[Federal Register Volume 90, Number 221 (Wednesday, November 19, 2025)]
[Proposed Rules]
[Pages 52168-52224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-20278]
[[Page 52167]]
Vol. 90
Wednesday,
No. 221
November 19, 2025
Part II
Department of Homeland Security
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8 CFR Part 103 and 212
Public Charge Ground of Inadmissibility; Proposed Rule
Federal Register / Vol. 90 , No. 221 / Wednesday, November 19, 2025 /
Proposed Rules
[[Page 52168]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103 and 212
[CIS No. 2836-25; DHS Docket No. USCIS-2025-0304]
RIN 1615-AD06
Public Charge Ground of Inadmissibility
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS'').
ACTION: Notice of proposed rulemaking.
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SUMMARY: DHS proposes to rescind the 2022 public charge ground of
inadmissibility regulations. The 2022 regulations are not the best
implementation of the statute, inconsistent with congressional intent,
unduly restrictive, and hamper DHS's ability to make accurate, precise,
and reliable determinations of whether certain aliens are likely at any
time to become a public charge. Rescission would restore broader
discretion to evaluate all pertinent facts and align with long-standing
policy that aliens in the United States should be self-reliant and
government benefits should not incentivize immigration. DHS also
proposes to address the breach and cancellation of public charge bonds.
DATES:
NPRM comment period: Written comments on the NPRM must be submitted
on or before December 19, 2025. The electronic Federal Docket
Management System will accept comments prior to midnight eastern time
at the end of that day.
Information collection comment period: Comments on the information
collection described in the Paperwork Reduction Act section below must
be received by January 20, 2026.
ADDRESSES:
Comments on the NPRM: You may submit comments on this NPRM,
identified by DHS Docket No. USCIS-2025-0304, through the Federal e-
Rulemaking Portal: http://www.regulations.gov. In accordance with 5
U.S.C. 553(b)(4), the summary of this rule found above may also be
found at http://www.regulations.gov. Follow the website instructions
for submitting comments.
Comments on the Information Collection: Submit comments on the
information collections to the same docket as the NPRM. In addition,
all comments on the information collections must include the following
OMB Control Numbers: Form I-485 (1615-0023), Form I-945 (1615-0143),
and Form I-356 (1615-0141).
Comments must be submitted in English, or an English translation
must be provided. Comments submitted in a manner other than via http://www.regulations.gov, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the NPRM and may not
receive a response from DHS. Please note that DHS and USCIS cannot
accept any comments that are hand-delivered or couriered. In addition,
USCIS cannot accept comments contained on any form of digital media
storage devices, such as CDs/DVDs and USB drives. USCIS is also not
accepting mailed comments at this time.
If you cannot submit your comment by using http://www.regulations.gov, please contact Regulatory Coordination Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, Department of Homeland Security, by telephone at (240) 721-
3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: U.S. Citizenship and Immigration
Services (USCIS), DHS, 5900 Capital Gateway Drive, Camp Springs, MD
20746; telephone (240) 721-3000 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Legal Authority
C. Summary of the Major Provisions of the Regulatory Action
D. Costs and Benefits
III. Background
A. Legal Authority
B. Grounds of Inadmissibility Generally
C. Public Charge Ground of Inadmissibility
1. Public Charge Statutes and Case Law, Pre-IIRIRA
2. Public Benefits Under PRWORA
3. Changes Under IIRIRA
4. INS 1999 Notice of Proposed Rulemaking and Interim Field
Guidance
5. Victims of Trafficking and Violence Protection Act of 2000
6. DHS 2018 Inadmissibility on Public Charge Grounds Notice of
Proposed Rulemaking and 2019 Final Rule
7. DHS 2022 Public Charge Ground of Inadmissibility Advance
Notice of Proposed Rulemaking, Notice of Proposed Rulemaking, and
Final Rule
IV. Basis and Purpose of the NPRM
A. The Prior Rules Were Overly Restrictive
B. Removal of the Existing Public Charge Inadmissibility
Framework
V. Discussion of the NPRM
A. Introduction
B. Discussion of the Amendments and Removals in the NPRM
1. Cancellation and Breach of Public Charge Bonds--8 CFR
103.6(c)
2. Proposed Removal of Definitions and Regulatory Framework for
Making Public Charge Inadmissibility Determinations--8 CFR 212.21
3. Removal of Regulations Outlining the Public Charge
Inadmissibility Determination--8 CFR 212.22
4. Exemptions and Waivers for Public Charge Ground of
Inadmissibility--8 CFR 212.23
5. Applicability of Public Charge Inadmissibility--8 CFR 212.20
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review),
and 14192 (Unleashing Prosperity Through Deregulation)
1. Summary
2. Background and Purpose
3. Population
4. Cost-Benefit Analysis
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Family Assessment
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act
I. Paperwork Reduction Act
Table of Abbreviations
ANPRM--Advance Notice of Proposed Rulemaking
APA--Administrative Procedure Act
ASC--Application Support Center
BIA--Board of Immigration Appeals
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
CHIP--Children's Health Insurance Program
COVID-19--Coronavirus Disease 2019
CPI-U--Consumer Price Index for All Urban Consumers
DHS--U.S. Department of Homeland Security
DOJ--Department of Justice
DOS--U.S. Department of State
E.O.--Executive Order
FAM--Department of State Foreign Affairs Manual
FFP--Federal Financial Participation
FMAP--Federal Medical Assistance Percentages
FR--Federal Register
FY--Fiscal Year
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
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
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PRWORA--Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
RFA--Regulatory Flexibility Act of 1980
RIA--Regulatory Impact Analysis
SNAP--Supplemental Nutrition Assistance Program
SSA--Social Security Administration
SSI--Supplemental Security Income
TANF--Temporary Assistance for Needy Families
TPS--Temporary Protected Status
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed above, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0304 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2025-0304. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this proposed rulemaking is to remove the current
public charge inadmissibility provisions promulgated by the Public
Charge Ground of Inadmissibility final rule (2022 Final Rule),\1\ as
these provisions straitjacket DHS officers' ability to make public
charge inadmissibility determinations that are consistent with
Congress's express national policy on welfare and immigration enacted
in the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA). See Public Law 104-193, section 400, 110 Stat. 2105,
2260 (codified at 8 U.S.C. 1601). The 2022 Final Rule imposes narrow
definitions of statutory terms and the statutory minimum factors and
limits the public benefits that DHS can consider in a public charge
inadmissibility determination, which prevents DHS officers from
considering all factors and information relevant to an alien's
likelihood at any time of becoming a public charge, as Congress
intended. Indeed, the 2022 Final Rule created a framework under which
officers were directed to consider seven factors (five of those
required by statute) rather than being explicitly empowered to consider
any other factors or information relevant to determining an alien's
likelihood at any time of becoming a public charge in the totality of
the alien's circumstances.\2\ Compare that to the 2019 Final Rule, in
which officers were directed to consider ``all factors that are
relevant'' and listed ``minimum factors to consider,'' stating that the
public charge inadmissibility determination ``must at least entail
consideration'' of those minimum factors. 8 CFR 212.22 (2019).
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\1\ 87 FR 55472 (Sept. 9, 2022).
\2\ For example, when considering the challenge to the 2019
Final Rule, the Fourth Circuit emphasized that the language in the
provision indicates that the executive has extensive and ultimate
discretion over the relevant determination, especially since
Congress embedded discretion into the statutory scheme such as by
identifying minimum, but not exclusive, factors for consideration.
See CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 242-244 (4th Cir.
2020) (request for rehearing en banc granted but case was
dismissed). DHS believes that this rescission will be more
consistent with Congressional intent as it would restore ultimate
discretion for officers to consider not just the minimum statutory
factors but also any other information the officer deems relevant to
a public charge inadmissibility determination.
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DHS intends to remove the regulatory provisions in the 2022 Final
Rule with the exception of certain public charge bond provisions and
technical corrections, which will pave the way for DHS to, in the
future, formulate appropriate policy and interpretive tools that will
guide DHS officers in making individualized, fact-specific public
charge inadmissibility determinations, based on a totality of the
alien's circumstances, that are consistent with the statute and
congressional intent, and comply with past precedent.\3\
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\3\ See Matter of Vindman, 16 I&N Dec. 131, 132 (BIA 1977)
(``The elements constituting likelihood of an alien becoming a
public charge are varied. They are not defined by statute, but
rather are determined administratively upon consideration of all the
factors bearing on the alien's ability or potential ability to be
self-supporting.'') (emphasis added); Matter of Harutunian, 14 I&N
Dec. 583, 588 (BIA 1974) (``Since the elements constituting
likelihood of becoming a public charge are varied, there should be
no attempt to define the term in the law, but rather to establish
the specific qualification that the determination of whether an
alien falls into that category rests within the discretion of the
consular officers or the Commissioner.'').
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DHS notes that while it is proposing to remove the public charge
inadmissibility regulations in the short-term, DHS intends, after the
removal of these regulations, to formulate appropriate policy and
interpretive tools that will guide public charge inadmissibility
determinations while empowering officers to consider: (1) the mandatory
statutory factors in section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B); (2) all individualized case-specific factors and
circumstances relevant to an alien's case; and (3) any empirical data
relevant to an alien's self-sufficiency. Consideration of these, in the
totality of the circumstances, will allow officers to more accurately
assess an alien's likelihood at any time of becoming a public charge
using their good judgment and discretion, as Congress intended.
Consequently, through this NPRM, DHS proposes to move away from a
bright line primary dependence standard, which would allow officers to
make public charge inadmissibility determinations consistent with 8
U.S.C. 1601(2)(A) and reflected in established administrative case law
prior to the 2022 Final Rule, and removing limitations on the types of
public resources that are relevant for considering whether an alien is
dependent, including the references to public cash assistance for
income maintenance or long-term institutionalization at government
expense. DHS welcomes feedback and recommendations on what to include
in
[[Page 52170]]
future policy and interpretive tools on public charge inadmissibility.
B. Summary of Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
the proposed rescissions and 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 Major Provisions of the Regulatory Action
DHS proposes the following changes:
Amend 8 CFR 103.6(c), Cancellation and breach
Remove 8 CFR 212.20, Applicability of public charge
inadmissibility
Remove 8 CFR 212.21, Definitions
Remove 8 CFR 212.22, Public charge inadmissibility
determination
Remove 8 CFR 212.23, Exemptions and waivers for public
charge ground of inadmissibility
D. Costs and Benefits
DHS proposes to remove most provisions implemented in the 2022
Final Rule to allow DHS to better implement the public charge ground of
inadmissibility. The proposed rule is expected to impose new benefits
and transfers. To assess the impacts of the proposed rule, DHS
considers the potential impacts of the rule relative to a no-action
baseline, which reflects the current state of the world absent this
regulatory action.
The primary source of unquantified benefits of this proposed rule
is the removal of overly-restrictive provisions promulgated in the 2022
Final Rule that hinder officers in making public charge inadmissibility
determinations. By removing rigid regulatory definitions and standards,
this proposed rule would ensure that officers would be able to make
highly individualized, fact-specific, case-by-case public charge
inadmissibility decisions based on the totality of each alien's
individual circumstances. This approach would prevent the application
of overly restrictive criteria that unnecessarily limits DHS officers'
ability to make public charge inadmissibility determinations.
The proposed rule would also result in a reduction in transfer
payments from the Federal Government to individuals who may choose to
disenroll from or forgo enrollment in a public benefits program.
Individuals who might choose to disenroll from or forgo future
enrollment in a public benefits program include aliens as well as U.S.
citizens who are members of mixed-status households. DHS estimates that
the total reduction in transfer payments from the Federal and State
governments could be approximately $8.97 billion annually due to
disenrollment or forgone enrollment in public benefits programs by
members of households that include aliens who may be receiving public
benefits. DHS estimates that the 10-year discounted Federal and State
transfer payments reduction of this proposed rule could be
approximately $76.48 billion at a 3-percent discount rate and about
$62.97 billion at a 7-percent discount rate. This total includes DHS'
estimate that Federal transfer payments could decrease by approximately
$45.12 billion at a 3-percent discount rate and about $37.15 billion at
a 7-percent discount rate. Using the average Federal Medical Assistance
Percentages (FMAP), DHS further estimates that State transfer payments
could decrease by approximately $31.35 billion at a 3-percent discount
rate and about $25.82 billion at a 7-percent discount rate. DHS notes
there may be additional reductions in transfer payments that we are
unable to quantify. DHS also recognizes that the estimated reductions
in transfer payments are approximations and could be influenced by
external factors unrelated to this proposed rule. For example, the
recent enrollment changes to Medicaid and SNAP implemented in the H.R.
1 Reconciliation Bill are expected to impact enrollment rates, adding
complexity to quantification efforts.\4\ DHS anticipates that
disenrollment or forgone enrollment rates may fluctuate independently
of this proposed rule, potentially affecting the transfer payment
estimates presented in this analysis. However, it is too early to
assess the impact of these policies on public benefit usage, and
consequently, on the impact on overall estimates presented in this
analysis.
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\4\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
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Finally, DHS recognizes that reductions in Federal and State
transfers under Federal benefits programs may have downstream and
upstream impacts on State and local economies, large and small
businesses, and individuals. For example, the rule might result in
reduced revenues for healthcare providers, such as hospitals and
nonprofits, 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.
Table II.1 provides a detailed summary of the regulatory changes of
the proposed rule and the estimated costs, benefits, and transfers
associated with the expected impacts.\5\
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\5\ For a complete summary of regulatory changes and additional
guidance in this proposed rule, please see Section V. ``Discussion
of the NPRM.''
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III. 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).\6\ 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.
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\6\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.
(Nov. 25, 2002).
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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
any alien who applies for a visa, admission, or adjustment of status is
inadmissible if he or she is 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 an alien
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.
Under section 213A of the INA, 8 U.S.C. 1183a, certain aliens are
required to submit a sufficient Affidavit of Support Under Section 213A
of the INA executed by a sponsor who agrees to provide support to
maintain the sponsored alien at an annual income that is not less than
125 percent of the Federal poverty line during the period in which the
affidavit is enforceable. The Affidavit of Support Under Section 213A
of the INA is intended to ensure that an intending immigrant has
adequate means of financial support and is not likely to rely on the
U.S. government for financial support.
Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of
applicants for admission, including inadmissibility determinations of
such aliens.
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 (LPR).
B. Grounds of Inadmissibility Generally
The United States has a long history of permitting aliens to enter
the United States, whether permanently or on a temporary basis. At the
same time, Congress has sought to exclude aliens who pose a threat to
the safety or general welfare of the country or who seek to violate
immigration laws.\7\
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\7\ See Fiallo v. Bell, 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'').
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Congress has exercised this authority in part by establishing the
concepts of admission \8\ and inadmissibility in the INA.\9\ Aliens are
inadmissible due to a range of acts, conditions, and conduct.\10\ If an
alien is inadmissible as described in section 212(a) of the INA, 8
U.S.C. 1182(a), that alien is ineligible to be admitted to the United
States and ineligible to receive a visa, unless they apply for and
receive a waiver of inadmissibility or other form of relief. Congress
has extended the applicability of the inadmissibility grounds beyond
the context of applications for admission and visas by making
admissibility an eligibility requirement for certain immigration
benefits, including adjustment of status to that of a lawful permanent
resident.\11\ If an alien is inadmissible, that alien is also
ineligible for those benefits unless the alien is eligible to apply for
and is granted a discretionary waiver of inadmissibility or other form
of relief to overcome the inadmissibility, where available and
appropriate.\12\
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\8\ Admission is defined as ``the lawful entry of the alien into
the United States after inspection and authorization by an
immigration officer.'' See INA sec. 101(a)(13)(A), 8 U.S.C.
1101(a)(13)(A).
\9\ See INA sec. 212(a), 8 U.S.C. 1182(a).
\10\ Id.
\11\ For example, adjustment of status. See INA sec. 245(a)(2),
8 U.S.C. 1255(a)(2).
\12\ See, e.g., INA sec. 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v); INA sec. 212(h), 8 U.S.C. 1182(h); INA sec.
212(i), 8 U.S.C. 1182(i); INA sec. 212(a)(9)(A)(iii), 8 U.S.C.
1182(a)(9)(A)(iii); see also USCIS Policy Manual, Volume 9, Waivers,
https://www.uscis.gov/policy-manual/volume-9. DHS has the discretion
to waive certain grounds of inadmissibility as designated by
Congress. Where an alien is seeking an immigration benefit that is
subject to a ground of inadmissibility, DHS cannot approve the
immigration benefit being sought if a waiver of that ground is
unavailable under the INA, the alien does not meet the statutory and
regulatory requirements for the waiver, or the alien does not
warrant the waiver in any authorized exercise of discretion.
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[[Page 52174]]
C. Public Charge Ground of Inadmissibility
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), states that any
alien who applies for a visa, admission, or adjustment of status is
inadmissible if in the opinion of the consular officer or immigration
officer, as applicable, the alien is likely at any time to become a
public charge. The public charge ground of inadmissibility, therefore,
applies to aliens applying for a visa to come to the United States
temporarily or permanently, for admission at or between ports of entry,
and for adjustment of status to that of a lawful permanent
resident.\13\ Under the statute, some categories of aliens are exempt
from the public charge ground of inadmissibility, while others, if
found inadmissible under the public charge ground, may apply for a
waiver of the public charge ground of inadmissibility or submit a
public charge bond.\14\
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\13\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 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 aliens 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.
\14\ See INA sec. 245(j), 8 U.S.C. 1255(j). See 8 CFR 245.11.
See INA sec. 245(d)(2)(B), 8 U.S.C. 1255(d)(2)(B). See INA sec.
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). See INA sec. 213, 8 U.S.C.
1183. See 8 CFR 213.1.
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The INA does not define the terms ``public charge'' or ``likely at
any time to become a public charge.'' However, it does specify that
when determining whether an alien is likely at any time to become a
public charge, consular officers and immigration officers must, at a
minimum, consider the alien's age; health; family status; assets,
resources, and financial status; and education and skills. See INA sec.
212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 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 alien's
behalf, when determining whether the alien is likely at any time to
become a public charge.\15\ In fact, with very limited exceptions, most
aliens seeking family-based immigrant visas and adjustment of status,
and to a lesser extent, some aliens 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). In general,
under section 213 of the INA, 8 U.S.C. 1183, the Secretary has the
discretion to admit into the United States an alien who is determined
to be inadmissible only on the public charge ground upon the giving of
a suitable and proper bond or undertaking approved by the Secretary.
See INA sec. 213, 8 U.S.C. 1183.
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\15\ 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).
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1. Public Charge Statutes and Case Law, Pre-IIRIRA
The United States has denied admission to aliens on public charge
grounds since at least 1882.\16\ The 1882 law excluded ``any person
unable to take care of himself or herself without becoming a public
charge'' but notably the 1882 law did not provide any definition of a
``public charge'' or any guidelines for determining who would become
one.\17\ The Immigration Act of 1891 completed the federalization of
immigration regulation and retained the exclusion of ``paupers or
persons likely to become a public charge.'' \18\ In 1903 Congress added
``professional beggars'' to the class of exclusion,\19\ a 1907 law
added those with certain mental or physical defects ``which may affect
the ability of such an alien to earn a living,'' \20\ and a 1917 law
added ``vagrants'' to the public charge provision.\21\ This version of
the public charge provision remained substantively unchanged until it
was incorporated into the Immigration and Nationality Act of 1952.
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\16\ See Immigration Act of 1882, ch. 376, secs. 1-2, 22 Stat.
214, 214. Section 11 of the Act also provided that an alien who
became a public charge within 1 year of arrival in the United States
from causes that existed prior to their landing was deemed to be in
violation of law and was to be returned at the expense of the person
or persons, vessel, transportation, company, or corporation who
brought the alien into the United States. See also, e.g.,
Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration
Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917,
ch. 29, sec. 3, 39 Stat. 874, 876; INA of 1952, ch. 477, sec.
212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and
Immigrant Responsibility Act, Public Law 104-208, sec. 531(a), 110
Stat. 3009-546, 3009-674-75 (1996); Violence Against Women
Reauthorization Act of 2013, Public Law 113-4, 127 Stat. 54.
\17\ See Act of August 3, 1882, 22 Stat. 214.
\18\ See Act of March 3, 1891, ch. 551, 26 Stat. 1084, 1084.
\19\ See Act of February 14, 1903, 32 Stat. 825.
\20\ See Act of February 20, 1907, ch. 1134, 34 Stat. 898, 899.
\21\ See Act of February 5, 1917, ch. 29, sec. 3, 39 Stat. 874,
876; INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163, 183.
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While the INA of 1952 left the public charge ground of
inadmissibility unchanged, it added language explicitly emphasizing
officers' discretionary authority in determining an alien's likelihood
at any time of becoming a public charge. The INA of 1952 excluded
aliens who, in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the government at the time
of application for admission, were likely at any time to become public
charges.\22\ The government has long interpreted the words ``in the
opinion of'' as evincing the inherently discretionary nature of the
determination.\23\ The determination is also necessarily subjective due
to its prospective nature. A series of administrative decisions after
the passage of the INA of 1952 clarified that a totality of the
circumstances review was the proper framework for making public charge
determinations and that receipt of public benefits would not, alone,
lead to a finding of likelihood of becoming a public charge.\24\
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\22\ See INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163,
183.
\23\ 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 (BIA 1962; Att'y Gen. 1964) (``[U]nder the statutory
language the question for visa purposes seems to depend entirely on
the consular officer's subjective opinion.'').
\24\ 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. Some specific
circumstance, such as mental or physical disability, advanced age,
or other fact showing that the burden of supporting the alien is
likely to be cast on the public, must be present. 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.'' 10 I&N
Dec. 409, 421-23 (BIA 1962; Att'y Gen. 1964) (emphasis added). 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.'' 15 I&N Dec. 136, 137 (BIA 1974).
As stated in Matter of Harutunian, public charge determinations
should take into consideration factors such as an alien's age,
incapability of earning a livelihood, a lack of sufficient funds for
self-support, and a lack of persons in this country willing and able
to assure that the alien will not need public support. 14 I&N Dec.
583, 589 (Reg'l Comm'r 1974).
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[[Page 52175]]
The totality of the circumstances framework for public charge
inadmissibility determinations was codified in relation to one specific
class of aliens in the 1980s. In 1986, Congress passed the Immigration
Reform and Control Act (IRCA), providing eligibility for adjustment of
status to that of a lawful permanent resident to certain aliens who had
resided in the United States continuously prior to January 1, 1982.\25\
No changes were made to the language of the public charge exclusion
ground under former section 212(a)(15) of the INA, 8 U.S.C.
1182(a)(15), but IRCA contained special public charge rules for aliens
seeking legalization under section 245A of the INA, 8 U.S.C. 1255a.
Although IRCA provided otherwise eligible aliens an exemption or waiver
for some grounds of excludability, the aliens generally remained
subject to the public charge ground of exclusion. See INA sec.
245A(d)(2)(B)(ii)(IV), 8 U.S.C. 1255a(d)(2)(B)(ii)(IV). Under IRCA,
however, if an alien demonstrated a history of self-support through
employment and without receiving public cash assistance, they would not
be ineligible for adjustment of status based on being inadmissible on
the public charge ground. See INA sec. 245A(d)(2)(B)(iii), 8 U.S.C.
1255a(d)(2)(B)(iii). In addition, IRCA contained a discretionary waiver
of public charge inadmissibility for aliens who were ``aged, blind or
disabled'' as defined in section 1614(a)(1) of the Social Security Act
who applied for lawful permanent resident status under IRCA and were
determined to be inadmissible based on the public charge ground.\26\
The former Immigration and Naturalization Service (INS) promulgated 8
CFR 245a.3,\27\ which established that immigration officers would make
public charge inadmissibility determinations for aliens seeking
legalization under section 245A of the INA, 8 U.S.C. 1255a by examining
the ``totality of the alien's circumstances at the time of his or her
application for legalization.'' See 8 CFR 245a.3(g)(4)(i). According to
the regulation, the existence or absence of a particular factor could
never be the sole criterion for determining whether a person is likely
to become a public charge. Id. Further, the regulation provided that
the determination is a ``prospective evaluation based on the alien's
age, health, income, and vocation.'' Id. A special provision in the
rule stated that aliens with incomes below the poverty level were not
excludable if they were consistently employed and show the ability to
support themselves. Id. Finally, an alien's past receipt of public cash
assistance would be a significant factor in a context that also
considered the alien's consistent past employment. Id.
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\25\ See IRCA of 1986, Public Law 99-603, sec. 201, 100 Stat.
3359, 3394.
\26\ See INA sec. 245A(d)(2)(B)(ii), 8 U.S.C.
1255a(d)(2)(B)(ii); see also 42 U.S.C. 1382c(a)(1). This
discretionary waiver applies only to IRCA legalization and not to
adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a).
\27\ See ``Adjustment of Status for Certain Aliens,'' 54 FR
29442 (July 12, 1989). This regulation does not apply to adjustment
of status under section 245(a) of the INA, 8 U.S.C. 1255, or to
applications for admission with CBP. It is limited to adjustment
from temporary to permanent resident status under the legalization
provisions of IRCA.
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In Matter of A-, INS again pursued a totality of the circumstances
approach in public charge determinations for applicants for
legalization. ``Even though the test is prospective,'' INS ``considered
evidence of receipt of prior public assistance as a factor in making
public charge determinations.'' \28\ INS also considered an alien's
work history, age, capacity to earn a living, health, family situation,
affidavits of support, and other relevant factors in their
totality.\29\ These administrative practices surrounding public charge
inadmissibility determinations began to crystallize into legislative
changes in the 1990s.
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\28\ Id.
\29\ See 19 I&N Dec. 867, 869 (Comm'r 1988).
