideration of each of 
the factors outlined in this rule and specific articulation of the 
reasons for the officer's determination, which will help ensure that 
public charge inadmissibility determinations will be fair and 
consistent with the law.
b. Health
    Comment: Some commenters recommended that DHS not consider health 
as a factor in public charge inadmissibility determinations because it 
unfairly hinders all immigrants, especially those with disabilities and 
chronic health conditions that face heightened healthcare costs as well 
as disproportionate barriers to education and employment, making them 
unable to show significant assets or resources. Another commenter 
stated that a person's health status should never be considered when 
evaluating whether they are likely to become a public charge because it 
unfairly discriminates against individuals from communities where 
preventive care and other services are not widely accessible, as well 
as against individuals who have chronic health conditions or 
disabilities. Some commenters stated that any individual may become 
disabled due to illness, injury, or the development of a condition at 
any time and the rule does little to protect immigrants who are injured 
or disabled while working in the United States, or those who may become 
infected with COVID-19.
    Response: DHS designed this rule to adhere to, and implement, 
congressional instructions. DHS did not issue this rule to discriminate 
against applicants based on their health, and moreover, did not intend 
to single out or discriminate against those with disabilities or 
chronic health conditions or applicants who come from communities where 
preventive care and other services are not widely accessible. Rather, 
as noted in the NPRM \323\ and above in this preamble, this rule is 
intended to articulate a policy with respect to the public charge 
ground of inadmissibility that that is fully consistent with law and

[[Page 55544]]

that is clear, fair, and comprehensible for officers as well as for 
noncitizens. This rule, and in particular, the consideration of the 
health factor, is simply a reflection of and wholly consistent with 
Congress' mandate that DHS consider an applicant's health in every 
public charge inadmissibility determination.\324\
---------------------------------------------------------------------------

    \323\ 87 FR at 10599 (Feb. 24, 2022).
    \324\ INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
---------------------------------------------------------------------------

    DHS disagrees with commenters' suggestion that it has the authority 
to ignore any of the statutorily mandated factors, including the health 
factor, in making a public charge inadmissibility determination, even 
if an applicant has a chronic medical condition, disability, or lives 
in a community where preventive care and other services are not widely 
accessible. In fact, under the plain language of the statute, Congress 
requires DHS to review the applicant's health when determining whether 
the applicant is likely at any time to become a public charge.\325\ DHS 
will not disregard the factors that Congress mandated DHS consider, and 
DHS therefore declines to adopt this suggestion in this rule.
---------------------------------------------------------------------------

    \325\ See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C. 
1182(a)(4)(B)(i)(II).
---------------------------------------------------------------------------

    To the extent that commenters are concerned that DHS, in 
considering an applicant's health, will treat an applicant's disability 
or particular health conditions, such as chronic health conditions, as 
outcome determinative, DHS notes that it lacks the authority to treat 
any of the statutory minimum factors, including an applicant's health, 
as outcome determinative. Simply put, DHS will not treat any of the 
statutory minimum factors as outcome determinative in this rule,\326\ 
and, as reflected in the NPRM,\327\ this rule already includes a 
provision that prohibits treating any factor, other than the lack of a 
required Affidavit of Support Under Section 213A of the INA, as outcome 
determinative.\328\ Indeed, under this rule, the mere presence of any 
medical condition would not, on its own, render an applicant 
inadmissible as likely at any time to become a public charge. On the 
contrary, as required by Congress,\329\ in this rule, a noncitizen's 
health is but one factor that DHS must consider when determining 
whether a noncitizen is likely to become a public charge at any 
time.\330\ Moreover, as noted in the NPRM \331\ and as reflected in 
this final rule, the fact that an applicant has a disability as defined 
by Section 504 of the Rehabilitation Act will never alone be a 
sufficient basis to determine whether the noncitizen is likely at any 
time to become a public charge.\332\
---------------------------------------------------------------------------

    \326\ 8 CFR 212.22(b).
    \327\ 87 FR at 10621 (Feb. 24, 2022).
    \328\ See 8 CFR 212.22(b).
    \329\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
    \330\ 8 CFR 212.22(a)(1)(ii).
    \331\ 87 FR at 10620 (Feb. 24, 2022).
    \332\ 8 CFR 212.22(a)(4).
---------------------------------------------------------------------------

    Comment: One commenter remarked that being denied entry into the 
United States based on a disability violates noncitizens' human rights. 
Another commenter stated that ``the regulation of public charge goes 
beyond immigration control and prevention of abuse of public services . 
. . and is a threat to the human rights of every human being . . . .'' 
This commenter provided testimonials from members of the Disability and 
Immigration Justice Coalition to describe how the public charge ground 
of inadmissibility negatively affects their lives. The commenter also 
stated that the proposed rule encourages and supports social and 
cultural ableism, destroying decades of social justice work for 
disabled lives to be included, and that no human being is a public 
charge.
    Response: The term ``public charge'' is a statutory term and part 
of a ground of inadmissibility that DHS administers pursuant to duly 
enacted laws. DHS notes that while it is required to administer the 
public charge ground of inadmissibility to all noncitizens who are 
subject to the ground, DHS does not intend to suggest through this 
rulemaking that a noncitizen's worth or value to society is in any way 
tied to a noncitizen being determined to be likely at any time to 
become a public charge.
    With respect to comments and testimonials opposing the regulation 
of public charge as a threat to human rights, DHS notes that it was not 
clear from the comment whether the commenter objects to the application 
of the public charge ground of inadmissibility, or DHS's proposed 
rule--the commenter did not specifically address any aspect of the 
proposed rule. Nevertheless, DHS disagrees that this rule violates 
noncitizens' human rights, encourages ableism, or would deny admission 
or adjustment of status based on a noncitizen's disability. In fact, 
under this rule, disability alone is not a sufficient basis to 
determine that a noncitizen is likely at any time to become a public 
charge.\333\ Although the statute requires DHS to consider an 
applicant's health when assessing the applicant's likelihood at any 
time of becoming a public charge,\334\ which may include consideration 
of any disabilities identified in the report of medical examination in 
the record,\335\ there is no presumption under the statute or in this 
rule that having a disability in and of itself means that the applicant 
is in poor health or is likely at any time to become a public charge. 
DHS will not, under this rule, presume that an applicant's disability 
in and of itself negatively impacts the applicant's health or any of 
the other statutory minimum factors that DHS considers as part of the 
public charge inadmissibility determination.\336\ For example, as noted 
in the NPRM,\337\ many disabilities do not impact an individual's 
health or require extensive medical care, and the vast majority of 
people with disabilities do not use institutional care.
---------------------------------------------------------------------------

    \333\ See 8 CFR 212.22(a)(4) and (b).
    \334\ INA sec. 212(a)(B)(i)(II), 8 U.S.C. 1182(a)(4)(B)(i)(II).
    \335\ See 8 CFR 212.22(a)(1)(ii).
    \336\ 8 CFR 212.22(a)(4).
    \337\ 87 FR at 10620 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Simply put, under this rule, DHS will not deny admission or 
adjustment of status to any applicant solely based on the applicant's 
disability. As noted in the NPRM \338\ and above, under this rule, no 
one factor, other than the lack of a required Affidavit of Support 
Under Section 213A of the INA, is outcome determinative.\339\ Indeed, 
under this rule, the fact that an applicant has a disability as defined 
by Section 504 of the Rehabilitation Act will never alone be a 
sufficient basis to determine whether an applicant for admission or 
adjustment of status is likely at any time to become a public 
charge.\340\ The final rule also includes other provisions to better 
ensure fair and consistent treatment of individuals with disabilities--
for example, long-term institutionalization in the context of Medicaid 
is limited to ``institutional services under section 1905(a) of the 
Social Security Act,'' \341\ which, as DHS clarified in the proposed 
rule, does not include HCBS.\342\ In addition, the final rule includes 
a provision that allows DHS to consider evidence submitted by the 
applicant that the applicant's long-term institutionalization violates 
federal law, including the Americans with Disabilities Act or the 
Rehabilitation Act.\343\ As a result, DHS declines to make any changes 
to the rule in response to this comment.
---------------------------------------------------------------------------

    \338\ 87 FR at 10621 (Feb. 24, 2022).
    \339\ See 8 CFR 212.22(b).
    \340\ 8 CFR 212.22(a)(4).
    \341\ 8 CFR 212.21(c).
    \342\ 87 FR at 10614 (Feb. 24, 2022).
    \343\ 8 CFR 212.22(a)(3).
---------------------------------------------------------------------------

    Comment: One commenter discouraged defining health in a way

[[Page 55545]]

that would penalize individuals based on the nature or conditions of 
their work. This commenter remarked that farmworkers, in particular, 
engage in ``difficult, repetitive tasks, often in uncomfortable 
positions, resulting in musculoskeletal injuries . . . [as well as 
o]ther dangerous conditions [that] include handling heavy machinery, 
working with large animals, and working at heights . . . , '' which 
needs to be accounted for in the definition of health. This commenter 
also discouraged defining health to include consideration of an 
applicant's health insurance coverage in the definition, as few 
farmworkers have access to comprehensive health insurance. Some 
commenters, with one pointing to President Biden's executive order 
Advancing Racial Equality and Support for Underserved Communities 
Through the Federal Government,\344\ stated that DHS should consider 
how social determinants of health, such as social, economic, and 
environmental factors, contribute to an applicant's health in a public 
charge inadmissibility determination. The commenter stated that poor 
health and shorter life expectancy concentrate among low-income people 
of color residing in certain places, including immigrants' native 
countries in the global south that have been disadvantaged by 
historical and structural factors such as colonization and racially 
discriminatory immigration policies. Another commenter similarly stated 
that when officers weigh the health factor, they should treat social 
determinants of health only in a positive manner, consider overall 
wellness without reference to disability to the extent possible, and 
should treat other ``aspects of health'' as irrelevant to the health 
factor, to avoid considering disability alone as influencing the 
likelihood of an immigrant being determined likely to become a public 
charge.
---------------------------------------------------------------------------

    \344\ E.O. 13985, ``Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government,'' 86 FR 7009 
(Jan. 25, 2021).
---------------------------------------------------------------------------

    Response: DHS notes that it is not, in this rule, defining health 
to include an assessment of whether an applicant has health insurance 
coverage.\345\ DHS further notes that it is not defining health to 
specify that any aspect of an applicant's health, including 
circumstances that might impact the reasons why an individual has 
certain health conditions, should be treated as a positive or negative 
factor. Rather, in response to public comments and feedback received, 
DHS has amended the rule to clarify that in considering an applicant's 
health in the totality of the circumstances, DHS will consider any 
report of an immigration medical examination performed by a civil 
surgeon or panel physician in the record.\346\ The report of the 
immigration medical examination will include, as required by HHS 
regulations, any Class A or Class B medical conditions diagnosed by the 
physician, as well as ``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.'' \347\ The report of 
medical examination will also include, as required by the CDC Technical 
Instructions for Civil Surgeons \348\ and the Technical Instructions 
for Panel Physicians,\349\ a notation for any Class B medical condition 
identified by the physician that although it ``does not constitute a 
specific excludable condition, [it] represents a departure from normal 
health or well-being that is significant enough to possibly interfere 
with the person's ability to care for him- or herself, to attend school 
or work, or that may require extensive medical treatment or 
institutionalization in the future.'' \350\ DHS would rely on any such 
findings made by the civil surgeon or panel physician as to whether any 
Class A or Class B medical conditions were identified in the report of 
medical examination unless there is evidence that the report is 
incomplete.
---------------------------------------------------------------------------

    \345\ 8 CFR 212.22(a)(1)(ii).
    \346\ 8 CFR 212.22(a)(1)(ii).
    \347\ 42 CFR 34.4(b)(2) and (c)(2).
    \348\ CDC, Civil Surgeons, ``Medical History and Physical 
Examination,'' https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons/medical-history-and-physical-exam.html (last visited Aug. 
16, 2022).
    \349\ CDC, Panel Physicians, ``Medical History and Physical 
Examination,'' https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/medical-history-physical-exam.html (last visited Aug. 16, 
2022).
    \350\ See CDC, ``Technical Instructions for Civil Surgeons,'' 
https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons.html (last 
visited Aug. 16, 2022). See 42 CFR 34.3(i).
---------------------------------------------------------------------------

    DHS believes that this will ensure that DHS officers, who are not 
trained medical professionals, are assessing the applicant's health, 
based on reports from physicians designated to perform immigration 
medical examinations. DHS believes that the evidence it will consider 
in assessing an applicant's health will ensure that applicants 
understand what DHS will consider as part of the health factor, while 
minimizing burdensome information collection associated with this 
factor.
    DHS further notes that it does not, through considering any report 
of medical examination in an applicant's file in this rule, intend the 
rule to penalize or negatively affect any particular group, including 
farmworkers or other workers who may become injured or sick due to job-
related conditions or socioeconomic circumstances. Under this rule, 
being a farmworker who has been or is more likely to be injured on the 
job, or an individual whose socioeconomic circumstances may impact 
their health, would not on its own result in a finding that an 
applicant is inadmissible as likely at any time to become a public 
charge. As is the case with any of the statutory minimum factors, in 
making a public charge inadmissibility determination in the totality of 
the circumstances, the mere presence of any medical condition, as 
diagnosed on a report of medical examination in the record, would not 
render a noncitizen inadmissible under this rule; under this rule, DHS 
will, in the totality of the circumstances, take into account all of 
the factors identified in 8 CFR 212.22, including an applicant's 
health.\351\ DHS would consider the existence of any medical condition 
and weigh such evidence in the totality of the circumstances.
---------------------------------------------------------------------------

    \351\ 8 CFR 212.22(b).
---------------------------------------------------------------------------

    As a result, DHS disagrees that it would be appropriate to 
implement commenters' suggestion that DHS give positive weight or 
favorably consider the social, economic, and environmental factors that 
go into the applicant's health. Indeed, as noted elsewhere in this 
rule, each public charge inadmissibility determination is extremely 
fact-specific and the factors that may weigh heavily in one case may 
not have equal weight in another case depending on those specific facts 
in the totality of the applicant's circumstances.\352\ This is 
particularly true when considering an applicant's health. Therefore, 
DHS declines to implement any of the suggestions from these commenters.
---------------------------------------------------------------------------

    \352\ 87 FR at 10620 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: One commenter recommended that evidence of 
``inadmissibility-creating'' drug abuse or addiction be explicitly 
included as a heavily weighted negative factor in a public charge 
inadmissibility determination, as it would provide information relevant 
to a noncitizen's ability to maintain employment, income, and health, 
all of which are relevant to the noncitizen's ability to demonstrate 
self-reliance.

[[Page 55546]]

    Response: After considering public comments and feedback, DHS is 
amending the rule to include an express provision that DHS will 
consider, as part of the mandatory health factor, any report of an 
immigration medical examination performed by a civil surgeon or panel 
physician where such examination is required.\353\ Such a report of an 
immigration medical examination documents whether the noncitizen has 
Class A medical conditions, which include drug abuse or addiction, and 
Class B medical conditions, and whether the applicant has complied with 
all vaccination requirements, which DHS uses to determine whether an 
applicant is inadmissible on the health-related grounds.\354\ This 
addition will ensure that DHS officers consider, as part of the 
totality of the circumstances analysis, any health conditions, 
including drug abuse or addiction, identified on the report of medical 
examination.
---------------------------------------------------------------------------

    \353\ 8 CFR 212.22(a)(1)(ii). Note, however, that while this was 
not included in the proposed regulatory text, the NPRM indicated 
that the report would be considered. See 87 FR at 10617 (Feb. 24, 
2022) (``DHS will collect information relevant to the statutory 
minimum factors from existing information collections, e.g., 
information pertaining to the health factor will be obtained from 
Form I-693, Report of Medical Examination and Vaccination Record'').
    \354\ 42 CFR 34.3 and 34.4.
---------------------------------------------------------------------------

    To the extent that this commenter suggests that DHS needs to assess 
whether the applicant has demonstrated self-reliance, DHS believes, as 
noted in the NPRM, that this rulemaking reflects that the long-standing 
intent of the public charge ground of inadmissibility--reaching 
noncitizens with significant reliance on the government for 
support.\355\ DHS believes that this rule properly focuses on 
applicants who are primarily dependent on the government for 
subsistence (i.e., noncitizens who are unable or unwilling to work to 
support themselves, and who do not have other nongovernmental means of 
support such as family members, assets, or sponsors).\356\ DHS 
therefore disagrees with this commenter that it needs to amend the 
regulation to include any heavily weighted negative (or positive) 
factor in order to ensure that applicants have demonstrated that they 
are self-reliant. DHS is not adding any heavily weighted negative 
factors to this rule because DHS believes, consistent with the statute, 
that each public charge inadmissibility determination is extremely 
fact-specific and that declaring factors to be ``heavily weighted'' in 
all cases is not calculated to yield fair or consistent results; the 
factors that may weigh heavily in one case may not have equal weight in 
another case depending on those specific facts in the totality of the 
applicant's circumstances.\357\ As a result, DHS declines to add any 
heavily weighted factors, including a heavily weighted factor for drug 
abuse or addiction.
---------------------------------------------------------------------------

    \355\ 87 FR at 10620 (Feb. 24, 2022).
    \356\ 8 CFR 212.21(a). 87 FR at 10606 (Feb. 24, 2022).
    \357\ 87 FR at 10620 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: One commenter suggested that the health factor be given 
minimal weight in the totality of the circumstances.
    Response: DHS disagrees that it would be appropriate to give the 
health factor minimal weight in every case for the same reason that DHS 
disagrees that it should treat health as a heavily weighted factor. As 
noted above, each public charge inadmissibility determination is 
extremely fact-specific and the factors that may weigh heavily in one 
case may not have equal weight in another case depending on those 
specific facts in the totality of the applicant's circumstances.\358\ 
This is particularly true when considering an applicant's health. Some 
applicants, as reflected on a report of medical examination, may not 
have been diagnosed with any Class A or Class B medical conditions, 
while others have been diagnosed with Class A medical conditions such 
drug abuse or addiction or Class B conditions, such those that require 
extensive medical care or institutionalization. How much weight DHS 
would give to any of these medical conditions would depend on the exact 
nature of the condition as well as all of the other factors that DHS 
must consider in every case under this rule. As a result, DHS declines 
to add a provision to the rule that instructs officers to give minimal 
weight to the health factor in every case.
---------------------------------------------------------------------------

    \358\ 87 FR at 10620 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: One commenter stated that DHS should narrow the 
consideration of health in a public charge inadmissibility 
determination to only include situations in which a person's health 
condition is likely to permanently and irreversibly make them primarily 
reliant on the government, and that this determination should only be 
made by qualified medical professionals, not officers. Another 
commenter appeared to suggest that the health factor should be narrowly 
defined as having a severe or extreme condition that, in the presence 
of circumstances where the person does not have relatives or friends in 
the United States indicating their willingness to come to their 
assistance, would make the person more likely to become a public 
charge.
    Response: Congress requires DHS to consider the applicant's health 
when determining whether the applicant is likely at any time to become 
a public charge.\359\ DHS disagrees that it should narrowly define the 
health factor to only include consideration of severe or extreme 
conditions that in the absence of having friends and family to provide 
financial support make the applicant more likely to become a public 
charge, or to conditions, as determined by qualified medical 
professionals, that permanently and irreversibly make applicants 
primarily reliant on the government. That Congress determined that an 
applicant's health is one of the mandatory factors that is relevant to 
determining the applicant's likelihood at any time of becoming a public 
charge suggests that Congress did not intend to limit the health 
consideration to any specific medical condition or circumstances. 
Therefore, DHS declines to narrow the health factor as commenters 
suggest.
---------------------------------------------------------------------------

    \359\ See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C. 
1182(a)(4)(B)(i)(II).
---------------------------------------------------------------------------

    DHS notes, however, as explained above, that it has amended the 
rule to include an express provision that DHS will consider, as part of 
the mandatory health factor, any report of an immigration medical 
examination performed by a civil surgeon or panel physician where such 
examination is required.\360\ Such a report of an immigration medical 
examination documents whether the noncitizen has any Class A medical 
conditions, which include a current physical or mental disorder (and 
behavior associated with the disorder that may pose, or has posed, a 
threat to the property, safety, or welfare of the noncitizen or others) 
and drug abuse or addiction, and Class B medical conditions, including 
a physical or mental health condition, disease, or disability serious 
in degree or permanent in nature, and whether the applicant has 
complied with all vaccination requirements, which DHS uses to determine 
whether an applicant is inadmissible on the health-related 
grounds.\361\ This addition will ensure that DHS officers consider, as 
part of the totality of the circumstances analysis,

[[Page 55547]]

any health conditions identified on the report of medical examination 
in the totality of the circumstances. The approach that DHS has taken 
in this rule leverages evidence that will generally already exist in 
the applicant's record. DHS acknowledges that some information on such 
a report may not bear significantly upon a determination that a person 
is or not likely to become a public charge, but in this instance, DHS 
believes that the matter can be appropriately addressed in guidance.
---------------------------------------------------------------------------

    \360\ 8 CFR 212.22(a)(1)(ii). Note, however, that while this was 
not included in the proposed regulatory text, the NPRM indicated 
that the report would be considered. See 87 FR at 10617 (Feb. 24, 
2022) (``DHS will collect information relevant to the statutory 
minimum factors from existing information collections, e.g., 
information pertaining to the health factor will be obtained from 
Form I-693, Report of Medical Examination and Vaccination Record'').
    \361\ 42 CFR 34.3 and 34.4.
---------------------------------------------------------------------------

    Comment: Many commenters expressed support for the rule's 
recognition that a noncitizen should not be considered likely at any 
time to become a public charge simply because the noncitizen has a 
disability and instead it is only one factor to be considered in the 
totality of circumstances and cannot be the sole basis for a denial. 
One of the commenters stated that (1) many disabilities do not impact 
an individual's health or require extensive medical care (i.e., the 
presence of the disability is a life condition rather than a health 
condition); (2) many people have disabilities that do not result in 
either illness or long-term health conditions (e.g., people with 
intellectual and developmental disabilities may not have a long-term 
health-related condition); and (3) many immigration officers are not 
trained to make disability or health diagnoses and should not assume 
that people who present with a disability have severe health issues.
    Response: DHS agrees that officers should not assume that 
applicants with disabilities have health issues and that DHS officers 
should not make health diagnoses. After considering comments and public 
feedback, DHS has included a provision in this rule specifying that 
when considering an applicant's health, DHS will consider any report of 
an immigration medical examination performed by a civil surgeon or 
panel physician where such examination is required, to which DHS will 
generally defer absent evidence that such report is incomplete.\362\ 
The report of the immigration medical examination will include, as 
required by HHS regulations, any Class A or Class B medical conditions 
diagnosed by the physician, as well as ``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.'' \363\ The report of medical examination will 
also include, as required by the CDC Technical Instructions for Civil 
Surgeons \364\ and the Technical Instructions for Panel 
Physicians,\365\ a notation for any Class B medical condition 
identified on the form by the physician, that although it ``does not 
constitute a specific excludable condition, [it] represents a departure 
from normal health or well-being that is significant enough to possibly 
interfere with the person's ability to care for him- or herself, to 
attend school or work, or that may require extensive medical treatment 
or institutionalization in the future.'' \366\ DHS would rely on any 
such findings made by the civil surgeon or panel physician as to 
whether any Class A or Class B conditions were identified in the report 
of medical examination unless there is evidence that the report is 
incomplete. DHS has amended the regulatory text consistent with this 
approach.
---------------------------------------------------------------------------

    \362\ 8 CFR 212.22(a)(1)(ii). Note, however, that while this was 
not included in the proposed regulatory text in the NPRM, the NPRM 
indicated that the report would be considered. See 87 FR at 10617 
(Feb. 24, 2022) (``DHS will collect information relevant to the 
statutory minimum factors from existing information collections, 
e.g., information pertaining to the health factor will be obtained 
from Form I-693, Report of Medical Examination and Vaccination 
Record'').
    \363\ 42 CFR 34.4(b)(2) and (c)(2).
    \364\ CDC, Civil Surgeons, ``Medical History and Physical 
Examination,'' https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons/medical-history-and-physical-exam.html (last visited Aug. 
16, 2022).
    \365\ CDC, Panel Physicians, ``Medical History and Physical 
Examination,'' https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/medical-history-physical-exam.html (last visited Aug. 16, 
2022)
    \366\ See CDC, ``Technical Instructions for Civil Surgeons,'' 
https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons.html (last 
visited Aug. 16, 2022); See 42 CFR 34.3(i).
---------------------------------------------------------------------------

    DHS notes, however, that in making a public charge inadmissibility 
determination in the totality of the circumstances, the mere presence 
of any Class A or Class B condition, diagnosed on a report of medical 
examination, including a ``disability serious in degree or permanent in 
nature . . .'' \367\ would not alone render a noncitizen inadmissible 
under this rule; under this rule, DHS will, in the totality of the 
circumstances, take into account all of the factors identified in 8 CFR 
212.22, including an applicant's health.\368\ Furthermore, under this 
rule, DHS reiterates that an applicant with a disability would not be 
found inadmissible on the public charge ground solely on account of 
that disability.\369\ Instead, DHS would look at whether the individual 
had a medical condition impacting their health and weigh such evidence 
in the totality of the circumstances.
---------------------------------------------------------------------------

    \367\ 42 CFR 34.4(c).
    \368\ 8 CFR 212.22(b).
    \369\ 8 CFR 212.22(a)(4).
---------------------------------------------------------------------------

    Comment: Commenters stated that disability and chronic health 
conditions should not be considered in a public charge inadmissibility 
determination under any circumstances in order to avoid unfair 
decisions by officers based on misunderstanding or lack of information 
about a noncitizen's disability or officers' implicit bias. Similarly, 
one commenter stated that consideration of an applicant's health 
condition risks disqualifying applicants based on disability.
    Response: DHS agrees that disability alone can never disqualify an 
individual but disagrees that it should exclude from consideration all 
disabilities. Under this rule, USCIS' approach to the health factor 
will result in the consideration of some health conditions that are 
also disabilities. Specifically, in each case, USCIS' review of the 
Form I-693 would result in consideration of a Class A or Class B 
condition reported by a civil surgeon or panel physician on a report of 
medical examination. Some of these conditions may relate to 
disabilities. DHS agrees it is important that decisions by its officers 
be based on objective information and believes the Form 1-693 will 
help. DHS will provide further guidance for officers on how to 
accurately consider whether a disability reported by a civil surgeon or 
panel physician impacts an applicant's likelihood of becoming a public 
charge.
    Congress requires DHS to review the applicant's health when 
determining whether the applicant is likely at any time to become a 
public charge.\370\ Congress did not direct DHS to consider disability 
as such, and DHS will not do so under this rule. That said, Congress 
also did not provide that DHS's consideration of an applicant's health 
should exclude consideration of any aspect of an applicant's health 
that also constitutes a disability. Consistent with the statute, DHS 
declines to exclude consideration of an applicant's disability as part 
of the health factor in the totality of the circumstances.
---------------------------------------------------------------------------

    \370\ See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C. 
1182(a)(4)(B)(i)(II).
---------------------------------------------------------------------------

    DHS further disagrees that considering any disabilities that are 
identified on a report of medical examination completed by a civil 
surgeon or panel physician disability will disqualify such applicants 
from immigration benefits based on their disability. Under this rule, 
DHS will not deny admission or adjustment of status to any applicant 
solely based on the

[[Page 55548]]

applicant's disability. As noted in the NPRM and above, under this 
rule, no one factor, other than the lack of a required Affidavit of 
Support Under Section 213A of the INA, is outcome determinative.\371\ 
Indeed, under this rule, the fact that an applicant has a disability as 
defined by Section 504 of the Rehabilitation Act will never alone be a 
sufficient basis to determine whether an applicant for admission or 
adjustment of status is likely at any time to become a public 
charge.\372\
---------------------------------------------------------------------------

    \371\ See 8 CFR 212.22(b).
    \372\ 8 CFR 212.22(a)(4).
---------------------------------------------------------------------------

    In making a public charge inadmissibility determination in the 
totality of the circumstances, the mere presence of a disability or of 
a particular Class A or Class B condition diagnosed on a report of 
medical examination would not alone render a noncitizen inadmissible 
under this rule; under this rule, DHS will, in the totality of the 
circumstances, take into account all of the factors identified in 8 CFR 
212.22, including an applicant's health.\373\ Furthermore, under this 
rule, DHS reiterates that an applicant with a disability would not be 
found inadmissible on the public charge ground solely on account of 
that disability.\374\
---------------------------------------------------------------------------

    \373\ 8 CFR 212.22(b).
    \374\ 8 CFR 212.22(a)(4).
---------------------------------------------------------------------------

    Comment: A commenter stated that DHS should not use the Report of 
Medical Examination and Vaccination Record, or evidence of a medical 
condition, in a public charge inadmissibility determination because 
disability does not predict employability and does not consider that 
some disabilities or conditions are temporary and individuals may 
recover.
    Response: DHS disagrees that it should not use a report of medical 
examination in an applicant's record as part of its consideration of an 
applicant's health in the totality of the circumstances. As noted in 
the NPRM,\375\ consistent with DHS's desire to minimize burdensome and 
unnecessary evidentiary and information collection requirements 
pertaining to the statutory minimum factors, DHS believes it 
appropriate, when considering an applicant's health, to consider 
evidence that would generally already be in the applicant's record. A 
report of medical examination would normally be in an adjustment of 
status applicant's record, either because the adjustment applicant is 
required to undergo an immigration medical examination conducted by a 
USCIS-designated civil surgeon, which is documented on the Report of 
Medical Examination and Vaccination record (Form I-693) as part of the 
adjustment of status process,\376\ or the applicant is exempt from the 
Form I-693 requirement because they were previously examined by a panel 
physician prior to entering the United States and has a report of 
medical examination completed by a panel physician overseas in their 
record.\377\ As noted above, DHS added a provision in this rule, after 
considering public comments and feedback, to expressly consider any 
report of medical examination that is in an applicant's record, which 
DHS believes will ensure that DHS officers consider, as part of the 
totality of the circumstances analysis, any health conditions that 
bears on an applicant's likelihood at any time of becoming a public 
charge. DHS notes, however, that any conditions identified on a report 
of medical examination in the record will be considered, along with the 
other factors identified in this rule, in the totality of the 
circumstances.\378\ No condition identified on a report of medical 
examination is outcome determinative.\379\
---------------------------------------------------------------------------

    \375\ 87 FR at 10617 (Feb. 24, 2022).
    \376\ INA sec. 232(b), 8 U.S.C. 1222(b); 8 CFR 245.5.
    \377\ See, e.g., OMB, ``Medical Examination for Immigrant or 
Refugee Applicant,'' ``Report of Medical Examination by Panel 
Physician (Form DS 2054)'' OMB Control No. 1405-0113, https://omb.report/omb/1405-0113 (last visited Aug. 16, 2022).
    \378\ 8 CFR 212.22(b).
    \379\ 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: One commenter stated that health factors that are not 
recorded as a Class B certification by the civil surgeon performing the 
medical screening should be disregarded in a public charge 
inadmissibility determination.
    Response: As noted above, when considering the applicant's health, 
DHS will consider any report of medical examination in the applicant's 
record as part of a public charge inadmissibility determination.\380\ 
DHS notes, however, that any report of medical examination in the 
record will only contain diagnoses of Class A and Class B medical 
conditions.\381\ While DHS will not require applicants to submit 
initial evidence other than any required report of medical examination, 
an applicant is free to submit any other evidence relevant to the 
health factor for consideration in the totality of the circumstances.
---------------------------------------------------------------------------

    \380\ 8 CFR 212.22(a)(1)(ii).
    \381\ 42 CFR 34.3(b).
---------------------------------------------------------------------------

    Comment: One commenter recommended that DHS provide further 
examples to clarify what is meant by ``disability alone'' in order to 
confirm that enrollment in programs available to working individuals 
with disabilities for whom risk of institutionalization is an 
eligibility criterion is not a sufficient basis for an adverse public 
charge inadmissibility determination.
    Response: The provision stating that disability alone is an 
insufficient basis to determine whether the applicant is likely at any 
time to become a public charge means that evidence that the applicant 
has a disability cannot by itself be the basis to find that the 
applicant is inadmissible. As explained more thoroughly in the 
NPRM,\382\ DHS will not presume that if an individual has a disability 
then the applicant necessarily is likely at any time to receive cash 
assistance for income maintenance or require long-term 
institutionalization at government expense, or otherwise presume that 
their disability in and of itself negatively impacts any of the 
statutory minimum factors, such as the applicant's education and 
skills, or assets, resources, and financial status. For example, many 
disabilities do not impact an individual's health or require extensive 
medical care and the vast majority of disabilities do not require 
institutional care at government expense. DHS, in considering an 
applicant's health, will consider the existence of any medical 
condition diagnosed on the report of medical examination and weigh such 
evidence in the totality of the circumstances. Moreover, as in every 
case, DHS will consider all of the factors set forth in 8 CFR 212.22(a) 
in determining whether an applicant is likely at any time to become a 
public charge in the totality of the circumstances.\383\
---------------------------------------------------------------------------

    \382\ 87 FR at 10620 (Feb 24, 2022).
    \383\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: One commenter stated that DHS must consider a noncitizen's 
disabilities or chronic health conditions as part of the health factor, 
because an analysis of a noncitizen's health is incomplete without 
evaluating whether disabilities or chronic health conditions are 
present, and DHS should consider the existence of a medical condition 
in light of the effect that condition is likely to have on a person's 
ability to attend school or work in the totality of the circumstances. 
The commenter further stated that considering a noncitizen's disability 
is not unlawful or discriminatory because Congress requires DHS to 
consider a noncitizen's health as part of the public charge 
inadmissibility determination and has not prohibited the application of 
the public charge ground of inadmissibility to noncitizens with 
disabilities. The

[[Page 55549]]

commenter also recommended DHS consider whether the noncitizen has the 
resources to pay for associated medical costs.
    Response: DHS believes that disability is not necessarily 
indicative of poor health. DHS agrees that Congress did not 
specifically provide an exemption from the public charge ground of 
inadmissibility for individuals with disabilities, and in fact, as 
noted above, included health as a mandatory factor in the public charge 
inadmissibility determination.\384\ DHS will consider health conditions 
identified in the record as part of the health factor in the totality 
of the circumstances. As noted above, Congress requires DHS to review 
the applicant's health when determining whether the applicant is likely 
at any time to become a public charge.\385\
---------------------------------------------------------------------------

    \384\ INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
    \385\ See INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C. 
1182(a)(4)(B)(i)(II).
---------------------------------------------------------------------------

    DHS declines to add a provision in this rule that requires DHS to 
consider whether the noncitizen has the resources to pay for medical 
costs associated with a disability. As DHS noted above, DHS will not 
presume that an applicant who has a disability will require extensive 
medical care or treatment as a result of their disability. That said, 
DHS believes that its consideration of any report of medical 
examination in the record is adequate evidence of the applicant's 
health as it relates to whether the applicant requires extensive 
medical care. Indeed, as noted above, the report of medical examination 
will include, as required by HHS regulations, any Class A or Class B 
conditions diagnosed by the physician, as well as ``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.'' \386\ In diagnosing a Class B condition on a 
report of medical examination, civil surgeons and panel physicians are 
required to note that that although it ``does not constitute a specific 
excludable condition, [it] represents a departure from normal health or 
well-being that is significant enough to possibly interfere with the 
person's ability to care for him- or herself, to attend school or work, 
or that may require extensive medical treatment in the future.'' \387\ 
This information, coupled with the noncitizen's household's income, 
assets, and liabilities, which is considered as part of the assets, 
resources, and financial status factor in the totality of the 
circumstances,\388\ will adequately address whether or not the 
applicant has sufficient resources to pay for medical costs associated 
with a disability or any other condition diagnosed on the report of 
medical examination. As such, DHS will not add any provisions to this 
rule in response to this comment.
---------------------------------------------------------------------------

    \386\ 42 CFR 34.4(b)(2) and (c)(2).
    \387\ CDC, Civil Surgeons, ``Medical History and Physical 
Examination,'' https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons/medical-history-and-physical-exam.html (last visited Aug. 
16, 2022); CDC, Panel Physicians, ``Medical History and Physical 
Examination,'' https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/medical-history-physical-exam.html (last viewed Aug. 16, 
2022).
    \388\ See 8 CFR 212.22(a)(1)(iv). Note that an applicant's 
household income, assets, and liabilities excludes income from 
public benefits listed in 8 CFR 212.21(b) as well as income or 
assets from illegal activities or sources such as proceeds from 
illegal gambling or drug sales.
---------------------------------------------------------------------------

    Comment: Several commenters stated that consideration of an 
applicant's health violates Section 504 of the Rehabilitation Act.
    Response: DHS disagrees with the comments stating that 
consideration of an applicant's health, which includes consideration of 
any disabilities that are Class A or B conditions, as identified on a 
report of medical examination, violates the Rehabilitation Act. As 
noted in the NPRM, in enacting section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), which applies to all noncitizens seeking a visa, admission, 
or adjustment of status unless exempted by Congress, Congress required 
DHS to consider, as part of the public charge inadmissibility 
determination, a noncitizen's health. Although Congress has, over time, 
significantly reduced the prohibitions on immigration for noncitizens 
with mental and physical disabilities and also amended PRWORA to 
restore the ability of certain noncitizens with disabilities to receive 
certain public assistance, such as SSI,\389\ Congress has never 
prohibited consideration of a noncitizen's health as part of a public 
charge inadmissibility determination if the noncitizen has mental or 
physical disabilities.
---------------------------------------------------------------------------

    \389\ See generally Mark Weber, ``Opening the Golden Door: 
Disability and the Law of Immigration,'' 8 Journal of Gender, Race 
and Justice 153 (2004), at 4-5, 8 (discussing historical changes in 
1986 and 1990 immigration laws that removed various prohibitions on 
noncitizens with mental and physical disabilities, unless they 
represented a threat to themselves or others; describing restoration 
of SSI disability benefits to noncitizens who had been receiving 
them before August 22, 1996). See also John 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).
---------------------------------------------------------------------------

    This rule is consistent with federal statutes and regulations with 
respect to discrimination against noncitizens with disabilities. If a 
disability on a report of medical examination in the record is related 
to a noncitizen's health, it is therefore properly considered as part 
of the public charge inadmissibility determination. However, under this 
rule, DHS will not presume that a noncitizen having a disability is 
necessarily in poor health. Furthermore, a noncitizen's health is never 
outcome determinative--that is, a noncitizen's health cannot be the 
sole basis for a finding that a noncitizen is inadmissible as likely to 
become a public charge.\390\ As such, a disability alone will never 
result in a public charge inadmissibility finding, and, as noted in the 
NPRM,\391\ the rule expressly prohibits disability being the sole basis 
for finding an applicant is inadmissible on the public charge 
ground.\392\ If a noncitizen's disability is a Class A or B condition 
identified in the report of medical examination, then as with any other 
such condition, the noncitizen's disability will be considered along 
with the other factors in the totality of the circumstances. A 
noncitizen 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.\393\ DHS will look at each of the statutory 
minimum factors, any current and/or past receipt of public cash 
assistance for income maintenance or long-term institutionalization at 
government expense, and the favorably considered sufficient Affidavit 
of Support Under Section 213A of the INA, where required, in the 
totality of the circumstances. Therefore, DHS believes that 
consideration of an applicant's 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.''
---------------------------------------------------------------------------

    \390\ 8 CFR 212.22(b).
    \391\ 87 FR at 10620 (Feb. 24, 2022).
    \392\ 8 CFR 212.22(a)(4).
    \393\ 8 CFR 212.22(a)(4); 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Therefore, DHS will not prohibit the consideration of an 
applicant's disability in the public charge inadmissibility 
determination to the extent is impacts their health. The final rule 
also includes other provisions to better ensure fair and consistent 
treatment of individuals with disabilities; for example, DHS will 
direct officers to take into account any evidence that the current or 
past institutionalization violates the

[[Page 55550]]

Rehabilitation Act or any other Federal law.\394\
---------------------------------------------------------------------------

    \394\ 8 CFR 212.22(a)(3).
---------------------------------------------------------------------------

    Comment: One commenter stated that proposed 8 CFR 212.22(a)(4) is 
both a reasonable and necessary implementation of Section 504 of the 
Rehabilitation Act.
    Response: DHS agrees that the regulation is consistent with Section 
504 of the Rehabilitation Act. DHS notes that under this rule, the fact 
that an applicant has a disability as defined by Section 504 of the 
Rehabilitation Act will never alone be a sufficient basis to determine 
whether an applicant for admission or adjustment of status is likely at 
any time to become a public charge. As explained more in the responses 
to comments about the health factor, in making a public charge 
inadmissibility determination in the totality of the circumstances, the 
mere presence of any disability or a medical condition diagnosed on a 
report of medical examination \395\ would not render a noncitizen 
inadmissible under this rule.\396\ DHS will, in the totality of the 
circumstances, take into account all of the factors identified in 8 CFR 
212.22(a), including an applicant's health.\397\ Also under this rule, 
an applicant with a disability would not be found inadmissible on the 
public charge ground solely on account of that disability.\398\
---------------------------------------------------------------------------

    \395\ 8 CFR 212.22(a)(1)(ii).
    \396\ 8 CFR 212.22(b).
    \397\ 8 CFR 212.22(b).
    \398\ 8 CFR 212.22(a)(4).
---------------------------------------------------------------------------

c. Family Status
    Comment: One commenter suggested that ``family status'' be defined 
expansively as ``family unit'' with the end goal of keeping families 
together. Furthermore this commenter stated that USCIS should interpret 
the term ``family unit'' to mean the noncitizen's close relatives that 
can care for the noncitizen such as spouses, parents, siblings, 
children, grandparents, aunts/uncles, and cousins in keeping with the 
Congressional goal and strong presumption to interpret immigration 
statutes in favor of keeping a family unit together.
    Response: While DHS supports family unity, under section 212(a)(4) 
of the INA, 8 U.S.C. 1182(a)(4), officers are required to consider 
specific minimum factors in determining whether an applicant seeking 
admission to the United States or seeking to adjust status to that of 
lawful permanent resident is likely at any time to become a public 
charge, including the noncitizen's family status.\399\ DHS acknowledges 
that the definition of a family may include a variety of a noncitizen's 
relatives and close relations. Therefore, DHS has decided that a 
noncitizen's family status will be determined using a noncitizen's 
household size, as defined in 8 CFR 212.21(f). This definition includes 
a noncitizen; the noncitizen's spouse (if residing with the 
noncitizen); parents, children, and unmarried siblings under 21 years 
of age (if residing with the noncitizen); any other individuals not 
physically residing with the noncitizen but listed as a dependent on a 
noncitizen's Federal income tax return; and any other individual who 
lists the noncitizen as a dependent on that individual's Federal income 
tax return. In order to account for the contributions of these 
household members, DHS will determine a noncitizen's assets, resources, 
and financial status based on the household's income, assets, and 
liabilities.\400\ DHS believes this is the best way to interpret the 
impact of a noncitizen's family status and its relation to the 
noncitizen's likelihood of becoming a public charge at any time.
---------------------------------------------------------------------------

    \399\ See INA sec. 212(a)(4)(B)(i)(III), 8 U.S.C. 
1182(a)(4)(B)(i)(III).
    \400\ See 8 CFR 212.22(a)(1)(iv).
---------------------------------------------------------------------------

    Comment: One commenter stated that the applicant's family status 
should only be taken into consideration in connection with reviewing 
the noncitizen's household size consistent with current calculations 
utilized for the Affidavit of Support Under Section 213A of the INA. 
Having household members with ties to the United States should be 
considered a positive factor. Family status should not be regarded as a 
negative factor except in consideration of assets, resources, and 
financial status and consistent with the requirements of the Affidavit 
of Support Under Section 213A of the INA.
    Response: DHS appreciates this commenter's thorough recommendation 
for the approach to assessing an applicant's family status. DHS will 
not be assigning any weight within this rule regarding any of the 
statutory factors, but will instead indicate what will be considered in 
relation to each statutory minimum factor and direct officers to make a 
public charge inadmissibility determination based on the totality of a 
noncitizen's circumstances. A noncitizen's family status will be 
determined by that noncitizen's household size.\401\
---------------------------------------------------------------------------

    \401\ See 8 CFR 212.21(f).
---------------------------------------------------------------------------

    DHS considered the calculation used to determine a sponsor's 
household size in connection with an Affidavit of Support Under Section 
213A of the INA, but notes that the sponsor's household size 
calculation is designed to demonstrate that a sponsor's income and 
assets are sufficient to support their household at the corresponding 
HHS Poverty Guideline. Because the family status factor is intended for 
a public charge inadmissibility determination and not a direct 
comparison of a noncitizen's income with a noncitizen's household size, 
DHS decided to clarify a simpler definition of household size for use 
in a public charge inadmissibility determination that would better 
reflect if an individual is likely at any time to become a public 
charge in a totality of the circumstances assessment.
d. Assets, Resources, and Financial Status
    Comment: One commenter disagreed with evaluating an applicant's 
assets as part of a public charge inadmissibility determination because 
some life events could negatively impact a family's finances at one 
point in time, and therefore availability of assets and resources is 
not a predictable factor. Another commenter expressed disapproval of 
using a noncitizen's limited assets or resources when such an 
assessment is unlikely to conceptualize the impact of low income 
immigrants to communities in the United States since noncitizens 
contribute greatly to the health of the U.S. economy and sometimes do 
so in professions that do not traditionally generate high income and 
therefore do not allow for the accumulation of wealth, assets, and 
resources, but remain essential to the economy.
    Response: DHS disagrees that an applicant's assets, resources, and 
financial status should not be included in a public charge 
inadmissibility determination, and also disagrees that considering this 
factor diminishes the importance of certain low wage earners and their 
contributions to the United States. Under section 212(a)(4) of the INA, 
8 U.S.C. 1182(a)(4), officers are required to consider specific minimum 
factors in determining whether an applicant seeking admission to the 
United States or seeking to adjust status to that of lawful permanent 
resident is likely at any time to become a public charge. These factors 
include the noncitizen's assets, resources, and financial status.\402\ 
DHS appreciates that some noncitizens may not hold significant assets 
or resources, however, and DHS agrees that this does not necessarily 
indicate that such a

[[Page 55551]]

noncitizen is likely to become a public charge. DHS notes that the 
public charge inadmissibility determination is based on a totality of 
the noncitizen's circumstances, and no one factor, other than the lack 
of a sufficient Affidavit of Support Under Section 213A of the INA, if 
required, should be the sole criterion for determining if a noncitizen 
is likely to become a public charge.\403\ DHS will review a 
noncitizen's circumstances, taking into account all of the statutory 
minimum factors, the Affidavit of Support Under Section 213A of the 
INA, if required, current and past use of public cash assistance for 
income maintenance, and long-term institutionalization at government 
expense in order to make a complete and fair public charge 
inadmissibility determination.
---------------------------------------------------------------------------

    \402\ See INA sec. 212(a)(4)(B)(i)(IV), 8 U.S.C. 
1182(a)(4)(B)(i)(IV).
    \403\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: A farmworker advocacy organization discouraged DHS from 
considering debts and other financial obligations, stating that many 
farmworkers, especially H-2A workers, have accumulated significant debt 
even though it is illegal for recruiters to charge fees, however, debt 
does not impact their ability to work and does not create a reliance on 
the U.S. government. The commenter noted that H-2 workers are not 
eligible for most public benefits. Other commenters expressed concerns 
about the consideration of debt and financial liabilities given that 
some populations are particularly vulnerable to unfair or predatory 
debt practices. A commenter raised the issue of debt in the context of 
domestic or immigrant abuse--where partners or others are accruing debt 
without the consent of the noncitizen.
    Response: DHS disagrees with commenters that DHS should not 
consider debts or other financial obligations in a public charge 
inadmissibility determination. Under this rule, DHS is determining 
whether a noncitizen is likely at any time to become primarily 
dependent on the government for subsistence. DHS also notes that an 
individual's financial obligations and debts affect the financial 
status of the individual, and an evaluation of a noncitizen's assets 
without considering the noncitizen's financial obligations and debts 
would result in an artificially inflated calculation of the 
noncitizen's financial status, as those obligations and debts would 
decrease the finances that are actually accessible to the noncitizen. 
DHS agrees that if a noncitizen has financial obligations and debts 
that it does not necessarily indicate that the noncitizen is likely at 
any time to become a public charge. DHS will use a totality of the 
circumstances framework so that officers may assess the noncitizen's 
circumstances as a whole. DHS also notes that VAWA noncitizens, T 
nonimmigrants and U nonimmigrants are exempt from the public charge 
ground of inadmissibility. With respect to H-2 nonimmigrants, DHS 
agrees that they are generally not eligible for public benefits. DHS 
also notes that these nonimmigrants can and should report the charging 
of unlawful recruitment fees.
    Comment: One commenter stated that credit history should not be 
used in a public charge inadmissibility determination because it is an 
unreliable predictor of a person's long-term financial stability or 
future earnings. The same commenter also stated that, absent a refusal 
to accept work, a person's history of unemployment also should not be 
considered.
    Response: DHS agrees that a noncitizen's credit history is not 
necessarily a predictor of a noncitizen's likelihood of becoming a 
public charge. This rule will not require noncitizens to submit 
evidence in relation to credit history in order to make a public charge 
inadmissibility determination.
    DHS understands the commenter's concern that a person's history of 
unemployment may be considered negatively. DHS notes that a public 
charge inadmissibility determination will be made based on the totality 
of a noncitizen's circumstances, in which a noncitizen's employment 
history may be considered in light of the noncitizen's degrees, 
certifications, licenses, skills obtained through work experience or 
educational programs, and educational certificates that the noncitizen 
may have received or the income and assets employment may have 
generated. DHS understands that some noncitizens will have periods of 
unemployment and emphasizes that a history of unemployment is not a 
specific factor DHS has identified for a public charge inadmissibility 
determination but may be considered as part of a review of a 
noncitizen's assets, resources, and financial status in the totality of 
circumstances. In assessing a noncitizen's likelihood at any time of 
becoming a public charge, DHS will consider the statutory minimum 
factors, the Affidavit of Support Under Section 213A of the INA, if 
required, current and/or past receipt of public cash assistance for 
income maintenance, and long-term institutionalization at government 
expense in the totality of the circumstances.\404\
---------------------------------------------------------------------------

    \404\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: Several commenters made suggestions about what DHS should 
consider regarding the assets, resources, and financial status factor. 
One commenter stated that DHS should consider the assets and resources 
of all family members, including a sponsor, if the noncitizen has one. 
Another commenter suggested DHS only require evidence of assets 
attained most recently, for example during the past 1 to 2 years, to 
show sufficient assets for the public charge inadmissibility 
determination. One commenter suggested that DHS make a fair assessment 
of unpaid, volunteer, and other activities individuals undertake 
without paid compensation, based on effective minimum wage or rates 
consistent with those paid for similar work in the applicant's relevant 
labor market, whichever is highest, and including reasonable paid 
fringe benefits.
    Response: DHS agrees that it should consider the assets and 
resources of all family members, including a sponsor who executed an 
Affidavit of Support Under Section 213A of the INA, if applicable, but 
only if such family members are part of the applicant's household. As 
such, DHS specifies in this rule that a noncitizen's assets, resources, 
and financial status are demonstrated by the income, assets, and 
liabilities (excluding any income from public benefits listed in 8 CFR 
212.21(b) and income or assets from illegal activities or sources such 
as proceeds from illegal gambling or drug sales) of the noncitizen's 
household.\405\ The exclusion of income from illegal activities, 
including illegal gambling or drug sales, is consistent with how USCIS 
treats sponsors' household income, as it is defined in 8 CFR 213a.1, in 
the context of the Affidavit of Support Under Section 213A of the INA. 
In that context, a sponsor may not include any income from the 
intending immigrant derived from ``unlawful sources'' \406\ or income 
from any household member derived ``from illegal acts.'' \407\
---------------------------------------------------------------------------

    \405\ See 8 CFR 212.22(a)(1)(iv).
    \406\ See 8 CFR 213a.1 (definition of household income prohibits 
the sponsor including the intending immigrant's income from unlawful 
sources as part of the sponsor's household income).
    \407\ See USCIS, ``Instructions for Affidavit of Support Under 
Section 213A of the INA,'' OMB Control No. 1615-0075 (expires Dec. 
31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-864instr.pdf (last visited Aug. 16, 2022) (prohibiting the sponsor 
from ``rely[ing] on a household member's income from illegal acts, 
such as proceeds from illegal gambling or drug sales, to meet the 
income requirement even if the household member paid taxes on that 
income.''). Cf. also 8 CFR 204.6(e) and (j)(3) (consistent with 
section 203(b)(5)(D)(ii) of the INA, 8 U.S.C. 1153(b)(5)(D)(ii), 
defining ``capital'' for purposes of EB-5 immigrant petitions to 
exclude ``[a]ssets acquired, directly or indirectly, by unlawful 
means (such as criminal activities)'').

