[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which is no longer in effect.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
[[Page 55475]]
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.
[[Page 55478]]
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[[Page 55479]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.001
[[Page 55480]]
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[[Page 55481]]
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[[Page 55482]]
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[GRAPHIC] [TIFF OMITTED] TR09SE22.005
[[Page 55484]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.006
[[Page 55485]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.007
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\
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\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\
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\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\
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\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).
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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\
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\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\
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\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.'').
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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.
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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).
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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.
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\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).
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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).
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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).
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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.
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\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).
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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.
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\166\ 962 F.3d 208 (7th Cir. 2020).
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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).
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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\
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\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\
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\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).
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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\
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\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).
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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.
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\178\ ``Inadmissibility on Public Charge Grounds,'' 84 FR 41292,
41483-41484 (Aug. 14, 2019).
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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\
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\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).
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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.''
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\184\ 87 FR at 10607 (Feb. 24, 2022).
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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.
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\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\
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\186\ 8 CFR 212.22(a)(1)(3).
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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\
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\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).
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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.
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\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).
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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\
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\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.
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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\
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\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).
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\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.
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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.
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\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).
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[[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.
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\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).
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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\
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\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.
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\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).
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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.
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\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\
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\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.
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\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\
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\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.
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\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.'').
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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.
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\301\ See 8 CFR 212.21(d).
\302\ See 8 CFR 212.21(d) (emphasis added).
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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.
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\303\ As defined in 8 CFR 212.21(b).
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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).
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\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).
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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).
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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).
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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).
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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.
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\310\ See 8 CFR 2 12.22(b).
\311\ See 8 CFR 212.22(b).
\312\ See 87 FR at 10621 (Feb. 24, 2022).
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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.
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\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.
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\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).
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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).
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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.
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\318\ See 8 CFR 212.23.
\319\ INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A).
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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).
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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.
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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.
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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).
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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\
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\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\
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\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.
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\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\
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\404\ See 8 CFR 212.22(b).
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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)'').
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[[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).
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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.
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\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\
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\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\
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\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\
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\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).
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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.
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\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.
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\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).
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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).
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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).
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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\
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\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).
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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.
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\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).
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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.
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\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).
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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\
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\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).
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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.
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\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).
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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\
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\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).
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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.
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\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).
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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.
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\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.
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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).
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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.
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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.
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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.
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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]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.010
[[Page 55589]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.011
[[Page 55590]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.012
[[Page 55591]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.013
[[Page 55592]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.014
[[Page 55593]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.015
[[Page 55594]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.016
[[Page 55595]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.017
[[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\
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\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]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.019
[[Page 55598]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.020
[[Page 55599]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.021
[[Page 55600]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.022
[[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]]
[GRAPHIC] [TIFF OMITTED] TR09SE22.025
[[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\
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\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.
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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\
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\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.
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\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).
---------------------------------------------------------------------------
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.
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\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.
---------------------------------------------------------------------------
\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.
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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).
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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
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\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).
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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.
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[[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.
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\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).
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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