---------------------------------------------------------------------------
The Immigration Act of 1990 reorganized section 212(a) of the INA,
8 U.S.C. 1182(a), and redesignated the public charge provision as
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\30\ In 1996, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) added to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
the mandatory statutory factors and the enforceable affidavit of
support. Public Law 104-208, div. C, 110 Stat 3009-546. Also in 1996,
in the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA), which is commonly known as the 1996 welfare reform
law, Congress stated that aliens generally should not depend on public
resources and that the availability of public benefits should not
constitute an incentive for immigration to the United States. See
Public Law 104-193, section 400, 110 Stat. 2105, 2260 (codified at 8
U.S.C. 1601). Congress also created section 213A of the INA, 8 U.S.C.
1183a, and made a sponsor's Affidavit of Support Under Section 213A of
the INA for an alien beneficiary legally enforceable.\31\ The Affidavit
of Support Under Section 213A of the INA provides a mechanism for
public benefit granting agencies to seek reimbursement in the event a
sponsored alien received means-tested public benefits. See INA sec.
213A(b), 8 U.S.C. 1183a(b).
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\30\ See Immigration Act of 1990, Public Law 101-649, sec.
601(a), 104 Stat. 4978, 5072. In 1990, Congress reorganized INA sec.
212(a), redesignating the public charge provision as INA sec.
212(a)(4).
\31\ See Public Law 104-193, section 423, 110 Stat. 2105, 2271
(codified at INA sec. 213A, 8 U.S.C. 1183a). The provision was
further amended with the passage of IIRIRA.
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2. Public Benefits Under PRWORA
PRWORA significantly restricted alien eligibility for many Federal,
State, and local public benefits. See 8 U.S.C. 1601-1646. When Congress
enacted PRWORA, it set forth a self-sufficiency policy statement that
aliens should be able to financially support themselves with their own
resources or by relying on the aid of family members, sponsors, and
private organizations, without depending on government assistance. See
8 U.S.C. 1601(2). Although not defined in PRWORA, in context, self-
sufficiency is tied to an alien's ability to meet their needs without
depending on public resources. Id.
With certain exceptions, Congress defined the term ``Federal public
benefit'' broadly as: (A) any grant, contract, loan, professional
license, or commercial license provided by an agency of the United
States or by appropriated funds of the United States; and (B) any
retirement, welfare, health, disability, public or assisted housing,
postsecondary education, food assistance, unemployment benefit, or any
other similar benefit for which payments or assistance are provided to
an individual, household, or family eligibility unit by an agency of
the United States or by appropriated funds of the United States.\32\
Generally, under
[[Page 52176]]
PRWORA, ``qualified aliens'' are eligible for Federal means-tested
benefits after 5 years and are not eligible for ``specified Federal
programs,'' and States are allowed to determine whether the qualified
alien is eligible for ``designated Federal programs.'' See Public Law
104-193, tit. IV, 110 Stat. 2105, 2260-77.
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\32\ See Public Law 104-193, section 401(c), 110 Stat. 2105,
2262 (1996) (codified as amended at 8 U.S.C. 1611(c)). Congress
provided that such term shall not apply--(A) to any contract,
professional license, or commercial license for a nonimmigrant whose
visa for entry is related to such employment in the United States,
or to a citizen of a freely associated state, if section 141 of the
applicable compact of free association approved in Public Law 99-239
or 99-658 (or a successor provision) is in effect; (B) with respect
to benefits for an alien who as a work authorized nonimmigrant or as
an alien lawfully admitted for permanent residence under the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.] qualified
for such benefits and for whom the United States under reciprocal
treaty agreements is required to pay benefits, as determined by the
Attorney General, after consultation with the Secretary of State; or
(C) to the issuance of a professional license to, or the renewal of
a professional license by, a foreign national not physically present
in the United States. 8 U.S.C. 1611(c)(2).
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Among the exceptions established by Congress allowing for
eligibility for all aliens are provision of 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.\33\
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\33\ See 8 U.S.C. 1611(b)(1). See 66 FR 3613 (Jan. 16, 2001);
see also 62 FR 61344 (Nov. 17, 1997).
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PRWORA identified three types of benefits and related eligibility
rules. First, there are ``specified Federal programs,'' for which even
``qualified aliens'' are generally not eligible. 8 U.S.C. 1612(a).
Second, there are ``Federal means-tested public benefits,'' for which
``qualified aliens'' are generally eligible after a 5-year waiting
period. 8 U.S.C. 1613(a). And finally, there are ``designated federal
programs,'' for which States are allowed to determine whether and when
a ``qualified alien'' is eligible, subject to certain restrictions. 8
U.S.C. 1612(b). Subsequent legislation has added additional categories
of aliens, many with humanitarian statuses, to PRWORA's various
exceptions and special provisions in order to meet the needs of those
vulnerable populations. The following is a list of immigration
categories that are ``qualified aliens'' under PRWORA, who, as noted
above and subject to certain exceptions, are generally eligible for
Federal public benefits after 5 years:
An alien who is lawfully admitted for permanent residence
under the INA. 8 U.S.C. 1641(b)(1).
An alien who is granted asylum under section 208 of the
INA, 8 U.S.C. 1158. 8 U.S.C. 1641(b)(2).
A refugee who is admitted to the United States under
section 207 of the INA, 8 U.S.C. 1157. 8 U.S.C. 1641(b)(3).
An alien who is paroled into the United States under
section 212(d)(5) of the INA, 8 U.S.C. 1182(d), for a period of at
least 1 year.\34\ 8 U.S.C. 1641(b)(4).
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\34\ Aliens who have been paroled have not been admitted. See
INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); see also INA sec.
212(d)(5), 8 U.S.C. 1182(d)(5).
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An alien whose deportation is being withheld under section
243(h) \35\ of the INA, 8 U.S.C. 1253, or section 241(b)(3) of the INA,
8 U.S.C. 1231(b)(3), as amended. 8 U.S.C. 1641(b)(5).
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\35\ As in effect immediately before the effective date of
section 307 of division C of Public Law 104-208, 110 Stat. 3009-546.
---------------------------------------------------------------------------
An alien who is granted conditional entry under section
203(a)(7) of the INA, 8 U.S.C. 1153(a)(7), as in effect before April 1,
1980. 8 U.S.C. 1641(b)(6).
An alien who is a Cuban and Haitian entrant as defined in
section 501(e) of the Refugee Education Assistance Act of 1980. 8
U.S.C. 1641(b)(7).
An individual who lawfully resides in the United States in
accordance with the Compacts of Free Association between the Government
of the United States and the Governments of the Federated States of
Micronesia, the Republic of the Marshall Islands, and the Republic of
Palau referred to in 8 U.S.C. 1612(b)(2)(G) (but only with respect to
Medicaid). 8 U.S.C. 1641(b)(8).
An alien who has been battered or subjected to extreme
cruelty in the United States by a spouse or a parent or by a member of
the spouse or parent's family residing in the same household as the
alien and the spouse or parent consented to, or acquiesced in, such
battery or cruelty but only if (in the opinion of the agency providing
such benefits) there is a substantial connection between such battery
or cruelty and the need for the benefits to be provided, and the alien
has been approved or has a petition pending that sets forth a prima
facie case for status under section 204(a)(1)(A)(i)-(iv) of the INA, 8
U.S.C. 1154(a)(1)(A)(i)-(iv), or classification pursuant to section
204(a)(1)(B)(i)-(iii) of the INA, 8 U.S.C. 1154(a)(1)(B)(i)-(iii), or
suspension of deportation under section 244(a)(3) of the INA, 8 U.S.C.
1254a(a)(3), or cancellation of removal pursuant to section 240A(b)(2)
of the INA, 8 U.S.C. 1229b(b)(2). 8 U.S.C. 1641(c)(1).
An alien whose child has been battered or subjected to
extreme cruelty in the United States by a spouse or a parent of the
alien (without active participation by the alien in such battery or
cruelty), or by a member of the spouse or parent's family residing in
the same household as the alien and the spouse or parent consented to,
or acquiesced to such battery or cruelty (and the alien did not
actively participate in such battery or cruelty), but only if (in the
opinion of the agency providing such benefits) there is a substantial
connection between such battery or cruelty and the need for the
benefits to be provided, and the alien has been approved or has a
petition pending which sets forth a prima facie case for status under
section 204(a)(1)(A)(i)-(iv) of the INA, 8 U.S.C. 1154(a)(1)(A)(i)-
(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of
the INA, 8 U.S.C. 1154(a)(1)(B)(i)-(iii), or suspension of deportation
under section 244(a)(3) of the INA, 8 U.S.C. 1254a(a)(3), or
cancellation of removal pursuant to section 240A(b)(2) of the INA, 8
U.S.C. 1229b(b)(2). 8 U.S.C. 1641(c)(2).
An alien child who resides in the same household as a
parent who has been battered or subjected to extreme cruelty in the
United States by that parent's spouse or by a member of the spouse's
family residing in the same household as the parent, and the spouse
consented to, or acquiesced to such battery or cruelty, but only if (in
the opinion of the agency providing such benefits) there is a
substantial connection between such battery or cruelty and the need for
the benefits to be provided, and the alien has been approved or has a
petition pending which sets forth a prima facie case for status under
section 204(a)(1)(A)(i)-(iv) of the INA, 8 U.S.C. 1154(a)(1)(A)(i)-
(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of
the INA, 8 U.S.C. 1154(a)(1)(B)(i)-(iii), or suspension of deportation
under section 244(a)(3) of the INA, 8 U.S.C. 1254a(a)(3), or
cancellation of removal pursuant to section 240A(b)(2) of the INA, 8
U.S.C. 1229b(b)(2). 8 U.S.C. 1641(c)(3).
An alien who has been granted nonimmigrant status under
section 101(a)(15)(T) of the INA, 8 U.S.C. 1101(a)(15)(T), or who has a
pending application that sets forth a prima facie case for eligibility
for such nonimmigrant status. 8 U.S.C. 1641(c)(4).
There are additional categories of aliens who may be eligible for
certain benefits notwithstanding limitations set under PRWORA. For
instance, the following aliens are treated as though they are refugees
for benefits eligibility purposes, under other provisions of law:
An alien who is a victim of a severe form of trafficking
in persons, or an alien classified as a nonimmigrant under section
101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii). 22 U.S.C.
7105(b)(1)(A).
An Iraqi or Afghan alien granted special immigrant status
under section
[[Page 52177]]
101(a)(27) of the INA, 8 U.S.C. 1101(a)(27). Public Law 111-118, Div.
A., Tit. VIII., sec. 8120, 123 Stat. 3409, 3457 (2009).
A citizen or national of Afghanistan (or a person with no
nationality who last habitually resided in Afghanistan) paroled into
the United States after July 31, 2021, who meets certain requirements,
until March 31, 2023, or the term of parole granted, whichever is
later. Public Law 117-43, sec. 2502(b) (Sept. 30, 2021).
In addition, in the Medicaid context, States may also elect to
provide medical assistance under Title XIX of the Social Security Act
to cover all lawfully residing children under age 21 or pregnant
individuals. See section 1903(v)(4) of the Social Security Act (42
U.S.C. 1396b(v)(4)). Under PRWORA, States may enact their own
legislation to provide State and local public benefits to certain
aliens not lawfully present in the United States. See 8 U.S.C. 1621(d).
Some States and localities have funded public benefits for some aliens
who may not be eligible for Federal public benefits.\36\ While PRWORA
allows certain aliens to receive certain public benefits, Congress,
except in very limited circumstances,\37\ 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), or direct DHS to do so.
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\36\ See, e.g., U.S. Department of Health and Human Services
(HHS), Office of the Assistant Secretary for Planning & Evaluation,
``Overview of Immigrants Eligible for SNAP, TANF, Medicaid and
CHIP'' (Mar. 26, 2012), https://aspe.hhs.gov/reports/overview-immigrants-eligibility-snap-tanf-medicaid-chip-0.
\37\ See INA sec. 212(s), 8 U.S.C. 1182(s).
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3. Changes Under IIRIRA
Congress, in IIRIRA,\38\ codified in the public charge
inadmissibility statute the following minimum factors that must be
considered when making public charge inadmissibility determinations:
\39\
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\38\ Public Law 104-208, div. C, 110 Stat 3009-546 (1996).
\39\ 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)).
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Age;
Health;
Family status;
Assets, resources, and financial status; and
Education and skills.\40\
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\40\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
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Section 531(a) of IIRIRA amended section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), to require an enforceable affidavit of support under
newly added section 213A of the INA, 8 U.S.C. 1183a,\41\ for certain
aliens to avoid a finding of inadmissibility under that section.\42\
The law required submission of an Affidavit of Support Under Section
213A of the INA for most family-based immigrants and certain
employment-based immigrants and provided that these aliens are
inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
unless a sufficient affidavit is filed on their behalf. See INA sec.
212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D). Congress also
permitted, but did not require, consular and immigration officers to
consider the Affidavit of Support Under Section 213A of the INA as a
factor in the public charge inadmissibility determination. See INA sec.
212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). In the House Conference
Report on IIRIRA, the committee indicated that the amendments to
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), were designed to
``expand'' the public charge ground of inadmissibility by requiring DHS
to find inadmissible those who lack a sponsor willing to support
them.\43\ DHS may appropriately consider the policy goals articulated
in PRWORA and IIRIRA when administratively implementing the public
charge ground of inadmissibility, and may also consider other important
goals including, but not limited to, clarity, fairness, and
administrability.
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\41\ Section 551 of IIRIRA created INA sec. 213A, 8 U.S.C.
1183a, and specified the requirements for a sponsor's affidavit,
including making it enforceable. See INA sec. 213A, 8 U.S.C. 1183a;
sec. 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).
\42\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C)
and (D). See INA sec. 213A, 8 U.S.C. 1183a.
\43\ See H.R. Rep. No. 104-828, at 240-41 (1996) (Conf. Rep.);
see also H.R. Rep. No. 104-469(I), at 143-45 (1996).
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Furthermore, in enacting PRWORA and IIRIRA very close in time,
Congress made certain public benefits available to limited categories
of aliens who are also subject to the public charge ground of
inadmissibility, because Congress recognized that certain aliens
present in the United States who are subject to the public charge
ground of inadmissibility might find themselves in need of public
benefits. Except in very limited circumstances,\44\ Congress 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). Consequently, although an alien may receive
public benefits for which he or she is eligible, the receipt of those
benefits can be properly considered an adverse factor for public charge
inadmissibility determination purposes.
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\44\ See INA sec. 212(s), 8 U.S.C. 1182(s).
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4. INS 1999 Notice of Proposed Rulemaking and Interim Field Guidance
On May 26, 1999, INS issued a proposed rule, Inadmissibility and
Deportability on Public Charge Grounds (1999 NPRM) (64 FR 28676 (May
26, 1999)), and on that same day issued interim Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds (1999
Interim Field Guidance).\45\ In the 1999 NPRM, INS proposed to
``alleviate growing public confusion over the meaning of the currently
undefined term `public charge' in immigration law and its relationship
to the receipt of Federal, State, or local public benefits.'' See 64 FR
28676, 28676 (May 26, 1999).
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\45\ 64 FR 28689 (May 26, 1999). Due to a printing error, the
Federal Register version of the 1999 Interim 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, along with the
NPRM.
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INS sought to reduce negative public health and nutrition
consequences generated by that confusion and to provide aliens, their
sponsors, health care and immigrant assistance organizations, and the
public with better guidance as to the types of public benefits that INS
considered relevant to the public charge determination. See 64 FR
28676, 28676-77 (May 26, 1999). INS also sought to address the public's
concerns about immigrants' fears of accepting public benefits for which
they remained eligible, specifically in regard to medical care,
children's immunizations, basic nutrition, and treatment of medical
conditions that may jeopardize public health. See 64 FR 28676, 28676
(May 26, 1999).
When developing the 1999 NPRM, INS consulted with Federal benefit-
granting agencies, such as the U.S. Department of Health and Human
Services (HHS), the Social Security Administration (SSA), and the
Department of Agriculture (USDA). The Deputy Secretary of HHS, which
administers Temporary Assistance for Needy Families (TANF), Medicaid,
the Children's Health Insurance Program (CHIP), and other benefits,
advised that the best evidence of whether an individual is relying
primarily on the government for subsistence is either the receipt of
public cash benefits for income maintenance purposes or
institutionalization for long-term care at government expense. See 64
FR 28676, 28686-87 (May 26, 1999). The Deputy
[[Page 52178]]
Commissioner for Disability and Income Security Programs at SSA agreed
that the receipt of Supplemental Security Income (SSI) ``could show
primary dependence on the government for subsistence fitting the INS
definition of public charge.'' See 64 FR 28676, 28687 (May 26, 1999).
Furthermore, the USDA's Under Secretary for Food, Nutrition and
Consumer Services advised that ``neither the receipt of food stamps nor
nutrition assistance provided under the Special Nutrition Programs
administered by USDA should be considered in making a public charge
determination.'' See 64 FR 28676, 28688 (May 26, 1999).
While these letters supported the approach taken in the 1999 NPRM
and 1999 Interim Field Guidance, the letters specifically focused on
the reasonableness of a given INS interpretation (i.e., primary
dependence on the government for subsistence). The letters did not, and
could not, foreclose the INS from adopting a different definition
consistent with statutory authority.
INS defined public charge in the 1999 NPRM, as well as in the 1999
Interim Field Guidance, to mean, for purposes of admission and
adjustment of status, ``an alien who is likely to become . . .
primarily dependent \46\ 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.'' \47\ The 1999 NPRM provided that non-cash
benefits, as well as ``supplemental, special-purpose cash benefits
should not be considered'' for public charge purposes, in light of
INS's decision to define public charge by reference to primary
dependence on public benefits. See 64 FR 28676, 28692-93 (May 26,
1999). Ultimately, however, INS did not publish a final rule
conclusively addressing these issues.\48\
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\46\ Former INS defined ``primarily dependent'' as ``the
majority'' or ``more than 50 percent.''
\47\ See 64 FR 28676, 28681 (May 26, 1999); 64 FR 28689 (May 26,
1999). The 1999 NPRM also defined public charge to mean, ``for
purposes of removal as a deportable alien means an alien who has
become primarily dependent on the Government for subsistence as
demonstrated by either: (i) The receipt of public cash assistance
for income maintenance purposes, or (ii) Institutionalization for
long-term care at Government expense (other than imprisonment for
conviction of a crime).'' 64 FR 28676, 28684 (May 26, 1999).
\48\ The 1999 NPRM was never finalized and never went into
effect, but it provides insight into INS's thinking about how to
administer the public charge ground of inadmissibility at that time.
The 1999 NPRM was formally withdrawn in 2018. See 83 FR 51114 (Oct.
10, 2018).
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The 1999 Interim Field Guidance was issued as an attachment to the
1999 NPRM in order to ``provide additional information to the public on
the Service's implementation of the public charge provisions of the
immigration laws . . . in light of the recent changes in law.'' See 64
FR 28689 (May 26, 1999). The 1999 Interim Field Guidance explained how
the agency would determine if a person is likely to become a public
charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a), for
admission and adjustment of status purposes, and whether a person is
deportable as a public charge under section 237(a)(5) of the INA, 8
U.S.C. 1227(a)(5). See 64 FR 28689, 28692-93 (May 26, 1999). The 1999
Interim Field Guidance also was intended to stem the fears that were
causing aliens to refuse certain supplemental public benefits, such as
transportation vouchers and childcare assistance, that were intended to
help recipients become better able to obtain and retain employment and
establish self-sufficiency. See 64 FR 28689 (May 26, 1999). The
Department of State (DOS) also issued a cable to its consular officers
at that time implementing similar guidance for visa adjudications, and
its Foreign Affairs Manual (FAM) was similarly updated. See 64 FR
28676, 28680 (May 26, 1999).
Until both agencies published new regulations and policy guidance,
including changes to the FAM, in 2018 and 2019, USCIS continued to
follow the 1999 Interim Field Guidance in its adjudications and DOS
continued following the public charge guidance set forth in the FAM in
1999.\49\
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\49\ See 9 FAM 302.8, https://fam.state.gov/fam/09fam/09fam030208.html (last visited Aug. 21, 2025).
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5. Victims of Trafficking and Violence Protection Act of 2000 \50\
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\50\ Public Law 106-386 (Oct. 28, 2000).
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In 2000, Congress amended section 212 of the INA, 8 U.S.C. 1182, to
include a provision that prohibited consideration of the receipt of
public benefits by ''certain battered aliens'' in a public charge
inadmissibility determination.\51\ Congress' prohibition of
consideration of prior receipt of benefits by a specific class of
aliens suggests that Congress understood and accepted that
consideration of an alien's past receipt of public benefits in other
circumstances was appropriate when making a public charge
inadmissibility determination.
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\51\ This provision was originally in INA sec. 212(p), 8 U.S.C.
1182(p). It was permanently redesignated as INA sec. 212(s), 8
U.S.C. 1182(s) in the Consolidated Appropriations Act, 2005, Public
Law 108-447, 423 (Dec. 8, 2004)
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6. DHS 2018 Inadmissibility on Public Charge Grounds Notice of Proposed
Rulemaking and 2019 Final Rule
In October 2018, DHS issued a notice of proposed rulemaking,
Inadmissibility on Public Charge Grounds (2018 NPRM) (83 FR 51114 (Oct.
10, 2018)), which proposed regulatory changes regarding the definition
of public charge and related terms and public charge ground
inadmissibility determinations. DHS also included in the 2018 NPRM a
withdrawal of the proposed regulation on public charge, the 1999 NPRM,
that the former INS published on May 26, 1999.
Following public comments on the 2018 NPRM, DHS issued a final rule
in August 2019, Inadmissibility on Public Charge Grounds (2019 Final
Rule). The 2019 Final Rule changed DHS's public charge standards and
procedures. See 84 FR 41292 (Aug. 14, 2019), as amended by 84 FR 52357
(Oct. 2, 2019). The 2019 Final Rule defined the term public charge to
mean ``an alien who receives one or more public benefits, as defined in
[the 2019 Final Rule], for more than 12 months in the aggregate within
any 36-month period (such that, for instance, receipt of two benefits
in 1 month counts as 2 months).'' See 84 FR 41292 (Aug. 14, 2019). It
also defined the term public benefit to mean any Federal, State, local,
or Tribal cash assistance for income maintenance (other than tax
credits), SNAP, most forms of Medicaid, Section 8 Housing Assistance
under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based
Rental Assistance, and certain other forms of subsidized housing. Id.
DHS tailored the 2019 Final Rule to limit the rule's effects in certain
ways, such as with respect to the consideration of public benefits
received by active-duty military members and their spouses and
children, and consideration of public benefits received by children in
certain contexts.\52\
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\52\ See 84 FR 41292 (Aug. 14, 2019). For example, under that
rule, public benefits did not include public benefits received by
those who, at the time of receipt, filing the application for
admission or adjustment of status, or adjudication, is enlisted in
the U.S. Armed Forces, serving in active duty or in the Ready
Reserve component of the U.S. Armed Forces, or the spouse of
children of such service members. Also under that rule, public
benefits did not include benefits received by children of U.S.
citizens whose lawful admission for permanent residence would result
in automatic acquisition of U.S. citizenship.
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The 2019 Final Rule also provided an evidentiary framework under
which USCIS would determine public charge
[[Page 52179]]
inadmissibility and explained how DHS would interpret the statutory
minimum factors for determining whether ``in the opinion of'' \53\ the
officer, an alien is likely at any time to become a public charge.
Specifically, for adjustment of status applications before USCIS, DHS
created a new Declaration of Self Sufficiency, Form I-944, which
collected information from aliens applying for adjustment of status
relevant to the 2019 Final Rule's approach to the statutory factors and
other factors identified in the rule that would be considered in the
totality of the circumstances.\54\
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\53\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
\54\ The Declaration of Self-Sufficiency requirement only
applied to adjustment applicants and not applicants for admission at
a port of entry.
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The 2019 Final Rule also contained a list of negative and positive
factors that DHS would consider as part of this inadmissibility
determination and directed officers to consider these factors ``in the
totality of the circumstances.'' See 84 FR 41292 (Aug. 14, 2019). These
negative and positive factors, as well as the ``heavily weighted''
positive and negative factors, operated as guidelines to help the
officer determine whether the alien was likely at any time to become a
public charge. Id. In the 2019 Final Rule, DHS indicated that apart
from the lack of an Affidavit of Support Under Section 213A of the INA,
where required, the presence of a single positive or negative factor,
or heavily weighted negative or positive factor, would never, on its
own, create a presumption that an alien was inadmissible as likely at
any time to become a public charge or determine the outcome of the
public charge inadmissibility determination. Id. Rather, a public
charge inadmissibility determination would be based on the totality of
the circumstances presented in an alien's case. Id.
Additionally, the 2019 Final Rule added provisions that rendered
certain nonimmigrants ineligible for extension of stay or change of
status if they received one or more public benefits, as defined in the
rule, for more than 12 months in the aggregate within any 36-month
period since obtaining the nonimmigrant status they wished to extend or
change. See 84 FR 41292 (Aug. 14, 2019). The 2019 Final Rule also
revised DHS regulations governing the Secretary's discretion to accept
a public charge bond under section 213 of the INA, 8 U.S.C. 1183, for
those seeking adjustment of status. Id. The 2019 Final Rule did not
interpret or change DHS's implementation of the public charge ground of
deportability.\55\
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\55\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 84 FR
41292, 41295 (Aug. 14, 2019).