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

[[Page 55552]]

    A noncitizen's household includes the noncitizen as well as the 
noncitizen's spouse, children, unmarried siblings under 21 years of age 
and physically residing with the noncitizen, any other individuals 
listed as dependents on the noncitizen's Federal income tax return, and 
any other individual who lists the noncitizen as dependent on their 
Federal income tax returns.\408\
---------------------------------------------------------------------------

    \408\ See 8 CFR 212.21(f).
---------------------------------------------------------------------------

    If the applicant is required to submit an Affidavit of Support 
Under Section 213A of the INA, and if the sponsor who executed that 
affidavit is a member of the applicant's household as that term is 
defined in new 8 CFR 212.21(f), then such sponsor's income would be 
included in the applicant's household income when making a public 
charge inadmissibility determination.\409\ However, if the sponsor who 
executed the Affidavit of Support Under Section 213A of the INA is not 
a member of the applicant's household but nonetheless provides some 
income to the applicant or another member of the applicant's household, 
that portion of income would be included in the applicant's household 
income when making a public charge inadmissibility determination.
---------------------------------------------------------------------------

    \409\ See 8 CFR 212.22(a)(iv).
---------------------------------------------------------------------------

    DHS disagrees that recently acquired assets should be the only 
assets considered in a public charge inadmissibility determination. DHS 
recognizes that some assets are held longer term than others and has 
not included a time restriction on how long noncitizens have maintained 
their assets. While considering the assets, resources, and financial 
status of a noncitizen, DHS will consider the noncitizen's assets 
alongside the noncitizen's liabilities in order to account for the 
effect of financial liabilities on an individual's overall financial 
status in the totality of the circumstances.
    DHS recognizes the value of unpaid, volunteer, and other activities 
individuals undertake without paid compensation. However, DHS is unable 
to clearly and fairly establish a system that would take into account 
the labor market and fringe benefits associated with comparable paid 
positions. DHS acknowledges that some unpaid or volunteer activities 
may equip a noncitizen with occupational skills, and DHS may therefore 
consider these skills under the education and skills factor as part of 
a public charge inadmissibility determination.
    Comment: One commenter indicated that DHS should be flexible in the 
criteria and evidence required to demonstrate assets and income, as 
many noncitizens are unbanked and lack a credit history, and consider 
an applicant's particular circumstances especially when considering 
occupations with seasonal fluctuations, historically low wages, and 
unpredictable availability, such as agricultural work. A different 
commenter stated that individuals should be able to provide tax 
returns, even if filed with an ITIN, and should be able to provide 
evidence of income that resulted from unauthorized employment.
    Response: DHS agrees that noncitizens should be able to present a 
variety of evidence to demonstrate their assets, resources, and 
financial status. DHS has not established any required evidence a 
noncitizen must submit to establish the income, assets, and liabilities 
of the noncitizen's household, and as such, will consider any evidence 
a noncitizen chooses to submit regarding this factor. If more 
information is needed to make a public charge inadmissibility 
determination, DHS may request an applicant to submit additional 
evidence prior to making a decision. DHS also emphasizes that a public 
charge inadmissibility determination is based on the totality of the 
noncitizen's circumstances and no one factor, other than the lack of a 
sufficient Affidavit of Support Under Section 213A of the INA, if 
required, is the sole criterion for determining if a noncitizen is 
likely at any time to become a public charge.\410\
---------------------------------------------------------------------------

    \410\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    While DHS will review any evidence a noncitizen chooses to submit 
to support a finding that the noncitizen is not likely at any time to 
become a public charge, DHS will not consider income or assets from 
illegal activities or sources. As DHS stated in the 2019 Final Rule, 
income derived from illegal activities or sources should be excluded 
from consideration including, but not limited to, income gained 
illegally from drug sales, gambling, prostitution, or alien smuggling 
both because of the strong policy interest in excluding consideration 
of this type of activity, and because it would likely be unwarranted to 
make a prospective determination that assumes the noncitizen would 
continue to receive such income in the future.
    As to the suggestion that applicants should be able to provide 
evidence of income that resulted from unauthorized employment, DHS 
agrees. Consistent with the approach taken in the 2019 Final Rule, DHS 
believes that limiting consideration of household income to only income 
that is derived from authorized employment would go beyond the purpose 
of this rule, which is aimed at determining whether a noncitizen has 
the education, skills, or other traits necessary to support themselves 
in the future. DHS will therefore consider any income derived from 
employment in the public charge inadmissibility determination in the 
totality of the circumstances, regardless of whether the household 
members had employment authorization, as long as the income is not 
derived from illegal sources, such as illegal gambling. As DHS noted in 
the 2019 Final Rule, whether or not the applicant or a member of the 
applicant's household engaged in unauthorized employment, and any 
immigration consequences flowing from such unauthorized employment, is 
a separate determination from the public charge inadmissibility 
determination.\411\
---------------------------------------------------------------------------

    \411\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41420 (Aug. 14, 2019).
---------------------------------------------------------------------------

    Comment: One commenter stated that DHS should prioritize 
consideration of a noncitizen's income, not just employment, because, 
according to the commenter, employment alone is not an accurate 
indication of an individual's ability to self-support. The commenter 
recommended that DHS should require noncitizens to demonstrate an 
ability to earn a wage equal to at least three times the federal 
poverty level. This level was suggested because section 213A of the 
INA, 8 U.S.C. 1183a, requires sponsors to demonstrate the means to 
maintain income of at least 125 percent of the Federal Poverty 
Guidelines, under which individuals may qualify for many means-tested 
public benefits, and individuals who make below 250 percent of the 
poverty level typically pay little to no Federal income tax.
    Response: DHS has determined that no one factor, and no one 
specific element of a factor, will be prioritized over another in a 
public charge inadmissibility determination, other than the lack of a 
sufficient Affidavit of Support Under Section 213A of the INA, if 
required.\412\ DHS will consider a noncitizen's household's income, 
assets,

[[Page 55553]]

and liabilities when considering the assets, resources, and financial 
status factor of a public charge inadmissibility determination. DHS has 
declined to specify required evidence for each factor, acknowledging 
that individuals may present a variety of evidence to support that they 
are not likely to become a public charge, and will consider a 
noncitizen's circumstances in their totality.
---------------------------------------------------------------------------

    \412\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D); INA sec. 213A(a)(1), 8 U.S.C. 1183a(a)(1).
---------------------------------------------------------------------------

    DHS disagrees with establishing a minimum income requirement for 
noncitizens to establish they are not likely to become a public charge. 
As stated previously, DHS will consider the noncitizen's household's 
income, assets, and liabilities. Income is not the sole criterion for 
establishing noncitizens' assets, resources, and financial status, and 
noncitizens may include the income, assets, and liabilities of their 
household members for this factor. DHS believes that considering the 
entire household creates a more accurate representation of the finances 
and resources available to a noncitizen, recognizing that multiple 
household members may contribute to the financial status of the 
household as a whole.
    DHS also disagrees with the commenter's justification that DHS 
should require individuals to show income of at least 300 percent of 
the poverty line because individuals who make below 250 percent of the 
poverty level typically pay little to no Federal income tax. The public 
charge ground of inadmissibility is not intended to generate tax 
revenue, but to ensure that an individual is not likely at any time to 
become a public charge. DHS has interpreted ``likely at any time become 
a public charge'' as the likelihood of a noncitizen becoming primarily 
dependent on the government for subsistence, as demonstrated by either 
the receipt of public cash assistance for income maintenance or long-
term institutionalization at government expense.\413\ This analysis 
requires a consideration of multiple factors, of which assets, 
resources, and financial status is only one.
---------------------------------------------------------------------------

    \413\ See 8 CFR 212.21(a).
---------------------------------------------------------------------------

    Finally, DHS does not administer the vast majority of public 
benefits programs and does not control the income eligibility 
requirements of public benefits programs, which vary from program to 
program and which may allow for individuals with an income higher than 
125 percent of the Federal Poverty Guidelines (FPG) to receive 
benefits. DHS does not find this concern a persuasive reason to 
implement a specific minimum income threshold for the public charge 
inadmissibility determination, however, in part because of the 
reimbursement requirements of the Affidavit of Support under Section 
213A of the INA, and in part because a specific minimum income 
threshold would be inconsistent with the totality of the circumstances 
approach taken in this rule. DHS notes that whether a sponsored 
immigrant ultimately receives public benefits for which they are 
eligible under PRWORA for which the sponsor should reimburse the 
benefit-granting agency is an issue addressed by the reimbursement 
provisions of section 213A of the INA, 8 U.S.C. 1183a, rather than the 
public charge ground of inadmissibility. Additionally, to the extent 
that this commenter is suggesting that DHS require an applicant to 
demonstrate income of at least 300 percent of the FPG because the 
sponsor's income, which must be at least 125 percent of the FPG, will 
be attributed to the applicant for determining eligibility for public 
benefits,\414\ DHS notes that such a consideration is not warranted 
because it is not directly related to the public charge inadmissibility 
determination.
---------------------------------------------------------------------------

    \414\ 8 U.S.C. 1631(a)(1).
---------------------------------------------------------------------------

    Comment: One commenter stated that where the immigrant's only 
income is public benefits, DHS should consider this income neutrally, 
without reference to specific benefits, such as by stating that the 
immigrant does not earn income rather than referencing the individual 
benefits used.
    Response: DHS disagrees with this commenter's suggestion. While DHS 
agrees that income from public benefits should not be considered as 
income for the purposes of a public charge inadmissibility 
determination, DHS disagrees that the specific benefits a noncitizen 
receives should not be considered. DHS defines likely at any time to 
become a public charge as likely at any time to become primarily 
dependent on the government for subsistence, as demonstrated by either 
the receipt of public cash assistance for income maintenance or long-
term institutionalization at government expense.\415\ As discussed in 
the NPRM, DHS believes the ``primarily dependent'' standard is a 
reasonable interpretation of the statute and properly implements the 
policy objectives established by Congress.\416\ DHS does not believe 
that the term is best understood to include a person who receives 
benefits from the government to help to meet some needs but is not 
primarily dependent on the government and instead has one or more 
sources of independent income or resources upon which the individual 
primarily relies.
---------------------------------------------------------------------------

    \415\ See 8 CFR 212.21(a).
    \416\ See 87 FR at 10606 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS defines public cash assistance for income maintenance as SSI, 
TANF, State, Tribal, territorial, or local cash benefit programs for 
income maintenance.\417\ When developing this proposed rule, as in 
1999, DHS consulted with benefits-granting agencies, including USDA, 
which administers SNAP, and HHS, which administers TANF and Medicaid. 
DHS concluded that cash assistance for income maintenance and long-term 
institutionalization at government expense constituted the best 
evidence of whether a noncitizen is primarily dependent on the 
government for subsistence. By focusing on cash assistance for income 
maintenance and long-term institutionalization at government expense, 
DHS can identify those individuals who are likely at any time to become 
primarily dependent on the government for subsistence, without 
interfering with the administrability and effectiveness of other 
benefit programs that serve important public interests.\418\
---------------------------------------------------------------------------

    \417\ See 8 CFR 212.21(b).
    \418\ See 87 FR at 10610 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: To simplify a determination of whether a person is likely 
to become a public charge, one commenter recommended presuming a 
noncitizen is not likely to become a public charge if the noncitizen 
can demonstrate a household income of at least 125 percent of the FPG, 
or 100 percent of the FPG for noncitizens who are, or have household 
members who are, on active duty in the Armed Forces of the United 
States (other than active duty for training). The commenter recommended 
an income and asset calculation to account for the domestic and 
international income of all members of the household, including non-
wage income such as child support, alimony, Social Security income, or 
investment income. The commenter also recommended taking into account 
expected income based on a labor certification and associated 
prevailing wage or job offer and estimated salary.
    Another commenter similarly agreed that DHS should adopt a 
presumption of admissibility for noncitizens based on household income 
and the corresponding FPG, or for noncitizens who have submitted a 
sufficient Affidavit of Support Under Section 213A of the INA. This 
commenter proposed that if a noncitizen does not meet the requirements 
for this presumption, for example noncitizens who are not required to 
submit an

[[Page 55554]]

Affidavit of Support Under Section 213A of the INA, they may be allowed 
to submit a Form I-134, Declaration of Financial Support. The commenter 
said this proposal will consider the noncitizen's employment or valid 
job offer and strike the proper balance between incorporating the 
outcomes created by the 1999 Interim Field Guidance and avoiding the 
overbreadth, confusion, and chilling impacts of the 2019 Final Rule.
    Response: With respect to the proposal to establish a presumption 
that a noncitizen at a specific income level is not likely at any time 
to become a public charge, DHS declines to make this change. Under 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), officers are 
required to consider specific minimum factors in determining whether an 
applicant seeking admission to the United States or seeking to adjust 
status to that of lawful permanent resident is likely at any time to 
become a public charge. These factors include the noncitizen's age; 
health; family status; assets, resources, and financial status; and 
education and skills.\419\ DHS cannot limit a public charge 
inadmissibility determination to only one factor, but instead must 
consider all the factors as set forth by Congress. DHS believes that 
the establishment of a presumption on the basis of the single criterion 
proposed by the commenter would be unwarranted.
---------------------------------------------------------------------------

    \419\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 
The statute also permits, but does not require, the consideration of 
a sufficient Affidavit of Support Under Section 213A of the INA, if 
required. See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------

    DHS agrees that considering the entire household creates a more 
accurate representation of the finances and resources available to a 
noncitizen, recognizing that multiple household members may contribute 
to the financial status of the household as a whole. Therefore, DHS 
will consider the income, assets, and liabilities (excluding any income 
from public benefits listed in 8 CFR 212.21(b) and income or assets 
from illegal activities or sources such as proceeds from illegal 
gambling or drug sales) of their household members for this 
factor.\420\ DHS did not specify particular evidence noncitizens may 
submit to support they are not likely to become a public charge, and 
will consider all evidence submitted in a public charge inadmissibility 
determination. Therefore, while DHS will not independently assess a 
noncitizen's expected income based on a labor certification and 
associated prevailing wage, DHS may consider this evidence or evidence 
of a job offer and estimated salary, if submitted, in the totality of a 
noncitizen's circumstances in a public charge inadmissibility 
determination. DHS will also not limit the consideration of income to 
only income that appears on United States Federal income tax forms, and 
will consider all evidence submitted of income from lawful sources in 
order to account for income such as child support, alimony, Social 
Security income, and investment income. DHS will also consider any 
evidence submitted pertaining to expected future income.
---------------------------------------------------------------------------

    \420\ See 8 CFR 212.22(a)(1)(iv).
---------------------------------------------------------------------------

    To address the recommendation that DHS accept Form I-134, 
Declaration of Financial Support,\421\ as a substitute for noncitizens 
who are not required to file an Affidavit of Support Under Section 213A 
of the INA, DHS notes that the Declaration of Financial Support is 
intended to demonstrate financial support during an individual's 
temporary stay in the United States, and is therefore not a valid 
substitution. As stated previously, DHS will consider all evidence a 
noncitizen submits to support that the noncitizen is not inadmissible 
under the public charge ground, but DHS will not create or require a 
separate information collection or form to establish admissibility. DHS 
also notes that many commenters recommended a similar presumption that 
a sufficient Affidavit of Support Under Section 213A of the INA would 
establish that a noncitizen is not likely at any time to become a 
public charge and addresses that suggestion in more detail in Section 
III.I.2, Affidavit of Support Under Section 213A of the INA.
---------------------------------------------------------------------------

    \421\ DHS notes that Form I-134 was previously titled 
``Affidavit of Support.''
---------------------------------------------------------------------------

e. Education and Skills
    Comment: One commenter disagreed with the consideration of 
education and skills in a public charge inadmissibility determination.
    Response: DHS disagrees that an applicant's education and skills 
should not be included in a public charge inadmissibility 
determination. Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
officers are required to consider specific minimum factors in 
determining whether an applicant seeking admission to the United States 
or seeking to adjust status to that of lawful permanent resident is 
likely at any time to become a public charge. These factors include the 
noncitizen's education and skills.\422\
---------------------------------------------------------------------------

    \422\ See INA sec. 212(a)(4)(B)(i)(V), 8 U.S.C. 
1182(a)(4)(B)(i)(V).
---------------------------------------------------------------------------

    Comment: Two commenters wrote that an applicant's inability to 
speak and understand English does not predict whether an applicant can 
obtain employment in the United States. One of these commenters 
recommended DHS consider the educational opportunities available in 
noncitizens' countries of origin, skills should be broadly defined and 
not limited to definitions of ``high skill'' versus ``low skill,'' and 
proficiency in English should not be included in the determination of 
education and skills, as a person's English proficiency or education 
level does not necessarily predict their ability to obtain employment 
in the United States.
    Response: DHS agrees that the education and skills factor should be 
broadly defined to include a variety of abilities. Therefore, DHS has 
determined that education and skills can be evidenced by a noncitizen's 
degrees, certifications, licenses, skills obtained through work 
experience (including volunteer and unpaid opportunities) or 
educational programs, and educational certificates.\423\ DHS believes 
this standard encompasses many abilities that may affect a noncitizen's 
employability, and therefore may decrease a noncitizen's likelihood of 
becoming a public charge. DHS also notes that this definition does not 
specifically define certain skills that would positively or negatively 
impact a public charge inadmissibility determination, including English 
language skills. DHS will consider such skills in the context of a 
totality of the circumstances determination.
---------------------------------------------------------------------------

    \423\ See 8 CFR 212.22(a)(1)(v).
---------------------------------------------------------------------------

    Comment: One commenter recommended a detailed framework that would 
demonstrate qualifications associated with gainful employment and self-
sufficiency, such as evidence of employment, self-employment, or a job 
offer, combined with educational achievements or occupational skills 
and experience. The commenter suggested that this approach would 
provide positive steps immigrants could follow to be better prepared if 
subject to a public charge inadmissibility determination.
    Another commenter mentioned the education and work experience 
standards for diversity visa applicants, noting that this standard 
provides an already accepted framework for demonstrating that a 
noncitizen is likely to succeed in the United States and that such a 
showing should be considered a positive factor, and could be applied to 
a public charge inadmissibility determination with some modification

[[Page 55555]]

to account for experience in occupations that do not require training 
or experience.
    Response: DHS agrees that a noncitizen may demonstrate their 
relevant education and skills through the noncitizen's degrees, 
certifications, licenses, skills obtained through work experience or 
educational programs, and educational certificates. However, given the 
differences in achievements and skills in occupational fields, DHS does 
not believe it can create a comprehensive guide that noncitizens should 
follow to prepare for a public charge inadmissibility determination. 
DHS acknowledges that certain immigration categories may require a 
separate determination of education or work experience, but notes that 
those specific eligibility requirements are separate from an 
inadmissibility determination. The public charge inadmissibility 
determination involves the consideration of a variety of factors, 
including education and skills, that are considered in the totality of 
a noncitizen's circumstances. Each determination is unique, and DHS 
cannot establish a specific framework that would encompass every 
situation or circumstance that would apply to all noncitizens equally 
and equitably. DHS believes that by identifying basic information that 
DHS will collect for the factors, including the education and skills 
factor, and a consideration of the totality of the circumstances 
accounts for the diversity of noncitizens' backgrounds in the clearest 
and fairest manner.
    DHS agrees with the commenter that some occupations do not require 
training or previous experience, and accounts for this by including in 
the standard for education and skills those skills that noncitizens 
have obtained through overall work experience. This consideration will 
benefit those noncitizens who hold occupations that do not require 
official licenses or certifications but whose occupations impart skills 
that otherwise affect the noncitizen's overall employability. As 
previously stated, DHS believes that a broad interpretation of the 
statutory minimum factors best encompasses the diversity of 
noncitizens' backgrounds and declines to define specific skills that 
would positively or negatively impact a public charge inadmissibility 
determination.
    Comment: One commenter recommended that DHS create appropriate 
carve-outs for certain groups of noncitizens who may be adversely 
affected by their background, including children, primary caregivers, 
and certain retirees, and stated that it is not appropriate to apply 
equivalent standards to these groups as they may not have been able to 
attain an equivalent educational background or level of work experience 
due entirely to no fault of their own.
    Response: DHS disagrees that different standards of the statutory 
minimum factors should be applied to different groups of people, as 
determined by their work experience or education background. Under 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), officers are 
required to consider specific minimum factors in determining whether an 
applicant seeking admission to the United States or seeking to adjust 
status to that of lawful permanent resident is likely at any time to 
become a public charge. These factors include the noncitizen's 
education and skills.\424\ However, DHS appreciates commenters' 
concerns that a person's lack of education or work experience should 
not be determinative of their likelihood of becoming a public charge. 
For this reason, under this rule, determining a noncitizen's likelihood 
at any time of becoming a public charge must be based on the totality 
of the individual's circumstances.\425\ No one factor, other than the 
lack of a sufficient Affidavit of Support Under Section 213A of the 
INA, if required, may be the sole criterion for determining if an 
individual is likely to become a public charge.\426\ Education and 
skills is not the only factor taken into account in a public charge 
inadmissibility determination and does not automatically determine if a 
noncitizen is likely at any time to become a public charge. 
Additionally, DHS notes that some unpaid labor may equip a noncitizen 
with occupational skills, and DHS may therefore consider these skills 
under the education and skills factor as part of a public charge 
inadmissibility determination.
---------------------------------------------------------------------------

    \424\ See INA sec. 212(a)(4)(B)(i)(V), 8 U.S.C. 
1182(a)(4)(B)(i)(V).
    \425\ See 8 CFR 212.22(b).
    \426\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: One commenter stated that considering statutory minimum 
factors for the public charge ground of inadmissibility is duplicative 
and unnecessary for those applicants who are subject to the public 
charge ground but are not required to provide an Affidavit of Support 
Under Section 213A of the INA, such as employment-based immigrants who 
must establish their work skills and diversity visa applicants who must 
demonstrate that they have a high school diploma (or the equivalent) or 
work experience.
    Another commenter similarly stated that applicants who have 
previously obtained an H-1B nonimmigrant visa or an approved Form I-
140, Petition for Alien Worker, should not need to provide additional 
information for the education and skills factor because it has already 
been documented and considered.
    Response: DHS disagrees that considering the statutory minimum 
factors for applicants who are not required to provide an Affidavit of 
Support Under Section 213A of the INA is duplicative and unnecessary. 
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), specifically 
requires that DHS consider specific minimum factors in determining 
whether an applicant seeking admission to the United States or seeking 
to adjust status to that of lawful permanent resident is likely at any 
time to become a public charge, which may include an Affidavit of 
Support Under Section 213A of the INA. The Affidavit of Support Under 
Section 213A of the INA is a contract between a sponsor and the U.S. 
Government under which the sponsor agrees that they will provide 
support to the sponsored immigrant at an annual income not less than 
125 percent of the FPG during the period the obligation is in effect, 
to be jointly and severally liable for any reimbursement obligation 
incurred as a result of the sponsored immigrant receiving means-tested 
public benefits during the period of enforcement, and to submit to the 
jurisdiction of any Federal or State court for the purpose of enforcing 
the support obligation.\427\ The Affidavit of Support Under Section 
213A of the INA does not include a consideration of the statutory 
minimum factors as they relate to a noncitizen's circumstances, and as 
such, an exemption from this requirement does not automatically 
indicate that a noncitizen is not inadmissible under section 212(a)(4) 
of the INA, 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------

    \427\ INA sec. 213A(f)(2), 8 U.S.C. 1183a(f)(2).
---------------------------------------------------------------------------

    DHS acknowledges that some noncitizens, including those who have 
previously obtained nonimmigrant employment visas or those who are 
applying for adjustment of status based on the diversity visa or 
employment-based categories, may have previously submitted evidence 
regarding their work skills, employment history, and education. Under 
this rule, DHS is updating its information collection to allow 
applicants for adjustment of status to indicate specifics regarding 
their education and skills, and will consider all evidence submitted by 
these noncitizens in order to make a final public charge 
inadmissibility determination. DHS also reviews the

[[Page 55556]]

noncitizen's record, including previous applications and petitions and 
the associated evidence, while making a public charge inadmissibility 
determination. DHS will not specify particular initial evidence that 
must be submitted for a public charge inadmissibility determination. 
However, DHS also notes that the education and skills factor is only 
one part of a public charge inadmissibility determination and, as such, 
disagrees that a consideration of all the statutory minimum factors for 
any noncitizen subject to the public charge ground of inadmissibility 
is duplicative and unnecessary.
    Comment: One commenter suggested only requiring applicants to 
provide evidence of their highest educational degree attained to 
satisfy the education and skills factor in a public charge 
inadmissibility determination.
    Response: While DHS agrees that evidence of completed degrees is 
one method of demonstrating a noncitizen's education and skills, DHS 
also acknowledges that this factor not only includes formal education, 
but also encompasses other aspects that may be demonstrated through 
other means. DHS has therefore determined that, while a noncitizen may 
submit the highest degree achieved to support a finding that the 
noncitizen is not likely to become a public charge, a noncitizen may 
also provide evidence of certifications, licenses, skills obtained 
through work experience or educational programs, and educational 
certificates.\428\
---------------------------------------------------------------------------

    \428\ See 8 CFR 212.22(a)(1)(v).
---------------------------------------------------------------------------

    Comment: One commenter stated that noncitizens with a high school 
education or less should be required to demonstrate that they hold a 
skill that is in high demand and can be expected to earn a high enough 
salary that would largely eliminate the possibility of qualifying for 
any welfare program, with a skill that will earn at least three times 
the FPG as the standard that would show they will not need taxpayer-
funded assistance. Citing an analysis of SIPP data,\429\ the commenter 
indicated that noncitizen households where the head of household had 
only a high school education or less received public benefits at a 
higher rate than households where the head of household had at least 
some college education. The commenter also stated that, of households 
receiving public benefits (defined as including the Earned Income Tax 
Credit), 93 percent of noncitizen-headed households have at least one 
working member, as do 76 percent of households headed by a U.S.-born 
citizen.\430\ The commenter urged that it is important for DHS to 
consider both employment and the noncitizen's total income, indicating 
that the primary focus should be on whether or not an immigrant can 
demonstrate an ability to earn a wage equal to at least three times the 
federal poverty level.
---------------------------------------------------------------------------

    \429\ Steven Camarota and Karen Zeigler, Center for Immigration 
Studies, ``63% of Non-Citizen Households Access Welfare Programs,'' 
Table 3 (Nov. 20, 2018), https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs (last visited Aug. 16, 2022).
    \430\ Steven Camarota and Karen Zeigler, Center for Immigration 
Studies, ``63% of Non-Citizen Households Access Welfare Programs,'' 
Table 6 (Nov. 20, 2018), https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Response: DHS disagrees that it should establish a specific 
standard based on a noncitizen's education or particular skills or 
require that a noncitizen demonstrate the ability to earn income three 
times the Federal Poverty Guideline (FPG). DHS acknowledges that 
different occupations may encompass a variety of skills that may not be 
evidenced only through educational degrees, licenses, or 
certifications, but also through skills obtained through work 
experience or educational programs. DHS also notes that an assessment 
of whether a skill is in high demand and the corresponding calculation 
of an expected salary is a very complex assessment and would require 
detailed analysis, and possibly consultation with the Department of 
Labor, for each individual case. This suggested evaluation therefore 
presents an increased evidentiary burden on noncitizens, as well as an 
increased adjudicative burden on the agency, with no evidence of a 
corresponding benefit. Furthermore, the commenter did not present 
evidence that a higher education level equates to high demand skills.
    DHS also disagrees that lack of ``high demand'' skills--which the 
commenter defined as job skills that would enable an individual to earn 
at least three times the federal poverty rate--indicates that a 
noncitizen is likely at any time to become primarily dependent on the 
government for subsistence. While the commenter cited to an analysis of 
SIPP data as support for the request to focus the public charge 
analysis on employment and income, the analysis cited is 
methodologically flawed and does not support the commenter's premise. 
For one, neither the commenter, nor the analysis it cites, makes any 
connection between the level of education and ``high demand'' skills, 
or between education level and earnings, nor does the commenter explain 
what it means by ``high demand'' skills or how a noncitizen would 
demonstrate that they possess ``high demand'' skills. While the 
analysis cited by the commenter shows the percentages of U.S.-born 
citizen headed and noncitizen headed households that receive benefits 
relative to the head of household's education level, the analysis does 
not account for earnings or family size. The analysis also includes a 
much broader set of public benefits than what would be considered under 
this rule (e.g., it includes EITC, WIC, school lunch program, SNAP, 
public housing). For example, rather than 81 percent of noncitizen 
households headed by a person with a high school degree or less 
receiving public benefits, as the commenter states, the analysis cited 
indicates that only 8.9 percent of noncitizen households headed by a 
person with no more than a high school degree received TANF and/or 
SSI.\431\ In addition, the commenter does not offer any support for the 
proposition that all ``high demand'' skills equate to high pay, or that 
other factors that DHS must examine under the totality of the 
circumstances could not lead to a determination that a highly skilled 
individual is likely at any time to become a public charge, for example 
advanced age, or a health condition preventing an applicant from 
working and using the ``high demand'' skill. DHS therefore disagrees 
that lack of a college education or ``high demand'' skills would 
justify a presumption that an applicant would become primarily 
dependent on the government for subsistence. For that reason, DHS 
declines to require that applicants demonstrate that they have ``high 
demand'' skills.
---------------------------------------------------------------------------

    \431\ Steven Camarota and Karen Zeigler, Center for Immigration 
Studies, ``63% of Non-Citizen Households Access Welfare Programs,'' 
Table 3 (Nov. 20, 2018), https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    DHS also declines to include a specific income threshold as part of 
a public charge inadmissibility determination. A public charge 
inadmissibility determination is made based on the totality of a 
noncitizen's circumstances. As stated previously, income is not the 
sole criterion for establishing noncitizens' assets, resources, and 
financial status, and noncitizens may include the income, assets, and 
liabilities of their household members for this factor. DHS believes 
that considering the entire household and their income, assets, and 
liabilities creates a more accurate representation of the finances and 
resources available to a noncitizen, recognizing that

[[Page 55557]]

multiple household members may contribute to the financial status of 
the household as a whole.
2. Affidavit of Support Under Section 213A of the INA
    Comment: One commenter stated that sponsors who execute an 
Affidavit of Support Under Section 213A of the INA on behalf of an 
intending immigrant should be held accountable to pay medical and other 
social welfare debts incurred by those immigrants who use public 
benefits prior to obtaining lawful status in the United States.
    Response: The comment is outside the scope of the rulemaking. DHS 
did not propose any changes to the Affidavit of Support Under Section 
213A of the INA, and did not propose to impose such a condition upon 
the public charge inadmissibility determination. Under section 213A of 
the INA, 8 U.S.C. 1183a, most family-based immigrants and certain 
employment-based immigrants are required to submit an Affidavit of 
Support Under Section 213A of the INA to avoid being found inadmissible 
under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\432\ In most 
cases, the individual who filed the immigrant petition on behalf of the 
immigrant must execute the Affidavit of Support Under Section 213A of 
the INA.\433\ By executing an Affidavit of Support Under Section 213A 
of the INA, the sponsor is creating a contract between the sponsor and 
the U.S. Government under which the sponsor agrees that they will 
provide support to the sponsored immigrant at an annual income not less 
than 125 percent of the FPG during the period of time in which the 
obligation is in effect, be jointly and severally liable for any 
reimbursement obligation incurred as a result of the sponsored 
immigrant receiving means-tested public benefits during the period of 
enforcement, and submit to the jurisdiction of any Federal or State 
court for the purpose of enforcing the support obligation.\434\ These 
sponsorship obligations, however, do not go into effect until after the 
intending immigrant's application for admission as an immigrant or 
application for adjustment of status is granted.\435\ Because the 
comment is outside the scope of the rulemaking, and because a sponsor 
is not obligated to pay for medical expenses and other social welfare 
debts incurred by the noncitizen before the noncitizen became a lawful 
permanent resident, DHS declines to add this suggestion to the final 
rule.
---------------------------------------------------------------------------

    \432\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D); INA sec. 213A(a)(1), 8 U.S.C. 1183a(a)(1).
    \433\ INA sec. 213A(f)(1)(D), 8 U.S.C. 1183a(f)(1)(D); INA sec. 
212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).
    \434\ INA sec. 213A(f)(2), 8 U.S.C. 1183a(f)(2).
    \435\ See INA sec. 213A, 8 U.S.C. 1183a; 8 CFR 213a.2(d); 8 CFR 
213a.2(e)(1); 8 CFR 213a.1 (definition for sponsored immigrant).
---------------------------------------------------------------------------

    Comment: Many commenters supported the favorable consideration of 
an Affidavit of Support Under Section 213A of the INA in a public 
charge inadmissibility determination. One such commenter, citing Matter 
of Martinez-Lopez,\436\ noted that giving favorable consideration to an 
Affidavit of Support Under Section 213A of the INA is consistent with 
case law and longstanding practice, which recognizes that individuals 
who are or will be able to work, have adequate resources, or have a 
sponsor or other person willing to assist with their financial support 
should be presumed to be unlikely to become a public charge.
---------------------------------------------------------------------------

    \436\ 10 I&N Dec. 409, 421 (BIA 1962).
---------------------------------------------------------------------------

    Response: As noted in the NPRM, DHS believes that treating a 
sufficient Affidavit of Support Under Section 213A of the INA favorably 
is consistent with the statute and precedent,\437\ and is supported by 
the fact that sponsored noncitizens are less likely to turn to the 
government first for financial support because they can and have been 
known to successfully enforce the statutory requirement that sponsors 
provide financial support to the sponsored noncitizen at the level 
required by statute for the period the obligation is in effect.\438\ 
Additionally, as noted in the NPRM, DHS believes that treating a 
sufficient Affidavit of Support Under Section 213A of INA favorably is 
supported by the Federal and State deeming provisions of 8 U.S.C. 1631 
and 1632, which may reduce the likelihood that a sponsored noncitizen 
would be eligible for a means-tested benefit, and therefore, less 
likely to become a public charge at any time in the future.\439\ As a 
result, under this rule, DHS will favorably consider a sufficient 
Affidavit of Support Under Section 213A of the INA, along with the 
statutory minimum factors, in the totality of the circumstances when 
assessing an applicant's likelihood at any time to become a public 
charge.
---------------------------------------------------------------------------

    \437\ See Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 
1962) (``A healthy person in the prime of life cannot ordinarily be 
considered likely to become a public charge, especially where he has 
friends or relatives in the United States who have indicated their 
ability and willingness to come to his assistance in case of 
emergency.'').
    \438\ See INA sec. 213A(a)(1)(A), 8 U.S.C. 1183a(a)(1)(A). See, 
e.g., Erler v. Erler, 824 F.3d 1173 (9th Cir. 2016); Belevich v. 
Thomas, 17 F.4th 1048 (11th Cir. 2021); Wenfang Liu v. Mund, 686 
F.3d 418 (7th Cir. 2012).
    \439\ See 87 FR at 10619 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: While some commenters suggested that it would be 
nonsensical to deem an Affidavit of Support Under Section 213A of the 
INA alone as sufficient to find an applicant is not likely to become a 
public charge, many other commenters, including a group of 13 United 
States Senators, stated that the existence of a valid Affidavit of 
Support Under Section 213A of the INA should be deemed sufficient in 
itself to overcome a public charge inadmissibility determination except 
when significant public charge factors are present under the totality 
of the circumstances. These commenters stated that a presumption for 
admissibility upon presentation of a valid affidavit of support would 
be an administratively neutral, straightforward approach. Another 
commenter said that the existence of a valid Affidavit of Support Under 
Section 213A of the INA should normally tip the balance in the 
applicant's favor, supporting a finding that an applicant is not likely 
at any time to become a public charge. One commenter stated that, 
consistent with congressional intent, the rule should only require 
officers to consider the five statutory minimum factors if the 
applicant failed to submit a sufficient Affidavit of Support Under 
Section 213A of the INA.
    Similarly, one group of commenters suggested that DHS amend the 
rule to create a rebuttable presumption that a noncitizen is not likely 
at any time to become a public charge where a sufficient Affidavit of 
Support Under Section 213A of the of the INA is submitted. The 
presumption would only be overcome, the commenters said, if, in the 
totality of the circumstances, clear and convincing evidence indicates 
that the applicant's age, health, family status, assets, resources, 
financial status, education, skills, and current or past receipt of 
public benefits make the noncitizen likely to become a public charge. 
These commenters stated that over the past two decades, the submission 
of a sufficient Affidavit of Support Under Section 213A of the INA has 
generally been sufficient to avoid a public charge inadmissibility 
determination. These commenters also wrote that their ``[e]xtensive 
experience indicates that where an applicant for an immigrant visa or 
adjustment of status has a sufficient Affidavit of Support [Under 
Section 213A of the INA] or equivalent income or assets, the likelihood 
that such a person will become a public charge is virtually 
nonexistent.'' These commenters said

[[Page 55558]]

that creating this presumption provides applicants with a clear 
standard against which they can measure the likelihood of success in 
overcoming the public charge ground of inadmissibility, facilitates 
streamlined adjudication of applications, and allows officers to focus 
their time and attention on cases in which substantive issues may 
exist.
    Response: DHS disagrees with the suggestion that a sufficient 
Affidavit of Support Under Section 213A of the INA, alone, is enough to 
determine an applicant is not inadmissible under section 212(a)(4) of 
the INA, 8 U.S.C. 1182(a)(4). DHS further disagrees that it is 
appropriate to treat a sufficient Affidavit of Support Under Section 
213A of the INA as creating a rebuttable presumption that an applicant 
is not likely at any time to become a public charge. Congress created 
the statutory minimum factors that DHS must consider as part of a 
public charge inadmissibility determination, which do not even include 
the Affidavit of Support Under Section 213A of the INA.\440\ Rather, 
Congress gave DHS the discretion to consider any required Affidavit of 
Support Under Section 213A of the INA in a public charge 
inadmissibility determination.\441\ Regardless of the existence of a 
sufficient Affidavit of Support Under Section 213A of the INA, Congress 
mandated that DHS, in every case, consider all of the statutory minimum 
factors in assessing whether an applicant is likely at any time to 
become a public charge without requiring the same for an 
affidavit.\442\ Accordingly, and as noted in the NPRM \443\ and the 
1999 Interim Field Guidance,\444\ DHS believes that a sufficient 
Affidavit of Support Under Section 213A of the INA does not in and of 
itself create a presumption that an applicant is not likely at any time 
to become a public charge or that it should determine the outcome of 
the public charge inadmissibility determination. Instead, DHS believes 
a sufficient Affidavit of Support Under Section 213A of the INA should 
be considered in the totality of the circumstances.\445\
---------------------------------------------------------------------------

    \440\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \441\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
    \442\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \443\ See 87 FR at 10619 (Feb. 24, 2022).
    \444\ See ``Field Guidance on Deportability and Inadmissibility 
on Public Charge Grounds,'' 64 FR 28689, 28690 (May 26, 1999).
    \445\ See 87 FR at 10619 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS notes that although commenters claim that a sufficient 
Affidavit of Support Under Section 213A of the INA indicates that the 
likelihood that such a person will become a public charge is virtually 
nonexistent, commenters provided no data or evidence to support this 
statement.
    Therefore, DHS declines to add a provision to this rule that 
directs officers to treat a sufficient Affidavit of Support Under 
Section 213A of the INA as either outcome determinative or as creating 
a presumption that the applicant is not inadmissible under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). However, under this rule and 
as noted in the NPRM, in making public charge inadmissibility 
determinations, DHS will consider the statutory minimum factors as set 
forth in the rule and favorably consider a sufficient Affidavit of 
Support Under Section 213A of the INA (i.e., a positive factor that 
makes an applicant less likely at any time to become a public charge in 
the totality of the circumstances), and the applicant's current and 
past receipt of public benefits in the totality of the 
circumstances.\446\
---------------------------------------------------------------------------

    \446\ 8 CFR 212.22(a)(2), (b).
---------------------------------------------------------------------------

    Comment: One commenter stated that a legally sufficient Affidavit 
of Support Under Section 213A of the INA should overcome any public 
charge concerns that arise from applicants whose health conditions are 
recorded as a Class B certification by the civil surgeon performing the 
immigration medical examination. Another commenter suggested that the 
Affidavit of Support Under Section 213A of the INA should be used to 
mitigate issues arising under the statutory factors within the totality 
of the circumstances, such as the health factor, which would consider 
an applicant's disability.
    Response: DHS disagrees that a sufficient Affidavit of Support 
Under Section 213A of the INA, alone, overcomes any individual factor 
present in a noncitizen's case, including the health factor. As 
required under the statute, DHS must consider all of the statutory 
minimum factors in a public charge inadmissibility determination, 
including an applicant's health.\447\ The statutory minimum factors 
that must be considered as part of the public charge inadmissibility 
determination under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
do not include the Affidavit of Support Under Section 213A of the 
INA.\448\ Rather, Congress provided that any Affidavit of Support Under 
Section 213A of the INA may be considered in the public charge 
inadmissibility determination.\449\ As a result, under this rule, a 
sufficient Affidavit of Support Under Section 213A of the INA does not, 
on its own, outweigh the presence of any other factor, but instead, is 
considered, along with the statutory minimum factors and the receipt of 
public benefits, as defined in the rule, in the totality of the 
circumstances.\450\
---------------------------------------------------------------------------

    \447\ INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C. 
1182(a)(4)(B)(i)(II).
    \448\ INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \449\ INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
    \450\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    DHS declines to mandate, as part of this rule, that a sufficient 
Affidavit of Support Under Section 213A of the INA, alone, overcomes 
any statutory minimum factor, including the health factor, as this 
would be inconsistent with the statute. The sufficient Affidavit of 
Support Under Section 213A of the INA should instead be considered in 
the totality of the circumstances. As a result, DHS declines to make 
any changes to the rule in response to this comment.
    To the extent that these commenters are concerned with this rule's 
impact on individuals with disabilities, DHS notes that as reflected 
elsewhere in this rule, the final rule includes other provisions that 
are intended to better ensure fair and consistent treatment of 
individuals with disabilities--for example, clarifying the definition 
for long-term institutionalization at government expense, and 
considering evidence submitted by the applicant that the applicant's 
long-term institutionalization violates federal law, including the 
Americans with Disabilities Act or the Rehabilitation Act.\451\
    Comment: Some commenters recommended that the rule bar immigration 
officers from questioning the credibility or motives of a sponsor who 
signs an Affidavit of Support Under Section 213A of the INA, so that 
officers look only at whether sponsors adequately document their 
ability to provide support for the sponsored immigrants. Other 
commenters agreed, arguing that similar to DOS consular officers, USCIS 
officers should not be permitted to introduce speculation by inquiring 
about the sponsor's or any joint sponsors' motives or intentions with 
respect to carrying out their support obligation because an Affidavit 
of Support Under Section 213A of the INA, is enforceable regardless of 
the sponsor's actual intent.
    Response: DHS agrees with commenters that this rule should not 
require officers who are favorably considering a sufficient Affidavit 
of Support Under Section 213A of the INA as part of a public charge

[[Page 55559]]

inadmissibility determination to consider the sponsor's credibility or 
underlying motives in executing that Affidavit. While the sponsor's 
credibility, intent, or underlying motives in executing that Affidavit 
of Support Under Section 213A of the INA might be relevant to assessing 
the sufficiency of the Affidavit of Support Under Section 213A of the 
INA in the first instance,\452\ DHS notes that the sufficiency of an 
Affidavit of Support Under Section 213A of the INA is a separate 
threshold determination that occurs before an officer determines, under 
this rule, whether an applicant is likely at any time to become a 
public charge based on consideration of the statutory minimum factors, 
a sufficient Affidavit, and current or past receipt of public 
benefits.\453\
---------------------------------------------------------------------------

    \452\ INA sec. 213A(f)(6)(A), 8 U.S.C. 1183a(f)(6)(A). 8 CFR 
213a.2(c)(2)(ii).
    \453\ INA sec. 212(a)(4)(A) and (B), 8 U.S.C. 1182(a)(4)(A) and 
(B); 8 CFR 213a.2(c)(2)(iv); 8 CFR 212.22(a), (b).
---------------------------------------------------------------------------

    As set forth in the statute, when an applicant is required to 
submit an Affidavit of Support Under Section 213A of the INA, DHS 
determines its sufficiency by assessing whether the sponsor has 
demonstrated the means to maintain income at the required level.\454\ 
In assessing the sufficiency of an Affidavit of Support Under Section 
213A of the INA, DHS will consider whether the sponsor engaged in fraud 
or material concealment or misrepresentation in executing the 
Affidavit.\455\ If DHS finds such fraud or material concealment or 
misrepresentation, including forgery, counterfeiting, falsification of 
documents, or the concealment or misrepresentation of any facts 
material to the Affidavit, DHS will determine that the Affidavit of 
Support Under Section 213A of the INA is insufficient.\456\ If DHS 
determines that an Affidavit of Support Under Section 213A of the INA, 
when required, is insufficient, DHS will automatically determine that 
the applicant is inadmissible under section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4), without consideration of the statutory minimum 
factors.\457\
---------------------------------------------------------------------------

    \454\ INA sec. 213A(f)(6)(A), 8 U.S.C. 1183a(f)(6)(A). 8 CFR 
213a.2(c)(2)(ii).
    \455\ 8 CFR 213a.2(c)(2)(vi).
    \456\ 8 CFR 213a.2(c)(2)(vi).
    \457\ INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and 
(D); INA sec. 213A(a)(1), 8 U.S.C. 1183a(a)(1).
---------------------------------------------------------------------------

    However, under this rule,\458\ once DHS determines that the 
Affidavit of Support Under Section 213A of the INA is sufficient, DHS 
would not consider the sponsor's credibility or motives in determining 
whether the applicant is likely at any time to become a public charge 
because, as explained more fully in the NPRM,\459\ it would be 
duplicative to evaluate these issues that would be considered in 
assessing the sufficiency of the Affidavit of Support Under Section 
213A of the INA in the first instance. DHS believes that such a 
reevaluation of a sponsor's credibility or underlying motives would 
create an unnecessary burden for DHS officers and the public and, 
accordingly, DHS does not intend to separately consider the sponsor's 
credibility or motives in executing the sufficient Affidavit of Support 
Under Section 213A of the INA as part of the totality of the 
circumstances analysis.
---------------------------------------------------------------------------

    \458\ 8 CFR 212.22(c).
    \459\ 87 FR at 10618-10619 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: Several commenters stated that they believed that DHS 
should do an evaluation of the sponsor's Affidavit of Support Under 
Section 213A of the INA as part of the public charge inadmissibility 
determination. One commenter recommended that DHS require officers to 
assess the likelihood that a noncitizen's sponsor will actually provide 
financial support by looking at the closeness of the relationship 
between the noncitizen and sponsor to ensure sponsors will live up to 
their obligations in the Affidavit of Support Under Section 213A of the 
INA. One commenter suggested that DHS should add additional 
considerations regarding the evaluation of an Affidavit of Support 
Under Section 213A of the INA due to the ``government's longstanding 
history of failure to hold sponsors accountable and to, where 
appropriate, take legal action to enforce those contracts.''
    Response: DHS disagrees that it should evaluate whether the sponsor 
who executed the Affidavit of Support Under Section 213A of the INA 
submitted a sufficient affidavit, i.e., has demonstrated the means to 
maintain income at the required level \460\ again as part of 
determining whether an applicant is likely at any time to become 
primarily dependent on the government for subsistence. Because DHS 
already determines that the sponsor has demonstrated the means to 
maintain income at the required level and, therefore, that the 
Affidavit of Support Under Section 213A of the INA is sufficient, prior 
to favorably considering a sufficient Affidavit of Support Under 
Section 213A of the INA as set forth in this rule,\461\ it would be 
unnecessary and duplicative to subsequently consider whether or not the 
sponsor's legally binding Affidavit of Support Under Section 213A of 
the INA is sufficient when conducting the totality of the circumstances 
analysis under this rule.
---------------------------------------------------------------------------

    \460\ See INA sec. 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E); 8 CFR 
213a.2(c)(2)(ii). DHS notes that a sponsor demonstrates the means to 
maintain income by presenting Federal income tax returns or by 
demonstrating significant assets of the sponsored immigrant or of 
the sponsor, if such assets are available for the support of the 
sponsored immigrant. See INA sec. 213A(f)(6), 8 U.S.C. 1183a(f)(6); 
8 CFR 213a.2(c)(2).
    \461\ 8 CFR 212.22(a)(2).
---------------------------------------------------------------------------

    Additionally, DHS disagrees that DHS should evaluate whether a 
sponsor who executed a sufficient Affidavit of Support Under Section 
213A of the INA will actually provide financial support by looking at 
the relationship between the sponsor and the intending immigrant as 
part of the totality of the circumstances analysis. Whether a sponsor 
will actually provide support to the intending immigrant is relevant to 
assessing the sufficiency of the Affidavit of Support Under Section 
213A of the INA,\462\ but that is a separate determination that occurs 
before an officer determines, under this rule, whether an applicant is 
likely at any time to become a public charge based on consideration of 
the statutory minimum factors, a sufficient affidavit, and any current 
and/or past receipt of public benefits.\463\
---------------------------------------------------------------------------

    \462\ INA sec. 213A(f)(6)(A), 8 U.S.C. 1183a(f)(6)(A). 8 CFR 
213a.2(c)(2)(ii).
    \463\ INA sec. 212(a)(4)(A) and (B), 8 U.S.C. 1182(a)(4)(A) and 
(B); 8 CFR 213a.2(c)(2)(iv); 8 CFR 212.22(a) and (b).
---------------------------------------------------------------------------

    Accordingly, DHS declines to require its officers to consider 
whether the sponsor who executed the Affidavit of Support Under Section 
213A of the INA will actually carry out their legally binding support 
obligation as part of the totality of the circumstances analysis.
    Comment: One commenter recommended requiring that a sponsored 
immigrant who has received public benefits sue the sponsor for 
reimbursement of the public benefits received. The commenter noted that 
current regulations give the beneficiary this option but do not require 
it. This commenter said such provisions would incentivize noncitizens 
to promptly take action to obtain reimbursement.
    Response: DHS declines to add a provision in this rule that 
requires a sponsored immigrant to sue the sponsor who executed the 
Affidavit of Support Under Section 213A of the INA for reimbursement of 
public benefits received by the sponsored immigrant. While DHS agrees 
that section 213A of the INA, 8 U.S.C. 1183a, permits, but does not 
require, the sponsored immigrant to enforce the support

[[Page 55560]]

obligations against the sponsor,\464\ this rule is not intended to 
address sponsorship obligations or enforcement of those obligations. 
Rather, the purpose of this rule is to prescribe how DHS determines 
whether a noncitizen is inadmissible to the United States under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), because they are likely at 
any time to become a public charge. Accordingly, DHS declines to 
include the proposed provision in this rule, which is outside the scope 
of the current rulemaking.
---------------------------------------------------------------------------

    \464\ See INA sec. 213A(a)(1)(B), 8 U.S.C. 1183(a)(1)(B).
---------------------------------------------------------------------------

    To the extent that this commenter is also recommending that DHS 
include a provision that would require a noncitizen subject to the rule 
to agree to seek reimbursement as part of the public charge 
inadmissibility determination, DHS notes that the sponsorship 
obligation and related reimbursement requirements that arise from 
executing an Affidavit of Support Under Section 213A of the INA are 
separate and distinct from the public charge inadmissibility 
determination, because these obligations and requirements do not go 
into effect until after the public charge inadmissibility determination 
has been made and the intending immigrant has been admitted as an 
immigrant or granted adjustment of status. As a result, DHS declines to 
include a provision that requires a noncitizen subject to the rule to 
agree to seek reimbursement as part of the public charge inadmissibly 
determination.
    Comment: One commenter stated that if DHS is going to treat an 
Affidavit of Support Under Section 213A of the INA as sufficient 
evidence that the applicant is not inadmissible, then DHS should 
include provisions in this rule pertaining to the enforceability of the 
affidavit.
    Response: First, as noted above, under this rule, DHS does not 
treat an Affidavit of Support Under Section 213A of the INA as 
sufficient evidence on its own that an applicant is not inadmissible as 
likely at any time to become a public charge. Instead, as required 
under the statute, DHS will consider all of the statutory minimum 
factors in a public charge inadmissibility determination.\465\ As 
Congress provided that DHS may consider any Affidavit of Support Under 
Section 213A of the INA in the public charge inadmissibility 
determination,\466\ under this rule, DHS will favorably consider a 
sufficient Affidavit of Support Under Section 213A of the INA and the 
receipt of public benefits, as defined in the rule, in the totality of 
the circumstances.\467\
---------------------------------------------------------------------------

    \465\ INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \466\ INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \467\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Nevertheless, with respect to this commenter's suggestion that DHS 
include provisions regarding the enforcement of the support 
obligations, DHS notes that this rulemaking is not intended to address 
the enforcement of the Affidavit of Support Under Section 213A of the 
INA. This is because enforcement of the obligations that attach once 
the application for an immigrant visa or adjustment of status is 
granted \468\ is distinct from and occurs after the actual public 
charge inadmissibility determination under section 212(a)(4) of the 
INA, 8 U.S.C. 1182(a)(4). Further, if a sponsor fails to fulfil their 
support obligations, the sponsored immigrant or any Federal, state, 
local, or private agency that provided any public benefit to the 
sponsored immigrant may sue the sponsor to enforce the Affidavit of 
Support Under Section 213A of the INA.\469\ Because the statute already 
allows any interested parties to sue to enforce an Affidavit of Support 
Under Section 213A of the INA, and because such changes would be 
outside the scope of the rulemaking, DHS does not believe that further 
updates to the enforcement procedures for an Affidavit of Support Under 
Section 213A of the INA would be appropriate at this time. 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. As further explained above, DHS declines to 
address sponsorship obligations or enforcement of those obligations in 
this rule.
---------------------------------------------------------------------------

    \468\ See INA sec. 213A, 8 U.S.C. 1183a.
    \469\ See INA sec. 213A(a)(1)(B), 8 U.S.C. 1183a(a)(1)(B).
---------------------------------------------------------------------------

3. Current and/or Past Receipt of Public Benefits
    Comment: Some commenters stated that children should not be 
penalized for previous or current receipt of benefits by their adult 
caregivers or other household members, because the receipt of public 
benefits during periods when children are vulnerable and economically 
needy is economically and socially helpful for their development and 
contributes to healthier adults with better employment outcomes. 
Another commenter also stated that children are generally not 
responsible for immigrating to the United States or enrolling in 
benefits and should therefore not be subject to the public charge 
ground of inadmissibility. Some commenters also recommended DHS state 
that the use of benefits as a child should not be included in a public 
charge inadmissibility determination, as this provides no evidence for 
future reliance on government programs and access to key supports by 
children has been associated with improvements in future economic 
outcomes.
    Response: DHS appreciates the comments expressing concern about the 
consideration of past or current public benefit use by children. Under 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), DHS is required to 
make a predictive assessment of whether a child is likely at any time 
to become a public charge when a child is applying for admission or 
adjustment of status unless the child is within one of the categories 
expressly exempted by Congress. Only those categories designated by 
Congress are exempt from the public charge ground of 
inadmissibility.\470\ DHS notes that Congress did not exclude children 
from the public charge ground of inadmissibility and therefore, unless 
a child is seeking admission or adjustment of status in a 
classification that Congress expressly exempted from the public charge 
ground of inadmissibility, for example adjustment of status as a 
special immigrant juvenile,\471\ DHS must apply the ground to 
applications for admission or adjustment of status and must take into 
account the factors in the totality of the circumstances. A public 
charge inadmissibility determination takes into account the totality of 
a noncitizen's circumstances, including the noncitizen's age.
---------------------------------------------------------------------------

    \470\ See 8 CFR 212.23.
    \471\ INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
---------------------------------------------------------------------------

    While DHS will not create a different standard for children, DHS 
intends to issue guidance as appropriate that will clarify 
considerations that are relevant to a child's receipt of public 
benefits in the totality of the circumstances.
    With respect to commenters' concern that children will be penalized 
for benefits received by their adult caregivers or household members, 
DHS also notes that unless the child was a named beneficiary for the 
public benefits, those public benefits will not be considered. DHS is 
defining ``receipt (of public benefits)'' separately from its 
definition of ``likely at any time to become a public charge.'' \472\ 
In this definition, DHS makes clear that the receipt of public benefits 
occurs when a

[[Page 55561]]

public benefits-granting agency provides public benefits to a 
noncitizen, but only where the noncitizen is listed as a beneficiary. 
DHS recognizes that this policy differs from the policy announced under 
the 1999 Interim Field Guidance and the IRCA legalization 
regulations,\473\ but notes that the statute does not require a 
determination that includes benefits where only the applicant's 
relatives are listed as beneficiaries, and that there are strong public 
policy reasons to avoid chilling effects in this context.
---------------------------------------------------------------------------

    \472\ See 8 CFR 212.21.
    \473\ See discussion in Definitions--Receipt of Public Benefits.
---------------------------------------------------------------------------

    In addition, and similarly to the 2019 Final Rule, applying for a 
public benefit on one's own behalf or on behalf of another would not 
constitute receipt of public benefits by the noncitizen applicant, nor 
would approval for future receipt of a public benefit on the 
noncitizen's own behalf or on behalf of another. If, however, a 
noncitizen has been approved for future receipt of a public benefit 
that would be considered under this rule, that information may be 
considered by an officer in the totality of the circumstances. Any 
evidence of approval for future receipt of a public benefit on behalf 
of an applicant, while not constituting receipt of public benefits, 
would indicate a probability of future receipt of public benefits and 
be considered by DHS as probative of being likely of becoming a public 
charge in the future. Finally, this definition would make clear that a 
noncitizen's receipt of public benefits solely on behalf of another, or 
the receipt of public benefits by another individual (even if the 
noncitizen assists in the application process), would also not 
constitute receipt of public benefits by a noncitizen. Therefore, under 
this rule, noncitizens will not be penalized for previous or current 
use of benefits by their adult caregivers or other household members 
where they were not named beneficiaries.
    Comment: Some commenters recommended that DHS exclude from 
consideration in public charge inadmissibility determinations the 
receipt of public benefits by active-duty U.S. service members and 
their spouses and children, as was done in the 2019 Final Rule. 
Although these commenters alleged that the NPRM is generally too 
lenient, they expressed concern that the NPRM if finalized might 
operate to the detriment of some active-duty service members and their 
families. These commenters stated that DHS should provide a special 
dispensation for service members and their families, regardless of 
DHS's belief that they would not generally be receiving the benefits 
that would be considered, given the expansive list of exemptions and 
exclusions for a number of benefits and classes of noncitizens. The 
commenters did not provide data regarding the receipt of public 
benefits by this particular population.
    Response: DHS appreciates the commenters' expression of concern for 
U.S. service members and their spouses and children and shares this 
concern. The exclusion of consideration of public benefits used by 
active-duty members of the U.S. military in the 2019 Final Rule relied 
significantly on the fact that that rule included the consideration of 
non-cash benefits, in particular SNAP, a supplemental program that this 
rule does not include in the public charge inadmissibility 
determination.\474\ DHS agrees that receipt of non-cash benefits by 
U.S. service members and their spouses and children does not provide a 
good indication that those service member and their families are likely 
at any time to become public charges. Unlike these commenters, however, 
DHS believes that the same is also true of other members of the public.
---------------------------------------------------------------------------

    \474\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR 
41292, 41371 (Aug. 14, 2019); 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), https://www.gao.gov/assets/680/678474.pdf (last visited July 
13, 2022) (reporting estimates ranging from 2,000 active duty 
servicemembers receiving SNAP to 22,000 such servicemembers 
receiving SNAP). 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 receipt may have 
increased somewhat following termination of the program. See Public 
Law 114-92, div. A, sec. 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.'').
---------------------------------------------------------------------------

    Because this rule generally excludes consideration of non-cash 
benefits (other than long-term institutionalization at government 
expense), DHS does not believe that there is a need to create the sort 
of specialized exception for service members that it determined was 
required under the 2019 Rule. According to data provided by DOD, as of 
April 30, 2022, a total of 99 active-duty personnel use TANF and 572 
use SSI, out of approximately 1.34 million active-duty service 
members.\475\ Also according to DOD, as of April 30, 2022, a total of 1 
active-duty service member who is not a U.S. citizen or U.S. national 
uses TANF, and no active-duty service members who are not U.S. citizens 
or U.S. nationals use SSI.\476\
---------------------------------------------------------------------------

    \475\ Benefit use data provided by the Defense Manpower Data 
Center to DHS on July 12, 2022. The total number of active-duty 
service members is publicly available at Defense Manpower Data 
Center, ``Active Duty Military Strength Summary,'' https://dwp.dmdc.osd.mil/dwp/app/dod-data-reports/workforce-reports (last 
visited July 12, 2022).
    \476\ Benefit use data provided by the Defense Manpower Data 
Center to DHS on July 14, 2022.
---------------------------------------------------------------------------

    As a result, DHS does not believe that it is necessary to 
specifically exclude from consideration benefits received by active-
duty U.S. service members and their spouses and children in the public 
charge inadmissibility determination because it does not believe that 
active-duty U.S. service members would generally be affected by the 
public benefits considered under this rule. DHS is adopting a standard 
similar to the one used in the 1999 Interim Field Guidance and NPRM, 
which defined ``public charge'' based on primary dependence on the 
government for subsistence as demonstrated by the receipt of public 
cash assistance for income maintenance or long-term 
institutionalization at government expense. DHS is not considering the 
receipt of SNAP benefits, which are frequently utilized by service 
members and their families, in this rule.
    USCIS notes that noncitizens must generally be LPRs \477\ in order 
to join the United States military and LPRs only are subject to the 
public charge ground of inadmissibility in limited circumstances.\478\ 
Further, under section 329 of the INA, 8 U.S.C. 1440, all noncitizens 
honorably serving in the U.S. military at the present time, which is a 
specifically designated period of hostilities, may be eligible to 
naturalize (without spending a specific period of time as an LPR or 
having been lawfully admitted to the United States for permanent 
residence) if they meet the other eligibility requirements.\479\ In

[[Page 55562]]

accordance with E.O. 14012, DHS and DOD are working together diligently 
to facilitate naturalization for eligible noncitizen service members 
and are dedicated to making naturalization services available to all 
noncitizen service members as soon as they are eligible.\480\
---------------------------------------------------------------------------

    \477\ See USA.gov, ``Join the Military,'' https://www.usa.gov/join-military (last visited July 12, 2022). However, under the 
Military Accessions Vital to National Interest (MAVNI) program, 
certain noncitizens who were asylees, refugees, TPS beneficiaries, 
deferred action beneficiaries, or nonimmigrants in certain 
categories could enlist. DOD ceased recruiting service members 
through the MAVNI program in 2016.
    \478\ LPRs do not apply for adjustment of status and they are 
generally not considered to be applicants for admission when they 
return from a trip abroad. However, in certain limited 
circumstances, an LPR will be considered an applicant for admission 
and subject to an inadmissibility determination upon their return to 
the United States. See INA sec. 101(a)(13)(C), 8 U.S.C. 
1101(a)(13)(C).
    \479\ See USCIS Policy Manual, Vol. 12, Part I, Ch. 3, 
``Military Service during Hostilities (INA 329),'' https://www.uscis.gov/policy-manual/volume-12-part-i-chapter-3 (last visited 
July 12, 2022).
    \480\ See ``Restoring Faith in Our Legal Immigration Systems and 
Strengthening Integration and Inclusion Efforts for New Americans,'' 
86 FR 8277 (Feb. 5, 2021). See ``Oversight of Immigrant Military 
Members and Veterans,'' Subcomm. on Immigr. and Citizenship, H. 
Comm. on the Judiciary, 117th Cong. (2022) (statement of Debra 
Rogers, Director of the Immigrant Military Members and Veterans 
Initiative, DHS, and statement of Stephanie P. Miller, Director, 
Office of Enlisted Personnel Policy, DOD), https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4935 (last 
visited July 13, 2022).
---------------------------------------------------------------------------

    In summary, noncitizens make up a very small percentage of active 
duty service members, those who are serving are generally LPRs, those 
who are serving are eligible to naturalize immediately if they meet the 
other eligibility requirements, and DHS/DOD are taking steps to make 
naturalization available to them as soon as they are eligible, and even 
if not yet naturalized the LPR service members are only subject to the 
public charge ground of inadmissibility in exceptionally limited 
circumstances. Finally, as noted above, only one active-duty service 
member who is not a U.S. citizen or U.S. national uses TANF, and no 
active-duty service members who are not U.S. citizens or U.S. nationals 
use SSI. Given these facts, it is highly unlikely that any active-duty 
noncitizen service member would use SSI or TANF and also be considered 
an applicant for admission and subject to a public charge 
inadmissibility determination prior to their naturalization.
    Moreover, in all cases, DHS is only considering receipt of public 
cash assistance for income maintenance received by the applicant and 
not the receipt of such assistance by the applicant's family members, 
including the applicant's spouse and children. DHS is defining 
``receipt (of public benefits)'' separately from its definition of 
``likely at any time to become a public charge.'' \481\ In this 
definition, DHS makes clear that the receipt of public benefits occurs 
when a public benefit granting agency provides public benefits to a 
noncitizen, but only where the noncitizen is listed as a beneficiary. 
In addition, applying for a public benefit on one's own behalf or on 
behalf of another would not constitute receipt of public benefits by 
the noncitizen applicant, nor would approval for future receipt of a 
public benefit on the noncitizen's own behalf or on behalf of another. 
This definition for receipt (of public benefits) makes clear that the 
noncitizen's receipt of public benefits solely on behalf of another, or 
the receipt of public benefits by another individual (even if the 
noncitizen assists in the application process), will also not 
constitute receipt of public benefits by the noncitizen. DHS believes 
that including a further, explicit confirmation that this definition 
applies to active-duty U.S. military spouses and children may create 
confusion, because doing so could imply that those benefits would be 
considered for other non-active duty U.S. military spouses and children 
when in fact that is not the case.
---------------------------------------------------------------------------

    \481\ See 8 CFR 212.21(d) and (a), respectively.
---------------------------------------------------------------------------

    Finally, to the extent that commenters were suggesting that DHS 
should fully exempt active-duty service members, their spouses, and 
their children from the public charge ground of inadmissibility, DHS 
reiterates the discussion above in section III.G in response to other 
comments requesting exemptions for certain categories of noncitizens. 
Only those categories designated by Congress are exempt from the public 
charge ground of inadmissibility,\482\ and although DHS can and will 
issue guidance that will clarify considerations that are relevant to 
current and/or past receipt of public benefits by active duty 
servicemembers and their families, DHS declines to exempt the whole 
category from the public charge ground of inadmissibility.
---------------------------------------------------------------------------

    \482\ See 8 CFR 212.23.
---------------------------------------------------------------------------

    Comment: One commenter expressed concern about the DHS statement 
that the longer a noncitizen had received benefits in the past and the 
greater the amount of benefits, the stronger the implication that a 
noncitizen is likely to become a public charge, because the amount of 
benefits and length of time benefits are available varies by locality 
and State for TANF, General Assistance, and Guaranteed Income pilots. 
Furthermore, the commenter stated that a calculation that considers 
these factors would necessarily discriminate against immigrants living 
in States or localities with more generous benefits than those with 
more limited programs available to them, and setting guidelines based 
on amount and time on aid creates a disproportionate harm to immigrants 
who live and receive support in States and localities that prioritize 
their wellbeing through more robust programs. Other commenters also 
recommended a clarification to the regulatory text that 
institutionalization at government expense for short periods of time 
for rehabilitation purposes should not be considered in a public charge 
inadmissibility determination, and that only Medicaid section 1905(a) 
institutional services will be considered.
    Response: DHS notes and appreciates the commenter's concern about 
the differences in availability and guidelines pertaining to public 
benefit programs in different localities and States and how that could 
impact the public charge inadmissibility determination. DHS believes, 
however, that consideration of public cash assistance for income 
maintenance and long-term institutionalization at government expense 
should remain a part of the public charge inadmissibility 
determination. Even with the differences that exist throughout the 
country on the local and State level, past public benefit receipt, 
including long-term institutionalization at government expense, has 
long been considered in the public charge inadmissibility 
determination. During development of this rule, DHS consulted with HHS, 
which administers TANF and Medicaid. As part of that consultation, HHS 
provided an on-the-record letter to DHS included with the NPRM 
expressing their general support for the approach to public charge 
inadmissibility taken by INS in the 1999 Interim Field Guidance and 
1999 NPRM, and specifically supported an understanding of public charge 
linked to being primarily dependent on the government for subsistence 
as demonstrated by the receipt of cash assistance for income 
maintenance or long-term institutionalization at government expense. As 
suggested by HHS in its on-the-record consultation letter, DHS is 
replacing the term ``institutionalization for long-term care at 
government expense,'' used in the 1999 Interim Field Guidance and 1999 
NPRM, with ``long-term institutionalization at government expense,'' in 
order to better describe the specific types of services covered and the 
duration for receiving them. Consistent with the 1999 Interim Field 
Guidance and 1999 NPRM, and included in regulation text at section 
212.21(c), long-term institutionalization does not include imprisonment 
for conviction of a crime or institutionalization for short periods or 
for rehabilitation purposes.
    The vast majority of public comments received in response to the 
2021 ANPRM and the 2022 NPRM supported excluding past or current use 
of, or eligibility for, HCBS from the public charge inadmissibility 
determination. This approach is also supported by HHS. In its on-the-
record consultation

[[Page 55563]]

letter included with the NPRM, HHS encouraged DHS to ``consider 
clarifications to its public-charge framework that would account for 
advancements over the last two decades in the way that care is provided 
to people with disabilities and in the laws that protect such 
individuals.'' Specifically, HHS suggested that HCBS should not be 
considered in public charge inadmissibility determinations. HHS 
affirmed, as discussed above, that ``HCBS help older adults and persons 
with disabilities live, work, and fully participate in their 
communities, promoting employment and decreasing reliance on costly 
government-funded institutional care.'' The HHS letter also 
distinguished HCBS from long-term institutionalization at government 
expense by stating that HCBS do not provide ``total care for basic 
needs'' because they do not pay for room and board. In its letter, HHS 
also encouraged DHS to take into account ``legal developments in the 
application of Section 504 since 1999,'' including looking at whether a 
person might have been institutionalized at government expense in 
violation of their rights. As a result of these considerations, DHS 
believes that it is important to exclude consideration of HCBS, but 
continue to include consideration of long-term institutionalization at 
government expense, as well as public cash assistance for income 
maintenance.
    DHS further notes that ``long-term institutionalization'' is the 
only category of Medicaid-funded services to be considered in public 
charge inadmissibility determinations.\483\ The 1999 Interim Field 
Guidance indicates that ``short term rehabilitation services'' are not 
to be considered for public charge purposes, but it does not otherwise 
describe the length of stay that is relevant for a public charge 
inadmissibility determination. Generally, DHS considers ``long-term 
institutionalization'' to be characterized by uninterrupted, extended 
periods of stay in an institution, such as a nursing home or a mental 
health institution. Under this approach, DHS, for example, would not 
consider a person to be institutionalized long term if that person had 
sporadic stays in a mental health institution, where the person was 
discharged after each stay. On the other hand, DHS would consider a 
person to be institutionalized long-term if the person remained in the 
institution over a long period of time, even if that period included 
off-site trips or visits without discharge.
---------------------------------------------------------------------------

    \483\ Defined as institutional services under section 1905(a) of 
the Social Security Act.
---------------------------------------------------------------------------

    Comment: One commenter said that receiving benefits for a period of 
time allows people to get their health back on track and can be 
beneficial to both the individual and society. Commenters also stated 
that receiving benefits for a short period of time, or receiving 
temporary benefits, does not show a prospective likelihood of primary 
dependence on governmental support but did not provide a citation for 
that statement. One commenter recommended DHS impose a minimum 5-year 
window for past benefit usage in the public charge inadmissibility 
determination, which would be in line with PRWORA's 5-year waiting 
period required for an individual to become a ``qualified alien'' to 
obtain eligibility for most Federal public benefits, while another 
commenter suggested a time limit of 1 year.
    Another commenter cited a 2017 survey of service providers that 
showed 85% of respondents said that TANF is a very critical resource 
for a significant number of domestic violence and sexual assault 
victims, so the commenter recommended the rule explicitly exclude past 
benefits use that has been short-term or time-limited, or for emergent 
needs, including cash assistance for survivors who need short-term 
income maintenance. One commenter recommended also that if DHS 
considers past receipt of benefits, the officer should consider whether 
the assistance was used by survivors of domestic violence, serious 
crimes, disasters, an accident, pregnant or recently pregnant persons, 
or children, in that public benefits may have been used to overcome 
hardships caused by a temporary situation that no longer applies and 
does not predict future use. Some commenters emphasized that DHS should 
not consider these benefits at all.
    Response: DHS appreciates the comment and concern for individuals 
who use public benefits on a short-term, set term, or temporary basis. 
DHS does not believe that it would be fair or equitable to set an 
arbitrary time frame on the use of benefits (such as five years); 
rather, DHS believes that short-term or temporary use of benefits is 
best considered under the totality of circumstances framework that this 
rule will promulgate and that has been used by DHS (and the former INS) 
for over 20 years. With this rule, DHS makes clear in the regulatory 
text that DHS will consider the amount, duration, and recency of 
receipt, and that the current and/or past receipt of these public 
benefits is not alone sufficient for determining whether an individual 
is inadmissible because DHS would also consider the statutory minimum 
factors in each case before making a determination under the totality 
of the circumstances.\484\
---------------------------------------------------------------------------

    \484\ See 8 CFR 212.21(a).
---------------------------------------------------------------------------

    Furthermore, as for the comment that recommends not considering 
public benefit use from certain vulnerable populations, DHS clarifies, 
in this rule, which classes of individuals are exempt from the public 
charge ground of inadmissibility or for whom a waiver is available. DHS 
agrees that it is important in this rule to make clear who is exempted 
from the public charge ground of inadmissibility, such as those who are 
VAWA self-petitioners under section 212(a)(4)(E)(i) of the Act. A list 
of those who are exempted from 212(a)(4) of the Act can be found at 8 
CFR 212.23. Additionally, in this rule DHS has identified the following 
groups for exclusion from consideration of receipt of certain public 
benefits: (1) receipt of public benefits when a noncitizen is in a 
category exempt from public charge; \485\ and (2) receipt of public 
benefits by those granted refugee benefits.\486\ If an applicant is not 
exempt from the public charge ground of inadmissibility and no waiver 
is available, the applicant can nonetheless describe their temporary 
circumstances to DHS, which DHS will consider in the totality of the 
circumstances.
---------------------------------------------------------------------------

    \485\ See 8 CFR 212.22(d).
    \486\ See 8 CFR 212.22(e).
---------------------------------------------------------------------------

    Comment: A commenter stated that utilization of TANF and SSI alone 
should not make someone likely to become a public charge. Another 
commenter stated that cash assistance should not be more heavily 
weighted than other types of assistance because the totality of the 
individual's circumstances should be taken into account. Other 
commenters stated that DHS should explicitly state that use of SSI or 
TANF alone is not determinative in a public charge inadmissibility 
determination. One comment also stated that use of such benefits should 
be considered in the context of why they are received, along with any 
positive factors under the forward-looking totality of circumstances 
test.
    Response: DHS reiterates, as stated in the NPRM, that it intends to 
continue the longstanding approach to the public charge ground of 
inadmissibility that does not rely on any one factor alone in making a 
public charge inadmissibility determination. DHS understands that there 
is confusion about how receipt of public benefits is considered as a 
result of the concept of ``heavily weighted factors'' that was included 
in the 2019

[[Page 55564]]

Final Rule. As noted elsewhere in this preamble, that rule is no longer 
in effect and DHS does not propose any heavily weighted factors in this 
current rule. DHS appreciates the commenter's suggestion that DHS 
should explicitly state that use of SSI or TANF alone is not 
determinative in a public charge inadmissibility determination. Instead 
of singling out SSI and TANF, however, DHS is making clear in the 
regulatory text that current and/or past receipt of public cash 
assistance for income maintenance (as well as long-term 
institutionalization at government expense) will not alone be a 
sufficient basis to determine whether an applicant is likely at any 
time to become a public charge.\487\ As the rule defines ``public cash 
assistance for income maintenance,'' this provision already includes 
SSI and TANF (as well as State, Tribal, territorial, or local cash 
benefit programs for income maintenance). The regulatory text further 
states that DHS will consider such receipt in the totality of the 
circumstances, along with the other factors, and will consider the 
amount and duration of receipt, as well as how recently the noncitizen 
received the benefits,\488\ to determine whether the noncitizen is 
likely at any time to become a public charge. This rule also clearly 
states that no one factor, including current or past receipt of public 
benefits, apart from the lack of a sufficient Affidavit of Support 
Under Section 213A of the INA where required, should be the sole 
criterion for determining whether an applicant is likely to become a 
public charge.
---------------------------------------------------------------------------

    \487\ See 8 CFR 212.22(a)(3).
    \488\ See 8 CFR 212.22(a)(3).
---------------------------------------------------------------------------

    Comment: Many commenters stated that DHS should only consider 
current receipt of TANF and SSI in a public charge inadmissibility 
determination, as any consideration of past receipt of benefits would 
create a chilling effect that would harm immigrants and their families 
and put public health at risk. Similarly one commenter stated that the 
ability to predict future public benefit use based on past use of SSI 
is weak because low-income noncitizen immigrants are much less likely 
to receive SSI benefits than similar U.S.-born adults and their use of 
benefits lessens over time. The commenter stated that past receipt of 
public benefits is not relevant in the prospective public charge 
inadmissibility determination because, generally, a person who has 
received public benefits in the past and is not receiving them 
currently has experienced a change in circumstances. For example, a 
person who previously relied on TANF may have secured employment after 
completing a degree or vocational program. Moreover, the commenter 
stated that benefits are not mentioned in the INA's public charge 
inadmissibility provisions and arguably could be excluded from 
consideration altogether. One of these commenters stated that DHS 
should not consider any past use of benefits in the prospective public 
charge inadmissibility determination and should strike questions about 
past receipt of public benefits from the I-485 form.
    Response: DHS appreciates but disagrees with the comments that 
stated that past public benefit use should not be considered in the 
public charge inadmissibility determination. DHS notes that it has 
limited which past benefits are relevant to the determination that an 
individual will be likely at any time to become a public charge. Past 
long-term institutionalization at government expense has long been 
considered in the public charge inadmissibility determination. DHS will 
consider past or current long-term institutionalization at government 
expense in the totality of the circumstances. DHS further notes that 
changes in an individual's circumstances, as well as changes in the 
availability of different types of public benefits, can impact an 
individual's public benefit usage. While DHS agrees that past use is 
not determinative of future use, it is a factor that DHS believes is 
necessary to take into account along with the other factors, in the 
totality of the circumstances. To the extent that the commenter above 
describes an individual who at one point in the past relied on TANF, 
but now has steady employment that allows them to support their needs 
after they gained a degree or vocational program, under the rule, those 
considerations would be taken into account on a case-by-case basis 
considering those factors as well as the others set forth in the 
statute and these regulations in the totality of circumstances. To the 
extent that circumstances have changed since the period of past long-
term institutionalization, those changed circumstances will be 
considered.
    Comment: Several commenters recommended that DHS clarify that only 
current long-term institutionalization be considered, as past 
institutionalization may reflect a medical issue that has since been 
resolved, a lack of access to community-based services that have since 
been provided, a lack of accessible housing, or other factors that do 
not suggest a likelihood of future institutionalization.
    Response: DHS disagrees that only current long-term 
institutionalization should be considered. Past long-term 
institutionalization at government expense has long been considered in 
the public charge inadmissibility determination. DHS notes that long-
term institutionalization is the only category of Medicaid-funded 
services to be considered in public charge inadmissibility 
determinations.\489\ Although the 1999 Interim Field Guidance indicated 
that ``short term rehabilitation services'' are not to be considered 
for public charge purposes, it did not otherwise describe the length of 
stay that is relevant for a public charge inadmissibility 
determination. In this rule, generally, DHS will consider ``long-term 
institutionalization'' to be characterized by uninterrupted, extended 
periods of stay in an institution, such as a nursing home or a mental 
health institution. Under this approach, DHS, for example, would not 
consider a person to be institutionalized long-term if that person had 
sporadic stays in a mental health institution, where the person was 
discharged after each stay. On the other hand, DHS would consider a 
person to be institutionalized long term if the person remained in the 
institution over a long period of time, even if that period included 
off-site trips or visits without discharge. DHS would also note that, 
given advances in alternatives to receiving care in institutional 
settings, prior receipt of long-term institutional services, even for 
extended periods of time, is not necessarily determinative of requiring 
institutional care in the future. In this rule, DHS will consider past 
or current receipt of long-term institutional services in the totality 
of the circumstances.
---------------------------------------------------------------------------

    \489\ Defined as institutional services under section 1905(a) of 
the Social Security Act.
---------------------------------------------------------------------------

    Comment: One commenter stated that immigrants should be allowed to 
benefit from the same assistance that citizens benefit from, stating 
that it will be more difficult for immigrants to integrate into society 
if they are not able to access the same benefits as citizens, imposing 
an artificial barrier to success for the immigrants. One commenter 
suggested that consideration of receipt of public benefits is 
dehumanizing. This commenter said that immigrants are less likely to 
use government benefits than U.S. citizens and a law that only views 
them as takers, not givers, is dehumanizing.
    Similarly, another commenter stated that the current law punishes 
poor immigrants by penalizing government assistance usage, which leads 
to families

[[Page 55565]]

not applying for benefits for which they are eligible, making it harder 
for them to integrate into society due to the economic strain. Another 
commenter stated that while some people will only need public benefits 
for a short period, others may need to rely on them indefinitely, and 
it would be inhumane and discriminatory to uphold regulations that 
reject people in either circumstance if they are in need of public 
assistance.
    Response: DHS appreciates the comments about the importance of 
public benefits to immigrants and that taking into account past or 
current benefit use in the immigration admissibility determination can 
have negative effects on immigrants subject to the ground of 
inadmissibility. Congress, however, created the public charge ground of 
inadmissibility at section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
and the ground of inadmissibility must be applied except where Congress 
indicated otherwise. As discussed elsewhere in this preamble, DHS 
believes that it is important to consider a noncitizen's past or 
current receipt of certain benefits, to the extent that such receipt 
occurs, as part of the public charge inadmissibility determination. DHS 
opts for an approach in which DHS considers past or current receipt of 
the benefits most indicative of primary dependence on the government 
for subsistence but excludes from consideration a range of benefits 
that are less indicative of primary dependence, and for which 
applicants for admission and adjustment of status are likely ineligible 
in any event. This rule is an effort to faithfully implement the public 
charge ground of inadmissibility without unnecessarily and at this 
point, predictably, harming separate efforts related to health and 
well-being of people whom Congress made eligible for supplemental 
supports.
    DHS understands that certain individuals may be less likely to 
become a public charge in the long term after a certain duration of 
benefits use and that individuals may use benefits for shorter or 
longer periods of time. However, the material question in a public 
charge inadmissibility determination is whether the person is likely to 
become a public charge at some point in the future. Thus, DHS has 
chosen not to limit its definition of public charge based on the 
potential that a noncitizen who is currently a public charge may not 
remain so indefinitely. Instead, the appropriate way to address that 
nuance is through the totality of the circumstances prospective 
determination.
4. Long-Term Institutionalization in Violation of Federal Law
    Comment: One commenter stated that USCIS decisionmakers who predict 
institutionalization in the future for a currently institutionalized 
person would be incorrectly assuming that the institution is a proper 
placement and not in violation of Federal law when, in fact, these 
individuals can and should be receiving HCBS. The commenter stated that 
the only situation in which institutionalization would not violate 
Federal law would be when it is directly chosen by the person with a 
disability, and thus recommends DHS remove the consideration of long-
term institutionalization at government expense from the public charge 
inadmissibility determination.
    Response: DHS disagrees that the only institutionalization at 
government expense that does not violate Federal law would be 
institutionalization that is directly chosen by the person with a 
disability, as Federal law does not impose this type of requirement 
with respect to institutionalization.\490\ Indeed, as noted in the 
NPRM, Federal law requires placement of individuals in the most 
integrated setting appropriate to their needs, which does not indicate 
that only patient-requested institutionalization complies with Federal 
law. While some institutionalization of individuals with disabilities 
may occur in violation of Federal law, commenters provided no evidence 
that suggests that institutionalization is almost always in violation 
of Federal law.\491\ To the extent that institutions, including nursing 
homes and mental health facilities, generally assume total care of the 
basic living requirements of individuals who are admitted, including 
room and board,\492\ DHS believes that such long-term 
institutionalization at government expense (at any level of government) 
is properly considered under this rule because, as noted by HHS in its 
consultation letter,\493\ it is evidence of being or likely to become 
primarily dependent on the government for subsistence.
---------------------------------------------------------------------------

    \490\ 87 FR at 10613 (Feb. 24, 2022).
    \491\ 87 FR at 10613 (Feb. 24, 2022).
    \492\ See Ctrs. for Medicare & Medicaid Services, Medicaid.gov, 
``Institutional Long Term Care,'' https://www.medicaid.gov/medicaid/ltss/institutional/index.html (last visited Aug. 16, 2022). See also 
42 CFR 435.700 et seq.
    \493\ 87 FR at 10613 (Feb. 24, 2022).
---------------------------------------------------------------------------

    DHS notes that, consistent with the NPRM,\494\ it has excluded 
Medicaid-funded HCBS that help older adults and people with 
disabilities live, work, and fully participate in their communities, as 
HCBS do not include payments for room and board, and therefore do not 
provide the total care for basic needs provided by institutions.
---------------------------------------------------------------------------

    \494\ See 87 FR at 10614 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: One commenter stated that the provision that officers 
consider whether a person's current or past institutionalization would 
violate Federal law does not reflect the true circumstances of 
institutionalized people and incorrectly assumes there are cases in 
which institutionalization is ever required. The commenter further 
stated that there is no reason any person with a disability needs to be 
institutionalized, citing a study that shows even those with the 
highest support needs and most significant disabilities can live in the 
community when the supports and services they need are provided there. 
The commenter opined that given this, there is never a situation where 
institutionalization is the most integrated setting appropriate and 
therefore all institutionalization at government expense would violate 
the Americans with Disabilities Act's integration mandate as required 
by Olmstead v. L.C. and thus Federal law.
    Response: DHS disagrees that all institutionalization at government 
expense is a per se violation of the Americans with Disabilities Act 
(ADA) and Section 504. As DHS noted in the NPRM,\495\ although the ADA 
requires public entities, and Section 504 requires recipients of 
Federal financial assistance to provide services to individuals in the 
most integrated setting appropriate to their needs, DHS understands 
that some institutionalization of individuals with disabilities may 
occur in violation of the Federal laws. But DHS does not believe that 
all institutionalization necessarily violates the ADA and Section 504, 
and the commenters have not provided evidence that this is the case. As 
a result, DHS continues to believe that while it is appropriate to 
consider current or past institutionalization along with the other 
factors listed in 8 CFR 212.22(a) when determining the likelihood at 
any time of becoming a public charge in the totality of the 
circumstances, the best way to ensure that DHS is not considering 
institutionalization that violates Federal law is to ensure that 
applicants are provided a meaningful opportunity to provide evidence 
that current or past institutionalization is in violation of Federal 
law, including the ADA or the Rehabilitation Act. DHS notes that the 
fact that an applicant is or has been long-term institutionalized at 
government expense is not outcome

[[Page 55566]]

determinative under this rule.\496\ Instead, under this rule, DHS will, 
in the totality of the circumstances, take into account all of the 
statutory minimum factors, the applicant's current or past receipt of 
public benefits considered in the rule, as well as the sufficient 
Affidavit of Support Under Section 213A of the INA, if required, in 
determining the noncitizen's likelihood at any time of becoming a 
public charge.\497\
---------------------------------------------------------------------------

    \495\ 87 FR at 10614-10615 (Feb. 24, 2022).
    \496\ 8 CFR 212.22(a)(3); 8 CFR 212.22(b).
    \497\ 8 CFR 212.22(b).
---------------------------------------------------------------------------

5. Other Factors To Consider
    Comment: One commenter suggested DHS clearly indicate that it will 
not consider any submission or receipt of a fee waiver in the public 
charge inadmissibility determination because USCIS fee waivers are 
limited to certain forms and applications and this chilling effect 
punishes noncitizens not subject to the public charge ground of 
inadmissibility and that DHS should include this information in an 
update to the instructions for Form I-912, Request for Fee Waiver.
    Response: DHS understands the commenter's concern regarding the 
chilling effects associated with a public charge inadmissibility 
determination that considers requesting or receiving a fee waiver. 
Under this rule, DHS will consider the five statutory minimum 
factors,\498\ a sufficient Affidavit of Support Under Section 213A of 
the INA, when required, and a noncitizen's current and/or past receipt 
of public cash assistance for income maintenance \499\ or long-term 
institutionalization at government expense,\500\ in the totality of the 
circumstances.\501\ However, DHS notes that the totality of the 
circumstances analysis includes all information or evidence in the 
record before the officer that is relevant to a public charge 
inadmissibility determination. DHS is only collecting initial 
information from applicants as related to the factors as outlined in 
new 8 CFR 212.22(a) and the accompanying application, which does not 
ask for information regarding past requests for and receipt of fee 
waivers. However, DHS may generally consider all evidence and 
information in the record that is relevant to making a public charge 
inadmissibility determination, including evidence that the noncitizen 
previously applied for and received a fee waiver. Such consideration is 
consistent with the understanding of the totality of the circumstances 
approach from the administrative decisions, as well as with the 
approach taken by the former INS when it promulgated 8 CFR 245a.3. 
Accordingly, DHS declines to adopt the commenter's suggestions 
regarding fee waivers.
---------------------------------------------------------------------------

    \498\ See 8 CFR 212.22(a)(1).
    \499\ See 8 CFR 212.21(b).
    \500\ See 8 CFR 212.21(c).
    \501\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: One commenter suggested that whether a person has paid 
taxes should be considered in a public charge inadmissibility 
determination.
    Response: DHS appreciates the suggestion that paying taxes should 
be considered in a public charge inadmissibility determination. While 
taxes are not a minimum factor designated by Congress or contained in 
the rule, a public charge inadmissibility determination includes a 
review of a noncitizen's assets, resources, and financial status. 
Noncitizens may submit tax documents if they wish to provide additional 
information about their income or other financial information, however, 
DHS will not require specific evidence from applicants to make a public 
charge inadmissibility determination for adjustment of status apart 
from the questions on the Form I-485, Application to Register Permanent 
Residence or Adjust Status. Additionally, as noted above, DHS may 
generally consider all evidence and information in the record that is 
relevant to making a public charge inadmissibility determination, 
including evidence that the noncitizen failed to file taxes.
    Comment: One commenter stated that country of origin should never 
be a considered in a public charge inadmissibility determination. 
Another commenter stated that there are shortcomings with assessing 
immigration applicants based on race.
    Response: DHS agrees that race and country of origin should never 
be considered in a public charge inadmissibility determination and has 
not included either as a factor to be considered. DHS will make a 
public charge inadmissibility determination in the totality of 
circumstances, considering the statutory minimum factors, an Affidavit 
of Support Under Section 213A of the INA, when required, and current 
and/or past receipt of public cash for income maintenance and long-term 
institutionalization at government expense.\502\
---------------------------------------------------------------------------

    \502\ See 8 CFR 212.22.
---------------------------------------------------------------------------

    Comment: One commenter stated that even if a person is found to be 
at risk of becoming a public charge, opportunities in the United States 
may allow them to learn new skills and can end their dependency on 
public assistance and suggested this potential for added value to the 
United States should be considered.
    Response: DHS understands that opportunities in the United States 
may give noncitizens new opportunities to learn skills that may end 
their primary dependence on public assistance. However, DHS is required 
to determine if an applicant for admission or adjustment of status is 
likely at any time to become a public charge, following consideration 
of the minimum factors established by Congress in section 212(a)(4) of 
the INA, 8 U.S.C. 1182(a)(4). DHS determined that a reasonable 
implementation of this statute is to consider the statutory minimum 
factors, a sufficient Affidavit of Support Under Section 213A of the 
INA, where required, and a noncitizen's current and/or past receipt of 
cash assistance for income maintenance and long-term 
institutionalization at government expense. Noncitizens are 
inadmissible to the United Sates if they are subject to the public 
charge ground of inadmissibility and are unable to establish, in the 
totality of the circumstances, that they are not likely at any time to 
become primarily dependent on the government for subsistence based on a 
consideration of these factors, and as noted above, any other 
information or evidence in the record that is relevant to a public 
charge inadmissibility determination.
    This means that DHS may take into account a noncitizen's potential 
in certain circumstances, for example a noncitizen's education and 
skills may suggest potential future employment that would generate 
sufficient income for that noncitizen to not be primarily dependent on 
the government for subsistence, but does not mean that potential alone 
is determinative that a noncitizen is not inadmissible under the public 
charge ground.

J. Totality of the Circumstances

1. General Comments in Support of the Totality of the Circumstances 
Language
    Comment: One commenter commended DHS on its return to the totality 
of the circumstances standard, which in their view better aligns with 
congressional intent than what was promulgated by the past 
administration in the 2019 Final Rule. Another commenter said that they 
supported the focus on the totality of the circumstances and favorable 
consideration of the affidavit of support. Another commenter stated 
that they support and recommend that DHS retain

[[Page 55567]]

the proposed rule's language that an applicant's use of countable 
benefits and any one statutory factor do not automatically make an 
individual a public charge. One commenter stated that they support the 
proposed language regarding the term, ``totality of the 
circumstances,'' where no one factor other than the failure to provide 
a legally sufficient affidavit of support, where one is required, 
should determine whether the applicant is likely to become a public 
charge. Commenters stated that the totality of the circumstances 
framework is straightforward and has resulted in efficient, consistent, 
and predictable public charge inadmissibility determinations in the 
past.
    Response: DHS appreciates the support for the totality of the 
circumstances framework proposed in the NPRM. DHS plans to maintain the 
longstanding and straightforward framework set forth in the 1999 
Interim Field Guidance, under which officers consider the statutory 
minimum factors and the Affidavit of Support Under Section 213A of the 
INA, where required, in the totality of the circumstances, without 
separately codifying the standard and evidence required for each factor 
as was done in the 2019 Final Rule. This proposal received widespread 
support in the comments in response to the NPRM and DHS believes that 
including elements consistent with the standard previously in place for 
over 20 years, under which officers will consider the statutory minimum 
factors and the Affidavit of Support Under Section 213A of the INA 
(when required) in the totality of the circumstances, along with other 
elements of the rule, will lead to more consistent and fair 
inadmissibility determinations.
    Comment: A commenter stated that it is inequitable to distinguish 
between long-term institutionalization and HCBS because States differ 
in what they offer to treat someone's needs and that the mere presence 
of someone long-term in an institution should not weigh more heavily 
than other factors in the public charge inadmissibility determination. 
That commenter stated that some States are more likely to default to 
long-term institutionalization even though HCBS are shown to be more 
effective such as for people with brain injuries, mental illness, 
developmental disabilities, autism, and older adults, because there are 
not more appropriate options available.
    Response: DHS appreciates the comment and reiterates, as stated in 
the NPRM, that it intends to continue the longstanding approach to the 
public charge ground of inadmissibility that does not rely on any one 
factor alone in making a public charge inadmissibility determination. 
DHS understands that there is confusion as a result of the heavily 
weighted factors that were included in the 2019 Public Charge Final 
Rule. That rule, where heavily weighted factors were included, is no 
longer in effect and DHS does not propose any heavily weighted factors 
in this current rule. The fact that an individual is long-term 
institutionalized will not by itself establish that they are likely to 
become a public charge. Generally, DHS considers ``long-term 
institutionalization'' to be characterized by uninterrupted, extended 
periods of stay in an institution, such as a nursing home or a mental 
health institution. Under this approach, DHS, for example, would not 
consider a person to be institutionalized long term if that person had 
sporadic stays in a mental health institution, where the person was 
discharged after each stay. On the other hand, DHS would consider a 
person to be institutionalized long term if the person remained in the 
institution over a long period of time, even if that period included 
off-site trips or visits without discharge. Some public comments 
received in response to the 2021 ANPRM supported excluding past or 
current use, or eligibility for, HCBS from the public charge 
inadmissibility determination. In response to the NPRM, many 
commenters, including this commenter, noted that there is inconsistent 
access to HCBS, which may affect whether an individual is using HCBS or 
institutional care. DHS made the decision to exclude HCBS after 
consultation with HHS. In its on-the-record consultation letter, HHS 
encouraged DHS to ``consider clarifications to its public-charge 
framework that would account for advancements over the last two decades 
in the way that care is provided to people with disabilities and in the 
laws that protect such individuals.'' Specifically, HHS suggested that 
HCBS should not be considered in public charge inadmissibility 
determinations. HHS affirmed, as discussed above, that ``HCBS help 
older adults and persons with disabilities live, work, and fully 
participate in their communities, promoting employment and decreasing 
reliance on costly government-funded institutional care.'' The HHS 
letter also distinguished HCBS from long-term institutionalization at 
government expense by stating that HCBS do not provide ``total care for 
basic needs'' because they do not pay for room and board. In its 
letter, HHS also encouraged DHS to take into account ``legal 
developments in the application of Section 504 since 1999,'' including 
looking at whether a person might have been institutionalized at 
government expense in violation of their rights.
    Comment: One commenter stated that they support the elimination of 
the provision in the 2019 Final Rule that gave additional negative 
weight to children under the age of 18 and to an individual's 
disability or health condition in the ``totality of circumstances'' 
test, as those additional weights were discriminatory to children who 
are vulnerable and require specialized medical services. Furthermore, 
the commenter stated that the reversal of those provisions is a 
critical and important step to securing the health and well-being of 
millions of children in immigrant families.
    Response: DHS agrees that the rule should not assign particular 
weight to any individual factor in the totality of the circumstances 
analysis. In addition to the evidentiary and paperwork burdens 
established by the 2019 Final Rule and discussed above, DHS has 
determined that the adjudicative framework established by the 2019 
Final Rule was unduly prescriptive. As reflected in Congress's 
instruction that several factors specific to the applicant must be 
considered, each public charge inadmissibility determination must be 
individualized and based on the evidence presented in the specific 
case, and the relative weight of each factor and associated evidence is 
necessarily determined by the presence or absence of specific facts. 
Consequently, the designation of some factors as always ``heavily 
weighted'' suggested a level of mathematical precision that would be 
unfounded and inconsistent with the long-standing standard of 
considering the totality of the individual's circumstances. DHS may 
periodically issue guidance that will help officers determine how the 
different factors may affect the likelihood that a noncitizen will 
become a public charge at any time, including an empirical analysis of 
the best available data, as appropriate.
2. Recommendations To Improve the Totality of the Circumstances 
Framework
    Comment: Several commenters stated that DHS failed to recognize 
that the 2019 Final Rule standards better instructed officers how to 
conduct adjudications instead of providing nothing more than a list of 
factors absent additional guidance. These commenters appear to suggest 
that DHS should return to the standards set forth in the 2019 Final 
Rule. Another

[[Page 55568]]

commenter stated that by removing the concept of weighted evidence, and 
failing to justify any policy determination or provide a reasoned 
analysis, the proposed rule makes it impossible for an adjudicator to 
determine that a noncitizen is a public charge. Commenters also stated 
that the lack of clear guidance for officers led to the 
underutilization of the public charge ground of inadmissibility.
    Response: DHS disagrees with the commenters' suggestion that it 
should return to the 2019 Final Rule's standards, which codified a 
limited number of heavily weighted negative and positive factors, but 
did not provide meaningful guidance as to how such ``heavy weight'' 
would be applied in the context of an individual case, relative to 
other factors that would also be assigned weight in the analysis. As 
noted in the NPRM,\503\ DHS believes that the straightforward and clear 
approach taken in this rule reflects the longstanding approach to 
making public charge inadmissibility determinations and will reduce the 
burdensome and unnecessary evidentiary and information collection 
requirements pertaining to the factors under the 2019 Final Rule. DHS 
believes the simplified approach in this rule better ensures that DHS 
officers making public charge inadmissibility determinations make the 
most efficient and fair decisions. Therefore, DHS declines to adopt 
these commenters' suggestions.
---------------------------------------------------------------------------