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The 2019 Final Rule was set to take effect on October 15, 2019,
but, before it did, numerous plaintiffs filed suits challenging the
2019 Final Rule in five district courts, across four circuits.\56\ All
five district courts preliminarily enjoined the 2019 Final Rule.\57\
Following a series of stays of the preliminary injunctions,\58\ DHS
began applying the 2019 Final Rule on February 24, 2020. On March 9,
2021, DHS announced its determination that continuing to defend the
2019 Final Rule before the Supreme Court and in the lower courts would
not be in the public interest or an efficient use of government
resources.\59\ Consistent with that determination, the government filed
motions and stipulations with the various courts leading to the
dismissal of its appeals of the lower court decisions. As a consequence
of one such dismissal, a district court's vacatur of the 2019 rule went
into effect. See 87 FR 55472, 55486 (Sept. 9, 2022) (detailing the
litigation history of the 2019 Final Rule). DHS subsequently published
a notice in the Federal Register formally removing the 2019 Final Rule
from the CFR. 86 FR 14221 (Mar. 15, 2021).
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\56\ 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.).
\57\ See 87 FR 55472, 55486 (Sept. 9, 2022) (detailing the
litigation history of the 2019 Final Rule).
\58\ See Wolf v. Cook County, 140 S. Ct. 681 (2020) (staying
preliminary injunction from the Northern District of Illinois); DHS
v. New York, 140 S. Ct. 599 (2020) (staying preliminary injunctions
from the Southern District of New York); City and Cnty. of San
Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019) (staying
preliminary injunctions from the Eastern District of Washington and
Northern District of California); CASA de Md. v. Trump, No. 19-2222
(4th Cir. Dec. 9, 2019) (staying preliminary injunction from the
District of Maryland).
\59\ See DHS Secretary Statement on the 2019 Public Charge Rule
(Mar. 9, 2021) available at https://www.dhs.gov/archive/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule.
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7. DHS 2022 Public Charge Ground of Inadmissibility Advance Notice of
Proposed Rulemaking, Notice of Proposed Rulemaking, and Final Rule
In 2021, DHS published an advance notice of proposed rulemaking,
Public Charge Ground of Inadmissibility (2021 ANPRM), see 86 FR 47025
(Aug. 23, 2021), requesting broad public feedback on the public charge
ground of inadmissibility to inform its development of a future
regulatory proposal. DHS welcomed input from individuals,
organizations, government entities and agencies, and all other
interested members of the public. See 86 FR 47025, 47028-32 (Aug. 23,
2021). DHS also provided notice of virtual public listening sessions on
the public charge ground of inadmissibility and the 2021 ANPRM. USCIS
held two public listening sessions, one specifically for the general
public, and one for State, territorial, local, and Tribal benefits-
granting agencies and nonprofit organizations. The public comments DHS
received were considered and discussed in the subsequent notice of
proposed rulemaking, Public Charge of Inadmissibility (2022 NPRM). See
87 FR 10570, 10597-99 (Feb. 24, 2022).
Following public comments on the 2022 NPRM, DHS published a final
rule, Public Charge Ground of Inadmissibility (2022 Final Rule). See 87
FR 55472 (Sept. 9, 2022). The final rule implemented a different policy
than the 2019 Final Rule, more closely aligned with the 1999 Interim
Field Guidance.\60\
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\60\ 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.
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The 2022 Final Rule defined public charge more narrowly than in the
2019 Final Rule 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, and did not include
mandatory consideration of past, current, and future receipt of certain
supplemental public benefits that did not represent a primary
dependence on such benefits for subsistence. See 8 CFR 212.21(a).
Additional key definitions in the 2022 Final Rule included definitions
for the terms ``public cash assistance for income maintenance'',
``long-term institutionalization at government expense'', ``receipt (of
public benefits)'', ``government'', and ``household''. The 2022 Final
Rule also required a different information collection than the 2019
Final Rule, including the information collection for public charge
inadmissibility determinations in USCIS' Application to Register
Permanent Residence or Adjust Status, Form I-485, rather than in a
separate
[[Page 52180]]
form. The 2022 Final Rule did not designate ``heavily weighted''
positive or negative factors for making a public charge inadmissibility
determination, but instead constrained the public charge
inadmissibility determination to seven factors outlined in the
regulation: the five statutory factors that must be considered under
section 212(a)(4) of the INA, 8 U.S.C. 1182; 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. See 8 CFR 212.22. Additionally, the 2022 Final Rule
clarified DHS's approach to consideration of disability and long-term
institutionalization at government expense \61\ and stated a bright-
line rule prohibiting consideration of the receipt of public benefits
by an alien's dependents, such as a U.S. citizen child in a mixed-
status household. See 87 FR 55472, 55474 (Sept. 9, 2022). The 2022
Final Rule also listed the statutory exemptions from and waivers for
the public charge ground of inadmissibility established by Congress.
See 8 CFR 212.23.
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\61\ See 8 CFR 212.22(a)(3) and (4).
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The 2022 Final Rule did not revise DOS or DOJ standards or
processes related to public charge inadmissibility determinations, and
does not apply to nonimmigrants seeking extension of stay or change of
status in the United States. See 87 FR 55472, 55502-03 (Sept. 9, 2022).
See 87 FR 10570, 10600-01 (Feb. 24, 2022). The 2022 Final Rule only
applies to aliens applying for admission or adjustment of status. See
87 FR 55472, 55491 (Sept. 9, 2022). The 2022 Final Rule did not
interpret or change DHS's implementation of the public charge ground of
deportability.\62\
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\62\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 87 FR
55472, 55509 (Sept. 9, 2022).
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In January 2023, the State of Texas filed a suit under the
Administrative Procedure Act challenging DHS' repeal of the 2019 Final
Rule and the promulgation of the 2022 Final Rule. On September 30,
2024, the District Court found the plaintiff lacked standing, denied
the plaintiff's Motion for Summary Judgment, and terminated the case.
The plaintiff appealed this decision to the U.S. Court of Appeals for
the Fifth Circuit on December 2, 2024. On February 25, 2025, the Fifth
Circuit granted the joint motion to stay further proceedings until May
27, 2025. On May 29, 2025, the Fifth Circuit further extended the stay
of proceedings until August 27, 2025. On September 2, 2025, the Fifth
Circuit granted DHS motion for abeyance for an additional 90 days until
December 2, 2025.
IV. Basis and Purpose of the NPRM
As reflected in Executive Order 14218, Ending Taxpayer
Subsidization of Open Borders, the Trump administration is taking steps
to ``uphold the rule of law, defend against the waste of hard-earned
taxpayer resources, and protect benefits for American citizens in need,
including individuals with disabilities and veterans.'' See 90 FR
10581, 10581 (Feb. 25, 2025). Through this NPRM, DHS is proposing to
rescind the regulations implemented by the 2022 Final Rule related to
the public charge ground of inadmissibility at section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4).\63\ Both the 2019 Final Rule and the 2022
Final Rule erred in too narrowly defining the relevant terms in section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), resulting in the inability
of DHS to apply the public charge ground of inadmissibility consistent
with administration policy and congressional intent.
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\63\ See 87 FR 55472 (Sept. 9, 2022). This NPRM does not propose
to rescind or amend certain elements of the 2022 Final Rule:
regulations at 8 CFR 213.1 related to admission after submitting a
public charge bond, and technical updates related to adjustment of
status by T nonimmigrants at 8 CFR 212.18 and 8 CFR 245.23.
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This NPRM does not propose to revise DOS or DOJ standards or
processes related to public charge inadmissibility determinations.
Further, this NPRM does not propose to interpret or change DHS's
application of the public charge ground of deportability at section
237(a)(5) of the INA, 8 U.S.C. 1227(a)(5).
A. The Prior Rules Were Overly Restrictive
The regulations implemented by the 2022 Final Rule and its
predecessor, the 2019 Final Rule, are inconsistent with the national
policy contained Executive Order 14218 and PRWORA and the spirit of the
broad statutory text in section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), in that both rules severely and unduly limited the factors
that DHS could consider in making a public charge inadmissibility
determination. This discouraged officers from considering relevant
evidence essential to making an accurate and valid public charge
inadmissibility determination that is consistent with the statute, the
spirit of PRWORA, and past precedent decisions. This may have resulted
in USCIS finding aliens eligible for adjustment of status even when
their past receipt of means-tested public benefits may have
demonstrated that they lacked self-sufficiency and were likely at any
time to become a public charge, due to officers' inability to consider
all benefits the alien depended on and any other relevant case-specific
factor that has bearing on the inadmissibility determination.
Section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A), states
that ``any alien who, in the opinion of the consular officer at the
time of application for a visa, or in the opinion of the [immigration
officer] at the time of application for admission or adjustment of
status, is likely at any time to become a public charge is
inadmissible.'' Section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B), lists the minimum, non-exhaustive list of factors the
consular officer or immigration officer must consider when making a
public charge inadmissibility determination: the alien's age; health;
family status; assets, resources, and financial status; and education
and skills. In addition to those five factors, the consular officer or
immigration officer may also consider any Affidavit of Support under
section 213A of the INA, 8 U.S.C. 1183a, when making a public charge
inadmissibility determination. As the statutory language makes clear by
stating that officers ``shall at a minimum'' consider these five
factors, Congress clearly intended for officers to consider case-
specific additional factors and information relevant to the public
charge inadmissibility determination.
However, both the 2019 Final Rule and the 2022 Final Rule provided
a finite list of factors that officers are required to consider without
expressly providing officers with the authority to consider other
factors that are relevant in any individual case. The 2022 Final Rule,
in particular, failed to clarify for officers that their public charge
inadmissibility determination was not limited to consideration of the
factors enumerated in 8 CFR 212.22(a). While section 212(a)(4)(B) of
the INA, 8 U.S.C. 1182(a)(4)(B), clearly lists the ``minimum'' and non-
exhaustive factors that officers must consider when making
inadmissibility determinations, the 2022 Final Rule unduly restricts
officers primarily to these five factors plus two additional factors,
leaving little opportunity for discretion or deviation from considering
these seven factors in the totality of the circumstances. Indeed, the
current regulation at 8 CFR 212.22(a) has no provision for officers to
consider any other factors than the express factors listed. See 8 CFR
212.22(a). Significantly, the 2022 Final Rule failed to include a
provision in 8 CFR 212.22(a) that expressly permits
[[Page 52181]]
officers to consider any other relevant case-specific factors in the
totality of the circumstances.\64\ In other words, there was no
``catch-all'' provision added to the limited, narrow scope of factors
enumerated in either the 2019 Final Rule or the 2022 Final Rule. DHS
has the authority to enumerate exclusive factors to be considered in
making public charge inadmissibility determinations without a catch all
provision and did so in the 2022 Final Rule.\65\ While enumerating
factors in this manner is a permissible use of DHS's rulemaking
authority, the effect of the specific factors that DHS enumerated
restricts public charge inadmissibility determinations in such a way
that the rule contravenes the clear congressional intent of the
statute.\66\ To ensure that officers retain their statutorily-mandated
ability to determine, in their opinion, whether an alien is likely at
any time to become a public charge, DHS believes it must remove
regulations that fail to explicitly permit officers to consider any
case-specific factors that bear on an alien's likelihood of becoming a
public charge at any time in the future.
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\64\ Compare the 2022 Final Rule to the 2019 Final Rule, in
which officers were directed to consider ``all factors that are
relevant'' and listed ``minimum factors to consider,'' stating that
the public charge inadmissibility determination ``must at least
entail consideration'' of those minimum factors. 8 CFR 212.22
(2019).
\65\ See 8 CFR 212.22(a).
\66\ Even if the 2022 Final Rule could be construed to
implicitly contain a catch-all provision, DHS would still propose to
rescind it, because the 2022 Final Rule contains other unnecessary
restrictions on officers' inadmissibility determinations.
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Moreover, both the 2019 Final Rule and 2022 Final Rule, in
providing narrow and finite lists of factors that officers were
required to consider, are in significant tension with the inherently
discretionary nature of the public charge inadmissibility
determination. Indeed, because the statute requires the officer to
determine inadmissibility in his or her opinion, the officer may, in
his or her discretion, determine what factors other than the statutory
minimum factors are relevant to any individual case. This includes a
sufficient Affidavit of Support Under Section 213A of the INA, if one
is required, and any other factors relevant to this ground of
inadmissibility as tailored to the specific facts of a given case. As
the Senate Judiciary Committee noted in 1950, ``[s]ince the elements
constituting likelihood of becoming a public charge are varied, there
should be no attempt to define the term in the law, but rather to
establish the specific qualification that the determination of whether
an alien falls into that category rests within the discretion of the
consular officers or [former INS].'' \67\
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\67\ See The 1950 Omnibus Report of the Senate Judiciary
Committee, S. Rep. No. 81-1515, at 349 (1950); see also Matter of
Harutunian,14 I&N Dec. 583 (Reg'l Comm'r 1974).
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Additionally, both the 2019 Final Rule and the 2022 Final Rule
provided narrow and finite lists of public benefits that could be
considered as part of the public charge inadmissibility determination,
which is inconsistent with congressional intent. The 2019 Final Rule
limited consideration of receipt of public benefits to Federal, State,
local, or tribal cash assistance for income maintenance,\68\
Supplemental Nutrition Assistance Program (SNAP),\69\ Section 8 Housing
Assistance under the Housing Choice Voucher Program,\70\ Section 8
Project-Based Rental Assistance (including Moderate
Rehabilitation),\71\ most Medicaid; \72\ and Public Housing under
section 9 of the U.S. Housing Act of 1937. See 8 CFR 212.21(b) (2019).
However, the 2019 Final Rule expressly excluded from consideration the
receipt of public benefits by certain groups, even though Congress did
not exclude consideration of benefits received by these groups.\73\ See
8 CFR 212.22(b)(7)-(9) (2019).
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\68\ This included Supplemental Security Income (SSI), 42 U.S.C.
1381 et seq., Temporary Assistance for Needy Families (TANF), 42
U.S.C. 601 et seq., and Federal, State or local cash benefit
programs for income maintenance (often called ``General Assistance''
in the State context, but which also exist under other names).
\69\ 7 U.S.C. 2011 to 2036c.
\70\ As administered by HUD under 42 U.S.C. 1437f.
\71\ See Section 8 of the U.S. Housing Act of 1937 (42 U.S.C.
1437f).
\72\ As set forth in section 8 of the U.S. Housing Act of 1937
(42 U.S.C. 1437f), except for: benefits received for an emergency
medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR
440.255(c), services or benefits funded by Medicaid but provided
under the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. 1400 et seq., and school-based services or benefits provided
to individuals who are at or below the oldest age eligible for
secondary education as determined under State or local law, and
benefits received by an alien under 21 years of age, or a woman
during pregnancy (and during the 60- day period beginning on the
last day of the pregnancy).
\73\ The 2019 Final Rule excluded from consideration the receipt
of benefits by certain military servicemembers and their spouses and
children, benefits received while in the alien was present in the
United States in an immigration category that is exempt from the
public charge ground of inadmissibility or for which the alien
received a waiver of public charge inadmissibility, and benefit
received by certain other children.
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The 2022 Final Rule limits consideration of public benefits to only
the receipt of public cash assistance for income maintenance \74\ and
long-term institutionalization at government expense.\75\ See 8 CFR
212.21. Unlike the 2019 rule, the 2022 Final Rule does not exempt
consideration of the receipt of public benefits by servicemembers and
their spouses and children or certain other children. Still, the rule
excludes consideration of the receipt of, or certification or approval
for future receipt of, certain excluded benefits. These excluded
benefits include 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. Congress did not expressly exclude receipt of such
benefits.
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\74\ This included Supplemental Security Income (SSI), 42 U.S.C.
1381 et seq., Cash assistance for income maintenance under the
Temporary Assistance for Needy Families (TANF) program, 42 U.S.C.
601 et seq.; and 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).
\75\ 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.
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B. Basis for the Removal of the Existing Public Charge Inadmissibility
Framework
In addition to being inconsistent with administration policy and
congressional intent, DHS notes that any narrow and finite lists of
public benefits that may be considered as part of the public charge
inadmissibility determination and similar limitations on the types of
information that immigration officers may consider are incongruent with
past agency guidance and public-facing communications materials
documenting the expansive, fact-specific, totality of the
circumstances, and discretionary nature of the public charge analysis,
including:
A March 1946 INS article discussing the inherently fact-
specific nature of the public charge analysis. ``The proof in these
cases usually consists of what is known as a Form I-234 (formerly 534),
`Proof that alien has become a public charge,' which is executed by the
proper hospital officials, showing that the alien is being maintained
or has been maintained at public expense. This form shows the demand
for payment and obligations due. The proof also consists of evidence,
documentary or oral, establishing whether the cause arose before or
after
[[Page 52182]]
entry, which is necessary to a definitive determination of the issue in
accordance with the statutory prerequisite. In medical cases, it is
customary for the record to contain clinical findings, medical
certificates and testimony of the alien, relatives, or friends on the
factual issues . . .'' \76\
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\76\ Montaquila, Anthony L. ``Status of Aliens Who Become Public
Charges.'' Immigration and Naturalization Service Monthly Review,
vol. III, no. 9 (March 1946): 278-280.
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A March 1949 INS article describing the administrative
discretion inherent in the public charge analysis. ``In executing his
mandate to exclude `persons likely to become a public charge,' the
immigration officer at a seaport or border is confronted with a
difficult task. The statute's terms are highly ambiguous but they must
be construed in consonance with the Congressional design and the
American tradition. Moreover, the statute speaks of one `likely' to
become a public charge, and thus it thrusts upon the immigration
officer's shoulders the mantle of prophecy. Manifestly this
determination necessarily entails the exercise of sound discretion.''
\77\ (emphasis supplied)
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\77\ Gordon, Charles. ``Aliens and Public Assistance.''
Immigration and Naturalization Service Monthly Review, vol. VI, no.
9 (March 1949): 115-120.
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A May 1950, INS article documenting aliens deported as
public charges to instruct INS officers on how to appropriately
evaluate public charge, expressly stating that ``further light may be
thrown on the matter by a detailed examination of the actual cases
deported in recent years.'' The article noted that ``likely to become a
public charge'' is a delineated term in immigration law and offered a
highly factual analysis of recent cases, specifically addressing the
types of charges, the cause of disability in the reported cases, status
at last entry, length of residence in the United States before entering
an institution, and facts regarding the social characteristics of the
aliens (e.g., age, marital status, etc.) for such aliens. The article
noted for officers that before the INS acts in any such cases, ``a
careful investigation is made.'' \78\
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\78\ Miller, Watson B. ``Aliens Deported as Public Charges.''
Immigration and Naturalization Service Monthly Review, vol. VII, no.
11 (May 1950): 144-148.
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On May 25, 1999, INS issued a Public Charge Fact Sheet
that discussed the 1999 NPRM's criteria for public charge
determinations, but then expressly stated ``The law requires that INS
and DOS officials consider several additional issues as well. Each
determination is made on a case-by-case basis.'' \79\
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\79\ U.S. Department of Justice, Immigration and Naturalization
Office of Public Affairs, ``Public Charge Fact Sheet'' (May 25,
1999).
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In 2009, the USCIS Public Charge web page was updated to
provide additional guidance, including ``Inadmissibility based on the
public charge ground is determined by the totality of the
circumstances. This means that the adjudicating officer must weigh both
the positive and negative factors when determining the likelihood that
someone might become a public charge. At a minimum, a U.S. Citizenship
and Immigration Services (USCIS) officer must consider the following
factors when making a public charge determination: Age, Health, Family
status, Assets, Resources, Financial status, and Education and skills .
. . In assessing the totality of the circumstances, including the
statutory factors above, an officer may consider the individual's
receipt of certain publicly funded benefits.'' \80\
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\80\ United States Citizenship and Immigration Services,
``Public Charge'' web page, as updated September 3, 2009.
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In 2011, USCIS issued a Public Charge Fact Sheet stating
``Each determination is made on a case-by-case basis in the context of
the totality of the circumstances. In addition, public assistance,
including Medicaid, that is used to support aliens who reside in an
institution for long-term care--such as a nursing home or mental health
institution--may also be considered as an adverse factor in the
totality of the circumstances for purposes of public charge
determinations.'' \81\
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\81\ United States Citizenship and Immigration Services ``Public
Charge Fact Sheet'' (April 29, 2011).
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Even if some past agency policy or practice is inconsistent with
these examples, DHS notes these examples of past practice as the most
consistent with the statute and best means of reaching accurate,
precise, and reliable determinations. Indeed, even the 1999 Interim
Field Guidance, which the 2022 Final Rule substantively tracks in most
other respects, emphasized ``Officers must consider, at a minimum,''
the statutory factors and mandated ``Every denial order based on public
charge must reflect consideration of each of these factors and
specifically articulate the reasons for the officer's determination.''
\82\ The guidance continued, ``In determining whether an alien is
likely to become a public charge, Service officers should assess the
financial responsibility of the alien by examining the `totality of the
alien's circumstances' . . . The determination of financial
responsibility should be a prospective evaluation based on the alien's
age, health, family status, assets, resources and financial status,
education, and skills, among other factors . . . In addition, the
Attorney General has ruled that `[s]ome specific circumstances, such as
mental or physical disability, advanced age, or other fact reasonably
tending to show that the burden of supporting the alien is likely to be
cast on the public, must be present.' '' \83\ (emphasis in original)
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\82\ Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds (1999 Interim Field Guidance) 64 FR 28689 (May
26, 1999).
\83\ Id. at 28690.
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These examples of past agency guidance and public-facing materials
relating to public charge support DHS's position that the public charge
determination is extremely fact-specific and discretionary in nature,
but also that the 2019 Final Rule and the 2022 Final Rule were far too
narrow in terms of reducing officer discretion and that the 2022 Final
Rule continues to straitjacket DHS officers because it unduly limits
the scope of factors officers may consider when arriving at a case-by-
case determination in the totality of each alien's circumstances.
For these reasons, DHS believes that it must completely remove the
public charge inadmissibility framework established by the 2022 Final
Rule in order to be more consistent with PRWORA's directive that
``aliens within the Nation's borders not depend on public resources to
meet their needs, but rather rely on their own capabilities and the
resources of their families, their sponsors, and private
organizations,'' as well as with section 212(a)(4)(A) of the INA, 8
U.S.C. 1182(a)(4)(A), which directs DHS to deny admission and
adjustment of status to aliens who are likely at any time to become a
public charge. Indeed, DHS believes that the 2022 Final Rule's public
charge inadmissibility provisions do not faithfully implement PRWORA
and section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A), insofar as
they straitjacket DHS officers by limiting what public benefits DHS can
consider in the totality of the circumstances and by precluding
officers from considering factors beyond the seven factors outlined in
the regulations.
To address the 2022 Final Rule's inconsistency with administration
policy and the clear directives in PRWORA and section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), in this NPRM, DHS proposes to remove 8 CFR
212.20, 212.21, 212.22, and 212.23. In removing 8 CFR 212.21 and 8 CFR
212.22, DHS
[[Page 52183]]
will eliminate the unduly and inappropriately restrictive framework
established by the 2022 Final Rule that results in officers being
required to ignore aliens' receipt of certain public benefits such as
Medicaid, CHIP, SNAP, and housing benefits. Eliminating this narrow
approach allows DHS to formulate appropriate policy and interpretive
tools that will guide DHS officer determinations, as envisioned by
Congress in PRWORA and in the INA, where the receipt of any type of
public benefits by a qualified alien is relevant and indeed critical to
determining whether an alien is actually self-sufficient and able to
rely on their own capabilities and the resources of their families,
their sponsors, and private organizations rather than depending on
public resources to meet their needs. See 8 U.S.C. 1601(2)(A); INA sec.
212(s), 8 U.S.C. 1182(s).
Additionally, DHS believes that it should remove the limitation on
factors to be considered in public charge inadmissibility
determinations in order to more faithfully implement PRWORA and section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). DHS believes that the
current regulations are inconsistent with section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), by focusing on consideration of seven exclusive
factors. Instead, DHS contends that Congress clearly signaled the
inadmissibility determination must be a subjective, individualized, and
case-specific determination based on consideration of all relevant
factors rather than an enumerated, finite set of factors. See INA sec.
212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). Even if the 2022 Final Rule could
be viewed as a faithful implementation of the INA as a legal matter,
DHS would still move to rescind the rule in light of current
administration policy and the national policies articulated in PRWORA
with respect to welfare and immigration.\84\
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\84\ See 8 U.S.C. 1601.
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Simply put, DHS believes that the narrow definitions as well as the
limitations on what public benefits and what factors can be considered
in public charge inadmissibility determinations that exist in 8 CFR
212.20, 212.21, and 212.22 impede DHS's ability to robustly execute
administration and congressional policy concerning aliens who depend on
public resources to meet their needs instead of relying on their own
capabilities and the resources of their families, their sponsors, and
private organizations. Put another way, the administration and clear
congressional national policy on welfare and immigration point to the
view that an alien who lacks self-sufficiency should not be admitted to
the United States or be granted adjustment of status to that of a
lawful permanent resident.\85\ Accordingly, DHS's expeditious removal
of these regulations would allow DHS to more accurately, precisely, and
reliably assess public charge inadmissibility, and would bolster DHS's
ability to make individualized and case-specific public charge
inadmissibility determinations that are required under the statute and
are consistent with our national policy with respect to welfare and
immigration.
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\85\ See 8 U.S.C. 1601.
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DHS believes that the existing regulatory framework can lead to
irrational outcomes where officers are precluded from finding aliens
inadmissible under the public charge ground when it is evident that
these aliens are clearly not self-sufficient, which can lead to both
more aliens remaining in the United States who are likely at any time
to become a public charge and more aliens being dependent on public
benefits programs. For example, under the 2022 Final Rule, DHS officers
could find aliens who receive multiple forms of means-tested benefits
to meet their needs not inadmissible due to the restrictive definition
of ``likely at any time to become a public charge,'' which exclusively
focuses on public cash assistance for income maintenance and long-term
institutionalization at government expense and ignores the vast
majority of public assistance aliens could potentially depend on in the
future.