    \503\ 87 FR at 10617 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Comment: One commenter recommended explicit language that warns of 
the degree to which implicit bias and stereotypes about the quality of 
life of people with significant disabilities could color any assessment 
of the total circumstances of a person with a disability, including an 
undervaluation of that person's education, skills, and present state of 
health. One commenter further encouraged DHS to incorporate into its 
regulations or guidance instructions that direct officers, where 
applicable, to consider the circumstances underlying a person's use of 
the relevant benefits or limited resources, including having 
experienced domestic violence or other crimes, a public health or 
natural disaster or economic downturn, or being pregnant, a child or 
having a new child. Under these circumstances, the temporary use of 
benefits can help individuals and families regain stability, health or 
safety, and does not predict (and may even prevent) an individual's 
need for this assistance in the future. One commenter further expressed 
concern that since there is little guidance on how the statutory 
factors interrelate, officers may bring the same biases against people 
with disabilities as shared by the general public. Another commenter 
stated that DHS must make sure to look at the totality of the 
individual's circumstances in a nondiscriminatory manner. A couple of 
commenters stated that the evaluation of the likelihood at any time of 
becoming a public charge is a prospective determination based on the 
totality of circumstances that requires an officer to guess as to what 
may happen in the future and guarantees that the officer's own 
subjective opinions will muddle the analysis.
    Response: DHS appreciates the comments that express concern about 
subjectivity, discrimination, and bias. However, with this rule, DHS 
intends to maintain the totality of the circumstances framework that 
has been in place for over 20 years with the 1999 Interim Field 
Guidance and has been developed in several Service, BIA and Attorney 
General decisions and codified in INS regulations implementing the 
legalization provisions of the Immigration Reform and Control Act of 
1986.\504\
---------------------------------------------------------------------------

    \504\ See ``Field Guidance on Deportability and Inadmissibility 
on Public Charge Grounds,'' 64 FR 28689, 28690 (May 26, 1999); see 
also, e.g., Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) 
(``The determination of whether an alien is likely to become a 
public charge under section 212(a)(15) is a prediction based upon 
the totality of the alien's circumstances at the time he or she 
applies for an immigrant visa or admission to the United States.'').
---------------------------------------------------------------------------

    The 1999 Interim Field Guidance required officers to make public 
charge inadmissibility determinations in the totality of the 
circumstances and indicated that no single factor, other than the lack 
of a sufficient Affidavit of Support Under Section 213A of the INA, 
when required, would control the decision.\505\ As a departure from the 
1999 Interim Field Guidance and the 1999 NPRM, in this rule, DHS also 
recognizes that there are some circumstances where an individual may be 
institutionalized on a long-term basis in violation of Federal anti-
discrimination laws, including the ADA and Section 504. The possibility 
that an individual will be confined without justification thus should 
not contribute to the likelihood that the person will be a public 
charge, and to this end, the rule provides that officers who are 
assessing the probative value of past or current institutionalization 
will take into account, when applicable and in the totality of the 
circumstances, any evidence that past or current institutionalization 
is in violation of Federal law, including the ADA or the Rehabilitation 
Act.\506\ In this rule, DHS also clarifies that the presence of a 
disability, as defined by section 504 of the Rehabilitation Act, is not 
alone a sufficient basis to determine that a noncitizen is likely at 
any time to become a public charge, including that the individual is 
likely to require long-term institutionalization at government expense. 
Instead, under this rule, DHS will, in the totality of the 
circumstances, take into account all of the statutory minimum factors, 
including the applicant's health, as well as the sufficient Affidavit 
of Support Under Section 213A of the INA, if required, in determining 
the noncitizen's likelihood at any time of becoming a public charge.
---------------------------------------------------------------------------

    \505\ ``Field Guidance on Deportability and Inadmissibility on 
Public Charge Grounds,'' 64 FR 28689, 28690 (May 26, 1999).
    \506\ See Olmstead v. L.C., 421 527 U.S. 581 (1999); U.S. 
Department of Justice, Civil Rights Division, Disability Rights 
Section, ``Statement of the Department of Justice on Enforcement of 
the Integration Mandate of Title II of the Americans with 
Disabilities Act and Olmstead v. L.C.,'' Feb. 25, 2020, https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Furthermore, in regards to concerns about bias by individual 
officers, DHS notes that there is a general regulatory requirement that 
USCIS officers ``explain in writing the specific reasons for a 
denial.'' \507\ This requirement applies to all applications and 
petitions adjudicated by USCIS, including denials based on a public 
charge inadmissibility determination.\508\ DHS is now codifying the 
language set forth in the 1999 Interim Field Guidance that reiterated 
more specifically the general requirement that every written denial 
decision issued by USCIS based on the public charge ground of 
inadmissibility include a discussion of each of the factors. In this 
rule, DHS intends that every written denial decision issued by USCIS 
based on the totality of the circumstances will ``reflect consideration 
of each of the factors . . . and specifically articulate the reasons 
for the officer's determination.'' \509\ Although existing DHS 
regulations and policy already require USCIS officers to specify in 
written denials the basis for the denial,\510\ DHS believes that a 
provision explicitly requiring a discussion of the factors considered 
in

[[Page 55569]]

the denial is consistent with the statute and is necessary to ensure 
that any denial based on this ground of inadmissibility is made on a 
case-by-case basis in light of the totality of the circumstances. DHS 
believes these safeguards help ensure that the officer's decision is 
based on the statutory factors and guidance.
---------------------------------------------------------------------------

    \507\ INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). See ``Field 
Guidance on Deportability and Inadmissibility on Public Charge 
Grounds,'' 64 FR 28689 (May 26, 1999). See ``Inadmissibility on 
Public Charge Grounds,'' 84 FR 41292, 41502 (Aug. 14, 2019).
    \508\ 8 CFR 103.3(a)(1)(i).
    \509\ See 8 CFR 212.22(c).
    \510\ See 8 CFR 103.3(a)(1)(i). See also USCIS Policy Manual, 
Vol. 7, Part A, Ch. 11, ``Decision Procedures,'' https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-11 (last visited 
Aug. 16, 2022).
---------------------------------------------------------------------------

    Comment: One commenter stated that age and health are statutory 
factors that cannot be changed through rulemaking, but that those 
factors, as well as SSI and long-term institutionalization, 
disproportionately impact older adults and persons with disabilities, 
with higher rates in communities of color. Therefore, this commenter 
suggested that to limit the discriminatory impact of the rule, it is 
important that no one factor be given determinative weight.
    Response: DHS designed this rule to adhere to, and implement, 
congressional instructions. DHS notes that it does not intend for this 
rule to have a discriminatory effect on applicants with disabilities, 
and emphasizes that disability, as defined by section 504 of the 
Rehabilitation Act, will not alone be a sufficient basis to determine 
whether a noncitizen is likely at any time to become a public 
charge.\511\ Also, as stated previously, for long-term 
institutionalization at government expense, DHS will consider evidence 
submitted by noncitizens to support a declaration that their 
institutionalization violated Federal law.\512\ DHS cannot rule out the 
possibility of disproportionate impacts on certain groups (whether as a 
consequence of the policy contained in this rule, the 1999 Interim 
Field Guidance, or any other policy), but this rule is neutral on its 
face and DHS in no way intends that it will have such impacts on any 
protected group. DHS is committed to applying this rule neutrally and 
fairly to all noncitizens who are subject to it and has included a 
provision requiring that USCIS denials on public charge grounds be 
accompanied by a written explanation that specifically articulates the 
reasons for the officer's determination.\513\ In addition, and as 
stated throughout this rule, DHS requires the analysis of the totality 
of the applicant's circumstances, taking into consideration all of the 
factors, with no single factor being outcome determinative.
---------------------------------------------------------------------------

    \511\ See 8 CFR 212.22(a)(4).
    \512\ See 8 CFR 212.22(a)(3).
    \513\ See 8 CFR 212.22(c).
---------------------------------------------------------------------------

    Comment: One commenter recommended that the final rule include 
guidance that officers consider the impact of domestic violence, sexual 
assault, human trafficking, and other gender-based violence in the 
totality of the circumstances, and DHS should provide guidance for 
limiting consideration of factors that would unfairly penalize 
survivors for the violence they have experienced, or make it more 
difficult for them to escape abuse. The commenter also suggested that 
the final rule consider the supportive and protective effects of access 
to secure legal status for survivors, as recognized in VAWA, as 
adjustment of status or admission increases a survivor's ability to 
escape the violence or overcome trauma as well as provide access to 
employment and supportive networks.
    Response: While DHS appreciates the comments and suggestions as 
they relate to survivors of domestic violence, sexual assault, human 
trafficking, and other gender-based violence, in general, these 
survivors, and those applying for immigration benefits who fall under 
certain humanitarian categories, are exempt from the public charge 
ground of inadmissibility. With this rule, DHS intends to clarify that 
these individuals are exempt by specifically listing the statutory and 
regulatory exemptions to the ground of inadmissibility in the 
regulation. For the most part, the categories of individuals mentioned 
by the commenter are included in the listed exemptions found at 8 CFR 
212.23.
    Furthermore, Congress expressed a policy preference that 
individuals in certain categories should be able to receive public 
benefits without risking adverse immigration consequences. DHS believes 
that Congress did not intend to later penalize such noncitizens for 
using benefits while in these categories because doing so would 
undermine the intent of their exemption. Given the nature of these 
populations and the fact that if they were applying for admission or, 
as permitted, adjustment of status under those categories they would be 
exempt from the public charge ground of inadmissibility, it is 
reasonable for DHS to exclude from consideration those benefits that an 
applicant received while in a status that is exempt from the public 
charge ground of inadmissibility. Therefore, DHS is setting forth a 
final rule that states that, in any application for admission or 
adjustment of status in which the public charge ground of 
inadmissibility applies, DHS will not consider any public benefits 
received by a noncitizen during periods in which the noncitizen was 
present in the United States in an immigration category that is exempt 
from the public charge ground of inadmissibility, as listed in 8 CFR 
212.23(a), or for which the noncitizen received a waiver of public 
charge inadmissibility, as stated in 8 CFR 212.23(c).\514\ However, 
under this rule, any benefits received prior to or subsequent to the 
noncitizen being in an exempt status would be considered in a public 
charge inadmissibility determination in the totality of the 
circumstances, including consideration of any mitigating information 
that that the applicant may wish to bring to DHS's attention.
---------------------------------------------------------------------------

    \514\ See 8 CFR 212.22(a) and (c).
---------------------------------------------------------------------------

    Comment: Two commenters stated that DHS should clarify the 
standards for a public charge inadmissibility determination and how 
officials will employ them within the rule itself, not in later 
guidance. One of the commenters remarked that because the rule proposes 
to issue guidance later as to how the totality of the circumstances 
should be assessed, those affected still have no knowledge, clarity, or 
certainty as to how the factors will be weighed, and the use of future 
guidance to determine who is likely to become a public charge allows 
DHS to change the standards without the use of the full notice and 
comment rulemaking process, avoiding accountability and compromising 
consistency, and further stating that the rule's content regarding the 
totality of the circumstances test is vague. Another commenter 
similarly stated that while a totality of the circumstances standard 
gives USCIS maximum flexibility, the commenter expressed concern that 
this standard is subject to extreme varying interpretations in agency 
adjudications and its implementation could subject to the uncertainties 
of the political process. The commenter stated that an unmodified 
totality of the circumstances standard is an invitation for policy 
changes based on arbitrary political interpretations rather than sound 
legal analysis and established precedent.
    Response: DHS appreciates commenters' concern regarding the 
perceived lack of specificity concerning how the factors will be 
applied in the totality of the circumstances in the proposed regulatory 
text. Following receipt of public comments, DHS has made changes to the 
provisions addressing four out of the five statutory minimum factors to 
identify information relevant to such factors. In accordance with those 
changes, DHS has made changes to Form I-485 to implement these 
provisions. The collection of this relevant information will help 
officers make public charge inadmissibility determinations without 
being unnecessarily burdensome for the

[[Page 55570]]

public and for DHS, and will provide clarity to the public regarding 
what information is generally relevant and needed to make public charge 
inadmissibility determinations. In this final rule, DHS also amended 
the provisions relating to the consideration of current and/or past 
receipt of public benefits to provide additional clarity to the public 
and to officers about what will be considered when making a public 
charge inadmissibility determination in the totality of the 
circumstances. In this final rule, DHS is also retaining the regulatory 
content stating that no one factor described in this rule, other than 
the lack of a sufficient Affidavit of Support Under Section 213A of the 
INA, if required, should be the sole criterion for determining if a 
noncitizen is likely to become a public charge.
    DHS plans to issue guidance, as well as periodically update 
guidance, that will consider how these factors may affect the 
likelihood at any time of becoming a public charge based on an 
empirical analysis of the best-available data as appropriate.\515\ 
Furthermore, USCIS plans to conduct robust training for officers on the 
new regulations and guidance. In general, officers receive specialized 
training in every aspect of the adjudicative process. Public charge 
inadmissibility determinations are no exception. Furthermore, there are 
numerous levels of oversight and quality control to provide guardrails 
and ensure fair and consistent decisions. However, because each 
noncitizen's individual circumstances constitute a unique fact pattern, 
outcomes in public charge determinations will appropriately vary. 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.
---------------------------------------------------------------------------

    \515\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    Comment: Several commenters stated that the five factors should be 
used primarily as exculpatory or mitigating considerations that help an 
applicant overcome any potentially adverse public charge issues. 
Another commenter stated that the judicial and administrative decisions 
that informed the codification of the five factors in 1996 
overwhelmingly found immigrants not excludable based on one or more of 
the factors when considering the totality of circumstances. For 
example, the commenter stated, in Matter of Martinez-Lopez, the 
Attorney General affirmed that the respondent was not excludable as 
likely to become a public charge because he was ``an able-bodied man in 
his early twenties, without dependents; that he had no physical or 
mental [disability] which might affect his earning capacity, and that 
he had performed agricultural work for nearly 10 years.'' \516\ In that 
case, the respondent's age, family, health, employment, and support 
from a family member were all favorable factors that justified the 
finding that he was not likely to become a public charge.\517\ The 
commenter stated that in its review of the legislative history of the 
public charge ground of inadmissibility, the Second Circuit confirmed 
that Congress had ratified prior administrative and judicial 
interpretations in 1996 when it codified the five factors. The panel 
explained: ``. . . our review of the historical administrative and 
judicial interpretations of the ground over the years leaves us 
convinced that there was a settled meaning of `public charge' well 
before Congress enacted IIRIRA. The absolute bulk of the case law, from 
the Supreme Court, the circuit courts, and the BIA interprets `public 
charge' to mean a person who is unable to support herself, either 
through work, savings, or family ties. See, e.g., [United States ex 
rel. Iorio v. Day, 34 F.2d 920, 922 (2d Cir. 1929)]; Harutunian, 14 I. 
& N. Dec. at 588-89. Indeed, we think this interpretation was 
established early enough that it was ratified by Congress in the INA of 
1952. But the subsequent and consistent administrative interpretations 
of the term from the 1960s and 1970s remove any doubt that it was 
adopted by Congress in IIRIRA.'' \518\ The commenter stated that, in 
other words, the five statutory factors and totality of circumstances 
test provided ways to demonstrate that an applicant would not be 
inadmissible as likely at any time to become a public charge and were 
never intended to be a list of negative and positive factors to be 
weighed individually in every case.
---------------------------------------------------------------------------

    \516\ 10 I&N Dec. 409, 421 (BIA 1962).
    \517\ 10 I&N Dec. 409, 421 (BIA 1962).
    \518\ New York v. DHS, 969 F.3d 42, 71 (2d Cir. 2020).
---------------------------------------------------------------------------

    Response: DHS believes that the commenters' suggested approach 
would be inconsistent with the longstanding approach to the public 
charge ground of inadmissibility. The administrative cases cited by the 
commenter do not stand for the proposition that the factors may only be 
used to mitigate adverse circumstances. The adverse circumstances 
themselves are part of the totality of the circumstances determination. 
DHS notes that the 2019 Final Rule, as one of the commenters noted, had 
a list of negative and positive factors, which the vast majority of 
commenters found confusing and which, in DHS's experience, ultimately 
did little to clarify the operation of the totality of the 
circumstances analysis. In the end, officers were still required to 
assess the individual circumstances of each case on their own merits. 
DHS has not included such a list in this rule because DHS believes that 
such an approach would very likely result in confusion, and because the 
statute does not require it and does not indicate the circumstances 
under which any of the factors are to be treated positively or 
negatively, how much weight the factors should be given, or what 
evidence or information is relevant to each of the statutory factors. 
With this rule, DHS intends to continue with the longstanding approach 
set forth in the 1999 Interim Field Guidance, which is a totality of 
the circumstances analysis.
    Comment: One commenter stated that officers should be directed to 
look at all factors holistically, consistent with the settled meaning 
of public charge and, on balance, give due weight to all circumstances 
that demonstrate an individual would not be inadmissible as likely at 
any time to become a public charge.
    Response: DHS appreciates the commenter's suggestion that officers 
should be directed to review the factors holistically and give due 
weight to all circumstances that demonstrate an individual would not be 
inadmissible under the public charge ground. As noted in the NPRM, a 
series of administrative decisions have clarified that a totality of 
the circumstances review is the proper framework for making public 
charge inadmissibility determinations.\519\ In light of public 
comments, DHS is clarifying what DHS officers will consider in the 
totality of the circumstances. The totality of the circumstances 
includes all information or evidence in the record before the 
adjudicator relevant to a public charge inadmissibility determination. 
DHS is only collecting initial information from applicants as related 
to the enumerated factors as outlined in this rule and accompanying 
form, and the only initial supporting evidence required of applicants 
is evidence that their institutionalization violated Federal law, if 
applicable. However, DHS may generally consider all evidence and 
information in the record that is relevant to making a public charge 
inadmissibility determination. Such information or evidence may include 
evidence that the noncitizen has been certified or approved to receive 
public

[[Page 55571]]

cash assistance for income maintenance or long-term 
institutionalization. As noted in response to the comment about the 
past or current use of public benefits by certain victims when not in 
an immigration category exempt from the public charge ground of 
inadmissibility, such information or evidence may also include 
mitigating information that the applicant may wish to bring to DHS's 
attention. This approach is consistent with the understanding of the 
totality of the circumstances approach from the administrative 
decisions, as well as with the approach taken by the former INS when it 
promulgated 8 CFR 245a.3.
---------------------------------------------------------------------------

    \519\ See 87 FR at 10579-10580 (Feb. 24, 2022).
---------------------------------------------------------------------------

3. Recommendations for the Creation of Presumptions in the Totality of 
the Circumstances Analysis
    Comment: One commenter expressed concern that the totality of the 
circumstances standard would be subject to extreme varying 
interpretations in agency adjudications, and that the implementation of 
the standard could be subject to the uncertainties of the political 
process. Instead of using the totality of circumstances standard, they 
proposed that DHS create legal presumptions that, barring extraordinary 
facts related to the statutory factors, would simplify a determination 
of whether a person is likely to become a public charge. They proposed 
that DHS create presumptions regarding the Affidavit of Support Under 
Section 213A of the INA and assets and resources. The commenter also 
suggested that, when a presumption exists, a finding by DHS that a 
noncitizen is likely to become a public charge must explain the clear 
and convincing factual evidence relevant to the statutory factors that 
led to a determination of inadmissibility.
    Response: As addressed elsewhere in this preamble, the plain 
language of section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), calls 
for the consideration of, at a minimum, age, health, family status, 
assets, resources and financial status, and education and skills, and 
allows DHS to also consider an Affidavit of Support under Section 213A 
of the INA. As DHS explained when responding to comments suggesting 
that it create weighted factors akin to those codified in the 2019 
Final Rule, DHS believes that the totality of the circumstances 
approach without assigning weight to any particular facts or 
circumstance is more effective than specific codified presumptions (or 
weighted factors), as it accounts for varying individual circumstances 
of applicants. Such an approach also enables officers to adapt the 
public charge inadmissibility determination to the specific facts of 
each case, and all relevant information in the record. DHS has decided 
to proceed without presumptions because in many circumstances any 
specific presumption (such as a presumption with respect to assets and 
resources) would likely be overcome in any event (such as by an 
applicant's age, health, and/or education and skills). That said, the 
NPRM and this final rule do state that DHS will favorably consider in 
the totality of the circumstances a sufficient Affidavit of Support 
Under Section 213A of the INA, where such affidavit is required. DHS 
believes that the long-standing totality of the circumstances framework 
allows officers to adequately consider the statutory minimum factors, 
the Affidavit of Support Under Section 213A of the INA (when required), 
and past and/or current receipt of public benefits, in the totality of 
the circumstances, while also allowing for the consideration of 
empirical data, where relevant and appropriate.
    As indicated throughout this final rule, DHS intends to issue 
guidance to generally inform the predictive nature of the factors set 
forth in this rule as an objective aspect of the analysis, declining to 
take a categorical approach of weighing the relevant factors or 
creating presumptions. DHS believes this will best enable officers to 
fully consider the applicant's individual circumstances and evidence 
presented, thereby better achieving the goals of the public charge 
inadmissibility determination. Therefore, DHS declines to codify 
specific regulatory presumptions.
    Comment: One commenter suggested that DHS clearly state that 
incoming international graduate students, medical residents, 
physicians, scientists, and researchers, with a letter from a 
sponsoring institution stating that the individual will meet federal 
income and insurance requirements be given a presumption that they are 
not likely to become a public charge at any time under the totality of 
circumstances.
    Response: DHS believes that the long-standing totality of the 
circumstances framework allows officers to consider the statutory 
minimum factors and the Affidavit of Support Under Section 213A of the 
INA (when required) in the totality of the circumstances, while also 
allowing for an empirical element as appropriate. Even where an 
Affidavit of Support Under Section 213A of the INA is not required, DHS 
will consider the other statutory factors concerning those individuals, 
including education and skills and assets, resources, and financial 
status of those individuals. DHS intends to issue guidance to generally 
inform the predictive nature of the statutory factors as an objective 
aspect of the analysis, declining to take a categorical approach of 
weighting the relevant factors or creating presumptions. DHS believes 
this will best enable officers to fully consider the applicant's 
individual circumstances and evidence presented, thereby better 
achieving the goals of the public charge inadmissibility determination. 
However, and as stated throughout this rule, although DHS is not 
requiring the submission of initial supporting evidence (except in the 
case of disability discrimination), and is not creating new 
presumptions, DHS has the discretion to consider relevant information 
in the record in the totality of the circumstances. Such information 
may include a letter from a sponsoring institution related to the 
applicant's income or benefits, since this information would be 
relevant to the public charge inadmissibility determination, and the 
assets, resources, and financial status factor, in particular.
    Comment: One commenter suggested DHS presume that a noncitizen 
applying for an immigrant visa or adjustment of status under section 
203(c)(18) of the INA, 8 U.S.C. 1153(c)(18), the Diversity Visa 
Program, is unlikely to become a public charge where the noncitizen 
meets the educational and/or employment experience requirements of 
section 203(c)(2) of the INA, 8 U.S.C. 1153(c)(2).
    Response: DHS believes that the long-standing totality of the 
circumstances framework allows officers to consider the statutory 
minimum factors and the Affidavit of Support Under Section 213A of the 
INA (when required) in the totality of the circumstances, while also 
allowing for an empirical element as appropriate. As stated previously, 
DHS acknowledges that certain immigration categories may require a 
separate determination of education or work experience, but notes that 
those specific eligibility requirements are separate from an 
inadmissibility determination. The public charge inadmissibility 
determination involves the consideration of a variety of factors, 
including education and skills, that are considered in the totality of 
a noncitizen's circumstances, and DHS will consider such factors for 
all noncitizens subject to the public charge ground of inadmissibility 
who are applying for adjustment of status.
    Comment: One commenter recommended that DHS require officers to 
give more weight to the education and income factors in determining 
whether a noncitizen is likely to become a public charge, as a 
noncitizen's education and income levels are the

[[Page 55572]]

most reliable predictors of whether a noncitizen is likely to become a 
public charge, according to an analysis of data from the Survey of 
Income and Program Participation (SIPP), from the U.S. Census Bureau.
    Response: DHS disagrees that the education and income factors 
should be given different weight than other factors under the rule. DHS 
disagrees that the SIPP data shows that a noncitizen's education and 
income level are the most reliable predictors of whether a noncitizen 
is likely to become a public charge.
    In support of their claims about the relative significance of 
education in a public charge inadmissibility determination, the 
commenter pointed to an analysis that examined SIPP data to show 
welfare utilization by different education levels. The analysis 
examined benefit use by ``non-citizen-headed households'' rather than 
by noncitizens themselves.\520\ While that analysis showed generally 
low use of SSI and TANF by such households, even those low rates of use 
are misleading in the context of a public charge inadmissibility 
determination. Under both the 2019 Final Rule, favored by the 
commenter, and this rule, only public benefits received by the 
noncitizen, where the noncitizen is listed as a beneficiary, are 
considered in a public charge inadmissibility determination. Although 
the analysis cited by the commenter attributes to the noncitizen ``head 
of household'' any receipt of benefits by any member of the household, 
including U.S. citizens, the rates of SSI and TANF receipt by such 
households, as such, does not correspond to public charge 
inadmissibility determinations under both the 2019 Final Rule and this 
rule. Since Congress sharply limited the eligibility for public 
benefits for noncitizens in PRWORA (and, as noted, provided exceptions 
to the public charge ground of inadmissibility for most categories of 
noncitizens eligible for benefits), the members of the ``non-citizen-
headed households'' actually receiving the SSI and TANF in this 
analysis are most likely not the noncitizen heading the household but 
rather other members of the family, such as U.S. citizen children. The 
analysis cited by the commenter, however, only looks at the education 
level of the head of the household, rather than the education level of 
the person receiving the benefits.
---------------------------------------------------------------------------

    \520\ Steven Camarota and Karen Zeigler, Center for Immigration 
Studies, ``63% of Non-Citizen Households Access Welfare Programs,'' 
Table 6 (Nov. 20, 2018), https://cis.org/Report/63-NonCitizen-Households-Access-Welfare-Programs (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    The analysis cited by the commenter, in defense of the 
``household'' approach, argued that since eligibility for benefits (or 
at least means-tested benefits) is generally based on the income of the 
entire household, and that since benefits provided to a household 
member lessen the need for other members of the household to 
financially support them, all benefit use in a household should be 
attributed to all of the members. This is in line with the suggestion 
of this commenter that DHS should expand the ``receipt (of public 
benefits)'' definition to attribute all benefit use by dependents to a 
noncitizen applicant. However, DHS largely rejected such an approach to 
the attribution of benefit use by others in the 1999 Interim Field 
Guidance, wholly rejected it in the 2019 Final Rule, and has wholly 
rejected it again in this rule. DHS responded to those comments 
suggesting that benefit use by other household members be attributed to 
the applicant in the Definitions section above. As other analysts have 
noted, the ``household'' is not the proper unit of analysis when 
examining public benefits use, particularly for households with a 
mixture of native-born U.S. citizens, naturalized or derived U.S. 
citizens, and noncitizens.\521\
---------------------------------------------------------------------------

    \521\ See CATO Institute, ``Center for Immigration Studies 
Overstates Immigrant, Non-citizen, and Native Welfare Use'' (Dec. 6, 
2018), https://www.cato.org/blog/center-immigration-studies-overstates-immigrant-non-citizen-native-welfare-use (last visited 
Aug. 16, 2022). See also National Academies of Sciences, 
Engineering, and Medicine, ``The Economic and Fiscal Consequences of 
Immigration'' (2017), https://nap.nationalacademies.org/catalog/23550/the-economic-and-fiscal-consequences-of-immigration (last 
visited Aug. 16, 2022)
---------------------------------------------------------------------------

    Since Congress sharply limited the eligibility for public benefits 
for noncitizens in PRWORA (and, as noted, provided exceptions to the 
public charge ground of inadmissibility for most categories of 
noncitizens eligible for benefits), the members of the ``non-citizen-
headed households'' actually receiving the SSI and TANF in this 
analysis are most likely not the noncitizen heading the household but 
rather other members of the family, such as U.S. citizen children. The 
analysis cited by the commenter, however, only looks at the education 
level of the head of the household, rather than the education level of 
the person receiving the benefits.
    Finally, although the commenter recommended that DHS give 
significant weight to education and income, the commenter did not offer 
an analysis of these factors relative to most of the other statutory 
factors, or an analysis of the actual likelihood that a noncitizen will 
become a public charge based on these factors.
    In short, the analysis does not support the commenter's statement 
that education is one of the most reliable predictors (along with 
income) of whether a noncitizen is likely at any time to become a 
public charge.
    As for the commenter's statement that income is one of the two 
reliable predictors (alongside education) of whether a noncitizen is 
likely to become a public charge, the analysis cited by the commenter 
did not contain any quantitative evidence regarding the connection 
between income and benefit use.\522\
---------------------------------------------------------------------------

    \522\ The analysis included two tables examining benefit use by 
households ``with at least one worker,'' but did not include any 
analysis based on household or individual income.
---------------------------------------------------------------------------

    Finally, the commenter and the analysis cited by the commenter does 
not compare education and income to other factors (such as age; health; 
skills; and assets, resources, and financial status) to predict a 
person's likelihood of becoming a public charge. While the analysis 
cited by the commenter shows that education might be important, it does 
not show that it is more important than any other factors, and as noted 
it does not address income at all. In summary, the analysis fails to 
support the commenter's conclusion that income and education are the 
most reliable predictors of public benefit use.
    DHS does agree that evidence should inform the public charge 
analysis and, as indicated in the rule, DHS may periodically issue 
guidance to officers to inform the totality of the circumstances 
assessment and such guidance will consider how these factors affect the 
likelihood that the noncitizen will become a public charge at any time 
based on an empirical analysis of the best-available data as 
appropriate.\523\
---------------------------------------------------------------------------

    \523\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

4. Empirical Analysis of Best Available Data
    Comment: One commenter stated that DHS could collect data on 
denials based on the public charge ground of inadmissibility, regularly 
analyze the data for disproportionate negative impacts, and use the 
data to better train and supervise officers to avoid explicit and 
implicit bias.
    Response: USCIS adjudicative systems do not currently allow the 
agency to collect comprehensive data concerning public charge 
inadmissibility determinations in a fully automated way, i.e., without 
at least some manual review of administrative

[[Page 55573]]

files. Only a portion of adjustment of status applications are 
currently adjudicated in our Electronic Immigration System (ELIS), 
which allows officers to indicate ``212(a)(4) Public Charge'' as a 
denial reason. When adjudicating applications in the older CLAIMS3 
system, officers are unable to indicate whether a denial under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), was based on a review of the 
factors identified in section 212(a)(4)(B) of the INA, 8 U.S.C. 
1182(a)(4)(B), as well the receipt of any other factors identified in a 
public charge rule, or was based on the lack of a sufficient Affidavit 
of Support Under Section 213A of the INA without a manual review of the 
case.\524\ In addition, the CLAIMS3 system does not track the race/
ethnicity of applicants (though other data points relevant to the 
suggestion, including sex and country of birth, are available). Once 
all varieties of adjustment of status applications are transitioned 
into ELIS, DHS will be able to regularly analyze the data for 
disproportionate negative impacts as the commenter suggests.
---------------------------------------------------------------------------

    \524\ DHS notes that the data presented in this rule that 
reflects that no cases were ultimately denied based on the totality 
of the circumstances analysis under the 2019 Final Rule was obtained 
by identifying cases denied under section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4), and manually reviewing each of the cases to 
ascertain whether they were denials based solely on the totality of 
the circumstances approach.
---------------------------------------------------------------------------

    Comment: Another commenter emphasized that any analysis of various 
statutory factors must include the perspective of experts in those 
fields, such as medical researchers for an analysis of the health 
factor, and cautioned against any approaches that would consider a 
noncitizen as a member of a specific group for purposes of analysis, 
for example, noncitizens with diabetes considered as an aggregate. This 
commenter also suggested DHS collect data on who is determined to be a 
public charge so the data can be examined by both DHS and in 
collaboration with external scientific collaborators. Another commenter 
stated that DHS could adjust its guidance and its standardized 
procedures regarding the totality of the circumstances based on the 
latest data available and fine-tune the process as needed.
    Response: DHS appreciates the support for using available data, as 
appropriate, to guide the public charge inadmissibility determination. 
DHS has included a provision in the final rule stating that DHS may 
periodically issue guidance that will consider how these factors affect 
the likelihood that the noncitizen will become a public charge at any 
time based on an empirical analysis of the best-available data as 
appropriate.\525\ DHS also appreciates the request to use external 
scientific collaborators and notes that DHS has internal economists 
that process both internal and external data to determine its utility 
for the public charge inadmissibility determination, and may engage the 
public in a variety of ways in developing and seeking input on 
guidance. Additionally, DHS appreciates the suggestion that it use 
external experts in particular regarding the health factor. DHS notes 
that it will collect information relevant to the statutory minimum 
factors from existing information collections (e.g., information 
pertaining to the health factor will be obtained from Form I-693, 
Report of Medical Examination and Vaccination Record, which, when 
completed in the United States, is prepared by a civil surgeon). Civil 
surgeons assess whether applicants have any health conditions that 
could result in exclusion from the United States.\526\ USCIS designates 
certain doctors (also known as civil surgeons) to perform the medical 
exam required for most individuals applying for adjustment of status in 
the United States; these professionals, however, are not employees of 
the U.S. government.
---------------------------------------------------------------------------

    \525\ See 8 CFR 212.22(b).
    \526\ USCIS Policy Manual, Vol. 8, Part C, Ch. 1, ``Purpose and 
Background,'' https://www.uscis.gov/policy-manual/volume-8-part-c-chapter-1 (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    DHS also requested data and information from the public during this 
rulemaking process for consideration in the development of this final 
rule. For instance, as early as the ANPRM, DHS solicited comment on a 
published article that sought 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).\527\ DHS also asked for any data and information it should 
consider about the direct and indirect effects of past public charge 
policies in this regard. In addition, DHS asked about data that it 
could use to estimate any potential direct and indirect effects, 
economic or otherwise, of the public charge ground of inadmissibility 
related to the 2019 Final Rule. DHS also specifically sought 
information from State, territorial, local, and Tribal benefit granting 
agencies regarding impacts of the 2019 Final Rule on the application 
for or disenrollment from public benefit programs. The majority of the 
data received concerned the chilling effects of the 2019 Final Rule.
---------------------------------------------------------------------------

    \527\ See ``Public Charge Ground of Inadmissibility,'' 86 FR 
47025, 47028 (Aug. 23, 2021) (citing Mitra Akhtari et al., 
``Estimating the Empirical 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/ (last visited Aug. 17, 2022)).
---------------------------------------------------------------------------

    Regardless, DHS will consider the request to collect and analyze 
data concerning who is likely to become a public charge. Once all 
varieties of adjustment of status applications are transitioned into 
ELIS, DHS may be able to more easily analyze the data and potentially 
share it with external analysts to the extent appropriate and 
consistent with law. DHS may also consider adjusting its policy, if 
appropriate, in response to new data and analyses.

K. Receipt of Public Benefits While Noncitizen Is in an Immigration 
Category Exempt From Public Charge Inadmissibility

    Comment: One commenter did not agree with this exemption and 
recommended that DHS consider a noncitizen's past and current use of 
public benefits, regardless of the noncitizen's previous or current 
immigration status; the commenter stated that not considering all 
benefits received would require officers to ignore relevant information 
with significant evidentiary value for the determination of whether the 
noncitizen will be able to provide for their own needs in the future.
    Response: DHS disagrees that officers should consider public 
benefits received while a noncitizen is in an immigration category 
exempt from the public charge ground of inadmissibility. Although many 
noncitizens who are eligible for Federal, State, Tribal, territorial, 
or local benefits receive those benefits while present in an 
immigration classification or category that is exempt from the public 
charge ground of inadmissibility or after the noncitizen obtained a 
waiver of the public charge ground of inadmissibility, such noncitizens 
may later apply for an immigration benefit that subjects them to the 
public charge ground of inadmissibility. For example, a noncitizen 
admitted as a refugee may have received benefits on that basis but may 
later apply for adjustment of status based on marriage to a U.S. 
citizen and will be subject to the public charge ground of 
inadmissibility.
    The 1999 Interim Field Guidance did not expressly address how to 
treat an applicant's receipt of public benefits while present in an 
immigration category that is exempt from the public charge ground of 
inadmissibility or for which the noncitizen received a waiver of the 
public charge ground of

[[Page 55574]]

inadmissibility. The 2019 Final Rule, however, excluded from 
consideration the receipt of such public benefits in public charge 
inadmissibility determinations.\528\
---------------------------------------------------------------------------

    \528\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR 
41292, 41501 (Aug. 14, 2019).
---------------------------------------------------------------------------

    Congress, not DHS, has specified which categories of noncitizens 
are subject to or are exempt from the public charge ground of 
inadmissibility. Congress did not exempt from the public charge ground 
of inadmissibility noncitizens who are applying for admission or 
adjustment in a category subject to the public charge ground but who, 
in the past, were in a category of noncitizen exempt from the ground. 
However, as DHS concluded in 2019, DHS believes that it has the 
authority, in promulgating the public charge inadmissibility framework, 
to determine which public benefits should be considered as part of a 
public charge inadmissibility determination.\529\
---------------------------------------------------------------------------

    \529\ See INA sec. 103, 8 U.S.C. 1103; see also 
``Inadmissibility on Public Charge Grounds,'' 84 FR 41292 (Aug. 14, 
2019).
---------------------------------------------------------------------------

    A review of the categories of noncitizens that are exempt from the 
public charge ground of inadmissibility or eligible for waivers 
provides an indication of the concerns that Congress had when 
establishing these exemptions and waivers. The categories comprise a 
long list of vulnerable populations or groups of noncitizens of 
particular policy significance for the United States.\530\ Congress 
expressed a policy preference that individuals in these categories 
should be able to receive public benefits without risking adverse 
immigration consequences. DHS believes that Congress did not intend to 
later penalize such noncitizens for using benefits while in these 
categories because doing so would undermine the intent of their 
exemption. Given the nature of these populations and the fact that if 
they were applying for admission or, as permitted, adjustment of status 
under those categories they would be exempt from the public charge 
ground of inadmissibility, it is appropriate for DHS to exclude from 
consideration those benefits that an applicant received while in a 
status that is exempt from the public charge ground of inadmissibility.
---------------------------------------------------------------------------

    \530\ For example, refugees, asylees, Afghans and Iraqis 
employed by the U.S. government, special immigrant juveniles, 
Temporary Protected Status recipients, and trafficking and crime 
victims.
---------------------------------------------------------------------------

    This rule will prohibit DHS from considering any public benefits 
received by a noncitizen during periods in which the noncitizen was 
present in the United States in an immigration category that is exempt 
from the public charge ground of inadmissibility, as set forth in 
proposed 8 CFR 212.23(a), or for which the noncitizen received a waiver 
of public charge inadmissibility, as set forth in proposed 8 CFR 
212.23(c).\531\ However, under the rule, any public cash assistance for 
income maintenance or long-term institutionalization at government 
expense received prior to or subsequent to the noncitizen's being in an 
exempt status would be considered in a public charge inadmissibility 
determination.
---------------------------------------------------------------------------

    \531\ See 8 CFR 212.22(a) and (c).
---------------------------------------------------------------------------

    Comment: Many commenters supported DHS's proposal that benefits 
received while in an exempt status will not be considered in a public 
charge inadmissibility determination. However, a number of those 
commenters recommended that DHS also include other noncitizens such as 
those granted withholding of removal or deportation, Deferred Enforced 
Departure (DED), deferred action, and parolees among those for whom 
benefits received will not be considered in a public charge 
inadmissibility determination because immigrants granted such 
humanitarian relief are qualified immigrants for many federal and State 
benefits. The commenters also recommended DHS clarify that officers may 
not consider underlying reasons for which these exempt groups receive 
benefits and instead expressly state that these benefits will not be 
considered in a public charge inadmissibility determination, to 
mitigate the risk of officers misapplying this provision or allowing 
the officers' personal bias or animus against applicants to affect the 
determination.
    Response: DHS agrees with the many commenters who support exempting 
consideration of the receipt of public benefits while a noncitizen is 
in a category exempt from a public charge inadmissibility 
determination. However, DHS disagrees with the recommendation to expand 
this exemption to other populations such as those granted withholding 
of removal or deportation, DED, deferred action or other general 
parolees. Congress expressly exempted certain vulnerable populations 
from the public charge ground of inadmissibility by statute such as 
refugees, asylees, and applicants for admission based on refugee or 
asylee status.\532\ The categories comprise a long list of vulnerable 
populations or groups of noncitizens of particular policy significance 
for the United States.\533\ The examples of categories mentioned by 
commenters are not populations that Congress has chosen to expressly 
exempt from the public charge ground of inadmissibility. Thus, DHS will 
not further expand the population of noncitizens whose receipt of 
public benefits will not be considered in a public charge ground of 
inadmissibility.
---------------------------------------------------------------------------

    \532\ See INA secs. 207, 208, and 209; 8 U.S.C. 1157, 1158, and 
1159.
    \533\ For example, refugees, asylees, Afghans and Iraqis 
employed by the U.S. government, special immigrant juveniles, 
Temporary Protected Status recipients, and trafficking and crime 
victims.
---------------------------------------------------------------------------

    DHS also disagrees with the commenters who recommend a 
clarification that officers may not consider underlying reasons for 
which these exempt groups receive benefits. DHS does not believe that 
rule requires any further clarification as the language in 8 CFR 
212.22(d) is clear, precise, and absolute in stating that DHS will not 
consider any public benefits received by a noncitizen during periods in 
which the noncitizen was present in the United States in an immigration 
category that is exempt from the public charge ground of 
inadmissibility or for which the noncitizen received a waiver of public 
charge inadmissibility in a public charge inadmissibility 
determination.\534\ If benefits were received by a noncitizen when they 
were in one of the exempt categories or categories eligible for an 
inadmissibility waiver identified in 8 CFR 212.23, USCIS will not 
consider the benefits they received while in those categories. When 
they apply for admission or adjustment of status in a category to which 
the public charge ground of inadmissibility applies, DHS will still 
consider the other factors set forth in this rule in the totality of 
the circumstances in order to determine whether the noncitizen is 
likely at any time to become a public charge. As stated throughout this 
final rule, no single factor alone will be dispositive, and to the 
extent there is evidence of temporary health issues USCIS adjudicators 
will be able to take the surrounding circumstances into consideration.
---------------------------------------------------------------------------

    \534\ See 8 CFR 212.22(d).
---------------------------------------------------------------------------

L. Receipt of Public Benefits by Those Granted Refugee Benefits

    Comment: Many commenters supported the exclusion of the receipt of 
public benefits by those granted refugee benefits from consideration 
under a public charge inadmissibility determination, as it will provide 
vulnerable populations with safer access to the benefits they may need 
to recover from the conditions that qualified them for humanitarian 
protection.
    Response: DHS agrees that the receipt of public benefits by those 
granted refugee benefits should not be considered in a public charge

[[Page 55575]]

inadmissibility determination. Under this rule, when making public 
charge inadmissibility determinations, DHS will not consider any public 
benefits that were received by noncitizens who are eligible for 
resettlement assistance, entitlement programs, and other benefits 
available to refugees admitted under section 207 of the INA, 8 U.S.C. 
1157, including services described under section 412(d)(2) of the INA, 
8 U.S.C. 1522(d)(2), provided to an ``unaccompanied alien child'' as 
defined under section 462(g)(2) of the HSA, 6 U.S.C. 279(g)(2).\535\ 
This provision would only apply to those categories of noncitizens who 
are eligible for all three of the types of support listed (resettlement 
assistance, entitlement programs, and other benefits) typically 
reserved for refugees.
---------------------------------------------------------------------------

    \535\ See 8 CFR 212.22(e).
---------------------------------------------------------------------------

    As these commenters stated, DHS believes that Congress intended to 
encourage these vulnerable populations to apply for and receive the 
benefits they may need to recover from the conditions that qualified 
them for humanitarian protection. For example, the U.S. government has 
resettled and continues to resettle our Afghan allies. This is a 
population invited by the government to come to the United States at 
the government's expense in recognition of their assistance over the 
past two decades or their unique vulnerability were they to remain in 
Afghanistan.\536\ In recognition of the unique needs of this population 
and the manner of their arrival in the United States, Congress 
explicitly extended benefits normally reserved for refugees to our 
Afghan allies. DHS serves as the lead for coordinating the ongoing 
efforts, across the Federal Government, to support vulnerable Afghans 
under Operation Allies Welcome (OAW). As such, DHS has been actively 
communicating and promoting the various benefits that this vulnerable 
population may be eligible for depending on their admission, status in 
the United States, or both, including SSI, TANF, and various other 
public benefits.
---------------------------------------------------------------------------

    \536\ DHS, ``Operation Allies Welcome'' (2021), https://www.dhs.gov/sites/default/files/publications/21_1110-opa-dhs-resettlement-of-at-risk-afghans.pdf (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Similarly, the U.S. government has expressed its strong concern for 
the victims of severe forms of trafficking in persons and a dedication 
to stabilizing them. The Trafficking Victims Protection Act (TVPA), 
part of the Victims of Trafficking and Violence Protection Act of 2000, 
was enacted to strengthen the ability of law enforcement agencies to 
detect, investigate, and prosecute trafficking in persons, while 
offering protections to victims of such trafficking, including 
temporary protections from removal, access to certain federal and State 
public benefits and services, and the ability to apply for T 
nonimmigrant status. With the passage of the TVPA, Congress intended to 
protect victims of trafficking and to take steps to try to meet 
victim's needs regarding health care, housing, education, and legal 
assistance.\537\
---------------------------------------------------------------------------

    \537\ See Victims of Trafficking and Violence Protection Act of 
2000, Public Law 106-386, sec. 102(b), 114 Stat. 1464, 1466 (2000).
---------------------------------------------------------------------------

    DHS strongly encourages these populations to access any and all 
services and benefits available to them without fear of a future 
negative impact. Thus, this rule will exempt from consideration receipt 
of public benefits by those granted refugee benefits by Congress, even 
when those individuals are not refugees admitted under section 207 of 
the INA, 8 U.S.C. 1157, such as the Afghans that have been recently 
resettled in the United States pursuant to OAW and noncitizen victims 
of a severe form of trafficking in persons.

M. Denial Decision

    Comment: Many commenters supported DHS's proposed language that 
every denial decision be in writing, reflect consideration of each of 
the five statutory minimum factors, as well as the affidavit of 
support, and articulate a reason for the determination, as it will 
reduce the risk of officers applying the wrong standards and provide 
sufficient justification for the decision.
    Response: DHS appreciates commenters' support and believes that 
requiring every written denial decision issued by USCIS reflect 
consideration of each of the factors outlined in this rule and specific 
articulation of the reasons for the officer's determination will help 
ensure that public charge inadmissibility determinations will be fair, 
transparent, and consistent with the law.
    Comment: One commenter recommended DHS maintain these records in a 
way that allows public access to the decision-making behind the denials 
and tracking of outcomes through Freedom of Information Act requests.
    Response: DHS will not be establishing a mechanism in which the 
public may request all denials related to denials for adjustment of 
status under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), due to 
the privacy implications and potential administrative burden.
    Comment: One commenter stated that DHS should consider including a 
specific requirement that written denial decisions include 
documentation that age and health or disability status were not unduly 
weighted to ensure that denials are not discriminatory to children, 
including those with special health care needs or disabilities. Another 
commenter recommended that all denial decisions be written in plain 
language or Easy Read format so that the decisions may be read by 
immigrants with significant cognitive disabilities or who do not speak 
or read English well.
    Response: DHS agrees that denial decisions should include relevant 
information that reflects consideration of each of the factors outlined 
in this rule and specific articulation of the reasons for the officer's 
determination. DHS notes that, as discussed above, public charge 
inadmissibility determinations are based on the totality of a 
noncitizen's circumstances. No one factor described in this rule, other 
than the lack of a sufficient Affidavit of Support Under Section 213A 
of the INA, if required, should be the sole criterion for determining 
if a noncitizen is likely to become a public charge.\538\ Although the 
commenter expressed concern that an officer may unduly weigh age and 
health or disability status unfairly for children, including those with 
special health care needs or disabilities, DHS believes that the 
regulatory language directing officers to demonstrate their 
consideration of each factor, including age and health, already 
addresses this concern.
---------------------------------------------------------------------------

    \538\ See 8 CFR 212.22(b).
---------------------------------------------------------------------------

    To the suggestion that DHS issue denial decisions in a plain, easy 
to read format, DHS notes that it is bound by the Plain Writing Act of 
2010,\539\ which requires DHS, in issuing ``any document that is 
necessary for obtaining any Federal Government benefit or service . . 
.'' \540\ to use ``writing that is clear, concise, well-organized, and 
follows other best practices appropriate to the subject or field and 
intended audience.'' \541\ Consistent with the Plain Writing Act of 
2010, USCIS has an internal plain language program to help improve the 
clarity of USCIS communications. USCIS follows the policies and 
procedures established by the USCIS plain language program for all of 
its denial decisions so that they are easy to read and understand, and 
includes citations to relevant sections of

[[Page 55576]]

law or court decisions to support officers' decisions.
---------------------------------------------------------------------------

    \539\ Public Law 117-274 (Oct. 13, 2010).
    \540\ Public Law 117-274 Sec. 3(2) (Oct. 13, 2010).
    \541\ Public Law 117-274, Sec. 3(3) (Oct. 13, 2010).
---------------------------------------------------------------------------

    Comment: One commenter recommended that officers should be required 
to provide a written explanation that specifically articulates each 
factor considered in the determination and the reason for the officer's 
determination in all cases in which the public charge ground of 
inadmissibility applies, regardless of whether the adjudicator finds 
that the noncitizen is inadmissible under the public charge ground or 
not. The commenter reasoned that only requiring a written analysis for 
cases where a noncitizen is found to be inadmissible under the public 
charge ground of inadmissibility, coupled with USCIS' initiatives to 
address the agency backlog and impose new internal cycle time 
goals,\542\ would incentivize officers to provide positive public 
charge inadmissibility determinations for noncitizens who may not 
warrant such determination.
---------------------------------------------------------------------------

    \542\ See USCIS, ``USCIS Announces New Actions to Reduce 
Backlogs, Expand Premium Processing, and Provide Relief to Work 
Permit Holders'' (Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work (last visited Aug. 16, 
2022).
---------------------------------------------------------------------------

    Response: The commenter's argument that requiring a written 
analysis by an officer for a determination that a noncitizen is not 
inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
coupled with USCIS' internal goals, incentivizes officers to fail to 
correctly apply the law is without basis. The requirement that officers 
write decisions explaining the specific reasons for denials of 
adjustment of status is a long-standing requirement that has been in 
the regulation for decades.\543\ This rule does not expand or contract 
the circumstances when officers are required to issue a written 
decision explaining the specific reason for a decision regarding the 
public charge ground. This rule adds the requirement that officers 
include a discussion of each of the statutory factors in the already 
required written denial decision.
---------------------------------------------------------------------------

    \543\ 8 CFR 103.3(a)(1)(i); see also ``Oral Argument and 
Appeals,'' 31 FR 3062 (Feb. 24, 1966).
---------------------------------------------------------------------------

    DHS does not agree that the long-standing requirement that officers 
explain in writing the specific reasons for denials inappropriately 
incentivizes officers to issue approvals. First, a requirement for an 
administrative agency to provide notice and an opportunity to respond 
is a common feature of administrative practice, and is intended to 
promote fairness and consistency, not to incentivize particular 
outcomes. Second, USCIS officers are dedicated to USCIS' core values of 
integrity, respect, innovation, and vigilance, and, to that end, 
officers strive to deliver fair decisions that are consistent with the 
law, regardless of internal cycle time goals. USCIS officers receive 
specialized training and regularly adjudicate a variety of immigration 
benefit applications. Further, requiring written decisions stating the 
specific reasons for approvals in all cases where a USCIS officer 
determines that an applicant is not inadmissible under the public 
charge ground would be unnecessarily burdensome and inconsistent with 
USCIS practice for all other grounds of inadmissibility. By granting a 
person adjustment of status to lawful permanent resident, the USCIS 
officer is confirming that they have reviewed the eligibility 
requirements and any applicable grounds of inadmissibility, including 
the public charge ground of inadmissibility, where applicable, and 
determined that the applicant is admissible to the United States.

N. Information Collection (Forms)

    Comment: Several commenters recommended that DHS not change the 
initial evidence adjustment of status applicants currently provide on 
Form I-485 and recommended against additional questions being added to 
the form, stating that all of the information needed is already 
included in the information collection.
    Some commenters stated that if DHS chooses to include any 
questions, DHS should ensure that any additional questions are on their 
face related to a statutory ground and do not elicit potentially 
extraneous information or evidence, and recommended that applicants be 
given an opportunity to provide a substantive answer to explain any 
additional circumstances. One of those commenters also suggested that 
the instructions to Form I-485 should provide a detailed explanation 
related to which noncitizen applicants are exempt from the public 
charge ground for inadmissibility.
    Other commenters stated that asking if a person has used public 
assistance from any source is overly broad and irrelevant and creates 
unnecessary work for applicants, officers, and State benefit granting 
agencies, as well as contributing to the chilling effect.
    Response: DHS disagrees that additional questions are not required 
on Form I-485. DHS reviewed the current form and has decided to add 
several additional questions regarding the factors used to make a 
public charge inadmissibility determination that were not already 
included in the form's information collection, including information 
about an applicant's household size, income, assets, liabilities, an 
applicant's education or skills, an applicant's use of TANF or SSI, and 
any long-term institutionalization of the applicant at government 
expense. The form also informs applicants that additional space is 
available if applicants need to provide more information. Additionally, 
USCIS policy instructs officers to issue Requests for Evidence in cases 
involving insufficient evidence before denying such cases unless the 
officer determined that there was no possibility that the benefit 
requestor could overcome a finding of ineligibility by submitting 
additional evidence.\544\ DHS did not include additional questions or 
request additional evidence from applicants that is not related to a 
public charge inadmissibility determination. In order to reduce the 
burden on applicants not subject to section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4), DHS also included a question asking applicants if 
they are subject to the public charge ground of inadmissibility and, if 
not, directing them that they may skip the subsequent related 
questions.
---------------------------------------------------------------------------

    \544\ See USCIS Policy Manual, Vol. 1, Part E, Ch. 6, Section F, 
``Requests for Evidence and Notices of Intent to Deny,'' https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-6 (last visited 
Aug. 16, 2022).
---------------------------------------------------------------------------

    DHS disagrees that a full list of applicants who are not subject to 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), should be included 
in the Form I-485 instructions. New 8 CFR 212.23 lists 29 classes of 
noncitizens who are exempt from the public charge ground of 
inadmissibility. Including this full list in the form instructions 
would impose a burden on all applicants reviewing them. DHS instead 
included the list in the regulations, and will include a list of 
exemptions within sub-regulatory guidance.
    DHS agrees that asking applicants within the form if they have used 
any public assistance is overly broad and would contribute to chilling 
effects. DHS therefore limited any additional questions to the use of 
public benefits that would be considered in a public charge 
inadmissibility determination: TANF; SSI; State, Tribal, territorial, 
or local cash benefit programs for income maintenance (which often are 
called ``General Assistance'' in the State context but also exist under 
other names); and long-term institutionalization at government expense. 
Due to the variety of State, Tribal, territorial, or local noncash 
benefit programs, DHS is unable to

[[Page 55577]]

provide within the form or instructions an exhaustive list of noncash 
public benefits programs, but plans to issue future guidance with some 
examples to address widely used noncash programs such as SNAP, CHIP, 
and Medicaid, other than Medicaid for long-term institutionalization.
    Comment: One commenter recommended that USCIS continue to use the 
questions included in the current Form I-864 and Form I-864A to 
calculate household size, income from the household, and, if needed, 
assets from the household. The commenter stated that this information 
should only be collected in cases subject to the public charge ground 
of inadmissibility in which an Affidavit of Support is not otherwise 
filed.
    The commenter also stated that USCIS should consider whether the 
creation of a Form I-485 supplement form to collect this information is 
warranted in this specific scenario in order to provide both the agency 
and applicants with a simple, efficient, and familiar method of 
providing required information and achieves DHS's goal of not unduly 
imposing barriers on noncitizens seeking adjustment of status or 
admission to the United States as lawful permanent residents.
    Response: DHS notes that no changes have been proposed to Form I-
864, Affidavit of Support Under Section 213A of the INA, or Form I-
864A, Contract Between Sponsor and Household Member. DHS also notes 
that the Affidavit of Support Under Section 213A of the INA and the 
Contract Between Sponsor and Household Member collect information 
regarding the household size, income, and assets of the sponsor and 
household members, respectively. These forms do not collect information 
regarding the intending immigrant. DHS also notes that some noncitizens 
applying to adjust status to lawful permanent resident may not be 
required to submit an Affidavit of Support Under Section 213A of the 
INA but are still subject to the public charge ground of 
inadmissibility, for example, applicants applying under the Diversity 
Visa program.
    In the NPRM, DHS proposed changes to Form I-485 to include 
questions that would collect public charge-related information from 
applicants who are subject to section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4). The first of these questions asks applicants to indicate if 
they are subject to the public charge ground of inadmissibility, and if 
they are not, directs that they may skip the subsequent related 
questions. Therefore, noncitizens who are not subject to a public 
charge inadmissibility determination, which includes most noncitizens 
not required to file an Affidavit of Support Under Section 213A of the 
INA, will not need to provide information specifically related to 
making this determination.
    DHS has determined that the Form I-485 sufficiently collects 
information regarding the factors that will be considered in a public 
charge inadmissibility determination. Further, DHS believes the 
creation of a supplement to Form I-485 would increase the burden on the 
agency and applicants, as it would require additional consideration by 
stakeholders and officers in order to complete and submit any 
additional evidence. Therefore, DHS believes that not creating a 
supplement for Form I-485 is reducing barriers on noncitizens seeking 
adjustment of status.
    DHS has reduced the estimated time burden for completing the 
revised Form I-485 from 7.92 hours to 7.16 hours. Open-ended questions 
requiring narrative-style responses that were proposed in the 
information collection instrument (Form I-485) associated with the NPRM 
have been changed to multiple-choice style questions that will require 
less time for an applicant to answer.

O. Bonds and Bond Procedures

    Comment: One commenter stated that if a sponsor on an Affidavit of 
Support Under Section 213A of the INA cannot meet the threshold amount 
for income/assets and the applicant has no qualifying joint sponsor, 
the applicant should be permitted to post a negligible bond amount of 
$100 in lieu of providing tax returns or pay stubs in order to overcome 
the public charge ground of inadmissibility.
    Response: DHS disagrees that it should permit an applicant for 
adjustment of status who has failed to submit a required Affidavit of 
Support Under Section 213A of the INA, and is therefore per se 
inadmissible under section 212(a)(4)(A) of the INA, 8 U.S.C. 
1182(a)(4)(A), to post a negligible bond of $100 to overcome 
inadmissibility. As noted above, under section 213A of the INA, 8 
U.S.C. 1183a, most family-based immigrants and certain employment-based 
immigrants are required to submit an Affidavit of Support Under Section 
213A of the INA to avoid being found inadmissible under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\545\ Under section 213 of 
the INA, 8 U.S.C. 1183, subject to the requirement to submit an 
Affidavit of Support Under Section 213A of the INA, a noncitizen who is 
inadmissible under only section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), can be admitted at DHS's discretion upon the giving of a 
suitable and proper bond, in the amount and conditions set by DHS in 
its discretion. Additionally, under this rule, and for consistency with 
prior agency practice with respect to the bond amount (with the 
exception of the period in which the 2019 Final Rule was in effect), 
the minimum bond amount that DHS will set is $1,000, which reflects the 
minimum amount to ensure that Federal, State, local, and tribal 
governments are held harmless against the noncitizen becoming a public 
charge.\546\ DHS believes that setting the bond amount to a minimum of 
$1,000 is a reasonable starting point. Accordingly, DHS declines to set 
the bond amount at $100.
---------------------------------------------------------------------------

    \545\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D); INA sec. 213A(a)(1), 8 U.S.C. 1183a(a)(1).
    \546\ 8 CFR 213.1(c).
---------------------------------------------------------------------------

    Comment: One commenter appears to suggest that immigration bonds 
should be used to pay for such medical care and other social welfare 
debts incurred by those who enter the United States.
    Response: To the extent that this commenter is suggesting that DHS 
utilize public charge bonds to ensure that any medical expenses and 
benefits paid by the government are reimbursed, DHS notes that the 
purpose of a public charge bond is to hold the United States, States, 
territories, counties, towns, and municipalities, and districts 
harmless against bonded immigrants becoming public charges.\547\ 
Consistent with this purpose, under the rule, receiving public cash 
assistance for income maintenance or long-term institutionalization at 
government expense, would result in a breach determination.\548\ This 
provision ensures that the purpose of public charge bonds is carried 
out.
---------------------------------------------------------------------------

    \547\ INA sec. 213, 8 U.S.C. 1183.
    \548\ 8 CFR 103.6(c).
---------------------------------------------------------------------------

    Comment: One commenter agreed that DHS should utilize its 
discretion to offer bonds, noting that this would only impact a small 
number of cases.
    Response: DHS agrees that it should exercise its bond authority 
under section 213 of the INA, 8 U.S.C. 1183, and has included a 
provision in this rule that would permit officers to consider offering 
public charge bonds, in their discretion, to adjustment of status 
applicants inadmissible only under section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4).\549\ To the extent that this commenter suggests that 
DHS limit offering bonds to a small number of cases, DHS notes that the 
decision to

[[Page 55578]]

offer an adjustment of status applicant a public charge bond is 
determined on a case-by-case basis in the exercise of discretion. Each 
decision is an individualized determination and as a result, DHS will 
not mandate that its bond authority be limited only to a specific 
number of cases, as DHS believes that this would unreasonably exclude 
from the possibility of a public charge bond adjustment of status 
applicants who might otherwise warrant our discretion.
---------------------------------------------------------------------------

    \549\ 8 CFR 213.1.
---------------------------------------------------------------------------

    Comment: Some commenters disagreed with DHS's statement in the NPRM 
that existing public charge bonds are adequate and opposed DHS's 
decision against adding any public charge bond provisions to existing 
regulations. One commenter reasoned that the existing bond regulations 
are only adequate if DHS intends to never issue public charge bonds. 
Other commenters stated that public charge bonds are tools to ensure 
compliance with the immigration laws and that, by not amending the 
regulations to include public charge bond provisions, DHS is ignoring 
its discretion under this authority without justification, and in the 
process, eviscerating the public charge ground of inadmissibility. 
These commenters requested that DHS reconsider its position on public 
charge bonds and amend the regulations in the same manner as was found 
in the 2019 Final Rule.
    Response: DHS disagrees that this rule ignores its public charge 
bond authority or eliminates a key part of public charge ground of 
inadmissibility. On the contrary, DHS acknowledged its discretionary 
bond authority in the NPRM,\550\ and DHS reiterates, in this rule, that 
it has authority, under section 213 of the INA, 8 U.S.C. 1183, to 
consider whether to exercise its discretion on a case-by-case basis to 
admit noncitizens who are inadmissible only under section 212(a)(4) of 
the INA, 8 U.S.C. 1182(a)(4), upon the submission of a suitable and 
proper public charge bond. But DHS acknowledges that, as noted by 
commenters, existing regulations that implement the statutory public 
charge bond provisions do not address the manner in which USCIS will 
exercise this discretion.
---------------------------------------------------------------------------

    \550\ 87 FR at 10597 (Feb. 24, 2022).
---------------------------------------------------------------------------

    Accordingly, following consideration of public comments received, 
DHS has determined, similar to the 2019 Final Rule, that it is 
appropriate to include provisions in the rule pertaining to USCIS' 
exercise of its public charge bond authority in adjustment of status 
applications, as well as provisions pertaining to public charge bond 
cancellation and breach determination. These provisions will ensure 
that USCIS is exercising its discretionary public charge bond authority 
in the context of adjustment of status applications, and will ensure 
that public charge bonds remain operationally feasible in such cases.
    Under this rule, DHS will consider offering adjustment of status 
applicants who are inadmissible only under section 212(a)(4) of the 
INA, 8 U.S.C. 1182(a)(4), to submit a bond as a condition of adjustment 
of status.\551\ When USCIS determines, in its discretion, to offer an 
adjustment of status applicant a public charge bond, USCIS will set the 
bond amount at an amount of no less than $1,000 and provide 
instructions for the submission of a public charge bond.\552\ USCIS 
will provide officers with guidance and training to ensure that this 
discretionary authority is exercised in a fair, efficient, and 
consistent manner.
---------------------------------------------------------------------------

    \551\ See 8 CFR 213.1(a) and (c).
    \552\ 8 CFR 213.1(a) and (c).
---------------------------------------------------------------------------

P. Economic Analysis Comments & Responses

    Comment: One commenter remarked that while the rule seems to have a 
high cost for codifying a policy already in place, the benefits of the 
rule outweigh the costs. The commenter stated that most changes do not 
appear to have an associated cost, but in turn create benefits for 
noncitizens without taking away their rights, and that the benefits of 
changes that do have associated costs outweigh those costs.
    Response: DHS acknowledges this commenter's support of the rule. 
However, as explained at length in the section below on E.O. 12866 
(Regulatory Planning and Review) and E.O. 13563 (Improving Regulation 
and Regulatory Review), DHS is unable to provide a full quantified 
estimate of the rule's costs and benefits due to data availability and 
the qualitative nature of some of the costs and benefits identified for 
this final rule.
    Comment: One commenter cited the estimated savings to States' 
social-welfare budgets from the 2019 Final Rule and stated that the 
proposed rule ignores substantial effects on the States, costing 
significant funds rather than conserving Medicaid and related social-
welfare budgets. An advocacy group, a State representative, and some 
State Attorneys General stated that while DHS focuses on a reduction of 
transfer payments as a net negative, it fails to explore the savings to 
State or Federal taxpayers, and that the 2019 Final Rule estimated an 
approximate savings for States of $1.01 billion annually. The 
commenters remarked that any reduction in payments due to a DHS rule 
concerning implementation of the public charge ground of 
inadmissibility must result in a savings to taxpayers that is 
quantifiable and should be included to provide a more complete 
analysis.
    Response: As an initial matter, to the extent the commenters 
suggest that the 2019 Final Rule is the existing baseline against which 
the effects of this rule should be evaluated, DHS disagrees. The 2019 
Final Rule is no longer in effect. The 2019 Final Rule does not 
represent the agency's best assessment of ``the way the world would 
look absent the proposed action,'' which is the OMB Circular A-4 \553\ 
definition of an analysis' baseline. Therefore, the 2019 Final Rule is 
not the baseline against which DHS is directed to compare the rule's 
effects for purposes of OMB Circular A-4.
---------------------------------------------------------------------------

    \553\ See OMB, ``Circular A-4'' (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    The distinction does not affect DHS's analysis, however, because in 
both the NPRM and Section IV.A.5.d of this Final Rule, DHS has 
considered a similar rule to the 2019 Final Rule as a regulatory 
alternative (the Alternative) and discussed its effects. Specifically, 
a decrease in State public benefit expenditures due to chilling effects 
was discussed as a transfer payment in that section. Transfer payments 
are reallocations of money from one group to another that do not affect 
total resources. A reduction of transfer payments is a reallocation of 
money from individuals to Federal or State governments.
    The commenter stated that the 2019 Final Rule estimated an 
approximate savings for States of $1.01 billion annually. As discussed 
in the 2019 Final Rule, however, the $1.01 billion was the estimated 
State-level share of reduction in the annual transfer payments, not an 
estimated net savings, and represents a significantly broader effect 
than any disenrollment that would result among people actually 
regulated by the rule.
    DHS acknowledged in the 2019 Final Rule that the reduction in 
transfer payments due to disenrollment or forgone enrollment in a 
public benefit program would have lasting impacts on the health and 
safety of our communities. As described in Section IV.A.5.d. of this 
rule, disenrollment or forgone enrollment in public benefit programs 
due to fear or confusion--i.e.,

[[Page 55579]]

the chilling effect--could lead to worsening health outcomes, increased 
use of emergency rooms and emergency care as a method of primary health 
care due to delayed treatment, increased prevalence of communicable 
diseases, increased uncompensated care, increased rates of poverty and 
housing instability, and reduced productivity and educational 
attainment. DHS also recognized 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 chilling effect 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.\554\
---------------------------------------------------------------------------

    \554\ See DHS, ``Regulatory Impact Analysis: Inadmissibility on 
Public Charge Grounds Final Rule,'' RIN 1615-AA22, at 6 (Aug. 2019), 
https://www.regulations.gov/document/USCIS-2010-0012-63741 
(hereinafter 2019 Final Rule RIA).
---------------------------------------------------------------------------

    The commenter also stated that any reduction in payments due to a 
DHS rule concerning implementation of the public charge ground of 
inadmissibility must result in a savings to taxpayers. DHS disagrees 
that any reduction in public benefit payments must result in a savings 
to taxpayers. Transfer payments associated with disenrollment or 
forgone enrollment in public benefit programs represents only one of 
many potential consequences for taxpayers. The reduction in public 
benefit payments could be reallocated in many different ways. It is out 
of the scope of this rule to determine how any reduction in public 
benefit payments is ultimately reallocated.
    This public charge rule intends to administer the statute 
faithfully and fairly, while avoiding predictable adverse and indirect 
consequences such as disenrollment or forgone enrollment by individuals 
who would not be subject to the public charge ground of inadmissibility 
in any event. The 2019 Final Rule was associated with widespread 
indirect effects, primarily with respect to those who were not subject 
to the 2019 Final Rule in the first place, such as U.S.-citizen 
children in mixed-status households, longtime lawful permanent 
residents who are only subject to the public charge ground of 
inadmissibility in limited circumstances, and noncitizens in a 
humanitarian status who would be exempt from the public charge ground 
of inadmissibility in the context of adjustment of status. A rule 
similar to the 2019 Final Rule would likely produce similar adverse 
effects on vulnerable populations not subject to the public charge 
ground of inadmissibility, and DHS has sought to avoid such effects in 
this rulemaking while remaining entirely faithful to the statute and 
historical practice.
    Comment: Other commenters stated that the 2019 Final Rule increased 
the administrative costs to the States and caused economic harm to 
immigrant families and the entities that serve them. In particular, 
commenters stated that the inclusion of core health, nutrition, and 
housing assistance programs in the 2019 Final Rule caused a chilling 
effect, and the subsequent disenrollment or forgoing of benefits 
imposed significant costs as families were deprived of benefits from 
Medicaid and SNAP, and costs on society from worsened health outcomes, 
increased use of emergency rooms, increased uncompensated health care, 
increased rates of poverty and homelessness, and reduced productivity 
and educational attainment. Commenters stated that the inclusion of 
SNAP, Medicaid, and housing benefits in the 2019 Final Rule and the 
accompanying documentation requirements for immigrants also created a 
substantial administrative burden on State staff and resulted in 
significant costs in addressing the needs of immigrant-serving 
community organizations. One commenter added that in fiscal year 2019, 
they provided $1.3 million in grants to establish capacity within 
community organizations across their State to conduct community 
education and individual family counseling, and for fiscal years 2020 
and 2021, they funded $2.1 million in grants to ensure continued 
capacity to provide those services related to the 2019 Final Rule.
    Response: DHS acknowledges the impact of the 2019 Final Rule. A 
discussion of the impact of the 2019 Final Rule is described in Section 
IV.A.5.d. as the Alternative. Although DHS is not able to quantify all 
the effects of the Alternative, for many of the effects that are not 
quantifiable DHS provides qualitative discussion. DHS incorporated the 
detailed information on the State administrative costs due to the 2019 
Final Rule provided by the commenter into Section IV.A.5.d. Also, DHS 
provided detailed information in the 2019 Final Rule Regulatory Impact 
Analysis on familiarization costs and compliance costs as indirect 
effects of the 2019 Final Rule.\555\ DHS believes that under this rule, 
the types of effects described by the commenter are likely to decrease 
over time.
---------------------------------------------------------------------------

    \555\ See 2019 Final Rule RIA.
---------------------------------------------------------------------------

    Comment: Multiple commenters, writing separately but in 
substantially similar language, stated that the economic analysis 
provided in the NPRM fails to consider the actual administrative 
burdens placed on each State, which undertake much of the 
responsibility in administering the public benefits considered in the 
analysis. The commenters remarked that the economic analysis focuses on 
the chilling effect of implementing a public charge definition more 
expansive than what is proposed and contends that disenrollment or 
forgoing enrollment would have downstream economic impacts that would 
negatively affect the economy. The commenters stated that DHS 
acknowledged that it is unable to quantify the State portion of the 
transfer payment due to a lack of data related to State-level 
administration of these public benefit programs. The commenter stated 
that the economic analysis performed by DHS was therefore incomplete. 
The commenter also stated that DHS failed to analyze the effect of any 
alternative that in the commenter's opinion was more consistent with 
Congressional intent and ensures a noncitizen seeking admission or 
other benefits does not become a public charge. The commenter stated 
that such an analysis should not be limited to the chilling effect for 
noncitizens already present in the United States, but also consider the 
benefit for the taxpayers and the lessening burdens on already 
overwhelmed systems of public benefits. The commenter said that DHS's 
limited analysis belied its true intent to facilitate mass migration 
and ignored DHS's charge to faithfully execute U.S. immigration laws.
    Response: DHS does not agree with the commenter's claim that its 
intent with this rulemaking is to facilitate mass migration. This final 
rule establishes regulations to align public charge policy with the 
statute and Congressional purpose and collect the appropriate 
information to make public charge inadmissibility determinations. The 
rule is designed, in part, to avoid the unnecessary indirect effects 
that would be associated with a rule similar to the 2019 Final Rule.
    DHS does not agree with the commenter's claim that the NPRM's 
analysis is incomplete. DHS completed the analysis consistent with OMB 
standards--the same standards that applied to the 2019 Final Rule--and 
the analysis is informed by a range of sources and information received 
in

[[Page 55580]]

response to the 2021 ANPRM, NPRM and otherwise collected in connection 
with the rulemaking. DHS notes that none of the above-referenced 
commenters provided the data that would be necessary to fully quantify 
the administrative costs associated with this or any other public 
charge rule, nor did the commenters participate in the comment period 
for the 2021 ANPRM.
    It is not at all uncommon for a regulatory analysis to address 
matters quantitatively and where a quantitative analysis is not 
possible, to address matters qualitatively. This was the case for the 
2019 Final Rule as well. In the NPRM and again in Section IV.A.5.d. of 
this preamble, DHS estimates State annual transfer payments for 
Medicaid and the proportion of State contributions for SNAP and TANF 
but cannot estimate State contributions to SSI and Federal Rental 
Assistance because the proportion of State contributions varies widely 
across States and by year. DHS notes that the analysis presented in the 
NPRM and below represents DHS's best effort to assess the costs, 
benefits, and transfers of the regulatory alternative.
    The commenter stated that DHS failed to analyze the effect of any 
alternative. However, commenters did not provide any actionable 
alternative with which DHS could consider. DHS considered an 
alternative similar to the 2019 Final Rule, and also assessed the 
effects of the rule against two baselines. DHS believes that the 
analysis presented in this final rule is more than sufficient.
    As it relates to alternative contained in the NPRM analysis, DHS 
considered the costs, benefits, and transfer effects associated with a 
potential rulemaking similar to the 2019 Final Rule (the Alternative). 
Like the 2019 Final Rule, the Alternative would expand the definition 
of ``public charge'' by providing that receipt of the certain 
designated benefits for more than 12 months in the aggregate within a 
36-month period would render a person a public charge and designating a 
broader range of public benefits for consideration. Detailed analysis 
of the Alternative is included in Section IV.A.5.D.
    Comment: A commenter asserted that there is no functional or 
economic difference between a cash benefit and a non-cash benefit 
received in-kind such as Medicaid benefits and that the rule therefore 
wholly ignores State costs, specifically the costs of States providing 
Medicaid to low-income individuals. The commenter stated that the 
analysis should focus on how much the government spends on benefits 
received by noncitizens, not simply whether the benefit is income-
deriving, and emphasized that there is no practical or economic 
distinction between the simple provision of benefits in cash or in-
kind.
    Response: DHS is drawing a reasonable line between cash assistance 
for income maintenance that alone can be indicative of primary 
dependence on the government for subsistence, and supplemental and 
special-purpose non-cash benefits that are less probative of such 
dependence. As noted above, Congress itself previously distinguished 
between cash and non-cash benefits in the same manner as this rule in 
the IRCA legalization provision, which provided that ``[a]n alien is 
not ineligible for adjustment of status under [that provision] due to 
being [a public charge] if the alien demonstrates a history of 
employment in the United States evidencing self-support without receipt 
of public cash assistance.'' \556\ Further, INS made this same 
distinction in the 1999 Interim Field Guidance, after which Congress 
amended the applicability of section 212(a)(4) of the INA multiple 
times, but only to limit the application of the ground of 
inadmissibility to certain populations or to limit consideration of 
certain benefits in certain circumstances.\557\ As noted previously, 
Congress has long deferred to the Executive to interpret the meaning of 
``likely at any time to become a public charge.'' DHS is not treading 
new ground by exercising that discretion in the way presented in this 
rule.
---------------------------------------------------------------------------

    \556\ Public Law 99-603, tit. II, sec. 201 (Nov. 6, 1986) 
(codified at section 245A(d)(2)(B)(ii)(IV) of the INA, 8 U.S.C. 
1255a(d)(2)(B)(ii)(IV)) (emphasis added); see also id. at sec. 302, 
303 (similar provision for Special Agricultural Workers).
    \557\ See, e.g., Public Law 113-4, sec. 804 (2013) (codified as 
amended at section 212(a)(4)(E)(i)-(iii) of the INA, 8 U.S.C. 
1182(a)(4)(E)(i)-(iii)); Public Law 106-386, sec. 1505(f). (2000) 
(codified as amended at section 212(s) of the INA, 8 U.S.C. 
1182(s)).
---------------------------------------------------------------------------

    As a technical matter, DHS disagrees that the provision of Medicaid 
to low-income individuals is a cost of the rule, for two reasons. 
First, payments made by State or Federal governments are considered 
transfer payments rather than costs or cost savings for the purposes of 
the RIA.\558\ A reduction in Medicaid enrollment is a reallocation of 
money from individuals to State governments. Second, the reduction in 
transfers payments referred to by the commenter represents the 
difference between the commenters' preferred policy and the policy 
outlined here. They are therefore presented in the discussion of the 
Alternative, rather than as an effect of the rule itself as compared to 
the No Action Baseline or the Pre-Guidance baseline.
---------------------------------------------------------------------------

    \558\ See OMB, ``Circular A-4'' (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    In Section IV.A.5.d. of this rule, DHS discussed the consequences 
of individuals' disenrollment or forgone enrollment in Medicaid as 
distributional effects. As DHS explained, the inclusion of non-cash 
benefits in the 2019 Final Rule had a chilling effect on enrollment in 
State and Federal public benefits, including Medicaid, resulting in 
fear and confusion in the immigrant community. Chilling effects in 
public benefit programs could lead to significant indirect effects on 
State and local economies, large and small businesses, and individuals. 
Although the analysis quantifies transfer effects as proposed by the 
commenter, it also considers other downstream effects. Such effects may 
include worsening health outcomes, increased use of emergency rooms and 
emergency care as method of primary health care due to delayed 
treatment, increased prevalence of communicable diseases, increased 
uncompensated care, increased rates of poverty and housing instability, 
and reduced productivity and educational attainment. DHS also 
recognized 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. In light of the evidence of the 
effects of the 2019 Final Rule, DHS takes the prospect of such outcomes 
seriously, particularly as it relates to populations that this rule 
does not regulate, such as U.S. citizen children in mixed-citizenship 
households.
1. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)
    Comment: Regarding methodology and adequacy, some State Attorneys 
General, and an advocacy group wrote that DHS did not adequately 
analyze the effect of alternative versions of the rule that, in the 
commenters' view, would be consistent with congressional intent to 
ensure noncitizens seeking admission do not become public charges. They 
stated that an analysis of the public charge rule should not be limited 
to chilling effects and suggested that the analysis include the 
benefits for taxpayers and reduction of burdens on the public benefit 
systems.,
    Response: In the analysis of the Alternative referenced above, DHS 
considers the reduction in transfer payments and the potential 
reduction of burdens on the public benefit system in

[[Page 55581]]

Section IV.A.5.d. However, under OMB Circular A-4, the reduction of 
burdens on the public benefit system is not a benefit, but rather 
appropriately accounted for as transfer payments. Transfer payments are 
neither costs nor savings; they do not affect total resources available 
to society. They are payments from one group to another. A decrease in 
transfer payments from the Federal or State government reduces burdens 
on the public benefit system but at the same time increases burden to 
the individuals. Therefore, the reduction in transfer payments 
increases indirect costs to the Federal or State government. DHS 
considers the costs and benefits of available regulatory alternatives 
as discussed in Section IV.A.5.d.
    The Alternative would also 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 would be required to file 
Form I-944, Declaration of Self-Sufficiency, as part of the public 
charge inadmissibility determination. In addition, the Alternative 
would impose additional costs for completing Forms I-485, I-129, I-
129CW, and I-539 as the associated time burden estimate for completing 
these forms would increase. Moreover, the Alternative would impose 
additional costs associated with the public charge bond process, 
including costs for completing and filing Forms I-945 and I-356. DHS 
estimates the total annual direct costs of the Alternative would be 
approximately $62 million compared to $6 million under the Final Rule.
    Under the Alternative, DHS estimates that the total annual transfer 
payments from the Federal Government to public benefits recipients who 
are members of households that include noncitizens would be 
approximately $3.79 billion lower due to disenrollment or forgone 
enrollment of the public benefit programs. DHS understands that some 
commenters may view this outcome as preferable, potentially due to its 
implications for government spending on public assistance programs. At 
the same time, DHS notes that these transfer payments largely affect 
populations that are not subject to public charge inadmissibility 
determinations, such as U.S. citizen children in mixed-status 
households. DHS also recognizes that many of the indirect effects of 
the Alternative could lead to worsening health outcomes, increased use 
of emergency rooms and emergency care as method of primary health care 
due to delayed treatment, increased prevalence of communicable 
diseases, increased uncompensated care, increased rates of poverty and 
housing instability, and reduced productivity and educational 
attainment. DHS also recognizes that, under the Alternative, reductions 
in federal and State transfers under federal benefit programs may have 
impacts on State and local economies, large and small businesses, and 
individuals. Other indirect costs of the Alternative include 
administrative costs incurred by States. DHS received a detailed 
comment on State administrative costs. The commenter stated that the 
State incurred significant costs in addressing the needs of immigrant-
serving community organizations, responding to the fear and confusion 
caused by the 2019 Final Rule, conducting community education and 
individual family counseling, and planning and training the State 
caseworkers related to 2019 Final Rule. Since the Alternative is 
similar to the 2019 Final Rule, DHS believes these administrative costs 
in this comment are similar to administrative costs that would be 
imposed by the Alternative.
    Comment: Citing numerous studies, some of which DHS included in the 
proposed rule, an advocacy group described un-insurance trends fueled 
by the 2019 Final Rule that reversed substantial gains in insurance 
rates leading up to 2019. The advocacy group and a research 
organization cited findings from a 2020 Urban Institute survey,\559\ 
which indicated that immigrant families avoided noncash public benefit 
programs in 2020, despite facing hardships resulting from the COVID 
pandemic. The research organization further remarked that a variety of 
sources, including individual surveys, reports from service providers, 
and analyses of enrollment data demonstrate the chilling effect of the 
previous public charge rule on participation across public benefit 
programs. Citing data from a New York City focus group and a Protecting 
Immigrant Families Campaign and BSP Research survey, the commenter 
underscored the widespread and lasting impact of the 2019 public charge 
rule on families that include immigrants. Also citing numerous studies, 
an advocacy group provided data contextualizing the impact of the 2019 
Final Rule on Asian American and Pacific Islander (AAPI) communities, 
including Compact of Free Association (COFA) migrants and survivors of 
violence. Relatedly, a healthcare provider and an advocacy group 
commented on the negative impacts of the 2019 Final Rule on eligible 
immigrants. They stated that the 2019 Final Rule harmed marginalized 
immigrants and increased burdens on the nation's healthcare system.
---------------------------------------------------------------------------

    \559\ Hamutal Bernstein et al., ``Amid Confusion over the Public 
Charge Rule, Immigrant Families Continued Avoiding Public Benefits 
in 2019,'' Urban Institute (2020), https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_3.pdf (last visited Aug. 16, 2022).
---------------------------------------------------------------------------

    Response: DHS acknowledges that the 2019 Final Rule caused fear and 
confusion among U.S. citizens and noncitizens and had chilling effects 
on the use of public benefits by noncitizens and U.S. citizens in 
mixed-status families. As several commenters mentioned, numerous 
studies have discussed the impact of the 2019 Final Rule on immigrants, 
families of immigrants, and marginalized immigrants.
    Comment: An individual commenter expressed concern with the 
increase in costs for applicants affected by the proposed rule, 
reasoning that the cost of the application is already inflated and that 
any additional increase would prevent applicants from obtaining legal 
status.
    Response: DHS did not propose and is not increasing the I-485 fee 
through this final rule. Similarly, DHS does not expect the number of 
applicants will decrease due to the increase in time burden to complete 
Form I-485. DHS estimated the direct costs of the rule to complete Form 
I-485 for applicants who are subject to the public charge ground of 
inadmissibility. The increase in cost to the applicants is due to the 
0.75 hour increase in time burden to complete Form I-485, not a fee 
increase. The time burden includes the time for reviewing instructions, 
gathering the required documentation and information, completing the 
application, preparing statements, attaching necessary documentation, 
and submitting the application. Additionally, DHS does not expect the 
increase in time burden to complete the form will prevent applicants 
from obtaining legal status.
    The 2019 Final Rule imposed additional costs on the population 
applying to adjust status using Form I-485 by requiring the applicants 
to file Form I-944, Declaration of Self-Sufficiency. The 2019 Final 
Rule also imposed 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 was projected to increase. In contrast 
to the 2019 Final Rule, this final rule only increases the time burden 
for completing Forms I-485 and does not introduce a Form I-944 or 
change the Forms I-129, I-129CW, or I-539 at all.

[[Page 55582]]

    Comment: In response to DHS's request for comments on ways to 
estimate the value of non-paid time, an individual commenter stated 
that a fair assessment of unpaid, volunteer, and other non-paid 
activities individuals undertake may be based on effective minimum wage 
or rates consistent with those paid for similar work in the candidate's 
relevant labor market, whichever is highest. The commenter further 
suggested that DHS include ``reasonable'' paid fringe benefits in the 
valuation, reasoning that this approach would be consistent with the 
Uniform Administrative Requirements, Cost Principles and Audit 
Requirements for Federal Awards at 2 CFR 200.306(e).
    Response: DHS uses the effective minimum wage but declines to 
consider in this analysis rates consistent with those paid for similar 
work in the candidate's relevant labor market. DHS uses the effective 
minimum wage rate as a single objective measure since it is difficult 
to estimate the value of the time associated with the wide variety of 
non-paid activities an individual could pursue. In addition, DHS uses 
the benefits-to-wage multiplier, which incorporates the full cost of 
benefits, including paid leave, supplemental pay, insurance, 
retirement, and savings.
    Comment: Multiple commenters, including State governments, an 
attorney, and an advocacy group, said that the proposed rule's narrow 
definition of a public charge places heavy costs on Federal, State, 
Tribal, or local governments that administer benefits to immigrants. 
These commenters remarked that the proposed rule's economic analysis 
fails to consider the administrative burdens placed on each State that 
undertakes the responsibility of administering the public benefits. 
However, a legal services provider said that the rule's detractors who 
focus on the savings to State and local governments from being able to 
avoid providing benefits to eligible noncitizens and their families 
make the inappropriate objection that the NPRM should be revised to 
allow State and local governments to reap the benefits of frightening 
their residents into forgoing benefits that those governments are 
obligated to provide.
    Response: In the proposed rule, DHS gave more thorough 
consideration to the potential chilling effects of promulgating 
regulations governing the public charge inadmissibility determination. 
In considering such effects, DHS took into account the former INS's 
approach to chilling effects in the 1999 Interim Field Guidance and the 
1999 NPRM, the 2019 Final Rule's discussion of chilling effects, 
judicial opinions on the role of chilling effects, evidence of chilling 
effects following the 2019 Final Rule, and public comments on chilling 
effects following the August 2021 Advance Notice of Proposed Rulemaking 
(ANPRM).
    DHS acknowledges that the 2019 Final Rule caused fear and confusion 
among U.S. citizens and noncitizens and had a chilling effect on the 
receipt of public benefits, even among those who were not subject to 
the rule and with respect to public benefits that were not covered by 
the rule such as U.S. citizen children in mixed-status households, 
longtime lawful permanent residents who are only subject to the public 
charge ground of inadmissibility in limited circumstances, and 
noncitizens in a humanitarian status who would be exempt from the 
public charge ground of inadmissibility in the context of adjustment of 
status. DHS estimates the reduction in transfer payments due to the 
chilling effects in Section IV.A.5.d. Commenters stated that this 
reduction in transfer payments from the Federal and State government to 
public benefit recipients are savings. DHS recognizes the commenters' 
observation that the reduction in transfer payment will reduce State 
expenditures on public benefit programs. However, DHS analyzes this 
effect as a transfer payment under OMB Circular A-4.\560\ As OMB 
Circular A-4 prescribes, changes in transfer payments are neither costs 
nor benefits of the rule and are treated separately in the analysis. 
The impacts to States of the potential change in transfer payments is 
also discussed in Section IV.A.5.d. Also, disenrollment or forgone 
enrollment in public benefit programs could lead to worsening health 
outcomes, increased use of emergency rooms and emergency care as 
methods of primary health care due to delayed treatment, increased 
prevalence of communicable diseases, increased uncompensated care, 
increased rates of poverty and housing instability, and reduced 
productivity and educational attainment. DHS also 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.
---------------------------------------------------------------------------

    \560\ See OMB, ``Circular A-4'' (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    Moreover, DHS emphasizes that neither the statutory public charge 
ground of inadmissibility nor this final rule governs eligibility for 
public benefits. This final rule does not address which noncitizens 
are, or should be, eligible to receive public benefits. DHS is 
committed to making clear in this rule and in any communication 
materials and implementing guidance who is and is not subject to the 
public charge ground of inadmissibility. With this final rule, DHS 
intends to faithfully apply the public charge ground of inadmissibility 
without causing undue confusion among the public. This final rule 
implements the statute lawfully while minimizing chilling effects in 
order to avoid widespread societal issues that result from food 
insecurity, forgone medical care, and uncompensated healthcare costs 
among immigrant and mixed status families.
    Comment: A State health department said that while it expects some 
additional costs to be incurred due to additional changes in the 
proposed rule, these costs are likely to be modest. Overall, the 
commenter said State costs would be minimized by a simple, clearly 
understandable rule that excludes all benefits and does not require 
detailed analyses of which programs are and are not considered in a 
public charge assessment. Further, the commenter expressed support for 
language in the NPRM stating that the only receipt that counts is the 
intending immigrant being named as a beneficiary for one or more of the 
countable benefits themselves.
    Response: DHS agrees that the direct cost of the rule is relatively 
modest. This is in part due to similarities between the rule and the 
approach taken in the 1999 Interim Field Guidance. DHS agrees that a 
simple and clearly understandable rule would minimize familiarization 
costs as well as administrative costs incurred by planning and training 
caseworkers and call center workers and by decreasing the number of 
customers to the caseworker services. However, as discussed elsewhere 
in this rule, DHS is declining to exclude from consideration past or 
current receipt of all public benefits.
    Comment: A State government remarked that the removal of 
consideration of past receipt of public benefits from the proposed rule 
would save Federal, State, and local benefit granting agencies 
significant funding each year and allow for simpler and more effective 
administration of public benefit programs. The commenter stated that in 
2018, it awarded a State-fund grant of $1.2 million to provide 
technical assistance and training materials for legal service providers 
and community advocates on public charge. An additional $1 million was 
issued in 2019, among other funding. The commenter emphasized the 
complex nature of immigration law and the

[[Page 55583]]

difficulty encountered by the commenter in developing public engagement 
materials due to the complex nature of immigration law and repeated 
changes to public charge policy.
    Response: DHS acknowledges that some States have chosen to engage 
in outreach to social service providers and the general public 
regarding public charge matters. DHS agrees that the removal of 
consideration of past receipt of public benefits from the proposed rule 
may mitigate the need for such outreach. Such an approach could also 
simplify the administration of public benefit programs to the extent 
that public benefit granting agencies would not need to respond to 
recipient or applicant inquiries regarding immigration consequences of 
public benefit receipt. DHS also acknowledges that collecting 
information from applicants for adjustment of status on past or current 
benefit use has resulted in an increase to the time burden for 
completing the Form I-485. Also, the revised Form I-485 may indirectly 
increase administrative costs for benefit granting agencies due to an 
increase in workload to respond to some beneficiaries who may inquire 
about their history of public benefit receipts. However, DHS notes that 
under this final rule, it has streamlined this information collection, 
and the increase in time burden is less than the time burden increase 
under the 2019 Final Rule when applicants were required to complete 
Form I-944 Declaration of Self Sufficiency and provide supporting 
evidence.
    As explained in more detail earlier in this preamble, DHS has 
determined that it should continue to consider past and current receipt 
of public cash assistance for income maintenance and long-term 
institutionalization at government expense because these may be 
indicative of primary dependence on the government for subsistence. DHS 
has consistently considered the past and current receipt of such 
benefits in making public charge inadmissibility determinations and has 
consistently considered such receipt in the totality of the 
circumstances, taking into account the amount, duration, and recency of 
the receipt. DHS has also consistently stated that the past or current 
receipt of benefits alone is not a sufficient basis to determine 
whether an applicant is likely at any time to become a public charge.
    Comment: A State government and a local government commented that 
DHS should remove all Medicaid coverage and services from public charge 
inadmissibility determinations, reasoning that when patients lose 
coverage, overall costs to State or city governments increase.
    Response: DHS acknowledges that when patients lose medical 
coverage, overall costs to State or local governments may increase, and 
there may be long-term consequences for patients and their families and 
communities. As described in Section IV.A.5.d., disenrollment or 
forgoing enrollment in Medicaid due to a chilling effect could lead to 
worse health outcomes, increase use of emergency rooms and emergent 
care as methods of primary health care due to delayed treatment, 
increase prevalence of communicable diseases, increase uncompensated 
care, and reduce productivity and educational attainment. DHS also 
recognizes that reductions in Medicaid coverage might result in reduced 
revenues for healthcare providers participating in Medicaid and 
companies that manufacture medical supplies or pharmaceuticals. DHS 
notes that it is excluding from consideration nearly all forms of 
Medicaid, except for long-term institutionalization at government 
expense.
    DHS has determined that, like cash assistance for income 
maintenance, long-term institutionalization at government expense is 
indicative of primary dependence on the government for subsistence. 
However, DHS also recognizes that there may be instances when 
individuals are institutionalized in violation of federal law due to 
the unavailability of alternative services, such as HCBS. Recognizing 
that some instances of institutionalization may violate federal law, 
DHS will accept evidence that institutionalization violates the 
individual's rights under disability laws, including the ADA and 
section 504. In addition, this final rule retains a clarification that 
disability will never alone form the basis for determining that a 
noncitizen is likely at any time to become a public charge. DHS does 
not have data to assess how many individuals are both subject to the 
public charge ground of inadmissibility and are institutionalized on a 
long-term basis at government expense (including when such services are 
covered by Medicaid) so is unable to quantify the impact of retaining 
this long-standing policy in the final rule. However, DHS believes that 
the impact is small.
    Comment: A State government agency stated that it had experienced 
the immense administrative burden of the 2019 Final Rule and expressed 
concern over staff and customers continuing to be adversely affected by 
the administrative burden of implementing measures aimed at mitigating 
the chilling effect of a public charge rule, by the need to counsel 
eligible enrollees and recipients of their rights to receive benefits, 
and by the expected loss of enrollees and recipients.
    Response: DHS acknowledges the concerns over staff and customers 
continuing to be adversely affected by the administrative burden of 
implementing measures aimed at mitigating the chilling effect of a 
public charge rule. DHS is keenly aware of the established effects of 
its actions in this policy area and wishes to ensure that the final 
rule faithfully applies the public charge ground of inadmissibility 
without causing undue confusion among the public.
    Comment: An advocacy group acknowledged that the ``proposed rule 
would not have a significant economic impact on a substantial number of 
small entities.''
    Response: DHS agrees that the rule does not directly regulate small 
entities and is not expected to have a direct effect on small entities. 
It does not mandate any actions or requirements for small entities in 
the process of filing a Form I-485 Adjustment of Status by a requestor 
seeking immigration benefits. This rule regulates individuals, who are 
not defined as ``small entities.''
    Comment: One commenter stated that immigrants create economic 
growth and increase tax revenue to better the nation, and in general, 
having immigrants become successful is better for the country.
    Response: DHS acknowledges the economic impact of immigrants as 
many researchers have discussed. While DHS agrees that having 
immigrants become successful is better for the country, DHS does not 
expect that this rule would change the overall level of immigration as 
DHS does not expect the population seeking adjustment of status or 
admission at a port of entry would change due to this rule.
    Comment: An advocacy group remarked that, given the positive impact 
immigrants have on the U.S. economy, the changes in the proposed rule 
are sensible and would further support the success of immigrants and 
their contributions to the U.S. economy. An anonymous commenter said 
the proposed rule positively effects supply and demand in the United 
States, as ``. . . immigrants who increase the supply of labor also 
demand goods and services, causing the demand for labor to increase.''
    Response: For the regulatory analysis, DHS estimated the No Action 
Baseline using existing policy and compared the estimated costs and 
benefits of the provisions set forth in the rule to this

[[Page 55584]]

baseline. DHS estimated that the projected average annual total 
population of adjustment of status applicants and applicants for 
admission that would be subject to review for inadmissibility on the 
public charge ground would not change due to the rule. DHS does not 
expect that the rule would change the overall level of immigration.
    Comment: A few commenters, including a group of Attorneys General, 
State governments, and an anonymous commenter, said that compared to 
the 2019 Final Rule, the proposed rule would increase access to health 
care and nutritional services, resulting in long-term net benefits for 
the States and their residents. Similarly, a local government remarked 
that broad access to public benefits by eligible individuals leads to 
better health outcomes for individuals and communities, while 
minimizing costs of emergency care often borne by local governments.
    Response: This final rule would implement a different policy from 
the 2019 Final Rule. DHS believes that, in contrast to the 2019 Final 
Rule, this rule would effectuate a more faithful interpretation of the 
statutory phrase ``likely at any time to become a public charge''; 
avoid unnecessary burdens on applicants, officers, and benefits-
granting agencies; and mitigate the possibility of widespread 
``chilling effects'' with respect to individuals disenrolling or 
declining to enroll themselves or family members in public benefits 
programs for which they are eligible, especially with respect to 
individuals who are not subject to the public charge ground of 
inadmissibility.
2. Family Assessment
    Comment: One commenter stated that DHS must issue an assessment 
explaining the benefits of the proposed rule on family well-being, 
stating that section 654 of the Treasury and General Government 
Appropriations Act, 1999 directs federal agencies to issue a family 
policymaking assessment for any rule that may affect family well-being 
and that, under the law, the agency must evaluate a regulatory action's 
impact on the stability or safety of the family, on the family's 
ability to perform its function, and on disposable income, poverty, or 
any other financial impact for families and children. This commenter 
stated that DHS incorrectly assumed that a family well-being assessment 
must only be issued if a rule negatively impacts family well-being, but 
that the legislative language makes clear that agencies' assessment 
should look at both positive and negative impacts.
    Response: Section 654 of the Treasury and General Government 
Appropriations Act, 1999 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 (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.
    In the NPRM, DHS stated that ``DHS has analyzed this proposed 
regulatory action in accordance with the requirements of section 654 
and determined that this proposed rule does not affect family well-
being, and therefore DHS is not issuing a Family Policymaking 
Assessment.'' \561\ In the NPRM and in this Final Rule, DHS has focused 
on all of the effects of the rule, not just the negative effects, nor 
does DHS misunderstand the requirements applicable to this assessment. 
DHS agrees that not generally considering non-cash benefits in public 
charge inadmissibility determinations may reduce chilling effects for 
low-income individuals enrolling or remaining enrolled in such programs 
and may indirectly support children and families' access to health 
care, nutrition, and housing assistance by excluding those benefits 
from consideration for a public charge inadmissibility determination. 
This final rule also includes a definition of receipt of public 
benefits that clarifies that only public cash assistance for income 
maintenance and long-term institutionalization at government expense 
received by a noncitizen applying for admission or adjustment of status 
will be considered in a public charge inadmissibility determination, 
but not if received by a noncitizen's family members. The final rule 
similarly clarifies that applying for these public benefits on behalf 
of another would not be considered as receiving the public benefit 
unless the noncitizen is also a named recipient.
---------------------------------------------------------------------------

    \561\ 87 FR at 10667 (Feb. 24, 2022).
---------------------------------------------------------------------------

    When issuing the 2019 Final Rule, DHS determined that the 2019 
Final Rule might result in decreased disposable income and increased 
the poverty of certain families and children, including U.S. citizen 
children, and that the rule would likely increase the number of 
noncitizens found inadmissible on the public charge ground. DHS 
ultimately decided that it was justified in issuing the 2019 Final Rule 
notwithstanding the potential financial impact on the family and 
increase in the number of inadmissibility determinations.
    In contrast, the determination reflected in the NPRM that no Family 
Policy Assessment is required was based on the fact that DHS proposed a 
rule that, as it relates to the potential effects on the family, is 
substantively similar to how DHS is currently administering the public 
charge ground of inadmissibility under section 212(a)(4) of the INA, 
consistent with the 1999 Interim Field Guidance. Therefore, DHS 
determined that this rule would not affect family well-being.
    Comment: One commenter disagreed that the proposed rule does not 
affect family well-being due to the documented chilling effects and 
families subsequently choosing to not enroll eligible children into 
public benefits programs.
    Response: DHS acknowledges the documented chilling effects 
described by the commenter. However, the documented chilling effects 
are impacts of previous public charge policies enacted by the now 
vacated 2019 Final Rule. This final rule is similar to the approach 
outlined in the 1999 Interim Field Guidance, which is the basis for 
USCIS' current operations regarding public charge. Relative to the No 
Action Baseline of this final rule, DHS does not believe this new rule 
would have a substantial chilling effect. Therefore, DHS determined 
that this rule will not have a deleterious effect on family well-being.