If this proposed rule is finalized, while DHS works on formulating
appropriate policy and interpretive tools that will guide DHS officers
for public charge inadmissibility determinations, officers will be
empowered to consider not only the mandatory statutory factors, but
also all evidence and information specific to the alien and relevant to
the public charge ground of inadmissibility that is before them as they
determine whether that alien is likely at any time to become a public
charge. This will restore an inadmissibility determination process that
trusts in and relies on DHS officers' good judgment and sound
discretion as envisioned by Congress.
DHS also believes that removing the current regulations would
provide DHS greater flexibility to adapt to changing circumstances,
such as Federal and State changes to aliens' eligibility for means-
tested public benefits as well as changes to the value of those
benefits, as occurred with the enactment of H.R. 1-One Big Beautiful
Bill Act, Public Law 119-21, 139 Stat. 72 (``HR-1''). As the
administration persists in its efforts to reduce the siloing of
data,\86\ DHS anticipates working toward the integration of immigration
records with records from Federal benefit-granting agencies. The
analysis of that data will inform the development of the flexible and
adaptive policy and interpretive tools that will guide future public
charge inadmissibility determinations.
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\86\ See Executive Order 14243, Stopping Waste, Fraud, and Abuse
by Eliminating Information Silos, 90 FR 1368 (Mar. 25, 2025) (The
purpose of the E.O. is ``removing unnecessary barriers to Federal
employees accessing Government data and promoting inter-agency data
sharing are important steps toward eliminating bureaucratic
duplication and inefficiency while enhancing the Government's
ability to detect overpayments and fraud.'').
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Upon removal of 8 CFR 212.20, 212.21, and 212.22, and until such
time that DHS establishes its new public charge inadmissibility policy
and interpretive tools, DHS will ensure that public charge
inadmissibility determinations are made consistent with the statute and
in accordance with the totality of the circumstances including those
established by past precedent decisions.\87\ DHS notes that it is not
proposing to replace the rescinded public charge inadmissibility
regulations at this time. Notably, while INS published the 1999
NPRM,\88\ there were no regulations governing public charge
inadmissibility determination
[[Page 52184]]
from 1882 \89\ until the 2019 Final Rule.\90\ DHS also proposes to
remove 8 CFR 212.23, which clarifies in one place the categories of
aliens to whom the public charge ground of inadmissibility does not
apply and the categories of aliens to whom the ground applies but for
whom a waiver of inadmissibility is available. DHS believes that this
regulatory text is unnecessary and redundant.
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\87\ See e.g. Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (``[T]he determination of whether an alien falls into
that category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-
22 (Att'y Gen. 1962) ((in determining whether a person is likely to
become a public charge, factors to consider include age, health, and
physical condition, physical or mental defects which might affect
earning capacity, vocation, past record of employment, current
employment, offer of employment, number of dependents, existing
conditions in the United States, sufficient funds or assurances of
support by relatives or friends in the United States, bond or
undertaking, or any specific circumstances reasonably tending to
show that the burden of supporting he alien is likely to be case on
the public.); see also Matter of A-, 19 I&N Dec. 867, 869 (Comm'r
1988) (applying ``[t]he traditional test . . . to determine whether
an alien is likely to become a public charge . . . `based on the
totality of the alien's circumstances' as presented in the
individual case.'') (citations omitted); Matter of Perez, 15 I&N
Dec. 136, 137 (BIA 1974) (``the statute . . . requires more than a
showing of a possibility that the alien will require public support.
Some specific circumstance, such as mental or physical disability,
advanced age, or other fact reasonably tending to show that the
burden of supporting the alien is likely to be cast on the public,
must be present.'') (emphasis added).
\88\ See 64 FR 28676 (May 26, 1999).
\89\ See Immigration Act of 1882, ch. 376, secs. 1-2, 22 Stat.
214, 214. Section 11 of the Act also provided that an alien who
became a public charge within 1 year of arrival in the United States
from causes that existed prior to their landing was deemed to be in
violation of law and was to be returned at the expense of the person
or persons, vessel, transportation, company, or corporation who
brought the alien into the United States.
\90\ See 84 FR 41292 (Aug. 14, 2019), as amended by 84 FR 52357
(Oct. 2, 2019).
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V. Discussion of the NPRM
A. Introduction
DHS proposes to remove its regulations governing the public charge
ground of inadmissibility under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), because those regulations conflict or are in significant
tension with congressional intent, administration and congressional
national policy with respect to welfare and immigration,\91\ and past
precedent decisions.\92\ The removal of these regulations, reflected in
this NPRM, rescind the key policies implemented in the 2022 Final Rule
while modifying provisions relating to public charge bonds to align
with the removal of the other provisions and for clarity.
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\91\ 8 U.S.C. 1601.
\92\ See e.g. Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (emphasizing that the term public charge refers to
individuals who are ``without sufficient funds to support
[themselves], who ha[ve] no one under any obligation to support
[them] and who, being older, ha[ve] an increasing chance of becoming
dependent, disabled and sick.''); Matter of Martinez-Lopez, 10 I&N
Dec. 409, 421-423 (BIA 1962; Att'y Gen. 1962) (A public charge
inadmissibility determination ``requires more than a showing of a
possibility that the alien will require public support. Some
specific circumstance, such as mental or physical disability,
advanced age, or other fact showing that the burden of supporting
the alien is likely to be cast on the public, must be present. 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.'');
Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974) (``The
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.''). See also Matter of A-, 19 I&N Dec. 867,
869 (Comm'r 1988) (33 year old employed mother of three not likely
to become a public charge notwithstanding having previously received
public benefits. The BIA considered other relevant factors such as
that a mother's temporary absence from the work force to care for
her children is not by itself sufficient basis to find the mother
likely to become a public charge. There may be circumstances beyond
the control of the alien which temporarily prevent an alien from
joining the work force. For example, as the applicant states in her
appeal, she lives in an area where jobs are scarce and she had been
unable to find a job.); Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977)). And see Ex parte Hosaye Sakaguchi, 277 F. 913, 916
(9th Cir. 1922) (holding that an alien could not be deemed a public
charge absent evidence of ``mental or physical disability or any
fact tending to show that the burden of supporting the [alien] is
likely to be cast upon the public.'').
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By removing overly restrictive provisions, DHS seeks to ensure that
DHS officers more accurately and appropriately evaluate an alien's
likelihood of becoming dependent on public resources to meet their
needs by following the plain language of the statute and past precedent
decisions that have guided public charge inadmissibility determinations
for decades. DHS believes that removal of these overly restrictive
provisions would lead to fewer aliens remaining in the United States
who are likely at any time to become a public charge, which would also
result in a reduction in the number of aliens dependent on public
benefits programs, as intended by Congress in PRWORA.
B. Discussion of the Amendments and Removals in the NPRM
1. Proposed Amendments to Cancellation and Breach of Public Charge
Bonds Provisions--8 CFR 103.6(c)
DHS proposes to amend its regulations governing the cancellation
and breach of public charge bonds at 8 CFR 103.6(c)(1) to reflect the
rescission of 8 CFR 212.21 as well as to more fully address when a
public charge bond will be considered breached, and to explicitly
address administrative appeals from a determination that the alien
breached a bond.
Under the proposed 8 CFR 103.6(c)(1)(A), a public charge bond
posted for an alien will continue to be cancelled when the alien dies,
departs permanently from the United States, or is naturalized, provided
the alien did not breach the bond as described in proposed 8 CFR
103.6(c)(1)(B). However, under proposed 8 CFR 103.6(c)(1)(B), a public
charge bond submitted on or after the effective date of a forthcoming
final rule would be breached if the bonded alien were to receive any
means-tested public benefits prior to death, permanent departure, or
naturalization, or otherwise violate a condition of the bond.
Since DHS proposes to remove references to public cash assistance
for income maintenance or long-term institutionalization at government
expense as part of the public charge inadmissibility determination, DHS
relatedly proposes to replace that language prohibiting the
cancellation of a public charge bond if the bonded alien has received
public cash assistance for income maintenance or long-term
institutionalization at government expense with language that prohibits
cancellation if the bonded alien has breached the bond by receiving any
means-tested public benefits or is otherwise noncompliant with any
conditions of the bond. This amendment is intended to ensure that the
government \93\ is held harmless if a bonded alien breaches his or her
public charge bond, as required by the statute. See INA sec. 213, 8
U.S.C. 1183. An alien who submitted his or her public charge bond
before the effective date of any forthcoming final rule that is issued
based on this NPRM, and whose bond is accepted by USCIS, would be held
to the regulatory standards from the 2022 Final Rule, which are also
reflected on the bond form. That is, the alien would only breach the
bond if he or she received public cash assistance for income
maintenance or long-term institutionalization at government expense, or
otherwise violated the conditions of the bond, before meeting one of
the requirements for cancellation. In addition, cancellation of that
bond submitted prior to the effective date of any final rule stemming
from this NPRM (if accepted by USCIS) would be based on the version of
8 CFR 103.6 established by the 2022 Final Rule. Further, the proposed
changes to this provision make explicit that final breach bond
determinations are appealable by sureties under 8 CFR 103.6(f), and by
aliens under 8 CFR 103.3.
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\93\ Under INA sec. 213, 8 U.S.C. 1183, ``the United States and
all States, territories, counties, towns, municipalities, and
districts thereof.''
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DHS also proposes to amend 8 CFR 103.6(c)(1) to modify the standard
for cancellation of a public charge bond after the fifth anniversary of
the alien's admission or adjustment of status to reflect the removal of
8 CFR 212.21. Under the proposed 8 CFR 103.6(c)(1), if an alien files
Form I-356, Request for Cancellation of Public Charge Bond, USCIS may
cancel the bond if USCIS determines that the alien did not breach the
bond by receiving any means-tested public benefit or otherwise being
noncompliant with the conditions of the bond.
In addition, DHS proposes to remove language from 8 CFR 103.6(c)(1)
stating that DHS can cancel a public charge bond at any time if it
determines ``that
[[Page 52185]]
the alien is not likely at any time to become a public charge'' because
that provision is misleading and not feasible. For aliens who have been
admitted to the United States as LPRs or adjusted to LPR status within
the United States after submitting a suitable and proper public charge
bond under section 213 of the INA, 8 U.S.C. 1183, DHS does not sua
sponte make a second, post-adjudication public charge inadmissibility
determination under section 212(a)(4)(A) of the INA, 8 U.S.C.
1182(a)(4)(A).\94\ The existing regulatory language suggests that USCIS
may periodically review and reconsider its previous public charge
inadmissibility determination and cancel the public charge bond, or
that aliens who had submitted a public charge bond may request such a
review. However, neither of these suggestions are accurate.\95\ Once
USCIS or DOS determines that an alien is inadmissible under the public
charge ground but adjusts the alien's status or grants their immigrant
visa after the alien submits a suitable and proper bond, DHS would not
cancel the bond except as otherwise noted in proposed 8 CFR 103.6(c).
If the proposal is finalized, the removal of this language would result
in regulatory text that clearly and transparently communicates to the
regulated public about the circumstances under which a public charge
bond may be cancelled.
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\94\ Under INA sec. 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), an
LPR may only be considered an applicant for admission, and subject
to an inadmissibility determination, in certain narrow circumstances
outlined by Congress in the statute. These include situations in
which the alien has abandoned their LPR status or has engaged in
illegal activity after departing.
\95\ DHS notes that in general, once it makes an inadmissibility
determination and the alien is no longer applying for admission at a
port of entry or a benefit before USCIS it does not reevaluate
inadmissibility after granting admission at a POE or after approving
an alien's application to adjust status to that of an LPR. The
exception to this general rule is if the LPR becomes an applicant
for admission through the operation of INA 101(a)(13)(C), 8 U.S.C.
1101(a)(13)(C) for example, if the abandoned his or her LPR status,
has been absent from the United States for more than 180 days, etc.
However, in the context of naturalization, for example, USCIS may,
in assessing whether an applicant was lawfully admitted for
permanent residence, evaluate whether the alien was admissible at
the time of admission or adjustment of status. See INA sec. 316, 8
US.C. 1427; INA sec. 245(a)(2), 8 U.S.C. 1255(a)(2).
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DHS also proposes to restructure the current 8 CFR 103.6(c)(1) for
clarity. It proposes to move content relating to the breach of bonds to
a new 8 CFR 103.6(c)(1)(B). This proposed paragraph explains how the
receipt of means-tested public benefits (or, for public charge bonds
accepted before the effective date of the final rule, public cash
assistance for income maintenance or long-term institutionalization at
government expense), as well as any other noncompliance with a
condition of the bond, will result in a breach. DHS also proposes to
re-order and restructure 8 CFR 103.6(c)(1)(A), which outlines the bases
for cancellation of a public charge bond. If finalized, this will help
officers and the public better understand the separate bases for bond
cancellation and the related requirements, and understand that
cancellation requires the submission of a request on the form
designated by DHS.
Apart from these changes, DHS is retaining the technical amendments
from the 2022 Final Rule in 8 CFR 213.1 that facilitate the efficient
administration of public charge bonds as well as the clarification
concerning DHS's authority to offer public charge bonds, in its
discretion, to certain adjustment of status applicants.
2. Proposed Removal of Definitions and Regulatory Framework for Making
Public Charge Inadmissibility Determinations--8 CFR 212.21
DHS is proposing to remove 8 CFR 212.21, which contains definitions
codified by the 2022 Final Rule. The definitions DHS proposes to remove
include ``likely at any time to become a public charge,'' ``receipt (of
public benefits),'' ``public cash assistance for income maintenance,''
and ``long-term institutionalization at government expense.'' DHS also
proposes to eliminate the definitions for ``government'' and
``household.''
a. Proposed Removal of Definition for Likely at Any Time To Become a
Public Charge
The INA does not define ``public charge'' or ``likely at any time
to become a public charge.'' See INA sec. 212(a)(4), 8 U.S.C.
1182(a)(4). It instead provides an orientational framework for making
public charge inadmissibility determinations by identifying five
mandatory factors and one discretionary factor for officers to consider
when determining whether an alien is inadmissible under the public
charge ground in the totality of the circumstances.
The 2019 Final Rule specifically defined a public charge as ``an
alien who receives one or more public benefits, as defined in paragraph
(b) of this section, for more than 12 months in the aggregate within
any 36-month period (such that, for instance, receipt of two benefits
in one month counts as two months).'' See 8 CFR 212.21(a) (2019). The
2019 Final Rule also defined likely at any time to become a public
charge to mean ``more likely than not at any time in the future to
become a public charge, as defined in 212.21(a), based on the totality
of the alien's circumstances.'' See 8 CFR 212.21(c) (2019). These
definitions were based on the longstanding national policy that aliens
inside the United States must be self-sufficient and not rely on public
benefits to meet their needs. See 84 FR 41292, 41295 (August 14, 2019).
The 2022 Final Rule did not define public charge, but defined
``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.'' See 8 CFR 212.21(a) (2022). This interpretation
was based on, among other things, an interpretation of the interplay
between section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A), and 8
U.S.C. 1601. See 87 FR 10570, 10606 (Feb. 24, 2022).
However, DHS finds that the definitions for ``likely at any time to
become a public charge'' in both the 2019 Final Rule and 2022 Final
Rule are too restrictive and, as a result, prevented officers from
assessing whether an alien is self-sufficient and is likely to depend
on their own capabilities and the resources of their families, their
sponsors, and private organizations to meet their needs, as intended by
Congress when enacting 8 U.S.C. 1601 close in time to the changes to
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in IIRIRA. DHS does
not believe that limiting the types of benefits and the time frame of
receipt of such benefits in determining an alien's likelihood of
becoming a public charge, as was done in the 2019 Final Rule, or a
bright line primary dependence on the government for subsistence
standard, as was done in the 2022 Final Rule, are the best
implementation of the public charge inadmissibility statute given
Congress' clear statement that ``aliens within the Nation's borders not
depend on public resources to meet their needs . . . .'' See 8 U.S.C.
1601(2)(A) (emphasis added).
DHS is therefore proposing to eliminate the 2022 definition of
``likely at any time to become a public charge,'' which was defined as
``likely at any time to become primarily dependent on the government
for subsistence.'' This would allow officers to focus on Congress'
unequivocal policy goal that aliens not depend on public resources to
meet their needs,\96\ but rather that aliens
[[Page 52186]]
rely ``on their own capabilities and the resources of their families,
their sponsors, and private organizations'' as envisioned by PRWORA.
See 8 U.S.C. 1601(2). This interpretation also recognizes that aliens
can lack self-sufficiency and not be relying on their own capabilities
and the resources of their families, their sponsors, and private
organizations, even where they are not primarily dependent on the
government.\97\
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\96\ See 8 U.S.C. 1601(1).
\97\ See 84 FR 41292, 41349 (Aug. 14, 2019) (``although the
primarily dependence (more-than-50-percent dependence) on public
assistance standard creates a bright line rule, it is possible and
likely probable that many individuals whose receipt of public
benefits falls below that standard lack self-sufficiency.''); 83 FR
51114, 51164 (Oct. 10, 2018) (``it is possible and likely probable
that many individuals whose receipt of public benefits falls below
[the ``primarily dependent''] standard lack self-sufficiency.'').
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Moreover, DHS notes that neither the statute nor case law prescribe
the degree to which an alien must receive public benefits to be
considered likely at any time to become a public charge. As concluded
in past precedent, in general, an alien who is incapable of earning a
livelihood, who does not have sufficient funds in the United States for
support, who has no person in the United States willing and able to
ensure that the alien will not need public support, and who, in fact,
receives such public support generally is inadmissible as likely to
become a public charge.\98\ Additionally, there are public benefits
other than the two types relied upon in the 2022 Final Rule that are
intended to meet the basic necessities of life and maintain a minimum
quality of life within the United States. There are also classes of
public benefits where the cost to the government (in the aggregate or
on a per-alien basis) is similar to or greater than the costs
associated with cash assistance for income maintenance.\99\ Ignoring
any dependence on these other public benefits when making a public
charge inadmissibility determination is inconsistent with the clear
self-sufficiency objectives articulated by Congress in PRWORA.
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\98\ See, e.g., Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l
Comm'r 1977) (Congress intends that an applicant for a visa 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.''); Matter of
Harutunian, 14 I&N Dec. 583, 589 (Reg'l Comm'r 1974) (``Congress
intends that an applicant for a visa be excluded who is without
sufficient funds to support himself, who has no one under any
obligation to support him and who, being older, has an increasing
chance of becoming dependent, disabled and sick.'') (emphasis
added); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962;
Att'y Gen. 1964) (``the general tenor of the holdings is that the
statute requires more than a showing of a possibility that the alien
will require public support. Some specific circumstance, such as
mental or physical disability, advanced age, or other fact
reasonably tending to show that the burden of supporting the alien
is likely to be cast on the public, must be present. 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.'').
\99\ For example, in calendar year 2022 the median Medicaid
expenditure per enrollee was $9,108. See Medicaid.gov, ``Medicaid
Per Capita Expenditures,'' https://www.medicaid.gov/state-overviews/scorecard/measure/Medicaid-Per-Capita-Expenditures?measure=EX.5&measureView=state&stratification=463&dataView=pointInTime&chart=map&timePeriods=%5B%222022%22%5D (last visited
Sept. 17, 2025). By comparison, in July 2022, the average monthly
SSI payment per recipient was $624, or $7,491 annually. See Social
Security Administration, ``Monthly Statistical Snapshot, July 2022''
(August 2022), https://www.ssa.gov/policy/docs/quickfacts/stat_snapshot/2022-07.html (last visited Sept. 17, 2025). TANF cash
assistance levels vary significantly between States due to the
nature of the program, but in 2024 an analysis by the National
Center for Children in Poverty found that the median maximum TANF
benefit for a family of three was $552/month, or $2,208 annually per
household member. See National Center for Children in Poverty, ``A
50-State Comparison of TANF Amounts'' (Nov. 12, 2024), https://www.nccp.org/wp-content/uploads/2024/11/TANF-Benefit-Amounts-2024-FINAL.pdf (last visited Sept. 17, 2025).
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Moreover, ignoring an alien's dependence on any benefit intended to
help the alien meet their needs incentivizes immigration to the United
States and is inconsistent with the clear national policy regarding
welfare and immigration. See 8 U.S.C. 1601(2)(B). By removing
unnecessarily restrictive definitions from the regulations, DHS
officers will be able to make public charge inadmissibility
determinations that are consistent with administration policy, the
self-sufficiency goals of PRWORA, and the totality of the circumstances
framework established in IIRIRA in section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4).
DHS believes that it is any dependence on a means-tested public
benefit to meet the alien's needs--and not just receiving more than a
designated public benefit for a specific period of time or being
primarily dependent on public cash assistance for income maintenance or
long-term institutionalization at government expense--that Congress
intended to address with the public charge ground of inadmissibility as
it has existed since IIRIRA. Limiting what it means to be likely at any
time to become a public charge as it was done in the 2019 Final Rule
and the 2022 Final Rule is inconsistent with congressional intent and
DHS therefore declines to limit it in this way.
Consequently, through this NPRM, DHS proposes to move away from a
bright line primary dependence standard, which would allow officers to
make public charge inadmissibility determinations consistent with the
dependence standard contemplated in 8 U.S.C. 1601(2)(A) and reflected
in past precedent decisions. DHS proposes to remove all regulatory
limitations on the types of public resources that are relevant for
considering whether an alien is dependent by removing the references to
public cash assistance for income maintenance or long-term
institutionalization at government expense. This will allow officers to
make public charge inadmissibility determinations that are consistent
with Congress' intent.
DHS notes that the litigation on the 2019 Final Rule did not
culminate in a decision on the merits from the U.S. Supreme Court, and
therefore DHS does not have a nationally binding judicially established
best interpretation of likely at any time to become a public
charge.\100\ However, if DHS were to finalize this proposed removal of
the 2022 Final Rule, until such time as DHS puts forth new policy and
interpretive tools for public charge inadmissibility determinations,
DHS would make these determinations in line with the mandatory
statutory factors, relevant circuit precedent,\101\ and established
[[Page 52187]]
precedent decisions that have historically informed such
determinations.\102\ Those decisions favor a nuanced approach but
generally recognize that a healthy individual of working age with no
significant health conditions or disabilities impacting his or her
ability to be self-sufficient, and who has family members, sponsors, or
others obligated or otherwise able to come to their aid is unlikely to
be inadmissible as likely at any time to become a public charge, and
that even past receipt of public benefits is not always dispositive in
such determinations.\103\
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\100\ Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
(overruling Chevron deference to agency interpretations of ambiguous
statutes and acknowledging that courts rather than agencies are in
the position to determine the best interpretation of an ambiguous
statue. The case acknowledges that in some circumstances, an agency
interpretation of a statute may nonetheless have the power to
persuade the court consistent with the standard enunciated in
Skidmore v. Swift & Co., 323 U.S. 134 (1944), especially to the
extent that the agency views are within its area of expertise.)
\101\ The U.S. Courts of Appeal for the Second, Fourth, Seventh,
and Ninth Circuits opined on the plain language of the statute as
well as the historical/traditional meaning of the term public
charge. The Fourth Circuit, for example, disagreed that the
primarily dependent standard is not embedded into the text of the
statute, as well as that the term has a fixed historical meaning and
emphasized that instead the statute grants the executive extensive
and ultimate discretion over inadmissibility determinations,
including the consideration of a non-finite list of factors. See,
CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 242-244 (4th Cir.
2020) (rehearing en banc granted but the case was subsequently
dismissed). Other circuits particularly focused on identifying
limitations on the meaning of the term, and ensuring that the term
public charge is not defined in such a way that would deem someone
receiving a small amount of supplemental benefits for a short period
of time as inadmissible under the ground. See, e.g. New York v. DHS,
969 F.3d 42, 78 (2nd Cir. 2020); City and Cnty. of San Francisco v.
United States Citizenship and Immigration Services, 981 F.3d 742,
759 (9th Cir. 2020); Cook County v. Wolf, 962 F.3d 208, 229, 246
(7th Cir. 2020). The Seventh Circuit in particular held that the
term ``public charge'' has a ``floor inherent in the words,'' which
requires a degree of dependency that goes beyond temporary receipt
of supplemental benefits. Id.
\102\ See e.g. Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (emphasizing that the term public charge refers to
individuals who are ``without sufficient funds to support
[themselves], who ha[ve] no one under any obligation to support
[them] and who, being older, ha[ve] an increasing chance of becoming
dependent, disabled and sick.''); Matter of Martinez- Lopez, 10 I&N
Dec. 409, 421-423 (BIA 1962; Att'y Gen. 1962) (A public charge
inadmissibility determination ``requires more than a showing of a
possibility that the alien will require public support. Some
specific circumstance, such as mental or physical disability,
advanced age, or other fact showing that the burden of supporting
the alien is likely to be cast on the public, must be present. 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.'');
Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974) (``The
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.''). See also Matter of A-, 19 I&N Dec. 867,
869 (Comm'r 1988) (33 year old employed mother of three not likely
to become a public charge notwithstanding having previously received
public benefits. The BIA considered other relevant factors such as
that a mother's temporary absence from the work force to care for
her children is not by itself sufficient basis to find the mother
likely to become a public charge. There may be circumstances beyond
the control of the alien which temporarily prevent an alien from
joining the work force. For example, as the applicant states in her
appeal, she lives in an area where jobs are scarce and she had been
unable to find a job.); Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977)). And see Ex parte Hosaye Sakaguchi, 277 F. 913, 916
(9th Cir. 1922), (holding that an alien could not be deemed a public
charge absent evidence of ``mental or physical disability or any
fact tending to show that the burden of supporting the [alien] is
likely to be cast upon the public.'')
\103\ See Matter of Martinez- Lopez, 10 I&N Dec. 409, 421-423
(BIA 1962; Att'y Gen. 1962) (A public charge inadmissibility
determination ``requires more than a showing of a possibility that
the alien will require public support. Some specific circumstance,
such as mental or physical disability, advanced age, or other fact
showing that the burden of supporting the alien is likely to be cast
on the public, must be present. 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.''); Matter of Perez, 15 I&N
Dec. 136, 137 (BIA 1974) (``The 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.'').