Q. Out-of-Scope Comments

    Comment: Several commenters provided comments outside the scope of 
this rulemaking. These included support for increasing the capacity of 
the Executive Office for Immigration Review (EOIR). Another commenter 
stated that immigrants who come to the United States have lower 
delinquency and are better behaved than individuals who are raised in 
the United States. One commenter indicated that benefit-granting 
agencies should improve their systems to better detect fraud used to

[[Page 55585]]

obtain benefits. This commenter also indicated that the FPG should be 
adjusted to account for current inflation.
    Response: The comments are outside the scope of the rulemaking.
    Comment: One commenter stated the rule punishes victims of the 
United States' historical economic and immigration policies with 
respect to Mexico, which, according to the commenter, damaged the 
Mexican economy and encouraged Mexicans to leave their country and seek 
assistance in the United States.
    Response: To the extent that the comment seeks changes in U.S. 
policy towards Mexico or an assessment of historical policies, it is 
outside the scope of the rulemaking.
    Comment: One commenter suggested a range of outreach activities to 
educate immigrants and their families about this rulemaking, including 
joint grant initiatives between multiple federal agencies.
    Response: Comments about such implementation activities are outside 
the scope of the rulemaking, but DHS has taken the comment under 
advisement as it relates to post-rule implementation and outreach 
activities.
    Comment: Two commenters suggested allowing immigrants to apply for 
citizenship at the U.S. border, with one commenter proposing the rule 
allow immigrants to file for citizenship as a family group, rather than 
individually, in order to slow the separation of families at the border 
and allow families to enter the United States together. Another 
commenter suggested a program through which noncitizens could obtain 
citizenship through volunteering in communities. Similarly, one 
commenter stated that systemic changes in the immigration system are 
needed and stated that DHS should consider the disadvantages of 
returning to a system created in the 1990s and consider creating a path 
for undocumented immigrants to become full citizens to improve the 
efficiency of the labor market, allow for creation of new businesses, 
and the filling in of less desirable labor positions.
    Response: The comments are outside the scope of the rulemaking.
    Comment: One commenter suggested immigrants be provided easier 
access to jobs that accept non-English speaking workers. Similarly, a 
commenter stated that the solution to allow immigrants to help with the 
economy is to give immigrants access to government-funded job 
opportunities such as community service.
    Response: The commenters' proposals are outside the scope of the 
rulemaking.
    Comment: One commenter questioned why DHS is making immigration 
more difficult when many terrorist plots and attacks in the United 
States are committed by white supremacists and other like-minded 
extremists born in the United States. This commenter also stated that 
the U.S. economy will be negatively impacted if immigrant workers feel 
that their livelihoods are in jeopardy. Another commenter also stated 
that immigration regulations were too strict, and described a family 
circumstance involving a completely different provision of the 
immigration laws.
    Response: To the extent that the comments suggest that DHS should 
avoid enforcing the public charge ground of inadmissibility entirely, 
DHS has addressed them earlier in the preamble. To the extent that the 
comments suggest revising implementation of other provisions of the INA 
or providing a greater sense of security to immigrants in their work, 
they are outside the scope of the rulemaking.
    Comment: One commenter suggested DHS work with the Rehabilitation 
Services Administration to ensure immigrants with disabilities applying 
for admission can access vocational rehabilitation services that will 
help them support themselves.
    Response: While interagency discussions are a part of the internal 
deliberative process associated with the rulemaking, this suggestion is 
outside the scope of this rule.
    Comment: One commenter indicated that any changes made to a public 
charge inadmissibility determination by DHS should be made in an 
identical manner by DOS in the Foreign Affairs Manual. Another 
commenter similarly requested DOS also participate in rulemaking to 
establish a consistent public charge inadmissibility determination 
process and reduce burdens on applicants.
    Response: This rule only pertains to DHS operations, and regulates 
noncitizens who seek admission into the United States as a 
nonimmigrant, or as an immigrant, or who seek adjustment of status.

IV. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    E.O. 12866 and E.O. 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, to the extent 
permitted by law, to proceed only if the benefits justify the costs. 
They also direct agencies to select regulatory approaches that maximize 
net benefits while giving consideration, to the extent appropriate and 
consistent with law, to values that are difficult or impossible to 
quantify, including equity, human dignity, fairness, and distributive 
impacts. In particular, E.O. 13563 emphasizes the importance of not 
only quantifying both costs and benefits, reducing costs, harmonizing 
rules, and promoting flexibility, but also considering equity, 
fairness, distributive impacts, and human dignity.
    The Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) has determined that this final 
rule is an economically significant regulatory action under section 
3(f)(1) of E.O. 12866. Accordingly, OMB has reviewed this regulation.
1. Summary of the Final Rule
    The final rule describes how DHS will determine whether a 
noncitizen is inadmissible because they are likely at any time to 
become a public charge (i.e., likely to become primarily dependent on 
the government for subsistence). The final rule also clarifies the 
types of public benefits that are considered in public charge 
inadmissibility determinations. This rule will limit such consideration 
to public cash assistance for income maintenance and long-term 
institutionalization at government expense.562 563 Public 
cash assistance for income maintenance would include cash assistance 
provided under TANF, SSI, and general assistance. This is the same list 
of public benefits that are considered under the 1999 Interim Field 
Guidance, which served as the operative standard for nearly 20 years 
until the 2019 Final Rule (no longer in effect) was promulgated. This 
rule also defines key terms and codifies a list of categories of 
noncitizens who are statutorily exempt from the public charge ground of 
inadmissibility, or eligible for a waiver.
---------------------------------------------------------------------------

    \562\ See 8 CFR 212.21(a).
    \563\ As noted in the public benefits section above, DHS is 
replacing the term ``institutionalization for long-term care at 
government expense'' with ``long-term institutionalization,'' which 
better describes the specific types of services covered and the 
duration for receiving them. The terms are not meant to be 
substantively different.
---------------------------------------------------------------------------

    The final rule uses a framework similar to the one set forth in the 
1999 Interim Field Guidance, under which officers consider past or 
current receipt of certain public benefits, as well as the statutory 
minimum factors (the noncitizen's age; health; family status; assets, 
resources, and financial status;

[[Page 55586]]

and education and skills) and the Affidavit of Support Under Section 
213A of the INA, where required, as part of a totality of the 
circumstances framework. The final rule maintains the language set 
forth in the 1999 Interim Field Guidance that reiterated more 
specifically the general requirement that every written denial decision 
issued by USCIS based on the public charge ground of inadmissibility 
include a discussion of each of the statutory factors.
    The final rule establishes three exclusions from consideration of 
public benefits received by certain noncitizens. First, the final rule 
clarifies that, in any application for admission or adjustment of 
status in which the public charge ground of inadmissibility applies, 
DHS will not consider any public benefits received by a noncitizen 
during periods in which the noncitizen was present in the United States 
in an immigration category that is exempt from the public charge ground 
of inadmissibility. Second, when making a public charge inadmissibility 
determination under the final rule, DHS also will not consider any 
public benefits that were received by noncitizens who are eligible for 
resettlement assistance, entitlement programs, and other benefits 
available to refugees admitted under section 207 of the INA, 8 U.S.C. 
1157, including services described under section 412(d)(2) of the INA, 
8 U.S.C. 1522(d)(2), provided to an ``unaccompanied alien child'' as 
defined under section 462(g)(2) of the HSA, 6 U.S.C. 279(g)(2). This 
exclusion would only apply to those categories of noncitizens who are 
eligible for all three of the types of support listed (resettlement 
assistance, entitlement programs, and other benefits) typically 
reserved for refugees. Third, applying for a public benefit on one's 
own behalf or on behalf of another would not constitute receipt of 
public benefits by the noncitizen applicant. This definition would make 
clear that the noncitizen's receipt of public benefits solely on behalf 
of another, or the receipt of public benefits by another individual 
(even if the noncitizen assists in the application process), would also 
not constitute receipt of public benefits by the noncitizen.
Summary of Changes From the NPRM to the Final Rule
    In light of public comments, DHS is making several changes from the 
NPRM to the final rule. DHS does not expect these changes will affect 
the population consisting of individuals who are applying for 
adjustment of status using Form I-485 as these changes are additional 
provisions to include a public charge bond process, additional 
definitions, and clarifications pertaining to the statutory minimum 
factors and consideration of receipt of public benefits. The rest of 
this section discusses these changes in detail.
    DHS is adding a provision in this rule that would permit officers 
to consider offering public charge bonds, in its discretion, to 
adjustment of status applicants inadmissible only under section 
212(a)(4) of the INA, 8 U.S.C. 1183.\564\ DHS is including provisions 
in the rule pertaining to public charge bond cancellation and breach 
determination. These provisions will ensure that DHS is exercising its 
discretionary public charge bond authority in the context of adjustment 
of status applications and will ensure that public charge bonds remain 
operationally feasible in such cases. Also, these provisions will 
enable a noncitizen who was found inadmissible on public charge grounds 
to be admitted by posting a public charge bond with DHS. With the 
creation of a form designated by USCIS for the purpose of public charge 
bond and using the Form I-356, Request for Cancellation of Public 
Charge Bond, DHS expects that there will be a cost to bond applicants 
associated with completing the forms. However, DHS expects the 
population of using the public charge bond form designated by USCIS and 
Form I-356 to be de minimis. DHS expects the population of using these 
forms to be de minimis because while the 2019 Final Rule was in effect 
DHS did not receive any filings of the public charge bond form and I-
356 form.
---------------------------------------------------------------------------

    \564\ 8 CFR 213.1.
---------------------------------------------------------------------------

    Following review of public comments, DHS is also modifying 
provisions related to statutory minimum factors (health, family status, 
assets, resources, and financial status, and education and skills) from 
the NPRM.
    DHS will consider the noncitizen's health using the Report of 
Medical Examination and Vaccination record (Form I-693). This report of 
medical examination would normally be in an adjustment of status 
applicant's record because an adjustment applicant is required to 
undergo an immigration medical examination conducted by a USCIS-
designated civil surgeon or the applicant is exempt from the Form I-693 
requirement because they were previously examined by a panel physician 
prior to entering the United States and has a report of medical 
examination completed by a panel physician overseas in their record. 
Since the Form I-693 is already required for filers of Form I-485, 
using the Form I-693 as evidence for the noncitizen's health condition 
does not impose additional direct cost to the public. This change will 
provide direct benefits to the public by reducing uncertainty over what 
DHS will consider as part of the health factor, while minimizing 
burdensome information collection associated with this factor. DHS will 
consider the noncitizen's family status using household size. DHS will 
consider the noncitizen's assets, resources, and financial status using 
household's income, assets, and liabilities (excluding any income from 
public benefits listed in 8 CFR 212.21(b) and income or assets from 
illegal activities or sources such as proceeds from illegal gambling or 
drug sales). DHS will consider the noncitizen's education and skills 
using degrees, certifications, licenses, skills obtained through work 
experience or educational programs, and educational certificates. DHS 
is adding a definition of household to be used in connection with the 
family status and assets, resources, and financial status factors. For 
the changes to provisions addressing these statutory minimum factors to 
identify information relevant to such factors, DHS made changes to Form 
I-485 to effectuate the relevant information collection. In the final 
rule compared to the NPRM, DHS has reduced the estimated increase in 
the time burden for completing the revised Form I-485 from 1.5 hours to 
0.75 hours (thereby reducing the estimated total time burden for 
completing the revised Form I-485 from 7.92 hours to 7.17 hours). Open-
ended questions requiring narrative-style responses that were proposed 
in the information collection instrument (Form I-485) associated with 
the NPRM have been changed to multiple-choice style questions that will 
require less time for an applicant to answer. Therefore, the final rule 
cost estimate has changed since the NPRM cost estimate. DHS estimates 
the annual direct cost of the final rule will be approximately 
$6,435,755, rather than $12,856,152, based on the change in the 
opportunity cost for the I-485.
    Finally, in the final rule, DHS clarified in the regulatory text 
that DHS will not consider the receipt of, or certification or approval 
for future receipt of, public benefits not referenced in 8 CFR 
212.21(b) or (c), such as Supplemental Nutrition Assistance Program 
(SNAP) or other nutrition programs, Children's Health Insurance Program 
(CHIP), Medicaid (other than for long-term use of institutional 
services under section 1905(a) of the Social Security Act), housing 
benefits,

[[Page 55587]]

any benefits related to immunizations or testing for communicable 
diseases, or other supplemental or special-purpose benefits. This 
clarification will reduce uncertainty and confusion for those who make 
decisions on whether to adjust status or to enroll or disenroll in 
public benefit programs.
    This final rule makes important clarifications and changes as 
compared to the 1999 Interim Field Guidance. This rule clarifies DHS's 
approach to consideration of disability and long-term 
institutionalization at government expense; states a bright-line rule 
against considering the receipt of public benefits by an applicant's 
dependents (such as a U.S. citizen child in a mixed-status household); 
and changes the Form I-485 to collect additional information relevant 
to the public charge inadmissibility determination. DHS also added 
streamlined provisions to clarify acceptance, form, and amount of USCIS 
public charge bonds, as well as cancellation of public charge bonds. 
Finally, later in this preamble, in response to public comments, DHS 
further clarifies that primary dependence connotes significant reliance 
on the government for support and means something more than dependence 
that is merely transient or supplementary.
2. Summary of the Costs and Benefits of the Final Rule
    The final rule will result in new costs, benefits, and transfers. 
To provide a full understanding of the impacts of the final rule, DHS 
considers the potential impacts of this final rule relative to two 
baselines, as well the potential impact of a regulatory alternative. 
The No Action Baseline represents a state of the world under the 1999 
Interim Field Guidance, which is the policy currently in effect. The 
second baseline is the Pre-Guidance Baseline, which represents a 
trajectory established before the issuance of the 1999 Interim Field 
Guidance (i.e., a state of the world in which the 1999 Interim Field 
Guidance did not exist). The alternative analysis presented below 
relates to an alternative consistent with the 2019 Final Rule.
    Relative to the No Action Baseline, the primary source of 
quantified new direct costs for the final rule is the increase in the 
time required to complete Form I-485. DHS estimates that the final rule 
will impose additional new direct costs of approximately $6,435,755 
annually to applicants filing Form I-485. In addition, the final rule 
results in an annual savings for a subpopulation of affected 
individuals: T nonimmigrants applying for adjustment of status will no 
longer need to submit Form I-601 to seek a waiver of the public charge 
ground of inadmissibility. DHS estimates the total annual savings for 
this population will be approximately $15,359. DHS estimates that the 
total annual net costs will be approximately $6,420,396.\565\
---------------------------------------------------------------------------

    \565\ Calculations: Total annual net costs ($6,420,396) = Total 
annual costs ($6,435,755)-Total annual savings ($15,359).
---------------------------------------------------------------------------

    Over the first 10 years of implementation, DHS estimates the total 
net costs of the final rule will be approximately $64,203,960 
(undiscounted). In addition, DHS estimates that the 10-year discounted 
total net costs of this final rule will be approximately $54,767,280 at 
a 3-percent discount rate and approximately $45,094,175 at a 7-percent 
discount rate.
    DHS expects the primary benefit of this final rule to be the non-
quantified benefit of increased clarity in the rules governing public 
charge inadmissibility determinations. By codifying into regulations, 
the current practice under the No Action Baseline (the 1999 Interim 
Field Guidance) with some changes, the final rule reduces uncertainty 
and confusion.
    The following two tables provide a more detailed summary of the 
provisions and their impacts relative to the No Action Baseline and 
Pre-Guidance Baseline, respectively.

[[Page 55588]]

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[[Page 55594]]


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[[Page 55595]]


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[[Page 55596]]


    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, the following two tables present the prepared accounting 
statement showing the costs associated with this final rule.\566\
---------------------------------------------------------------------------

    \566\ See OMB, ``Circular A-4'' (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
[GRAPHIC] [TIFF OMITTED] TR09SE22.018


[[Page 55597]]


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[[Page 55598]]


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[[Page 55599]]


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[[Page 55600]]


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[[Page 55601]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.023

3. Background and Purpose of the Rule
    As discussed in the preamble, DHS seeks to administer the public 
charge ground of inadmissibility in a manner that will be clear and 
comprehensible and will lead to fair and consistent adjudications. 
Under the INA, a noncitizen who, at the time of application for a visa, 
admission, or adjustment of status, is deemed likely at any time to 
become a public charge is ineligible for a visa, inadmissible, or 
ineligible for adjustment of status.\567\
---------------------------------------------------------------------------

    \567\ See INA sec. 212(a)(4); 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------

    While the INA does not define public charge, Congress has specified 
that, when determining if a noncitizen is likely at any time to become 
a public charge, immigration officers must, at a minimum, consider 
certain factors, namely the noncitizen's age; health; and family 
status; assets, resources, and financial status; and education and 
skills.\568\ Additionally, DHS may consider any affidavit of support 
submitted under section 213A of the INA, 8 U.S.C. 1183a, on behalf of 
the applicant when determining whether the applicant may become a 
public charge.\569\ For most family-based and some employment-based 
immigrant visas or adjustment of status applications, applicants must 
have a sufficient affidavit of support or they will be found 
inadmissible as likely to become a public charge.\570\
---------------------------------------------------------------------------

    \568\ See INA sec. 212(a)(4)(B)(i); 8 U.S.C. 1182(a)(4)(B)(i).
    \569\ See INA sec. 212(a)(4)(B)(ii). When required, the 
applicant must submit Form I-864, Affidavit of Support Under Section 
213A of the INA.
    \570\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D).
---------------------------------------------------------------------------

    The estimation of costs and benefits for this final rule focuses on 
individuals applying for adjustment of status with USCIS using Form I-
485. Such individuals would be applying from within the United States, 
rather than applying for a visa from a DOS consular officer at a U.S. 
embassy or consulate abroad. Moreover, DHS notes that CBP may incur 
costs pursuant to this final rule, but it is unable to determine this 
potential cost at this time due to data limitations. DHS is not able to 
quantify the number of noncitizens who would possibly be deemed 
inadmissible at or between the ports of entry based on a public charge 
determination pursuant to this final rule. DHS is qualitatively 
acknowledging this potential impact.
4. Population
    This final rule will affect individuals who are present in the 
United States who are seeking adjustment of status to that of a lawful 
permanent resident. By statute, an individual who is seeking adjustment 
of status and is at any time likely to become a public charge is 
ineligible for such adjustment, unless the individual is exempt from or 
has received a waiver of the public charge ground of 
inadmissibility.\571\ The grounds of inadmissibility set forth in 
section 212 of the INA, 8 U.S.C. 1182, also apply when certain 
noncitizens

[[Page 55602]]

seek admission to the United States, whether for a temporary purpose or 
permanently. However, the public charge inadmissibility ground 
(including ineligibility for adjustment of status) does not apply to 
all applicants since there are various categories of applicants that 
Congress expressly exempted from the public charge inadmissibility 
ground. Within USCIS, this final rule will affect individuals who apply 
for adjustment of status because these individuals would be required to 
be reviewed for a determination of inadmissibility based on public 
charge grounds as long as the individual is not in a category of 
applicant that is exempt from the public charge ground of 
inadmissibility. DHS notes that the population estimates are based on 
noncitizens present in the United States who are applying for 
adjustment of status and, due to data limitations, does not include 
individuals seeking admission at or between a port of entry. These 
limitations could result in underestimation of the cost, benefit, or 
transfer payments of the final rule. However, DHS is unable to quantify 
the magnitude.
---------------------------------------------------------------------------

    \571\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------

a. Population Seeking Adjustment of Status
    The population affected by this rule consists of individuals who 
are applying for adjustment of status using Form I-485. Under the final 
rule, a subset of these individuals (i.e., those who are not exempt 
from the public charge ground of inadmissibility) will undergo review 
for determination of inadmissibility based on public charge grounds, 
unless an individual is in a category of applicant that is exempt from 
the public charge ground of inadmissibility. The following table shows 
the total number of Form I-485 applications received for FY 2014 to FY 
2021. DHS selects the period FY 2014-FY 2018 to project the number of 
applications to be filed for the next 10 years for the reasons 
discussed below. Between FY 2014 and FY 2018, the population of 
individuals applying for adjustment of status ranged from a low of 
637,138 in FY 2014 to a high of 763,192 in FY 2017. In addition, the 
average population of individuals who applied for adjustment of status 
over this period was 690,837.
[GRAPHIC] [TIFF OMITTED] TR09SE22.024


[[Page 55603]]


    For this analysis, DHS projects the affected population for the 10-
year period from the beginning of FY 2022. DHS bases its population 
projection on the historical number of Form I-485 applications received 
over the period FY 2014-FY 2018.\572\
---------------------------------------------------------------------------

    \572\ USCIS excluded data from FY 2019-FY 2021 due to data 
anomalies similar to trends that affected other form types during 
this timeframe (such as Form I-765, Form N-400, Form I-130, and Form 
I-131). Generally, the trend for these forms is a peak in receipts 
in FY 2016-2018, followed by a decrease in FY 2019, a sharp 
reduction at the beginning of the pandemic, and a recovery to 
previous levels since that time. As shown in the table, the 
population of adjustment of status applicants in FY 2019 and FY 2020 
decreased significantly, followed by an increase beginning at the 
end of FY 2020 and beginning of FY 2021. By far the most significant 
increase in FY 2021 occurred in October 2020, during which receipts 
reached 184,779, as compared to 86,911 in October 2019, and 55,483 
in October 2018. The level of receipts in October 2020 was 
substantially higher than the level of receipts for any other month 
since FY 2014. This increase in receipts appears to have been driven 
in part by the publication of the October 2020 Visa Bulletin by DOS, 
which allowed many noncitizens to apply for adjustment of status in 
the employment-based categories. Source: USCIS analysis of data 
provided by USCIS, Policy and Research Division (Jan. 10, 2022); 
USCIS analysis of data provided by USCIS, Office of Performance and 
Quality (Aug. 15, 2022).
---------------------------------------------------------------------------

i. Exemptions From Determination of Inadmissibility Based on Public 
Charge Ground
    There are exemptions and waivers for certain categories of 
noncitizens that are not subject to a determination of inadmissibility 
based on the public charge ground. The following table shows the 
classes of applicants for admission, adjustment of status, or registry 
according to statute or regulation that are exempt from inadmissibility 
based on the public charge ground.

[[Page 55604]]

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[[Page 55605]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.026


[[Page 55606]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.027

    To estimate the annual total population of individuals seeking to 
adjust status who would be subject to review for inadmissibility based 
on the public charge ground, DHS examined the annual total population 
of

[[Page 55607]]

individuals who applied for adjustment of status for FY 2014-FY 2018. 
As noted above, the most recent fiscal years, FY 2019-FY 2021, are not 
considered for this analysis because they may include data anomalies.
    For each fiscal year, DHS removed individuals from the population 
whose category of applicants is exempt from review for inadmissibility 
on the public charge ground, as shown in Table 9 below, leaving the 
total population that would be subject to such review. Further 
discussion of these exempt categories can be found in the preamble.
    Table 10 shows the total estimated population of individuals 
seeking to adjust status under a category of applicant that is exempt 
from review for inadmissibility on the public charge ground for FY 
2014-FY 2018 as well as the total estimated population that would be 
subject to public charge review.\573\ In FY 2018, for example, the 
total number of persons who applied for adjustment of status across 
various classes of admission was 704,407. After removing individuals 
from this population whose category of applicant is exempt from review 
for inadmissibility on the public charge ground, DHS estimates the 
total population of adjustment of status applicants in FY 2018 who 
would be subject to review for inadmissibility on the public charge 
ground is 524,228.\574\
---------------------------------------------------------------------------

    \573\ Calculation of total estimated population that would be 
subject to public charge review: (Total Population Applying for 
Adjustment of Status) - (Total Population Seeking Adjustment of 
Status that is Exempt from Public Charge Review for Inadmissibility) 
= Total Population Subject to Public Charge Review for 
Inadmissibility.
    \574\ Calculation of total population subject to public charge 
review for inadmissibility for fiscal year 2018: 704,407-180,179 = 
524,228.
    \575\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D).
    \576\ See INA secs. 212(a)(4)(C) and (D), 213A(a), 8 U.S.C. 
1182(a)(4)(C) and (D), 1183a(a).
[GRAPHIC] [TIFF OMITTED] TR09SE22.028

    DHS estimates the projected annual average total population of 
adjustment of status applicants that would be subject to review for 
inadmissibility on the public charge ground is 501,520. This estimate 
is based on the 5-year average of the annual estimated total population 
subject to review for inadmissibility on the public charge ground from 
FY 2014-FY 2018. Over this 5-year period, the estimated population of 
individuals who applied for adjustment of status subject to review for 
inadmissibility on the public charge ground ranged from a low of 
459,131 in FY 2014 to a high of 541,563 in FY 2017. DHS notes that the 
population estimates are based on noncitizens present in the United 
States who are applying for adjustment of status, rather than 
noncitizens who apply for an immigrant visa through consular processing 
at a U.S. embassy or consulate abroad.
ii. Requirement To Submit an Affidavit of Support Under Section 213A of 
the INA
    Certain noncitizens seeking immigrant visas or adjustment of status 
are required to submit an Affidavit of Support Under Section 213A of 
the INA executed by a sponsor on their behalf. This requirement applies 
to most family-sponsored immigrants and some employment-based 
immigrants.\575\ Even within the family-sponsored and employment-based 
classes of admission, some noncitizens are not required to submit an 
Affidavit of Support Under Section 213A executed by a sponsor on their 
behalf. A failure to meet the requirement for a sufficient Affidavit of 
Support Under Section 213A of the INA will result in the noncitizen 
being found inadmissible under the public charge ground of 
inadmissibility without review of the statutory minimum factors 
discussed above.\576\ When a sponsor executes an Affidavit of Support 
Under Section 213A of the INA on behalf of an applicant, they establish 
a legally enforceable contract between the sponsor and the U.S. 
Government with an obligation to financially support the applicant and 
reimburse benefit granting agencies if the sponsored

[[Page 55608]]

immigrant receives certain benefits during the period of 
enforceability.\577\
---------------------------------------------------------------------------

    \577\ See INA sec. 213A(a) and (b), 8 U.S.C. 1183a(a) and (b).
---------------------------------------------------------------------------

    Table 11 shows the estimated total population of individuals 
seeking adjustment of status who were required or not required to have 
a sponsor execute an Affidavit of Support Under Section 213A of the INA 
on their behalf over the period FY 2014-FY 2018. The estimated annual 
average population of individuals seeking to adjust status who were 
required to have a sponsor submit an affidavit of support on their 
behalf over the 5-year period was 297,998. Over this 5-year period, the 
estimated total population of individuals required to submit an 
affidavit of support from a sponsor ranged from a low of 268,091 in FY 
2014 to a high of 329,011 in FY 2017.
[GRAPHIC] [TIFF OMITTED] TR09SE22.029

5. Cost-Benefit Analysis
    DHS expects this final rule to produce costs and benefits 
associated with the procedures for administering the public charge 
ground of inadmissibility.
    For this final rule, DHS generally uses the effective minimum wage 
plus weighted average benefits of $17.11 per hour ($11.80 effective 
minimum wage base plus $5.31 weighted average benefits) as a reasonable 
proxy of the opportunity cost of time for individuals who are applying 
for adjustment of status.\578\ DHS also uses $17.11 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, assign valuation in deciding how to allocate 
their time, or both. This analysis uses the effective minimum wage rate 
since approximately 80 percent of the total number of individuals who 
applied for lawful permanent resident status were in a category of 
applicant under the family-sponsored categories (including immediate 
relatives of U.S. citizens) and other non-employment-based 
classifications such as diversity, refugees and asylees, and 
parolees.\579\ Even when an individual is not working for wages, their 
time has value. For example, if someone performs childcare, housework, 
or other activities without paid compensation, that time still has 
value. Due to the wide variety of non-paid activities an individual 
could pursue, it is difficult to estimate the value of that time. DHS 
requested comments on this issue and received one comment. The 
commenter suggested that DHS consider rates consistent with those paid 
for similar work in the candidate's relevant labor market. However, the 
commenter did not provide any more detailed suggestions on such rates. 
DHS elected to use the effective minimum wage rate for this time as a 
general measure since it is difficult to estimate the value of the time 
associated with the wide variety of activities an individual could 
pursue.
---------------------------------------------------------------------------

    \578\ See Ernie Tedeschi, ``Americans Are Seeing Highest Minimum 
Wage in History (Without Federal Help),'' New York Times (Apr. 24, 
2019), https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html (last visited Aug. 17, 
2022).
    \579\ USCIS analysis of data provided by USCIS, Policy and 
Research Division (Dec. 2021).
---------------------------------------------------------------------------

    The effective minimum wage of $11.80 is an unweighted hourly wage 
that does not account for worker benefits. DHS accounts for worker 
benefits when estimating the opportunity cost of time by calculating a 
benefits-to-wage multiplier using the most recent Department of Labor, 
Bureau of Labor Statistics (BLS) report detailing the average employer 
costs for employee compensation for all civilian workers in major 
occupational groups and industries. DHS estimates that the benefits-to-
wage multiplier is 1.45, which incorporates employee wages and salaries 
and the full cost of benefits, such as paid leave, insurance, and 
retirement.\580\ DHS notes that there is no requirement that an 
individual be employed in order to file Form I-485 and many applicants 
may not be employed. Therefore, in this final rule, DHS calculates the 
total rate of compensation for individuals applying for adjustment of 
status as $17.11 per hour in this final rule using the benefits-to-wage 
multiplier, where the mean

[[Page 55609]]

hourly wage is $11.80 per hour worked and average benefits are $5.31 
per hour.\581\
---------------------------------------------------------------------------

    \580\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
= $39.55/$27.35 = 1.446 = 1.45 (rounded). See BLS, Economic News 
Release, ``Employer Cost for Employee Compensation,'' Table 1. 
Employer costs per hour worked for employee compensation and costs 
as a percent of total compensation: Civilian workers, by major 
occupational and industry group, (September 2001) https://www.bls.gov/news.release/archives/ecec_09162021.pdf (viewed Aug. 17, 
2022).
    \581\ The calculation of the weighted Federal minimum hourly 
wage for applicants: $11.80 per hour * 1.45 benefits-to-wage 
multiplier = $17.11 (rounded) per hour.
---------------------------------------------------------------------------

a. Establishing the Baselines
    DHS discusses the potential impacts of this final rule relative to 
two baselines. The first baseline is a No Action Baseline that 
represents a state of the world in which DHS is implementing the public 
charge ground of inadmissibility consistent with the 1999 Interim Field 
Guidance.
    The second baseline is a Pre-Guidance Baseline, which represents a 
state of the world in which the 1999 NPRM,\582\ the 1999 Interim Field 
Guidance,\583\ and the 2019 Final Rule were not enacted.
---------------------------------------------------------------------------

    \582\ See ``Inadmissibility and Deportability on Public Charge 
Grounds,'' 64 FR 28676 (May 26, 1999).
    \583\ 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 
is dated ``March 26, 1999,'' even though the guidance was signed May 
20, 1999, became effective May 21, 1999, and was published in the 
Federal Register on May 26, 1999.
---------------------------------------------------------------------------

b. No Action Baseline
    The No Action Baseline represents the current state of the world in 
which DHS applies the public charge ground of inadmissibility 
consistent with the 1999 Interim Field Guidance. For this final rule, 
DHS estimates the No Action Baseline according to current operations 
and requirements and compares the estimated costs and benefits of the 
provisions set forth in this final rule to this baseline. DHS notes 
that costs detailed as part of the No Action Baseline include all 
current costs associated with completing and filing Form I-485, 
including required biometrics collection and medical examination (Form 
I-693), as well as any affidavits of support (Forms I-864, I-864A, I-
864EZ, and I-864W) or requested fee waivers (Form I-912). These costs 
are part of the baseline costs and are not attributable to the rule.
    As noted previously in this analysis, DHS estimates the projected 
average annual total population of adjustment of status applicants that 
would be subject to review for inadmissibility on the public charge 
ground is 501,520. This estimate is based on the 5-year average of the 
annual estimated total population subject to review for inadmissibility 
on the public charge ground from FY 2014-FY 2018. Table 12 shows the 
estimated population and annual costs of filing for adjustment of 
status for the final rule. These costs primarily result from the 
process of applying for adjustment of status, including filing Form I-
485 and Form I-693 as well as filing an affidavit of support or Form I-
912 or both, if necessary.

[[Page 55610]]

[GRAPHIC] [TIFF OMITTED] TR09SE22.030

i. Forms Relevant to This Final Rule
Form I-485, Application To Register Permanent Residence or Adjust 
Status
    The basis of the quantitative costs estimated for this final rule 
is the cost of filing for adjustment of status using Form I-485, the 
opportunity cost of time for completing this form, any other required 
forms, and the cost for any other incidental costs (e.g., travel costs) 
an individual must bear that are required in the filing process. DHS 
reiterates that costs examined in this section are not additional costs 
that the final rule will impose; rather, they are costs applicants 
incur as part of the current application process to adjust status. The 
current filing fee for Form I-485 is $1,140. The fee is set at a level 
to recover the processing costs to DHS. As previously discussed in the 
population section, the estimated average annual population of 
individuals who apply for adjustment of status using Form I-485 is 
501,520. Therefore, DHS estimates that the annual filing fee costs 
associated for Form I-485 is approximately $571,732,800.\584\
---------------------------------------------------------------------------

    \584\ Calculation: Form I-485 filing fee ($1,140) * Estimated 
annual population filing Form I-485 (501,520) = $571,732,800 annual 
cost for filing Form I-485.
---------------------------------------------------------------------------

    DHS estimates the time burden of completing Form I-485 is 6.42 
hours per response, including the time for reviewing instructions, 
gathering the required documentation and information, completing the 
application, preparing statements, attaching necessary documentation, 
and submitting the application.\585\ Using the total rate of 
compensation for minimum wage of $17.11 per hour, DHS estimates the 
opportunity cost of time for completing and submitting Form I-485 will 
be $109.85 per applicant.\586\ Therefore, using the total population 
estimate of 501,520 annual filings for Form I-485, DHS estimates the 
total opportunity cost of time associated with completing Form I-485 is 
approximately $55,091,972 annually.\587\
---------------------------------------------------------------------------

    \585\ USCIS, ``Instructions for Application to Register 
Permanent Residence or Adjust Status (Form I-485),'' OMB No. 1615-
0023 (expires Mar. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf (last visited Aug. 17, 2022).
    \586\ Calculation for opportunity cost of time for filing Form 
I-485: ($17.11 per hour * 6.42 hours) = $109.85 (rounded) per 
applicant.
    \587\ Calculation: Form I-485 estimated opportunity cost of time 
($109.85) * Estimated annual population filing Form I-485 (501,520) 
= $55,091,972 (rounded) annual opportunity cost of time for filing 
Form I-485.
---------------------------------------------------------------------------

    USCIS requires applicants who file Form I-485 to submit biometric 
information (fingerprints and signature) by attending a biometrics 
services appointment at a designated USCIS Application Support Center 
(ASC). The biometrics services processing fee is $85.00 per applicant. 
Therefore, DHS estimates that the annual cost associated with 
biometrics services processing for the estimated average annual 
population of 501,520 individuals applying for

[[Page 55611]]

adjustment of status is approximately $42,629,200.\588\
---------------------------------------------------------------------------

    \588\ Calculation: Biometrics services processing fee ($85) * 
Estimated annual population filing Form I-485 (501,520) = 
$42,629,200 annual cost for associated with Form I-485 biometrics 
services processing.
---------------------------------------------------------------------------

    In addition to the biometrics services fee, the applicant will 
incur the costs to comply with the biometrics submission requirement as 
well as the opportunity cost of time for traveling to an ASC, the 
mileage cost of traveling to an ASC, and the opportunity cost of time 
for submitting their biometrics. While travel times and distances vary, 
DHS estimates that an applicant's average roundtrip distance to an ASC 
is 50 miles and takes 2.5 hours on average to complete the trip.\589\ 
Furthermore, DHS estimates that an applicant waits an average of 1.17 
hours for service and to have their biometrics collected at an 
ASC,\590\ adding up to a total biometrics-related time burden of 3.67 
hours. Using the total rate of compensation of the effective minimum 
wage of $17.11 per hour, DHS estimates the opportunity cost of time for 
completing the biometrics collection requirements for Form I-485 is 
$62.79 per applicant.\591\ Therefore, using the total population 
estimate of 501,520 annual filings for Form I-485, DHS estimates the 
total opportunity cost of time associated with completing the 
biometrics collection requirements for Form I-485 is approximately 
$31,490,441 annually.\592\
---------------------------------------------------------------------------

    \589\ See ``Employment Authorization for Certain H-4 Dependent 
Spouses,'' 80 FR 10284 (Feb. 25, 2015); and ``Provisional and 
Unlawful Presence Waivers of Inadmissibility for Certain Immediate 
Relatives,'' 78 FR 536, 572 (Jan. 3, 2013).
    \590\ Source for biometric time burden estimate: USCIS, 
``Instructions for Application to Register Permanent Residence or 
Adjust Status (Form I-485),'' OMB No. 1615-0023 (expires Mar. 31, 
2023), https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf (last visited Aug. 17, 2022).
    \591\ Calculation for opportunity cost of time to comply with 
biometrics submission for Form I-485: ($17.11 per hour * 3.67 hours) 
= $62.79 (rounded) per applicant.
    \592\ Calculation: Estimated opportunity cost of time to comply 
with biometrics submission for Form I-485 ($62.79) * Estimated 
annual population filing Form I-485 (501,520) = $31,490,441 
(rounded) annual opportunity cost of time for filing Form I-485.
---------------------------------------------------------------------------

    In addition to the opportunity cost of providing biometrics, 
applicants will incur travel costs related to biometrics collection. 
The cost of travel related to biometrics collection is approximately 
$29.25 per trip, based on the estimated average 50-mile roundtrip 
distance to an ASC and the General Services Administration's (GSA) 
travel rate of $0.585 per mile.\593\ DHS assumes that each applicant 
will travel independently to an ASC to submit their biometrics, meaning 
that this rule will impose a travel cost on each of these applicants. 
Therefore, DHS estimates that the total annual cost associated with 
travel related to biometrics collection for the estimated average 
annual population of 501,520 individuals applying for adjustment of 
status is approximately $14,669,460.\594\
---------------------------------------------------------------------------

    \593\ See U.S. General Services Administration, ``Privately 
Owned Vehicle (POV) Mileage Rates (Archived),'' Previous automobile 
rates (January 1, 2022) https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived (last visited Aug. 17, 2022).
    \594\ Calculation: (Biometrics collection travel costs) * 
(Estimated annual population filing Form I-485) = $29.25 * 501,520 = 
$14,669,460 annual travel costs related to biometrics collection for 
Form I-485.
---------------------------------------------------------------------------

    In sum, DHS estimates the total current annual cost for filing Form 
I-485 is $715,613,873, which includes Form I-485 filing fees, 
biometrics services fees, opportunity cost of time for completing Form 
I-485 and submitting biometrics information, and travel cost associated 
with biometrics collection.\595\ DHS notes that a medical examination 
is generally required as part of the application process to adjust 
status. Costs associated with the medical examination are detailed in 
the next section. Moreover, costs associated with submitting an 
affidavit of support and requesting a fee waiver are also detailed in 
subsequent sections since such costs are not required for every 
individual applying for an adjustment of status.
---------------------------------------------------------------------------

    \595\ Calculation: $571,732,800 (Annual filing fees for Form I-
485) + $55,091,972 (Opportunity cost of time for filing Form I-485) 
+ $42,629,200 (Biometrics services fees) + $31,490,441 (Opportunity 
cost of time for biometrics collection requirements) + $14,669,460 
(Travel costs for biometrics collection) = $715,613,873 total 
current annual cost for filing Form I-485.
---------------------------------------------------------------------------

Form I-693, Report of Medical Examination and Vaccination Record
    USCIS requires most applicants who file Form I-485 seeking 
adjustment of status to submit Form I-693 as completed by a USCIS-
designated civil surgeon. Form I-693 is used to report results of an 
immigration medical examination to USCIS. For this analysis, DHS 
assumes that all individuals who apply for adjustment of status using 
Form I-485 will also submit Form I-693. DHS reiterates that costs 
examined in this section are not additional costs that the final rule 
will impose, but costs that applicants currently incur as part of the 
application process to adjust status. Form I-693 is required for 
adjustment of status applicants to establish that they are not 
inadmissible to the United States on health-related grounds. While 
there is no filing fee associated with Form I-693, the applicant is 
responsible for paying all costs of the immigration medical 
examination, including the cost of any follow-up tests or treatment 
that is required, and must make payments directly to the civil surgeon 
or other health care provider. In addition, applicants bear the 
opportunity cost of time for completing the applicant portions of Form 
I-693, as well as sitting for the immigration medical exam and the time 
waiting to be examined.
    USCIS does not regulate the fees charged by civil surgeons for the 
completion of an immigration medical examination. In addition, 
immigration medical examination fees vary widely by civil surgeon, from 
as little as $20 to as much as $1,000 per applicant (including 
vaccinations, additional medical evaluations, and testing that may be 
required based on the medical conditions of the applicant).\596\ DHS 
estimates that the average cost for these activities is $493.75 and 
that all applicants will incur this cost.\597\ Since DHS assumes that 
all applicants who apply for adjustment of status using Form I-485 must 
also submit Form I-693, DHS estimates that based on the estimated 
average annual population of 501,520 the annual cost associated with 
filing Form I-693 is approximately $247,625,500.\598\
---------------------------------------------------------------------------

    \596\ Source for immigration medical examination cost range: 
Paperwork Reduction Act (PRA) Report of Medical Examination and 
Vaccination Record (Form I-693) (OMB control number 1615-0033). The 
PRA Supporting Statement can be found at Reginfo.gov, ICR Documents, 
I693-009EMG Supporting Statement, Question 13, (Sept. 7, 2021) 
https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202108-1615-004 (last visited Aug. 17, 2022).
    \597\ Source for immigration medical examination cost estimate: 
Paperwork Reduction Act (PRA) Report of Medical Examination and 
Vaccination Record (Form I-693) (OMB control number 1615-0033). The 
PRA Supporting Statement can be found at Reginfo.gov, ICR Documents, 
I693-009EMG Supporting Statement, Question 13, (Sept. 7, 2021) 
https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202108-1615-004 (last visited Aug. 17, 2022).
    \598\ Calculation: (Estimated immigration medical examination 
cost for Form I-693) * (Estimated annual population filing Form I-
485) = $493.75 * 501,520 = $247,625,500 annual estimated medical 
exam costs for Form I-693.
---------------------------------------------------------------------------

    DHS estimates the time burden associated with filing Form I-693 is 
2.5 hours per applicant, which includes understanding and completing 
the form, setting an appointment with a civil surgeon for a medical 
exam, sitting for the medical exam, learning about and understanding 
the results of medical tests, allowing the civil surgeon to report the 
results of the medical exam on the form, and submitting the medical

[[Page 55612]]

exam report to USCIS.\599\ DHS estimates the opportunity cost of time 
for completing and submitting Form I-693 is $42.78 per applicant based 
on the total rate of compensation of minimum wage of $17.11 per 
hour.\600\ Therefore, using the total population estimate of 501,520 
annual filings for Form I-485, DHS estimates the total opportunity cost 
of time associated with completing and submitting Form I-693 is 
approximately $21,455,026 annually.\601\
---------------------------------------------------------------------------

    \599\ Source for immigration medical examination time burden 
estimate: USCIS, ``Instructions for Report of Medical Examination 
and Vaccination Record (Form I-693),'' OMB No. 1615-0033 (expires 
Mar. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-693instr.pdf (last visited Aug. 17, 2022).
    \600\ Calculation for immigration medical examination 
opportunity cost of time: ($17.11 per hour * 2.5 hours) = $42.78 per 
applicant.
    \601\ Calculation: (Estimated immigration medical examination 
opportunity cost of time for Form I-693) * (Estimated annual 
population filing Form I-485) = $42.78 * 501,520 = $21,455,026 
(rounded) annual opportunity cost of time for filing Form I-485.
---------------------------------------------------------------------------

    In sum, DHS estimates the total current annual cost for filing Form 
I-693 is $260,805,446, including medical exam costs, the opportunity 
cost of time for completing Form I-693, and cost of postage to mail the 
Form I-693 package to USCIS.\602\
---------------------------------------------------------------------------

    \602\ Calculation: $247,625,500 (Medical exam costs) + 
$21,455,026 (Opportunity cost of time for Form I-693) = $269,080,526 
total current annual cost for filing Form I-693.
---------------------------------------------------------------------------

Form I-912, Request for Fee Waiver
    Some applicants seeking an adjustment of status may be eligible for 
a fee waiver when filing Form I-485. An applicant who is unable to pay 
the filing fees or biometric services fees for an application or 
petition may be eligible for a fee waiver by filing Form I-912. If an 
applicant's Form I-912 is approved, USCIS, as a component of DHS, will 
waive both the filing fee and biometric services fee. Therefore, DHS 
assumes for the purposes of this economic analysis that the filing fees 
and biometric services fees required for Form I-485 are waived if an 
approved Form I-912 accompanies the application. Filing Form I-912 is 
not required for applications and petitions that do not have a filing 
fee. DHS also notes that costs examined in this section are not 
additional costs that will be imposed by the final rule but costs that 
applicants currently could incur as part of the application process to 
adjust status.
    Table 13 shows the estimated population of individuals that 
requested a fee waiver (Form I-912), based on receipts, when applying 
for adjustment of status in FY 2014-FY 2018, as well as the number of 
requests that were approved or denied each fiscal year. During this 
period, the number of individuals who requested a fee waiver when 
applying for adjustment of status ranged from a low of 49,292 in FY 
2014 to a high of 95,476 in FY 2017. In addition, the estimated average 
population of individuals applying to adjust status who requested a fee 
waiver for Form I-485 over the 5-year period FY 2014-FY 2018 was 
69,194. DHS estimates that 69,194 is the average annual projected 
population of individuals who will request a fee waiver using Form I-
912 when filing Form I-485 to apply for an adjustment of status.\603\
---------------------------------------------------------------------------

    \603\ DHS notes that the estimated population of individuals who 
would request a fee waiver for filing Form I-485 includes all visa 
classifications for those applying for adjustment of status. DHS is 
unable to determine the number of fee waiver requests for filing 
Form I-485 that are associated with specific visa classifications 
that are subject to public charge review.
[GRAPHIC] [TIFF OMITTED] TR09SE22.031

    To provide a reasonable proxy of time valuation for applicants, as 
described previously, DHS assumes that applicants requesting a fee 
waiver for Form I-485 earn the total rate of compensation for 
individuals applying for adjustment of status as $17.11 per hour, where 
the value of $10.51 per hour represents the effective minimum

[[Page 55613]]

wage with an upward adjustment for benefits.
    DHS estimates the time burden associated with filing Form I-912 is 
1 hour and 10 minutes per applicant (1.17 hours), including the time 
for reviewing instructions, gathering the required documentation and 
information, completing the request, preparing statements, attaching 
necessary documentation, and submitting the request.\604\ Therefore, 
using $17.11 per hour as the total rate of compensation, DHS estimates 
the opportunity cost of time for completing and submitting Form I-912 
is $20.02 per applicant.\605\ Using the total population estimate of 
69,194 requests for a fee waiver for Form I-485, DHS estimates the 
total opportunity cost of time associated with completing and 
submitting Form I-912 is approximately $1,385,264 annually.\606\
---------------------------------------------------------------------------

    \604\ Source for fee waiver time burden estimate: USCIS, 
``Instructions for Fee Waiver Request (Form I-912),'' OMB No. 1615-
0116 (expires Sept. 30, 2024), https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf (last visited Aug. 17, 2022).
    \605\ Calculation for fee waiver opportunity cost of time: 
($17.11 per hour * 1.17 hours) = $20.02 (rounded).
    \606\ Calculation: (Estimated opportunity cost of time for Form 
I-912) * (Estimated annual population of approved Form I-912) = 
$20.02 * 69,194 = $1,385,264 (rounded) annual opportunity cost of 
time for filing Form I-912 that are approved.
---------------------------------------------------------------------------

Form I-864, Affidavit of Support Under Section 213A of the INA, and 
Related Forms
    As previously discussed, submitting a Form I-864 is required for 
most family-based immigrants and some employment-based immigrants to 
show that they have adequate means of financial support and are not 
likely to become a public charge. Additionally, Form I-864 can include 
Form I-864A, which may be filed when a sponsor's income and assets do 
not meet the income requirements of Form I-864 and the qualifying 
household member chooses to combine their resources with the sponsor's 
income, assets, or both to meet those requirements. Some sponsors for 
applicants filing applications for adjustment of status may be able to 
execute Form I-864EZ rather than Form I-864, provided certain criteria 
are met. Moreover, certain classes of immigrants currently are exempt 
from the requirement to file Form I-864 or Form I-864EZ and therefore 
must file Form I-864W, Request for Exemption for Intending Immigrant's 
Affidavit of Support.
    There is no filing fee associated with filing Form I-864 with 
USCIS. However, DHS estimates the time burden associated with a sponsor 
executing Form I-864 is 6 hours per adjustment applicant, including the 
time for reviewing instructions, gathering the required documentation 
and information, completing the affidavit, preparing statements, 
attaching necessary documentation, and submitting the Form I-864.\607\
---------------------------------------------------------------------------

    \607\ Source for Form I-864 time burden estimate: USCIS, 
``Instructions for Affidavit of Support Under Section 213A of the 
INA (Form I-864),'' OMB No. 1615-0075 (expires Dec. 31, 2023), 
https://www.uscis.gov/sites/default/files/document/forms/i-864instr.pdf (last visited Aug. 17, 2022).
---------------------------------------------------------------------------

    To estimate the opportunity cost of time associated with filings of 
I-864, this analysis uses $39.55 per hour, the total compensation 
amount including costs for wages and salaries and benefits from the BLS 
report on Employer Costs for Employee Compensation detailing the 
average employer costs for employee compensation for all civilian 
workers in major occupational groups and industries.\608\ DHS uses this 
wage rate because DHS expects that sponsors who file affidavits of 
support have adequate means of financial support and are likely to be 
employed.
---------------------------------------------------------------------------

    \608\ See BLS, Economic News Release, ``Employer Cost for 
Employee Compensation,'' Table 1. Employer costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
Civilian workers, by major occupational and industry group (Sept. 
16, 2021) https://www.bls.gov/news.release/archives/ecec_12162021.pdf (last visited Aug. 17, 2021).
---------------------------------------------------------------------------

    Using the average total rate of compensation of $39.55 per hour, 
DHS estimates the opportunity cost of time for completing and 
submitting Form I-864 will be $237.30 per petitioner.\609\ DHS assumes 
that the average rate of total compensation used to calculate the 
opportunity cost of time for Form I-864 is appropriate since the 
sponsor of an immigrant, who is agreeing to provide financial and 
material support, is instructed to complete and submit the form. Using 
the estimated annual total population of 297,998 individuals seeking to 
adjust status who are required to submit an Affidavit of Support Under 
Section 213A of the INA using Form I-864, DHS estimates the opportunity 
cost of time associated with completing and submitting Form I-864 
$70,714,925 annually.\610\ DHS estimates this amount as the total 
current annual cost for filing Form I-864, as required when applying to 
adjust status.
---------------------------------------------------------------------------