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b. Proposed Removal of Definitions for Public Cash Assistance for
Income Maintenance and Long-Term Institutionalization at Government
Expense
To align this rule with the removal of the definition for ``likely
at any time to become a public charge'', DHS proposes to eliminate the
definitions for public cash assistance for income maintenance and long-
term institutionalization at government expense that are present in 8
CFR 212.21(b) and (c). As mentioned above, limiting consideration to
primary dependence on only public cash assistance for income
maintenance and long-term institutionalization at government expense is
unnecessarily restrictive. Given the statute does not prescribe a
primary dependence standard or consideration of only a narrow and
specific list of public benefits for these inadmissibility
determinations, DHS believes that it is appropriate to allow for
consideration of the receipt of any means-tested public benefit when
determining whether an alien is likely at any time to become a public
charge.\104\ DHS notes that relevant precedent decisions do not
prescribe primary dependence based on a narrow and specific list of
public benefits either.\105\ Accordingly, DHS proposes to eliminate
these definitions that limit the benefits that are considered as part
of the public charge inadmissibility determination.
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\104\ Matter of Harutunian, 14 I&N Dec. 583, 589 (BIA 1974)
(``Congress intends that an applicant for a visa be excluded who is
without sufficient funds to support himself, who has no one under
any obligation to support him and who, being older, has an
increasing chance of becoming dependent, disabled and sick.'').
\105\ See Matter of A-, 19 I&N Dec. 867, 869 (BIA 1988)
(acknowledging consideration of evidence of receipt of any prior
public assistance as a factor in making the public charge
inadmissibility determination); Matter of Vindman, 16 I&N Dec. 131,
132 (BIA 1977) (finding that aliens who are receiving SSI and public
funds from the New York Department of Social Services ``fall clearly
within the confines of section 212(a)(15) of the Act and are
excludable as public charges.''). Note that Congress implicitly
recognized that past receipt of any public benefit can be considered
in determining the alien's likelihood of becoming a public charge
when it prohibited consideration of the receipt of any public
benefit that is authorized under 8 U.S.C. 1641(c) for certain
battered aliens. See INA sec. 212(s), 8 U.S.C. 1182(s).
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c. Proposed Removal of the Definition for Receipt (of Public Benefits)
In light of DHS's elimination of the definitions for likely at any
time to become a public charge, public cash assistance for income
maintenance, and long-term institutionalization at government expense,
DHS is removing the definition from the 2022 Final Rule for receipt (of
public benefits). The definition is not necessary and reflects an
inappropriate limitation on immigration officer's ability to consider
relevant evidence.
d. Proposed Removal of the Definitions for Government and Household
Similarly, in light of the rescission of the key policy elements of
the 2022 Final Rule, no purpose would be served in retaining the
definitions for ``government'' or ``household'' found in 8 CFR
212.21(e) and (f). DHS believes that the ordinary meaning of various
terms (e.g., government, household) that are relevant to public charge
determinations are sufficient for officers to conduct determinations
after DHS issues any final rule removing the 2022 Final Rule based on
this NPRM, and before DHS has the opportunity to issue policy and
interpretive tools addressing public charge inadmissibility.
3. Proposed Removal of Regulations Outlining the Public Charge
Inadmissibility Determination--8 CFR 212.22
The stated aim of the 2022 Final Rule was to maintain the framework
set forth in the 1999 Interim Field Guidance.\106\ Under the 2022 Final
Rule, officers are directed to consider the statutory minimum factors,
a sufficient Affidavit of Support Under Section 213A of the INA, where
required, and the receipt of specified public benefits, in the totality
of the circumstances, without separately codifying the standard and
evidence required for each factor that existed in the 2019 Final
Rule.\107\
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\106\ 87 FR 55472, 55473 (Sept. 9, 2022).
\107\ See 8 CFR 212.22(a) and (b).
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a. Proposed Removal of Statutory Minimum Factors Provision
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 alien applying for a visa, admission, or adjustment of
status is likely at any time to become a public charge--the alien's
age; health; family status; assets, resources, and financial status;
and education and
[[Page 52188]]
skills.\108\ Insofar as the regulations at 8 CFR 212.22(a)(1) reflect
what the statute mandates be considered as part of every public charge
inadmissibility determination, DHS believes that it is unnecessary to
restate these statutory minimum factors in the regulation.
---------------------------------------------------------------------------
\108\ 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)(40(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------
If the removal of this regulation is finalized, the statute, DHS
would continue to collect information pertinent to the statutory
minimum factors and relevant considerations, such as the alien's
household size, the alien's income, assets, and liabilities, the
alien's education level and any skills, and whether the alien has or is
receiving means-tested public benefits. DHS would continue to use this
information to determine, in the totality of the circumstances, whether
the alien is inadmissible as likely at any time to become a public
charge. INA sec. 212(a)(4); 8 U.S.C. 1182(a)(4).
While DHS is adjusting the Form I-485 to account for the proposed
removal of the regulatory provisions, DHS is not proposing to
substantively change the collection of information related to the
statutory minimum factors but will continue to request information in a
manner that maximizes practical utility of the information collection
and relevance to the totality of the circumstances analysis, consistent
with governing precedent. For example, information pertaining to the
health factor will continue to be obtained from Report of Immigration
Medical Examination and Vaccination Record, Form I-693, and USCIS will
continue to use Form I-485 and information obtained during any
interview, if any, to collect information about the alien's age; family
status; assets, resources, and financial status; education and skills;
and receipt of means-tested public benefits.
As with any benefit request, officers may request additional
evidence relating to any of the statutory minimum factors as needed, on
a case-by-case basis, when indicated by evidence in the record,
including responses to questions during an interview or on Form I-485
or other forms.\109\ As indicated elsewhere in this preamble, DHS
believes that the statute, PRWORA, and the governing caselaw would
provide sufficient guidance to officers to consider all relevant case-
specific circumstances in their discretion while DHS formulates
appropriate policy and interpretive tools that will guide DHS officers
in making individualized, fact-specific public charge inadmissibility
determinations, based on a totality of the alien's circumstances, that
are consistent with the statute and congressional intent and comply
with past precedent.\110\
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\109\ See 8 CFR 103.2(b)(8).
\110\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l
Cmm'r 1974) (``[T]he determination of whether an alien falls into
that category [as likely to become a public charge] rests within the
discretion of the consular officers or the Commissioner . . .
Congress inserted the words `in the opinion of' (the consul or the
Attorney General) with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial review.''
(citation omitted)); Matter of Martinez-Lopez, 10 I&N Dec. 409, 421
(BIA 1962; Att'y Gen. 1964) (``[U]nder the statutory language the
question for visa purposes seems to depend entirely on the consular
officer's subjective opinion.'').
---------------------------------------------------------------------------
As discussed earlier in this preamble, DHS's very purpose in
proposing the removal of the 2022 Final Rule is to restore the case-by-
case and inherently discretionary nature of the determination intended
by Congress without constraining officers from considering information
and evidence that is relevant to an alien's likelihood at any time of
becoming a public charge. DHS believes that relevant precedent
decisions that have guided public charge inadmissibility determinations
for decades and as well as recent circuit case law would provide
officers with sufficient guidance to conduct subjective individualized
determinations based on the specific facts and circumstances of each
alien's case. DHS believes that this approach falls within the explicit
discretionary authority Congress delegated to the Secretary regarding
public charge inadmissibility determinations.\111\
---------------------------------------------------------------------------
\111\ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,
2263 (2024) (``In a case involving an agency, of course, the
statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes expressly delegate to an agency
the authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '' (cleaned up)).
---------------------------------------------------------------------------
Furthermore, with respect to existing provisions informing the
totality of the circumstances analysis, such as the consideration of
current and/or past receipt of enumerated public benefits and the
provision indicating that disability alone is not a sufficient basis to
determine whether the alien is likely at any time to become a public
charge, DHS believes that these provisions are already embedded in
historical practice as dictated by past precedent decisions. DHS
further believes that in following these past precedent decisions,
officers would consider all information and evidence specific to an
applicant in the context of all other information and evidence. For
example, following past precedent, an officer would not conclude that
an alien is inadmissible as likely at any time to become a public
charge simply because that alien received a means-tested public
benefit.\112\ Officers would, instead, look at the circumstances
surrounding such receipt, for example the nature of the benefit and
whether it is the type of benefit that alone or in combination with
other benefits meets the alien's basic needs, the recency, duration,
and amount of receipt, the reason for the receipt, whether the reason
has or is likely to persist.\113\ In the context of any disability,
officers would comply with existing law and consider whether or to what
extent a disability is likely to impact an alien's ability to be self-
sufficient, ensuring that disability is not used as the sole
determinant of an alien's likelihood at any time of becoming a public
charge.\114\
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\112\ See Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974)
(``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.'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421 (BIA 1962) (``the
statute requires more than a showing of a possibility that the alien
will require public support.'').
\113\ See e.g. Matter of A-, 19I&N Dec. 867 (BIA 1974) (BIA
considered that the alien was a mother of a small child and found it
legitimate that she may be temporarily out of the workforce to care
for her children, they also looked at the fact that there were few
jobs in the area where she lived, and that she was now employed
despite receiving public benefits previously for 4 years).
\114\ In the litigation on the 2019 Final Rule, plaintiffs
argued that the 2019 final rule violated the Rehabilitation Act,
which bans discrimination on the basis of disability. 29 U.S.C.
794(a). The Seventh Circuit looked favorably on this contention, and
the Second and Ninth Circuits did not expressly address it. Cook
Cnty., 962 F.3d at 228, New York, 969 F.3d at 64 n.20; City and Cnty
of San Francisco, 981 F.3d at 762. While the 2022 Final Rule
included a provision precluding disability from being the sole
determinative factor for a finding of inadmissibility on the public
charge ground, as discussed further in this preamble, DHS believes
this provision is unnecessary as DHS is already precluded by law
from considering disability a sole determinant. Please see a fuller
discussion in this preamble addressing the proposed elimination of 8
CFR 212.22(a)(4) Disability alone not sufficient.
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b. Proposed Removal of Favorable Consideration of a Sufficient
Affidavit of Support Under Section 213A of the INA, if Required
IIRIRA amended the INA by setting forth requirements for submitting
an enforceable affidavit of support (i.e., the current Affidavit of
Support Under Section 213A of the INA). The Affidavit of Support Under
Section 213A of the INA is a contract between the sponsor and the U.S.
Government that imposes
[[Page 52189]]
on the sponsor a legally enforceable obligation ``to provide support to
maintain the sponsored alien at an annual income that is not less than
125 percent of the Federal poverty line during the period in which the
affidavit is enforceable.'' \115\
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\115\ INA sec. 213A(a)(1)(A), 8 U.S.C. 1183a(a)(1)(A). However,
a sponsor who is on active duty (other than active duty for
training) in the Armed Forces of the United States and filed a
petition on behalf of a spouse or child only needs to demonstrate
support equal to at least 100 percent of the Federal poverty line.
See INA sec. 213A(f)(3), 8 U.S.C. 1183a(f)(3).
---------------------------------------------------------------------------
Under section 212(a)(4)(C) and (D) of the INA, 8 U.S.C.
1182(a)(4)(C) and (D), most family-based immigrants and some
employment-based immigrants are required to submit an Affidavit of
Support Under Section 213A of the INA executed by a sponsor to avoid
being found inadmissible based on the public charge ground.\116\ This
requirement applies even if the officer would ordinarily find, after
reviewing the statutory minimum factors, that the intending immigrant
is not likely at any time to become a public charge.\117\ Where such an
Affidavit of Support Under Section 213A of the INA has been executed on
an alien's behalf, the statute permits, but does not require, DHS to
consider it along with the statutory minimum factors and any other
relevant factors, evidence, information, or circumstances in the public
charge inadmissibility determination.\118\
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\116\ See INA sec. 213A, 8 U.S.C. 1183a(a)(1).
\117\ See INA sec. 213A, 8 U.S.C. 1183a(a)(1).
\118\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------
A sufficient Affidavit of Support Under Section 213A of the INA
does not, alone, result in a finding that an alien is not likely at any
time to become a public charge due to the statute's requirement to
consider the statutory minimum factors and the clear statutory
authority to consider any other factors, evidence, information, or
circumstances relevant to the public charge inadmissibility
determination.\119\ Additionally, an Affidavit of Support Under Section
213A is not intended to guarantee that an intending immigrant will not
become dependent on the government for subsistence, but rather, to
ensure that public benefit granting agencies could be reimbursed for
certain aid provided to the sponsored alien.\120\
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\119\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
\120\ See H.R. Rep. No. 104-651, at 1449 (1996) (in explaining
the provision, emphasizing that the Affidavit of Support Under
Section 213A of the INA would permit benefit-providing agencies to
seek reimbursement).
---------------------------------------------------------------------------
With the proposed removal of 8 CFR 212.22, officers would no longer
be required by regulation to favorably consider a sufficient Affidavit
of Support Under Section 213A of the INA. Consistent with section
212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), officers would
instead use their discretion to determine whether and how to consider
the Affidavit of Support Under Section 213A of the INA on a case-by-
case basis and in the totality of the circumstances, as intended by
Congress when making the public charge inadmissibility determination in
the officer's opinion. DHS does not believe that Congress intended DHS
to always consider a sufficient Affidavit of Support Under Section 213A
of the INA. Notably, Congress could have mandated the consideration of
the Affidavit of Support Under Section 213A of the INA when it also
mandated consideration of the five statutory minimum factors. However,
Congress decided to leave consideration of the Affidavit of Support
Under Section 213A of the INA to the officer's discretion, DHS does not
believe it necessary to mandate such consideration. DHS reminds the
public that the statute already requires that an alien's application
for adjustment of status be denied due to inadmissibility under the
public charge ground if the alien fails to submit a sufficient
Affidavit of Support Under Section 213A of the INA, if such an
affidavit is required. See, e.g., INA sec. 212(a)(4)(C) and (D) and
213A(a), 8 U.S.C. 1182(a)(4)(C) and (D) and 1183a(a).
If the changes proposed in this rule are finalized, consistent with
the statute and past precedent decisions, DHS would consider not only
the mandatory statutory factors, but also all relevant evidence and
information specific to the alien and relevant to determining that
individual alien's likelihood at any time of becoming a public charge.
This could include, but is not required to include a sufficient
Affidavit of Support Under Section 213A of the INA. Indeed, DHS
believes that Congress intended that officers would decide, on a case-
by-case basis and in the totality of the circumstances, whether and how
to consider an Affidavit of Support Under Section 213A of the INA.
c. Proposed Removal of Consideration of Current and/or Past Receipt of
Public Benefits
Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), does not
require consideration of the receipt of public benefits as part of the
public charge inadmissibility determination. However, as noted
previously, the 2022 Final Rule requires DHS officers to consider the
alien'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.\121\ Under the 2022 Final
Rule, DHS will consider the amount and duration of receipt of these
enumerated benefits, 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.\122\ This regulation also expressly prohibits
consideration of any benefit that is not listed in 8 CFR 212.21(b)-
(d).\123\
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\121\ 8 CFR 212.22(a)(3) (2022).
\122\ 8 CFR 212.22(a)(3) (2022).
\123\ 8 CFR 212.22(a)(3) (2022).
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DHS believes, as noted previously, that an alien's dependence on
any means-tested public benefit to meet his or her needs--and not just
his or her dependence on public cash assistance for income maintenance
and long-term institutionalization at government expense--is what that
Congress intended to address with the public charge ground of
inadmissibility. Indeed, DHS believes that the current and/or past
receipt of any means-tested public benefit is a key gauge in
determining an alien's likelihood of dependence on the government and
therefore to determining whether an alien is inadmissible under section
212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4)(A). DHS has determined
that current regulations, which restrict consideration of receipt of
public benefits to only public cash assistance for income maintenance
or long-term institutionalization at government expense, prevent
officers from making public charge inadmissibility determinations that
align with the longstanding national policy that aliens within the
Nation's borders are to be self-sufficient and not depend on public
resources to meet their needs. DHS is therefore proposing to remove 8
CFR 212.22(a)(3).
Moreover, consistent with how DHS has proposed to broaden the
universe of public benefits that may be considered as part of the
public charge inadmissibility determination, DHS is also proposing to
remove language that limited consideration of receipt of benefits other
than public cash assistance for income maintenance or long-term
institutionalization at government expense, such as SNAP or other
nutrition programs, Children's Health Insurance Program (CHIP),
Medicaid, or housing benefits. DHS is also proposing to remove the
provision that excluded application for an
[[Page 52190]]
approval or certification to receive in the future public benefits to
clarify and align our consideration of the past receipt of means-tested
public benefits with the prospective, forward-looking evaluation in a
public charge inadmissibility determination.
If the proposed removal of 8 CFR 212.22 is finalized, DHS officers
would, consistent with the statute and past precedent decisions,
determine an alien's likelihood at any time of becoming a public charge
by ``consider[ing] of all the factors bearing on the alien's ability or
potential ability to be self-supporting.'' \124\ Importantly, past
precedent decisions strongly suggests that an alien's self-sufficiency,
i.e., the alien's ability to meet his or her needs without depending on
any public resources, plays a critical role in the outcome of a public
charge inadmissibility determination.\125\ Consequently, DHS would
consider the alien's receipt of any means-tested public benefit as part
of the case-by-case and totality of the circumstances inadmissibility
determination. Additionally, and consistent with past precedent
decisions, DHS would continue to treat receipt of one or more means-
tested public benefit as one of many factors considered in the totality
of the circumstances.\126\ DHS would also consider the fact that an
alien is trying to receive and/or has been approved or certified to
receive in the future means-tested public benefits given this is
relevant to the likelihood that an alien will become dependent on
means-tested public benefits in the future.
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\124\ See Matter of Vindman, 16 I&N Dec. 131, 132 (Reg'l Comm'r
1977).
\125\ See, e.g., Matter of Vindman, 16 I&N Dec. 131 (Reg'l
Comm'r 1977); Matter of Perez, 15 I&N Dec. 137 (BIA 1974); Matter of
Harutunian, 14 I&N Dec. 583 (Reg'l Comm'r 1974).
\126\ See Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974)
(``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.'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421 (BIA 1962) (``the
statute requires more than a showing of a possibility that the alien
will require public support.'').
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e. Proposed Removal of Provision Addressing Disability as Alone Not
Being Sufficient for a Finding of Inadmissibility
Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B) requires
DHS to consider an alien's health when assessing his or her likelihood
at any time of becoming a public charge,\127\ which may include
consideration of any disabilities identified in the report of medical
examination in the record.\128\ However, there is no presumption under
the statute that having a disability in and of itself means that the
alien is in poor health or is likely at any time to become a public
charge. Therefore, consistent with section 504 of the Rehabilitation
Act, the current regulation at 8 CFR 212.22(a)(4) expressly precludes
an officer from relying solely on an alien's disability, as defined by
section 504 of the Rehabilitation Act, to determine that the alien is
likely at any time to become a public charge in the totality of the
circumstances.
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\127\ See INA sec. 212(a)(B)(i)(II), 8 U.S.C.
1182(a)(4)(B)(i)(II).
\128\ See 8 CFR 212.22(a)(1)(ii).
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However, insofar as section 504 of the Rehabilitation Act expressly
prohibits discrimination against a qualified individual with a
disability solely on the basis of that disability under any program or
activity receiving Federal financial assistance or under any federally
conducted program or activity, DHS is already precluded from treating
an alien's disability alone as outcome determinative in a public charge
inadmissibility determination. See 29 U.S.C. 794(a).
Therefore, DHS has determined that it is unnecessary to retain
current 8 CFR 212.22(a)(4), which merely restates the prohibition on
relying solely on an alien's disability to make a public charge
inadmissibility determination. Since this is already binding on DHS
officers when making public charge inadmissibility determinations, it
is not necessary to duplicate it in the regulatory text.
If this NPRM is finalized in a final rule, DHS officers would,
consistent with section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), make
public charge inadmissibility determinations on a case-by-case basis in
the totality of the circumstances, considering all relevant case-
specific factors, including, where applicable, an alien's disability.
DHS would, however, not treat an alien's disability as outcome
determinative, in compliance with section 504 of the Rehabilitation
Act.
f. Proposed Removal of Totality of the Circumstances Provisions
Under section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B),
officers are required, at a minimum, to consider the alien's age;
health; family status; assets, resources, and financial status; and
education and skills, and may consider a sufficient Affidavit of
Support Under Section 213A of the INA, where required. Although the
statute does not expressly include a totality of the circumstances
test, this test ``has been developed in several Service, BIA [Board of
Immigration Appeals], and Attorney General decisions and has been
codified in the Service regulations implementing the legalization
provisions of the Immigration Reform and Control Act of 1986.'' \129\
Federal courts have also endorsed this ``totality of the
circumstances'' test.\130\ As a result, since at least 1999, DHS and
the former INS have 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.\131\
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\129\ See 64 FR 28689, 28690 (May 26, 1999) (citing Zambrano v.
INS, 972 F.2d 1122 (9th Cir. 1992), judgment vacated on other
grounds, 509 U.S. 918 (1993)).
\130\ See, e.g., Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992),
judgment vacated on other grounds, 509 U.S. 918 (1993).
\131\ See 64 FR 28689, 28690 (May 26, 1999). See 84 FR 41292,
41295 (Aug. 14, 2019). See 87 FR 55472, 55488 (Sept. 9, 2022).
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Insofar as DHS is already required under past precedent decisions
to make public charge inadmissibility decisions in the totality of the
circumstances,\132\ DHS does not believe this provision is necessary to
be retained. Therefore, if this NPRM is finalized, DHS would continue
to consider the totality of an alien's circumstances when making a
public charge inadmissibility determination consistent with past
precedent decisions.
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\132\ Matter of A-, 19 I&N Dec. 867, 869 (BIA 1988) (``The
traditional test applied by the Service to determine whether an
alien is likely to become a public charge is ``a prediction based on
the totality of the alien's circumstances'' as presented in the
individual case.''); 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.'');
Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962; Att'y
Gen. 1964) (in determining whether a person is likely to become a
public charge, factors to consider include age, health, and physical
condition, physical or mental defects which might affect earning
capacity, vocation, past record of employment, current employment,
offer of employment, number of dependents, existing conditions in
the United States, sufficient funds or assurances of support by
relatives or friends in the United States, bond or undertaking, or
any specific circumstances reasonably tending to show that the
burden of supporting he alien is likely to be case on the public.).
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g. Proposed Removal of Denial Decision Provision
DHS regulations require that USCIS officers ``explain in writing
the specific reasons for a denial.'' See 8 CFR 103.3(a)(1)(i). This
requirement applies to all applications, petitions, and requests
adjudicated by USCIS, including denials based on an adjustment of
status applicant being inadmissible under the public charge
[[Page 52191]]
ground. Id. Because existing DHS regulations and policy already require
USCIS officers to specify in written denials the basis for the
denial,\133\ DHS does not believe that a provision explicitly requiring
denial decisions to include a discussion of the factors the officer
considered in a public charge inadmissibility determination is
necessary.
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\133\ See 8 CFR 103.3(a)(1)(i). See also USCIS Policy Manual,
Volume 7, Part A, Chapter 11, ``Decision Procedures,'' https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-11.
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DHS notes that if this NPRM is finalized, DHS will continue to
issue denial decisions consistent with 8 CFR 103.3(a)(1)(i).
h. Proposed Removal of Receipt of Public Benefits While an Alien Is in
an Immigration Category Exempt From Public Charge Inadmissibility
Provision
Under PRWORA, many aliens, whether present in the United States in
a lawful immigration status or not, are ineligible to receive many
types of public benefits. See 8 U.S.C. 1611, 1621, and 1641. Aliens who
are eligible for Federal, State, Tribal, territorial or local benefits
may include lawful permanent residents, refugees, and asylees who are
not subject to a public charge inadmissibility determination.\134\
Although many aliens 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 alien obtained a
waiver of the public charge ground of inadmissibility, such aliens may
later apply for an immigration benefit that subjects them to the public
charge ground of inadmissibility. For example, an alien 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. And, as
noted previously; while making such aliens eligible for the receipt of
certain public benefits, Congress also made it clear that unless
otherwise specified, these same aliens would be subject to the public
charge ground of inadmissibility when they applied for visas,
admission, or adjustment of status. Importantly, it is Congress, not
DHS, who determines which aliens applying for visas, admission, or
adjustment of status are exempt from the public charge ground of
inadmissibility. Congress did not exempt aliens who are applying for
visas, admission, or adjustment of status from the public charge ground
of inadmissibility if they were, in the past, in a category of aliens
exempt from the public charge ground of inadmissibility. And while
Congress left it to DHS to determine which public benefits should be
considered as part of a public charge inadmissibility
determination,\135\ Congress neither left it to DHS to exempt certain
aliens from the public charge ground of inadmissibility nor authorized
DHS to ignore receipt of public benefits for purposes of the public
charge inadmissibility determination if the alien received those
benefits while in a category that is exempt from the public charge
ground of inadmissibility.
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\134\ See 8 U.S.C. 1641. States and localities may, however,
extend eligibility for State and local public benefits to aliens
under 8 U.S.C. 1621(d) through the enactment of State laws after
August 22, 1996.
\135\ See INA sec. 103, 8 U.S.C. 1103.
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Additionally, as discussed in previous sections, DHS believes that
any prior receipt of means-tested public benefits is a key gauge to
determining the likelihood of future dependence on the government for
subsistence. This is true even if those benefits were received while in
a status that is exempt. And Congress intended that receipt of public
benefits, regardless of when they were received, should be considered.