    \609\ Calculation for opportunity cost of time for completing 
and submitting Form I-864, Affidavit of Support Under Section 213A 
of the INA: ($39.55 per hour * 6.0 hours) = $237.30 per applicant.
    \610\ Calculation: (Form I-864 estimated opportunity cost of 
time) * (Estimated annual population filing Form I-864) = $237.30 * 
297,998 = $70,714,925 (rounded) total annual opportunity cost of 
time for filing Form I-864.
---------------------------------------------------------------------------

    There is also no filing fee associated with filing Form I-864A with 
USCIS. However, DHS estimates the time burden associated with filing 
Form I-864A is 1 hour and 45 minutes (1.75 hours) per petitioner, 
including the time for reviewing instructions, gathering the required 
documentation and information, completing the contract, preparing 
statements, attaching necessary documentation, and submitting the 
contract.\611\ Therefore, using the average total rate of compensation 
of $39.55 per hour, DHS estimates the opportunity cost of time for 
completing and submitting Form I-864A will be $69.21 per 
petitioner.\612\ DHS assumes the average total rate of compensation 
used for calculating the opportunity cost of time for Form I-864 since 
both the sponsor and another household member agree to provide 
financial support to an immigrant seeking to adjust status. However, 
the household member also may be the intending immigrant. While Form I-
864A must be filed with Form I-864, DHS notes that it is unable to 
determine the number of filings of Form I-864A since not all 
individuals filing I-864 need to file Form I-864A with a household 
member.
---------------------------------------------------------------------------

    \611\ Source for I-864A time burden estimate: USCIS, 
``Instructions for Contract Between Sponsor and Household Member 
(Form I-864A),'' OMB No. 1615-0075 (expires Dec. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-864ainstr.pdf 
(last visited Aug. 17, 2022).
    \612\ Calculation for opportunity cost of time for completing 
and submitting Form I-864A, Contract Between Sponsor and Household 
Member: ($39.55 per hour * 1.75 hours) = $69.21 (rounded) per 
petitioner.
---------------------------------------------------------------------------

    As with Form I-864, there is no filing fee associated with filing 
Form I-864EZ with USCIS. However, DHS estimates the time burden 
associated with filing Form I-864EZ is 2 hours and 30 minutes (2.5 
hours) per petitioner, including the time for reviewing instructions, 
gathering the required documentation and information, completing the 
affidavit, preparing statements, attaching necessary documentation, and 
submitting the affidavit.\613\ Therefore, using the average total rate 
of compensation of $39.55 per hour, DHS estimates the opportunity cost 
of time for completing and submitting Form I-864EZ will be $98.88 per 
petitioner.\614\ However, DHS notes

[[Page 55614]]

that it is unable to determine the number of filings of Form I-864EZ 
and, therefore, rely on the annual cost estimate developed for Form I-
864.
---------------------------------------------------------------------------

    \613\ Source for I-864EZ time burden estimate: USCIS, 
``Instructions for Affidavit of Support Under Section 213A of the 
INA (Form I-864EZ),'' OMB No. 1615-0075 (expires Dec. 31, 2023), 
https://www.uscis.gov/sites/default/files/document/forms/i-864ezinstr.pdf (last visited Aug. 17, 2022).
    \614\ Calculation for opportunity cost of time for completing 
and submitting Form I-864EZ, Affidavit of Support Under Section 213A 
of the INA: ($39.55 per hour * 2.5 hours) = $98.88 (rounded).
---------------------------------------------------------------------------

    There is also no filing fee associated with filing Form I-864W with 
USCIS. However, DHS estimates the time burden associated with filing 
this form is 60 minutes (1 hour) per petitioner, including the time for 
reviewing instructions, gathering the required documentation and 
information, completing the request, preparing statements, attaching 
necessary documentation, and submitting the request.\615\ Therefore, 
using the average total rate of compensation of $39.55 per hour, DHS 
estimates the opportunity cost of time for completing and submitting 
Form I-864EZ will be $39.55 per petitioner.\616\ However, DHS notes 
that it is unable to determine the number of filings of Form I-864W 
and, therefore, rely on the annual cost estimate developed for Form I-
864.
---------------------------------------------------------------------------

    \615\ Source for I-864W time burden estimate: USCIS, 
``Instructions for Request for Exemption for Intending Immigrant's 
Affidavit of Support (Form I-864W),'' OMB No. 1615-0075 (expires 
Dec. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-864winstr.pdf (last visited Aug. 17, 2022).
    \616\ Calculation for opportunity cost of time for completing 
and submitting Form I-864W: ($39.55 per hour * 1.0 hours) = $39.55.
---------------------------------------------------------------------------

ii. Costs of Final Regulatory Changes
    In this section, DHS estimates costs of the final rule relative to 
No Action Baseline. The primary source of quantified new costs for the 
final rule will be from an additional 0.75 hours increase in the time 
burden estimate to complete Form I-485 for applicants who are subject 
to the public charge ground of inadmissibility.\617\ The additional 
time burden is required to collect information based on factors such as 
age; health; family status; assets, resources, and financial status; 
and education and skills, so that USCIS could determine whether an 
applicant would be inadmissible to the United States based on the 
public charge ground.
---------------------------------------------------------------------------

    \617\ To be clear, these form changes will not affect applicants 
who are exempt from the public charge ground of inadmissibility 
listed in new 8 CFR 212.23.
---------------------------------------------------------------------------

    The final rule will include additional instructions as well as 
additional questions for filing Form I-485 for applicants who are 
subject to the public charge ground of inadmissibility and, as a 
result, those applicants would spend additional time reading the 
instructions increasing the estimated time to complete the form. The 
current estimated time to complete Form I-485 is 6 hours and 25 minutes 
(6.42 hours). For the final rule, DHS estimates that the time burden 
for completing Form I-485 will increase by 45 minutes (0.75 hours). As 
explained above, DHS reduced the estimated time burden for completing 
the revised Form I-485 from 7.92 hours to 7.17 hours. Open-ended 
questions requiring narrative-style responses that were included in the 
information collection instrument associated with the NPRM have been 
changed to multiple-choice style questions that will require less time 
for an applicant to answer.
    Therefore, in the final rule, the time burden to complete Form I-
485 will be 7 hours and 10 minutes (7.17 hours).
    The following cost is a new cost that would be imposed on the 
population applying to adjust status using Form I-485 for applicants 
who are subject to the public charge ground of inadmissibility. Table 
14 shows the estimated new annual costs that the final rule will impose 
on individuals seeking to adjust status using Form I-485 for applicants 
who are subject to the public charge ground of inadmissibility with a 
0.75 hour increase in the time burden estimate for completing Form I-
485.
[GRAPHIC] [TIFF OMITTED] TR09SE22.032

    The time burden includes the time for reviewing instructions, 
gathering the required documentation and information, completing the 
application, preparing statements, attaching necessary documentation, 
and submitting the application.\618\ Using the total rate of 
compensation for minimum wage of $17.11 per hour, DHS currently 
estimates the opportunity cost of time for completing and filing Form 
I-485 will be $12.83 per applicant.\619\ Therefore, using the total 
population estimate of 501,520 annual filings for Form I-485 for 
applicants who are subject to the public charge ground of 
inadmissibility, DHS estimates the current total opportunity cost of 
time associated with completing Form I-485 is approximately $6,435,755 
annually.\620\
---------------------------------------------------------------------------

    \618\ Source: USCIS, ``Instructions for Application to Register 
Permanent Residence or Adjust Status (Form I-485),'' OMB No. 1615-
0023 (expires Mar. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf (last visited Aug. 17, 2022).
    \619\ Calculation for opportunity cost of time for filing Form 
I-485: ($17.11 per hour * 0.75 hours) = $12.83 (rounded) per 
applicant.
    \620\ Calculation: Form I-485 estimated opportunity cost of time 
($17.11 per hour * 0.75 hours) * Estimated annual population filing 
Form I-485 (501,520) = $17.11 * 0.75 * 501,520 = $6,435,755 
(rounded) annual opportunity cost of time for filing Form I-485.

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

[[Page 55615]]

iii. Cost Savings of the Final Regulatory Changes
    DHS anticipates that the final rule will produce some quantitative 
cost savings relative to both baselines. With this rule, T 
nonimmigrants applying for adjustment of status will no longer need to 
submit Form I-601 seeking a waiver on public charge grounds of 
inadmissibility. The existing regulations at 8 CFR 212.18 and 8 CFR 
245.23 stating that T nonimmigrants are required to obtain waivers are 
not in line with the Violence Against Women Act Reauthorization Act of 
2013 (VAWA 2013).\621\ T nonimmigrants are exempt from public charge 
inadmissibility under the statute, and therefore never should have 
required a waiver in order to adjust status. The final rule will align 
the regulation with the statute. DHS estimates the cost savings for 
this population will be approximately $15,359 annually.
---------------------------------------------------------------------------

    \621\ See Public Law 113-4, 127 Stat. 54 (2013).
---------------------------------------------------------------------------

    Table 15 shows the total population between FY 2014 and FY 2018 
that filed form I-601. Over the 5-year period the population of 
individuals who have applied for adjustment of status ranged from a low 
of 6 in FY 2018 to a high of 35 in FY 2014. On average, the annual 
population of individuals over five fiscal years who filed Form I-601 
and applied for adjustment of status with a T nonimmigrant status is 
16.
[GRAPHIC] [TIFF OMITTED] TR09SE22.033

    DHS considers the historical data from FY 2014 to FY 2018 as the 
basis to form an estimated population projection of receipts for Form 
I-601 for T nonimmigrants who are adjusting status for the 10-year 
period beginning in FY 2022. Based on the average annual population of 
I-601 filers between FY 2014 and FY 2018, DHS projects that 16 T 
nonimmigrants who are applying for adjustment of status will no longer 
need to file Form I-601. DHS uses the effective minimum wage base plus 
weighted average benefit of $17.11 per hour to estimate the opportunity 
cost of time for these individuals since they are not likely to be 
participating in the labor market. DHS estimated the time burden to 
complete the Form I-601 as 1.75 hours, including the time for reviewing 
instructions, gathering the required documentation and information, 
completing the application, preparing statements, attaching necessary 
documentation, and submitting the application.\622\ Thus, DHS estimates 
the opportunity cost of time for completing Form I-601 to be 
$479.08.\623\ Based on the population estimate and the filing fee of 
$930 for Form I-601, the total estimated cost for filing fees for the 
all 16 estimated filers will be approximately $14,880.\624\ The sum of 
the filing fee results in an estimated total annual savings of 
approximately $15,359 resulting from the final rule, including the 
opportunity cost of time and filing fees.\625\
---------------------------------------------------------------------------

    \622\ Source: USCIS, ``Instructions for Application for Waiver 
of Grounds of Inadmissibility (Form I-601),'' OMB No. 1615-0029 
(expires July. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-601instr.pdf (last visited Aug. 17, 2022).
    \623\ Calculation: (Form I-601, time burden) * (Estimated annual 
applicants for Form I-601) * (Hourly wage) = 1.75 * 16 * $17.11 = 
$479.08 (rounded) per applicant.
    \624\ Calculation: Filing fee * Estimated annual applicants for 
Form I-601 = $930 * 16 = $14,880.
    \625\ Calculation: Total savings ($15,359) = $479.08 + $14,880 = 
$15,359 (rounded).
---------------------------------------------------------------------------

iv. Familiarization Costs
    A likely impact of the final rule relative to both baselines is 
that various individuals and other entities will incur costs associated 
with familiarization with the provisions of the rule. Familiarization 
costs involve the time spent reviewing a rule. A noncitizen might 
review the rule to determine whether they are subject to the final 
rule. To the extent an individual who is directly regulated by the rule 
incurs familiarization costs, those familiarization costs are a direct 
cost of the rule.
    In addition to those being directly regulated by the rule, a wide 
variety of other entities would likely choose to read the rule and 
incur familiarization costs. For example, immigration lawyers, 
immigration advocacy groups, benefits-administering agencies, nonprofit 
organizations, nongovernmental organizations, and religious 
organizations, among others, may want to become familiar with the 
provisions of this final rule. DHS believes such nonprofit 
organizations and other advocacy groups might choose to read the rule 
to provide

[[Page 55616]]

information to noncitizens and associated households who may be subject 
to the rule. Familiarization costs incurred by those not directly 
regulated are indirect costs. Indirect impacts are borne by entities 
that are not specifically regulated by this rule but may incur costs 
due to changes in behavior related to this rule.
    DHS estimates the time that will be necessary to read the rule is 
approximately 8 to 9 hours per person, resulting in opportunity costs 
of time. DHS assumes the average professional reads technical documents 
at a rate of about 250 to 300 words per minute. An entity, such as a 
nonprofit or advocacy group, may have more than one person who reads 
the final rule. Using the average total rate of compensation as $39.55 
per hour for all occupations, DHS estimates that the opportunity cost 
of time will range from about $316.40to $355.95 per individual who must 
read and review the final rule.\626\ However, DHS is unable to estimate 
the number of people that will familiarize themselves with this rule. 
As such, DHS is unable to quantify this cost. DHS requested comments on 
other possible indirect impacts of the rule and appropriate 
methodologies for quantifying these non-monetized potential impacts. 
DHS received several comments on the indirect impact of the rule at the 
State level. The discussion is included in the following section.
---------------------------------------------------------------------------

    \626\ Calculation: (Average total compensation for all 
occupations) * (Time to read rule - lower bound) = (Opportunity cost 
of time [OCT] to read rule) = $39.55 * 8 hours = $316.40 OCT per 
individual to read rule, 8 hours (rounded) = (approximately 140,000 
words/300)/60.
    Calculation: (Average total compensation for all occupations) * 
(Time to read rule - upper bound) = (Opportunity cost of time [OCT] 
to read rule) = $39.55 * 9 hours = $355.95 OCT per individual to 
read rule, 9 hours = (approximately 140,000 words/250)/60.
    Average total compensation for all occupations ($39.55): See 
BLS, Economic News Release, ``Employer Cost for Employee 
Compensation,'' Table 1. Employer costs per hour worked for employee 
compensation and costs as a percent of total compensation: Civilian 
workers, by major occupational and industry group (September 16, 
2021), https://www.bls.gov/news.release/archives/ecec_09162021.pdf 
(last viewed Aug. 17, 2022).
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v. Transfer Payments and Indirect Impacts of the Final Regulatory 
Changes
    DHS also considers transfer payments from the Federal and State 
governments to certain individuals who receive public benefits that may 
be more likely to occur under the final regulatory changes as compared 
to the No Action Baseline. While the final rule follows closely the 
approach taken in the 1999 Interim Field Guidance, it contains three 
changes that may have an effect on transfer payments. First, the final 
rule provides that, in any application for admission or adjustment of 
status in which the public charge ground of inadmissibility applies, 
DHS will not consider any public benefits received by a noncitizen 
during periods in which the noncitizen was present in the United States 
in an immigration category that is exempt from the public charge ground 
of inadmissibility. Second, under the final rule, when making a public 
charge inadmissibility determination, DHS will also not consider any 
public benefits that were received by noncitizens who are eligible for 
resettlement assistance, entitlement programs, and other benefits 
available to refugees admitted under section 207 of the INA, 8 U.S.C. 
1157, including services described under section 412(d)(2) of the INA, 
8 U.S.C. 1522(d)(2), provided to an ``unaccompanied alien child'' as 
defined under section 462(g)(2) of the HSA, 6 U.S.C. 279(g)(2). 
Individuals covered by these exclusions may be more likely to 
participate in public benefit programs for the limited period of time 
that they are in such status or eligible for such benefits. Third, 
applying for a public benefit on one's own behalf or on behalf of 
another would not constitute receipt of public benefits by the 
noncitizen applicant. This definition would make clear that the 
noncitizen's receipt of public benefits solely on behalf of another, or 
the receipt of public benefits by another individual (even if the 
noncitizen assists in the application process), would also not 
constitute receipt of public benefits by the noncitizen. These 
clarifications could lead to an increase in public benefit 
participation by certain persons (most of whom will likely not to be 
subject to the public charge ground of inadmissibility in any event). 
This change could increase transfer payments from the Federal, State, 
Tribal, territorial, and local governments to certain individuals. DHS 
is unable to quantify the effects of these changes.
    DHS acknowledges that an increase in transfer payments due to this 
final rule would produce other indirect impacts. For example, 
administrative costs to the State and local benefits-granting agencies 
associated with public benefit program enrollments would likely 
increase. When public benefit program enrollments increase, the 
processing of more enrollees results in an increase in costs to those 
agencies. However, DHS is unable to quantify the increase in 
administrative costs. DHS received a comment from one State regarding 
administrative costs for Medicaid participants and SNAP recipients. The 
State noted that it incurred administrative costs of $103 million and 
$63 million, respectively in fiscal year 2020, but did not explain how 
administrative costs might scale up or down as a consequence of 
enrollment decisions by beneficiaries. DHS notes that these costs 
represent the State's total annual administrative costs associated with 
Medicaid and SNAP, not the total direct costs of providing the actual 
benefit to a recipient (which the commenter also provided with respect 
to Medicaid), or costs from which a per-enrollee marginal cost to that 
State could be calculated. DHS also notes that these administrative 
costs cannot be reliably applied to every U.S. State. Finally, DHS is 
unable to quantify the increase in enrollees due to the lack of data.
    Another example of an indirect impact of this final rule is that it 
is likely to increase access to public benefit programs by some 
eligible individuals, including noncitizens and U.S. citizens in mixed-
status households, with a range of downstream indirect effects for 
public health and community stability and resilience.
vi. Benefits of Final Regulatory Changes
    The primary benefit of the final rule will be time savings of 
individuals directly and indirectly affected by the final rule. By 
clarifying standards governing a determination that a noncitizen is 
inadmissible or ineligible to adjust status on the public charge 
ground, the final rule will reduce time spent by the affected 
population who are making decisions to apply for adjustment of status 
or enrolling or disenrolling in public benefit programs. For example, 
when noncitizens make decisions on whether to adjust status or to 
enroll or disenroll in public benefit programs, they may spend time 
gathering information or consulting attorneys. The final rule will 
reduce the time spent making these decisions. Specifically, the final 
rule provides clarity on inadmissibility on the public charge ground by 
codifying certain definitions, standards, and procedures. Listing the 
categories of noncitizens exempt from the public charge inadmissibility 
ground adds clarity as to which noncitizens are subject to the public 
charge determination and will help to reduce uncertainty and confusion. 
However, DHS is unable to quantify the reduction in time spent 
gathering information or consulting attorneys. DHS does not have data 
on how much time individuals would spend in making a decision on 
whether to adjust status or to enroll or disenroll in public benefit 
programs. DHS

[[Page 55617]]

requested public comments on this issue but did not receive any.
---------------------------------------------------------------------------

    \627\ See OMB, ``Circular A-4'' (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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vii. Total Estimated and Discounted Costs
    To compare costs over time, DHS applied a 3 percent and a 7 percent 
discount rate to the total estimated costs and savings associated with 
the final rule.\627\ Table 16 presents a summary of the total direct 
costs, savings, and net costs in the final rule.
[GRAPHIC] [TIFF OMITTED] TR09SE22.034

    Over the first 10 years of implementation, DHS estimates the 
undiscounted direct costs of the final rule will be approximately 
$64,357,550, the cost savings $153,590, and the net costs $64,203,960. 
In addition, as seen in Table 17, DHS estimates that the 10-year 
discounted net cost of this final rule to individuals applying to 
adjust status who would be required to undergo review for determination 
of inadmissibility based on public charge will be approximately 
$54,767,280 at a 3 percent discount rate and approximately $45,094,175 
at a 7 percent discount rate.
[GRAPHIC] [TIFF OMITTED] TR09SE22.035

viii. Costs to the Federal Government
    The INA provides for the collection of fees at a level that will 
ensure recovery of the full costs of providing adjudication and 
naturalization services, including administrative costs and services 
provided without charge to certain applicants and petitioners. See 
section 286(m) of the INA, 8 U.S.C. 1356(m). DHS notes that USCIS 
establishes its fees by assigning costs to an adjudication based on its 
relative adjudication burden and use of USCIS resources. Fees are 
established at an amount that is necessary to recover these assigned 
costs, such as salaries and benefits for clerical positions, officers, 
and managerial positions, plus an amount to recover unassigned overhead 
(e.g., facility rent, IT equipment and systems) and immigration 
benefits provided without a fee charge. Consequently, since USCIS 
immigration fees are based on resource expenditures related to the 
service in question, USCIS uses the fee associated with an information 
collection as a reasonable measure of the collection's costs to USCIS. 
Therefore, DHS has established the fee for the adjudication of Form I-
485, Application to Register Permanent Residence or Adjust Status.
    Time required for USCIS to review the additional information 
collected in Form I-485 when the final rule is finalized includes the 
additional time to adjudicate the underlying benefit request. DHS notes 
that the final rule

[[Page 55618]]

may increase USCIS' costs associated with adjudicating immigration 
benefit requests. DHS estimates that the increased time to adjudicate 
the benefit request will result in an increased employee cost of 
approximately $14 million per year.\628\ USCIS currently does not 
charge a filing fee for other forms affected by this final rule do not 
currently charge a filing fee, including Form I-693, Medical 
Examination and Vaccination Record; Affidavit of Support forms (Form I-
864, Form I-864A, Form I-864EZ, and I-864W); Form I-912, Request for 
Fee Waiver, and Form I-407, Record of Abandonment of Lawful Permanent 
Resident Status. While filing fees are not charged for these forms, the 
cost to USCIS is captured in the fee for I-485. Future adjustments to 
the fee schedule may be necessary to recover the additional operating 
costs and will be determined at USCIS' next comprehensive biennial fee 
review.
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    \628\ Office of Performance and Quality data received on 
December 30, 2021. The increase in employee cost is based on 
estimates of additional adjudication time due to the rule, at 
compensation rates approximated by General Schedule wage data for 
USCIS employees.
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c. Pre-Guidance Baseline
    As noted above, the Pre-Guidance Baseline represents a state of the 
world in which the 1999 NPRM, 1999 Interim Field Guidance, and the 2019 
Final Rule were not enacted. The Pre-Guidance Baseline is included in 
this analysis in accordance with OMB Circular A-4, which directs 
agencies to include a ``pre-statutory'' baseline in an analysis if 
substantial portions of a rule may simply restate statutory 
requirements that would be self-implementing, even in the absence of 
the regulatory action.\629\ DHS previously has not performed a 
regulatory analysis on the regulatory costs and benefits of the 1999 
Interim Field Guidance and, therefore, includes a Pre-Guidance Baseline 
in this analysis for clarity and completeness. DHS presents the Pre-
Guidance Baseline to provide a more informed picture on the overall 
impacts of the 1999 Interim Field Guidance since its inception, while 
recognizing that many of these impacts have been realized already.
---------------------------------------------------------------------------

    \629\ See OMB. Circular A-4, pp. 15-16, (Sept. 17, 2003) https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    The final rule will affect individuals who apply for adjustment of 
status because these individuals would be subject to inadmissibility 
determinations based on the public charge ground as long as the 
individual is not in a category of applicant that is exempt from the 
public charge ground of inadmissibility. In order to estimate the 
effect of the final rule relative to Pre-Guidance baseline, DHS 
revisits the state of the world for both the Pre-Guidance baseline and 
the No Action baseline. The state of the world in the Pre-Guidance 
baseline is one in which the 1999 Interim Field Guidance was never 
issued. The state of the world in the No Action baseline is one in 
which the 1999 Interim Field Guidance was issued and has been in 
practice. In order to estimate the effect of the 2022 final rule 
relative to the Pre-Guidance baseline, DHS considers the effect of the 
1999 Interim Field Guidance relative to the Pre-Guidance baseline as 
well as the changes in this final rule relative to the No Action 
Baseline. Since the latter has already been discussed in the No Action 
Baseline Section, the rest of this section focuses on estimating the 
effect of the 1999 Interim Field Guidance relative to the Pre-Guidance 
baseline.
    PRWORA and IIRIRA generated considerable public confusion about 
noncitizen eligibility for public benefits and the related question of 
whether the receipt of Federal, State, or local public benefits for 
which a noncitizen may be eligible renders them likely to become a 
public charge. According to the literature, these laws led to sharp 
reductions in the use of public benefit programs by immigrants between 
1994 and 1997. This phenomenon is referred to as a chilling effect, 
which describes immigrants disenrolling from or forgoing enrollment in 
public benefit programs due to fear or confusion regarding: (1) the 
immigration consequences of public benefit receipt; or (2) the rules 
regarding noncitizen eligibility for public 
benefits.630 631 632 The state of the world before the 1999 
NPRM and 1999 Field Guidance reflected growing public confusion over 
the meaning of the term ``public charge'' in immigration law, which was 
undefined, and its relationship to the receipt of Federal, State, or 
local public benefits.
---------------------------------------------------------------------------

    \630\ Michael Fix and Jeffrey Passel, ``Trends in noncitizens' 
and citizens' use of public benefits following welfare reform,'' 
Urban Institute (Mar. 1, 1999), http://webarchive.urban.org/publications/408086.html (last visited Aug. 17, 2022).
    \631\ Stephen Bell, ``Why are welfare caseloads falling?,'' 
Urban Institute (March 2001), https://www.urban.org/research/publication/why-are-welfare-caseloads-falling (last visited Aug. 17, 
2022).
    \632\ Magnus Lofstrom and Frank Bean, ``Assessing immigrant 
policy options: Labor market conditions and post-reform declines in 
immigrants' receipt of welfare,'' Demography 39(4), 617-63 (Nov. 
2002), https://read.dukeupress.edu/demography/article-pdf/39/4/617/884758/617lofstrom.pdf (last visited Aug. 17, 2022).
---------------------------------------------------------------------------

    The U.S. Department of Agriculture (USDA) published a study shortly 
after PRWORA took effect. The study found that the number of people 
receiving food stamps fell by over 5.9 million between summer 1994 and 
summer 1997.\633\ The study notes that enrollment in the food stamps 
program was falling during this period, possibly due to strong economic 
growth, but the decline in enrollment was steepest among legal 
immigrants. Under PRWORA, legal immigrants were facing significantly 
stronger restrictions under which most of them would become ineligible 
to receive food stamps in September 1997. The study found that 
enrollment of legal immigrants in the food stamps program fell by 54 
percent, accounting for 14 percent of the total decline. USDA also 
observed that
---------------------------------------------------------------------------

    \633\ See Jenny Genser, ``Who is leaving the Food Stamps 
Program: An analysis of Caseload Changes from 1994 to 1997,'' U.S. 
Department of Agriculture, Food and Nutrition Service, Office of 
Analysis, Nutrition, and Evaluation (1999), https://www.fns.usda.gov/snap/who-leaving-food-stamp-program-analysis-caseload-changes-1994-1997 (last visited Aug. 17, 2022).

    Restrictions on participation by legal immigrants appear to have 
deterred participation by their children, many of whom retained 
their eligibility for food stamps. Participation among U.S. born 
children living with their legal immigrant parents fell faster than 
participation among children living with native-born parents. The 
number of [participating] children living with legal immigrants fell 
by 37 percent, versus 15 percent for children living with native-
born parents.\634\
---------------------------------------------------------------------------

    \634\ Jenny Genser, ``Who is leaving the Food Stamps Program: An 
analysis of Caseload Changes from 1994 to 1997,'' U.S. Department of 
Agriculture, Food and Nutrition Service, Office of Analysis, 
Nutrition, and Evaluation (Mar. 1999), at 2-3 (internal table 
citation omitted), https://www.fns.usda.gov/snap/who-leaving-food-stamp-program-analysis-caseload-changes-1994-1997 (last visited Aug. 
17, 2022).

    Another study found evidence of a ``chilling effect'' following 
enactment of PRWORA and IIRIRA where noncitizen enrollment in public 
benefits programs declined more steeply than U.S. citizen enrollment 
over the period 1994 through 1997.\635\ The study found that ``[w]hen 
viewed against the backdrop of overall declines in welfare receipt for 
all households, use of public benefits among noncitizen households fell 
more sharply (35 percent) between 1994 and 1997 than among citizen 
households (14 percent). These patterns hold for welfare (defined here 
as TANF, SSI, and General Assistance), food stamps, and

[[Page 55619]]

Medicaid.'' \636\ The study authors concluded that rising incomes did 
not explain the relatively high disenrollment rate and suggested that 
the steeper declines in noncitizens' use of benefits was attributable 
more to the chilling effects of PRWORA and public charge, among other 
factors. The study authors expected that, over time, eligibility 
changes would become more important because, under PRWORA, most 
immigrants admitted after August 22, 1996, would be ineligible for most 
means-tested public benefits for at least 5 years after their entry to 
the country.\637\
---------------------------------------------------------------------------

    \635\ See Michael Fix and Jeffrey Passel, ``Trends in 
Noncitizens' and Citizens' Use of Public Benefits Following Welfare 
Reform: 1994-1997,'' Urban Institute (1999) (Fix and Passel (1999)), 
https://www.urban.org/research/publication/trends-noncitizens-and-citizens-use-public-benefits-following-welfare-reform (last visited 
Aug. 17, 2022).
    \636\ Fix and Passel (1999), at 1-2.
    \637\ Fix and Passel (1999), at 1-2.
---------------------------------------------------------------------------

    As described in the 1999 NPRM, the 1999 NPRM sought to reduce the 
negative public health and nutrition consequences generated by the 
existing confusion and to provide noncitizens with better guidance as 
to the types of public benefits that would be considered or not 
considered in reviews for inadmissibility on the public charge ground.
    By providing a clear definition of ``likely at any time to become a 
public charge'' and identifying the types of public benefits that would 
be considered in public charge inadmissibility determinations, the 
final rule could alleviate confusion and uncertainty with respect to 
the provision of emergency and other medical assistance, children's 
immunizations, and basic nutrition programs, as well as the treatment 
of communicable diseases. Immigrants' fears of obtaining these 
necessary medical and other benefits not only causes considerable harm, 
but also can have a range of downstream consequences for the general 
public. By describing the kinds of public benefits, if received, that 
could result in a determination that a person is likely at any time to 
become a public charge, immigrants would be able to maintain available 
supplemental benefits that are designed to aid individuals in gaining 
and maintaining employment. The final rule also lists the factors that 
must be considered in making public charge determinations. The final 
rule makes clear that the past or current receipt of public assistance, 
by itself, would not lead to a determination of being likely to become 
a public charge without also considering the minimum statutory factors.
    The primary economic impact of the final rule relative to the Pre-
Guidance Baseline will be an increase in transfer payments from the 
Federal and State governments to individuals. As discussed above, the 
chilling effect due to PRWORA and IIRIRA resulted in a decline in 
participation in public benefit programs among noncitizens and foreign-
born individuals and their families. The final rule will alleviate 
confusion and uncertainty, as compared to the Pre-Guidance Baseline, by 
clarifying the ground of public charge inadmissibility. This 
clarification will lead to an increase in public benefit participation 
by certain persons (most of whom would likely not be subject to the 
public charge ground of inadmissibility in any event).\638\ Due to the 
increase in transfer payments, DHS believes that the rule may also have 
indirect effects on businesses in the form of increased revenues for 
healthcare providers participating in Medicaid, companies that 
manufacture medical supplies or pharmaceuticals, grocery retailers 
participating in SNAP, and agricultural producers who grow foods that 
are eligible for purchase using SNAP benefits. However, DHS is unable 
to quantify this indirect effect due to the significant passage of time 
between the 1999 Interim Field Guidance and this final rule.
---------------------------------------------------------------------------

    \638\ Relatively few noncitizens in the United States are both 
subject to INA sec. 212(a)(4) and eligible for public benefits prior 
to adjustment of status (see Table 3 above).
---------------------------------------------------------------------------

    DHS believes that the rule may have indirect effects on State, 
local, and/or Tribal government as compared to the Pre-Guidance 
baseline. 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 web pages. 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. However, DHS 
is unable to quantify these effects.
    Due to the passage of a significant amount of time between the 1999 
Interim Field Guidance and this final rule, DHS cannot quantify the 
effects that this final rule will have as compared to the Pre-Guidance 
baseline. For instance, although DHS could estimate the chilling 
effects of PRWORA and IIRIRA and the countervailing effects of the 1999 
Interim Field Guidance, it would be challenging to apply such estimates 
to the 20-plus years since that time. A wide number of changes in the 
economy and Federal laws occurred during that time period that might 
have affected public benefits usage among the population most likely to 
be affected by the final rule. Thus, DHS is unable to quantify these 
effects.
d. Regulatory Alternative
    Consistent with E.O. 12866, DHS considered the costs and benefits 
of an available regulatory alternative. The alternative that DHS 
considered was a rulemaking similar to the rulemaking that comprised 
the 2018 NPRM and the 2019 Final Rule (the Alternative). DHS considered 
both the effects of the 2018 NPRM and the 2019 Final Rule because the 
indirect disenrollment effects associated with the rulemaking began 
prior to the publication of the Final Rule. DHS sought to avoid 
underestimating the full impact the rulemaking had on the public.
    As compared to the 1999 Interim Field Guidance, the 2019 Final Rule 
expanded the criteria used in public charge inadmissibility 
determinations. The 2019 Final Rule broadened the definition of 
``public charge,'' both by adding new public benefits for consideration 
and by expanding the definition of public charge to mean ``an alien who 
receives one or more public benefits for more than 12 months in the 
aggregate within any 36-month period.''
    The additional public benefits in the 2019 Final Rule were non-
emergency Medicaid for non-pregnant adults, federally funded 
nutritional assistance (SNAP), and certain housing assistance, subject 
to certain exclusions for certain populations. In addition, the 2019 
Final Rule required noncitizens to submit a declaration of self-
sufficiency on a new form designated by DHS and required the submission 
of extensive initial evidence relating to the public charge ground of 
inadmissibility.
    The 2019 Final Rule also provided, with limited exceptions, that 
certain applicants for extension of stay or change of nonimmigrant 
status would be required to demonstrate that they have not received, 
since obtaining the nonimmigrant status they seek to extend or change 
and through the time of filing and adjudication, one or more public 
benefits for more than 12 months in the aggregate within any 36-month 
period (such that, for instance, receipt of two benefits in 1 month 
counts as 2 months).
    In order to estimate the effect of the Alternative relative to the 
Pre-Guidance baseline, DHS sums the effect of the 1999 Interim Field 
Guidance relative to the Pre-Guidance baseline with the effect of the 
Alternative relative to the No Action Baseline. Detailed discussion of 
the costs, benefits, and transfer

[[Page 55620]]

payments of the Alternative relative to the No Action baseline is 
provided below. The effect of the 1999 Interim Field Guidance relative 
to the Pre-Guidance baseline under the Alternative is the same as 
discussed in the assessment of the final rule. This effect is discussed 
in the Pre-Guidance Baseline Section. Although DHS is not able to 
quantify all the effects of the Alternative, for those effects that are 
not quantifiable DHS provides qualitative discussion.
    The primary objective of the Alternative would be to ensure that 
noncitizens who are admitted to the United States or apply for 
adjustment of status have not received one or more public benefits for 
longer than the threshold duration established by the rule, and to 
thereby allow the admission only of noncitizens expected to rely on 
their own financial resources, and those of family members, sponsors, 
and private organizations. DHS expects that effects under the 
Alternative would be similar to those under the 2019 Final Rule. The 
2019 Final Rule was associated with widespread indirect effects, 
primarily with respect to those who were not subject to the 2019 Final 
Rule in the first place, such as U.S.-citizen children in mixed-status 
households, longtime lawful permanent residents who are only subject to 
the public charge ground of inadmissibility in limited circumstances, 
and noncitizens in a humanitarian status who would be exempt from the 
public charge ground of inadmissibility in the context of adjustment of 
status.
    This final rule would implement a different policy than that of the 
alternative described here. DHS believes that, in contrast to the 
Alternative, this rule would effectuate a more faithful interpretation 
of the statutory phrase of ``likely at any time to become a public 
charge''; avoid unnecessary burdens on applicants, adjudicators, and 
benefits-granting agencies; mitigate the possibility of widespread 
``chilling effects'' with respect to individuals disenrolling or 
declining to enroll themselves or family members in public benefits 
programs for which they are eligible, especially with respect to 
individuals who are not subject to the public charge ground of 
inadmissibility; and reduce States' administrative costs by alleviating 
confusion and simplifying administrative burdens due to the final 
rule's clarification concerning public benefits.
i. Direct Costs
    Total direct costs resulting from the 2019 Final Rule were 
estimated to be approximately $35.4 million per year.\639\ Total annual 
transfer payment decreases due to the 2019 Final Rule were estimated to 
be about $2.47 billion resulting from individuals (most of whom would 
likely not have been subject to the 2019 Final Rule) disenrolling from 
or forgoing enrollment in public benefit programs. The federal-level 
share of the annual transfer payments decrease was approximately $1.46 
billion, and the state-level share of the annual transfer payments 
decrease was $1.01 billion.\640\ For purposes of estimating the costs 
and benefits of the Alternative, DHS updated its estimates of the total 
annual direct cost of and change in the total annual transfer payment 
increases related to the 2019 Final Rule.
---------------------------------------------------------------------------

    \639\ See ``Inadmissibility on Public Charge Grounds,'' 84 FR 
41292 (Aug. 14, 2019), as amended by ``Inadmissibility on Public 
Charge Grounds; Correction,'' 84 FR 52357 (Oct. 2, 2019).
    \640\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292 
(Aug. 14, 2019).
---------------------------------------------------------------------------

    After updating the costs from the 2019 Final Rule, DHS estimates 
the total annual direct costs of the Alternative would be approximately 
$62 million, as detailed below. The update in direct costs from the 
2019 Final Rule includes an increase in the number of average receipts 
of form I-485, application to register permanent residence or adjust 
status and an increase in the average total rate of compensation. These 
costs would include about $48,639,917 to the public to fill out and 
submit a new form I-944,\641\ Declaration of Self-Sufficiency, which 
would require noncitizens to declare self-sufficiency and provide a 
range of evidence that DHS required for making public charge 
inadmissibility determinations under the 2019 Final Rule. There is also 
an estimated additional time burden cost of $1,458,771 to applicants 
who would be required to fill out and submit Form I-485; \642\ $40,426 
to public charge bond obligors for filing Form I-945, Public Charge 
Bond; \643\ $946 to filers for submitting Form I-356, Request for 
Cancellation of Public Charge Bond; \644\ and $7,201,007 to applicants 
for completing and filing forms I-129, Petition for a Nonimmigrant 
Worker; \645\ $151,338 for I-129CW, Petition for a CNMI-Only 
Nonimmigrant Transitional Worker; \646\ and $4,045,372 for I-539, 
Application to Extend/Change Nonimmigrant Status \647\ to demonstrate 
that the applicant has not received public benefits since obtaining the 
nonimmigrant status that they are seeking to extend or change.
---------------------------------------------------------------------------

    \641\ Cost to file form I-944: Form I-944 Time burden estimated 
in the 2019 Final Rule (4.5 hour) *Average total rate of 
compensation discussed in Section VI.A.5 using the effective minimum 
wage ($17.11) * Total Population Subject to Review for 
Inadmissibility on the Public Charge Ground from Table 10 (501,520) 
= $38,614,532 (rounded), Cost of obtaining credit report and score 
cost from Experian ($19.99) * Total Population Subject to Review for 
Inadmissibility on the Public Charge Ground from Table 10 (501,520) 
= $10,025,385 (rounded). Total cost to file form I-944 = $38,614,532 
+ $10,025,385 = $48,639,917. DHS uses this burden hour estimate for 
consistency with the analysis in the 2019 Final Rule.
    \642\ Cost to file form I-485: Form I-485 Time burden increase 
estimated in the 2019 Final Rule (0.17 hour) * Average total rate of 
compensation discussed in Section VI.A.5 using the effective minimum 
wage ($17.11) * Total Population Subject to Review for 
Inadmissibility on the Public Charge Ground from Table 10 (501,520) 
= $1,458,771 (rounded).
    \643\ Cost to file form I-945: Form I-945 Time burden estimated 
in the 2019 Final Rule (1 hour) *Average total rate of compensation 
discussed in Section VI.A.5 using the effective minimum wage 
($17.11) * Estimated annual population in the 2019 Final Rule who 
would file Form I-945 (960) = $16,426 (rounded).
    \644\ Cost to file form I-356: (Form I-356 Time burden estimated 
in the 2019 Final Rule (0.75 hour) *Average total rate of 
compensation discussed in Section VI.A.5 using the effective minimum 
wage ($17.11) + Filing fee estimated in the 2019 Final Rule ($25)) * 
Estimated annual population in the 2019 Final Rule who would file 
Form I-356 (25) = ($12.83 + $25) * 25 = $946 (rounded).
    \645\ Cost to file form I-129: Form I-129 Time burden increase 
estimated in the 2019 Final Rule (0.5 hour) * the total compensation 
from BLS discussed in Section VI.A.5 ($39.55) * Estimated annual 
population who would file Form I-129 using FY2014-FY2018 data from 
USCIS (364,147) = $7,201,007 (rounded).
    \646\ Cost to file form I-129CW: Form I-129 CW Time burden 
increase estimated in the 2019 Final Rule (0.5 hour) * the total 
compensation from BLS discussed in Section VI.A.5 ($39.55) * 
Estimated annual population who would file Form I-129CW using 
FY2014-FY2018 data from USCIS (7,653) = $151,338 (rounded).
    \647\ Cost to file form I-539: Form I-539 Time burden increase 
estimated in the 2019 Final Rule (0.5 hour) * the total compensation 
from BLS discussed in Section VI.A.5 ($39.55) * Estimated annual 
population who would file Form I-539 using FY2014-FY2018 data from 
USCIS (204,570) = $4,045,372 (rounded).
---------------------------------------------------------------------------

ii. Transfer Payments
    As noted above, the 2019 Final Rule was also associated with 
widespread indirect effects, primarily with respect to those who were 
not subject to the 2019 Final Rule in the first place, such as U.S.-
citizen children in mixed-status households, longtime lawful permanent 
residents who are only subject to the public charge ground of 
inadmissibility in limited circumstances, and noncitizens in a 
humanitarian status who would be exempt from the public charge ground 
of inadmissibility in the context of adjustment of status.\648\ DHS

[[Page 55621]]

expects that similar effects would occur under the Alternative. DHS 
estimates that the total annual transfer payments from the Federal 
Government to public benefits recipients who are members of households 
that include noncitizens would be approximately $3.79 billion lower. 
DHS also estimates that the total annual transfer payments from the 
State Government to public benefits recipients would be approximately 
$2.63 billion lower.\649\ DHS notes that as a formal matter, the 
estimated reduction in annual transfer payments is a transfer, which is 
a monetary payment from one group to another that does not affect total 
resources. In addition, the transfers estimated in this analysis relate 
predominantly to enrollment decisions made by those who are not subject 
to the public charge ground of inadmissibility. The consequences of 
reduction in transfer payments represents significantly broader effects 
than any disenrollment that would result among people actually 
regulated by this Alternative.
---------------------------------------------------------------------------

    \648\ Hamutal Bernstein et al., ``Immigrant Families Continued 
Avoiding the Safety Net during the COVID-19 Crisis,'' Urban 
Institute (2021), https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (Bernstein et al. (2021)) (last visited Aug. 17, 2022). 
Several additional studies are cited in the discussion below, 
repeatedly finding that it was those individuals not subject to INA 
sec. 212(a)(4) who typically chose to disenroll or refrain from 
enrolling in public benefits, due to fear of adverse consequences 
from the 2019 Final Rule throughout its rulemaking process. 
Relatively few noncitizens in the United States are both subject to 
INA sec. 212(a)(4) and eligible for public benefits prior to 
adjustment of status (see Table 3 above).
    \649\ Total annual Federal and State reduction in transfer 
payment = (Estimated Reduction in Transfer Payments Based on the 
Federal government from Table 21)/(average Federal Medical 
Assistance Percentages (FMAP) across all States and U.S. 
territories) = $3,786,574,510/0.59 = $6.42 billion (rounded). The 
State portion of reduction in transfer payments is Total annual 
Federal and State reduction in transfer payment minus the Federal 
portion. Calculation: $2.63 billion = $6.42 billion-$3.79 billion.
---------------------------------------------------------------------------

    As noted below, DHS is unable to estimate the downstream effects 
that would result from such decreases. DHS expects that in some cases, 
a decrease in transfers associated with one program or service would 
include an increase in transfers associated with other programs or 
services, such as programs or services delivered by nonprofits.
    In the 2019 Final Rule, DHS estimated the reduction in transfer 
payments by multiplying a disenrollment/forgone enrollment rate of 2.5 
percent by an estimate of the number of public benefits recipients who 
are members of households that include noncitizens (i.e., the 
population that may disenroll) and then multiplying the estimated 
population by an estimate of the average annual benefit received per 
person or household for the covered benefits.
    In the 2019 Final Rule, DHS estimated the 2.5 percent 
disenrollment/forgone enrollment rate by dividing the annual number of 
approved noncitizens who adjusted status annually by the estimated 
noncitizen population of the United States.\650\ DHS estimated this 
disenrollment rate as the five-year average annual number of persons 
adjusting status as a percentage of the estimated noncitizen population 
in the United States (2.5 percent). This estimate reflected an 
assumption that 100 percent of such noncitizens and their household 
members are either enrolled in or eligible for public benefits and will 
be sufficiently concerned about potential consequences of the policies 
in this final rule to disenroll or forgo enrollment in public benefits. 
The resulting transfer estimates would therefore have had a tendency 
toward overestimation, at least as it relates to the population that 
would be directly regulated by the 2019 Final Rule.
---------------------------------------------------------------------------

    \650\ ``Inadmissibility on Public Charge Grounds,'' 83 FR 41292, 
41463 (Aug. 14, 2019).
---------------------------------------------------------------------------

    In the 2019 Final Rule, DHS assumed that the population likely to 
disenroll from or forgo enrollment in public benefits programs in any 
year would be public benefits recipients who were members of households 
(or in the case of rental assistance, households as a unit) including 
foreign-born non-citizens who were adjusting status annually. But as 
discussed below, this approach may have resulted in an underestimate 
due to the documented chilling effects associated with the 2019 Final 
Rule among other parts of the noncitizen and citizen populations who 
were not included as adjustment applicants or members of households of 
adjustment applicants as well as other noncitizens who were not 
adjustment applicants. For the low estimate, DHS uses the same 
methodology, but with updated data, to estimate that the low rate of 
disenrollment or forgone enrollment due to the Alternative would be 3.1 
percent.651 652
---------------------------------------------------------------------------

    \651\ Calculation, based on 5-year averages over the period 
fiscal year 2014-2018: (690,837 receipts for I-485, adjustments of 
status/22,289,490 estimated noncitizen population) * 100 = 3.1 
percent (rounded). 22,289,490 (estimated noncitizen population): 
U.S. Census Bureau American Database, ``S0501: Selected 
Characteristics of the Native and Foreign-born Populations 2018 
American Community Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci (last visited Aug. 17, 2022).
    \652\ In the 2019 Final Rule, the rate of disenrollment or 
forgone enrollment was calculated using number of I-485 approvals 
rather than receipts. For this analysis DHS elected to use I-485 
receipts because the public charge inadmissibility ground is applied 
to all those who file the application for adjustment of status not 
just those who are approved.
---------------------------------------------------------------------------

    Since the publication of the 2019 Final Rule, several studies have 
been published that discuss the impact of the 2019 Final Rule on the 
rate of public benefit disenrollment or forgone enrollment (i.e., a 
chilling effect). Studies conducted between 2016 and 2020 show 
reductions in enrollment in public benefits programs due to a chilling 
effect ranging from 4.1 percent to 48 percent.653 654 The 
results of these studies depend on several factors, such as the sample 
examined or the period or method of analysis. The Public Charge NPRM 
was published in late 2018 and the 2019 Final Rule was finalized in 
August 2019. The 2019 Final Rule became effective in February 2020. 
However, after subsequent legal challenges to the 2019 Final Rule, it 
was vacated in March 2021. Given this timeline, several studies show 
that the largest observed disenrollment from or forgone enrollment in 
public benefit programs occurred between 2018 and 2019.\655\ Capps et 
al. (2020) looked at benefits usage across all groups and observed that 
enrollment was declining over this time period for all groups (albeit 
with consistently more significant reductions in enrollment among 
noncitizens or those in mixed-status households than among the public 
at large). Capps et al. (2020) attributed the reduction in enrollment 
in the overall U.S. population to the improving economic conditions 
between 2016 and 2019, although other factors may also have influenced 
these rates.\656\
---------------------------------------------------------------------------

    \653\ Randy Capps et al., ``Anticipated ``Chilling Effects'' of 
the public-charge rule are real: Census data reflect steep decline 
in benefits use by immigrant families,'' Migration Policy Institute 
(2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (Capps et al. (2020)) (last 
visited Aug. 17, 2022). Note: This study finds a 4.1-percent 
decrease in Medicaid/CHIP enrollment from 2016 to 2017 for low-
income noncitizens.
    \654\ Bernstein et al. (2021).
    \655\ Capps et al. (2020).
    \656\ See, e.g., Capps et al. (2020).
---------------------------------------------------------------------------

    Some studies examined different samples such as low-income 
noncitizens,\657\ low-income citizens,\658\ adults in immigrant 
families,\659\ immigrant families with children,\660\ or

[[Page 55622]]

low-income immigrant adults.\661\ The studies show that the 2019 Final 
Rule directly or indirectly affected adult noncitizens and indirectly 
affected adults in immigrant families who are lawful permanent 
residents or naturalized citizens.\662\ One study shows that immigrant 
families with children reported a greater reduction in public benefit 
enrollment (20.4 percent) compared to immigrant families without 
children (10 percent) in 2019.\663\ Another study shows the reduction 
in public benefit program enrollment also differs by the type of the 
public benefit program examined.\664\ This study found reduced 
enrollment in SNAP, Medicaid/CHIP, and TANF and General Assistance 
(TANF/GA), but noted that the reduction was relatively larger for TANF/
GA (12 percent annualized reduction among low-income individuals from 
2016 to 2019) and SNAP (12 percent annualized reduction), as compared 
to Medicaid/CHIP (7 percent annualized reduction).\665\ The study 
observed that participation in all three programs fell about twice as 
fast over the 2016 to 2019 period for U.S.-citizen children with 
noncitizens in the household as for those with only citizens in the 
household.
---------------------------------------------------------------------------

    \657\ Capps et al. (2020).
    \658\ Benjamin Sommers, ``Assessment of Perceptions of the 
Public Charge Rule Among Low-Income Adults in Texas,'' JAMA Network 
(July 15, 2020), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2768245 (last visited Aug. 17, 2022).
    \659\ Hamutal Bernstein et al., ``One in Seven Adults in 
Immigrant Families Reported Avoiding Public Benefit Programs in 
2018,'' Urban Institute (May 2019), https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant_families_reported_avoiding_publi_8.pdf (last visited Aug. 17, 2022).
    \660\ Jennifer Haley et al., ``One in Five Adults in Immigrant 
Families with Children Reported Chilling Effects on Public Benefit 
Receipt in 2019,'' Urban Institute (2020), https://www.urban.org/sites/default/files/publication/102406/one-in-five-adults-in-immigrant-families-with-children-reported-chilling-effects-on-public-benefit-receipt-in-2019.pdf.
    \661\ Susan Babey et al., ``One in 4 Low-Income Immigrant Adults 
in California Avoided Public Programs, Likely Worsening Food 
Insecurity and Access to Health Care,'' UCLA Center for Health 
Policy Research (2021), https://healthpolicy.ucla.edu/publications/Documents/PDF/2021/publiccharge-policybrief-mar2021.pdf.
    \662\ Hamutal Bernstein et al., ``One in Seven Adults in 
Immigrant Families Reported Avoiding Public Benefit Programs in 
2018,'' Urban Institute (May 2019), https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant_families_reported_avoiding_publi_8.pdf (last visited Aug. 17, 2022).
    \663\ Jennifer Haley et al., ``One in Five Adults in Immigrant 
Families with Children Reported Chilling Effects on Public Benefit 
Receipt in 2019,'' Urban Institute (June 2020), https://www.urban.org/sites/default/files/publication/102406/one-in-five-adults-in-immigrant-families-with-children-reported-chilling-effects-on-public-benefit-receipt-in-2019.pdf.
    \664\ Capps et al. (2020).
    \665\ Capps et al. (2020). See Figure 1 for changes in 
participation by low-income noncitizens from 2016 to 2019 (37 
percent decrease in SNAP, 37 percent decrease in TANF/GA, and 20 
percent decrease in Medicaid/CHIP), which are not adjusted to 
account for other variables. DHS calculates annualized reduction 
among low-income noncitizen from 2016 to 2019: for TANF/GA (12 
percent) = 37 percent/3 years = 12 (rounded), for SNAP (12 percent) 
= 37 percent/3 years = 12 (rounded), and Medicaid/CHIP (7 percent) = 
20 percent/3 years = 7 (rounded).
---------------------------------------------------------------------------

    Due to the uncertainty of the rate of disenrollment or forgone 
enrollment in public benefits programs related to the 2019 Final Rule, 
DHS uses a range of rates to estimate the change in Federal Government 
transfer payments that would be associated with the Alternative. For 
estimating the lower bound of the range, DHS uses a 3.1 percent rate of 
disenrollment or forgone enrollment in public benefits programs based 
on the estimation methodology from the 2019 Final Rule (as discussed 
above).
    DHS bases the upper bound of the range on the results of studies by 
Bernstein, Gonzalez, Karpman, and Zuckerman (Bernstein et al. [2019] 
\666\ and Bernstein et al. [2020] \667\), which provided an average of 
14.7 percent rate of disenrollment or forgone enrollment in public 
benefits programs. These studies observed reductions in the public 
benefit participation rate for adults in immigrant families in 2018 and 
2019. Bernstein et al. (2019; 2020) uses a population of nonelderly 
adults who are foreign born or living with a foreign-born relative in 
their household--this matches the population of mixed-status households 
for which DHS estimates for the Alternative the rate of disenrollment 
from or forgone future enrollment in a public benefits program. Other 
studies such as Capps et al. (2020) examined a chilling effect among 
low-income families, which only covers a subset of the population of 
interest. One study showed that in 2020, more than one in six adults in 
immigrant families (17.8 percent) reported avoiding a noncash 
government benefit program or other help with basic needs because of 
green card concerns or other worries about immigration status or 
enforcement, and more than one in three adults in families in which one 
or more members do not have a green card (36.1 percent) reported these 
broader chilling effects.\668\ Looking at the subset of the noncitizen 
population, however, shows a larger chilling effect as this smaller 
group likely experienced a larger disenrollment rate. However, this 
small population does not capture other noncitizen groups that might 
have also disenrolled in public benefits. DHS chose to use the two 
Bernstein studies described below, because the studies analyze the 
impact on the broader population of noncitizens, which includes the 
smaller subsets identified in the other studies.
---------------------------------------------------------------------------

    \666\ Hamutal Bernstein et al., ``One in Seven Adults in 
Immigrant Families Reported Avoiding Public Benefit Programs in 
2018,'' Urban Institute (May 2019), https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant_families_reported_avoiding_publi_8.pdf (last visited Aug. 17, 2022).
    \667\ Hamutal Bernstein et al., ``Amid Confusion over the Public 
Charge Rule, Immigrant Families Continued Avoiding Public Benefits 
in 2019,'' Urban Institute (May 2020), https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_3.pdf (last visited Aug. 16, 2022).
    \668\ Bernstein et al. (2021).
---------------------------------------------------------------------------

    Bernstein et al. (2019; 2020) examined beneficiaries of SNAP, 
Medicaid, and housing subsidies, which are public benefits programs 
considered for public charge inadmissibility determinations under the 
Alternative. However, Bernstein et al. (2019; 2020) does not include 
other public benefit programs considered for public charge 
inadmissibility determinations under the Alternative, such as TANF or 
SSI. Since DHS estimates the change in transfer payments for Medicaid, 
SNAP, TANF, SSI, and housing subsidies, DHS uses an overall average 
rate of chilling effect, based on the chilling effects reported by 
Bernstein et al. (2019; 2020).
    Bernstein et al. (2019) showed that 13.7 percent of adults in 
immigrant families reported that they (i.e., the respondent) or a 
family member avoided a noncash government benefit program in 2018. 
Bernstein et al. (2020) showed that 15.6 percent of adults in immigrant 
families reported that they (the respondent) or a family member avoided 
a noncash government benefit program in 2019. DHS calculates a simple 
average of these two percentages (13.7 percent and 15.6 percent) from 
the Bernstein et al. (2019; 2020) studies to arrive at the estimated 
annual decrease of 14.7 percent described above.
    As with the lower estimate discussed above, DHS acknowledges that 
this upper estimate could be an underestimate or an overestimate. The 
upper bound estimate of a 14.7 percent rate of disenrollment or forgone 
enrollment may result in an underestimate since the Bernstein et al. 
(2019; 2020) studies did not include all the public benefit programs 
such as TANF and SSI. As shown in Capps et al. (2020), cash assistance 
public benefit programs TANF/GA, as well as SNAP experienced a greater 
rate in disenrollment relative to Medicaid/CHIP. On the other hand, the 
upper estimate of a 14.7 percent rate of disenrollment or forgone 
enrollment may result in an overestimate. While Capps et al. (2020) 
noted that during the period between 2016 and 2019 participation in 
public benefits was declining for both U.S. citizens and noncitizens 
(albeit at significantly different rates), the disenrollment rates 
produced in the Bernstein et al. (2019; 2020) studies did not control 
for overall trends in the U.S. population at large.
    Bernstein et al. (2019; 2020) population estimates are based on a 
nationally representative survey of

[[Page 55623]]

nonelderly adults who are foreign born or living with a foreign-born 
relative in their household. From there, Bernstein et al. (2019; 2020) 
compare the disenrollment year over year for Medicaid/CHIP, SNAP, or 
housing subsidies to arrive at an overall disenrollment rate of 13.7 
percent in 2018 and 15.6 percent in 2019. Many studies discussed 
earlier in this section similarly attempted to measure the 
disenrollment or forgone enrollment rate due to the 2019 Final Rule. 
These studies show reductions in enrollment in public benefits programs 
due to a chilling effect ranging from 4.1 percent to 36.1 percent. DHS 
uses the estimates of the chilling effect by Bernstein et al. (2019; 
2020) as a proxy because their population closely matches the 
population of interest for this analysis whereas the other studies 
looked at a smaller subset of the population. Compared to other 
studies, Bernstein et al. (2019; 2020) also measures the chilling 
effect as either not applying for or stopping participation in public 
benefit program.
    DHS uses 8.9 percent as the primary estimate in order to estimate 
the annual reduction in Federal Government transfer payments associated 
with the Alternative, which is the midpoint between the lower estimate 
(3.1 percent) and the upper estimate (14.7 percent) of disenrollment or 
forgone enrollment in public benefits programs. DHS chose to provide a 
range due to the difficulty in estimating the effect on various 
populations.
    Using the primary estimate rate of disenrollment or forgone 
enrollment in public benefits programs of 8.9 percent, DHS estimates 
that the total annual reduction in transfer payments from the Federal 
Government to individuals who may choose to disenroll from or forgo 
enrollment in public benefits programs. Based on the data presented 
below, DHS estimates that the total annual reduction in transfer 
payments paid by the Federal Government to individuals who may choose 
to disenroll from or forgo enrollment in public benefits programs would 
be approximately $3.79 billion for an estimated 819,599 individuals and 
31,940 households across the public benefits programs examined.
    To estimate the reduction in transfer payments under the 
Alternative, DHS must multiply the estimated disenrollment/forgone 
enrollment rate of 8.9 percent by: (1) the population of analysis 
(i.e., those who may disenroll from or forgo enrollment in Medicaid, 
SNAP, TANF, SSI, and Federal rental assistance, the programs that would 
be covered under the Alternative); \669\ and (2) the value of the 
forgone benefits.
---------------------------------------------------------------------------

    \669\ DHS recognizes that the rule would create a similar 
disincentive to receipt of TANF and SSI by certain noncitizens, 
although DHS expects that the scope and relative simplicity of this 
rule, and the fact that these benefits have been considered in 
public charge inadmissibility determinations since 1999, would 
mitigate chilling effects to some extent. Note that the Medicaid 
enrollment does not include child enrollment because the 2019 Final 
Rule did not include Medicaid or CHIP for children.
---------------------------------------------------------------------------

    Table 17 shows the estimated population of public benefits 
recipients who are members of households that include noncitizens. DHS 
assumes that this is the population of individuals who may disenroll 
from or forgo enrollment in public benefits under the Alternative. The 
table also shows estimates of the number of households with at least 
one noncitizen family member that may have received public 
benefits.670 671 Based on the number of households with at 
least one noncitizen family member, DHS estimates the number of public 
benefits recipients who are members of households that include at least 
one noncitizen who may have received benefits using the U.S. Census 
Bureau's estimated average household size for foreign-born 
households.672 673
---------------------------------------------------------------------------

    \670\ See U.S. Census Bureau, ``American Community Survey and 
Puerto Rico Community Survey 2020 Subject Definitions,'' https://www2.census.gov/programs-surveys/acs/tech_docs/subject_definitions/2020_ACSSubjectDefinitions.pdf (last visited Aug. 17, 2022). The 
foreign-born population includes anyone who was not a U.S. citizen 
or a U.S. national at birth, which includes respondents who 
indicated they were a U.S. citizen by naturalization or not a U.S. 
citizen. The ACS questionnaires do not ask about immigration status 
but uses responses to determine the U.S. citizen and non-U.S.-
citizen populations as well as to determine the native and foreign-
born populations. The population surveyed includes all people who 
indicated that the United States was their usual place of residence 
on the survey date. The foreign-born population includes naturalized 
U.S. citizens, lawful permanent residents, noncitizens with a 
nonimmigrant status (e.g., foreign students), noncitizens with a 
humanitarian status (e.g., refugees), and noncitizens present 
without a lawful immigration status.
    \671\ To estimate the number of households with at least 1 
foreign-born noncitizen family member that have received public 
benefits, DHS calculated the overall percentage of total U.S. 
households that are foreign-born noncitizen as 6.9 percent. 
Calculation: [22,289,490 (Foreign-born noncitizens)/322,903,030 
(Total U.S. population)] * 100 = 6.9 percent. See U.S. Census Bureau 
American Database, ``S0501: Selected Characteristics of the Native 
and Foreign-born Populations 2018 American Community Survey (ACS) 5-
year Estimates,'' https://data.census.gov/cedsci (last visited Aug. 
17, 2022).
    \672\ See U.S. Census Bureau American Database, ``S0501: 
Selected Characteristics of the Native and Foreign-born Populations 
2018 American Community Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci (last visitedAug. 17, 2022). The average 
foreign-born household size is reported as 3.31 persons. DHS 
multiplied this figure by the estimated number of benefits-receiving 
households with at least 1 foreign-born noncitizen receiving 
benefits to estimate the population living in benefits-receiving 
households that include a foreign-born noncitizen.
    \673\ In this analysis, DHS uses the American Community Survey 
(ACS) to develop population estimates along with beneficiary data 
from each of the benefits program. DHS notes that the ACS data were 
used for the purposes of this analysis because it provided a cross-
sectional survey based on a random sample of the population each 
year including current immigration classifications. Both surveys 
reflect use by noncitizens of the public benefits included in the 
Alternative.
---------------------------------------------------------------------------

    In order to estimate the population of public benefits recipients 
who are members of households that include at least one noncitizen DHS 
uses a 5-year average of public benefit recipients' data from FY 2014 
to FY 2018. Although data from FY 2019 to FY 2021 were available, DHS 
opted not to use data from these years because the populations of 
public benefit recipients in those years were affected by both the 2019 
Final Rule and the COVID-19 pandemic.
    Consistent with the approach DHS took in the 2019 Final Rule, DHS's 
methodology was as follows. First, for most of the public benefits 
programs analyzed, DHS estimated the number of households with at least 
one person receiving such benefits by dividing the number of people 
that received public benefits by the U.S. Census Bureau's estimated 
average household size of 2.63 for the U.S. total population.\674\ 
Second, DHS estimated the number of such households with at least one 
noncitizen resident. According to the U.S. Census Bureau population 
estimates, the noncitizen population is 6.9 percent of the U.S. total 
population.\675\ While there may be some variation in the percentage of 
noncitizens who receive public benefits, including depending on which 
public benefits program one considers, DHS assumes in this economic 
analysis that the percentage holds across the populations of the 
various public benefits programs. Therefore, to estimate the number of 
households with at least one noncitizen who receives public benefits, 
DHS multiplies the estimated number of households for each public 
benefits program by 6.9 percent. This step may introduce uncertainty 
into the estimate because the percentage of households with at least 
one noncitizen may differ from the

[[Page 55624]]

percentage of noncitizens in the population. However, if noncitizens 
tend to be grouped together in households, then an overestimation of 
households that include at least one noncitizen is more likely.
---------------------------------------------------------------------------

    \674\ See U.S. Census Bureau Database, ``S0501: Selected 
Characteristics of the Native and Foreign-born Populations 2018 
American Community Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci (last visited Aug. 17, 2022).
    \675\ See U.S. Census Bureau Database, ``S0501: Selected 
Characteristics of the Native and Foreign-born Populations 2018 
American Community Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci. Calculation: [22,289,490 (Foreign-born 
noncitizens)/322,903,030 (Total U.S. population)] * 100 = 6.9 
percent.
---------------------------------------------------------------------------

    DHS then estimates the number of noncitizens who received benefits 
by multiplying the estimated number of households with at least one 
noncitizen who receives public benefits by the U.S. Census Bureau's 
estimated average household size of 3.31 for those who are foreign-
born.\676\
---------------------------------------------------------------------------

    \676\ See U.S. Census Bureau Database, ``S0501: Selected 
Characteristics of the Native and Foreign-born Populations 2018 
American Community Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci (last visited Aug. 17, 2022).
[GRAPHIC] [TIFF OMITTED] TR09SE22.036


[[Page 55625]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.037


[[Page 55626]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.038

    In order to estimate the economic impact of disenrollment or 
forgone enrollment from public benefits programs, it is necessary to 
estimate the typical annual public benefits a person receives for each 
public benefits program included in this economic analysis. DHS 
estimated the annual benefit received per person for each public 
benefit program in Table 19. For each benefit but Medicaid, the benefit 
per person is calculated for each public benefit program by dividing 
the average annual program payments by the average annual total number 
of recipients.\677\ For Medicaid, DHS uses Centers for Medicare & 
Medicaid Services' (CMS) median per capita expenditure estimate across 
all States for 2018. To the extent that data are available, these 
estimates are based on 5-year annual averages for the years between FY 
2014 and FY 2018.
---------------------------------------------------------------------------

    \677\ DHS notes that the amounts presented may not account for 
overhead costs associated with administering each of these public 
benefits programs. The costs presented are based on amounts 
recipients have received in benefits as reported by benefits-
granting agencies.

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

[[Page 55627]]

[GRAPHIC] [TIFF OMITTED] TR09SE22.039


[[Page 55628]]


[GRAPHIC] [TIFF OMITTED] TR09SE22.040

    As discussed earlier, using the midpoint reduction rate of 8.9 
percent, Table 20 shows the estimated population that would be likely 
to disenroll or forgo enrollment in a federally funded public benefits 
program under the Alternative.

[[Page 55629]]

[GRAPHIC] [TIFF OMITTED] TR09SE22.041

    Table 20 shows the estimated population that would be likely to 
disenroll from or forgo enrollment in federally funded public benefits 
programs due to the Alternative's indirect chilling effect. The table 
also

[[Page 55630]]

presents the previously estimated average annual benefit per person who 
received benefits for each of the public benefits programs.\678\ 
Multiplying the estimated population that would be likely to disenroll 
from or forgo enrollment in public benefit programs due to the 
Alternative by the average annual benefit per person who received 
benefits for each of the public benefit programs, DHS estimates that 
the total annual reduction in transfer payments paid by the Federal 
Government to individuals who may choose to disenroll from or forgo 
enrollment in public benefits programs would be approximately $3.79 
billion for an estimated 819,599 individuals and 31,927 households 
across the public benefits programs examined. As these estimates 
reflect only Federal financial participation in programs whose costs 
are shared by U.S. States, there may also be additional reductions in 
transfer payments from U.S. States to individuals who may choose to 
disenroll from or forgo enrollment in a public benefits program.
---------------------------------------------------------------------------

    \678\ As previously noted, the average annual benefits per 
person amounts presented may not account for overhead costs 
associated with administering each of these public benefits programs 
since they are based on amounts recipients have received in benefits 
as reported by benefits-granting agencies. Therefore, the costs 
presented may underestimate the total amount of transfer payments to 
the Federal Government.
---------------------------------------------------------------------------

    Since the Federal share of Federal financial participation (FFP) 
varies from State to State, DHS uses the average Federal Medical 
Assistance Percentages (FMAP) across all States and U.S. territories of 
59 percent to estimate the total reduction of transfer payments for 
Medicaid.\679\ DHS acknowledges that the estimate of 59 percent might 
be an underestimate because it does not include higher percentage of 
FMAP for States that were provided enhanced FMAP by the Affordable Care 
Act's Medicaid expansion nor any additional increase in FMAP due to the 
Families First Coronavirus Relief Act. Table 21 shows that Federal 
annual transfer payments for Medicaid would be reduced by about $2.4 
billion under the Alternative. From this amount and the average FMAP of 
59 percent, DHS calculates the total reduction in transfer payments 
from Federal and State governments to individuals to be about $4.07 
billion.\680\ From that total amount, DHS estimates State annual 
transfer payments would be reduced by approximately $1.67 billion due 
to the disenrollment or forgone enrollment of foreign-born noncitizens 
and their households from Medicaid.\681\
---------------------------------------------------------------------------

    \679\ See ``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).
    \680\ Total annual Federal and State reduction in transfer 
payment for Medicaid = (Estimated Reduction in Transfer Payments 
Based on a 8.9% Rate of Disenrollment or Forgone Enrollment for 
Medicaid from Table 21)/(average Federal Medical Assistance 
Percentages (FMAP) across all States and U.S. territories) = 
$2,403,360,488/0.59 = $4.07 billion (rounded).
    \681\ State annual reduction in transfer payment for Medicaid 
=Total annual Federal and State reduction in transfer payment for 
Medicaid--Federal annual reduction in transfer payment for Medicaid 
= $4.07 billion-$2.40 billion = $1.67 billion.
---------------------------------------------------------------------------

    For the purpose of this analysis DHS conservatively assumes that, 
for SNAP, TANF and Federal Rental Assistance, the Federal Government 
pays 100 percent of benefits values included in Table 18 and Table 19 
above. Therefore, Table 20 shows the Federal share of annual transfer 
payments would be about $0.96 billion for SNAP, TANF, and Federal 
Rental Assistance.\682\ For SSI, the maximum Federal benefit changes 
yearly. Effective January 1, 2022, the maximum Federal benefit was $841 
monthly for an individual and $1,261 monthly for a couple. Some States 
supplement the Federal SSI benefit with additional payments, which make 
the total SSI benefit levels higher in those States.\683\ Moreover, the 
estimates of expenditures for Federal Rental Assistance relate to 
purely Federal funds, although housing programs are administered by 
State and local public housing authorities, which may supplement 
program funding. However, DHS is unable to quantify the State portion 
of the transfer payment due to a lack of data related to State-level 
administration of these public benefit programs.
---------------------------------------------------------------------------

    \682\ From Table 21, transfer payment reduction for SNAP is 
$661,704,855, for TANF is $29,678,326, and for Federal Rental 
Assistance is $ 269,176,537. Calculation of the sum: $960,559,718 
($0.96 billion).
    \683\ See SSI information available at https://www.ssa.gov/policy/docs/statcomps/supplement/2021/ssi.html.

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[[Page 55631]]

[GRAPHIC] [TIFF OMITTED] TR09SE22.042

    As shown in Table 21, applying the same calculations using the low 
estimate of 3.1 percent, DHS estimates that the total annual reduction 
in transfer payments paid by the Federal government to individuals who 
may choose to disenroll from or forgo enrollment in public benefits 
programs would be approximately $1.32 billion for an estimated 285,479 
individuals and 11,121 households across the public benefits programs 
examined. For the high estimate of 14.7 percent DHS estimates that the 
total annual reduction in transfer payments paid by the Federal 
government to individuals who may choose to disenroll from or forgo 
enrollment in public benefits programs would be approximately $6.25 
billion for an estimated 1,353,720 individuals and 52,733 households 
across the public benefits programs examined.

[[Page 55632]]

[GRAPHIC] [TIFF OMITTED] TR09SE22.043

    In the 2019 Final Rule, DHS anticipated that USCIS' review of 
public charge inadmissibility would substantially increase the number 
of denials for adjustment of status applicants because of the rule's 
provisions and process for public charge determinations. However, USCIS 
data show that the 2019 Final Rule did not result in the anticipated 
increase in denials of adjustment of status applications based on the 
public charge ground of inadmissibility during the period it was in 
effect between February 2020 and March 2021. During the year the 2019 
Final Rule was in effect, DHS issued only 3 denials (which were 
subsequently reopened and approved) and 2 Notices of Intent to Deny 
(which were ultimately rescinded and the applications were approved) 
based on the totality of the circumstances public charge 
inadmissibility determination under section 212(a)(4)(A) and (B) of the 
INA, 8 U.S.C. 1182(a)(4)(A) and (B). The 2019 Final Rule thus 
ultimately did not result in any adverse determinations in the 47,555 
applications for adjustment of status to which it was applied.\684\
---------------------------------------------------------------------------

    \684\ USCIS Field Operations Directorate (June 2021); USCIS 
Office of Performance and Quality (June 2021); USCIS Field Office 
Directorate (Oct. 2021).
---------------------------------------------------------------------------

    Comparison of the total direct annual cost between the current 
final rule and the Alternative show that the direct cost of the 
Alternative is greater than that of the final rule. Although the 
Alternative would indirectly have the effect of a larger reduction of 
transfer payments than the final rule, likely primarily among those not 
regulated by the Alternative, transfer payments are not considered to 
be costs or benefits of a rule. Rather, they are transfers from one 
group to another group that do not themselves entail a net gain or loss 
to society.
    For instance, Bernstein et al. (2020) found that the chilling 
effect on public benefits associated with the 2019 Final Rule is 
partially attributable to confusion and misunderstanding. That study 
finds that two-thirds of adults in immigrant families (66.6 percent) 
were aware of the 2019 Final Rule, and 65.5 percent were confident in 
their understanding about the rule. Yet only 22.7 percent knew it does 
not apply to applications for naturalization, and only 19.1 percent 
knew children's enrollment in Medicaid would not be considered in their 
parents' public charge determinations. These results suggest that under 
the Alternative, parents might pull their eligible U.S.-citizen 
children out of crucial benefit programs, and current lawful permanent 
residents might choose not to enroll in safety net programs for which 
they might be eligible for fear of risking their citizenship 
prospects.\685\
---------------------------------------------------------------------------

    \685\ Bernstein et al. (2020).
---------------------------------------------------------------------------

iii. Additional Indirect Effects
    DHS notes that there would likely be additional indirect effects 
related to increased disenrollment or forgone enrollment in public 
benefit programs. As individuals disenroll or forgo public benefit 
program enrollment, costs associated with administration of public 
benefit programs might decrease insofar

[[Page 55633]]

as administration costs are correlated with enrollment.\686\
---------------------------------------------------------------------------

    \686\ DHS notes that Federal, State, and local governments share 
administrative costs (with the Federal Government contributing 
approximately 50 percent) for SNAP. See USDA, ``Characteristics of 
Supplemental Nutrition Assistance Program Households: Fiscal Year 
2019,'' at 1, https://fns-prod.azureedge.net/sites/default/files/resource-files/Characteristics2019.pdf, (Mar. 2021) (last visited 
Aug. 17, 2022). DHS notes that because State participation in these 
programs may vary depending on the type of benefit provided, it was 
unable to fully or specifically quantify the impact of State 
transfers. For example, the Federal Government funds all of SNAP 
food expenses, but only 50 percent of allowable administrative costs 
for regular operating expenses (per section 16(a) of the Food and 
Nutrition Act of 2008). See also USDA, ``FNS Handbook 901,'' at 41 
(Jan 2020), https://fns-prod.azureedge.net/sites/default/files/apd/FNS_HB901_v2.2_internet_Ready_Format.pdf). Federal TANF funds can be 
used for administrative TANF costs, up to 15 percent of a State's 
family assistance grant amount. See 45 CFR 263.13(a)(i).
---------------------------------------------------------------------------

    DHS received comments from several States regarding administrative 
costs due to the disruptions in access to public benefit programs. The 
disruptions result in increased ``churn'' as eligible individuals and 
families cycle on and off public benefit program more frequently 
(enrolling at times of great need and disenrolling to avoid risk or due 
to confusion), which will increase States' administrative costs. States 
will also incur additional administrative costs in order to allocate 
resources for consistent and targeted outreach and education, available 
in the individuals' native languages and shared through their social 
networks, in order to allay fears about the public charge rule. One 
State provided comment on administrative costs it incurred due to the 
2019 Final Rule. For the fiscal year 2019, the State funded $1.3 
million in grants to establish capacity within community organizations 
across the State to conduct community education and individual and 
family counseling, including focusing on public charge education and 
outreach to address the misinformation and fear in communities. For 
fiscal years 2020 and 2021, the State funded $2.1 million in grants to 
ensure continued capacity within community organizations across the 
State to conduct community education and individual and family 
counseling on the 2019 Final Rule. State employees dedicated hundreds 
of hours to planning and training State caseworkers and call center 
workers related to 2019 Final Rule. According to the State, the 
estimated administrative cost associated with the State caseworkers is 
over $3 million.
    DHS also notes that there would likely be additional downstream 
indirect effects related to increased disenrollment or forgone 
enrollment in public benefit programs, such as:
     Worse health outcomes, including increased prevalence of 
obesity and malnutrition, especially for pregnant or breastfeeding 
women, infants, or children, and reduced prescription adherence;
     Increased use of emergency rooms and emergent care as a 
method of primary health care due to delayed treatment;
     Increased prevalence of communicable diseases, including 
among members of the U.S. citizen population who are not vaccinated;
     Increases in uncompensated care in which a treatment or 
service is not paid for by an insurer or patient;
     Increased rates of poverty and housing instability; and
     Reduced productivity and educational attainment.\687\
---------------------------------------------------------------------------

    \687\ See 2019 Final Rule RIA at 109.
---------------------------------------------------------------------------

    DHS also

recognize[d] 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.\688\
---------------------------------------------------------------------------

    \688\ 2019 Final Rule RIA at 6.

    In another section of the 2019 Final Rule, DHS stated that it had 
``determined that the rule may decrease disposable income and increase 
the poverty of certain families and children, including U.S. citizen 
children.'' \689\
---------------------------------------------------------------------------

    \689\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292, 
41493 (Aug. 14, 2019).
---------------------------------------------------------------------------

    At the time of the 2019 Final Rule's issuance, one study estimated 
that as many as 3.2 million fewer persons might receive Medicaid due to 
fear and confusion surrounding the 2019 Final Rule, which could lead to 
as many as 4,000 excess deaths every year.\690\ The same study 
estimated that 1.8 million fewer people would use SNAP benefits, even 
though many of them are U.S. citizens. In addition, loss of Federal 
housing security would likely lead to worse health outcomes and 
dependence on other elements of the social safety net for some persons. 
As noted above, E.O. 12866 and E.O. 13563 direct agencies to select 
regulatory approaches that maximize net benefits while giving 
consideration, to the extent appropriate and consistent with law, to 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts. In addition, E.O. 
13563 emphasizes the importance of not only quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility, 
but also considering equity, fairness, distributive impacts, and human 
dignity. DHS recognizes that many of the indirect effects discussed in 
this section implicate values such as equity, fairness, distributive 
impacts, and human dignity. DHS acknowledges that although many of 
these effects are difficult to quantify, they would be an indirect cost 
of the Alternative.
---------------------------------------------------------------------------

    \690\ Leighton Ku, ``New Evidence Demonstrates That the Public 
Charge Rule Will Harm Immigrant Families and Others,'' Health 
Affairs (Oct. 9, 2019), https://www.healthaffairs.org/do/10.1377/hblog20191008.70483/full (last visited Aug. 12, 2022).
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA),\691\ as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA),\692\ 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, and governmental jurisdictions with 
populations of less than 50,000.\693\
---------------------------------------------------------------------------

    \691\ 5 U.S.C. ch. 6.
    \692\ Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 601 
note).
    \693\ 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).
---------------------------------------------------------------------------

    The final rule does not directly regulate small entities and is not 
expected to have a direct effect on small entities. It does not mandate 
any actions or requirements for small entities in the process of a Form 
I-485 Adjustment of Status requestor seeking immigration benefits. 
Rather, this final rule regulates individuals, and individuals are not 
defined as ``small entities'' by the RFA.\694\ Based on the evidence 
presented in this analysis and throughout this preamble, the Secretary 
of Homeland Security certifies that this final rule would not have a 
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \694\ 5 U.S.C. 601(6).
---------------------------------------------------------------------------

C. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among

[[Page 55634]]

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.\695\ 
The inflation-adjusted value of $100 million in 1995 is approximately 
$177.8 million in 2021 based on the Consumer Price Index for All Urban 
Consumers (CPI-U).\696\
---------------------------------------------------------------------------

    \695\ 2 U.S.C. 1532(a).
    \696\ See BLS, ``Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. City Average, All Items'' (Dec 2021), 
https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf. Steps in calculation of inflation: (1) Calculate the 
average monthly CPI-U for the reference year (1995) and the most 
recent current year available (2021); (2) Subtract reference year 
CPI-U from current year CPI-U; (3) Divide the difference of the 
reference year CPI-U and current year CPI-U by the reference year 
CPI-U; (4) Multiply by 100. Calculation of inflation: [(Average 
monthly CPI-U for 2021-Average monthly CPI-U for 1995)/(Average 
monthly CPI-U for 1995)] * 100 = [(270.970-152.383)/152.383] * 100 = 
(118.587/152.383) * 100 = 0.7782 * 100 = 77.82 percent = 77.8 
percent (rounded). Calculation of inflation-adjusted value: $100 
million in 1995 dollars * 1.778 = $177.8 million in 2021 dollars.
---------------------------------------------------------------------------

    The term ``Federal mandate'' means a Federal intergovernmental 
mandate or a Federal private sector mandate.\697\ The term ``Federal 
intergovernmental mandate'' means, in relevant part, a provision that 
would impose an enforceable duty upon State, local, or Tribal 
governments (except as a condition of Federal assistance or a duty 
arising from participation in a voluntary Federal program).\698\ The 
term ``Federal private sector mandate'' means, in relevant part, a 
provision that would impose an enforceable duty upon the private sector 
(except as a condition of Federal assistance or a duty arising from 
participation in a voluntary Federal program).\699\
---------------------------------------------------------------------------

    \697\ See 2 U.S.C. 1502(1), 658(6).
    \698\ 2 U.S.C. 658(5).
    \699\ 2 U.S.C. 658(7).
---------------------------------------------------------------------------

    This final rule does not contain such a mandate, because it does 
not impose any enforceable duty upon any other level of government or 
private sector entity. Any downstream effects on such entities would 
arise solely due to their voluntary choices, and the voluntary choices 
of others, and would not be a consequence of an enforceable duty 
imposed by this rule. Similarly, any costs or transfer effects on State 
and local governments would not result from a Federal mandate as that 
term is defined under UMRA.\700\ The requirements of title II of UMRA, 
therefore, do not apply, and DHS has not prepared a statement under 
UMRA. DHS has, however, analyzed many of the potential effects of this 
action in the RIA above.
---------------------------------------------------------------------------

    \700\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

D. Small Business Regulatory Enforcement Fairness Act of 1996

    The Office of Management and Budget has designated this final rule 
as a major rule as defined by 5 U.S.C. 804.\701\ This final rule likely 
will result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based companies to compete with foreign-based companies 
in domestic and export markets. Accordingly, absent exceptional 
circumstances, this final rule must be effective no earlier than 60 
days after the date on which Congress receives a report submitted by 
DHS as required by 5 U.S.C. 801(a)(1). This final rule will be 
effective December 23, 2022, which meets this requirement.
---------------------------------------------------------------------------

    \701\ See 5 U.S.C. 804(2).
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

    E.O. 13132 was issued to ensure the appropriate division of 
policymaking authority between the States and the Federal Government 
and to further the policies of the Unfunded Mandates Act. This final 
rule would 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. DHS does not expect that this rule would impose substantial 
direct compliance costs on State and local governments or preempt State 
law. Therefore, in accordance with section 6 of E.O. 13132, this final 
rule does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

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, if 
finalized, it would 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, although there are 
references to Indian Tribes in this final rule. 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) financially impacts families, if at all, 
only to the extent such impacts are justified; (6) may be carried out 
by State or local government or by the family; and (7) establishes a 
policy 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.
    DHS has analyzed this final regulatory action in accordance with 
the requirements of section 654 and determined that this final rule 
does not affect family well-being, and therefore DHS is not issuing a 
Family Policymaking Assessment.

I. National Environmental Policy Act

    DHS and its components analyze proposed actions to determine 
whether the National Environmental Policy Act (NEPA) applies to them 
and, if so, what degree of analysis is required. DHS Directive 023-01 
Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01 (Instruction 
Manual) establish the procedures that DHS and its components use to 
comply with NEPA

[[Page 55635]]

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'') that experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an environmental assessment or environmental 
impact statement. 40 CFR 1507.3(e)(2)(ii) and 1501.4. The Instruction 
Manual, Appendix A, Table 1 lists categorical exclusions that DHS has 
found to have no such effect. Under DHS NEPA implementing procedures, 
for an action to be categorically excluded, it must 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. 
Instruction Manual, section V.B.2(a-c).
    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. 
As discussed in detail above, this final rule establishes a definition 
of public charge and specifies the types of public benefits that DHS 
would consider as part of its public charge inadmissibility 
determinations. This list of benefits is the same as under the 1999 
Interim Field Guidance that governed public charge inadmissibility 
determinations for over 20 years. This list of public benefits is 
narrower than under the 2019 Final Rule. This final rule codifies a 
totality of the circumstances framework for the analysis of the 
factors, including statutory minimum factors, used to make public 
charge inadmissibility determinations. This final rule makes changes to 
the regulations governing public charge bonds.
    Given the similarity between this final rule and the 1999 Interim 
Field Guidance with respect to public charge inadmissibility 
determinations, DHS does not anticipate any change in the number of 
individuals admitted to the United States or adjusting status under 
this final rule. DHS does not expect that this final rule would change 
the level of immigration as compared to the No Action Baseline.
    DHS believes this final rule will not result in any meaningful, 
calculable change in environmental effect. This final rule implements 
the public charge ground of inadmissibility in a way that is consistent 
with how DHS has applied the statute since 1999, and the differences 
between the policies in this final rule and the 1999 Interim Field 
Guidance do not change the environmental effect of DHS's current 
approach. DHS has therefore determined that this final rule clearly 
fits within Categorical Exclusion A3(d) in DHS Instruction Manual 023-
01-001-01, the Department's procedures for implementing NEPA issued 
November 6, 2014 (available at https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf), because it interprets or amends a 
regulation without changing its environmental effect. This final rule 
will not result in any major Federal action that will significantly 
affect the quality of the human environment. The new regulations are 
not a part of any larger action, and present no extraordinary 
circumstances creating the potential for significant environmental 
effects. Therefore, this action is categorically excluded and no 
further NEPA analysis is required.
    DHS explicitly requested comments on NEPA in the NPRM, and only one 
commenter addressed it by expressing their understanding that DHS has 
determined that the rule fits within the Categorical Exclusions.

J. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 through 
3512, DHS must submit to OMB, for review and approval, any reporting 
requirements inherent in a rule unless they are exempt. In this final 
rule, DHS invites written comments and recommendations for the proposed 
information collection outlined below within 30 days of publication of 
this notice to https://www.reginfo.gov/public/do/PRAMain. Find this 
particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' or by using the search function.
    DHS and USCIS invited the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice was 
published in the Federal Register to obtain comments regarding the 
proposed edits to the information collection instrument. Comments were 
accepted for 60 days from the publication date of the proposed rule. 
See Section III.N of this preamble for summaries of and responses to 
the comments received regarding the information collection.
    Overview of information collection:
    (1) Type of Information Collection: 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 DHS 
sponsoring the collection: 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 on Form I-485 will be used to request and determine 
eligibility for adjustment of permanent residence status. Supplement A 
is used to adjust status under section 245(i) of the Immigration and 
Nationality Act. Supplement J is used by employment-based applicants 
for adjustment of status who are filing or have previously filed Form 
I-485 as the principal beneficiary of a valid Form I-140 in an 
employment-based immigrant visa category that requires a job offer.
    (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 
690,837 and the estimated hour burden per response is 7.17 hours. The 
estimated total number of respondents for the information collection 
Supplement A is 29,213 and the estimated hour burden per response is 
1.25 hour. The estimated total number of respondents for the 
information collection Supplement J is 37,358 and the estimated hour 
burden per response is 1 hour. The estimated total number of 
respondents for the information collection of Biometrics is 690,837 and 
the estimated hour burden per response is 1.17 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 5,835,455 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 $236,957,091.

[[Page 55636]]

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, Privacy, Immigration, 
Immigration and Naturalization Service, 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 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS; 
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS

0
1. The authority in part 103 continues to read:

    Authority:  5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356, 1365b; 31 U.S.C. 9701; Pub. L. 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; 125 Stat. 550; 31 CFR 
part 223.

0
2. Section 103.6 is amended by revising the paragraph (c) heading and 
paragraph (c)(1) to read as follows:


Sec.  103.6  Immigration Bonds

* * * * *
    (c) Cancellation and breach--(1) Public charge bonds. A public 
charge bond posted for an alien will be cancelled when the alien dies, 
departs permanently from the United States, or is naturalized, provided 
the alien did not breach such bond by receiving either public cash 
assistance for income maintenance or long-term institutionalization at 
government expense prior to death, permanent departure, or 
naturalization. USCIS may cancel a public charge bond at any time after 
determining that the alien is not likely at any time to become a public 
charge. A bond may also be cancelled in order to allow substitution of 
another bond. A public charge bond will be cancelled by USCIS upon 
review following the fifth anniversary of the admission or adjustment 
of status of the alien, provided that the alien has filed Form I-356, 
Request for Cancellation of Public Charge Bond, and USCIS finds that 
the alien did not receive either public cash assistance for income 
maintenance or long-term institutionalization at government expense 
prior to the fifth anniversary. If Form I-356 is not filed, the public 
charge bond will remain in effect until the form is filed and USCIS 
reviews the evidence supporting the form, and renders a decision 
regarding the breach of the bond, or a decision to cancel the bond.
* * * * *

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

0
3. 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, 1187, 1223, 1225, 1226, 1227, 1255, 
1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); Title 
VII of Pub. L. 110-229 (8 U.S.C. 1185 note); 8 CFR part 2; Pub. L. 
115-218.

    Section 212.1(q) also issued under section 702, Pub. L. 110-229, 
122 Stat. 754, 854.

0
4. 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 applicant 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
5. 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 Sec.  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 that of a lawful 
permanent resident.


Sec.  212.21  Definitions.

    For the purposes of Sec. Sec.  212.20 through 212.23, the following 
definitions apply:
    (a) Likely at any time to become a public charge means likely at 
any time to become primarily dependent on the government for 
subsistence, as demonstrated by either the receipt of public cash 
assistance for income maintenance or long-term institutionalization at 
government expense.
    (b) Public cash assistance for income maintenance means:
    (1) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
    (2) Cash assistance for income maintenance under the Temporary 
Assistance for Needy Families (TANF) program, 42 U.S.C. 601 et seq.; or
    (3) State, Tribal, territorial, or local cash benefit programs for 
income maintenance (often called ``General Assistance'' in the State 
context, but which also exist under other names).
    (c) Long-term institutionalization at government expense means 
government assistance for long-term institutionalization (in the case 
of Medicaid, limited to institutional services under section 1905(a) of 
the Social Security Act) received by a beneficiary, including in a 
nursing facility or mental health institution. Long-term 
institutionalization does not include imprisonment for conviction of a 
crime or institutionalization for short periods for rehabilitation 
purposes.
    (d) Receipt (of public benefits). An individual's receipt of public 
benefits occurs when a public benefit-granting agency provides either 
public cash assistance for income maintenance or long-term 
institutionalization at government expense to the individual, where the 
individual is listed as a beneficiary of such benefits. An individual's 
application for a public benefit on their own behalf or on behalf of 
another does not constitute receipt of public benefits by such 
individual.

[[Page 55637]]

Approval for future receipt of a public benefit that an individual 
applied for on their own behalf or on behalf of another does not 
constitute receipt of public benefits by such an individual. An 
individual's receipt of public benefits solely on behalf of a third 
party (including a member of the alien's household as defined in 
paragraph (f) of this section) does not constitute receipt of public 
benefits by such individual. The receipt of public benefits solely by a 
third party (including a member of the alien's household as defined in 
paragraph (f) of this section), even if an individual assists with the 
application process, does not constitute receipt for such individual.
    (e) Government means any Federal, State, Tribal, territorial, or 
local government entity or entities of the United States.
    (f) Household: The alien's household includes:
    (1) The alien;
    (2) The alien's spouse, if physically residing with the alien;
    (3) If physically residing with the alien, the alien's parents, the 
alien's unmarried siblings under 21 years of age, and the alien's 
children as defined in section 101(b)(1) of the Act;
    (4) Any other individuals (including a spouse or child as defined 
in section 101(b)(1) of the Act not physically residing with the alien) 
who are listed as dependents on the alien's federal income tax return; 
and
    (5) Any other individual(s) who lists the alien as a dependent on 
their federal income tax return.


Sec.  212.22  Public charge inadmissibility determination.

    (a) Factors to consider--(1) Consideration of minimum factors: For 
purposes of a public charge inadmissibility determination, DHS will 
consider the alien's:
    (i) Age;
    (ii) Health, as evidenced by a report of an immigration medical 
examination performed by a civil surgeon or panel physician where such 
examination is required (to which DHS will generally defer absent 
evidence that such report is incomplete);
    (iii) Family status, as evidenced by the alien's household size, 
based on the definition of household in Sec.  212.21(f);
    (iv) Assets, resources, and financial status, as evidenced by the 
alien's household's income, assets, and liabilities (excluding any 
income from public benefits listed in Sec.  212.21(b) and income or 
assets from illegal activities or sources such as proceeds from illegal 
gambling or drug sales); and
    (v) Education and skills, as evidenced by the alien's degrees, 
certifications, licenses, skills obtained through work experience or 
educational programs, and educational certificates.
    (2) Consideration of affidavit of support. DHS will favorably 
consider an Affidavit of Support Under Section 213A of the INA, when 
required under section 212(a)(4)(C) or (D) of the Act, that meets the 
requirements of section 213A of the Act and 8 CFR part 213a, in making 
a public charge inadmissibility determination.
    (3) Consideration of current and/or past receipt of public 
benefits: DHS will consider the alien's current and/or past receipt of 
public cash assistance for income maintenance or long-term 
institutionalization at government expense (consistent with Sec.  
212.21(c)). DHS will consider such receipt in the totality of the 
circumstances, along with the other factors. DHS will consider the 
amount and duration of receipt, as well as how recently the alien 
received the benefits, and for long-term institutionalization at 
government expense, evidence submitted by the alien that the alien's 
institutionalization violates federal law, including the Americans with 
Disabilities Act or the Rehabilitation Act. However, current and/or 
past receipt of these benefits will not alone be a sufficient basis to 
determine whether the alien is likely at any time to become a public 
charge. DHS will not consider receipt of, or certification or approval 
for future receipt of, public benefits not referenced in Sec.  
212.21(b) and (c)), such as Supplemental Nutrition Assistance Program 
(SNAP) or other nutrition programs, Children's Health Insurance Program 
(CHIP), Medicaid (other than for long-term use of institutional 
services under section 1905(a) of the Social Security Act), housing 
benefits, any benefits related to immunizations or testing for 
communicable diseases, or other supplemental or special-purpose 
benefits.
    (4) Disability alone not sufficient. A finding that an alien has a 
disability, as defined by Section 504 of the Rehabilitation Act, will 
not alone be a sufficient basis to determine whether the alien is 
likely at any time to become a public charge.
    (b) Totality of the 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. No one factor 
outlined in paragraph (a) of this section, other than the lack of a 
sufficient Affidavit of Support Under Section 213A of the INA, if 
required, should be the sole criterion for determining if an alien is 
likely to become a public charge. DHS may periodically issue guidance 
to adjudicators to inform the totality of the circumstances assessment. 
Such guidance will consider how these factors affect the likelihood 
that the alien will become a public charge at any time based on an 
empirical analysis of the best-available data as appropriate.
    (c) Denial Decision. Every written denial decision issued by USCIS 
based on the totality of the circumstances set forth in paragraph (b) 
of this section will reflect consideration of each of the factors 
outlined in paragraph (a) of this section and specifically articulate 
the reasons for the officer's determination.
    (d) Receipt of public benefits while an alien is in an immigration 
category exempt from public charge inadmissibility. In an adjudication 
for an immigration benefit for which the public charge ground of 
inadmissibility applies, DHS will not consider 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 Sec.  
212.23(a), or for which the alien received a waiver of public charge 
inadmissibility, as set forth in Sec.  212.23(c).
    (e) Receipt of benefits available to refugees. DHS will not 
consider any public benefits that were received by an alien who, while 
not a refugee admitted under section 207 of the Act, is eligible for 
resettlement assistance, entitlement programs, and other benefits 
available to refugees admitted under section 207 of the Act, including 
services described under section 412(d)(2) of the Act provided to an 
unaccompanied alien child as defined under 6 U.S.C. 279(g)(2).


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

[[Page 55638]]

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 Interpreters, or Afghan or Iraqi nationals 
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 
(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 section 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 reregistering 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) Nonimmigrants described in section 101(a)(15)(A)(i) and (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) Nonimmigrants classifiable as C-2 (alien in transit to U.N. 
Headquarters) or C-3 (foreign government official), 22 CFR 41.21(d);
    (15) Nonimmigrants described in section 101(a)(15)(G)(i), (ii), 
(iii), and (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) Nonimmigrants classifiable as NATO-1, NATO-2, NATO-3, NATO-4 
(NATO representatives), and NATO-6 in accordance with 22 CFR 41.21(d);
    (17) Applicants for nonimmigrant status under section 101(a)(15)(T) 
of the Act, in accordance with Sec.  212.16(b);
    (18) Except as provided in paragraph (b) of this section, 
individuals who are 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) Have 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) Have 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 paragraph (b) of this section:
    (i) Petitioners 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) Individuals who are 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 are 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 individuals are 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 paragraph (b) of this section, any 
aliens who are VAWA self-petitioners under section 212(a)(4)(E)(i) of 
the Act;
    (21) Except as provided in paragraph (b) of this section, qualified 
aliens 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;
    (27) Applicants adjusting status who qualify for a benefit under 
Section 7611 of the National Defense Authorization Act for Fiscal Year 
2020, Public Law 116-92, 113 Stat. 1198, 2309 (December 20, 2019) 
(Liberian Refugee Immigration Fairness), later extended by Section 901 
of Division O, Title IX of the Consolidated Appropriations Act, 2021, 
Public Law 116-260 (December 27, 2020) (Adjustment of Status for 
Liberian Nationals Extension);
    (28) Certain Syrian nationals adjusting status under Public Law 
106-378; and
    (29) 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 paragraphs (a)(18) 
through (21) of this section must submit an Affidavit of Support Under 
Section 213A of the INA 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

[[Page 55639]]

    (3) Any other category of aliens who are eligible to receive a 
waiver of the public charge ground of inadmissibility.

PART 213--PUBLIC CHARGE BONDS

0
6. The authority citation for part 213 is revised to read as follows:

    Authority:  8 U.S.C. 1103; 1183; 8 CFR part 2.

0
7. Revise Sec.  213.1 to read as follows:


Sec.  213.1  Admission under bond or cash deposit.

    (a) Public charge bonds for adjustment of status applicants. If, in 
the course of adjudicating an application for adjustment of status to 
that of a lawful permanent resident, USCIS determines that the alien is 
inadmissible only under section 212(a)(4) of the Act, and that the 
application for adjustment of status is otherwise approvable, USCIS may 
invite the alien to submit a public charge bond as a condition of 
approval of the adjustment of status application. Subject to the 
requirements of paragraph (c) of this section and 8 CFR 103.6, USCIS 
will set the bond amount and provide instructions for the submission of 
a public charge bond. Public charge bonds may be in the form of a 
surety bond or an agreement covering cash deposits.
    (b) Public charge bonds requested by consular officers. USCIS may 
accept a public charge bond before the issuance of an immigrant visa to 
the alien upon receipt of a request directly from a United States 
consular officer or upon presentation by an interested person of a 
notification from the consular officer requiring such a bond. The 
consular officer will set the amount of any such bond subject to 
paragraph (c) of this section and will provide instructions for the 
submission of a public charge bond. Upon acceptance of such a bond, 
USCIS will notify the U.S. consular officer who requested the bond, 
giving the date and place of acceptance and the amount of the bond.
    (c) Form and amount of public charge bonds. All bonds and 
agreements covering cash deposits given as a condition of admission or 
adjustment of status of an alien under section 213 of the Act must be 
executed on a form designated by USCIS for that purpose and be in the 
sum set by USCIS under paragraph (a) of this section for adjustment of 
status applicants or the consular officer under paragraph (b) of this 
section for immigrant visa applicants but not less than $1,000. USCIS 
will provide a receipt to the alien or an interested person acting on 
the alien's behalf on a form designated by USCIS for such purpose. All 
public charge bonds are subject to the procedures established in 8 CFR 
103.6 relating to bond riders, acceptable sureties, cancellation of 
bonds, and breach of bonds.

PART 245--ADJUSTMENT OF STATUS TO THAT OF A PERSON ADMITTED FOR 
PERMANENT RESIDENCE

0
8. 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
9. 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 214.11(j). Where the 
alien establishes that the victimization was a central reason for the 
alien's unlawful presence in the United States, section 
212(a)(9)(B)(iii) of the Act is not applicable, and the alien 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.
* * * * *

    Dated: August 26, 2022.
Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2022-18867 Filed 9-8-22; 8:45 am]
BILLING CODE 9111-97-P