See INA sec. 212(s), 8 U.S.C. 1182(s). Therefore, it would be
inconsistent with the purpose of the statute and administration and
congressional policy on immigration and welfare to exclude such use
from consideration.
For these reasons, DHS is proposing to eliminate the regulation at
8 CFR 212.22(d), which removes from consideration the receipt of public
benefits by an alien in an exempt category in an adjudication for an
immigration benefit for which the public charge ground of
inadmissibility applies.
This change would not affect those categories of aliens who are
exempt from the public charge ground of inadmissibility and who then
pursue adjustment of status in an exempt category using the
humanitarian path set out by Congress. For example, aliens admitted as
refugees are eligible for means-tested public benefits \136\ and exempt
from the public charge ground of inadmissibility. See INA sec.
207(c)(3), 8 U.S.C. 1157(c)(3). If such aliens then pursue adjustment
of status using the path laid out by Congress under section 209 of the
INA, 8 U.S.C. 1159, they remain exempt from the public charge ground of
inadmissibility,\137\ and their use of means-tested public benefits
while in refugee status will not negatively affect their ability to
adjust status to that of a lawful permanent resident.\138\
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\136\ See 8 U.S.C. 1641(b)(3).
\137\ See INA sec. 209(c), 8 U.S.C. 1159(c).
\138\ As further examples, the same would be true for asylees
applying for adjustment of status under INA sec. 209, 8 U.S.C. 1159,
and T nonimmigrants applying for adjustment of status under INA sec.
245(l), 8 U.S.C. 1255(l).
---------------------------------------------------------------------------
In contrast, this change will affect those categories of aliens who
have been in a category exempt from a public charge inadmissibility
determination and who are seeking adjustment of status under a
nonexempt category. For example, Congress did not provide a pathway to
lawful permanent resident status for aliens granted Temporary Protected
Status (TPS), who are exempt from the public charge ground of
inadmissibility.\139\ Because Congress did not specifically exempt
these aliens from section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4) at
the time of adjustment, if these aliens seek adjustment of status in a
category that is not exempt from the public charge ground of
inadmissibility, it is reasonable and aligned with the statute for DHS
to consider any current and/or past receipt of means-tested public
benefits by these aliens when making a public charge inadmissibility
determination.\140\
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\139\ See 8 CFR 244.3. See also INA sec. 244(c)(2)(ii), 8 U.S.C.
1254a(c)(2)(ii), which authorizes DHS to waive any inadmissibility
ground under INA sec. 212(a), 8 U.S.C. 1182, except for those that
Congress specifically noted could not be waived.
\140\ As further examples, certain A, C, G, or NATO
nonimmigrants are exempt from the public charge ground of
inadmissibility but have no direct pathway to adjustment of status.
If they apply for adjustment of status in a nonexempt category, they
will be subject to the public charge ground of inadmissibility and
it is reasonable to consider their past and/or current receipt of
public benefits as a part of the inadmissibility determination in
the totality of the circumstances.
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i. Proposed Removal of Receipt of Benefits Available to Refugees
Provisions
Congress made discrete populations of aliens who have not been
admitted to the United States under section 207 of the INA, 8 U.S.C.
1157, eligible for resettlement assistance, entitlement programs, and
other benefits available to refugees, including services described
under 8 U.S.C. 1522(d)(2) provided to an ``unaccompanied alien child''
as defined under 6 U.S.C. 279(g)(2).\141\ In
[[Page 52192]]
the 2022 Final Rule, DHS added a provision at 8 CFR 212.22(e) to
clarify that DHS would not consider any public benefits received by
those categories of aliens eligible for all three of the types of
support listed (resettlement assistance, entitlement programs, and
other benefits) typically reserved for refugees in a public charge
inadmissibility determination. See 87 FR 55472 (Sept. 9, 2022).
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\141\ See section 2502(b) of the Extending Government Funding
and Delivering Emergency Assistance Act, Public Law 117-43 (Sept.
30, 2021). See also Additional Ukraine Supplemental Appropriations
Act of 2022, Public Law 117-128 (May 21, 2022).
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DHS proposes that the regulation at 8 CFR 212.22(e) should be
removed. Similar to the regulation at 8 CFR 212.22(d), DHS has
determined that any means-tested public benefit received by an alien
should be considered if the alien is applying for adjustment of status
in a category that is not exempt from the public charge ground of
inadmissibility, regardless of previous status or the basis for his or
her eligibility for public benefits.
As it relates specifically to aliens in categories who have
previously been granted benefits available to refugees, DHS notes that
these aliens are no different than any other alien whom Congress made
eligible for public benefits while simultaneously making them subject
to the public charge ground of inadmissibility. Indeed, DHS believes
that Congress must have recognized that it made public benefits
available to certain aliens who may be or may later become subject to
the public charge ground of inadmissibility, even though receipt of
such benefits would be considered in a public charge inadmissibility
determination. If an alien, subsequent to receiving public benefits to
which they are eligible, wishes to become a lawful permanent resident
in the United States, the receipt of those benefits may be considered,
consistent with IIRIRA and PRWORA, for future public charge
inadmissibility determination purposes.
Moreover, the initial grant of such benefits to certain Afghan
nationals and Ukrainians has since expired and most aliens in those
categories can no longer receive those benefits.\142\ In addition, most
Afghans paroled into the United States under Operation Allies Welcome
have either obtained some other immigration status or have a pending
application for such status.\143\ Since eligibility for public benefits
for these populations is time-limited, a USCIS officer would take this
into account when making a forward-looking public charge
inadmissibility determination.\144\ While benefit eligibility for T
nonimmigrants does not expire, T nonimmigrants seeking adjustment of
status through the pathway designated by Congress under section 245(l)
of the INA, 8 U.S.C. 1255(l), remain exempt from the public charge
ground of inadmissibility. Removal of the regulation at 8 CFR 212.22(e)
will not negatively impact those aliens so long as they seek adjustment
of status as Congress intended.
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\142\ See section 2502(b) of the Extending Government Funding
and Delivering Emergency Assistance Act, Public Law 117-43 (Sept.
30, 2021). See also section 1501 of the Consolidated Appropriations
Act, 2023, Public Law 117-328 (Dec. 29, 2022). See also Additional
Ukraine Supplemental Appropriations Act of 2022, Public Law 117-128
(May 21, 2022). See also Ukraine Security Supplemental
Appropriations Act, 2024, Division C of Public Law 118-50 (Apr. 24,
2024). Some Ukrainian parolees may retain eligibility for benefits
through September 30, 2026, depending on when they were paroled into
the United States. Some Afghan parolees may retain eligibility for
benefits through September 30, 2025. Spouses and children of Afghans
paroled into the United States prior to October 1, 2023, who
themselves were paroled into the United States on or after October
1, 2023, may also still be eligible to receive certain benefits.
\143\ Of the approximately 78,000 Afghans paroled into the
United States under Operation Allies Welcome, about 66,000 have
already become U.S. citizens, lawful permanent residents (LPRs), or
asylees. About 9,000 have pending applications for asylum or
adjustment of status. For Afghans who remain in valid parole status,
the overwhelming majority will see the end of that period of
validity before November 1, 2025. Data provided by USCIS OPQ-PAER,
as of August 29, 2025.
\144\ For example, if an alien is not now and would not in the
future be eligible for benefits under these specific laws extending
eligibility to certain Afghans and Ukrainians, then clearly they
could not use those benefits in the future unless they were to
reestablish eligibility on some other basis.
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4. Removal of Exemptions and Waivers for Public Charge Ground of
Inadmissibility Provisions--8 CFR 212.23
DHS also proposes to remove 8 CFR 212.23. The first two paragraphs
of this section enumerate the categories of aliens to whom the public
charge ground of inadmissibility does not apply under the INA or
various other laws. For example, Congress established in section 209(c)
of the INA, 8 U.S.C. 1159(c), that the public charge ground of
inadmissibility does not apply to refugees or asylees seeking
adjustment of status under that section of law. Similarly, Congress
exempted aliens applying for adjustment of status under the Cuban
Adjustment Act \145\ from the public charge ground of inadmissibility.
The third paragraph of the section outlines the existing waivers of the
public charge ground of inadmissibility.
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\145\ Public Law 89-732 (Nov. 2, 1966), as amended.
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DHS, and former INS, included a similar list of exemptions and
waivers in the 1999 Interim Field Guidance, the 1999 NPRM, and the 2019
Final Rule. As explained in 2022, DHS included this list because doing
so would ``better ensure that the regulated public understands which
applicants for admission and adjustment of status are either exempt
from the public charge ground of inadmissibility or may be eligible for
a waiver of the inadmissibility ground.'' See 87 FR 10570, 10625 (Feb.
24, 2022). While DHS acknowledges that publishing a list of exemptions
and waivers may be useful for both the public and for DHS officers, it
proposes to remove the list from the regulation.
DHS notes that this regulatory text is redundant to several other
publicly available sources. First, DHS already publishes the same lists
of exemptions and waivers in the USCIS Policy Manual.\146\ The Policy
Manual can be easily updated to reflect any changes that Congress may
make in the future to the exemptions and waivers for the public charge
ground of inadmissibility. The possibility that the regulatory text
would fall out of date is why DHS included two catchall provisions in
the existing regulation.\147\ Second, DHS also publishes the list of
exemptions within USCIS' Form I-485 (Part 9, Item Number 56, in the
current version). DHS believes that USCIS Policy Manual content and the
Form I-485 are equally or more accessible to officers and the general
public than regulatory text. This is particularly true for Form I-485,
where the exemptions are fully listed in an item specifically designed
to help aliens understand if the public charge ground of
inadmissibility applies to them as they complete the form. As a result,
DHS believes there is no need to continue to include the same list in
its regulations.
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\146\ USCIS publishes the list of exemptions in Volume 8, Part
G, Chapter 3, Section C. of the Policy Manual, available at https://
www.uscis.gov/policy-manual/volume-8-part-g-chapter-
3#:~:text=informant)%5B38%5D-,C.%20Exemptions,-The%20public%20charge
(last visited Oct. 1, 2025). Information about waivers is published
in Volume 8, Part G, Chapter 8--Waivers of Inadmissibility Based on
Public Charge Ground, available at https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-8 (last visited Oct. 1, 2025).
\147\ 8 CFR 212.23(a)(29) and (c)(3).
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5. Removal of Applicability of Public Charge Inadmissibility
Provision--8 CFR 212.20
As a conforming amendment to DHS's proposal to remove 8 CFR 212.21,
through 212.23, DHS proposes to remove 8 CFR 212.20. This section
serves two purposes: it introduces the three sections that follow and
states that the provisions of those three sections apply to an
applicant for admission or adjustment of status to that of a lawful
permanent resident, unless the alien
[[Page 52193]]
was in a category exempt from the public charge ground of
inadmissibility.
In light of the proposed removal of the three other sections,
retaining 8 CFR 212.20 in its current, or even an amended form, would
serve no purpose. There are no longer other sections that require an
introduction, and with or without this section the public charge ground
of inadmissibility applies to an applicant for admission or adjustment
of status, unless that alien is exempt.
C. Reliance Interests
DHS acknowledges that the regulated public may be relying on
aspects of the regulatory scheme in the 2022 Final Rule, which, in many
respects substantively aligns with the 1999 Interim Field Guidance. In
this proposed rule, DHS has explained why neither the 2022 Final Rule
nor the 2019 Final Rule provides an appropriate future path for
conducting public charge inadmissibility determinations that are
consistent with the statute and congressional intent. DHS has, to the
greatest extent possible, explained how officers would conduct public
charge inadmissibility determinations if DHS finalizes the proposed
rescission of the 2022 Final Rule, including referencing controlling
precedent and case law that officers would take into consideration in
public charge inadmissibility determinations, and that largely but not
exclusively formed the basis for the 1999 Interim Field Guidance and
the 2022 Final Rule. DHS also plans to provide interpretive and policy
tools to guide public charge inadmissibility determinations once DHS
has had a chance to fully consider how to best (1) balance the need to
conform the implementation of the public charge ground of
inadmissibility with the clear congressional intent that aliens be
self-sufficient and that the availability of public benefits not create
an incentive for immigration, (2) fortify officer discretion, and (3)
support accuracy, consistency, and reliability in individual
determinations. DHS is seeking comments from the public on what aspects
of the 2022 Final Rule might have engendered reliance interests, and
how DHS should best address such reliance interests given its stated
objective for the rulemaking.
D. Severability
DHS is proposing that certain proposed changes to 8 CFR 103.6(c) be
severable from the proposed full rescission of regulatory provisions in
8 CFR part 212. To the extent DHS issues a final rule based on this
NPRM that rescinds the public charge inadmissibility regulations in 8
CFR 212.20 through 212.23, and a court finds that such rescission is
invalid or unenforceable, DHS intends that certain proposed changes to
8 CFR 103.6(c) nevertheless be construed so as to continue to give the
maximum effect to those provision(s) permitted by law, unless any such
provision(s) are also held to be wholly invalid and unenforceable.
Specifically, if finalized and effective, DHS intends to continue
to give effect to the removal of the ground for cancellation 8 CFR
103.6(c)(1) stating that DHS can cancel a public charge bond at any
time if it determines ``that the alien is not likely at any time to
become a public charge'' because, as discussed in section V.B.1. of
this preamble, the rationale for the proposed removal of that ground of
cancellation is based on the practical infeasibility of applying it
rather than the broader justification for rescinding DHS regulations in
8 CFR 212.20 through 212.23. Similarly, if finalized and effective and
not separately invalidated or deemed unenforceable, DHS intends to keep
the revised restructuring of 8 CFR 103.6(c)(1) namely the separation of
cancelation and breach provisions into paragraphs (c)(1)(A) and
(c)(1)(B) for clarity.
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
E.O. 12866 (Regulatory Planning and Review) and E.O. 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. E.O. 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. E.O. 14192 (Unleashing Prosperity Through
Deregulation) directs agencies to significantly reduce the private
expenditures required to comply with Federal regulations and provides
that ``any new incremental costs associated with new regulations shall,
to the extent permitted by law, be offset by the elimination of
existing costs associated with at least 10 prior regulations.''
This rule has been designated a ``significant regulatory action''
that is economically significant, under section 3(f)(1) of E.O. 12866.
Accordingly, the rule has been reviewed by the Office of Management and
Budget (OMB).
This rule is not an E.O. 14192 regulatory action because it is
being issued with respect to an immigration-related function of the
United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function
performed by the U.S. Federal Government with respect to aliens. See
Office of Management and Budget Memorandum M-25-20, ``Guidance
Implementing Section 3 of E.O. 14192, titled `Unleashing Prosperity
Through Deregulation''' (Mar. 26, 2025).
1. Summary
DHS proposes to remove most provisions implemented in the 2022
Final Rule to allow DHS to better implement the public charge ground of
inadmissibility. The proposed rule is expected to impose new benefits
and transfers. To assess the impacts of the proposed rule, DHS
considers the potential impacts of the rule relative to a no-action
baseline, which reflects the current state of the world absent this
regulatory action.
The primary source of unquantified benefits of this proposed rule
is the removal of overly-restrictive provisions promulgated in the 2022
Final Rule that hinder officers in making public charge inadmissibility
determinations. By removing rigid regulatory definitions and standards,
this proposed rule would ensure that officers would be able to make
highly individualized, fact-specific, case-by-case public charge
inadmissibility decisions based on the totality of each alien's
individual circumstances. This approach would prevent the application
of overly restrictive criteria that unnecessarily limits DHS officers'
ability to make public charge inadmissibility determinations.
The proposed rule would also result in a reduction in transfer
payments from the Federal Government to individuals who may choose to
disenroll from or forgo enrollment in a public benefits program.
Individuals who might choose to disenroll from or forgo future
enrollment in a public benefits program include aliens as well as U.S.
citizens who are members of mixed-status households. DHS estimates that
the total reduction in transfer payments from the Federal and State
governments could be approximately $8.97 billion annually due to
disenrollment or forgone enrollment in public benefits programs by
members of households that include aliens who may be receiving public
[[Page 52194]]
benefits. DHS estimates that the 10-year discounted Federal and State
transfer payments reduction of this proposed rule could be
approximately $76.48 billion at a 3-percent discount rate and about
$62.97 billion at a 7-percent discount rate. This total includes DHS'
estimate that Federal transfer payments could decrease by approximately
$45.12 billion at a 3-percent discount rate and about $37.15 billion at
a 7-percent discount rate. Using the average Federal Medical Assistance
Percentages (FMAP), DHS further estimates that State transfer payments
could decrease by approximately $31.35 billion at a 3-percent discount
rate and about $25.82 billion at a 7-percent discount rate. DHS notes
there may be additional reductions in transfer payments that we are
unable to quantify. DHS also recognizes that the estimated reductions
in transfer payments are approximations and could be influenced by
external factors unrelated to this proposed rule. For example, the
recent enrollment changes to Medicaid and SNAP implemented in the H.R.
1 Reconciliation Bill are expected to impact enrollment rates, adding
complexity to quantification efforts.\148\ DHS anticipates that
disenrollment or forgone enrollment rates may fluctuate independently
of this proposed rule, potentially affecting the transfer payment
estimates presented in this analysis. However, it is too early to
assess the impact of these policies on public benefit usage, and
consequently, on the impact on overall estimates presented in this
analysis.
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\148\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
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Finally, DHS recognizes that reductions in Federal and State
transfers under Federal benefits programs may have downstream and
upstream impacts on State and local economies, large and small
businesses, and individuals. For example, the rule might result in
reduced revenues for healthcare providers, such as hospitals and
nonprofits, 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.
Table VI.1 provides a detailed summary of the regulatory changes of
the proposed rule and the estimated costs, benefits, and transfers
associated with the expected impacts.\149\
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\149\ For a complete summary of regulatory changes and
additional guidance in this proposed rule, please see Section V.
``Discussion of NPRM.''
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Table VI.2 presents the prepared accounting statement, as required
by OMB Circular A-4, showing the costs, benefits, and transfers
associated with this regulation.\150\
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\150\ OMB, ``Circular A-4'' (Sept. 17, 2003).
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2. Background and Purpose
As discussed in the preamble, DHS seeks to ensure the appropriate
application of the public charge ground of inadmissibility by amending
the regulations implemented in the 2022 Final Rule under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Under the INA, an alien who,
at the time of applying for a visa, admission, or adjustment of status,
is deemed likely at any time to become a public charge is inadmissible
to the United States. While the INA does not define public charge,
Congress has specified that consular and DHS officers must, at a
minimum, consider certain factors when making this determination. These
factors include the alien's age; health; family status; assets,
resources, and financial status; and education and skills.
Additionally, DHS may consider any affidavit of support submitted under
section 213A of the Act, 8 U.S.C. 1183a, on behalf of the alien. For
most family-based and some employment-based immigrant visas or
adjustment of status applications, a sufficient affidavit of support is
required by statute; without it, applicants will be found inadmissible
as likely to become a public charge.
DHS has determined that the 2022 Final Rule's consideration of a
set number of factors--the alien's age, health, family status, assets,
resources, and financial status, education and skills, sufficient
Affidavit of Support Under Section 213A of the INA (if one was
required), and any current and/or past receipt of public cash
assistance for income maintenance and long-term institutionalization at
government expense--prevented DHS officers from considering other
evidence that might be in DHS records or systems that bears on an
alien's likelihood of becoming a public charge. Thus, DHS proposes to
remove or amend provisions related to public charge definitions, public
charge inadmissibility determinations, public charge bonds, and other
aspects outlined in the preamble. This proposed rule would align public
charge inadmissibility determinations with INA section 212(a)(4), 8
U.S.C. 1182(a)(4). By removing restrictive provisions, DHS ensures that
officers will be able to make a comprehensive evaluation of an alien's
inadmissibility under the public charge ground in the totality of the
circumstances.
With this proposed rule DHS officers will be able to make public
charge inadmissibility determinations that focus on aliens' self-
sufficiency and reliance ``on their own capabilities and the resources
of their families, their sponsors, and private organizations'' rather
than depending on the government to meet their needs. See 8 U.S.C.
1601(2). DHS officers will continue to assess statutory minimum
factors, such as age; health; family status; assets, resources, and
financial status; and education and skills and DHS will continue to
collect this information through the submission and adjudication of
Form I-485, Application to Register Permanent Residence or Adjust
Status, and Form I-693, Report of Immigration Medical Examination and
Vaccination Record. Officers will also continue to consider additional
evidence on a case-by-case basis.
This proposed rule, through removal of certain provisions from the
2022 Final Rule, would remove the limitations on considering only past
and current receipt of public cash assistance for income maintenance or
long-term institutionalization at government expense. It would also
remove the current limitation on DHS officers' forward-looking public
charge inadmissibility determination, which only allowed them to
consider the future use of those two limited benefit types.
Additionally, DHS proposes to amend public charge bond provisions to
state that the receipt of any means-tested public benefit during the
effective period of the bond, or otherwise being noncompliant with the
conditions of the bond, will result in the breach of the public charge
bond.
This proposed rule, if finalized, would also provide DHS with
greater flexibility to adapt to changing circumstances, such as Federal
and State changes to aliens' eligibility for means-tested public
benefits as well as changes to the value of those benefits, as occurred
with the enactment of H.R.1--One Big Beautiful Bill Act, Public Law
119-21, 139 Stat. 72 (``HR-1'').
The estimation of costs and benefits for this proposed rule focuses
on individuals applying for adjustment of status with USCIS using Form
I-485, Application to Register Permanent Residence or Adjust Status.
Such individuals apply from within the United States, rather than apply
for a visa from a DOS consular officer at a U.S. embassy or consulate
abroad. This analysis does not account for aliens arriving at ports of
entry seeking admission with U.S. Customs and Border Protection (CBP).
However, DHS acknowledges that aliens at ports of entry seeking
admission to the United States are generally subject to the public
charge ground of inadmissibility, though some may be exempt by law.
Moreover, DHS notes that CBP may incur costs pursuant to this proposed
rule, but it is unable to determine this potential cost due to data
limitations. For example, CBP employees spend time examining
noncitizens arriving at a port of entry seeking admission, either
pursuant to a previously issued visa or as a traveler for whom visa
requirements have been waived and determining if they are likely to
become a public charge if they are admitted. However, DHS is not able
to quantify the number of aliens who would appear to be inadmissible by
CBP based on a public charge determination as a consequence of this
proposed rule, and thus qualitatively acknowledges the potential
impact.
3. Population
The population affected by USCIS' implementation of this proposed
rule would consist of aliens who are present in the United States and
apply for adjustment of status to that of a lawful permanent resident.
By statute, an alien who seeks adjustment of status and is at any time
likely to become a public charge is ineligible to adjust their status,
unless the alien is exempt from or has received a waiver of the public
charge ground of inadmissibility. See INA sec. 212(a)(4), 8 U.S.C.
1182(a)(4). The grounds of inadmissibility set forth in section 212 of
the INA, 8 U.S.C. 1182, also apply when certain aliens seek
[[Page 52201]]
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 Congress has expressly exempted various categories
of applicants from the public charge inadmissibility ground. This
proposed rule would affect aliens who apply for adjustment of status,
as these individuals will be subject to a determination of
inadmissibility based on public charge grounds as long as the visa
classification of an alien is not exempt from such a determination. DHS
reiterates that the population estimates in this analysis are based on
aliens present in the United States who are applying for adjustment of
status and does not include aliens seeking admission at a port of
entry.
In this analysis, DHS uses historical filing data of Form I-485 to
estimate the population seeking an adjustment of status. Specifically,
DHS uses a 6-year average to estimate the annual total population
seeking an adjustment of status. These population estimates are used in
the ``Cost-Benefit Analysis'' section to estimate the economic impact
of the proposed rule.
a. Population Seeking Adjustment of Status
DHS estimates the affected population based on historical data from
FY 2019 through FY 2024. Table VI.3 shows the annual Form I-485
receipts and approvals from FY 2019 through FY 2024.
[GRAPHIC] [TIFF OMITTED] TP19NO25.021
The number of receipts from aliens seeking an adjustment of status
over the period FY 2019 through FY 2024 decreased from 600,104 in FY
2019 to a period low of 577,972 in FY 2020 before increasing to a
period high of 983,241 in FY 2024. In addition, the number of approvals
over the same 6-year period decreased from 581,623 in FY 2019 to a
period low of 442,764 in FY 2020, before increasing to a period high of
787,331 in FY 2024. DHS believes the decrease observed in 2020 was
likely due to external factors, such as the COVID-19 pandemic. During
this time, USCIS closed Application Support Centers (ASCs), and those
that remained open operated at reduced capacity. The increases observed
in the data after 2020 reflect recovery from these same factors.\151\
These trends are evident in this population estimate and also the
estimates discussed further in this analysis. DHS estimates the
projected annual average total population of aliens filing a Form I-485
is 727,192.
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\151\ In March 2020, USCIS suspended in-person services at its
field offices, asylum offices and ASCs as a result of the COVID-19
pandemic. During the suspension of services, USCIS provided limited
emergency services and rescheduled many appointments and
naturalization ceremonies impacted by the closures. USCIS did not
reopen offices until June 2020. See, USCIS, ``USCIS Temporarily
Closing Offices to the Public March 18-April 1,'' https://www.uscis.gov/archive/uscis-temporarily-closing-offices-to-the-public-march-18-april-1 (last updated March 17, 2020). See also,
USCIS, ``USCIS Offices Preparing to Reopen on June 4,'' https://www.uscis.gov/archive/uscis-offices-preparing-to-reopen-on-june-4
(last updated Apr. 24, 2020).
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b. Exemptions From Determinations of Inadmissibility Based on Public
Charge
Certain classes of admission of aliens are exempt from being
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.
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[[Page 52203]]
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[[Page 52204]]
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To estimate the annual total population of aliens 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
aliens who applied for adjustment of status for FY 2019 through FY
2024. DHS uses a 6-year average for this analysis.
For each fiscal year, DHS removed aliens from the population whose
class of admission is exempt from review for inadmissibility on the
public charge ground (see Table VI.5), where the remaining total
population would be subject to public charge review. DHS estimates the
total population subject to a public charge review of inadmissibility
based on historical data from FY 2019 through FY 2024.
[[Page 52205]]
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BILLING CODE 9111-97-C
DHS estimates the projected annual average total population of
aliens seeking an adjustment of status that would be subject to review
for inadmissibility on the public charge ground is 587,706.\152\ This
estimate is based on the 6-year average of the annual estimated total
population subject to review for inadmissibility on the public charge
ground from FY 2019 through FY 2024. Over the 6-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 464,028 in FY 2019 to a high of 719,790 in
FY 2024. DHS notes that the population estimates are based on aliens
present in the United States who are applying for adjustment of status,
rather than aliens who apply for an immigrant visa through consular
processing at a DOS consulate or embassy abroad or aliens seeking
admission to the United States with CBP.
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\152\ DHS reiterates that the population estimates do not
include aliens seeking admission to the United States at a port of
entry. This results in an underestimation in the number of aliens
subject to review for inadmissibility on the public charge ground,
and an underestimation in the number of aliens that could be deemed
inadmissible based on public charge inadmissibility determinations.
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c. Requirement To Submit an Affidavit of Support Under Section 213A of
the INA
Certain aliens 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.
See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D). A
failure to meet the requirement for a sufficient Affidavit of Support
Under Section 213A of the INA will result in the alien being found
inadmissible under the public charge ground of inadmissibility without
review of the statutory minimum factors.\153\ 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 immigrant receives certain benefits during the period of
enforceability. See INA sec. 213A(a) and (b), 8 U.S.C. 1183a(a) and
(b).
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\153\ See INA sec. 212(a)(4)(C) and (D), 213A(a), 8 U.S.C.
1182(a)(4)(C) and (D), 1183a(a).
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Table VI.6 shows the estimated total annual applications of aliens
who filed Form I-485 that were approved by USCIS, split out between
applications filed by aliens 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 2019 through FY 2024. The estimated
total annual applications for adjustment of status that were approved
by USCIS for aliens who were required to have a sponsor submit an
affidavit of support on their behalf over the 6-year period was
438,227. Over the 6-year period, the estimated total population of
aliens whose applications were
[[Page 52206]]
approved and who were required to submit an affidavit of support from a
sponsor ranged from a low of 350,201 in FY 2020 to a high of 517,349 in
FY 2024.
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[GRAPHIC] [TIFF OMITTED] TP19NO25.026
BILLING CODE 9111-97-C
d. Total Denials of Form I-485, Application To Register Permanent
Residence or Adjust Status, Including Denials With Public Charge as the
Denial Reason
DHS estimates the denial population based on historical data from
FY 2020 through FY 2024.\154\ Table VI.7 shows the annual receipts,
denials (overall), and denials based on public charge grounds for Form
I-485 from FY 2020 through FY 2024. Over the 5-year period, the
estimated total population of aliens denied on public charge grounds
ranged from a low of 41 in FY 2022 to a high of 95 in FY 2023.
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\154\ Due to data limitations, the 5-year average is used
instead of the 6-year average. No denial data was found for fiscal
year 2019.
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Over the 5-year period, denials on public charge grounds accounted
for an average of 0.0958 percent adjustment of status denials. Relative
to the entire Form I-485 applicant population, such denials represented
only 0.0087 percent. During the effective period of the 2019 Final Rule
(October 15, 2019, through March 21, 2021), covering FY 2020 and FY
2021, approximately 88 adjustment of status applications were denied on
public charge grounds. Of these, only three denials (later reopened and
approved) and two Notices of Intent to Deny (later rescinded, with
applications subsequently approved) were based on the totality of
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), as
outlined in the 2019 Final Rule. A review of the data under the 2019
Final Rule and the 2022 Final Rule indicated that many denials were due
to a missing or insufficient Form I-864, Affidavit of Support, rather
than a totality of circumstances analysis, highlighting the rarity of
adjustment of status denials on public charge grounds, even during the
period of heightened restrictions.
[[Page 52207]]
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4. Cost-Benefit Analysis
DHS expects this proposed rule to produce costs and benefits
associated with the procedures for conducting reviews of aliens on the
public charge ground of inadmissibility. DHS estimates the potential
impacts relative to the no-action baseline. Each section of the cost-
benefit analysis lays out the assumptions and estimates used in
calculating any costs and benefits of this proposed rule. The no-action
baseline represents the current state of the world absent regulatory
action. The no-action baseline for this proposed rule includes how DHS
applies the public charge ground of inadmissibility consistent with the
2022 Final Rule. For this proposed 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
proposed rule to the baseline.
a. Benefits of the Proposed Regulatory Changes
DHS anticipates this proposed rule will produce benefits but is
limited to providing a qualitative analysis. The primary benefit of the
proposed rule is the removal of overly-restrictive provisions
promulgated in the 2022 Final Rule that hinder officers in making
public charge inadmissibility determinations. By removing rigid
regulatory definitions and standards, this proposed rule would ensure
that officers will be able to make highly individualized, fact
specific, case-by-case public charge inadmissibility decisions based on
the totality of each alien's individual circumstances. This approach
prevents the application of overly restrictive criteria that
unnecessarily limits DHS officers' ability to make public charge
inadmissibility determinations.
The removal of overly-restrictive provisions codified in the 2022
Final Rule would allow DHS to more accurately, precisely, and reliably
assess public charge inadmissibility, leading to fewer inadmissible
aliens entering the United States and, as a result, leading to fewer
aliens entering or remaining in the United States who are likely to
receive public benefits. DHS is unable to quantify this benefit due to
data limitations; however, DHS believes that over time this policy
change will result in a quantifiable benefit that reflects a reduction
in the number of inadmissible aliens who enter the United States and a
reduction in the number of aliens who rely on public benefits programs.
The amendments to the cancellation and breach of public charge
bonds also establishes a policy that aligns more closely with the
broader policy of the United States that aliens should be self-
sufficient and not reliant on public resources.
b. Transfer Payments and Indirect Impacts of the Regulatory Change
i. Transfer Payments
DHS has analyzed the potential effects of the proposed regulatory
changes on transfer payments from Federal, State, Tribal, territorial,
and local governments to individuals receiving public benefits. As
stated in the preamble, this proposed rule eliminates restrictive
criteria from the 2022 Final Rule, such as the definitions of ``likely
at any time to become a public charge'' and ``receipt (of public
benefits).'' This proposed rule also removes the limitations on
considering only public cash assistance for income maintenance or long-
term institutionalization at government expense when making public
charge inadmissibility determinations. While the intent of this
proposed rule is to allow DHS to better apply the public charge ground
of inadmissibility consistent with congressional intent, as noted
above, the elimination of certain definitions may lead to public
confusion or misunderstanding of the proposed rule, which could result
in decreased participation in public benefit programs by individuals
who are not subject to the public charge ground of inadmissibility.
Therefore, transfer
[[Page 52208]]
payments from Federal and State governments to certain individuals who
receive public benefits may decrease.
DHS acknowledges the estimated reduction in transfer payments may
have a disproportionally larger impact on the individuals and
households discussed in this analysis because they are more likely to
be low-income. Low-income households tend to have a higher marginal
propensity to consume because they allocate a larger percentage of
their income towards essential goods and services to meet basic needs.
A reduction in payments to these households could have a negative
impact on the economy by their reduced spending. Additionally, these
households tend to have a higher marginal utility of consumption
because increases in disposable income tend to be allocated toward
fulfilling unmet needs, thus leading to a decrease in total welfare.
DHS recognizes that the removal of 8 CFR 212.21 and 212.22, the
core elements of the 2022 Final Rule, may cause some aliens to
disenroll from or forgo enrollment in public benefit programs beyond
those included in the estimates of this analysis. However, due to
variations in programs across States and differences in eligibility
criteria, DHS cannot quantify the number of individuals affected across
all means-tested public benefits programs. For this analysis, DHS will
focus on Medicaid, Children's Health Insurance Programs (CHIP),
Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance
for Needy Families (TANF), Supplemental Security Income (SSI), and
Federal Rental Assistance.
The 2019 Final Rule described and analyzed expected indirect
effects, particularly among populations that were not subject to the
2019 Final Rule such as U.S.-citizen children in mixed-status
households, longtime lawful permanent residents, and aliens in a
category exempt from public charge considerations. See 84 FR 41292
(Aug. 14, 2019), as amended by 84 FR 52357 (Oct. 2, 2019).\155\ With
the elimination of the definitions and other core elements of the 2022
Final Rule, individuals both directly and indirectly affected by this
proposed rule may have a misunderstanding regarding the scope of the
rule and how DHS will apply the public charge ground of
inadmissibility. Therefore, DHS assumes similar transfer payments and
indirect effects may occur under this proposed rule, as was discussed
in the 2019 Final Rule. DHS estimates that the total annual transfer
payments from the Federal Government to public benefits recipients who
are members of households that include aliens could potentially be
reduced by approximately $5.29 billion. DHS also estimates that the
total annual transfer payments from the State government to public
benefits recipients could be reduced by approximately $3.68
billion.\156\ 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 available to society. 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 reductions in transfer payments
represent significantly broader effects than any disenrollment that
would result among people regulated by this proposed rule.
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\155\ These similar transfer payments and indirect effects were
also discussed in the Regulatory Alternative section of the 2022
Final Rule.
\156\ Total annual Federal and State reduction in transfer
payment = (Estimated Reduction in Transfer Payments Based on the
Federal Government from Table V.11)/(average FMAP across all States
and U.S. territories) = $5,289,478,897/0.59 = $8.97 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: $8.97 billion (rounded)-$5.29
billion (rounded) = $3,675,739,572.
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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 or
hospitals.
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 aliens (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. The 2022 Final Rule followed this same
methodology and used a disenrollment/forgone enrollment rate of 3.1
percent. 87 FR 55472 (Sept. 9, 2022).
In both the 2019 and 2022 Final Rules, DHS estimated the 2.5
percent and 3.1 percent disenrollment/forgone enrollment rate by
dividing the annual number of approved aliens who adjusted status
annually by the estimated alien population of the United States. 84 FR
41292, 41463 (Aug. 14, 2019), 87 FR 55472 (Sept. 9, 2022). DHS
estimated the disenrollment rate as the 5-year average annual number of
persons adjusting status as a percentage of the estimated alien
population in the United States. The estimate reflects an assumption
that 100 percent of such aliens and their household members are either
enrolled in or eligible for public benefits and will be sufficiently
concerned about the potential consequences of the policies in the prior
final rules to disenroll or forgo enrollment in public benefits.
Consequently, the resulting transfer estimates would therefore likely
tend towards overestimation, particularly regarding the population
directly regulated by the 2019 Final Rule. DHS applies this same
assumption as a low estimate for this proposed rule.
In the 2019 Final Rule, DHS assumed that the population most 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 aliens, adjusting their immigration status annually. However,
this approach may have resulted in an underestimate due to the
documented chilling effects of the 2019 Final Rule on other segments of
the alien and citizen populations, including those not classified as
adjustment applicants, members of households of adjustment applicants,
or other aliens outside the adjustment applicant category. Despite
this, the methodology remained consistent in the 2022 Final Rule, and
DHS assumes the same underestimation applies to this proposed rule. 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 proposed rule would be 3.3 percent.157 158
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\157\ Calculation, based on 6-year averages over the period
fiscal year 2019-2024: (727,192 receipts for I-485, adjustments of
status/21,975,173 estimated alien population) x 100 = 3.3 percent
(rounded). U.S. Census Bureau American Database, ``S0501: Selected
Characteristics of the Native and Foreign-born Populations 2023:
American Community Survey (ACS) 5-year Estimates.'' Available at
https://data.census.gov/cedsci (last visited July 22, 2025).
\158\ 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.
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[[Page 52209]]
Studies conducted between 2016 and 2020 have shown reductions in
enrollment due to a ``chilling effect,'' ranging from 4.1 percent to 48
percent.159 160 The largest disenrollment occurred between
2018 and 2019,\161\ coinciding with the publication and implementation
of the 2019 Final Rule. Since the publication of the 2022 Final Rule,
studies have highlighted the broad chilling effect public charge policy
changes have had on enrollment rates across public benefit programs,
including Medicaid, SNAP, TANF, and housing assistance. The KFF Kaiser
Family Research (2022) found that the 2019 Final Rule, along with other
immigration policy changes, heightened fears among immigrant families
about participating in programs and seeking services, such as health
coverage and care.\162\ These fears led to significant disenrollment,
with an estimated 2.0 to 4.7 million alien Medicaid and CHIP enrollees
opting out (disenrollment rates of 15 percent to 35 percent). Many
families reported confusion about the 2022 rule changes or concerns
about future changes to the public charge rule, prompting them to forgo
services.\163\ In an updated 2025 study, KFF Kaiser Family Research
found that fears persisted, with 27 percent of likely illegal alien
adults and 8 percent of lawfully present immigrant adults avoiding
food, housing, or health care assistance due to immigration-related
concerns.\164\
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\159\ 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 (Capps et al. (2020)).
\160\ Hamutal Bernstein, et al., ``Immigrant Families Continued
Avoiding the Safety Net during the COVID-19 Crisis,'' Urban
Institute (Feb. 1, 2021), https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (Bernstein et al. (2021)).
\161\ Capps et al. (2020).
\162\ Drishti Pillai, Samantha Artiga, ``2022 Changes to the
Public Charge Inadmissibility Rule and the Implications for Health
Care,'' Kaiser Family Foundation (KFF) (May 5, 2022), https://www.kff.org/racial-equity-and-health-policy/2022-changes-to-the-public-charge-inadmissibility-rule-and-the-implications-for-health-care/ (Pillai et al. (2022)).
\163\ Kaiser Family Foundation (KFF), ``Key Facts on Health
Coverage of Immigrants'' (Jan. 15, 2025), https://www.kff.org/racial-equity-and-health-policy/key-facts-on-health-coverage-of-immigrants/ (KFF 2025).
\164\ KFF 2025.
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Similarly, the Urban Institute (2022) reported that many adults in
immigrant families avoided applying for safety net programs because of
immigration-related fears.\165\ In 2021, 20.6 percent avoided noncash
programs due to concerns about green card eligibility, 16.3 percent due
to worries about immigration status or enforcement, 13.8 percent due to
uncertainty about eligibility, and 11.3 percent because they were asked
to provide proof of citizenship or immigration status. An updated 2023
study found that 13 percent of adults in immigrant families avoided
noncash government benefits like Medicaid, SNAP, or housing subsidies
in 2022 due to green card concerns.166 167 Adults in mixed-
status families (25 percent) were more likely to report chilling
effects than those in green card and citizen families (13 percent) or
all-citizen families (7 percent).\168\ Given the range of disenrollment
estimates observed, DHS assumes an average disenrollment rate of 17.3
percent. This average is derived from studies conducted between 2022
and 2025 (as discussed above).\169\
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\165\ Hamutal Bernstein, Dulce Gonzalez, Paola Echave, and Diane
Guelespe, ``Immigrant Families Faced Multiple Barriers to Safety Net
Programs in 2021,'' Urban Institute (Nov. 10, 2022), https://www.urban.org/research/publication/immigrant-families-faced-multiple-barriers-safety-net-programs-2021 (Bernstein, Gonzalez et
al. (2022)).
\166\ Dulce Gonzalez, Jennifer Haley, and Genevieve Kenney,
``One in Six Adults in Immigrant Families with Children Avoided
Public Programs in 2022 Because of Green Card Concerns,'' Urban
Institute (Nov. 30, 2023), https://www.urban.org/research/publication/one-six-adults-immigrant-families-children-avoided-public-programs-2022 (Gonzalez et al. (2023)).
\167\ Dulce Gonzalez and Hamutal Bernstein, ``One in Four Adults
in Mixed-Status Families Did Not Participate in Safety Net Programs
in 2022 Because of Green Card Concerns,'' Urban Institute (Aug. 17,
2023), https://www.urban.org/research/publication/one-four-adults-mixed-status-families-did-not-participate-safety-net-programs
(Gonzalez, Bernstein et al. (2023)).
\168\ Gonzalez, Bernstein et al. (2023).
\169\ Pillai et al. (2022); KFF (2025); Bernstein, Gonzalez et
al. (2022); Gonzalez et al. (2023); and Gonzalez, Bernstein et al.
(2023).
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Due to the uncertainty of the rate of disenrollment or forgone
enrollment in public benefits programs related to the prior 2019 and
2022 Final Rules, DHS uses a range of rates to estimate the change in
Federal Government transfer payments that would be associated with this
proposed rule. For estimating the lower bound of the range, DHS uses a
3.3 percent rate of disenrollment or forgone enrollment in public
benefits programs based on the estimation methodology from the 2019 and
the 2022 Final Rule (as discussed above).
DHS bases the upper bound of the range on the results of studies
that were discussed earlier in the economic analysis, which provided an
average of 17.3 percent rate of disenrollment or forgone enrollment in
public benefits programs. 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 17.3 percent may result in
an underestimate because many of the studies reviewed did not include
SSI and TANF or focused less on these programs. Conversely, this
estimate may result in an overestimate due to variations in the
populations studied, which led to higher reported percentages and
observed populations that are not the intended focus of this analysis.
Additionally, differences in methodologies, such as data collection,
inclusion or exclusion criteria, and analysis, across studies may have
introduced observed changes that would not appear in a true
longitudinal study with consistent methods.
DHS uses 10.3 percent as the primary estimate in order to estimate
the annual reduction in Federal Government transfer payments associated
with this proposed rule, which is the midpoint between the lower
estimate (3.3 percent) and the upper estimate (17.3 percent) of
disenrollment or forgone enrollment in public benefits programs. DHS
chooses to provide a range due to the difficulty in estimating the
effect on various populations. DHS welcomes public comments on the
estimation of the disenrollment or forgone enrollment rate used in this
analysis.
Using the primary estimate rate of disenrollment or forgone
enrollment in public benefits programs of 10.3 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 could
be approximately $5.29 billion for an estimated 950,124 individuals and
35,294 households across the public benefits programs examined.
To estimate the reduction in transfer payments under this proposed
rule, DHS must multiply the estimated disenrollment/forgone enrollment
rate of 10.3 percent by: (1) the population of analysis (i.e., those
who may disenroll from or forgo enrollment in Medicaid, CHIP, SNAP,
TANF, SSI, and Federal Rental Assistance); \170\ and (2) the value of
the forgone benefits.
---------------------------------------------------------------------------
\170\ DHS recognizes that the rule would create a similar
disincentive to receive TANF and SSI by certain aliens, and the fact
that these benefits have been considered in public charge
inadmissibility determinations since 1999. Note that the Medicaid
enrollment does include not child enrollment, as previously done in
the 2019 Final Rule and the 2022 Final Rule.
---------------------------------------------------------------------------
[[Page 52210]]
Table VI.8 shows the estimated population of public benefits
recipients who are members of households that include aliens. DHS
assumes that this is the population of individuals who may disenroll
from or forgo enrollment in public benefits under this proposed rule.
The table also shows estimates of the number of households with at
least one alien family member that may have received public
benefits.171 172 Based on the number of households with at
least one alien family member, DHS estimates the number of public
benefits recipients who are members of households that include at least
one alien who may have received benefits using the U.S. Census Bureau's
estimated average household size for foreign-born
households.173 174
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\171\ See U.S. Census Bureau, ``American Community Survey 2023
Subject Definitions,'' https://www2.census.gov/programs-surveys/acs/tech_docs/subject_definitions/2023_ACSSubjectDefinitions.pdf (last
visited Aug. 19, 2025). 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, aliens with a nonimmigrant status (e.g., foreign
students), aliens with a humanitarian status (e.g., refugees), and
aliens present without a lawful immigration status.
\172\ To estimate the number of households with at least one
alien family member that have received public benefits, DHS
calculated the overall percentage of total U.S. households that are
aliens as 6.61 percent. Calculation: [21,975,173 (Foreign-born
noncitizens)/332,387,540 (Total U.S. population)] x 100 = 6.61
percent. See U.S. Census Bureau, ``S0501: Selected Characteristics
of the Native and Foreign-born Populations 2023: American Community
Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci
(last visited July 22, 2025).
\173\ See U.S. Census Bureau, ``S0501: Selected Characteristics
of the Native and Foreign-born Populations 2023: American Community
Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci
(last visited July 22, 2025). The average foreign-born household
size is reported as 3.12 persons. DHS multiplied this figure by the
estimated number of benefits-receiving households with at least one
foreign-born alien receiving benefits to estimate the population
living in benefits-receiving households that include an alien.
\174\ 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 aliens of the public benefits included in this
analysis.
---------------------------------------------------------------------------
In order to estimate the population of public benefits recipients
who are members of households that include at least one alien, DHS uses
a 6-year average of public benefit recipients' data from FY 2019
through FY 2024 to remain consistent with the averages that were used
earlier in the economic analysis.
Consistent with the approach DHS took in the 2019 and 2022 Final
Rules, 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 2.54 for the U.S. total
population.175 176 Second, DHS estimated the number of such
households with at least one alien resident. According to the U.S.
Census Bureau population estimates, the alien population is 6.61
percent of the U.S. total population.\177\ While there may be some
variation in the percentage of aliens 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 alien who receives
public benefits, DHS multiplies the estimated number of households for
each public benefits program by 6.61 percent. This step may introduce
uncertainty into the estimate because the percentage of households with
at least one alien may differ from the percentage of aliens in the
population. However, if aliens tend to be grouped together in
households, then an overestimation of households that include at least
one alien is more likely.
---------------------------------------------------------------------------
\175\ U.S. Census Bureau, ``S0501: Selected Characteristics of
the Native and Foreign-born Populations 2023: American Community
Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci
(last visited July 22, 2025).
\176\ DHS uses the average household size from the ``2023: ACS
5-Year Estimates Subject Tables'' because data for the year 2024 was
not available. DHS also opted to use the 5-year estimates over the
average of the ``ACS 1-Year Estimates Subject Tables'' for the years
2019 through 2024 because the 1-year estimates were not available
for 2020 and 2024.
\177\ See U.S. Census Bureau, ``S0501: Selected Characteristics
of the Native and Foreign-born Populations 2023: American Community
Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci
(last visited July 22, 2025). Calculation: [21,975,173 (Foreign-born
noncitizens)/332,387,540 (Total U.S. population)] x 100 = 6.61
percent.
---------------------------------------------------------------------------
DHS then estimates the number of aliens who received benefits by
multiplying the estimated number of households with at least one alien
who receives public benefits by the U.S. Census Bureau's estimated
average household size of 3.12 for those who are foreign-born.\178\
---------------------------------------------------------------------------
\178\ See U.S. Census Bureau, ``S0501: Selected Characteristics
of the Native and Foreign-born Populations 2023: American Community
Survey (ACS) 5-year Estimates,'' https://data.census.gov/cedsci
(last visited July 22, 2025).
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BILLING CODE 9111-97-P
[[Page 52211]]
[GRAPHIC] [TIFF OMITTED] TP19NO25.028
[[Page 52212]]
[GRAPHIC] [TIFF OMITTED] TP19NO25.029
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 average annual benefit received per person for each
public benefit program in Table VI.9. For each benefit, except for
Medicaid, the average benefit per person is calculated for each public
benefit program by dividing the average annual program payments for one
public benefit by the average annual total number of recipients.\179\
For Medicaid, DHS uses Centers for Medicare & Medicaid Services' (CMS)
median per capita expenditure estimate across all States for calendar
year 2022, which is the most recent year of data available. To the
extent that data are available, these estimates are based on 6-year
annual averages between FY 2019 and FY 2024.
---------------------------------------------------------------------------
\179\ 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 52213]]
[GRAPHIC] [TIFF OMITTED] TP19NO25.030
As discussed earlier, using the midpoint reduction rate of 10.3
percent, Table VI.10 shows the estimated population that may disenroll
or forgo enrollment in a federally funded public benefits program under
this proposed rule.
[[Page 52214]]
[GRAPHIC] [TIFF OMITTED] TP19NO25.031
BILLING CODE 9111-97-C
Table VI.11 shows the estimated population that would be likely to
disenroll from or forgo enrollment in federally funded public benefits
programs due to this proposed rule's indirect chilling effect. The
table also presents the previously estimated average annual benefit per
person who received benefits for each of the public benefits
programs.\180\ Multiplying the estimated population that would be
likely to disenroll from or forgo enrollment in public benefit programs
due to this proposed rule 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
$5.29 billion for an estimated 950,124 individuals and 35,294
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.
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\180\ 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 by State, DHS uses an average Federal
[[Page 52215]]
Medical Assistance Percentage (FMAP) of 59 percent across all States
and U.S. territories to estimate a combined reduction in transfer
payments for Medicaid and CHIP (See 87 FR 74429 (Dec. 5, 2022)).\181\
DHS acknowledges that the average FMAP percentage of 59 in recent
fiscal years is lower than the percentage provided to States and U.S.
territories due to enhanced federal medical assistance under the
Affordable Care Act's Medicaid expansion and the additional increases
from the Families First Coronavirus Relief Act, which ended in 2023.
This may result in an underestimate. However, DHS deems it reasonable
to use an average of the FMAP to estimate the total annual transfer
payments from State governments to public benefits recipients. Table
VI.11 shows that Federal annual transfer payments for Medicaid and CHIP
would be reduced by about $3.43 billion under this proposed rule.\182\
From this amount and the average FMAP 59 percent, DHS calculates the
total reduction in transfer payments from Federal and State governments
to individuals to be about $5.82 billion.\183\ From that total amount,
DHS estimates State annual transfer payments would be reduced by
approximately $2.38 billion due to the disenrollment or forgone
enrollment of aliens and their households from Medicaid and CHIP.\184\
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\181\ DHS acknowledges that Federal Financial Participation
(FFP) varies by States for CHIP, and the share is determined by the
Enhanced Federal Medical Assistance Percentage (eFMAP), which uses a
higher average rate of 71 percent. However, CHIP expenditures are
significantly lower than Medicaid expenditures. For example, in FY
2023, CHIP accounted for less than 3 percent of Medicaid spending.
Therefore, DHS finds it reasonable to use the FMAP percentage of 59
for both Medicaid and CHIP.
\182\ Total annual Federal and State reduction in transfer
payment for Medicaid and CHIP = (Estimated Reduction in Transfer
Payments Based on a 10.3% Rate of Disenrollment or Forgone
Enrollment for Medicaid) + (Estimated Reduction in Transfer Payments
Based on a 10.3% Rate of Disenrollment or Forgone Enrollment for
CHIP) = $3,315,321,108 + $116,377,807 = $3,431,698,915.
\183\ Total annual Federal and State reduction in transfer
payment for Medicaid and CHIP = (Estimated Reduction in Transfer
Payments Based on a 10.3% Rate of Disenrollment or Forgone
Enrollment for Medicaid and CHIP from Table V.11)/(average FMAP
across all States and U.S. territories) = $3,431,698,915/0.59 =
$5.82 billion (rounded).
\184\ State annual reduction in transfer payment for Medicaid
and CHIP =Total annual Federal and State reduction in transfer
payment for Medicaid and CHIP-Federal annual reduction in transfer
payment for Medicaid = $5.82 billion-$3.43 billion = $2.38 billion
(rounded).
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For this analysis, DHS conservatively assumes that the Federal
Government pays 100 percent of benefits values for SNAP, TANF \185\ and
Federal Rental Assistance (see Table VI.9 and Table VI.10).Therefore,
Table VI.11 shows the Federal share of annual transfer payments would
be about $1.38 billion for SNAP, TANF, and Federal Rental
Assistance.\186\ For SSI, the maximum Federal benefit changes yearly.
Effective January 1, 2025, the maximum Federal benefit was $967 monthly
for an individual and $1,450 monthly for a couple.\187\ Some States
supplement the Federal SSI benefit with additional payments, which make
the total SSI benefit levels higher in those States.\188\ 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. DHS welcomes public
comments on data related to the State contributions and share of costs
of these public benefit programs.
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\185\ DHS recognizes that to receive federal funds for TANF,
states must spend a minimum amount of their own funds, known as
maintenance of effort. DHS also recognizes that conservatively
assuming that the Federal Government pays 100 percent of the TANF
benefits could result in an overestimation of the Federal Share for
TANF.
\186\ From Table V.11, transfer payment reduction for SNAP is
$1,018,393,920, for TANF is $27,647,022, and for Federal Rental
Assistance is $329,787,136. Calculation of the sum: $1,375,828,078.
\187\ See Social Security Administration, ``How much you could
get from SSI,'' https://www.ssa.gov/ssi/amount (last visited July
22, 2025).
\188\ See Social Security Administration, ``Annual Statistical
Supplement, 2024,'' ``Supplemental Security Income Program
Description and Legislative History,'' https://www.ssa.gov/policy/docs/statcomps/supplement/2024/ssi.html (last visited July 22,
2025).
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BILLING CODE 9111-97-P
[[Page 52216]]
[GRAPHIC] [TIFF OMITTED] TP19NO25.032
As shown in Table VI.12, applying the same calculations using the
low estimate of 3.3 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 $1.70 billion for an
estimated 305,549 individuals and 11,350 households across the public
benefits programs examined. For the high estimate of 17.3 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
$8.88 billion for an estimated 1,594,622 individuals and 59,235
households across the public benefits programs examined.
[[Page 52217]]
[GRAPHIC] [TIFF OMITTED] TP19NO25.033
BILLING CODE 9111-97-C
DHS acknowledges prior studies that examines disenrollment or
forgone enrollment due to public charge regulatory effects, which
reported higher disenrollment rates. Particularly the 2019 Final Rule
referenced studies on the impact of PRWORA in 1996 that observed a
reduction in enrollment from 21 to 54 percent, though it stated that it
is unclear how many individuals would actually disenroll from or forgo
enrollment in public benefits programs due to the 2019 Final Rule.
While DHS recognizes this, DHS does not believe disenrollment or
forgone enrollment will reach levels as high as 54 percent, as such
percentages were not observed following the implementation of either
the 2019 or 2022 Final Rules.
Finally, DHS recognizes that the estimated reductions in transfer
payments are approximations and could be influenced by external factors
unrelated to this proposed rule. For example, the recent enrollment
changes to Medicaid and SNAP implemented in the H.R. 1 Reconciliation
Bill are expected to impact enrollment rates, adding complexity to
quantification efforts.\189\ DHS anticipates that disenrollment or
forgone enrollment rates may fluctuate independently of this proposed
rule, potentially affecting the transfer payment estimates presented in
this analysis. However, it is too early to assess the impact of these
policies on public benefit usage, and consequently, on the impact on
overall estimates presented in this analysis.
---------------------------------------------------------------------------
\189\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025)
---------------------------------------------------------------------------
ii. Indirect Impacts of the Proposed Regulatory Changes
DHS notes that, as described in the 2019 and 2022 Final Rules, the
proposed rule may produce indirect effects. For example, a reduction in
transfer payments from the Federal government to individuals who
receive public benefits due to increased disenrollment or forgone
enrollment in public benefit programs may have indirect effects.
Therefore, DHS applies the same analysis used previously, as outlined
below. A likely impact of the proposed rule relative to the baseline 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. An alien might review
the rule to determine whether they are subject to the proposed 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, non-governmental organizations, and religious
organizations, among others, may want to become familiar with the
provisions of this proposed rule. DHS believes such nonprofit
organizations and other advocacy groups might choose to read the rule
to provide 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
[[Page 52218]]
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 2 to 3 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 proposed rule. Using the average total rate of compensation as
$48.05 per hour for all occupations, DHS estimates that the opportunity
cost of time will range from about $96.10 to $144.15 per individual who
must read and review the proposed rule.\190\ Due to data limitations,
DHS is unable to estimate or quantify the number of individuals that
will familiarize themselves with this rule. Therefore, DHS requests
comment on appropriate methodologies for quantifying the number of
individuals that would choose to familiarize themselves with this rule.
---------------------------------------------------------------------------
\190\ Calculation: (Average total compensation for all
occupations) * (Time to read rule-lower bound) = (Opportunity cost
of time [OCT] to read rule) = $48.05 * 2 hours = $96.10 OCT per
individual to read rule, 2 hours (rounded) = (approximately 39,935
words/300)/60.
Calculation: (Average total compensation for all occupations) *
(Time to read rule-upper bound) = (Opportunity cost of time [OCT] to
read rule) = $48.05 * 3 hours = $144.15 OCT per individual to read
rule, 3 hours = (approximately 39,935 words/250)/60.
Average total compensation for all occupations ($48.05): See
BLS, Economic News Release, ``Employer Cost for Employee
Compensation (June 2025),'' 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, https://www.bls.gov/news.release/archives/ecec_09122025.pdf
(last modified Sept 12, 2025).
---------------------------------------------------------------------------
Another source of indirect costs of the proposed rule would be
costs to various entities associated with familiarization of and
compliance with the provisions of the rule, such as for hospitals or
state Medicaid agencies. Regulatory compliance costs are all of the
costs entities incur in order to ensure they are aware of and follow
all applicable government regulations. Compliance costs may include
salaries of employees who monitor current and potential regulations,
opportunity costs of time related to understanding the requirements of
regulations, disseminating information to the rest of an organization
(e.g., training sessions), and developing or modifying information
technology (IT) systems as needed. For example, health systems,
hospitals, and post-acute care (PAC) providers in the U.S. may choose
to become familiar with the provisions of this proposed rule.
Additionally, reduced access to public benefit programs by eligible
individuals, including aliens and U.S. citizens in mixed-status
households, may lead to downstream effects on public health, community
stability, and resilience, to include:
Worse health outcomes, such as increased prevalence of
obesity and malnutrition (especially among pregnant or breastfeeding
women, infants, and children), reduced prescription adherence, and
increased use of emergency rooms for primary care due to delayed
treatment.
Higher prevalence of communicable diseases, including
among U.S. citizens who are not vaccinated.
Increased rates of uncompensated care, where treatments or
services are not paid for by insurers or patients.
Increased poverty, housing instability, reduced
productivity, and lower educational attainment.
DHS recognizes that reductions in Federal and State transfers under
public benefit programs may also affect State and local economies,
businesses, and individuals. For example, reduced enrollment in
programs like Medicaid and SNAP could lead to: \191\
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\191\ See ``Public Charge Final Rule_ECON_RIA'' contained within
the docket of the 2019 Final Rule ``Inadmissibility on Public Charge
Grounds,'' 84 FR 41292, 41493 (Aug. 14, 2019).
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Lower revenues for healthcare providers participating in
Medicaid.
Reduced income for companies manufacturing medical
supplies or pharmaceuticals.
Decreased sales for grocery retailers participating in
SNAP.
Economic impacts on agricultural producers supplying SNAP-
eligible foods.
Financial strain on landlords participating in federally
funded housing programs.
In the 2019 Final Rule, DHS acknowledged that reduced disposable
income and increased poverty could disproportionately affect certain
families and children, including U.S.-citizen children. 84 FR 41292,
41493 (Aug. 14, 2019). One academic provided an estimate in a court
filing that as many as 3.2 million fewer individuals might receive
Medicaid due to fear and confusion surrounding the 2019 Final Rule,
potentially leading to 4,000 excess deaths annually.\192\ Another
academic projected in a court filing that 1.8 million fewer people
would use SNAP benefits, many of whom are U.S. citizens.\193\ Loss of
Federal housing security could further exacerbate health issues and
reliance on other social safety net programs.
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\192\ 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 Oct. 11, 2025).
\193\ Id.
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Finally, during the 2022 Final Rule, DHS received comments from
several states highlighting the administrative costs associated with
the 2019 Final Rule. These disruptions led to increased ``churn,''
where eligible individuals and families cycle on and off public benefit
programs more frequently enrolling during times of need and
disenrolling due to fear or confusion. This churn increased
administrative costs for states, which allocated resources for outreach
and education to address misconceptions about the Public Charge rule.
Outreach efforts often require materials in individuals' native
languages and dissemination through social networks. States also
reported dedicating hundreds of hours to planning and training
caseworkers and call center staff to address issues stemming from the
2019 Final Rule. DHS anticipates similar administrative costs under
this proposed rule but cannot precisely estimate the burden states will
face due to increased churn.
DHS is generally not able to estimate all of the additional
indirect costs that would likely be incurred because of follow-on
economic effects of the initial indirect costs identified in the
proposed rule due to the wide range of these costs. DHS requests
comments on other possible indirect impacts of the rule and appropriate
methodologies for quantifying these non-monetized potential impacts.
c. Estimated Reduced Transfer Payments
To compare costs over time, DHS applied a 3-percent and a 7-percent
discount rate to the total estimated costs associated with the proposed
rule. DHS presents the total estimated quantified reduction in transfer
payments from the Federal Government, the State Governments, and a
combined reduction in Tables VI.13, VI.14, and VI.15, respectively. The
total estimated costs are presented in undiscounted dollars, at a 3-
percent discount rate, and at a 7-percent discount rate.
Table VI.13 shows the Federal share of the total estimated amount
of transfer payments of the proposed rule. The 10-year undiscounted
amount of Federal transfer payments based on the provisions of this
proposed rule is about $5.29 billion annually. The 10-year discounted
amount of Federal transfer
[[Page 52219]]
payments based on the provisions of this proposed rule is approximately
$45.12 billion at a 3-percent discount rate and about $37.15 billion at
a 7-percent discount rate.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP19NO25.034
In addition, since the State share of Federal financial
participation (FFP) varies from State to State, DHS uses the average of
the FMAP across all States and U.S. territories of 59 percent \194\ to
estimate the amount of State transfer payments. See 87 FR 74429 (Dec.
5, 2022). Table VI.14 shows the State share of the total estimated
amount of transfer payments of the proposed rule.
---------------------------------------------------------------------------
\194\ Under Section 1905(b) of the Social Security Act, 42
U.S.C. 1396d(b), FMAP is calculated as ``100 per centum less the
State percentage.'' In other words, the FMAP is the Federal
government's share of Medicaid expenditures.
[GRAPHIC] [TIFF OMITTED] TP19NO25.035
[[Page 52220]]
The 10-year undiscounted amount of State transfer payments based on
the provisions of this proposed rule is about $3.68 billion annually.
The 10-year discounted amount of State transfer payments based on the
provisions of this proposed rule is approximately $31.35 billion at a
3-percent discount rate and about $25.82 billion at a 7-percent
discount rate.
Finally, DHS presents the combined total estimated quantified
reduction in transfer payments from the Federal and State governments
of the proposed rule in Table VI.15.
[GRAPHIC] [TIFF OMITTED] TP19NO25.036
BILLING CODE 9111-97-C
Over the first 10 years of implementation, DHS estimates the total
quantified reduction in transfer payments from the Federal and State
governments to members of households that include aliens could be about
$89.65 billion (undiscounted). In addition, DHS estimates that the 10-
year discounted transfers of this proposed rule is approximately $76.48
billion at a 3-percent discount rate and about $62.97 billion at a 7-
percent discount rate due to disenrollment or forgone enrollment in
various Federal public benefits programs.\195\
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\195\ DHS reiterates that the estimated reductions in transfer
payments are approximations and could be influenced by external
factors unrelated to this proposed rule. DHS anticipates that
disenrollment or forgone enrollment rates may fluctuate
independently of this proposed rule, potentially affecting the
transfer payment estimates presented in this analysis.
---------------------------------------------------------------------------
Disenrollment or forgone enrollment in public benefits programs
could occur whether or not such aliens are directly affected by the
provisions of the proposed rule, however, DHS was unable to determine
the exact percentage of individuals who would disenroll or forgo
enrollment. DHS also reiterates that removal of 8 CFR 212.21 and
212.22, the core elements of the 2022 Final Rule may cause some aliens
to disenroll from or forgo enrollment in public benefit programs beyond
those included in the estimates of this analysis. However, DHS cannot
quantify the number of individuals affected across all programs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996, 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.\196\
---------------------------------------------------------------------------
\196\ A small business is defined as any independently owned and
operated business not dominant in its field of operation that
qualifies as a small business per the Small Business Act, 15 U.S.C.
632.
---------------------------------------------------------------------------
The proposed 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 an alien applying for adjustment of status. Rather, this proposed
rule regulates individuals, and individuals are not defined as ``small
entities'' by the RFA. While some employers could experience costs or
transfer effects, these impacts would be indirect. DHS recognizes these
indirect effects to various entities that this proposed rule does not
regulate, such as to hospital systems, and other organizations that
provide public assistance to aliens and their households. However,
based on the evidence presented in this analysis and throughout this
preamble, DHS certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments.
[[Page 52221]]
Title II of UMRA requires each Federal agency to prepare a written
statement assessing the effects of any Federal mandate in a proposed
rule, or final rule for which the agency published a proposed rule,
that includes any Federal mandate that may 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. See 2 U.S.C. 1532(a). The inflation adjusted value of
$100 million in 1995 is approximately $206 million in 2024 based on the
Consumer Price Index for All Urban Consumers (CPI-U).\197\
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\197\ See DOL Bureau of Labor Statistics, ``Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. city average, all
items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202412.pdf (last visited Feb. 4, 2025).
Calculation of inflation: (1) Calculate the average monthly CPI-U
for the reference year (1995) and the current year (2024); (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 = [(Average monthly
CPI-U for 2024-Average monthly CPI-U for 1995) / (Average monthly
CPI-U for 1995)] x 100 = [(313.689 -152.383) / 152.383] = (161.306/
152.383) = 1.059 x 100 = 105.86 percent = 106 percent. Calculation
of inflation-adjusted value: $100 million in 1995 dollars x 2.06 =
$206 million in 2024 dollars.
---------------------------------------------------------------------------
This proposed rule does not contain a Federal mandate as the term
is defined under UMRA as it does not impose any enforceable duty upon
any other level of government or private sector entity.\198\ Any
downstream effects on such entities would arise solely due to their
voluntary choices 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.\199\ 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 Regulatory Impact Analysis (RIA) above. DHS welcomes
comments on this analysis.
---------------------------------------------------------------------------
\198\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
\199\ See 2 U.S.C. 1502(1), 658(6).
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D. Executive Order 13132 (Federalism)
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
E. Executive Order 12988 (Civil Justice Reform)
This proposed rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This proposed rule was written to provide
a clear legal standard for affected conduct and was reviewed carefully
to eliminate drafting errors and ambiguities, so as to minimize
litigation and undue burden on the Federal court system. DHS has
determined that this rule meets the applicable standards provided in
section 3 of E.O. 12988.
F. Family Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
Agencies must assess whether the regulatory action: (1) impacts the
stability or safety of the family, particularly in terms of marital
commitment; (2) impacts the authority of parents in the education,
nurture, and supervision of their children; (3) helps the family
perform its functions; (4) affects disposable income or poverty of
families and children; (5) if the regulatory action financially impacts
families, are justified; (6) may be carried out by State or local
government or by the family; and (7) establishes a policy 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 determined that the rule may decrease
disposable income and increase the poverty of certain families and
children, including U.S. citizen children. DHS continues to believe
that the benefits of the action justify the financial impact on the
family. Additionally, because the proposed rule would result in DHS
officers considering public benefits for purposes of the
inadmissibility determination that were not considered under the 2022
Final Rule, DHS has determined that the aliens found inadmissible under
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), would likely
increase over time. However, this potential impact is mitigated by two
factors. First, as discussed elsewhere in this proposed rule, Congress,
through the Big Beautiful Bill, Public Law 119-21 has further limited
immigration-status-based eligibility for certain public benefits that
would be considered under this proposed rule but were excluded from
consideration under the 2022 final rule. Second, given the compelling
need for this rulemaking, including but not limited to ensuring self-
sufficiency and minimizing the incentive to immigrate based on the U.S.
social safety net, DHS determined that this proposed rulemaking's
impact is justified and no further actions are required. DHS also
determined that this proposed rule will not have any impact on the
autonomy or integrity of the family as an institution.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This interim final rule would not have Tribal implications under
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect 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.
H. National Environmental Policy Act
DHS and its components analyze proposed regulatory actions to
determine whether the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., applies and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 ``Implementing the National
Environmental Policy Act'' (Dir. 023-01 Rev. 01) and Instruction Manual
023-01-001-01 Rev. 01 (Instruction Manual) \200\ establish the policies
and procedures that DHS and its components use to comply with NEPA.
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\200\ The Instruction Manual contains DHS's procedures for
implementing NEPA and was issued November 6, 2014, https://www.dhs.gov/ocrso/eed/epb/nepa.
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, 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. See 42 U.S.C. 4336(a)(2), 4336e(1). The Instruction
Manual, Appendix A lists the DHS Categorical Exclusions.\201\
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\201\ See Instruction Manual, Appendix A, Table 1.
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Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions:
[[Page 52222]]
(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.\202\
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\202\ Instruction Manual at V.B(2)(a) through (c).
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This proposed rule is limited to removing existing regulatory
criteria pertaining to public charge inadmissibility determinations.
This proposed rule is strictly administrative and procedural and if
finalized, would amend DHS's existing regulations to remove most of the
provisions put into place by the 2022 Final Rule, however DHS officers
would continue to make public charge inadmissibility determinations
governed by existing law. DHS has reviewed this proposed rule and
finds, if DHS were to issue a final rule resulting from this NPRM, no
significant impact on the environment, or any change in environmental
effect would result from the amendments being proposed in this NPRM.
Accordingly, DHS finds that this proposed rule's amendments to
current regulations clearly fit within categorical exclusion A3
established in DHS's NEPA implementing procedures as an administrative
change with no change in environmental effect, is not part of a larger
Federal action, and does not present extraordinary circumstances that
create the potential for a significant environmental effect.
I. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, DHS must submit to OMB for review and approval, any reporting
requirements inherent in a rule, unless they are exempt. Please see the
accompanying PRA documentation for the full analysis. Table III.
Information Collections below lists the information collections that
are part of this rulemaking.
[GRAPHIC] [TIFF OMITTED] TP19NO25.037
DHS and USCIS invite the general public and other federal agencies
to comment on the impact to the proposed collections of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0023 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
[[Page 52223]]
(2) Title of the Form/Collection: Application to Register Permanent
Residence or Adjust Status; Supplement A to Form I-485, Adjustment of
Status Under Section 245(i); Supplement J, Confirmation of Bona Fide
Offer or Request for Job Portability Under Section 204(j); National
Interest Waiver.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-485, Supplement A, Supplement J,
National Interest Waiver; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. This form
will be used to request and determine eligibility for adjustment of
permanent residence status. This Form I-485 Supplement A is used to
adjust status under section 245(i) of the Immigration and Nationality
Act (Act). The Form I-485 Supplement J is used if you are an
employment-based applicant for adjustment of status who is filing or
has previously filed a 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, and you now seek, in connection with your Form I-
485, to (1) confirm that the job offered in your Form I-140 is a bona
fide offer you intent to accept or (2) request job portability under
INA section 204(j) to a new, full-time permanent job offer that you
intent to accept, once your Form I-485 is approved. The Physicians
National Interest Waiver will be used to notify foreign physician
applicants of the medical service requirements for national interest
waiver physicians applying for adjustment of status.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-485 is
1,060,585 and the estimated hour burden per response is 6.86 hours; the
estimated total number of respondents for the information collection
Supplement A is 44,848 and the estimated hour burden per response is
0.88 hours; the estimated total number of respondents for the
information collection Supplement J is 57,353 and the estimated hour
burden per response is 0.60 hours; the estimated total number of
respondents for the information collection Biometrics Processing is
1,060,585 and the estimated hour burden per response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information in hours is 8,590,376.
(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 $363,780,655.
USCIS Form I-945
DHS and USCIS invite 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 is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0143 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of This Information Collection
(1) Type of Information Collection: Reinstatement, With Change, of
a Previously Approved Collection for Which Approval Has Expired.
(2) Title of the Form/Collection: Public Charge Bond.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-945; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or Household. Business
or other for profit. USCIS uses Form I-945 to ensure that the
conditions of the bond are fully articulated and met when USCIS accepts
the public charge bond posting. Without the form, and given the
complexity of the Federal and State laws governing bonds and surety
bond submissions, USCIS would not be able to determine the sufficiency
of the bond and USCIS or the U.S. Department of State would not be able
to finalize the adjudication of the related immigration benefit
requests (adjustment of status and immigrant visa applications).
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-945 is 10
and the estimated hour burden per response is 0.92 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The estimated total annual hour burden associated
with this collection is 9.2 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $0.
USCIS Form I-356
DHS and USCIS invite 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 is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0141 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
[[Page 52224]]
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of This Information Collection
(1) Type of Information Collection: Reinstatement, With Change, of
a Previously Approved Collection for Which Approval Has Expired.
(2) Title of the Form/Collection: Request for Cancellation of a
Public Charge Bond.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-356; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households; Business
or other for-profit; Not-for-profit institutions. USCIS uses Form I-356
to determine if the bond should be cancelled. A public charge bond will
be cancelled when the alien dies, departs permanently from the United
States, or is naturalized, provided the alien did not breach such bond
prior to death, permanent departure, or naturalization. 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 and USCIS finds that the
alien did not breach the bond.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-356 is 10
and the estimated hour burden per response is 0.75 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The estimated total annual hour burden associated
with this collection is 7.5 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 $2,500.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Freedom of information, Immigration,
Privacy, Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend 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 as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b, 1372; 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 paragraph (c)(1) to read as
follows:
Sec. 103.6 Immigration Bonds
* * * * *
(c) Cancellation and breach--(1) Public charge bonds--(A)
Cancellation. A public charge bond may be cancelled after the proper
filing of a request for cancellation of a public charge bond on a form
designated by USCIS for that purpose. The public charge bond will
remain in effect until the form is filed and USCIS reviews the evidence
supporting the basis for cancellation and renders a decision regarding
the breach of the bond, or a decision to cancel the bond. The following
are the bases for the cancellation of a public charge bond:
(i) 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 pursuant to
paragraph (c)(1)(B) of this section.
(ii) A public charge bond may also be cancelled in order to allow
substitution of another bond.
(iii) 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 a request for
cancellation of public charge bond on a form designated by USCIS for
that purpose, has complied with all conditions on the bond, and USCIS
finds that the alien did not breach the bond, as set forth in paragraph
(c)(1)(B) of this section.
(B) Breach. A public charge bond submitted on or after [DATE 60
DAYS AFTER DATE OF FINAL RULE PUBLICATION IN THE Federal Register] is
breached if the bonded alien receives any means-tested public benefit
prior to death, permanent departure, or naturalization, or is otherwise
noncompliant with any conditions of the public charge bond. A public
charge bond submitted before [DATE 60 DAYS AFTER DATE OF FINAL RULE
PUBLICATION IN THE Federal Register] is breached if the bonded alien
receives public cash assistance for income maintenance or long-term
institutionalization at government expense, or is otherwise
noncompliant with any condition of the public charge bond. A final
public charge bond breach determination may be appealed by a surety
under paragraph (f) of this section or by an alien under Sec. 103.3.
* * * * *
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); Pub. L. 115-218;
8 CFR part 2.
Section 212.1(q) and (r) also issued under section 702, Pub. L.
110-229, 122 Stat. 754, 854.
Sec. Sec. 212.20 through 212.23 [Removed]
0
4. Remove Sec. Sec. 212.20 through 212.23.
Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2025-20278 Filed 11-17-25; 4:15 pm]
BILLING CODE 9111-97-P